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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
vs.

Court File No.: 09-CV-1775 DWF/FLN
AMENDED CLASS ACTION COMPLAINT AND REQUEST FOR INJUNCTIVE AND DECLARATORY RELIEF

Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually, and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and State of Minnesota,

DEMAND FOR JURY TRIAL

Defendants.

Plaintiffs James and Lorie Jensen, as parents, guardians and next friends of Bradley J.

Jensen, James Brinker and Darren Allen, as parents, guardians and next friends of Thomas M.

Allbrink, Elizabeth Jacobs, as parent, guardian and next friend of Jason R. Jacobs, and others

similarly situated (collectively Plaintiffs), as and for their Complaint against Defendants

Minnesota Department of Human Services, an agency of the State of Minnesota; Director,

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Minnesota Extended Treatment Options, a program of the Minnesota Department of Human

Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended

Treatment Options, a program of the Minnesota Department of Human Services, an agency of

the State of Minnesota; Douglas Bratvold, individually, and as Director of the Minnesota

Extended Treatment Options, a program of the Minnesota Department of Human Services, an

agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director, the

Minnesota Extended Treatment Options, a program of the Minnesota Department of Human

Services, an agency of the State of Minnesota; and the State of Minnesota, (collectively

Defendants), state and allege as follows:

INTRODUCTION

OCTOBER 31, 1949

“The bonfire which I am lighting tonight consists of 359 strait-jackets, 196 cuffs, 91 straps, and 25 canvas mittens.”

GOV. LUTHER YOUNGDAHL
AT A CEREMONIAL BURNING OF MECHANICAL RESTRAINTS

“No patient in the Anoka State Hospital is in restraint. Those restraints were removed from the patients not by administrative coercion, but by the enlightened attitudes of the superintendent, staff, employees, and volunteer workers of the Anoka State Hospital. They were removed as the hospital‟s answer to witchcraft.”

* * * * *

"Documents in individual records revealed that people were being routinely restrained in a prone face down position and placed in metal handcuffs and leg hobbles.”

SEPTEMBER 2008
MINNESOTA OMBUDSMAN’S REPORT, JUST PLAIN WRONG, EVALUATING
MINNESOTA EXTENDED TREATMENT OPTIONS (METO) PROGRAM

“Some individuals were restrained with a waist belt restraint that cuffed their hands to their waist. An individual with an unsteady gait was routinely placed in this type of restraint, putting that person at risk of injury if they should fall. Others were being restrained on a restraint board with straps across their limbs and trunk.”
“[I]n most cases where restraints were used the person was calm and cooperative about going into the restraint but began to struggle, cry and yell once they were in the restraints. In some cases, clients appeared conditioned to „assume the position‟ for application of restraints where they would lie on the floor and put their hands behind their back without resistance.”

“If Governor Youngdahl declared we are „enlightened‟ in 1949, how did we get to this point in 2008?”

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1. This action arises from the abusive, inhumane, cruel and improper use of seclusion and mechanical restraints routinely imposed upon patients of the Minnesota Extended Treatment Options program (METO). The Minnesota Department of Human Services developed and operates METO to provide treatment and care for persons with developmental disabilities, including Plaintiffs Bradley J. Jensen (Bradley), Thomas M. Allbrink (Thomas), Jason R. Jacobs (Jason) and others similarly situated.
2. As a means of behavior modification, coercion, discipline, convenience and retaliation, METO staff restrained Plaintiffs using law enforcement-type metal handcuffs and leg hobbles for conduct as benign as spitting, laughing or hand-washing.
3. Other METO patients with developmental disabilities were similarly restrained with mechanical restraints, including metal handcuffs, leg irons, shackles and/or nylon straps. METO routinely used these restraints on patients for nonthreatening benign behavior, including touching a staff member or an object held by a staff member, bumping into someone, “touching the pizza box,” or not staying within eyesight of staff after taking medication; multiple occasions also existed where a patient was calmly watching TV or eating a snack just prior to the use of a mechanical restraints.
4. METO had restrained 63% of its patients at the time of an investigative review by the State Ombudsman for Mental health and Developmental Disabilities, most of them multiple times; restraining one patient 299 times in 2006 and 230 times in 2007. METO has insisted that restraining patients is “essential” to its program.
5. The behaviors resulting in the imposition of seclusion and mechanical restraints on Bradley, Thomas, Jason and others were for behaviors that were manifestations of their disabilities.

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6. Resulting in part from METO‟s admitted failure to properly train employees, Defendants failed to use appropriate and alternative means of behavior modification, such as positive or social reinforcement, or other positive methods invoking options of least restriction.
7. Through threats of retaliation, intimidation, coercion and fraudulent conduct, Defendants forced upon James and Lorie Jensen the use of restraints on their son Bradley, and, upon information and belief, asserted similar coercive influence over others similarly situated.
8. Defendants‟ conduct went far beyond any practices permitted by governing law, substantially departed from acceptable professional judgment, practices and standards of care, and plainly violated principles of common decency, dignity, morality and basic human rights.
9. Defendants‟ unprivileged conduct violated the rights of Plaintiffs and others afforded under the Constitution of the United States, the Constitution of the State of Minnesota and other applicable federal and state law. Defendants acted in clear violation of wellsettled law of which reasonable persons would have been aware.
10. Plaintiffs seek damages and injunctive relief, including attorney‟s fees, resulting from Defendants‟ unlawful, inhumane, cruel and indefensible treatment of Bradley, Thomas, Jason and others similarly situated.
11. This Amended Complaint provides notice to the United States Department of Justice, Civil Rights Division, of a pattern or practice of violations of the federal rights of Bradley, Thomas, Jason and other residential patients of the METO program. Plaintiffs demand an investigation by the United States Attorney General pursuant to his authority under the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997a et seq.

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PARTIES 12. Bradley is a resident of the state of Minnesota. 13. James and Lorie Jensen (Jensens) are the parents, guardians and next friends of Bradley,
and are residents of the state of Minnesota. 14. Thomas is a resident of the state of Minnesota. 15. James Brinker and Darren Allen (Brinker/Allen) are the parents, guardians and next
friends of Thomas, and are residents of the state of Minnesota. 16. Jason is a resident of the state of Minnesota. 17. Elizabeth Jacobs (Jacobs) is the parent, guardian and next friend of Jason, and is a
resident of the state of Minnesota. 18. Defendant Minnesota Department of Human Services (DHS) is an agency of the State of
Minnesota; DHS developed and operates METO, and is responsible for the acts and omissions of DHS employees in the METO program. 19. Defendant Director of METO is responsible for the operation of METO. 20. Defendant Douglas Bratvold was the Director of METO at all times material. 21. Defendant Clinical Director of METO is responsible for the operation of METO. 22. Defendant Scott TenNapel was the Clinical Director of METO at all times material. 23. Defendant State of Minnesota is responsible for all acts and omissions of employees and agents of METO and the Minnesota Department of Human Services.
CLASS ACTION ALLEGATIONS 24. Plaintiffs seek to represent a Class pursuant to Rule 23 of the Federal Rules of Civil
Procedure. 25. Putative Class Members:

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A. Class Members (Class) consist of patients of the METO program subjected to repeated, excessive and improper use of seclusion methods and restraints routinely imposed as a means of behavior modification, coercion, discipline, convenience and/or retaliation, including the use of law enforcement-type metal mechanical devices in the form of handcuffs and leg hobbles, including leg irons, shackles and/or nylon straps. As a practice, and due to the failure to properly train employees, Defendants failed to employ appropriate and alternative means of behavior modification, such as positive or social reinforcement, or other positive methods invoking options of least restriction.
B. Subclass Members (Subclass) consist of Class Members who were transferred from the METO program to the Minnesota Security Hospital in St. Peter, Minnesota, which is a facility designed to serve patients found to be mentally ill and dangerous, and which upon information and belief, is not capable of providing proper care and treatment to persons with developmental disabilities.
C. The proposed Class may include additional subclasses. In the event that discovery shows, or the Court determines, the proposed Class and/or Subclass cannot satisfy Federal Rule 23, Plaintiffs may propose to modify or narrow the definition of the Class or any subclasses.
D. The Class Period is the date of METO‟s inception, through the date of filing of this Complaint (Class Period).
E. The Class is so numerous that joinder of all members is impractical. F. The Class is ascertainable, as the names of all Class Members can be identified in
business records maintained by Defendants.

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G. Defendants have acted or refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class.
H. Plaintiffs will fairly and adequately protect the interests of the Class and have no interests adverse to or which directly and irrevocably conflict with the interests of other Class Members.
I. Plaintiffs are represented by counsel competent in the litigation of claims of the type asserted herein.
J. Questions of law and fact common to the Class predominate over questions affecting only individual Class Members. Such common questions include, but are not limited to, the following: i. Whether Defendants‟ acts and/or omissions as alleged herein violate rights granted pursuant to the Eighth and Fourteenth Amendments to the United States Constitution; ii. Whether Minnesota Statutes, section 245.825 and Minnesota Rules 9525.2700 - .2810 violate the United States Constitution and the Constitution of the State of Minnesota; iii. Whether Defendants‟ acts and/or omissions alleged herein violate Title II of the Americans with Disabilities Act; iv. Whether Defendants‟ acts and/or omissions alleged herein violate Section 504 of the Rehabilitation Act; v. Whether Defendants‟ acts and/or omissions alleged herein violate rights granted under the Constitution of the State of Minnesota;

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vi. Whether Defendants‟ acts and/or omissions alleged herein violate the Minnesota Human Rights Act;
vii. Whether Defendants‟ acts and/or omissions alleged herein violate Minnesota Statutes, section 245.825 and Minnesota Rules 9525.2700 .2810;
viii. Whether Defendants‟ acts and/or omissions alleged herein violate Minnesota Statutes, section 144.651;
ix. Whether Defendants‟ acts and/or omissions alleged herein violate Minnesota Statutes, section 253B.03;
x. Whether Defendants‟ acts and/or omissions alleged herein violate 42 C.F.R. 482.13; and
xi. Whether Defendants‟ acts and/or omissions alleged herein violate common law rights of the Plaintiffs.
I. Plaintiffs‟ claims are typical of the claims of the Class Members because they originate from the same wrongful policy and practices of Defendants, and because Defendants acted in the same way toward Bradley, Thomas, Jason and the Class.
J. Defendants‟ actions and/or omissions toward the Class are identical or substantially similar, and arise out of a policy, procedure and common course of wrongful conduct of improperly and excessively restraining METO patients, including the use of law enforcement-type metal mechanical devices in the form of handcuffs and leg hobbles, including leg irons, shackles and/or nylon straps, which caused injury and damage to Bradley, Thomas, Jason and the Class in a

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common and consistent manner, and in the coercion practices imposed on the representatives of METO patients. K. Plaintiffs will fairly and adequately protect the interests of the Class Members. Plaintiffs are committed to the vigorous prosecution of this action, have retained competent counsel, and have no interests antagonistic to or in conflict with those of the Class. As such, Plaintiffs are adequate Class Representatives. L. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. Class treatment will permit a large number of similarly situated persons to prosecute their claims in a single forum simultaneously and without unnecessary duplication and effort that would result from numerous individual actions. M. Individual litigation of the facts of all the individual cases would unduly burden the courts. Individual litigation would further present a potential for inconsistent or contradictory judgments, and would increase the delay and expense to all parties and the Court system. Further, the expense and burden of individual litigation make it impossible for Class Members to individually redress the wrongs alleged herein. In contrast, a class action presents far fewer management difficulties and provides the benefit of single adjudication under the comprehensive supervision of a single court. Notice of pendency of the action and any resolution thereof can be provided to proposed Class Members by publication and/or other means. N. This action is maintainable as a class action under Rule 23(b)(2) since the unlawful actions of Defendants, as alleged herein, have been taken on grounds

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equally applicable to all members of the Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole. O. This action is also maintainable as a class action under Rule 23(b)(3), as common questions of law and fact described above predominate over any questions affecting only individual members, the desirability of concentrating the claims in one forum, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. P. All allegations and claims are pled in the alternative to the extent required for proper construction under applicable state or federal law.
JURISDICTION AND VENUE 26. This Court has federal question jurisdiction over this matter pursuant to 28 U.S.C. § 1331
and related law, and has original jurisdiction over this matter pursuant to 28 U.S.C. § 1343(a)(3). Plaintiffs have commenced this action pursuant to 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and related federal laws to recover damages, including the costs of this suit and reasonable attorney‟s fees, sustained by Plaintiffs and the Class Members by reason of Defendants‟ violations of federal law and for injunctive relief as more fully set forth herein. 27. This Court has supplemental jurisdiction over the claims in this Amended Complaint that arise under state law pursuant to 28 U.S.C. § 1367(a) because the state law claims are so related to the federal claims that they form part of the same case or controversy and derive from a common nucleus of operative facts.

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28. Venue in the District of Minnesota is appropriate pursuant to 28 U.S.C. § 1391, as the conduct alleged herein occurred in this District.
29. The Jensens, Brinker/Allen and Jacobs bring this suit on behalf of Bradley, Thomas and Jason, respectively, under the authority of Minnesota Statutes, section 540.08 and Federal Rule of Civil Procedure 17(c). GENERAL ALLEGATIONS METO
30. DHS developed METO pursuant to a directive of the Minnesota legislature, codified at Minnesota Statutes, section 252.025, subd. 7, for the purpose of serving “Minnesotans who have developmental disabilities and exhibit severe behaviors which present a risk to public safety. [METO] must provide specialized residential services in Cambridge and an array of community support services statewide.”
31. Despite the requirement of Section 252.025, subd. 7 requiring METO to serve persons “which present a risk to public safety,” the Minnesota Department of Management and Budget published an Agency Profile of DHS in its 2010-11 Biennial Budget Report, p. 169 (December 2008) indicating that the population served by METO includes “persons who are committed as developmentally disabled who may pose a public safety risk.” (emphasis in original), indicating that DHS may be seeking funding for services beyond its statutory authority.
32. At all times material, METO was developed and operated under the Forensic Services office of the State Operated Services program under the Chemical and Mental Health Services Division of DHS, which is an agency of the State of Minnesota.

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33. METO is licensed by the Licensing Division of DHS as an Intermediate Care
Facility/Developmentally Disabled (ICF/DD).
34. At all times material, Defendants are responsible for all aspects of the operation of
METO and/or for the health, safety and well being of Bradley, Thomas, Jason and Class
Members.
35. METO is an institution within the meaning of 42 U.S.C. § 1997(1).
36. DHS, as the operator of METO, is a public entity as defined in the ADA and
implementing regulations, 42 U.S.C. § 12131(1), 28 C.F.R. 35, in that it is a state or local
governmental entity or agency thereof.
37. DHS, as the operator of METO, is a program or activity as defined in of Section 504 of
the Rehabilitation Act, 29 U.S.C. § 794(b)(1)(A), in that it is a department, agency,
special purpose district, or other instrumentality of a state or local government.
38. At all times material, METO received federal funds and was a participant in the Medicaid
system, rendering METO subject to the Patient Bill of Rights, including the right to be
free from seclusion and/or restraints. 42 C.F.R. 482.13(e).
39. Through online published material, METO represented:
METO serves the public interest by providing comprehensive treatment to individuals with mental retardation1 and co-occurring conditions to promote safe and sustainable return to their communities of origin.
A statewide program, METO has the capacity to provide specialized residential services for up to 48 clients on the Cambridge campus. The program makes use of intense levels of staff supervision and internal client management procedures to maintain security. Residential units have been constructed to be as homelike as possible, permitting clients to maintain or improve daily living skills that facilitate development of self-esteem, acceptance of personal responsibility, and eventual reintegration into the community.

1 The appropriate term is “developmental disability.” Minn. Stat. § 15.001.

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Treatment for individuals who have committed criminal offenses: Treatment focuses on teaching alternatives to aggression, enhancing self-concept and learning to accept personal responsibility. Treatment for aggressive/assaultive and other challenging behaviors: Treatment includes behavior management/therapy. 40. In Minnesota, the term “Rule 40” refers to Minnesota Rules 9525.2700 - .2810, promulgated pursuant to Minnesota Statute, section 245.825, that govern the use of aversive and deprivation procedures such as seclusion and restraints. 41. Rule 40 provides standards that govern the use of aversive and deprivation procedures with persons who have a developmental disability and who are served by a license holder licensed by the Commissioner of DHS, including METO. 42. Upon information and belief, the METO facility has two Seclusion Rooms, which are used to seclude patients in direct violation of Rule 40 and federal law. See Minn. Stat. § 245.825; Minn. R. 9525.2730(2)(D); see also 42 C.F.R. 482.13(e). 43. Rule 40 does not encourage or require the use of aversive and deprivation procedures, but rather encourages the use of positive intervention approaches as an alternative to aversive or deprivation procedures. 44. Defendants made false representations to Plaintiffs regarding the use and scope of Rule 40 procedures and psychotropic/neuroleptic drugs. 45. At all times material, Defendants‟ practices subjected Bradley, Thomas, Jason and Class Members to repeated, excessive and improper use of seclusion methods and restraints, including law enforcement-type mechanical devices in the form of metal handcuffs and leg hobbles, including leg irons, shackles and/or nylon straps.

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46. Upon information and belief, Defendants routinely subjected Bradley, Thomas, Jason and Class Members to seclusion methods veiled as “time outs” or similar methods, but which had little, if any, beneficial therapeutic effects and were used solely as punishment.
47. Upon information and belief, Defendants also secluded some Class Members by depriving them of visits with their families.
48. Upon information and belief, a stripped female was placed in a Seclusion Room despite the ability for persons to look into the room through a viewing window on the room‟s access door.
49. Defendants used or allowed the use of restraints, including metal handcuffs and leg hobbles, to restrain Bradley, Thomas, Jason and Class Members when behaviors were displayed that Defendants summarily and routinely deemed to be antecedent to more severe self injurious behaviors but were not determined to cause imminent injury and did not constitute an emergency.
50. Defendants used or allowed the use of restraints as an improper and routine behavior modification technique to correct behaviors, which were manifestations of their disabilities.
51. Defendants used restraints, including metal handcuffs and/or leg hobbles for behaviors that did not pose a threat of imminent danger to patients or others, such as spitting, vomiting, urinating, laughing, hand washing, and other behaviors.
52. Defendants‟ use or allowance of restraints, including metal handcuffs and leg hobbles, including leg irons, shackles and/or nylon straps, was a routine treatment modality rising to the level of a pattern of practice, which grossly violated generally accepted best practice standards and the standard of care.

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53. Defendants failed to provide Bradley, Thomas, Jason and Class Members with training and skills to ensure their safety and to facilitate their ability to function free from bodily restraints. Defendants failed to provide Bradley, Thomas, Jason and Class Members training and skills that would significantly reduce the need for restraints or the likelihood of self-injurious conduct.
54. Accepted best practice standards and the standard of care indicate restraints should not be used, and that positive behavioral supports, which include assessing the purpose of the behaviors and determining positive alternatives for individuals to employ, is the preferred approach. If restraints are used, they must be for situations where there is imminent risk of harm to the patient or others, and only for as long as the risk is present.
55. Defendants failed to use or require the use of positive intervention techniques or other methods of least restriction to modify behavior and to ensure Bradley, Thomas, Jason and Class Members were free from undue, unreasonable, cruel and inhumane restraints, and provided with reasonably safe conditions of confinement, personal security, reasonable protection from harm, adequate care and to otherwise protect Bradley, Thomas, Jason and Class Members from harm.
56. Defendants failed to assess Bradley, Thomas, Jason and Class Members to ascertain whether adequate treatment, support and services were received in the most integrated setting appropriate to their individual needs.
57. Defendants‟ use of seclusion methods and restraints, including law enforcement-type mechanical devices in the form of metal handcuffs and leg hobbles, violated accepted professional standards of care, thereby causing Bradley, Thomas, Jason and Class Members to suffer damages and exposing them to significant risk of harm.

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58. As early as 1949, Minnesota officials recognized the barbarism associated with the use of
restraints when administrators at the Moose Lake State Hospital discontinued the use of
restraints and chose to treat patients humanely and therapeutically rather than through the
threat of restraints. Moose Lake State Hospital was a part of the State Operated Services
division of the DHS, just as METO is today.
59. On January 21, 2009, Dr. Read Sulik, Assistant Commissioner for Chemical and Mental
Health Services for DHS, who has authority over METO, testified before the Minnesota
Senate, Finance Health and Human Services Budget Division committee regarding the
lack of oversight and staff training at METO. Dr. Sulik made the following
representations:
In response to a question regarding perceived lack of oversight at METO, which was apparent from the Ombudsman investigation report regarding METO entitled “Just Plain Wrong,” Dr. Sulik stated he had revised the hierarchical reporting structure so METO‟s Clinical Director, among others, would now report to him directly, and he would now receive the administrative, financial and clinical reports to ensure he was being updated on the clinical needs and operations of METO. He further stated historically there had never been a Clinical Director reporting to the Assistant Commissioner at State Operated Services.
In response to a question regarding METO staff‟s lack of training, Dr. Sulik stated: “I don‟t want to indicate that the skill sets are missing, but they are not at the level of competence and acquisition that I aspire to get to within all of our programs. . . .”
60. In an October 1, 2008 article in the Isanti County News, after agreeing with the
Ombudsman„s investigative findings related to the use of restraints at METO, DHS‟
spokesperson was quoted as saying the “use of restraints within this program to safeguard
patients and staff is essential.”
61. In contrast, at public meetings on July 7, 2009, Dr. Sulik stated he wanted to eliminate
the use of seclusion and restraints on METO patients, that current efforts exist to reduce

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the use of seclusion and restraints, and that METO could treat patients without using seclusion and restraint, but that METO staff would require proper training in order to do so. Dr. Sulik further indicated he wanted to transfer employee skill sets to utilize positive behavioral interventions. 62. In further comments, Dr. Sulik stated METO‟s placement in the DHS Forensic Services office may have clouded METO‟s original purposes and goals internally and externally. Dr. Sulik also stated there are multiple levels of criminal and civil commitments to METO. 63. Dr. Sulik recognized METO had been used inappropriately as an acute psychiatric facility, and that some individuals had been inappropriately placed in METO who did not exhibit behavioral aggression or acute psychiatric issues. 64. Upon information and belief, METO may be increasing the use of chemical restraints (i.e., medications) to replace or supplement its reduced use of mechanical restraints.
Bradley 65. Bradley is a person with developmental disabilities and has been diagnosed with Autism,
hyperkinesias, an anxiety disorder and a possible psychosis condition; intellectual and adaptive functioning tests place him in the lower extreme (lower than 0.1% of the population). 66. Bradley‟s disabilities materially or substantially affect one or more major life activity. 67. Bradley is an individual with a disability as defined by the Americans with Disabilities Act (ADA), 42 U.S.C. § 12102(2), and is a qualified individual with a disability as defined in Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 705(20).

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68. Bradley was civilly committed as developmentally disabled and mentally ill to METO per court Order.
69. Bradley was a patient of METO from November 16, 2006, through November 8, 2007. 70. Defendants subjected Bradley to the use of mechanical restraints, including metal
handcuffs and leg hobbles, on at least 70 occasions; Class Members were subjected to mechanical restraints as well, sometimes hundreds of times per year. 71. On repeated occasions, Defendants subjected Bradley and Class Members to seclusion methods, including impeding the Jensens from having contact with Bradley (e.g., refusing phone contact near the Thanksgiving Holiday) and secluding him in his room without the choice to leave for non-threatening behavior. 72. Bradley lacked the capacity to consent to the use of Rule 40 procedures, including the use of mechanical restraints and psychotropic/neuroleptic drugs. 73. Defendants knew or should have known Bradley lacked the capacity to consent to the use of Rule 40 procedures and psychotropic/neuroleptic drugs. 74. Although Bradley lacked the capacity to consent to the use of Rule 40 procedures and/or the use of psychotropic/neuroleptic drugs, which was known or should have been known to Defendants, Defendants caused Bradley to sign consent forms as his own legal representative prior to the Jensens becoming his legal guardians. 75. Defendants implemented Rule 40 procedures pursuant to the defective consent of Bradley. 76. Subsequent to their appointment as Bradley‟s guardians, Defendants coerced the Jensens and other guardians similarly situated through threats of retaliation and fraudulent conduct, including through Defendants‟ silence when they had an

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obligation to disclose, into consenting to certain purported Rule 40 seclusion and mechanical restraint procedures. 77. Once Bradley transferred out of METO to a community based residence, he was afraid to leave his new home to attend day programming due to a fear of having to return to METO; Bradley continues to express fear of being returned to METO.
Thomas 78. Thomas is a person with developmental disabilities and has been diagnosed with mild to
moderate developmental disability, Fetal Alcohol Syndrome, Intermittent Explosive Disorder, an anxiety disorder and depressive disorder; intellectual and adaptive functioning tests place him in the lower extreme (lower than 0.1% of the population). 79. Thomas‟ disabilities materially or substantially affect one or more major life activity. 80. Thomas is an individual with a disability as defined by the ADA, and is a qualified individual with a disability as defined in Section 504. 81. Thomas was civilly committed as developmentally disabled to METO per court Order. 82. Thomas was a patient of METO from approximately July 13, 2007, through December 19, 2008. 83. Thomas was mechanically restrained by METO staff on several occasions, including being put in “steel cuffs” and leg hobbles for 50 minutes following a “group takedown”; Thomas cried during the restraint, stating “I don‟t belong here.” 84. As a result of the use of restraints and group takedowns, Thomas suffered several physical injuries, including abrasions on the right and left side of his forehead, cuts on his wrists, and his right ear being banged on the ground resulting in blood in his ear canal.

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85. METO staff also threatened James Brinker that Thomas would never be allowed to have another family visit if he was not returned to METO on Christmas Day 2007 despite METO‟s social worker specifically arranging with James Brinker that Thomas could return the day after Christmas. Jason
86. Jason is a person with developmental disabilities and has been diagnosed with mild developmental disability, Klinefelter‟s Syndrome, major depression disorder, Dysthymia, ADHD and Schizoaffective Personality Disorder.
87. Jason‟s disabilities materially or substantially affect one or more major life activity. 88. Jason is an individual with a disability as defined by the ADA, and is a qualified
individual with a disability as defined in Section 504. 89. Jason was civilly committed to METO per court Order, and was a patient of METO from
approximately May 2006 through March 2009. 90. Jason was restrained by METO staff on his first day at METO and was subsequently
restrained hundreds of times with handcuffs and leg hobbles for benign behaviors such as washing his hands too much. 91. METO staff restrained Jason by strapping his wrists and ankles to a chair or bed. 92. As a result of the use of handcuffs, Jason suffered several physical injuries. 93. On one occasion, Jason repeatedly told METO staff his arm hurt while being restrained with metal handcuffs and leg shackles; METO staff refused to provide him with medical attention despite Jason‟s repeated requests and lifted his arms up in the back during use of the handcuffs. When METO staff finally sought medical care for him the next day, it was discovered Jason had suffered a broken arm from the restraints. An air cast was

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placed on Jason‟s arm. Despite the placement of the air cast, METO staff placed Jason in handcuffs the day after he was seen by the doctor. 94. On another occasion, Jacobs authorized a root canal procedure for Jason. His dentist prescribed pain medication, but METO staff refused to allow Jason to take the medication until a review by METO doctors. Subsequently, METO doctors refused to allow the pain medication, permitting Jason to take only over-the-counter aspirin. 95. Jason was put in a Seclusion Room by METO staff for hours at a time as a form of punishment. 96. When Jacobs tried to visit her son at METO pursuant to a pre-arranged authorized visit, METO staff refused to allow her to see Jason, claiming she was not authorized, although the visit was authorized by METO. METO staff further refused to check with the appropriate staff member to confirm the authorization. After refusing to allow Jason a visit from his mother, METO staff restrained Jason and secluded him in his room as a means to punish him. 97. While a patient of METO, DHS officials transferred Jason to the Minnesota Security Hospital in St. Peter (MSH), a secure treatment facility designed to serve persons committed as mentally ill and dangerous or transferred from the prison system due to mental illness. See Minn. Stat. § 253.20. Upon information and belief, Jason and other Subclass Members with developmental disabilities were placed in the general forensic population at MSH rather than a specialized developmental disability unit, which may or may not exist, over the objections of the Ombudsman and others. Upon information and belief, MSH is not capable of providing proper care and treatment necessary to meet the

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needs of persons with developmental disabilities. Elizabeth Jacobs, Jason‟s mother and
legal guardian, was not given notice of Jason‟s transfers to MSH.
98. METO patients who were transferred from METO to the Minnesota Security Hospital,
form a Subclass of Class Members whose rights were further violated by such a transfer
in violation of state law.
99. Other Class Members receiving services through METO are persons with developmental
disabilities, persons with acute psychiatric conditions, persons diverted from criminal
courts, and others.
Minnesota Office of Ombudsman for Mental Health and Developmental Disabilities Investigation
100. In 2007 and 2008, the Minnesota Office of Ombudsman for Mental Health and
Developmental Disabilities investigated the treatment provided at METO in response to a
complaint regarding the use of physical restraints on patients with developmental
disabilities, including metal, law enforcement style handcuffs and leg hobbles.
101. On September 18, 2008, the Ombudsman‟s Office published an extensive report entitled
“Just Plain Wrong” detailing its investigation, findings, conclusions and
recommendations. What the Ombudsman found was shocking:
Documents in individual records revealed that people were being routinely restrained in a prone face down position and placed in metal handcuffs and leg hobbles. In at least one case, a client that the metal handcuffs and leg hobbles were secured then together behind the person, further immobilizing the arms and legs, reported it to the Ombudsman staff. Some individuals were restrained with a waist belt restraint that cuffed their hands to their waist. An individual with an unsteady gait was routinely placed in this type of restraint, putting that person at risk of injury if they should fall, as they would not be able to use their arms or hands to break that fall. Others were being restrained on a restraint board with straps across their limbs and trunk. METO policies stated that a person was not to be restrained for more than 50 minutes. Ombudsman staff found numerous examples of documented incidents where after 50

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minutes in a restraint, staff would continue the restraint but document it on a different restraint use form, sometimes with no indication that it was a continuation of the previous restraint.
Documentation revealed that in most cases where restraints were used, the person was calm and cooperative about going into the restraint but began to struggle, cry and yell once they were in the restraints. In some cases, clients appeared to be conditioned to “assume the position”2 for the application of restraints where they would lie on the floor and put their hands behind their back without resistance. One client who was regularly restrained with metal handcuffs and leg irons stated that once the restraints were on he/she began to experience discomfort which led to crying, yelling and struggling against the restraints. The METO policy stated that a person had to be calm for 15 minutes before they could be released from restraints.
102. The Ombudsman further reported, in part:
A. METO was a program that was established with a good foundation and lofty goals but had slid into a pattern of practice that used restraints as a routine treatment modality.
B. Generally accepted best practice standards indicated that restraints should only be used in a situation where there is imminent risk to the patients or others and only for as long as the risk is present.
C. Current best practice standards focused on positive behavioral supports, which included assessing the purpose of the behaviors and finding positive alternatives for the individual to employ.
D. Sixty three percent (63%) of METO patients at the time of the review, had been restrained and the majority of those had been restrained multiple times; one patient had been restrain 299 times in 2006 and 230 times in 2007.
E. Reasons for restraining patients included touching a pizza box.
F. No alternatives were attempted to avoid the use of restraints.
G. The length of time some patients were in restraints exceed METO‟s own guidelines.
H. The agencies who had protective obligations for METO patients or responsibility to serve as a checks and balances over the actions of the program, failed to protect the patients or turned a blind eye to the problem.

2 “Assume the position” procedures are prohibited. Minn. R. 9525.2730(2)(C).

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103. The Ombudsman concluded, in part, that:
A. There is an abundance of research and evidence that positive practices can work to alter challenging behaviors.
B. Positive Interventions are the generally accepted standard of care for persons with developmental disabilities.
C. There is a legitimate place in the spectrum of care for a facility envisioned by METO‟s empowering legislation.
D. METO currently has a program-wide practice of routine use of restraints employed as a basic treatment modality. This practice embodies a deeply ingrained philosophy of care.
E. Staff members of the facility believe that their clients will not get better if they do not use this form of treatment.
F. The practice using restraints is practiced widely and is anticipated with every admission. This is evidenced by the standard check off on the admission form that there are no contraindications to the use of restraints.
G. The facility agreed to look for alternative restraint devices that are safe and more acceptable in a health care setting.
H. Inappropriate use of restraints can constitute abuse under Minnesota‟s Vulnerable Adult Act.
I. It is the opinion of the Ombudsman that certain practices have violated the human and civil rights of some clients.
104. As a result of the investigation, the Ombudsman recommended in part:
A. METO should immediately discontinue the use of restraints in any form except when [imminent] risk of harm is present.
B. All staff should receive training in positive behavioral programming, rights of clients, documentation and other training as identified in any program evaluation.
C. METO should establish an overarching approach to the use of restraints that applies to all clients regardless of what type of licensing covers any given unit. Human rights are universal and every client has the right to be treated with dignity and respect.

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D. County case managers should become more active participants in their client‟s plan of care and should be encouraged to challenge practices to assure that all reasonable methods have been tried before any restrain is to be used.
105. In the Report‟s closing comments, the Ombudsman stated:
It appears as if the METO program has lost sight of its original vision and mission. Minnesota has fallen back on the failed practices of the past that led to the necessity of a Federal Consent Decree. Without immediate and substantive change, the state is at risk of further federal intervention. METO clients deserve to receive treatment and supports that fully incorporate them into the fabric of our communities as equal and participating members. Those who know and work with these citizens know how much they contribute and how much they enrich our lives. These citizens deserve better and the taxpayers of Minnesota deserve more effective use of their resources.
106. The Ombudsman found many individuals were adversely affected by METO policies and
procedures regarding the use of mechanical restraints.
107. As further background, the Report also indicated “METO was partially the result of the
closure of the Cambridge State Hospital after the state entered into a Federal Consent
Agreement. The Agreement was the outcome of a lengthy Federal litigation about the
conditions of care and treatment of the residents of the Hospital.”
108. A copy of the Ombudsman‟s Report is attached as Exhibit 1 and made a part of this
Amended Complaint as if fully stated herein.
109. By letter dated August 8, 2008, in response to a draft of the Ombudsman‟s Report, DHS
represented the following regarding the continued use of restraints:
In February 2008, METO established (1) a uniform policy and procedure to be applied to all units, regardless of the type of applicable licensing regimen, regarding the use of restraints, and (2) an aggressive goal and timetable that all staff will be trained by March 1, 2008, and that goal was met. Under the new policy and procedure, METO has discontinued the use of restraints in any form except when imminent risk of harm is present.

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110. Upon information and belief, METO continues to use mechanical restraints and restraints in the form of chemicals, in contravention of its stated policy that restraints would not be used “in any form except when imminent risk of harm is present.” Minnesota Department of Health Investigations
111. On January 10 and 11, 2007, the Minnesota Department of Health (MDH), Office of Health Facility Complaints (OHFC), made unannounced visits to METO to investigate an alleged violation of the Conditions of Participation for Intermediate Care Facilities for Persons with Developmental Disabilities, specifically related to the Condition of Client Behavior and Facility Practice (42 C.F.R. 483.450), for Intermediate Care Facilities for the Developmentally Disabled. The scope of the investigation included not only persons residing in ICF/DD beds, but also those persons residing in non-certified beds.
112. OHFC investigators found that fifteen “Conditions” under the Federal Regulations governing ICF/DD facilities were not met by METO.
113. A copy of the OHFC Statement of Deficiencies and Plan of Correction related to the January 10 and 11, 2007, investigation, is attached hereto at Exhibit 1, Appendix B, and made a part of this Amended Complaint as if fully stated herein.
114. On February 28, 2008, OHFC issued a public Investigative Report, which included the following findings: A. METO failed to ensure patients were free from unnecessary physical restraints and/or drugs. B. METO failed to implement restraints without causing harm to the patient. C. METO failed to revise individual program plans as necessary related to behaviors. D. METO failed to incorporate alternative interventions into patients‟ individual program plans in place of restraints.

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E. METO failed to utilize restraints in a manner that would reduce the need for restraints and eliminate the behavior.
115. A copy of the OHFC Investigation Report is attached hereto as Exhibit 2 and made a part of this Amended Complaint as if fully state herein.
116. An administrative employee who was interviewed during the OHFC investigation stated injuries related to restraint use included redness from handcuffs, bumps, bruises, rug burns and at least one broken arm.
117. On March 4 and 5, 2008, the OHFC conducted another unannounced full survey of METO. A Statement of Deficiencies and Plan of Correction was issued, which found METO was still not compliant with federal and state law, and deficiencies previously found had not been corrected, including that METO continued to fail to ensure patients were free from unnecessary physical restraints and/or drugs.
118. A copy of the OHFC Statement of Deficiencies and Plan of Correction related to the March 4 and 5, 2008, investigation, is attached hereto at Exhibit 3 and made a part of this Amended Complaint as if fully stated herein. DHS Licensing Investigation and Correction Order
119. The Minnesota Department of Human Services, Division of Licensing (DHS Licensing) issued an Investigation Memorandum on April 4, 2008, regarding complaints about the use of controlled procedures at METO, in particular, the use of mechanical and manual restraints.
120. DHS Licensing found the following violations of the use of controlled procedures or restraints and/or Minnesota Rules 9525.2700 - .2810: A. METO‟s Individual Program Plans (IPPs) developed for the use of controlled procedures, did not meet the required standards for assessment, content, and review, including the failure to obtain a report from the physician on whether

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there were existing medical conditions that could result in the demonstration of behavior for which a controlled procedure may be proposed or should be considered in the development of an IPP for controlled procedure use.
B. METO staff use controlled procedures for staff convenience and not based on the standards and conditions for use of the procedures; patients were told if they did not stop engaging in a behavior, a controlled procedure would be used and no efforts to teach an alternative behavior were used.
C. METO staff implemented controlled procedures on an emergency basis for staff convenience without the patients‟ behavior meeting the criteria for use (i.e., immediate intervention was needed to protect the person or others from physical injury or to prevent severe property damage that is an immediate threat to the physical safety of the person or others).
D. METO failed to complete the required review and reporting when a controlled procedure was used on an emergency basis.
121. A copy the DHS Licensing Investigation Memorandum is attached at Exhibit 4 and made
a part of this Amended Complaint as if fully stated herein.
122. DHS Licensing issued a Correction Order to METO that contained six citations, which
required corrective action, including the following:
A. Failure to ensure that all the required standards and conditions for the use of controlled procedures were met.
B. Failure to obtain the required assessment information on persons who had a controlled procedure as part of their IPP.
C. Failure to ensure necessary conditions were met when an emergency use of a controlled procedure was implemented on a patient.
D. Failure to implement METO‟s own policy on the emergency use of controlled procedures.
123. A copy the DHS Licensing Correction Order is attached at Exhibit 5 and made a part of
this Amended Complaint as if fully stated herein.

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Review by METO Retained Experts 124. Following the investigations by the OHFC and DHS Licensing, DHS stated “the METO
program engaged a group of national experts in the treatment and support of persons with mental illness/developmental disabilities, whose behaviors present a risk to the public, to complete a review of the METO program.” DHS stated “[t[he purpose of the review was to compare the practices employed by the Department‟s METO program with nationally accepted best practices.” 125. Recognizing METO‟s ongoing use of mechanical restraints, and noting METO had tried to reduce its use of restraints, the experts stated “[t]he use of mechanical restraints is not regarded as best practice in the disability field,” that “[s]eeking alternative approaches to assure safety during physical behavioral crisis is advisable,” and recommended that METO “[o]nly consider the use of restraint for times when the client is a danger to him/her self or others, all other pro-active measures have been tried and without an intervention someone will get hurt.” 126. The experts found 88% of METO patients were on antipsychotic medication, and 25% of the doses exceeded the published FDA maximum. 127. At all times material, as more fully described in the foregoing allegations, Defendants acted under color of state law.
COUNT I 42 U.S.C. § 1983 – FOURTEENTH AMENDMENT 128. Plaintiffs re-allege the allegations set forth in the preceding paragraphs as if fully set forth herein. 129. Defendants are obligated to operate and implement METO and safeguard patients in the METO program, including Bradley, Thomas, Jason and Class Members, in a manner that

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does not infringe upon their federal and civil rights, including rights granted pursuant to the Fourteenth Amendment to the Constitution of the United States (Fourteenth Amendment), and by other federal law and/or state law. 130. Defendants acted under color of state law and engaged in an official policy and/or custom of restraining Bradley, Thomas, Jason and Class Members using improper seclusion methods and restraints, including law enforcement-type mechanical devices in the form of metal handcuffs and leg hobbles, including leg irons, shackles and/or nylon straps, violating their federal rights as protected by the Fourteenth Amendment, as enforced through 42 U.S.C. § 1983 (Section 1983). 131. Defendants acted in clear violation of well-settled law of which reasonable persons would have been aware. 132. Defendants‟ acts and omissions deprived Plaintiffs and Class Members of rights, privileges, or immunities secured or protected by the Fourteenth Amendment and federal law, including but not limited to the right to reasonably safe conditions of confinement, personal security, freedom from undue and unreasonable bodily restraints, reasonable protection from harm, and adequate care, and freedom from threats, coercion and the right of due process causing Plaintiffs damages in an amount to be proven at trial, including attorney‟s fees and costs. 133. To the extent discovery in this action reveals METO is a program assisted with funds under the Developmental Disability Assistance and Bill of Rights Act (DD Act), Plaintiffs reserve the right to amend this Amended Complaint to assert claims based upon violation(s) of the DD Act‟s contingency requirements to receive funds thereunder. Specifically, Defendants may have failed to have in place an individual written

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habilitation plan for Bradley, Thomas and Jason, and, in the alternative, may have failed to have the individual habilitation plan in effect.
COUNT II 42 U.S.C. § 1983 – EIGHTH AMENDMENT 134. Plaintiffs re-allege the allegations set forth in the preceding paragraphs as if fully set forth herein. 135. Defendants are obligated to operate and implement METO and safeguard patients in the METO program in a manner that does not infringe upon their federal rights, including for Class Members rights guaranteed pursuant to the Eighth Amendment to the Constitution of the United States (Eighth Amendment), and by other federal law and/or state law. 136. Defendants acted under color of state law and engaged in an official policy and/or custom of restraining METO patients using improper seclusion methods and restraints, including law enforcement-type mechanical devices in the form of metal handcuffs and leg hobbles, including leg irons, shackles and/or nylon straps, violating the federal rights of Class Members to be free from cruel and unusual punishment as protected by the Eighth Amendment, as enforced pursuant to 42 U.S.C. § 1983. 137. Defendants used restraints and seclusion methods, as alleged herein, to punish patients of the METO program. 138. Defendants acted in clear violation of well-settled law of which reasonable persons would have been aware. 139. Defendants‟ acts and omissions deprived Class Members of their rights, privileges, or immunities secured or protected by the Eighth Amendment and federal law, including but not limited to the right to be free from cruel and unusual punishment, causing damages in an amount to be proven at trial, including attorney‟s fees and costs.

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COUNT III VIOLATION THE CONSTITUTION OF THE STATE OF MINNESOTA (ART. I, SEC. 7) 140. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if fully set forth herein. 141. Defendants‟ acts and omissions deprived Plaintiffs and Class Members of rights, privileges, or immunities secured or protected by the Article I, Section 7 of the Constitution of the State of Minnesota, including but not limited to the right to reasonably safe conditions of confinement, personal security, freedom from undue and unreasonable bodily restraints, reasonable protection from harm, and adequate care, and freedom from threats and coercion, causing Plaintiffs and Class Members damages in an amount to be proven at trial, including attorney‟s fees and costs. 142. Defendants acted in clear violation of well-settled law of which reasonable persons would have been aware.
COUNT IV VIOLATION THE CONSTITUTION OF THE STATE OF MINNESOTA (ART. I, SEC. 5) 143. Plaintiffs re-allege the allegations set forth in the preceding paragraphs as if fully set forth herein. 144. Defendants acted under color of state law and engaged in an official policy and/or custom of restraining Class Members with improper seclusion methods and restraints, including law enforcement-type mechanical devices in the form of metal handcuffs and leg hobbles, including leg irons, shackles and/or nylon straps, violating certain Class Members‟ rights to be free from cruel and unusual punishment as guaranteed pursuant to Article I, Section 5 of the Constitution of the State of Minnesota, causing Plaintiffs and

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Class Members damages in an amount to be proven at trial, including attorney‟s fees and costs.. 145. Defendants used restraints and seclusion methods, as alleged herein, to punish patients of the METO program. 146. Defendants acted in clear violation of well-settled law of which reasonable persons would have been aware.
COUNT V DECLARATORY RELIEF MINN. STAT. § 245.825 AND MINN. R. 9525.2700 - .2810 VIOLATE STATE AND FEDERAL
CONSTITUTIONS 147. Plaintiffs re-allege the allegations set forth in the preceding paragraphs as if fully set forth
herein. 148. Minnesota Statutes, section 245.825 (Section 245.825) and rules promulgated by DHS
under the authority of Section 245.825, published at Minnesota Rules 9525.2700 - .2810, (Rules 9525.2700 - .2810), govern the use of aversive and deprivation procedures, including permitting the use of seclusion and mechanical restraints, in licensed facilities serving persons with developmental disabilities, including METO. 149. Section 245.825, and Rules 9525.2700 - .2810, are unconstitutional and void in that they violate the fundamental guarantee of freedom from cruel and unusual punishment as guaranteed by the Eighth Amendment and by Article I, Section 5 of the Constitution of the State of Minnesota. 150. Section 245.825 and Rules 9525.2700 - .2810 are further unconstitutional and void in that they violate the fundamental right to reasonably safe conditions of confinement, personal security, freedom from undue and unreasonable bodily restraints, reasonable protection from harm, and adequate care, and freedom from threats and coercion as guaranteed and

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protected by the Fourteenth Amendment and by Article I, Sections 7 of the Constitution of the State of Minnesota. 151. Plaintiffs seek a declaration from this Court that Section 245.825 and Rules 9525.2700 .2810 are unconstitutional under the U.S. and Minnesota Constitutions and prohibiting the State of Minnesota, DHS, METO and any others from invoking, using or enforcing in any manner or for any purpose the same.
COUNT VI VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT 152. Plaintiffs re-allege the allegations set forth in the preceding paragraphs as if fully set forth herein. 153. Defendants are obligated to provide treatment, support, and services to patients of METO consistent with the Americans with Disabilities Act (ADA) and implementing regulations. 42 U.S.C. § 12101 et seq., 28 C.F.R. 35. 154. Defendants‟ egregious, flagrant and inhume acts and omissions violate Title II of the ADA and implementing regulations. 42 U.S.C. § 12101 et seq., 28 C.F.R. 35. 155. As a result of Defendants‟ acts and omissions, Bradley, Thomas, Jason and Class Members were deprived of rights, privileges, or immunities secured and protected by federal law, and caused irreparable harm. 156. As a result of Defendants‟ acts and omissions, Bradley, Thomas, Jason and Class Members were denied access to the full utilization and benefit of treatment services based on disability status. 157. As a result of Defendants‟ practices, Bradley, Thomas, Jason and Class Members were deprived equal access to a public entity‟s services, programs, and activities and were

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otherwise adversely affected as a member of the public accessing METO‟s programs and activities. 158. Defendants conduct caused Plaintiffs and Class Members damages in an amount to be proven at trial, including attorney‟s fees and costs.
COUNT VII VIOLATION OF SECTION 504 OF THE REHABILITATION ACT 159. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if fully set forth herein. 160. Defendants‟ egregious, flagrant and inhumane acts and omissions violate Section 504 of the Rehabilitation Act and implementing regulations. 29 U.S.C. § 794, 34 C.F.R. 104. 161. As a result of Defendants‟ acts and omissions, Bradley, Thomas, Jason and Class Members were deprived of rights, privileges, or immunities secured and protected by federal law, and caused irreparable harm. 162. As a result of Defendants‟ acts and omissions, Bradley, Thomas, Jason and Class Members, by reason of disability, were excluded from the participation in, denied the benefits of, or subjected to discrimination while patients at METO. 163. Defendants‟ conduct caused Plaintiffs and Class Members damages in an amount to be proven at trial, including attorney‟s fees and costs.
COUNT VIII VIOLATION OF THE MINNESOTA HUMAN RIGHTS ACT 164. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if fully set forth herein. 165. Defendants are obligated to operate METO in a manner free from discrimination and that does not infringe upon the rights of individuals confined to METO as protected by the

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Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A et seq., and other applicable law. 166. Defendants‟ egregious, flagrant and inhumane acts and omissions constitute a pattern or practice that violated Bradley, Thomas, Jason and Class Members‟ state rights as protected by MHRA, including freedom from discrimination based on disability. 167. The disabilities of Bradley, Thomas, Jason and Class Members toll the accrual of their claims under MHRA. See Minn. Stat. § 541.15. 168. Defendants‟ conduct caused Plaintiffs and Class Members damages in an amount to be proven at trial, including attorney‟s fees and costs.
COUNT IX NEGLIGENCE PER SE
42 C.F.R. 482.13 169. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if
fully set forth herein. 170. At all times material, METO participated in the Medicaid program thereby subjecting
METO to the federal patients‟ bill of rights, codified at 42 C.F.R. 482.13. 171. Defendants are obligated to operate and implement METO consistent with 42 C.F.R.
482.13, sub. 3, which provides “All patients have the right to be free from physical or mental abuse, and corporal punishment. All patients have the right to be free from restraint or seclusion, of any form, imposed as a means of coercion, discipline, convenience, or retaliation by staff.” 172. Bradley, Thomas, Jason and Class Members are persons within the intended protection of 42 C.F.R. 482.13, subp. 3.

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173. Defendants failed to use or require the use of positive approaches as an alternative to seclusion or restraint procedures, and otherwise failed to comply with 42 C.F.R. 482.13 as identified herein.
174. Defendants‟ egregious, flagrant and inhumane acts and omissions constitute a pattern or practice violating 42 C.F.R. 482.13.
175. The harm suffered by Bradley, Thomas, Jason and Class Members is of the type 42 C.F.R. 482.13 was intended to prevent.
176. Defendants‟ conduct caused Plaintiffs and Class Members damages in an amount to be proven at trial, including attorney‟s fees and costs. COUNT X NEGLIGENCE PER SE MINNESOTA STATUTES, SECTION 245.825 AND RULE 40/MINN. R. 9525.2700 - .2810
177. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if fully set forth herein.
178. Defendants are obligated to operate and implement METO consistent with Minnesota Statutes, Section 245.825 and Rule 40 (i.e., Minn. Rules 9525.2700 - .2810), which mandate no rules shall encourage or require the use of aversive or deprivation procedures.
179. Bradley, Thomas, Jason and Class Members are persons within the intended protection of Section 245.825 and Rule 40.
180. Defendants failed to use or require the use of positive approaches as an alternative to aversion and deprivation procedures and failed to document or require the documentation that positive approaches were tried and were unsuccessful.
181. Defendant‟ egregious, flagrant and inhumane acts and omissions constitute a pattern or practice violating Rule 40 and Section 245.825.

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182. The harm suffered by Bradley, Thomas, Jason and Class Members is of the type Section 245.825 and Rule 40 were intended to prevent.
183. Defendants‟ conduct caused Plaintiffs and Class Members damages in an amount to be proven at trial, including attorney‟s fees and costs. COUNT XI NEGLIGENCE PER SE MINNESOTA STATUTES, SECTION 144.651
184. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if fully set forth herein.
185. Pursuant to Minnesota Statutes, section 144.651, subd. 14, METO patients are to be free from maltreatment, particularly from unnecessary drugs and physical restraints.
186. Bradley, Thomas, Jason and Class Members are persons within the intended protection of Section 144.651, subd. 14.
187. Defendants‟ egregious, flagrant and inhumane acts and omissions deprived Bradley, Thomas, Jason and Class Members of the right to be free from maltreatment.
188. The harm suffered by Bradley, Thomas, Jason and Class Members is of the type Section 144.651, subd. 14 was intended to prevent.
189. Defendants conduct caused Plaintiffs and Class Members damages in an amount to be proven at trial, including attorney‟s fees and costs. COUNT XII NEGLIGENCE PER SE MINNESOTA STATUTES, SECTIONS 253B.03, SUBD. 1 AND 245.825
190. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if fully set forth herein.

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191. Pursuant to Minnesota Statutes, Section 253B.03, subd. 1, persons have the right to be free from restraints, and restraints shall not be applied to patients with developmental disabilities except as permitted under Section 245.825.
192. Bradley, Thomas, Jason and Class Members are persons within the intended protection of Sections 253B.03, subd. 1 and 245.825.
193. Defendants use or allowance thereof, of metal handcuffs and leg hobbles to restrain Bradley, Thomas, Jason and Class Members violated Sections 253B.03, subd. 1 and 245.825 as alleged herein.
194. Defendants‟ egregious, flagrant and inhumane acts and omissions deprived Bradley, Thomas, Jason and Class Members of the right to be free from restraints, violating Sections 253B.03, subd. 1 and 245.825.
195. The harm suffered by Bradley, Thomas, Jason and Class Members is of the type Sections 253B.03, subd. 1 and 245.825 was intended to prevent.
196. Defendants‟ conduct caused Plaintiffs and Class Members damages in an amount to be proven at trial, including attorney‟s fees and costs. COUNT XIII NEGLIGENCE PER SE MINNESOTA STATUTE, SECTIONS 626.557 AND 626.5572 – VULNERABLE PERSONS
197. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if fully set forth herein.
198. At all times material, Bradley, Thomas, Jason and Class Members were vulnerable adults pursuant to Minn. Stat. §§ 626.557 and .5572, as they were unable or unlikely to report abuse or neglect without assistance due to developmental disability.

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199. Defendants‟ egregious, flagrant and inhumane acts and omissions constitute “abuse” as defined by applicable law.
200. Bradley, Thomas, Jason and Class Members are persons within the intended protection of Sections 626.557 and .5572.
201. Defendants failed to properly report the maltreatment of Bradley, Thomas, Jason and Class Members about which Defendants knew or should have known. This failure to report constituted violations by Defendants of Sections 626.557 and .5572.
202. The harm suffered by Bradley, Thomas, Jason and Class Members is of the type Sections 626.557 and 626.5572 were intended to prevent.
203. Defendants‟ conduct caused Plaintiffs and Class Members damages in an amount to be proven at trial, including attorney‟s fees and costs. COUNT XIV FALSE IMPRISONMENT
204. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if fully set forth herein.
205. Defendants, without privilege, intentionally and repeatedly used metal mechanical handcuffs and leg hobbles to wrongfully restrain and confine Bradley, Thomas, Jason and Class Members.
206. Defendants, without privilege, intentionally and repeatedly used seclusion methods to wrongfully confine Bradley, Thomas, Jason and Class Members.
207. Bradley, Thomas, Jason and Class Members were harmed by Defendants‟ wrongful restraint, seclusion and confinement.
208. Defendants‟ restraint, seclusion and confinement of Bradley, Thomas, Jason and Class Members were complete in that there were no known reasonable means of escape.

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209. Defendants‟ conduct caused Plaintiffs and Class Members damages in an amount to be proven at trial. COUNT XV ASSAULT
210. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if fully set forth herein.
211. Without consent or privilege, by an intentional act directed at Bradley, Thomas, Jason and Class Members, Defendants‟ caused Bradley, Thomas, Jason and Class Members apprehension or fear of immediate harm or offensive contact through the excessive and repeated use of seclusion and law enforcement-type mechanical restraints in the form of handcuffs and leg hobbles.
212. Defendants possessed the ability to cause the harm or offensive contact. 213. Bradley, Thomas, Jason and Class Members had reasonable apprehension or fear
immediate harm or offensive contact would occur. 214. Defendants‟ conduct caused Plaintiffs and Class Members damages in an amount to be
proven at trial. COUNT XVI BATTERY
215. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if fully set forth herein.
216. Defendants intentionally caused harmful or offensive contact with the person of Bradley, Thomas, Jason and Class Members anything worn or held by or closely connected with them, without consent or privilege.

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217. Defendants‟ act of restraining Bradley, Thomas, Jason and Class Members and use of law enforcement-type mental restraints were an offensive or harmful contact against them, and they did nothing to provoke Defendants or cause Defendants to believe they were putting either themselves or others in a position of imminent severe bodily harm, thus warranting use of restraints.
218. Defendants‟ conduct caused Plaintiffs and Class Members damages in an amount to be proven at trial. COUNT XVII NEGLIGENCE
219. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if fully set forth herein.
220. Defendants owed Bradley, Thomas, Jason and Class Members a duty of care to keep them free from unlawful use of seclusion and restraints and protect from injury.
221. Defendants failed to use reasonable care in their care and treatment of Bradley, Thomas, Jason and Class Members while patients of the METO program through the excessive and repeated use of seclusion methods and restraints, including law enforcement-type metal mechanical devices in the form of handcuffs and leg hobbles.
222. Defendants‟ egregious, flagrant and inhumane acts and omissions breached their duty of care owed to Bradley, Thomas, Jason and Class Members.
223. Defendants‟ conduct caused Plaintiffs and Class Members damages in an amount to be proven at trial.

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COUNT XVIII GROSS NEGLIGENCE 224. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if fully set forth herein. 225. Defendants owed Bradley, Thomas, Jason and Class Members a duty of care to keep them free from unlawful use of seclusion and restraints and protect from injury. 226. Defendants failed to use reasonable care in their care and treatment of Bradley, Thomas, Jason and Class Members while patients of the METO program through the excessive and repeated use of seclusion methods and restraints, including law enforcement-type mechanical devices in the form of metal handcuffs and leg hobbles. 227. Defendants‟ egregious, flagrant and inhumane acts and omissions breached their duty of care owed to Bradley, Thomas, Jason and Class Members resulting in negligence of the highest degree. 228. Defendants‟ conduct caused Plaintiffs and Class Members damages in an amount to be proven at trial.
COUNT XIX INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 229. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if fully set forth herein. 230. Defendants‟ routine, excessive and repeated use of seclusion methods and law enforcement-type metal mechanical restraints in the form of handcuffs and leg hobbles as alleged herein, was extreme and outrageous such that Defendants‟ conduct exceeded the boundaries of decency and dignity, and is utterly intolerable to a civilized community. 231. Defendants‟ conduct was intentional and reckless.

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232. Defendants‟ conduct caused Bradley, Thomas, Jason and Class Members severe emotional distress at the threat of being restrained and confined for any behavior no matter how slight and unlikely to cause injury.
233. The distress was so severe that no reasonable person could be expected to endure it. 234. Defendants‟ conduct caused Plaintiffs and Class Members damages in an amount to be
proven at trial. COUNT XX
FRAUD, MISREPRESENTATION AND RECKLESS MISREPRESENTATION 235. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if
fully set forth herein. 236. Defendants represented the METO program as a comprehensive treatment facility, which
promotes a “safe and sustainable return to the community” and is “homelike, permitting clients to maintain and improve daily living skills that facilitate development of selfesteem, acceptance of personal responsibility, and eventual reintegration into the community.” 237. Defendants represented METO as a treatment program that “focuses on teaching alternatives to aggression, enhancing self-concept and learning to accept personal responsibility.” 238. Defendants, through their silence where there was an obligation to disclose, represented that METO programs would operate consistent with applicable state and federal law as to the use of seclusion methods and mechanical restraints. 239. Defendants‟ misrepresentations regarding the type of treatment and care Bradley, Thomas, Jason and Class Members would receive in the METO program were material.

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240. Defendants knew at the time these misrepresentations were made that they were false and/or were made without the knowledge of whether they were true or false.
241. Defendants knew and/or should have known Bradley, Thomas, Jason and Class Members did not receive the care and treatment represented through the acts and omissions of Defendants.
242. These misrepresentations were made by Defendants with the intention of inducing Plaintiffs to justifiably rely on Defendants with respect to the placement of Bradley, Thomas, Jason and Class Members in the METO program.
243. Plaintiffs relied and acted on Defendants‟ false representations. 244. Defendants‟ conduct caused Plaintiffs and Class Members damages in an amount to be
proven at trial. COUNT XXI
NEGLIGENT MISREPRESENTATION 245. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if
fully set forth herein. 246. Defendants represented the METO program as a comprehensive treatment facility, which
promotes a “safe and sustainable return to the community” and is “homelike, permitting clients to maintain and improve dialing living skills that facilitate development of selfesteem, acceptance of personal responsibility, and eventual reintegration into the community.” 247. Defendants represented METO as a treatment program that “focuses on teaching alternatives to aggression, enhancing self-concept and learning to accept personal responsibility.”

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248. Defendants, through their silence where there was an obligation to disclose, represented that METO programs would operate consistent with applicable state and federal law as to the use of seclusion methods and mechanical restraints.
249. Defendants‟ misrepresentations regarding the type of treatment and care Bradley, Thomas. Jason and Class Members would receive in the METO program were material.
250. Defendants failed to use reasonable care or competence in obtaining information regarding the type of care and treatment Bradley, Thomas, Jason and Class Members would receive while patients of the METO program.
251. These representations were made by Defendants with the intention of inducing Plaintiffs and Class Members to justifiably rely on them in choosing the METO program.
252. Plaintiffs and Class Members reasonably relied and acted on Defendants‟ false representations.
253. Defendants‟ conduct caused Plaintiffs and Class Members damages in an amount to be proven at trial. COUNT XXII CONSUMER FRAUD AND DECEPTIVE TRADE PRACTICES – MINNESOTA STATUTES, SECTIONS 325F.69, 325D.44 AND 8.31, SUBD. 3a.
254. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if fully set forth herein.
255. Defendants held METO out to be a comprehensive treatment facility, which promotes a “safe and sustainable return to the community” and is “homelike, permitting clients to maintain and improve dialing living skills that facilitate development of self-esteem, acceptance of personal responsibility, and eventual reintegration into the community.”

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256. Defendants held METO out to be a treatment program that “focuses on teaching alternatives to aggression, enhancing self-concept and learning to accept personal responsibility.”
257. Defendants, through their silence where there was an obligation to disclose, represented that METO programs would operate consistent with applicable state and federal law as to the use of seclusion methods and mechanical restraints.
258. Defendants knew at the time these misrepresentations were made that they were false or were made without the knowledge of whether they were true or false.
259. These misrepresentations were made by Defendants with the intention of inducing Plaintiffs to justifiably rely on them in choosing the METO program.
260. Plaintiffs and Class Members relied and acted on the false information and misrepresentations made by Defendants regarding the type of treatment and care Bradley, Thomas, Jason and Class Members would receive as a patient of the METO program.
261. Defendants‟ conduct caused Plaintiffs and Class Members damages in an amount to be proven at trial, including attorney‟s fees, costs, disbursements, cots of investigation and other relief as determined by the Court. COUNT XXIII INJUNCTIVE RELIEF
262. Plaintiffs re-allege by reference the allegations set forth in the preceding paragraphs as if fully set forth herein.
263. Defendants‟ practice involving the excessive, repeated and unlawful routine use of seclusion and restraints, including the use of law enforcement-type mechanical devices in the form of metal handcuffs and leg hobbles, violated and will continue to violate METO patients‟ rights, privileges, or immunities secured and protected by federal and state law.

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264. Defendants‟ practices, procedures and use of such restraints are capable of repetition but evading review.
265. METO patients will be subjected to the same harm as Bradley, Thomas, Jason and Class Members and will be deprived of their rights, privileges, or immunities secured and protected by federal and state law unless enjoined through temporary and permanent injunctive relief.
266. The exact amount of damages cannot be determined, and therefore, there is no adequate remedy at law. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully demand judgment against Defendants as follows:
1. The Court determine that this action may be maintained as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure;
2. The Court certify the Class as follows: Class Members (Class) consist of patients of the METO program subjected to repeated, excessive and improper use of seclusion methods and restraints routinely imposed as a means of behavior modification, coercion, discipline, convenience and/or retaliation, including the use of law enforcement-type mechanical devices in the form of metal handcuffs and leg hobbles; as well as any appropriate subclasses;
3. The Court appoint Plaintiffs as Class Representatives for the Class; 4. The Court appoint Plaintiffs‟ Counsel of record as Counsel for the Class; 5. Temporarily and permanently enjoining Defendants, their officers, agents, employees,
subordinates, successors in office, and all those acting in concert or participation with them from any further use of seclusion and restraints;

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6. In the alternative, permanently enjoining Defendants, their officers, agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from any further use of mechanical restraints unless an independent third party, appointed by the Court, is physically present at METO, at Defendants‟ cost, to observe the alleged triggering behavior and agrees that the use of restraints are the only means available to ensure the safety of the patient and/or others from imminent serious bodily harm;
7. Enter a permanent injunction requiring Defendants to take such actions as will ensure that lawful and humane conditions of confinement are afforded to METO patients including the provision of adequate treatment in the most integrated and least restrictive setting appropriate to their individual needs;
8. Plaintiffs and Class Members receive judgment for all damages, as allowed by and consistent with applicable law, in an amount to be proven at trial;
9. Enter a judgment declaring that Minnesota Statutes, section 245.825 and Minnesota Rules 9525.2700 - .2810 are void and unconstitutional under the United States Constitution and the Constitution of the State of Minnesota, and permanently enjoining their use or enforcement by anyone for any means;
10. Plaintiffs recover their reasonable attorney‟s fees, costs, disbursements, interest, and costs of investigation, as allowed by and consistent with applicable law; and

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11. Such other and further relief as this Court deems just and equitable. Respectfully submitted,

Dated: __July 30, 2009__

JOHNSON & CONDON, P.A.
/s/ Shamus P. O‟Meara _________________________________ Shamus P. O‟Meara (#221454) Mark R. Azman (#237061) M. Annie Mullin (#0389206) 7401 Metro Boulevard, Suite 600 Minneapolis, MN 55439-3034 (952) 831-6544
ATTORNEYS FOR PLAINTIFFS

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians and next friends of Bradley J. Jensen, et al.,
Plaintiffs, vs.

File No. 09-CV-01775-DWF-FLN
MOTION TO DISMISS VARIOUS CLAIMS AGAINST
STATE DEFENDANTS

Minnesota Department of Human Services, an agency of the State of Minnesota, et al.,

Defendants.

To: Plaintiffs James Jensen, et al., by and through their attorneys, Shamus P. O'Meara, Esq., Mark R. Azman, Esq., and M. Annie Mullin, Esq., Johnson & Condon PA, 7401 Metro Boulevard, Suite 600, Minneapolis, Minnesota 55439.

Defendants Minnesota Department of Human Services, an agency of the State of

Minnesota; Director, Minnesota Extended Treatment Options, a program of the

Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas

Bratvold, individually, and as Director of the Minnesota Extended Treatment Options, a

program of the Minnesota Department of Human Services, an agency of the State of

Minnesota; and State of Minnesota (“State Defendants”) move the Court to dismiss

various claims against State Defendants.

This motion is made pursuant to Fed. R. Civ. P. 12 (b)(1) and 12(c), and based on

all the files, records and proceedings herein, including Defendants’ Memorandum of Law

in Support of Rule 12 Motion to Dismiss Various Claims Against State Defendants.

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Dated: July 19, 2010.

LORI SWANSON Attorney General State of Minnesota
s/ Steven H. Alpert Steven H. Alpert Assistant Attorney General Atty. Reg. No. 0001351
445 Minnesota Street, Suite 900 St. Paul, Minnesota 55101-2127 (651) 757-1405 (Voice) (651) 296-1410 (TTY) (Fax): (651) 297-4139 steve.alpert@state.mn.us
P. Kenneth Kohnstamm Assistant Attorney General Atty. Reg. No. 005740X kenneth.kohnstamm@state.mn.us
445 Minnesota Street, Suite 1100 St. Paul, MN 55101-2128 Telephone: (651) 757-1266 Fax: (651) 282-5832
Attorneys for Defendants Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually, and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and State of Minnesota

AG: #2668019-v1 2

 
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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians and next friends of Bradley J. Jensen, et al.,
Plaintiffs, vs.
Minnesota Department of Human Services, an agency of the State of Minnesota, et al.,
Defendants.

File No. 09-CV-01775-DWF-FLN
MEMORANDUM OF LAW IN SUPPORT OF RULE 12 MOTION TO DISMISS VARIOUS CLAIMS AGAINST STATE DEFENDANTS

INTRODUCTION In July, 2009, Plaintiffs filed an Amended Complaint spanning fifty pages and
setting out Twenty Three (Counts I-XXIII) separate counts alleging various theories for
recovery of damages and injunctive relief under federal and state law against State
Defendants in their official and individual capacities.1 The Amended Complaint also
notices the intent of Plaintiffs to seek class action status, presumably on all claims.
State Defendants filed an Answer to the Amended Complaint on July 1, 2010 and,
pursuant to Order of Magistrate Judge Noel, discovery is proceeding on issues relative to
class certification.
1 “State Defendants” refers to Minnesota Department of Human Services, an agency of the State of Minnesota; Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually, and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and State of Minnesota.

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At this stage of the proceedings, however, and as set forth in greater detail below, State Defendants respectfully request that the Court dismiss various claims brought by Plaintiffs for relief as barred as a matter of law by the Eleventh Amendment or otherwise under federal or state law.
ARGUMENT I. STANDARD OF REVIEW.
A party may challenge a Court's subject matter jurisdiction at any time, under Rule 12(b)(1), Federal Rules of Civil Procedure, since such a defense may not be waived. See Moubry v. Independent School District No. 696, 951 F. Supp. 867, 882 (D. Minn. 1996), citing Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 95 (1981); Bueford v. Resolution Trust Corp., 991 F.2d 481, 485 (8th Cir. 1993)(“Lack of subject matter jurisdiction * * * cannot be waived[;][it] may be raised at any time by a party to an action, or by the court sua sponte.”).
“In order to properly dismiss an action under Rule 12(b)(1), the challenging party must successfully attack the Complaint, either upon its face or upon the factual truthfulness of its averments.” Moubry v. Independent School Dist. No. 696, supra at 883, citing Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990).
In addition, Rule 12(c), Federal Rules of Civil Procedure, allows parties to move for a Judgment on the Pleadings, “[a]fter the pleadings are closed, but within such time as not to delay the trial.” The standard upon which Rule 12(c) Motions are decided is akin to that of a Motion to Dismiss under Rule 12(b)(6), Federal Rules of Civil Procedure.
2

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See Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990) (“[W]e review this 12(c) motion under the standard that governs 12(b)(6) motions.”), citing St. Paul Ramsey County Med. Ctr. v. Pennington County, 857 F.2d 1185, 1187 (8th Cir. 1988); see also Flora v. Firepond, Inc., 260 F.Supp.2d 780, 784 (D. Minn. 2003), aff ‘d, 383 F.3d 745 (8th Cir. 2004). As a result, a “[j]udgment on the pleadings is appropriate where no material issue of fact remains to be resolved and the movant is entitled to judgment as a matter of law.” Faibisch v. University of Minnesota, 304 F.3d 797, 803 (8th Cir. 2004), citing United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir. 2000). A disputed fact is “material,” if it must inevitably be resolved, and that resolution will determine the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Jenkins v. Southern Farm Bureau Casualty, 307 F.3d 741, 744 (8th Cir. 2002) (“A fact is material if its determination in favor of the non-moving party could affect the result in the case.”); Herring v. Canada Life Assurance, 207 F.3d 1026, 1028 (8th Cir. 2000).
When making such determinations, the Court will accept as true, “all facts pleaded by the non-moving party and grant all reasonable inferences from the pleadings in favor of the non-moving party.” Syverson v. Firepond, Inc., 383 F.3d 745, 749 (8th Cir. 2004), quoting United States v. Any & All Radio Station Transmission Equip., supra at 462. However, the Court need not accept as true, wholly conclusory allegations, or unwarranted factual inferences. See Hanten v. School Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999); Springdale Educ. Ass'n v. Springdale School Dist., supra at 651. Moreover, in treating the factual allegations of a Complaint as true, the
3

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Court “do[es] not, however, blindly accept the legal conclusions drawn by the pleader from the facts.” Westcott v. City of Omaha, supra at 1488, citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). II. PLAINTIFFS’ CLAIMS FOR DAMAGES AND RETROACTIVE EQUITABLE RELIEF
AGAINST THE STATE, STATE AGENCIES, AND DOUG BRATVOLD IN HIS OFFICIAL CAPACITY UNDER THE FOURTEENTH AMENDMENT AND 42 U.S.C. § 1983 ARE BARRED BY THE ELEVENTH AMENDMENT. Plaintiffs seek damages from the State Defendants in Count I, alleging violations of the Fourteenth Amendment as enforced through 42 U.S.C. § 1983 (“Section 1983”). Absent consent or Congressional enactment to the contrary, the Eleventh Amendment bars actions for damages against a state in federal court, as well as suits for retroactive equitable relief. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989); Green v. Mansour, 474 U.S. 64, 68 (1985). When an action is barred by the Eleventh Amendment, a federal court must dismiss it. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 64-65, 73 (1996); Fed. R. Civ. P. 12(h)(3). The State of Minnesota has not waived its immunity in this case. See Minn. Stat. § 1.05 (2008). Therefore, to the extent that Plaintiffs seek monetary damages from State Defendants in their official capacities, their claims are barred by the Eleventh Amendment and should be dismissed. 42 U.S.C. § 1983 provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
4

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42 U.S.C. § 1983 (emphasis added). It is well settled that neither the State, a state agency, nor public officials acting in their official capacities are “persons” for purposes of Section 1983. See Will, 491 U.S. at 71 (affirming dismissal of state court Section 1983 action against state agency); see also Hafer v. Melo, 502 U.S. 21, 27-28 (1991). Suing a state officer in his or her “official capacity” is merely another form of suing the State. See Kentucky, 473 U.S. at 159. Accordingly, Plaintiffs’ Section 1983 claims for monetary damages against State Defendants, including Defendant Doug Bratvold in his official capacity, also must be dismissed. III. PLAINTIFFS’ CLAIMS FOR DAMAGES AGAINST DEFENDANT BRATVOLD UNDER
TITLE II OF THE ADA AND SECTION 504 OF THE REHAB ACT SHOULD BE DISMISSED. In Counts VI and VII, Plaintiffs seek damages against Defendant Bratvold in his individual capacity based upon alleged violations of Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”). These claims fail as a matter of law. A. Claims For Damages Under Title II Of The ADA Are Not Available
Against Individuals. In Count VI, Plaintiffs assert their Title II claim against Doug Bratvold, in his individual and official capacities. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
5

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“Individuals in their personal capacities, however, are not subject to suit under Title II, which provides redress only from public entities.” See Baribeau v. City of Minneapolis, 596 F.3d 465 at 484 (8th Cir. 2010) (citing to Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir. 1999).
Therefore, dismissal is proper on Plaintiffs’ claim in Count VI based upon Title II of the ADA against the Doug Bratvold in his individual capacity.
B. Claims For Damages Under Section 504 Are Not Available Against Defendant Bratvold In His Individual Capacity.
In Count VII, Plaintiffs assert their Section 504 claims against Doug Bratvold, in his individual and official capacities. As with the ADA, Section 504 does not authorize claims against Defendant Bratvold in his individual capacity. See Alsbrook v. City of Maumelle, 184 F.3d 999, 1011 (8th Cir. 1999), cert. dismissed, 529 U.S. 1001 (2000); R.P. ex rel. K.P. v. Springdale Sch. Dist., No. 06-5014, 2007 WL 552117 at *5 (W. D. Ark. Feb. 21, 2007). Nor may Plaintiffs maintain a Title II claim under the enforcement authority of Section 1983 as allowing a plaintiff to bring a section 1983 claim based on violations of Title II against a defendant who could not be sued directly under Title II, as this would improperly enlarge the relief available for violations of Title II. See Alsbrook, 184 F.3d at 1011-12.
Accordingly, the Court should dismiss all Section 504 claims in Count VII against Defendant Bratvold in his individual capacity.
6

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IV. PLAINTIFFS’ STATE LAW CLAIMS AGAINST STATE DEFENDANTS, INCLUDING DEFENDANT BRATVOLD IN HIS OFFICIAL CAPACITY, ARE BARRED BY THE ELEVENTH AMENDMENT OR BY STATE LAW. Plaintiffs seek money damages for alleged violations of the Minnesota
Constitution as well as numerous Minnesota Statutes, Rules, and Minnesota common law. See generally, Counts III, IV, VIII, and X through XXII. In Count V, Plaintiffs further seek declaratory relief regarding Minn. Stat. § 245.825 and Minn. R. 9525.2700-.2810.
A. Various State Law Claims For Damages Are Barred By The Eleventh Amendment Against All State Defendants, including Defendant Bratvold in his official capacity.
All state law based claims against the State Defendants, including Defendant Bratvold in his official capacity, are barred by the Eleventh Amendment. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100-01, 104 (1984) (“It is clear, of course, that in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment.”)
This Court recently addressed a similar issue in Minnesota Pharmacists Association, et al., v. Pawlenty, 690 F. Supp 2d. 809, 815-16 (D. Minn. 2010), and dismissed several claims premised under state law based on the protections afforded by the Eleventh Amendment and Pennhurst. There, this Court found the immunity afforded a state in federal court extends to agencies of the state. “That Plaintiffs here seek only declaratory and injunctive relief does not evade this immunity. Id. (“This jurisdictional bar applies regardless of the nature of the relief sought.”) Id. at 815.
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Finally, this Court held that “while the Supreme Court has long recognized an exception to Eleventh Amendment immunity permitting suits in federal court against state officials alleged to have violated federal law, at least where the relief sought is only injunctive, Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L.Ed. 714 (1908), that exception does not extend to allow such suits based on pendent state-law claims even if the relief sought is limited to prospective injunctive relief. Minnesota Pharmacists at 815.
Counts III, IV, V, VIII, and X through XXII should be dismissed against State Defendants, including Defendant Bratvold in his official capacity.
B. Various State Law Claims For Damages Are Unsupported By State Law Against All State Defendants, including Defendant Bratvold in his official and/or individual capacity.
Even if the Court were to find that some state law claims survive under Pennhurst, many of the claims set out in the Amended Complaint fail as a matter of Minnesota law, including many claims against Defendant Bratvold in both his official and individual capacities.
1. Minnesota Constitution does not provide a cause of action for damages.
Plaintiffs allege in Count III that Defendants’ acts and omissions deprived Plaintiffs of rights, privileges, or immunities secured or protected by the Article I, Section 7 of the Constitution of the State of Minnesota, and allege in Count IV a violation of Article I, Section 5 of the Minnesota Constitution, “causing Plaintiffs and Class Members damages in an amount to be proven at trial.”
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However, Minnesota does not have a statute similar to 42 U.S.C. § 1983 that enables a person to sue for money damages for alleged allegations under the Minnesota Constitution. See Riehm v. Engelking, 2007 WL 37799 (D. Minn. 2007) citing to Guite v. Wright, 976 F. Supp. 866, 871 (D. Minn. 1997) (holding that unlike 42 U.S.C. § 1983, Minnesota has no statutory scheme providing for private actions based on violations of the Minnesota constitution). See also Mitchell v. Steffen, 487 N.W.2d 896, 905 (Minn. Ct. App. 1992) (relief in form of money damages under the state constitution “unquestionably [would] be barred by the doctrine of sovereign immunity”), aff’d, 504 N.W.2d 198 (Minn. 1993), cert. denied, Steffen v. Mitchell, 510 U.S. 1081 (1994).
Because Plaintiffs’ damages claims under the Minnesota Constitution would fail as a matter of law, it is therefore appropriate to dismiss these damages claims in Counts III and IV against all State Defendants, including Defendant Bratvold in both his official and individual capacities.
2. Fraud claims must be dismissed. Plaintiffs allege Fraud, Misrepresentations and Reckless Misrepresentation in Count XX, Negligent Misrepresentation in Count XXI, and violations of Consumer Fraud and Deceptive Trade Practices in Count XXII. In Bernstein v. Extendicare Health Services, 607 F. Supp. 2d. 1027, 1032 (D. Minn. 2009) this Court dismissed fraud claims based on statements that a nursing home will comply with or exceed “applicable laws,” or that it has established “rigorous standards,” or similar statements that services provided will be “high quality.” This Court found such statements to be puffery, adding:
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Further, the statement in the admissions agreement that services will be provided ‘as required by law’ is a redundancy. Nursing homes are required by law to provide certain services under a comprehensive regulatory scheme. The admission agreement’s recitation of that fact does not create a promise independent of the legal obligations already imposed by State and Federal laws and regulations. Id. This Court further noted that while it is possible that the Defendants are violating state laws and regulations and are not providing adequate care to residents, “a consumer protection action simply is not the path to resolution of those issues and [the Complaint fails to] state a cause of action. Id. The claims in Counts XX and XXI are properly dismissed against all State Defendants, including Defendant Bratvold in both his official and individual capacities, at this stage of the proceedings. Further, there is no viable cause of action against the State under the Minnesota Consumer Fraud Act (“MCFA”) (Count XXII). The MCFA prohibits “any person” from engaging in fraudulent conduct. See Minn. Stat. § 325F.69, subd. 1. The term “person” is defined as “any natural person or a legal representative, partnership, corporation (domestic and foreign), company, trust, business entity, or association, and any agent, employee, salesperson, partner, officer, director, member, stockholder, associate, trustee, or cestui que trust thereof.” Minn. Stat. § 325F.68, subd. 3 (2008). In First National Bank of the North, et al., v. Miller Schroeder Financial, Inc., 709 NW 2d. 295, 299 (2006) rev. denied (Minn. April 26, 2006), the Minnesota Court of Appeals held that this definition does not encompass the state as an entity. There, the Court held, “Our analysis of the plain language of the statute establishes that the
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Minnesota Consumer Fraud Act does not apply to the state as an entity.” The fraud claims based upon alleged violations of the Minnesota Consumer Fraud Act should also be dismissed against the State Defendants, including Defendant Bratvold in his official capacity.
Plaintiffs also seek damages for alleged deceptive trade practices in Count XXII. However, in Minnesota, the “sole statutory remedy for deceptive trade practices is injunctive relief.” Buetow v. A.L.S. Enterprises, Inc., 2010 WL 1957489 (D. Minn. 2010) (citing to Simmons v. Modern Aero, Inc., 603 N.W.2d 336, 339 (Minn. Ct. App. 1999). Moreover, “[b]ecause the MDTPA provides injunctive relief for a person likely to be damaged, it provides relief from future damage, not past damage.” Gardner v. First Am. Title Ins. Co., 296 F.Supp.2d 1011, 1020 (D. Minn. 2003) (quoting Lofquist v. Whitaker Buick-Jeep-Eagle, Inc., No. C5-01-767, 2001 WL 1530907 at *2 (Minn. Ct. App. Dec. 4, 2001).
All claims in Count XXII based upon alleged violations alleged violations regarding deceptive trade practices should be dismissed against all State Defendants, including Defendant Bratvold in both his official and individual capacities.
3. Claims under Minn. Stat. §§ 253B.03, 144.651, 626.557, 626.5572, 245.825, and Minn. R. parts 9525.2700 to 9525.2810, must be dismissed.
In Count X Plaintiffs seek money damages for alleged violations of Minn. Stat. § 245.825 and Minn. R. 9525.2700-.2810; in Count XI, Plaintiffs seek money damages for alleged violations of Minn. Stat. § 144.651 (Patients’ Bill of Rights); and in Count XII, Plaintiffs seek money damages for alleged violations of Minn.
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Stat. §§ 253B.03, subd. 1 and 245.825; in Count XIII, Plaintiffs seek money damages for alleged violations of Minn. Stat. §§ 626.557 and .5572. All these claims are properly dismissed against State Defendants, including Defendant Bratvold in both his official and individual capacities.
a. Minn. Stat. § 253B.03. In Count XII, Plaintiffs seek damages in part based on an alleged violation of Minn. Stat. § 253B.03. But the Minnesota Court of Appeals has previously concluded that Minn. Stat. § 253B.03, part of the Minnesota Commitment and Treatment Act (“commitment act”), does not provide a private cause of action. In Minnesota, whether a statute creates a cause of action is a question of statutory interpretation. Becker v. Mayo Foundation, 737 N.W.2d 200, 207 (Minn. 2007). Further, courts should avoid imputing a cause of action where a statute has explicitly provided an alternative remedy. Id. A statute gives rise to a cause of action only if “the language of the statute is explicit or it can be determined by clear implication.” Id. We consider three factors in determining whether a cause of action can be implied: 1) whether the appellants are among the “special class of persons for whose benefit the statute was enacted,” 2) whether the legislature indicated its intent regarding a private remedy, and 3) whether inferring a private remedy would be consistent with the statute's purpose. Alliance for Metropolitan Stability v. Metropolitan Council, 671 N.W.2d 905, 916 (Minn. App. 2003); see also Flour Exch. Bldg. Corp., 524 N.W.2d 496, 499 (Minn. Ct. App. 1994), rev. denied (Minn. Feb. 14, 1995) (setting out three factor test for determining intent to create
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a private cause of action). In Kunshier v. Minnesota Sex Offender Program, No. A09-0133,
2009 WL 3364217 at *6-7 (Minn. Ct. App. Oct. 20, 2009) rev. denied (Minn. Dec. 15, 2009), the Court of Appeals applied the Alliance three-factor analysis. Because there is no statutory language indicating that the legislature intended to create a private cause of action for alleged violations of the act, the Court found that there was no viable private cause of action under Section 253B. See id. at *6; see also Semler v. Ludeman, Nos. A08-1477, A08-1537, 2009 WL 2497697 at *3 (Minn. Ct. App. Aug. 18, 2009) rev. denied (Minn. Oct. 28, 2009) (same); Woodruff v. Ludeman, No. A06-1659, 2007 WL 4390446 at *1-2 (Minn. App. Dec. 18, 2007) (same).
Claims in Count XII based on alleged violations of section 253B are improper and should be dismissed against all State Defendants, including Defendant Bratvold in both his official and individual capacities..
b. Minn. Stat § 144.651. Plaintiffs rely on Minn. Stat. § 144.651 for its claims in Count XI. Just as with Section 253B, however, the Minnesota Patients Bill of Rights does not provide a private cause of action. In Semler v. Finch, No. A06-1178, 2007 WL 1976751 (Minn. Ct. App. July 10, 2007) rev. denied (Minn. Sept. 18, 2007), the Minnesota Court of Appeals applied the three-prong test in Flour Exchange and rejected a claim under the patient bill of rights: We find that the Minnesota Patients Bill of Rights does not provide a private cause of action.
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*** By giving the commissioner of health exclusive authority to enforce the patients bill of rights and expressly stating that issuance of a correction order will not enlarge or alter a private action, the legislature demonstrated that it did not intend to create a new private cause of action. Id. at *2 (internal citations omitted). In Semler v. Ludeman, 2009 WL 2497697 at *3, the Court of Appeals relied on the decision in Becker v. Mayo Foundation, 737 N.W.2d 200 at 207, where the Minnesota Supreme Court held that whether a statute creates a cause of action is a question of statutory interpretation. “A statute gives rise to a cause of action only if ‘the language of the statute is explicit or it can be determined by clear implication,’ and that ‘courts should avoid imputing a cause of action where a statute has explicitly provided an alternative remedy.’” Id. Because the patients’ bill of rights vests exclusive authority with the commissioner of health to address violations of the enumerated rights, the legislature has provided a remedy for rights and for that reason did not establish a cause of action under the statute. Semler v. Ludeman, 2009 WL 2497697 at *3; see also Semler v. Ludeman, 2010 WL 145275 at *29 (D. Minn. Jan. 8, 2010) (recognizing that Minnesota Patient Bill of Rights does not provide for a private cause of action); Kunshier v. Minnesota Sex Offender Program, 2009 WL 3364217 at *7 (holding that because the statute has grievance procedures to enforce its provisions and authorizes the commissioner of the department of health to remedy any substantial violations of the statute by issuing correction orders, the legislature did not intend for patients to have a private cause of action under this act).
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Claims in Count XI based on alleged violations of section 144.651 are improper and should be dismissed against all State Defendants, including Defendant Bratvold in both his official and individual capacities..
c. Minn. Stat. §§ 626.557 and 626.5572. In Count XIII, Plaintiffs allege negligence for violations of Minn. Stat. §§ 626.557 and 626.5572. Again, however, the Minnesota Supreme Court in Becker v. Mayo Foundation, 737 N.W.2d 200 at 208-9, concluded that the plain language of the statute indicated that the legislature chose to impose criminal, but not civil, penalties on mandatory reporters who fail to report; that the statute does not create civil liability. Count XIII is properly dismisses as against all State Defendants, including Defendant Bratvold in both his official and individual capacities.
d. Minn. Stat. § 245.825 and Minn. R. 9525.2810. In Count X, Plaintiffs seek damages for alleged violations of Minn. Stat. § 245.825 and Minn. R. 9525.2810. These claims also necessarily fail as a matter of law. Minn. Stat. § 245.825 provides that DHS shall promulgate rules governing the use of aversive and deprivation procedures in all licensed facilities and licensed services serving persons with developmental disabilities. See Minnesota Rules parts 9525.2700 to 9525.2810 (use of aversive and deprivation procedures in licensed facilities serving persons with developmental disabilities)(“Rule 40”). Nothing in 245.825 provides for a cause of action for money damages to address alleged violations. Minn. Rule 9525.2780, subp. 7, provides, in part:
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A person or the person's legal representative may initiate an appeal under Minnesota Statutes, section 256.045, subdivision 4a, for issues involving the use of a controlled procedure and related compliance with parts 9525.0015 to 9525.0165 and 9525.2700 to 9525.2810. The Amended Complaint fails to allege that any appeals were filed, but even if an appeal had gone forward, the rule does not provide a private cause of action for damages or otherwise. Moreover, Minn. Rule 9525.2810 further sets out the penalty for noncompliance, but does not provide for money damages.2 Utilizing the analysis of the courts in Becker, Kunshier, Semler, and Woodruff, no private cause of action is authorized under these statutes or rules. As such, the claims in Count X should be dismissed at this time. Because there is no private cause of action under Minn. Stat. §§ 253B.03, 144.651, 245.825, and Minn. R. 9525.2700-.2810, Counts X, XI, XII, and Count XIII are properly dismissed at this stage of the proceedings against State Defendants, including Defendant Bratvold in both his official and individual capacities. V. CLAIMS BASED UPON ALLEGED VIOLATIONS OF 42 C.F.R. 482.13 MUST BE DISMISSED. In Count IX, Plaintiffs allege violations of 42 C.F.R. 482.13 at METO because “METO participated in the Medicaid program thereby subjecting METO to the federal patients’ bill of rights, codified at 42 C.F.R. 482.13. However, 42 C.F.R. 482.13, by its very language is limited to hospitals and METO is not, nor has it ever been, a hospital.
2 Rule 9525.2810 provides, “If a license holder governed by parts 9525.2700 to 9525.2810 does not comply with parts 9525.2700 to 9525.2810, the commissioner has the authority to take enforcement action pursuant to Minnesota Statutes, chapter 245A and section 252.28, subdivision 2.”
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Because 42 C.F.R. 482.13 does not apply to METO, the claim in Count IX should be dismissed against all State Defendants.
Even if the federal patient bill of rights did apply to METO, several federal courts have also declined to extend a private cause of action under other Patients’ Bill of Rights’ statutes. See Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987, 994-95 (1st Cir. 1992); Smith v. Au Sable Valley Cmty. Mental Health Servs., 431 F. Supp. 2d 743, 750-51 (E.D. Mich. 2006). Plaintiffs have set forth no basis upon which to suggest that Congress intended to create a private cause of action for damages under 42 C.F.R. 482.13.
As there is no private cause of action under 42 C.F.R. 482.13, Count IX should be dismissed against State Defendants, including Defendant Bratvold in both his official and individual capacities, on this basis as well. VI. PLAINTIFFS’ CLAIMS UNDER THE EIGHTH AMENDMENT MUST BE DISMISSED.
In Count II, Plaintiffs allege that Defendants are obligated to operate and implement METO and safeguard patients in the METO program in a manner that does not infringe upon their federal rights, including the right to be free from cruel and unusual punishment guaranteed pursuant to the Eighth Amendment, as enforced pursuant to 42 U.S.C. § 1983.
The Eighth Amendment applies only to individuals who are in custody as punishment for a criminal conviction. The Eighth Amendment’s proscription against “cruel and unusual punishments” does not apply to civilly committed detainees, because they are not being punished for criminal offenses. See Rousseau v. Service,
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2008 WL 920470 (D. Minn. 2008) citing to Revels v. Vincenz, 382 F.3d 870, 874 (8th Cir. 2004) (“because an involuntarily committed psychiatric patient is confined for treatment rather than incarcerated for the purpose of punishment following conviction, the Eighth Amendment does not apply”).
Because Plaintiffs were civilly committed, and not confined for a criminal conviction, claims asserted under the Eighth Amendment do not apply and Count II should be dismissed against all State Defendants, including Defendant Bratvold in both his official and individual capacities.3
CONCLUSION Based upon the forgoing, and for the reasons set forth above, these various claims as set forth in Amended Complaint should be dismissed at this stage of the proceedings as against all State Defendants including Defendant Bratvold in his official and/or individual capacities.
3 State Defendants acknowledge that the due process clause of the Fourteenth Amendment provides pre-trial detainees essentially the same protections as those provided to convicted prisoners under the Eighth Amendment. See Butler v. Fletcher, 465 F.3d 340, 344 (8th Cir. 2006), cert. denied, 127 S. Ct. 2128 (2007). Federal courts have also found that the legal status of a civilly committed person is much like that of a pre-trial detainee, and that a civilly committed detainee’s due process rights must therefore be comparable to those of a pre-trial detainee. See Youngberg v. Romeo, 457 U.S. 307, 320 (1982) (recognizing similarity between due process rights of civilly committed detainees and those of pre-trial detainees). Therefore, the constitutional guaranty of due process protects civilly committed detainees from conditions that would be considered “cruel and unusual punishment” for convicted criminals.
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Dated: July 19, 2010.
AG: #2666917-v1

Respectfully submitted,
LORI SWANSON Attorney General State of Minnesota
s/ Steven H. Alpert Steven H. Alpert Assistant Attorney General Atty. Reg. No. 0001351
445 Minnesota Street, Suite 900 St. Paul, Minnesota 55101-2127 (651) 757-1405 (Voice) (651) 296-1410 (TTY) (Fax): (651) 297-4139 steve.alpert@state.mn.us
P. Kenneth Kohnstamm Assistant Attorney General Atty. Reg. No. 005740X kenneth.kohnstamm@state.mn.us
445 Minnesota Street, Suite 1100 St. Paul, MN 55101-2128 Telephone: (651) 757-1266 Fax: (651) 282-5832
Attorneys for Defendants Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually, and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and State of Minnesota
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 CASE 0:09-cv-01775-DWF-FLN Document 47 Filed 07/19/10 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians and next friends of Bradley J. Jensen, et. al,
Plaintiffs,

Court File No.: 09-CV-1775 DWF/FLN
MOTION FOR PRELIMINARY INJUNCTION

vs.

Minnesota Department of Human Services, an agency of the State of Minnesota, et. al,

Defendants.

TO: DEFENDANTS ABOVE NAMED AND THEIR COUNSEL OF RECORD:

MOTION

Plaintiffs James and Lorie Jensen, as parents, guardians and next friends of

Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians and next friends

of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian and next friend of Jason R.

Jacobs; and others similarly situated through their respective undersigned counsel, move

this Court pursuant the Federal Rules of Civil Procedure, this Court’s Local Rules, and

applicable law as follows:

1. For issuance of a Preliminary Injunction enjoining the use of seclusion and restraints of any kind under any circumstances at the Minnesota Extended Treatment Options program and any successor program; and

2. For such other and further relief as this Court deems just and equitable.

This Motion is based upon the Memorandum of Law and supporting documents

and any arguments of counsel as permitted by the Court.

CASE 0:09-cv-01775-DWF-FLN Document 47 Filed 07/19/10 Page 2 of 2

July 19, 2010 Dated: ______________________
842132.doc

Respectfully submitted,
JOHNSON & CONDON, P.A.
s/ Shamus P. O’Meara _________________________________ Shamus P. O’Meara (#221454) Mark R. Azman (#237061) M. Annie Mullin (# 0389206) 7401 Metro Boulevard, Suite 600 Minneapolis, MN 55439-3034 (952) 831-6544
ATTORNEYS FOR PLAINTIFFS

2

 
 CASE 0:09-cv-01775-DWF-FLN Document 49 Filed 07/19/10 Page 1 of 30

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians and next friends of Bradley J. Jensen, et. al,
Plaintiffs,

Court File No.: 09-CV-1775 DWF/FLN
PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR

vs.
Minnesota Department of Human Services, an agency of the State of Minnesota, et. al,

PRELIMINARY INJUNCTION

Defendants.

Plaintiffs are compelled to bring this action against Defendants‟ routine and

widespread imposition of severe and cruel methods of seclusion and restraint upon people

with developmental disabilities, including Plaintiffs and others similarly situated, at

Minnesota Extended Treatment Options (“METO”), a program of the Minnesota

Department of Human Services (“DHS”), operated in blatant disregard of their civil and

constitutional rights. As part of their “treatment and care,” Plaintiffs Bradley J. Jensen

(“Bradley”), Thomas M. Allbrink (“Thomas”), Jason R. Jacobs (“Jason”) and a class of

METO residents have suffered irreparable harm from the abusive, inhumane and cruel

use of seclusion and restraint while involuntary patients of the METO program.

Specifically, Defendants forced Plaintiffs and other METO residents into law

enforcement-type metal handcuffs and leg hobbles as a means of behavior modification,

coercion, discipline, convenience and retaliation for conduct as benign as touching a

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pizza box, spitting, laughing and hand-washing. See, e.g., Answer ¶ 39 [Doc. 24] (admitting to the use of restraints).
Bradley, Thomas and Jason are only three of approximately 300 METO residents subjected to these cruel and inhuman seclusion and restraints in addition to those who will be secluded and restrained during the pendency of this litigation. See O‟Meara Aff. Ex. 16 (stating case involves review of 300 non-parties – i.e., METO residents). On behalf of Bradley, Thomas, Jason, and all other individuals who were subjected to the use of seclusion and restraints while at METO, Plaintiffs initiated this class action lawsuit under, inter alia, 42 U.S.C. § 1983, challenging the Defendants use of seclusion and restraints in violation of their civil and constitutional rights.
Because Defendants have refused to stop the use of seclusion and restraints, Plaintiffs request this Court promptly issue a preliminary injunction immediately enjoining any further use of seclusion and restraints on residents of the METO program, or any successor program, (collectively “METO”), including mechanical restraints, manual restraints, prone restraint, seclusion, individual isolation, electroconvulsive therapy, and chemical restraints.1
FACTS A. State of Minnesota Ombudsman issues “Just Plain Wrong” (September 2008)
In April of 2007, the State Ombudsman for Mental Health and Developmental Disabilities (the “Ombudsman”) received a complaint about the use of restraints at
1 Plaintiffs are also moving for class certification, and have submitted a separate memorandum of law in support of such motion.
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METO. Amend. Compl. Ex. 1-A [Doc. 3-1]. Over the course of the next year, the
Ombudsman conducted a comprehensive investigation of the use of restraints and
aversive methods at METO and found that Defendants were involved in a program wide
practice of restraining residents with metal handcuffs and leg hobbles for such benign
behaviors as touching a pizza box, talking about running away, or touching staff, a
walkie-talkie or other objects, causing residents to cry, yell and struggle. See id. Some
residents were restrained hundreds of times. See id; see also O‟Meara Aff. Ex. 1. Others
were placed in a face down, prone position while restrained with metal handcuffs and leg
irons, even when they were cooperative and calm. Amend. Compl Ex. 1-A [Doc.3-1].
Some residents would just “assume the position” due to the frequency of restraints used
on them. Id.
On September 18, 2008, the Ombudsman‟s Office published a report entitled “Just
Plain Wrong” detailing its investigation, findings, conclusions and recommendations. Id.
The Ombudsman found, inter alia, the following:
Documents in individual records revealed that people were being routinely restrained in a prone face down position and placed in metal handcuffs and leg hobbles. In at least one case, a client that the metal handcuffs and leg hobbles were secured then together behind the person, further immobilizing the arms and legs, reported it to the Ombudsman staff. Some individuals were restrained with a waist belt restraint that cuffed their hands to their waist. An individual with an unsteady gait was routinely placed in this type of restraint, putting that person at risk of injury if they should fall, as they would not be able to use their arms or hands to break that fall. Others were being restrained on a restraint board with straps across their limbs and trunk. METO policies stated that a person was not to be restrained for more than 50 minutes. Ombudsman staff found numerous examples of documented incidents where after 50 minutes in a restraint, staff would continue the restraint but document it on a different restraint use form,
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sometimes with no indication that it was a continuation of the previous restraint.
Documentation revealed that in most cases where restraints were used, the person was calm and cooperative about going into the restraint but began to struggle, cry and yell once they were in the restraints. In some cases, clients appeared to be conditioned to “assume the position” for the application of restraints where they would lie on the floor and put their hands behind their back without resistance. One client who was regularly restrained with metal handcuffs and leg irons stated that once the restraints were on he/she began to experience discomfort which led to crying, yelling and struggling against the restraints. The METO policy stated that a person had to be calm for 15 minutes before they could be released from restraints.
Amend. Compl. Ex. 1 at p. 17-18 [Doc. #3-1].
The Ombudsman further reported, in part:
A. METO was a program that was established with a good foundation and lofty goals but had slid into a pattern of practice that used restraints as a routine treatment modality;
B. Generally accepted best practice standards indicated that restraints should only be used in a situation where there is imminent risk to the patients or others and only for as long as the risk is present;
C. Current best practice standards focused on positive behavioral supports, which included assessing the purpose of the behaviors and finding positive alternatives for the individual to employ;
D. Sixty three percent (63%) of METO patients at the time of the review, had been restrained and the majority of those had been restrained multiple times; one patient had been restrain 299 times in 2006 and 230 times in 2007;
E. Reasons for restraining patients included touching a pizza box;
F. No alternatives were attempted to avoid the use of restraints;
G. The length of time some patients were in restraints exceeded METO‟s own guidelines; and
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H. The agencies who had protective obligations for METO patients or responsibility to serve as a checks and balances over the actions of the program, failed to protect the patients or turned a blind eye to the problem.
Amend. Compl. Ex. 1 [Doc. #3-1]. The Ombudsman concluded, inter alia, that METO had a program-wide practice of routine use of restraints employed as a basic treatment modality, and the use of restraints was anticipated with every admission. Id. at p. 44 (emphasis added). Moreover, the Ombudsman concluded that inappropriate use of restraints constituted abuse under Minnesota‟s Vulnerable Adult Act, and that certain practices at METO violated the human and civil rights of some clients. Amend. Compl. Ex. 1 at p. 45 [Doc. #3-1]. B. The Minnesota Department of Human Services Concludes its METO
Program Violated State Law In addition to the Ombudsman‟s investigation, the Department of Human Services Licensing Division (“DHS”) conducted a self evaluation of METO, following complaints about the use of controlled procedures, in particular, the use of mechanical and manual restraints.2 On April 4, 2008, DHS issued an Investigation Memorandum, concluding, in part, that the emergency use of restraints were not implemented, reviewed, or reported as required by Rule 40, and that staff implemented the use of controlled procedures on an emergency basis without the residents‟ behavior meeting the criteria for such use (i.e., immediate intervention is needed to protect the person or others from physical injury or
2 The use of aversive and deprivation procedures on METO residents is monitored by the DHS Licensing Division for compliance with the standards promulgated in Minnesota Rules, parts 9525.2700 through 9535.2810, commonly referred to as “Rule 40.” Amend. Compl. Ex. 1-B at p. 61 [Doc. 3-2].
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to prevent severe property damage that is an immediate threat to the physical safety of the person or others). Amend. Compl. Ex. 4 at p. 18 [Doc. 3-8]. In response to its investigation, DHS issued a Corrective Order to METO, citing numerous violations of state laws governing the use of aversives and deprivations procedures at METO, including restraints. Amend. Compl. Ex. 5 [Doc. 3-9]. C. The State of Minnesota’s Department of Health, Office of Health Facility
Complaints Found Violations of State and Federal Law at METO The Minnesota Department of Health (“MDH”) Office of Health Facility Complaints (“OHFC”) also conducted an unannounced visit of METO in order to investigate alleged violations of federal law related to the use of restraints. Amend. Compl. Ex. 2 [Doc. 3-6]. As part of its investigation, the MDH reviewed eleven METO residents files and reported that METO utilized manual restraints, physical escort, and the following mechanical restraints: a RIPP restraint board (a client is put on their back and restrained on a board), RIPP straps (straps utilized for restraining a client‟s extremities), RIPP cuffs (wrist restraints), “arm bar takedowns” (a manual method utilized by two staff, who apply pressure to the client‟s elbows, with the goal of lowering the client to the ground in a prone position-lying on their stomach), Posey soft cuffs attached to residents wrists, which is then attached to a RIPP belt that is secured around the resident‟s waist, handcuffs, leg hobbles and other mechanical restraints. See generally Amend. Comp. Ex. 2 [Doc. 3-6] for additional mechanical restraints used on METO residents. Moreover, MDH reported that METO utilized chemical restraints on its residents. For example, after exhibiting aggressive behavior, Client #6, “was given 10 milligrams of
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Haldol, 2 milligrams of Ativan and 50 milligrams of Benadryl, intramuscularly (IM), at
10:25 a.m.” and “[a]t 11:30 a.m. the client was a sleep.” Amend. Compl. Ex. 2 at p. 18
[Doc. 3-6]. Additionally, while being restrained for a total of 170 minutes within a three
hour time frame, “Client #1 received Haldo, 5 milligrams, and Ativan, 1 milligram” and
yet another “Ativan, 1 milligram.” Id. at p. 3. Also, “Client #6 was given 10 milligrams
of Zyprexa IM” for “pacing, grabbing at staff, walking in office and peers rooms.” Id. at
8. These are just a few examples of the use of chemical restraints on METO residents.
The following are exemplary incidents of the use of restraints at METO, as
documented by the MDH.
On February 9, 2007, client #1 walked into the resident phone room and touched peer. Client #1 was mechanically restrained [] from 3:09 p.m. to 3:24 p.m. When client was completely released, he touched staff person. He was restrained mechanically, [] from 3:29 p.m. to 4:14 p.m., for a total of 50 minutes.
During the time the client was restrained it was noted that he was “screaming, crying and swearing” at staff. At 4:24 p.m. client #1 as restrained per his “Rule 40 on board” again “yelling, crying, screaming and swearing at staff.” He was restrained until 5:04 p.m., another 40 minutes. Client #1 was restrained one more time on February 9, 2007. At 5:10 p.m., client #1 was restrained “Rule 40 on board” for “yelling, screaming and swearing.” He was released at 5:23 p.m., after 18 minutes. Client #1 also received Benadryl, 25 milligrams, and Ativan, 2 milligrams IM at 5:00 p.m.
On July 10, 2007 at 4:13 p.m., client #2 was sitting at a table eating a snack when she “knocked” a glass of water “shoved” a box of crafts off the table. Client #2 was told to “stop” and “lie down” and was restrained for ten minutes. During the time she was restrained she, “did minor SIB” (self injurious behavior), slapping her sides for six minutes.
On June 23, 2007 at 5:43 p.m., client #3 was “swearing, refusing directions . . . invading peers/staffs space [with] wheelchair.” The client then “slapped” a staff‟s forearm with an open hand. He was then restrained with leg hobbles and wrist cuffs for 22 minutes.
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On May 24, 2007 at 8:43 p.m., client #4 was manually and mechanically restrained for 50 minutes. Prior to being restrained, the client “appeared agitated and had been touching staff for over an hour.”
Upon arrival to the facility on the day of admission, May 7, 2007, client #6 was attempting to bite and kick staff. An emergency mechanical restrain was implemented. The client “continued to struggle and attempt physical aggression.” The client was in restraints for 30 minutes. In addition to the mechanical restraint, client #6 was given 10 intramuscularly (IM), at 10:25 a.m. At 11:30 a.m., the client “was asleep.” Documentation indicated that the client was “scared” and he did not know staff. At 6:20 p.m., client #6 was in the bathroom washing his hands. A staff person cued him to dry his hand with a washcloth. The client stuffed the washcloth in his mouth. The staff pulled the washcloth out of the client‟s mouth. The client struck the staff person three times with an open hand. The staff implemented a “basic come along take down to prone position, handcuffs, and leg hobble.” The client was in restraints for 50 minutes. At 8:50 p.m., client #6 attempted to enter the staff office. Documentation indicates he “was struggling during escort.” The client kicked and punched staff. A double arm bar takedown was used and both emergency manual and mechanical restraint were implemented in response to physical aggression. The client was in restraints for 50 minutes.
Client #6 was put in leg hobbles and handcuffs for 50 minutes. During restraint, he yelled and was banging his head on the floor.
At 3:15 a.m. on May 10, 2007, client #6 was trying to swing at staff person‟s face with a closed fist. The staff person used an arm bar take down to restrain the client. Documentation indicated that at 3:20 a.m. the hobble was removed. The client was agitated and kicking, and the hobble was re-applied. At 3:35 a.m., client #6 was struggling, trying to get cuffs off causing abrasions on his wrists. The cuffs were removed and the client was put in a manual hold. The client was restrained until 4:00 a.m. when he was released due to labored breathing.
On June 2, 2007, indicated that client #6 was restrained at least seven times. At 2:40 pm., client #6 was given 100 milligrams of Seroquel. Client #6 had “four Rule 40 implementations today for physical aggression (no specific behaviors identified) and PICA” (eating inedible objects). A note written as follow-up by nurse indicated client #6‟s Rule 40 was re-implemented at 4:17 p.m. and the Seroquel was minimally effective. At 7:15 p.m., client #6 was given 2 milligrams of Ativan and 50 milligrams of Benadryl IM. The “precipitating behavior” indicated was “three more Rule 40‟s for agitation/aggression, each lasting nearly 50 minutes.”
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On August 11, 2007, at 8:11 a.m. the client “began to come at staff in an aggressive manner.” Staff redirected client to room. [Client #6] went in room but came out again within several seconds. [Client #6] then began to grab at staff with force. Staff implemented rule 40 (the facility‟s specially constituted committees‟ pre-approved restrictive behavior management practice), by first putting [client #6] in an arm bar. [Client #6] resisted the arm bar and continued to claw and grab at staff. [Client #6] went to his knees but continued to fight. Staff then implemented an arm bar for take down. As staff did this, [client #6] turned away from implementor to another staff, grabbing and clawing. At this moment implementor felt and heard upper arm pop.
Staff called 9-1-1 and notified R.N. A splint was applied and the client was transported to the hospital by emergency medical technicians. Client #6 had a left distal humerus fracture and was admitted to the hospital for pain control after his arm was set and splinted. He returned to the facility on August 13, 2007. He returned to the hospital on August 28, 2007 for surgical repair on his fractured arm and returned to the facility on August 29, 2007.
Client #7 has mild retardation. A review of the “Documentation for Emergency Use of Controlled Procedure” from indicated that on December 12, 2007 at 7:00 p.m., client #7 “had been upset since supper, ignoring staff requests.” Staff asked her to go to “home 3” so they could escort other clients. The client “refused shouting when staff stood beside her chair then kicked tried to hit.” The staff had tried to “negotiate” with the client for an hour, offered her quiet time in her room and time to talk. An arm bar takedown was implemented and the client was restrained manually for 20 minutes. The client‟s mood after the restraint was documented as “feeling depressed” and crying.
On December 21, 2007 at 9:10 p.m., client #7 was “arguing w/staff about recovery [programming], when told she had to restart she started screaming at staff [and] kicked the wall very hard.” The client was put in manual then mechanical restraints, leg hobbles, and wrist cuffs, for 28 minutes due to property destruction, “kicking the wall.” The client “screamed and cried” for 18 minutes before she was calm.
October 12, 2007, at 8:35 a.m. indicated that client #7 was asked to take her bath and medication. The client began yelling and screaming at staff. When staff entered the bedroom, client #7 attempted to hit staff. The client was put in a manual restraint in prone position. After two minutes, mechanical restraints were applied. The procedure ended at 8:55 a.m. Documentation indicated that after the restraint procedure, client #7 was
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“very emotional and crying, stating she can‟t go to work today.” The nurse assessment, at 9:05 a.m., indicated the client was anxious, and was rocking in the rocking chair.
On September 9, 2007 at 7:20 p.m., client #8, “ran to bathroom and threw his socks in the shower, then ran to his bedroom and slammed his door.” Staff cued the client to “walk and not throw objects or slam doors because that is property destruction.” As a result, the client ran out of his bedroom and into another “unoccupied” bedroom and slammed the door. The client was handcuffed and his legs were hobbled for a total of 10 minutes.
On August 5, 2007 at 8:12 a.m., client #9 “was watching T.V. and laughing inappropriate.” The client bit, slapped, and hit himself, “with strong force.” . . . The client was cued to calm down and to keep his boundaries. The staff “waited for extra staff before takedown.” The client was manually restrained and placed in wrist cuffs and leg hobbles for a total of 50 minutes. The client was noted to be crying and trying to relax, but, “he was being held” in a prone position and the client “attempted to grab staff [and] get up.” The leg hobbles and wrist cuffs were reapplied at 12:25 p.m. for an additional ten minutes.
On September 28, 2007 at 12:55 p.m. client #9 received Ativan because he was “agitated [and] aggressive.”
An incident report, dated September 13, 2007, at 9:00 a.m., indicated that after being restrained, client #9 went into his bedroom and banged his head against the wall. He sustained a two centimeter abrasion mid-forehead and a two centimeter abrasion on his right temple.
On March 6, 2007 at 7:59 p.m., client #10 “was given a snack.” He began spitting on kitchen table. Staff cued the client to stop spitting and to go to his room and calm down. While in his room he began vomiting on his floor and urinated. He was laughing for no reason.” He spit and vomited on staff and was restrained for 14 minutes in handcuffs and hobbles.
Client #11 was restrained 19 times between August 10, 2007 and November 2, 2007, on an emergency basis.
Amend. Compl. Ex. 2 [Doc. 3-6]
The MDH cited METO for violations of state and federal law related to the use of
restraints and aversives. Amend. Compl. Ex. 2 at p. 17 [Doc. 3-8]. It also reported that
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METO “failed to ensure that residents were free from unnecessary physical restraints and/or drugs,” and “that METO “failed to revise individual program plans as necessary related to behaviors; incorporate alternative interventions in place of restraints, into the client‟s individual program plan; and utilize restraints in a manner that will reduce the restraint or eliminate the behavior[;] [t]herefore, fifteen federal deficiencies were issued and one state licensing order was issued.” Id. D. Independent Experts Retained by METO Officials Recommend Reducing
Restraints, Staff Education and Alternative Methods for Behavior Modification In July of 2008, following the investigations of the State‟s DHS Licensing Division and the MDH, Defendants engaged a group of national experts in the treatment and support of persons with developmental disabilities to complete a review of the METO program, which lasted three days. See O‟Meara Aff. Ex. 2. The experts opined “METO should seek alternative approaches to mechanical restraints to assure safety during physical behavioral crisis.” Id. at p. 2. Additionally, the experts stated that “[t]he use of mechanical restraints is not regarded as best practice in the disability field” and that “[s]eeking alternative approaches to assure safety during physical behavioral crisis is advisable.” Id. at 5. The experts went on to outline recommendations for METO to consider in its effort to further reduce the use of restraints, especially mechanical restraints, including not teaching restraint to staff and enhancing alternative methods for diffusing dangerous behaviors. Id. at 6.
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E. METO Continues to Use Restraints and Existing Policies Permit the Use of Restraints METO continues to use restraints on it residents. Through class certification
discovery, the State Defendants have disclosed METO policies that continue to permit the use of restraints. O‟Meara Aff., Ex. 4 at Response 15 and Exs. 7-11 (Procedures 3503 Client Care / Emergency Use of Controlled Procedures (Manual and Mechanical Restraints) (Effective September 15, 2009); 3504 Client Care / Use of Controlled Procedures in Behavior Management (Effective April 23, 2010); 3505 General Administration / Therapeutic Intervention/Personal Safety Techniques (Effective April 23, 2010); and 3601 Client Services / Administration of Psychotropic Medication (Effective November 29, 2009)).
Procedure 3503 permits the use of manual, mechanical, and chemical restraints, prone holds, and “exclusionary and room timeout procedures” in emergency situations. O‟Meara Aff. Ex. 8 at p. 3 ¶¶ B(1)(c), B(1)(d), B(1)(j). “Emergency” is defined as follows.
Emergency: A situation in which the behavior of a client is actually causing, or almost certainly leading to, significant physical injury. Client refusal to receive / participate in treatment shall not constitute an emergency, unless otherwise defined by court order. Id. at p. 1 ¶ D. Procedure 3504 permits the use of “room timeout” and “deprivation procedure” as part of a resident‟s Individual Program Plan for behavior management. O‟Meara Aff. Ex. 9. The policy defines room timeout as follows.
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ROOM TIME-OUT removes a client from an ongoing activity to a specifically designed time-out room. Through a variance to Minnesota Rule 9520.2170, Subpart 35.B (Rule 40), the client may be prevented from leaving the time-out room by an electro-mechanical device that requires constant pressure by a staff member to maintain the mechanism in a locked position. A room-time out procedure must not exceed 60 minutes.
Id. at p. 2 ¶ (N)(1). Although not technically permitted “seclusion” is encompassed
within the definition of “room time-out.”
Seclusion: The placement of a person in a room from which egress is: 1. Non-contingent on the client‟s behavior; or 2. Prohibited by a mechanism such as a lock or by a device or object
positioned to hold the door closed or otherwise prevent the client from leaving the room.
Id. at p. 2 ¶ (L).
Procedure 3601 permits the use of psychotropic medication under routine
circumstances and in emergency situations. O‟Meara Aff. Ex. 11. Psychotropic
medications may be used as a chemical restraint in emergency situations. Id. at p. 5 ¶
(B)(3). An “emergency” is defined as follows.
Emergency: A situation in which a client‟s mental health symptoms create: 1. An imminent risk of significant physical injury to the client or
others, and/or 2. Significant psychological / emotional anguish, and 3. Non-pharmacological behavioral procedures are ineffective,
inappropriate, or not possible for the situation.
Id. at p. 1 ¶ (E).
Finally, Procedure 3505 permits the use of “personal safety techniques (PST),
including manual restraints and prone holds when a resident “becomes aggressive” and as
part of a resident‟s approved behavior management program or IPP. O‟Meara Aff. Ex. 10
at p. 2 ¶ (B).
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The term “personal safety techniques” is defined as follows. Personal Safety Techniques (PST): Application of external physical control by employees to clients who become aggressive despite the preventive strategies attempted. Physical control is based on the principle of using the least amount of force necessary to prevent injury and protect life and physical safety when program and other prevention strategies have failed.
Id. at p. 1 ¶ (B). Although not explicitly called a “restraint,” PST is the application of physical control, which is seemingly analogous to manual restraint. The policy also allows for the use of prone holds in light of the admitted potential harm that can result from use of such hold.
Positional asphyxiation is a risk factor when using a prone hold and this hold should only be used as a transitory intervention. Id. at p. 2 ¶ (B)(4). F. METO Residents Have Been Discharged and Recommitted to METO Although the three Plaintiffs are not currently committed to METO, METO residents, in general, have a history of being recommitted, including Plaintiff Jason, whom was already recommitted on one occasion. See Answer ¶ 77 [Doc. 24] (Jason was committed to METO on April 23, 2007, subsequently transferred, and then recommitted to METO on December 4, 2007). Additionally, as identified by the State Defendants in its spreadsheet partially documenting the use of restraints at METO, Client 22 was discharged from METO on June 25, 2003, and recommitted on August 5, 2003, wherein he/she was again subjected to use of restraints; Client 34 was discharged from METO on February 27, 2009, and recommitted on August 26, 2009, wherein he/she was again
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subjected to the use of restraints; Client 35 was discharged from METO on August 23, 2007, and recommitted on November 19, 2008, wherein he/she was again restrained; Client 45 was discharged from METO on September 26, 2001, and recommitted on January 22, 2002, wherein he/she was again restrained; Client 49 was discharged from METO on October 14, 2002, and recommitted on December 21, 2009, and immediately subjected to the use of restraints again; Client 68 was discharged from METO on June 9, 2008, and recommitted on June 20, 2008, wherein he/she was again subjected to the use of restraints; Client 70 was discharged from METO on November 10, 2004, and was recommitted on January 9, 2005, and again subject to the use of restraints; Client 77 was discharged from METO on June 30, 2005, recommitted on June 25, 2005, and again subjected to the use of restraints; Clients 84 and 88 were committed to METO on three separate occasions and during all three times they were subjected to the use of restraints. See O‟Meara Aff. Ex. 1. METO residents, including Plaintiff Bradley, have expressed fear about returning to METO.3 See Amend. Compl. Ex. 1-A at p. 24 [Doc. 3-1].
Moreover, group homes serving persons with developmental disabilities threaten to have residents committed to METO. Kenney Aff. ¶ 4. Recently, an individual was committed to METO after having been threatened by his group home staff for the last year that they were going to send him to METO. Id. ¶ 5.
3 Upon information and belief, Plaintiff Bradley is Person #2 in the State Ombudsman Just Plain Wrong report.
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ARGUMENT I. PLAINTIFFS AND THE CLASS ARE ENTITLED TO A PRELIMINARY
INJUNCTION PROHIBITING THE USE OF RESTRAINTS AT METO A. STANDARD OF ANALYSIS “[W]hether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). These four factors are typically referred to as the “Dataphase factors.” The burden of establishing the propriety of a preliminary injunction is on the movant. Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir. 1994). District courts have broad discretion with respect to requests for preliminary injunctions, and their decisions are reviewed on a standard that allows reversal “only for clearly erroneous factual determinations, an error of law or an abuse of that discretion.” United Indust. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir.1998). B. PLAINTIFFS AND THE CLASS POSSESS STANDING TO PURSUE A
PRELIMINARY INJUNCTION Upon certification, the Class assuredly possesses standing to seek a preliminary injunction as it includes individuals who are currently residents of METO and subjected to the use of restraints and seclusion. Absent class certification, however, the three named Plaintiffs also have standing to seek a preliminary injunction, as their claims remain justiciable as “capable of repetition, yet evading review.”
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Although Bradley, Thomas and Jason are not current residents of METO, they
remain residents of Minnesota and will forever remain individuals with developmental
disabilities, thus the threat remains that they will be recommitted to METO and again
subjected to restraints under METO‟s existing policies and practices. Accordingly,
Plaintiffs‟ claims are “capable of repetition, yet evading review.”
In Honig v. Doe, the Supreme Court provided an analysis of the “capable of
repetition, yet evading review” doctrine, under circumstances similar to those here. In
Honig, respondent Jack Smith was a developmentally disabled student who was
suspended from school indefinitely for violent and disruptive conduct related to his
disabilities, pending the completion of expulsion proceedings by the San Francisco
Unified School District (SFUSD). Smith alleged that the suspension and proposed
expulsion violated the Education of Handicapped Act (EHA) (what is known today as the
Individuals with Disabilities Education Act or IDEA), and sought injunctive relief against
SFUSD officials and the State Superintendent of Public Instruction.
In rejecting a claim of mootness, the Supreme Court explained:
Respondent Jack Smith, however, is currently 20 and has not yet completed high school. Although at present he is not faced with any proposed expulsion or suspension proceedings, and indeed no longer even resides within the SFUSD, he remains a resident of California and is entitled to a “free appropriate public education” within that State. His claims under the EHA, therefore, are not moot if the conduct he originally complained of is “ „capable of repetition, yet evading review.‟ ” Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982). Given Smith's continued eligibility for educational services under the EHA, the nature of his disability, and petitioner's insistence that all local school districts retain residual authority to exclude disabled children for dangerous conduct, we have little difficulty concluding that there is a “reasonable expectation,” ibid., that Smith would once again be subjected to a unilateral “change in
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placement” for conduct growing out of his disabilities were it not for the statewide injunctive relief issued below. Honig v. Doe, 484 U.S. 305, 319-18, 108 S. Ct. 592, 601-02, 98 L. Ed. 2d 686 (1988) (footnote omitted). Finding the case was justiciable because it was “capable of repetition, yet evading review,” the Court held that the respondent had standing to claim injunctive relief. Id. at 601-604. Similarly, Plaintiffs‟ aggressive behaviors, which caused them to be committed to METO in the first instance and restrained while at METO, were manifestations of their disabilities, thus it is reasonable that those aggressive behaviors would occur again, subjecting them to recommitment and the use of restraints so long as METO is permitted to restrain its residents. See, e.g., O‟Meara Aff. Ex. 12, at pp. 2-3 (noting Bradley‟s history of displaying physical aggression, property destruction, self injurious behavior, inappropriate emesis, agitation upon attempts to interact with him by others); Ex. 13, at pp. 2-4 (noting Thomas‟ history of physical aggression, property damage, difficulty with self-control, and elopement); see also Honig, at 320 (stating that “[i]n the absence of any suggestion that respondent has overcome his earlier difficulties, it is certainly reasonable to expect, based on his prior history of behavioral problems, that he will again engage in classroom misconduct” which gave rise to this litigation.). The Honig Court emphasized that “for purposes of assessing the likelihood that state authorities will reinflict a given injury, [courts] generally have been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury”; however, “[g]iven the unique circumstances
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and context of the[e] case,” the Court was willing to assume that a plaintiff whose “very inability to conform his conduct to socially acceptable norms that render[ed] him [developmentally disabled]” would “again engage in the type of misconduct that precipitated th[e] suit.” 484 U.S. at 320-21.
Moreover, Plaintiffs have sufficient personal stake to warrant standing in this case. Plaintiffs‟ allegations of future injury are not speculative. Although none of the three Plaintiffs are currently committed to METO, METO residents, in general, have a history of being recommitted, including Plaintiff Jason, whom was already re-committed on one occasion. See Answer ¶ 77 [Doc. 24] (Jason was committed to METO on April 23, 2007, subsequently transferred, and then recommitted to METO on December 4, 2007). Additionally, as identified by the State Defendants in its spreadsheet partially documenting the use of restraints at METO, Client 22 was discharged from METO on June 25, 2003, and recommitted on August 5, 2003, wherein he/she was again subjected to use of restraints; Client 34 was discharged from METO on February 27, 2009, and recommitted on August 26, 2009, wherein he/she was again subjected to the use of restraints; Client 35 was discharged from METO on August 23, 2007, and recommitted on November 19, 2008, wherein he/she was again restrained; Client 45 was discharged from METO on September 26, 2001, and recommitted on January 22, 2002, wherein he/she was again restrained; Client 49 was discharged from METO on October 14, 2002, and recommitted on December 21, 2009, and immediately subjected to the use of restraints again; Client 68 was discharged from METO on June 9, 2008, and recommitted on June 20, 2008, wherein he/she was again subjected to the use of restraints; Client 70
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was discharged from METO on November 10, 2004, and was recommitted on January 9, 2005, and again subject to the use of restraints; Client 77 was discharged from METO on June 30, 2005, recommitted on June 25, 2005, and again subjected to the use of restraints; Clients 84 and 88 were committed to METO on three separate occasions and during all three times they were subjected to the use of restraints. See O‟Meara Aff. Ex. 1.
Accordingly, there is a reasonable likelihood that Plaintiffs will again suffer the deprivation of their civil and constitutional rights that gave rise to this suit, and thus Plaintiffs have standing to seek a preliminary injunction. See Von Colln v. County of Ventura, 189 F.R.D. 583 (C.D. Cal. 1999) (holding pretrial detainees, who sought damages from jail officials for being placed in restraining chair in violation of their constitutional rights, had standing to seek injunctive relief; considering fact that all but one of detainees was on probation, combined with their apparent propensity to incarceration in county jail, it was beyond speculation that at least one of the named detainees would be in custody of jail in the near future, and it was not speculative that the detainees would be subject to restraining chair when they were returned to jail since defendants had policy authorizing the use of restraining chair for detainees).
C. THE DATAPHASE FACTORS FOR A PRELIMINARY INJUNCTION ARE
SATISFIED
“Whether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the plaintiff; (2) the state of balance between such harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that plaintiff will succeed on the merits; and (4) the public interest.”
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Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). “No single factor is determinative; rather, the probability of success must be examined in the context of the relative injuries to the parties and to the public.” Advantage Media, L.L.C. v. City of Hopkins, 379 F. Supp. 2d 1030, 1035 (D. Minn. 2005) (citing Dataphase, 640 F.2d at 113). Although no one factor is determinative, likelihood of success on the merits is generally the touchstone inquiry. Id. “The party requesting injunctive relief bears the „complete burden‟ of proving all of the factors.” Advantage Media, L.L.C. v. City of Hopkins, 379 F. Supp. 2d 1030, 1035 (D. Minn. 2005) (citing Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th Cir.1987)).
1. Plaintiffs are likely to succeed on the merits A preliminary injunction may be granted if Plaintiffs can demonstrate a probability that they will succeed on the merits. The “probability of success on the merits” prerequisite does not require that the party seeking such relief prove a greater than 50% likelihood that he will prevail on the merits. Dataphase, at 113. Rather, “where the balance of other factors tips decidedly toward plaintiff a preliminary injunction may issue if movant has raised questions so serious and difficult as to call for more deliberate investigation.” Dataphase, 640 F.2d at 113. The courts have found that residents at state-operated institutions have a constitutionally protected interest in safe conditions and in freedom from bodily restraint. Youngberg v. Romeo 457 U.S. 307, 315-16, 323, 102 S. Ct. 2452, 73 L.Ed.2d 28 (1982); Messier v. Southberry Training School, 562 F.Supp.2d 294 (D.Conn. 2008); see also Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1243 (2d
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Cir.1984). “[L]iberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action” and this interest survives involuntary commitment. Youngberg, at 316 (citing Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 18, 99 S.Ct. 2100, 2109, 60 L.Ed.2d 668 (1979)). Individuals with developmental disabilities in a state institution have a Fourteenth Amendment due process right to reasonably safe conditions of confinement, freedom from unreasonable bodily restraints, reasonable protection from harm, and adequate food, shelter, clothing, and medical care. Youngberg, at 324, 102 S.Ct. at 2462. In contrast, excessive or unreasonable use of restraints violates an individual‟s due process rights. See id, at 321-24.
METO has a long history of excessively and unreasonably subjecting its residents to the use of restraints. See Amend. Compl. Exs. 1-A, 2 & 4 [Docs. 3-1, 3-6 & 3-8]. The official State Ombudsman concluded, inter alia, that METO had a program-wide practice of routine use of restraints employed as a basic treatment modality, and the use of restraints was anticipated with every admission. Amend. Compl. Ex. 1-A at p. 44 [Doc. 3-1] (emphasis added). Moreover, the Ombudsman concluded that inappropriate use of restraints constitutes abuse under Minnesota‟s Vulnerable Adult Act, and that certain practices at METO violated the human and civil rights of some clients. Amend. Compl. Ex. 1 at p. 45 [Doc. #3-1].
Additionally, following a self-investigation, DHS Licensing Division concluded, in part, that the emergency use of restraints was not implemented, reviewed, or reported as required by state law and that staff implemented the use of controlled procedures on an
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emergency basis without the residents‟ behavior meeting the criteria for such use. Amend. Compl. Ex. 4 at p. 18 [Doc. 3-8]. In response to its investigation, DHS issued a Corrective Order to METO – one of its own programs - citing numerous violations of state laws governing the use of aversives and deprivations procedures at METO, including restraints. Amend. Compl. Ex. 5 [Doc. 3-9].
Moreover, the MDH also conducted an unannounced visit of METO in order to investigate alleged violations of federal law related to the use of restraints. Amend. Compl. Ex. 2 [Doc. 3-6]. The MDH cited METO for violations of state and federal law related to the use of restraints and aversives. Amend. Compl. Ex. 2 at p. 17 [Doc. 3-8]. It also reported that METO “failed to ensure that residents were free from unnecessary physical restraints and/or drugs.” Id.; see also Amend Compl. Ex. 3 [Docs. 3-7] (MDH summary of deficiencies at METO).
Three State agencies – the State Ombudsman, the MDH and DHS itself – have all found METO residents have been repeatedly and excessively restrained. This excessive use of restraints violated Plaintiffs and other METO residents‟ due process rights. See Messier v. Southberry Training School, 562 F.Supp.2d 294 (D. Conn. 2008); see also Youngberg v. Romeo 457 U.S. 307, 323, 102 S. Ct. 2452, 73 L.Ed.2d 28 (1982); see also Amend. Compl. Ex. 1 at p. 45 [Doc. #3-1] (It is the opinion of the Ombudsman that certain practices have violated the human and civil rights of some clients). Accordingly, Plaintiffs will likely succeed on the merits of their claims.
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2. Failure to prohibit the use of restraints at METO will cause irreparable harm to residents of METO
To warrant a preliminary injunction, the moving party must demonstrate a sufficient threat of irreparable harm.” Dataphase, at 114; Iowa Protection and Advocacy Serv., Inc. v. Gerard Treatment Programs, 152 F.Supp.2d 1150, 1156 (N.D. Iowa 2001) (citing Adam-Mellang v. Apartment Search, Inc., 96 F.3d 297, 299 (8th Cir.1996)). As discussed supra, the courts have found the use of restraints to be harmful and in violation of an individual‟s due process rights. Plaintiffs and all METO residents have a due process right to be free from bodily restraint. Youngberg, 457 U.S. at 324, 102 S. Ct. 2452. The use of restraints violates those rights, causing irreparable harm. Each day an individual‟s constitutional rights are violated, causes irreparable harm. See Advantage Media, L.L.C. v. City of Hopkins, 379 F. Supp. 2d 1030, 1035 (D. Minn. 2005) (holding that for each that passes while any citizen is deprived the constitutional right protected by the First Amendment, such a delay establishes the threat of irreparable injury).
The continued use of restraints causes irreparable harm to METO residents by violating their due process rights and causing severe bodily injury. Plaintiffs are subjected to the threat of irreparable harm as nothing prevents them from being recommitted to METO at any time. Plaintiff Jason has already been discharged and recommitted to METO on one occasion, as have several other METO residents. Plaintiff Bradley has expressed fear about being sent back to METO. Amend. Compl. Ex. 1-A at p. 24[Doc. 3-1]. Moreover, group homes serving persons with developmental disabilities threaten to have residents committed to METO. Kenney Aff. ¶ 4. Recently, an individual
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was committed to METO after having been threatened by his group home staff for the last year that they were going to send him to METO. Id. ¶ 5.
As identified by the State Defendants in their spreadsheet, documenting the partial use of restraints at METO, Client 22 was discharged from METO on June 25, 2003, and recommitted on August 5, 2003, wherein he/she was again subjected to use of restraints; Client 34 was discharged from METO on February 27, 2009, and recommitted on August 26, 2009, wherein he/she was again subjected to the use of restraints; Client 35 was discharged from METO on August 23, 2007, and recommitted on November 19, 2008, wherein he/she was again restrained; Client 45 was discharged from METO on September 26, 2001, and recommitted on January 22, 2002, wherein he/she was again restrained; Client 49 was discharged from METO on October 14, 2002, and recommitted on December 21, 2009, and immediately subjected to the use of restraints again; Client 68 was discharged from METO on June 9, 2008, and recommitted on June 20, 2008, wherein he/she was again subjected to the use of restraints; Client 70 was discharged from METO on November 10, 2004, and was recommitted on January 9, 2005, and again subject to the use of restraints; Client 77 was discharged from METO on June 30, 2005, recommitted on June 25, 2005, and again subjected to the use of restraints; Clients 84 and 88 were committed to METO on three separate occasions and during all three times they were subjected to the use of restraints. See O‟Meara Aff. Ex. 1.
Moreover, it is not speculative that the Plaintiffs will be subject to unconstitutional treatment if recommitted to METO. METO‟s use of restraints on its residents is both recurrent and presumptively in violation of the Plaintiffs‟ constitutional rights. METO
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has policies in place authorizing the use of restraints. O‟Meara Aff. Exs 7-11. Moreover, METO has a history of using restraints in violation of its own policies governing such use, including in emergency situations. See generally Amend Compl. and Exhibits thereto (including Docs. 3-1, 3-8, 3-9). Furthermore, METO has demonstrated a pattern and practice of abusing people with developmental disabilities through the use of restraints. Id. As such, “[t]he possibility or recurring injury ceases to be speculative when actual repeated incidents are documented.” Nicacio v. INS, 797 F.2d 700, 702 (9th Cir.1985).
Furthermore, the ongoing use of restraints not only threatens to cause irreparable harm by violating Plaintiffs and METO residents‟ constitutional rights, but also by resulting in bodily injury. One such example of the threat of bodily harm that can result from the use of restraints occurred on Christmas Eve of just this past year when a METO resident‟s elbow was fractured while he was being manually restrained. O‟Meara Aff. Ex. 14. Another example of the severe harm the use of restraints can cause is when Plaintiff Jason‟s arm was broken when he too was being restrained at METO. Amend. Compl. ¶ 93 [Doc. 3]. And yet other examples are the numerous injuries Plaintiff Thomas suffered while being restrained – “[a]s a result of the use of restraints and group takedowns, Thomas suffered several physical injuries, including abrasions on the right and left side of his forehead, cuts on his wrists, and his right ear being banged on the ground resulting in blood in his ear canal.” Id., at ¶ 84 [Doc. #3]. Additionally, an individual with an unsteady gait was routinely placed in this type of restraint, putting that person at risk of injury if they should fall, as they would not be able to use their arms or hands to break that fall. Amend. Compl. Ex. 1 at p. 17 [Doc. #3-1]. Yet another
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individual who was regularly restrained with metal handcuffs and leg irons stated that once the restraints were on he/she began to experience discomfort, which led to crying, yelling and struggling against the restraints. Id. These are just a few of the endless examples of the extent of bodily harm METO residents suffer from being restrained – not to mention the emotional harm.
METO residents are systematically restrained, suffering such egregious injuries as broken arms, fractured elbows, cut wrists and bloody abrasions. The severity of harm restraints can cause is horrific and sometimes even fatal. Recently, a 27-year old man with developmental disabilities died after being restrained in a prone position at his state operated workplace. O‟Meara Aff. Ex. 14. Such a horrific accident should not have been allowed to occur and emphasizes the extreme importance of eliminating the use of restraints at METO.
There is a staggering number of restraints being used on residents at METO (e.g., “One of the most egregious cases revealed a client had been restrained 299 times in 2006 and 230 times in 2007”; “In 2007, this person was restrained approximately 225 times for a total of over 130 hours.” “Of those 225 plus times for 2007, restraints were only used four times for self-injurious behavior and seven times for hitting or scratching staff or a peer.” Amend. Compl. Ex. 1-A at pp. iv and 22 [Doc 3-1]). The documented abuse of people with developmental disabilities and the examples of bodily harm set forth herein, establish that the opportunity for irreparable harm from the use of restraints is undoubtedly a foreseeable consequence of their continued use. Plaintiffs and other
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METO residents face the very real frightening threat of irreparable harm so long as restraints are used at METO.
3. The benefit in granting the preliminary injunction far outweighs the drawbacks the injunction will have on other interested parties
The benefit of enjoining the use of restraints at METO far outweighs any harm or inconvenience it may create. Defendants claim they must continue to use restraints in emergency situations to protect residents and staff from injury. However, the use of restraints is not a best practice in the area of developmental disabilities. “Current best practice standards focused on positive behavioral supports, which included assessing the purpose of the behaviors and finding positive alternatives for the individual to employ.” Amend. Compl. Ex. 1-A, p. iii [Doc. #3-1]. Positive Interventions are the generally accepted standard of care for persons with developmental disabilities. Amend. Comp. ¶ 103(A) [Doc. #3]; Amend. Compl. Ex. 1, at p. 44 [Doc. #3-1].
Recently, on July 7, 2009, Dr. Read Sulik, Assistant Commissioner for Chemical and Mental Health Services for DHS, admitted that DHS wanted to eliminate the use of seclusion and restraints on METO residents, that current efforts existed to reduce the use of seclusion and restraints, and that METO could treat patients without using seclusion and restraint. Answer ¶ 49 [Doc. 24] (admitting Paragraph 61 of the Amended Complaint); Amend. Compl. ¶ 61 [Doc. 3].
Moreover, DHS has previously recognized the barbarism associated with the use of restraints when administrators at the Moose Lake State Hospital discontinued the use of restraints and chose to treat patients humanely and therapeutically rather than through
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the threat of restraints. Amend. Compl. ¶ 58 [Doc. 3]. Moose Lake State Hospital was a part of the State Operated Services division of the DHS, just as METO is today. Answer ¶46 [Doc. 24]. There is no need to use these types of aversives and deprivation procedures in any true emergency. In fact, the Oklahoma Department of Human Services is an exemplary state where the use of restraints are completely prohibited. O‟Meara Aff. Ex. 16.
The hardships imposed on Plaintiffs far outweigh the benefits to the use of restraints by Defendants. Continued use of restraints will cause physical and emotional harm to Plaintiffs and other residents of METO. During their investigations, three State entities - the State Ombudsman, the MDH and DHS Licensing Division - all found many individuals were adversely affected by METO policies and procedures regarding the use of mechanical restraints. The courts have repeatedly held that providing individuals with developmental disabilities a safe, integrated and community-based setting far outweighs the use of restraints for controlling a resident and the treatment provided to persons with developmental disabilities should be in settings that are the least restrictive to the person‟s personal liberty. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 599, 119 S. Ct. 2176, 2186, 144 L. Ed. 2d 540 (1999); Youngberg, 457 U.S. at 327; see also Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 24, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981).
4. A preliminary injunction is in the public’s interest The final Dataphase factor requires the conduct seeking to be enjoined be in the public‟s interest. Here, Plaintiffs seek to enjoin the use of restraints at METO in
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violation of their constitutional rights. “It is always in the public interest to prevent the

violation of a party‟s constitutional rights.” 42 Am. Jur. 2d Injunctions § 74 (2010).

Likewise, providing persons with developmental disabilities the opportunity to thrive in

the least restrictive setting allows such persons to participate more fully in the community

and gain the capacity to do things for themselves without total dependence on an

institution. Olmstead, at 605. The use of restraints will only hinder METO residents‟

ability to gain independence and contribute to the community as whole. It is in the

public‟s interest to not only protect its vulnerable citizens who can so easily be taken

advantage of; but also to encourage their full participation in the community and allow

diversity in communities to prosper. Certainly the public‟s best interest is served through

issuance of an injunction to stop the use of restraints at METO.

CONCLUSION

The Plaintiffs respectfully request this Court issue a Preliminary Injunction

immediately enjoining the use of mechanical, manual and chemical restraints and

seclusion on residents of METO.

Respectfully submitted,

Dated: ______________________

JOHNSON & CONDON, P.A.
s/ Shamus P. O‟Meara _________________________________ Shamus P. O‟Meara (#221454) Mark R. Azman (#237061) M. Annie Mullin (# 0389206) 7401 Metro Boulevard, Suite 600 Minneapolis, MN 55439-3034 (952) 831-6544

30

 
 Jensen v. Minnesota Dept. of Human Services, Slip Copy (2013)

2013 WL 1776408 Only the Westlaw citation is currently available.
United States District Court, D. Minnesota.
James and Lorie JENSEN, as parents, guardians and next friends of Bradley J. Jensen; James
Brinker and Darren Allen, as parents, guardians and next friends of Thomas M. Allbrink; Elizabeth
Jacobs, as parent, guardian and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs, v.
MINNESOTA DEPARTMENT OF HUMAN SERVICES, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options,
a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually, and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and State of Minnesota, Defendants.
Civil No. 09–1775 (DWF/FLN). | April 25, 2013.
Attorneys and Law Firms
Margaret Ann Santos, Esq., Mark R. Azman, Esq., and Shamus P. O’Meara, Esq., O’Meara Leer Wagner & Kohl, PA, for Plaintiffs.
Steven H. Alpert and Scott H. Ikeda, Assistant Attorneys General, Minnesota Attorney General’s Office, for State Defendants.
Samuel D. Orbovich, Esq., and Christopher A. Stafford, Esq., Fredrikson & Byron, PA, for Defendant Scott TenNapel.
Opinion

AMENDED ORDER AND MEMORANDUM
DONOVAN W. FRANK, District Judge.
*1 The above-entitled matter was last before this Court on March 25, 2013, for a status conference. David Ferleger, the Court’s independent advisor and monitor (the “Monitor”) was not in attendance at that status conference. Prior to the status conference, the Court filed an Order and Memorandum dated March 19, 2013 (“March 19 Order”). (Doc. No. 205.)
As the Court noted in its March 19 Order and in a January 9, 2013 letter to the parties in response to the agenda that the Court had received and reviewed for the January 14, 2013 meeting of all of the parties with the Monitor, the Court urged the parties to utilize their best efforts to develop an implementation plan that would include tasks, deadlines, persons responsible, and possible amendments to extend the jurisdiction of the Court for an additional period of time, consistent with the discussions that occurred at the December 11, 2012 status conference. (Doc. No. 192.) The Court stressed that the parties should utilize their best efforts to develop and agree on the Monitor’s role as well as the budgetary implications of that role. (Id.) The Court also offered, in its letter, to get together with the parties if the parties felt that a follow-up status conference would be in everyone’s best interests. (Id.) Then, on January 23, 2013, the Court sent a follow-up letter, respectfully directing the parties to send a report to the Court as to the status of the case and how to move forward, including any agreements that they anticipated or had reached. (Doc. No. 196.) The Court specifically directed and invited Steven Alpert, Shamus O’Meara, Colleen Wieck, Ph.D., Executive Director of the Minnesota Governor’s Council on Developmental Disabilities, and Roberta Opheim, Ombudsman, Office of the Ombudsman for Mental Health and Developmental Disabilities, to make any recommendations or observations about the current status of the case, with or without proposals, including issues of compliance and noncompliance with the Settlement Agreement. (Id.) At the request of counsel for Plaintiffs and counsel for Defendants, the Court met with the parties on January 24, 2013. The Monitor was not in attendance.
Much has happened and continues to happen, not only
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Jensen v. Minnesota Dept. of Human Services, Slip Copy (2013)

since December 11, 2012, but since the Court’s March 19 Order and the status conference held on March 25, 2013. Executive Order 13–01, signed by Governor Mark Dayton, was filed on January 28, 2013. The Court notes that, although an Executive Order was filed four days after counsel met with the Court, there was no discussion of it with the Court by any of the parties prior to its entry, and there has been no explanation since its entry as to its relationship to, or its impact on, the Settlement Agreement, if any. The Executive Order purports to address Olmstead issues, which means that the issuance of the order must have been discussed sometime prior to January 28, 2013, with a number of individuals and departments, including the Minnesota Department of Human Services (“DHS”), as well as perhaps Plaintiffs’ counsel.
*2 On January 29, 2013, the day after the issuance of the Executive Order, the Court received a letter from Plaintiffs’ counsel, which addressed not only the Monitor’s role and Plaintiffs’ recommendations for a change in procedural protocol to include quarterly reports, but also recommended that monthly meetings with the Monitor be discontinued as unnecessary. In response to the January 29, 2013 letter from Plaintiffs’ counsel, the Court received a letter dated January 30, 2013, bearing the signature of Steven Alpert, which objected to Plaintiffs’ proposal as it related to the Monitor’s role. The Court was then provided with an order drafted by the Monitor entitled “Correction Order,” dated February 1, 2013, which involved a November 27–30, 2012 licensing review of the Minnesota Specialty Health System at Cambridge, the purpose of which was to determine its compliance or noncompliance with state and federal laws and rules governing the provision of residential services to persons with developmental disabilities, including not only Minnesota Chapter 245B, but also the licensing variance, effective January 3, 2012. The Court received a stipulation of the parties, dated February 4, 2013, and a proposed order, on or about February 19, 2013, which adopted in substantial part, the parties’ stipulation.
In addition to the parties’ submissions, the Court received the Monitor’s response to the Court’s January 23, 2013 letter referenced above. The Court also received a letter from Deputy Commissioner Ann Barry dated February 19, 2013, which not only asserted compliance with the parties’ Settlement Agreement, but also addressed budgetary issues with respect to the Monitor’s role as well as objections to his most recent invoice (which the Court addressed in a separate order). On February 22, 2013, the Court received a Preliminary Report on Client and Staff

Safety from the Monitor. Then, on February 24, 2013, the Court received a letter from Plaintiffs’ counsel asserting that they did not concede that the stipulation represented the parties’ view of compliance with the Settlement Agreement. The Court received a request on March 4, 2013, from Plaintiffs’ counsel to schedule a conference with the Court to discuss resolution of Plaintiffs’ Motion to Enforce Settlement, as well as the status of the case. At that time, the Court was informed that counsel for Defendants also agreed to scheduling a conference to discuss the status of Plaintiffs’ Motion to Enforce Settlement. At the March 25, 2013 status conference, the Court agreed to issue an order addressing the role of the Monitor and to set up a process to promote substantial compliance with the Settlement Agreement entered in this case on December 1, 2011.
Finally, the Court has learned there is an omnibus DHS bill moving through the state legislature. Surprisingly to this Court, and without explanation or notice to the Court as to its relationship to the Settlement Agreement, it appears that DHS has proposed a ban on all restraint and seclusion, EXCEPT for individuals with developmental disabilities. Of additional concern in the same bill, there is a proposal to gather data about emergency use of retraint and seclusion, but rather than release it simultaneously to DHS and the Ombudsman’s Office, it will be reviewed first by DHS.
*3 Based upon the presentations and submissions of the parties, prior to the March 25, 2013 status conference and since that time, including the submissions of the Monitor, and given the continued concern of this Court relating to the status of the case and ongoing concerns with noncompliance with the Settlement Agreement of the parties, the Court having again reviewed the procedural history of this case, and the Court being otherwise duly advised in the premises, the Court hereby enters the following:
ORDER
1. Role of David Ferleger The external reviewer function, as set forth in the Stipulated Class Action Settlement Agreement at paragraph VII.B (External Reviewer) will be subsumed within the Monitor’s role as originally set forth in the Court’s July 17, 2012 Order, at which time the Court
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Jensen v. Minnesota Dept. of Human Services, Slip Copy (2013)

appointed David Ferleger as the Court’s independent consultant and monitor.
2. Monitor’s Investigation and Reports The Monitor will independently investigate, verify, and report on compliance with the Settlement Agreement and the policies set forth therein on a quarterly basis. Those quarterly reports shall inform the Court and the parties whether the Monitor believes, based upon his investigation, without relying on the conclusion of the DHS, that Defendants are in substantial compliance with the Settlement Agreement and the policies set forth therein. The Court expects the reports to set forth the factual basis for any recommendations and conclusions.
Further, the reports shall set forth whether the DHS is operating consistent with the best practices pursuant to the Settlement Agreement.
Consequently, the Court respectfully declines to accept the parties’ stipulation to limit the role of the Monitor.
3. Protocol for Status Report The first status report shall be submitted on June 5, 2013, with the Monitor leading the effort and all parties assisting in providing input and reports to the Monitor as set forth below:
a. All parties shall submit their comments to be included in a single document, with any differences to be noted by the Monitor. The status report will cover all parts of the Settlement Agreement, including the overall goal of settlement. Further, the status report should provide a full description of whether time lines have been met. The status report shall also describe any quantitative indicators of compliance, as well as any qualitative issues of compliance, and list any related or collateral issues that directly affect the quality of life of individuals with developmental disabilities. The Monitor will be the final decision-maker as to what will be included in the status report to be submitted to the Court on June 5, 2013.
b. The status report shall also review the accuracy of the previous status reports submitted by the DHS that were not reviewed as they relate to the current status of compliance with the Settlement Agreement. In this regard, the Court is obligated to scrutinize the exhibits

containing client records to determine completeness and accuracy.
*4 c. The status report should also include findings from other groups such as DHS licensing, the Office of Legislative Audit Findings, and the Office of the Ombudsman for Mental Health and Developmental Disabilities.
d. The Court expects that the individuals who have been previously designated as consultants, namely, Roberta Opheim and Dr. Colleen Wieck, will provide their comments through Settlement Class Counsel and be so identified in the status report.
e. Further, to the extent prior DHS reports were submitted without any review or comment by Settlement Class Counsel, in the event the Monitor questions the integrity and accuracy of the records submitted, the Monitor is directed to confer with Robert Opheim and Dr. Colleen Wieck.
f. With input and cooperation from Plaintiffs and the DHS, the Monitor shall set up a time frame for submissions from the parties, in advance of the Court’s final deadline of June 5, 2013. Further, once a draft report has been prepared consistent with this Order, the Monitor shall provide Plaintiffs, the DHS, and the consultants with a copy of the draft report, prior to issuing it to the Court. The Plaintiffs and the DHS will then have ten (10) business days to provide written comment, which will be submitted to the Court as attachments to the Monitor’s final report. The report shall be electronically filed on the Court’s Electronic Court Filing system, with appropriate redactions of identities of residents or other personal data information that is statutorily protected from public disclosure. The notice and time line set up for exchange of information between the Monitor, Plaintiffs and Defendants, and consultants may be modified by stipulation of all parties concerned.
4. Olmstead Plan Pursuant to the stipulation of the parties as it relates to the Olmstead Plan, within sixty (60) days of the date of this Order and Memorandum, the DHS shall establish an Olmstead Planning Committee which will issue its public recommendations within ten (10) months of this Court’s Order approving this Agreement. By November 1, 2013, the State and the DHS shall develop and implement a
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Jensen v. Minnesota Dept. of Human Services, Slip Copy (2013)

comprehensive Olmstead Plan that: uses measurable goals to increase the number of people with disabilities receiving services that best meet their individual needs, in the “Most Integrated Setting”; and is consistent and in accord with the U.S. Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999).
5. Monthly conferences between Plaintiffs and Defendants, including Roberta Opheim, Ombudsman, Office of the Ombudsman for Mental Health and Developmental Disabilities, and Colleen Wieck, Ph.D., Executive Director, Governor’s Council on Developmental Disabilities Pursuant to the agreement of the parties, explained to the Court at the March 25th status conference, the parties shall meet on a monthly basis to promote the implementation of the Settlement Agreement. These meetings will not include the Monitor.
6. Budget for the Monitor through July 15, 2013 *5 The Court respectfully directs Deputy Commissioner Ann Barry and David Ferleger to meet and to utilize their best efforts to agree on a budget through July 15, 2013, in the context of the role of the Monitor. Furthermore, in the event the parties want to discuss further a budget for the balance of 2013, the Court so approves. In the event the parties are unable to reach an agreement as to that budget at least for the time period through July 15, 2013, upon being so notified, the Court, without further delay, will establish that budget.
7. Given the Court’s continued concern with Defendants’ compliance with the Settlement Agreement, as the Court noted in its December 19, 2013 Order, the Court expressly reserves the right to request the assistance of the United States Department of Justice Civil Rights Division with respect to compliance issues with the Settlement Agreement and the orders of this Court.

MEMORANDUM
The Court will not repeat the observations that it has made in its prior Orders and Memoranda. (See Doc. Nos. 159, 188, 204.)
It is obvious by this Order and Memorandum that the Court continues to be extremely concerned that a large number of individuals with developmental disabilities, their families, friends, and loved ones will soon be before this Court proclaiming that nothing has changed significantly since December 1, 2011. The Court remains hopeful that the parties are still willing to carry out the intent of the Settlement Agreement, which was to benefit a large number of individuals with disabilities in a truly meaningful and significant way. Whether that is happening, or will happen, remains to be seen.
Unrelated to compliance issues and the status of this case, the Court will end its memorandum on a sad, but honorable and respectful note. This is the first Order and Memorandum that this Court has entered in this case that does not identify P. Kenneth Kohnstamm as an attorney of record for the Defendants. P. Kenneth Kohnstamm passed away on April 4, 2013. Ken Kohnstamm was a true credit to the legal profession and a good, decent, and caring man who wanted to improve the world around him, which he did. In doing so, he enhanced the image of the profession and served the interests of justice and the public in everything that he did, both in his personal and professional life.
Ken set an example for us all. There is no more significant way that we could honor this true warrior of justice and his memory than to carry out the intent and spirit of this Settlement Agreement and, in doing so, improve the lives of individuals with developmental disabilities, and set an example for the rest of the country, as promised by the parties during the hearing on the Settlement Agreement on December 1, 2011.
	  

4

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
v.
Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually, and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and State of Minnesota,
Defendants.

Civil No. 09-1775 (DWF/FLN) ORDER AND MEMORANDUM

Margaret Ann Santos, Esq., Mark R. Azman, Esq., and Shamus P. O’Meara, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

P. Kenneth Kohnstamm and Steven H. Alpert, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants. Samuel D. Orbovich, Esq., and Christopher A. Stafford, Esq., Fredrikson & Byron, PA, counsel for Defendant Scott TenNapel.
The above-entitled matter was last before this Court on December 11, 2012, for a status conference, after which the Court filed an Order and Memorandum dated December 20, 2012. (Doc. No. 188.) In a January 9, 2013 letter in response to the agenda that the Court had received and reviewed for the January 14, 2013 meeting of all of the parties with David Ferleger, the Court urged the parties to utilize their best efforts to develop an implementation plan that would include tasks, deadlines, persons responsible, and possible amendments to extend the jurisdiction of the Court for an additional period of time, consistent with the discussions that occurred at the December 11, 2012 status conference. (Doc. No. 192.) The Court stressed that the parties should utilize their best efforts to develop and agree on the role of David Ferleger as well as the budgetary implications of that role. (Id.) The Court also offered, in its letter, to get together with the parties if the parties felt that a follow-up status conference would be in everyone’s best interests. (Id.) Then, on January 23, 2013, the Court sent a follow-up letter, respectfully directing the parties to send a report to the Court with respect to the status of the case and how to move forward, including any agreements that they anticipated or had reached. (Doc. No. 196.) The Court specifically directed and invited Steven Alpert, Shamus O’Meara, Colleen Wieck, and Roberta Opheim to make any recommendations or observations about the current status of the case, with or without
2

proposals, including issues of compliance and noncompliance with the Settlement Agreement. (Id.) At the request of counsel for Plaintiffs and counsel for Defendants, the Court met with the parties on January 24, 2013. Mr. Ferleger was not in attendance.
Much has happened since December 11, 2012. Executive Order 13-01, signed by Governor Mark Dayton, was filed on January 28, 2013. The Court notes that, although an Executive Order was filed four days after counsel met with the Court, there was no discussion of it with the Court by any of the parties prior to its entry, and there has been no explanation since its entry as to its relationship to, or its impact on, the Settlement Agreement, if any. The Executive Order purports to address Olmstead issues, which means that the issuance of the order must have been discussed sometime prior to January 28, 2013, with a number of individuals and departments, including the Minnesota Department of Human Services, as well as perhaps Plaintiffs’ counsel.
On January 29, 2013, the day after the issuance of the Executive Order, the Court received a letter from Plaintiffs’ counsel, which addressed not only David Ferleger’s role and Plaintiffs’ recommendations for a change in procedural protocol to include quarterly reports, but also recommended that monthly meetings with David Ferleger be discontinued as unnecessary. In response to the January 29, 2013 letter from Plaintiffs’ counsel, the Court received a letter dated January 30, 2013, bearing the signature of Steven Alpert, which objected to Plaintiffs’ proposal as it related to David Ferleger’s role. The Court was then provided with an order drafted by David Ferleger entitled “Correction Order,” dated February 1, 2013, which involved a November 27-30, 2012 licensing review of the Minnesota Specialty Health System at Cambridge, the purpose of
3

which was to determine its compliance or noncompliance with state and federal laws and rules governing the provision of residential services to persons with developmental disabilities, including not only Minnesota Chapter 245B, but also the licensing variance, effective January 3, 2012. The Court received a stipulation of the parties, dated February 4, 2013, and a proposed order, on or about February 19, 2013, which adopted in substantial part, the parties’ stipulation.
In addition to the parties’ submissions, the Court also received David Ferleger’s response to the Court’s January 23, 2013 letter referenced above. The Court also received a letter from Deputy Commissioner Ann Barry dated February 19, 2013, which not only asserted compliance with the parties’ Settlement Agreement, but also addressed budgetary issues with respect to David Ferleger’s role as well as objections to his most recent invoice (which the Court addressed in a separate order). On February 22, 2013, the Court received a Preliminary Report on Client and Staff Safety from David Ferleger. Then, on February 24, 2013, the Court received a letter from Plaintiffs’ counsel asserting that they did not concede that the stipulation represented the parties’ view of compliance with the Settlement Agreement. Finally, the Court received a request on March 4, 2013, from Plaintiffs’ counsel to schedule a conference with the Court to discuss resolution of Plaintiffs’ Motion to Enforce Settlement, as well as the status of the case. At that time, the Court was informed that counsel for Defendants also agreed to scheduling a conference to discuss the status of Plaintiffs’ Motion to Enforce Settlement.
Based upon the submissions of the parties, including the submissions of David Ferleger, the Court’s concern with the status of the case, as well as the issues of
4

compliance and noncompliance, and the Court having reviewed the procedural history of this case, and the Court being otherwise duly advised in the premises, the Court hereby enters the following:
ORDER 1. Status Conference By this Order, the Court will respectfully direct Brenda Schaffer, the Court’s Calendar Clerk, to set up a chambers conference for all counsel and to verify with respective counsel who should and will be in attendance at the conference. 2. In the context of the issue of noncompliance with the original Settlement Agreement (Doc. No. 104), the Court respectfully declines, absent further order of the Court, to modify the role of David Ferleger or to otherwise approve the stipulation of the parties at this time. However, once the Court has had an opportunity to meet with counsel for each party and has established the role of Mr. Ferleger (with or without agreement of the parties), the Court then expects Deputy Commissioner Ann Barry and David Ferleger to meet and to utilize their best efforts to agree on a budget for David Ferleger. Moreover, the Court intends to inform the parties at the status conference that given the status of the case, including the issues of noncompliance, the focus of David Ferleger will be to evaluate compliance and noncompliance issues vis-à-vis a mediation approach. Consequently, with or without agreement of the parties, the Court will establish the role and function of David Ferleger, as well as establish the budget for his services, if the parties are unable to reach an agreement.
5

3. The Court expressly reserves the right to request the assistance of the United States Department of Justice, Civil Rights Division, with respect to compliance issues with the Settlement Agreement and the Orders of this Court.

Dated: March 19, 2013

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

MEMORANDUM The Court will end this Order in the same tone it ended its Order on December 20, 2012. The Court did not question, even for a moment, respective counsel’s statements and their passion and sincerity during the settlement discussions, or their statements and representations on December 1, 2011, when the Settlement Agreement was approved by the Court. Sadly, however, careful scrutiny of the progress or, more accurately stated, the lack of progress that has been made since the hearing on December 1, 2011, establishes that that same passion, spirit, and the good intentions behind that passion, care, and concern for those individuals with developmental disabilities, has been absent for most of the last 16 months. The Court must also bear some responsibility for the status of this case, since it approved the original Settlement Agreement. The Court is becoming increasingly concerned that a large number of individuals with developmental disabilities and their families, friends, and loved ones will soon be before this Court proclaiming that, contrary to the intent of the Settlement Agreement, the representations of all parties concerned during the settlement discussions, and at the
6

December 1, 2011 hearing, nothing has changed. Time will tell if individuals with developmental disabilities will truly benefit from the Settlement Agreement.
D.W.F.
7

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, et al.,

Civil No. 09-1775 (DWF/FLN)

Plaintiffs,

v.

ORDER

Minnesota Department of Human Services, et al.,

Defendants.

WHEREAS, this Court has issued several orders in this matter stating the Court’s intent that the settlement amounts will not affect, in any way, a Class Member’s eligibility for disability benefits or other related benefits, or otherwise jeopardize the Class Member’s benefits or programming. (See Doc. No. 136, December 5, 2011, Final Approval Order (“December 5 Order”) ¶ 7 (“The Court finds and concludes that, both legally and as a matter of equity and fairness, the individual settlement amount being awarded to each individual Class Member is not a resource for eligibility purposes and, consequently, an individual settlement amount will not affect, in any way, a Class Member’s eligibility for disability benefits or other related benefits, or otherwise jeopardize the Class Member’s benefits or programming. This provision contemplates that if any agency, entity, or individual, private or public, disputes the Court’s jurisdiction to make this finding, both as a matter of law and equity; or, contends that a Class Member’s eligibility should be affected, the entity or individual must file a motion and come before this Court to address the claim.”); Doc. No. 140, January 30, 2012, Order at

n.2 (quoting same and stating: “The Court expressly finds that the apportioned amounts are not deemed income, a tax liability, or a resource to any Class Member. To treat the individual awards as such would be contrary to the December 5 Order and the intent of all parties to the Settlement Agreement.”)); (See Doc. No. 144, April 23, 2012) (April 23 Order) (further clarifying and precluding the expenditure of Settlement Funds for “costs of care,” unpaid bills or rent, and noting that the settlement funds are not a “resource,” are consistent with the use of a conservatorship account or blocked account, and mean that the Settlement Funds shall not be available or used for “support or maintenance,” including expenditures for food, clothing or shelter.); and
WHEREAS, the Court has been informed that the Social Security Administration has requested from the Minnesota Department of Human Services certain non-public information regarding the Class Members in order to effectuate the Court’s Orders in this matter, including the list of Class Members and payments amounts authorized in this matter, along with each such Class Member’s social security number,
IT IS HEREBY ORDERED: 1. The Minnesota Department of Human Services shall make available to the appropriate office(s) of the Social Security Administration, the list of Class Members authorized to receive payments in this matter, the amount of the payment, along with that Class Member’s social security number. 2. The Social Security Administration shall use this information solely for the purposes it was requested: to effectuate the Court’s Orders in this matter to assure that the funds awarded to each individual Class Member is not a resource for eligibility
2

purposes and, consequently, an individual settlement amount will not affect, in any way,

a Class Member’s eligibility for disability benefits or other related benefits, or otherwise

jeopardize the Class Member’s benefits or programming.

3. That all other Orders in this matter shall otherwise remain in full force and

effect.

Dated: May 21, 2012

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

3

 
 Jensen v. Minnesota Dept. of Human Services, Not Reported in F.Supp.2d (2011)

2011 WL 6178845 Only the Westlaw citation is currently available.
United States District Court, D. Minnesota.
James and Lorie JENSEN, as parents, guardians and next friends of Bradley J. Jensen; James
Brinker and Darren Allen, as parents, guardians and next friends of Thomas M. Allbrink; Elizabeth
Jacobs, as parent, guardian and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs, v.
MINNESOTA DEPARTMENT OF HUMAN SERVICES, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options,
a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually, and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and State of Minnesota, Defendants.
Civil No. 09–1775 (DWF/FLN). | Dec. 5, 2011.
Attorneys and Law Firms
M. Ann Mullin, Esq., Mark R. Azman, Esq., and Shamus P. O’Meara, Esq., Johnson & Condon, PA, for Plaintiffs.
P. Kenneth Kohnstamm and Steven H. Alpert, Assistant Attorneys General, Minnesota Attorney General’s Office, for State Defendants.
Samuel D. Orbovich, Esq., and Christopher A. Stafford, Esq., Fredrikson & Byron, PA, for Defendant Scott TenNapel.
Opinion

FINAL APPROVAL ORDER FOR STIPULATED CLASS ACTION SETTLEMENT AGREEMENT
DONOVAN W. FRANK, District Judge.
*1 This matter came duly on for a Fairness Hearing on December 1, 2011, before the Honorable Judge Donovan Frank upon Plaintiffs’ Petition for Final Approval of Stipulated Class Action Settlement Agreement (Doc. No. [104] ), and Application for Attorneys’ Fees and Costs (Doc. No. [122] ). All parties appeared through counsel.
The Court being duly advised in the premises, having heard the arguments of counsel, and considered all filings of record hereby makes the following:
ORDER
1. Plaintiffs’ Petition for Final Approval of Stipulated Class Action Settlement Agreement (Doc. No. [104] ), and Application for Attorneys’ Fees and Costs (Doc. No. [122] ) is hereby GRANTED.
2. The certification of the Settlement Class is hereby ratified and the Settlement Agreement (“Agreement”), attached as “Final Approval Order Exhibit A” and expressly incorporated herein, is approved and its terms adjudged to be fair, reasonable, adequate and in the best interests of the Settlement Class Members, and it is hereby ordered that the parties are directed to consummate the Agreement in accordance with its terms, and this Court hereby reserves continuing jurisdiction for the time period set forth in the Agreement to enforce compliance with the provisions of the Agreement and the Judgment, as well as assuring proper distribution of the Settlement payments.
3. This Action, and all claims released in the Agreement against the State and its agencies as well as Defendants Douglas Bratvold and Scott TenNapel, in their official and individual capacities, are hereby DISMISSED WITH PREJUDICE, and without costs to any party.
4. Pursuant to Paragraph XIV.B. of the Stipulated Class Action Settlement Agreement, incorporated herein as
1

Jensen v. Minnesota Dept. of Human Services, Not Reported in F.Supp.2d (2011)

Final Approval Order Exhibit A, and this Court’s Order governing the Final List of Opt–Outs (Doc. No. [129] ), the Settlement Amount of $3,000,000 is hereby reduced by $23,600, for a reduced Settlement Amount of $2,976,400.
5. By separate Order, the Court shall determine how the reduced Settlement Amount, minus attorneys’ fees and costs awarded below, shall be apportioned amongst Plaintiffs and those Class Members who submitted Claim Forms, and further determine how any remaining amounts shall be distributed in accordance with the terms of the Agreement.
6. Settlement Class Members and Plaintiffs are permanently barred and enjoined from asserting, commencing, prosecuting or continuing any of the Claims which are settled and/or released in the Agreement.
7. The Court finds and concludes that, both legally and as a matter of equity and fairness, the individual settlement amount being awarded to each individual class member is not a resource for eligibility purposes and, consequently, an individual settlement amount will not affect, in any way, a Class Member’s eligibility for disability benefits or other related benefits, or otherwise jeopardize the Class Member’s benefits or programming.
This provision contemplates that if any agency, entity, or individual, private or public, disputes the Court’s jurisdiction to make this finding, both as a matter of law and equity; or, contends that a Class Member’s eligibility

should be affected, the entity or individual must file a motion and come before this Court to address the claim. The Court also incorporates into this paragraph its remarks off the bench at the December 1, 2011 hearing.
*2 8. Settlement Class Counsel shall be paid $992,133.33, representing one-third (1/3) of the $2,976,400 reduced Settlement Amount as reasonable attorneys’ fees and costs. The Court finds that a one-third contingent fee is a fair and reasonable fee considering the complexity of the issues and the substantial efforts of Settlement Class Counsel in this matter, and considering the significant benefits the Settlement affords to the Class and all people with developmental disabilities in the state of Minnesota. With respect to the Court’s finding and conclusion that the attorneys’ fees are fair and reasonable, the Court also incorporates into this paragraph its remarks off the bench on December 1, 2011.
9. Defendants shall pay the entire $2,976,400 reduced Settlement Amount to Settlement Class Counsel’s trust account within fourteen (14) days of this Order and entry of Judgment approving the Class Action Settlement Agreement. Settlement Class Counsel is authorized to pay itself $992,133.33 from the reduced Settlement Amount for approved attorneys’ fees and costs.
LET JUDGMENT BE ENTERED ACCORDINGLY FORTHWITH.
	  

2

 
 CASE 0:09-cv-01775-DWF-FLN Document 183 Filed 11/21/12 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, Guardians and next friends of Bradley J. Jensen, et al.,
Plaintiffs
v.
Minnesota Department of Human Services, an agency of the State of Minnesota, et al.,
Defendants

Civil No. 09B1775 (DWF/FLN)

Independent Consultant and Monitor
THIRD REPORT TO THE COURT: Amendments to the Settlement Agreement

November 16, 2012

David Ferleger Archways Professional Building 413 Johnson Street Jenkintown, PA 19046 Phone: (215) 887B0123 Fax: (215) 887B0133 david@ferleger.com
Independent Consultant and Monitor

1

CASE 0:09-cv-01775-DWF-FLN Document 183 Filed 11/21/12 Page 2 of 3
Amendments to Settlement Agreement
For the last couple months, the monitor has been discussing with the parties possible amendments to the Settlement Agreement with respect to restraints, timing of notice of restraint use to the internal reviewer, and the external reviewer. Except for the prohibition of all mechanical restraint, none of the amendments affect the major substantive provisions of the settlement.
The amendments attached to this draft report in the form of a proposed order are acceptable to the parties. Therefore, there need be no waiting period for response. The monitor respectfully submits the proposal to the Court for its consideration and, if accepted, adoption.
The areas covered by the amendments are:
Prohibition of All Mechanical Restraint. In a development acknowledged by the parties to be noteworthy and very positive, the parties have agreed to amend the settlement to prohibit all mechanical restraints, including in emergency situations. Currently, the settlement permits emergency use of two types of mechanical restraint (Velcro soft cuffs and fabric ankle straps). The amendment prohibits even the emergency use of these mechanical restraints. The Department’s clinical and administrative judgment is that this change is appropriate. Plaintiffs agree. I strongly support the parties in this regard.
The amendment would incorporate that change, and would require the Department to modify the relevant policy and reporting form after submission of draft revisions to the plaintiffs and monitor.
Restraint Reporting. There had been an internal inconsistency on the timing of notice of restraint use to the Department’s internal reviewer (24 hours v. one business day). The inconsistency is removed by providing for notice within 24 hours but no later than one business day.
External Reviewer Role. It is agreed that the functions of the settlement’s external reviewer will be incorporated into the responsibilities of the Court’s Independent Consultant and Monitor. The amendment renames and amends the relevant section of the Settlement Agreement.1
1 SubBparagraphs 4 and 5 of the new Section VII.B. each refer to a single quarterly report.
2

CASE 0:09-cv-01775-DWF-FLN Document 183 Filed 11/21/12 Page 3 of 3 The monitor respectfully recommends approval of the attached proposed order.
Respectfully submitted, /s/ David Ferleger David Ferleger Archways Professional Building 413 Johnson Street Jenkintown, PA 19046 Phone: (215) 887B0123 Fax: (610) 672B9680 david@ferleger.com Independent Consultant and Monitor
3

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
v.
Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually, and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and State of Minnesota,
Defendants.

Civil No. 09-1775 (DWF/FLN)
AMENDED ORDER AND MEMORANDUM

Margaret Ann Santos, Esq., Mark R. Azman, Esq., and Shamus P. O’Meara, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

Steven H. Alpert and Scott H. Ikeda, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants. Samuel D. Orbovich, Esq., and Christopher A. Stafford, Esq., Fredrikson & Byron, PA, counsel for Defendant Scott TenNapel.
On April 25, 2013, the Court issued an Amended Order and Memorandum (“Order of April 25, 2013”) in this matter and again expressed its continued concern over the status of the case and its ongoing concern with noncompliance with the Settlement Agreement by the Defendants. (Doc. No. 212.) The Court remains concerned with the status of compliance or noncompliance by the Defendants with the provisions of the Stipulated Class Action Settlement Agreement (“Settlement Agreement”), (Doc. No. 104), and its impact on the individuals with developmental disabilities who are Class Members and, in light of the promises made by the parties at the December 1, 2011 hearing for final approval of the Settlement Agreement, the promises and representations to all individuals with developmental disabilities.
Based upon the presentations and submissions of the parties since the Court’s Order of April 25, 2013, including the submissions of the Court Monitor, and given the continued concerns of this Court, as noted above, relating to the status of the case and ongoing concerns with noncompliance with the Settlement Agreement by the Defendants; the Court having again reviewed the procedural history of the case; and the Court being otherwise duly advised in the premises, the Court hereby enters the following:
2

ORDER 1. Extension of Jurisdiction The Court, having been advised by the Court Monitor that the parties have agreed that the Court’s retention of jurisdiction over the above-entitled matter may be extended for an additional year to December 4, 2014, beyond the current December 4, 2013 date, pursuant to Section XVIII.B. of the Settlement Agreement, the Court hereby extends its jurisdiction over this matter to December 4, 2014. However, the Court expressly reserves the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of compliance by the Defendants with the specific provisions of the Settlement Agreement, absent stipulation of the parties. 2. On or before October 15, 2013, the Minnesota Department of Human Services (“the DHS”) shall submit a proposed Implementation Plan for the Court’s review and approval, having first submitted by October 4, 2013 a draft of the proposed plan to the Court Monitor and the Plaintiffs. The Implementation Plan shall encompass the Settlement Agreement requirements (aside from Rule 40 and the Olmstead Plan), shall be keyed to the Evaluation Criteria as set or amended by the Court Monitor, and shall include: tasks, specific deadlines for each task, persons responsible, anticipated obstacles or challenges, actions to be taken to overcome such obstacles or challenges, and resources required. The Implementation Plan shall also include a separate chronological timetable of tasks and deadlines to facilitate tracking and reporting. The Implementation Plan format shall be subject to approval by the Court Monitor and submitted to him forthwith. Monthly updates to the Implementation Plan shall include activities
3

undertaken pursuant to the Plan, documentation of such activities, and any requests for modification of the Plan’s deadlines or other elements.
3. With regard to the replacement of the Cambridge facility with community-based services, the Implementation Plan required above shall separately include: (a) a timetable for all tasks and activities; (b) identification of resources to be reallocated to the community services, including funding and staffing for such services; (c) the nature, quantity and location of the community-based services (residential and non-residential), sufficient to serve current Cambridge clients and those who would otherwise be served if the Cambridge facility had been maintained; and (d) a description of the mechanisms through which the DHS will carefully track and monitor the replacement process. The monthly updates to this section of the Implementation Plan shall provide the above information, as then current, together with information, including Settlement Agreement-required Transition Plans, for each person who leaves the Cambridge facility on or after the date of this Order. The monthly updates shall also include activities undertaken pursuant to the Plan, documentation of such activities, and any requests for modification of the Plan’s deadlines or other elements.
4. With regard to implementation of the Rule 40 modernization, on or before October 30, 2013, the DHS shall submit a proposed Rule 40 Implementation Plan for the Court’s review and approval, having first submitted by October 15, 2013 a draft of the proposed plan to the Court Monitor and the Plaintiffs. The Rule 40 Implementation Plan shall comply with the DHS’ own commitment, that is, that it will “[d]evelop an implementation plan that adopts the recommendations of the Advisory Committee,
4

including a phased implementation plan that provides for the necessary training and technical assistance to support best practices, and a plan for the oversight, and monitoring of provider practices and any emergency use of restraint or seclusion.”1 It shall include: tasks, specific deadlines for each task, persons responsible, anticipated obstacles or challenges, actions to be taken to overcome such obstacles or challenges, and resources required. The Rule 40 Implementation Plan shall also include a separate chronological timetable of tasks and deadlines to facilitate tracking and reporting. The Rule 40 Implementation Plan format shall be subject to approval by the Court Monitor. Monthly updates to the Implementation Plan shall include activities undertaken pursuant to the Plan, documentation of such activities, and any requests for modification of the Plan’s deadlines or other elements.
5. With regard to implementation of the Olmstead Plan, which is due from the State and the DHS by November 1, 2013 for the Court’s review and approval, the State and the DHS shall submit a proposed Implementation Plan within the Olmstead Plan. The Olmstead Plan shall also include a separate chronological timetable of tasks and
1 From the “Department’s Closing Words,” Rule 40 Advisory Committee Recommendations on Best Practices and Modernization of Rule 40, Final Version (July 2, 2013) at 36 (Doc. No. 219):
Among other steps, the Department will seek legislative and rule changes pursuant to the Recommendations, and will “[d]evelop an implementation plan that adopts the recommendations of the Advisory Committee, including a phased implementation plan that provides for the necessary training and technical assistance to support best practices, and a plan for the oversight, and monitoring of provider practices and any emergency use of restraint or seclusion.”
5

deadlines to facilitate tracking and reporting and for regular updates to the Court setting forth the status and progress in implementation. Updates to the Olmstead Implementation Plan shall include activities undertaken pursuant to the Plan, documentation of such activities, and any requests for modification of the Plan’s deadlines or other elements.
6. Any requests for modification of due dates under the above provisions of this Order and Memorandum, or for modification of the Plans’ deadlines or other elements, shall be in writing, for good cause shown, and shall, in the first instance, be addressed and resolved by the Court Monitor, subject to review by the Court on written application by any party.
7. In light of the pending replacement of the Cambridge facility, and the submission by Defendants of implementation plans under this Order and Memorandum, the Court Monitor need not submit a comprehensive quarterly report this Fall, 2013, but may submit compliance or other reports which may advise the Court on matters of concern. After submission of the DHS’s Implementation Plan under Paragraphs 2 and 3 above, the Court Monitor is requested to provide the parties and the Court with a monitoring plan, which may address resumption of quarterly and other reports.
8. The Court specifically and respectfully directs the Court Monitor and Deputy Commissioner Anne Barry to discuss and seek an agreement on the amount of an additional deposit to the Court’s Registry to not only accommodate the additional responsibilities of the Court Monitor, as described herein, but to carry out the provisions
6

of the Settlement Agreement in the best interests of all parties concerned, absent

stipulation of the parties and approval of the Court.

Dated: August 28, 2013

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

MEMORANDUM The historic settlement in this litigation was hailed by Plaintiffs and Defendants alike as one which would fundamentally improve the lives of individuals with disabilities in Minnesota and serve as a national model. The settlement’s innovations were both with regard to replacement of mechanical and other restraints with positive behavioral supports and development of a comprehensive all-disabilities plan to implement the Supreme Court’s decision under the Americans with Disabilities Act in Olmstead v. L.C., 527 U.S. 581 (1999). While there has been some progress, the results thus far have been disappointing and have been attended by non-compliance with the order approving the settlement. This Order and Memorandum sets forth some of the background, summarizes elements of the non-compliance and Defendants’ failure to fulfill their obligations in a timely manner, and, in lieu of contempt and other sanctions, requires the submission of specific implementation plans for the Court’s review and approval. On July 17, 2012, seven months after approval of the Settlement Agreement in this case, the Court found that Defendants had not complied with an important element of its obligations and that there were gaps and deficiencies in Defendants’ reporting and the

7

Court appointed David Ferleger as its “independent advisor to the Court to assess and
monitor implementation of the Settlement Agreement.” Order of July 17, 2012 at 11
(Doc. No. 159).
Almost a year later, on June 11, 2013, the Court Monitor filed the Independent
Consultant and Monitor: Status Report on Compliance (June 11, 2013) (Doc. No. 217)
(hereafter, “Status Report on Compliance,” a 149-page report bound with 113 pages of
appendices, together with a separate voluminous volume of exhibits). The Court Monitor
rated 57 items as in compliance and 31 in non-compliance. Significantly, 59% of the
items in the Quality of Life category were found in substantial non-compliance.
Plaintiffs responded to the Status Report on Compliance that Defendants have a
“long history of non-compliance and failure to properly implement the Settlement
Agreement” and that “further reliance on DHS to properly and timely implement the
Settlement Agreement places at risk the Settlement Class and the rights of people with
developmental disabilities affected by the Settlement Agreement.” Defendants agreed
that there is “still work to be done” to achieve compliance:
The Department believes it has significantly improved the care and treatment provided to individuals with developmental disabilities, including but not limited to the individuals residing at Minnesota Specialty Health Services – Cambridge and MSOCS Transition Home (collectively “Cambridge”). However, the Department recognizes that there is still work to be done. As further discussed below, the Department is actively working to address the concerns raised in the Report, and strives to achieve and maintain substantial compliance with the terms of the Settlement Agreement in the coming months.2 2 Defendants’ letter to the Monitor, June 4, 2013, at 1, attached to Monitor’s Status Report on Compliance at 215.
8

On non-compliance, Defendants candidly agree with the Monitor’s non-compliance assessments with regard to their:
a. Failure to hire Behavior Analysts with the required professional qualifications (EC 84A).3
b. Failure to timely issue Olmstead Committee recommendations (EC 86).
c. Failure to have the Cambridge facility licensed for months, and failure to inform the Court and Plaintiffs of that status (EC 1A).
d. Failure to timely notify all parties of restraint use in January 2012 (EC 32-38 and EC 41).
e. Failure to document reasons for visitor restrictions for a Cambridge resident (EC 66 and 68).
f. Failure to eliminate references to the term “mental retardation” on its website (EC 99),
g. Failure to post the Health Care Bill of Rights, and to do so in understandable language (EC 72 and 73).
In addition, Defendants do not contest the Court Monitor’s non-compliance findings with regard to (a) the fundamental quality of life indicators of compliance at the Cambridge facility with the requirements of the Supreme Court’s decision in Olmstead and the settlement’s requirement to consistently employ professional best practices in its
3 Shortly after his appointment, the Court Monitor extracted 100 evaluation criteria from the Settlement Agreement text. The Court Monitor and the parties have utilized these numbered Evaluation Criteria (“EC”) to identify specific topics through which compliance may be reported and assessed.
9

treatment and care of its residents (EC 2 and EC 3); and (b) the transition planning requirements (EC 54-60).4
“As the Court expressed in its Order of July 17, 2012, appointing the monitor, the
Court expects its orders to be implemented fully and promptly.” Order of November 5,
2012 (Doc. No. 178). Defendants are not free to defer or to pick and choose which
provisions and directives of the Settlement Agreement to comply with. The Court has an
“obligation to oversee, facilitate, and, yes, enforce compliance with the terms of this
Settlement Agreement that will benefit so many for years to come.” Order of July 17,
2012 at 12. (Doc. No. 159). See Order of December 20, 2012 at 3 (Doc. No. 188) (same).
The Court continues to be extremely concerned with the sluggish pace of
implementation of the specific terms of the Settlement Agreement and the resulting noncompliance.5 Months ago and more recently, the Court critiqued the uncontested
deficits in compliance. Order of December 20, 2012 (Doc. No. 188) (setting status
conference on compliance); Order of March 19, 2013 at 6 (Doc. No. 205) (“lack of
4 With regard to Transition Planning, the Court Monitor found that Defendants failed to (1) ensure the most integrated appropriate setting for each of its residents (EC 54); (2) actively pursue discharge with transition plans (EC 55); (3) ensure that each resident’s family is actively involved in the transition planning (EC 56); (4) engage in person-centered planning at each transition stage (EC 57); (5) work to honor each resident’s choice (EC 58); (6) demonstrate its best efforts for placement alternatives (EC 59); and (7) implement transition planning in accordance with Olmstead (EC 60). 5 “The Court deems this an opportune and appropriate time to consider the pace of Defendants’ implementation of the obligations they undertook both as to the facility and system-wide, including but not limited to community integration under Olmstead v. L.C., . . . .” Order of November 5, 2012 at 2 (Doc. No. 179) (setting status conference). See Letter to Parties, November 12, 2012 (Doc. No. 184) (noting review of pace of implementation).
10

progress that has been made since the hearing on December 1, 2011” to approve the settlement); Order of April 25, 2013 at 10 (Doc. No. 212) (Court’s continued concern with Defendants’ compliance with the Settlement Agreement.”).6 Due to concern regarding Defendants’ non-compliance, the Court informed the parties that the Court Monitor’s focus would shift from a mediation approach to an evaluative approach of rendering opinions and conclusions on compliance. Order of March 19, 2013 at 5 (Doc. No. 205). This was confirmed the following month. Order of April 25, 2013 (Doc. No. 212) (directing compliance investigations and reports).
For months, the Court has, without success, sought Defendants’ voluntary establishment of an implementation plan for the Settlement Agreement. E.g., Court’s Letter to the Parties of January 9, 2013 (Doc. No. 192) (“[t]he primary purpose of this letter is to urge all of the parties to do their best to develop an implementation plan. . . .”); Order of March 19, 2013 at 2 (Doc. No. 205) (urging development of implementation plan). The Court Monitor has echoed concern over the absence of such a plan. Monitor’s Response to Court’s January 23, 2013 Letter at 5 (Feb. 4, 2013) (Doc. No. 198) (no implementation plan exists; “Defendants have not yet put sufficient shoulders to the Jensen wheel.”); Status Report on Compliance at 40 (“There is no roadmap for implementation of the settlement agreement.”).
6 Months before his June 11, 2013 Status Report on Compliance, the Court Monitor expressed concern. See, e.g., Monitor’s Response to Court’s January 23, 2013 Letter at 4-6 (Feb. 4, 2013) (Doc. No. 198) (stating areas of non–compliance, including those conceded by Defendants).
11

For several reasons, it is evident that heightened supervision of Defendants’
actions is appropriate at this time. Two reasons are set forth above: compliance
continues to be insufficient and Defendants have not established a comprehensive implementation plan.7 In addition, as explained below, Court must take into account the
planned closure of the Cambridge facility and the implementation of the Rule 40
modernization and the Olmstead Plan.
The Cambridge facility’s annual budget for FY 2013 is $4,123,678. Its FY 2013
per diem rate per client is $1,264 per day per client. Unlike other state-operated
institutions, Minnesota does not receive any federal reimbursement for
MSHS-Cambridge. Status Report on Compliance at 12. With the completion of the
Court Monitor’s June 11, 2013 Status Report on Compliance, Defendants announced that the Cambridge facility would be replaced with community services.8 This is not a
particular surprise. The Settlement Agreement itself contemplated that it would continue to apply to “any successor” to METO.9 It is critical that Defendants set forth for the
7 The “action plan,” which Defendants promised in response to the monitor’s Status Report on Compliance, is not described as comprehensive as to either the basic terms of the Settlement Agreement or the Rule 40 modernization and Olmstead Plan which the settlement incorporates. 8 The Defendants intend to develop “individually tailored services and supports that safely support individuals in the most integrated setting” and to “repurpose Cambridge’s campus-based facility.” “This will be accomplished by reallocating resources to community- based services. . . .” Defendants’ June 4, 2013 Letter to the Court Monitor, at 2 and 8, Appendix to Court Monitor’s Status Report on Compliance. 9 E.g., Settlement Agreement, Section III (definition of “scope”) and Section IV (“Any successor to METO shall . . . .” The Rule 40 changes and the Olmstead Plan, of course, apply to such successors.
12

Court’s review a detailed plan for the closure which will ensure that current Cambridge
residents and the residents of replacement services will be served in compliance with the
requirements of Section IV of the Settlement Agreement,10 the Transition Plan
requirements at Section VIII, and the other relevant provisions of the Settlement
Agreement. Additionally, Defendants will advise the Court whether and how the funds
currently allocated to Cambridge, and/or other resources, will–in Defendants’ own
words–be “reallocated to community-based services.”11
The settlement requires implementation of two state-wide initiatives: the
Olmstead Plan and the Rule 40 modernization. Defendants will be required to submit
implementation plans for these efforts. The Olmstead Plan was not completed by its
original due date and is now due from the State and the DHS by November 1, 2013. 12
The all-disability state-wide changes under that plan are expected to be substantial. The
Rule 40 blueprint was completed very recently and is yet to be implemented. It is titled
10 Section IV requires compliance with Olmstead, person-centered planning principles and positive behavior support consistent with applicable best practices, licensure to serve people with developmental disabilities, and to only serve Minnesotans who meet the admission criteria set forth in that paragraph. 11 The settlement provides that State Operated Community Support Services (“CSS”) “will be expanded in an effort to deliver the right care at the right time in the most integrated setting for people with developmental disabilities” in accordance with the U.S. Supreme Court decision in Olmstead v. L.C.” Settlement Agreement, Section X.A. Also, Section X.B. Olmstead v. L.C., id. 12 “By November 1, 2013, the State and the DHS shall develop and implement a comprehensive Olmstead Plan that: uses measurable goals to increase the number of people with disabilities receiving services that best meet their individual needs, in the “Most Integrated Setting”; and is consistent and in accord with the U.S. Supreme Court’s decision in Olmstead. Order of April 25, 2013 at 9 (Doc. No. 212). The November 1, 2013 date is five months after the due date under the Settlement Agreement.
13

Rule 40 Advisory Committee Recommendations on Best Practices and Modernization of Rule 40, Final Version (July 2, 2013) (“Recommendations”) (Doc. No. 219). A lengthy implementation effort is anticipated.13
The Court Monitor’s responsibilities have changed in light of the Defendants’ recent decision to close the Cambridge facility, together with the establishment of successor facilities, preparation for monitoring implementation of the Rule 40 initiative and the Olmstead Plan, and the related review of Anoka Regional Treatment Center and Minnesota Security Hospital and of former METO and Cambridge residents in the community recently directed by the Court. Letter to Court Monitor, August 5, 2013 (Doc. No. 220). Consequently, the Court directs the Defendants and the Court Monitor to discuss the current budget for 2013 with the goal of modifying that budget to accommodate the changes noted herein.
As the Court noted in its Order of April 25, 2013, it will not repeat the observations it made in prior orders and memorandums. (Doc. Nos. 159, 188, 204, 212.)
13 From the “Department’s Closing Words,” Rule 40 Advisory Committee Recommendations on Best Practices and Modernization of Rule 40, Final Version (July 2, 2013) at 36 (Doc. No. 219).
Among other steps, the Department will seek legislative and rule changes pursuant to the Recommendations, and will “develop an implementation plan that adopts the recommendations of the Advisory Committee, including a phased implementation plan that provides for the necessary training and technical assistance to support best practices, and a plan for the oversight, and monitoring of provider practices and any emergency use of restraint or seclusion.
14

The Court continues to be extremely concerned with the lack of progress in carrying out not only the provisions of the Settlement Agreement that were announced in the courtroom on December 1, 2011, but, frankly speaking, as the Court has noted before, large number of individuals with developmental disabilities, their families, friends, and loved ones have either lost faith in the Court and the parties involved in this case or will lose faith and trust in the immediate future if, for whatever reasons, the parties do not carry out the intent of the provisions of the Settlement Agreement which were truly intended, as everyone knows, to benefit individuals with disabilities in a truly sincere, meaningful, and significant way. Hopefully, that can be done without an order to show cause or contempt proceedings so that the resources of all parties concerned can be focused on individuals with developmental disabilities in the communities within which they are living or hope to be living. The intent and the spirit of the Settlement Agreement requires no less. Justice requires no less.
D.W.F.
15

 
 CASE 0:09-cv-01775-DWF-BRT Document 237 Filed 10/17/13 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
v.
Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually, and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and State of Minnesota,
Defendants.

Civil No. 09-1775 (DWF/FLN) ORDER

Margaret Ann Santos, Esq., Mark R. Azman, Esq., and Shamus P. O’Meara, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

CASE 0:09-cv-01775-DWF-BRT Document 237 Filed 10/17/13 Page 2 of 3
Steven H. Alpert and Scott H. Ikeda, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants. Samuel D. Orbovich, Esq., and Christopher A. Stafford, Esq., Fredrikson & Byron, PA, counsel for Defendant Scott TenNapel.
This order is issued in response to the October 16, 2013 request of the Court Monitor for an order that he have the responsibility to finalize the Department of Human Services Implementation Plan for the Settlement Agreement Evaluation Criteria and Cambridge Closure which was timely submitted by DHS on October 15, 2013, pursuant to the Order of August 27, 2013.1 The parties do not object to this request.
IT IS HEREBY ORDERED: 1. The Court Monitor’s request is GRANTED. He shall have the responsibility and authority to finalize the Department of Human Services Plan for the Settlement Agreement Evaluation Criteria and Cambridge Closure (“Plan”) which was timely submitted by DHS on October 15, 2013 pursuant to the Order of August 27, 2013. The Court Monitor may utilize the assistance of one or more consultants. 2. The Court Monitor shall implement this order in cooperation with Deputy Commissioner Anne Barry, who shall ensure the availability of appropriate DHS staff and the provision of documents and other resources requested by the Court Monitor or his consultants. The Court Monitor has also committed to the participation in this process of 1 The Court Monitor’s letter-request explains, “The Plan is not yet acceptable, although it is much improved since the October 4 draft on which my consultants and I met with DHS from October 8 through 10. Rather than prepare a detailed analysis, I discussed with Deputy Commissioner Anne Barry the possibility of a cooperative effort” to finalize a plan for the Court’s approval.
2

CASE 0:09-cv-01775-DWF-BRT Document 237 Filed 10/17/13 Page 3 of 3

Plaintiff Class Counsel, and the consultants to the parties, Ms. Roberta Opheim and

Dr. Colleen Wieck.

Dated: October 17, 2013

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

3

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
v.
Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually, and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and State of Minnesota,
Defendants.

Civil No. 09-1775 (DWF/FLN) MEMORANDUM AND ORDER

Margaret Ann Santos, Esq., Mark R. Azman, Esq., and Shamus P. O’Meara, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

Steven H. Alpert and Scott H. Ikeda, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants. Samuel D. Orbovich, Esq., and Christopher A. Stafford, Esq., Fredrikson & Byron, PA, counsel for Defendant Scott TenNapel.
MEMORANDUM Before the Court is Plaintiffs’ Motion for Sanctions (Doc. No. 230) which “seeks to hold the State Defendants accountable for their bad-faith conduct and lack of candor to the Court, Court Monitor, consultants and Settlement Class” (Doc. No. 232 at 1) on account of the operation of the Minnesota Specialty Health System (MSHS) – Cambridge (“Cambridge”) facility without a license required by the Settlement Agreement, and also the concealment of that violation of the Settlement. The Motion was heard on November 25, 2013. The material facts are not in dispute. Cambridge operated in violation of the law for 10 months from its establishment on July 1, 2011 until it was licensed by the Minnesota Department of Health on April 24, 2012. (Doc. No. 217 at 18, 44-47.) The Minnesota Department of Human Services (the “DHS”) did not submit a license application for Cambridge until February 27, 2012. (Doc. No. 243, Ex. C.) As the DHS itself stated to the Court Monitor on June 4, 2013, “Cambridge improperly operated without a SLF license until April 24, 2012.” (Doc. Nos. 243, Ex. D & 217.) The Court approved and adopted the Settlement Agreement by Order of December 5, 2011 (Doc. No. 136); the licensure requirement was thus violated for more
2

than three months since the Settlement Agreement was approved by the Court.1
Defendants put it this way, “DHS’ failure to obtain one of two required licenses for the
MSHS-Cambridge facility is undisputed and, in DHS’ own words, is inexcusable.” (Doc.
No. 241.) At the hearing, Defendants stated that senior DHS officials (although not
Deputy Commissioner Anne Barry, Commissioner Lucinda Jesson, or counsel) knew that
Cambridge was required to be, but was not licensed. Defendants do not deny that they
failed to inform the Court, Court Monitor, or Plaintiffs’ counsel that Cambridge was unlicensed in violation of the order approving the Settlement Agreement.2
Disagreement arises with regard to the appropriateness and amount of sanctions.
Plaintiffs request that a $150,000 “monetary sanction be paid into the Court ordered
cy pres fund set up specifically for people with developmental disabilities and their
families” and $50,000 “for time spent by Settlement Class Counsel representing the
Settlement Class against the DHS’s lack of candor and bad faith conduct over several
months.” (Doc. Nos. 249 at 3, n.2 & 230 at 5.) Defendants urge that they be given credit
1 In addition, the Court notes that operation of Cambridge without a required license is a crime. Minn. Stat. § 144.50, subd. 1 (“(a) No person, partnership, association, or corporation, nor any state, county, or local governmental units, nor any division, department, board, or agency thereof, shall establish, operate, conduct, or maintain in the state any hospital, sanitarium or other institution for the hospitalization or care of human beings without first obtaining a license therefor in the manner provided in sections 144.50 to 144.56 . . . ; (b) A violation of this subdivision is a misdemeanor punishable by a fine of not more than $300. . . .”). 2 At the November 25, 2013 hearing, Defendants’ counsel informed the Court that higher level DHS officials knew of the lack of licensure and did not inform others about it. Counsel further stated that Deputy Commissioner Anne Barry did not know until she read the draft of the February 2013 Legislative Auditor’s report. Even after that report, Defendants and their counsel did not provide notice of the licensing violation.
3

for conceding the violation, once it was reported by the Court Monitor, and that, considering the expense of the independent court monitoring of compliance, the States’ “resources are best spent on ensuring future compliance and on the people DHS serves.” (Doc. No. 241 at 1-2.)
Separate from Plaintiffs’ motion for sanctions at this time, while the Court continues to be concerned about the DHS’s slow pace at coming into compliance with the Settlement Agreement that is now two years old, the only issue before the Court, perhaps unfortunately, is the noncompliance issue with the licensure at Cambridge. The Court respectfully rejects the assertion of the DHS that it should consider as a mitigating factor the cost being paid for by the DHS in monitoring compliance with the Settlement Agreement, since that cost was precipitated by and continues to be caused by the Defendants’ noncompliance or, perhaps more appropriately stated, the DHS’s failure to treat compliance with the specific requirements of the Settlement Agreement as a priority. (Doc. Nos. 159 & 217.)
From the Court’s point of view, had the DHS disclosed Cambridge’s unlicensed status at the settlement approval hearing two years ago, or in the months that followed, the issue could have been addressed at that time. Moreover, had the DHS immediately brought the issue to the attention of the Court at the time of the February 2013 Legislative
4

Auditor’s report, the issue could have been addressed at that time. Unfortunately, it took the June 11, 2013 Court Monitor’s report to bring this issue to the Court’s attention.3
Consequently, the Court finds and concludes that the DHS violated the Settlement Agreement when it failed to obtain the required license for Cambridge. This violation is anything but a trivial or unimportant matter. For example, Cambridge residents and their families were entitled to have a facility which complied with fundamental legal requirements. This Court is more than a mere bystander to this very important Settlement Agreement where all parties promised to improve the quality of life for individuals with disabilities. The Court further finds that the DHS consciously concealed and misled the Plaintiffs and the Court with regard to the lack of licensure, or if not consciously concealed and misled, was indifferent to both the violation and the expectation of candor with all parties, including the Court; conceding the violation once reported by the Court Monitor does not mitigate this in any way. The licensing issue was treated in a cavalier manner to the extent that the issue was not immediately forwarded to the appropriate superiors and acted upon. Moreover, once the Legislative Auditor’s report draft was received at the DHS, the DHS and its counsel should have immediately brought the noncompliance and the status of the nonlicensure to the parties’ and Court’s attention.
CONCLUSION Whether the lapses by the DHS were due to conscious concealment or indifference, the Court needs additional information at this time to decide what sanction, including any 3 The Court Monitor learned of the licensure issue from the Office of Legislative Auditor’s report on the DHS’s State Operated Services (February 2013), cited at Court Monitor, Status Report on Compliance. (Doc. No. 217 at 44-45.)
5

financial sanction, if any, would be appropriate under the circumstances. As the Court noted and ruled off the bench, it will await the report from the Court Monitor on the current status of compliance and on Defendants’ cooperation with the implementation plan required under the Order of August 28, 2013 to make its final decision on appropriate sanctions. (Doc. No. 224; see also Doc. Nos. 237 & 248.)
Sadly, however, as this Court has said on prior occasions, careful scrutiny of the entire lack of progress that has been made since the hearing on December 1, 2011, establishes that the same passion, spirit, and, hopefully, good intentions behind the passion, care, and concern for individuals with developmental disabilities, has been absent since that hearing. Time will tell, sadly or otherwise, if individuals with developmental disabilities will truly benefit from the Settlement Agreement. Unfortunately, as the Court ends yet another order in this case, more than two years have gone by, and the record before the Court confirms that no one’s life has improved, the DHS remains out of compliance, and there exists, as of the date of this order, no road map or implementation plan, as promised by the specific provisions of the Settlement Agreement.
Based upon the presentations of counsel and consistent with the Court’s remarks and ruling off the bench on November 25, 2013, and the Court being otherwise duly advised in the premises, the Court hereby enters the following:
ORDER 1. The Court finds and concludes that Plaintiffs’ Motion for Sanctions (Doc. No. [230]) is GRANTED. However, for the reasons stated off the bench at the time of
6

the hearing and in this Memorandum and Order, the Court reserves ruling on what sanctions are appropriate, pending receipt of the status of compliance by Defendants and the status of the implementation plan required by this Court, noted in the Court’s Memorandum and Order.

Dated: December 17, 2013

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

7

 
 CASE 0:09-cv-01775-DWF-BRT Document 279 Filed 03/10/14 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian and next friend of Jason R. Jacobs; and others similarly situated,

Civil No. 09-1775 (DWF/FLN)

Plaintiffs,

v.

ORDER CONFORMING REVISION

TO ORDER OF DECEMBER 11, 2013

Minnesota Department of Human Services,

an agency of the State of Minnesota; Director,

Minnesota Extended Treatment Options, a

program of the Minnesota Department of

Human Services, an agency of the State of

Minnesota; Clinical Director, the Minnesota

Extended Treatment Options, a program of

the Minnesota Department of Human Services,

an agency of the State of Minnesota; Douglas

Bratvold, individually, and as Director of the

Minnesota Extended Treatment Options, a

program of the Minnesota Department of Human

Services, an agency of the State of Minnesota;

Scott TenNapel, individually and as Clinical

Director of the Minnesota Extended Treatment

Options, a program of the Minnesota Department

of Human Services, an agency of the State of

Minnesota; and State of Minnesota,

Defendants.

Margaret Ann Santos, Esq., Mark R. Azman, Esq., and Shamus P. O’Meara, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

CASE 0:09-cv-01775-DWF-BRT Document 279 Filed 03/10/14 Page 2 of 3
Steven H. Alpert and Scott H. Ikeda, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants. Samuel D. Orbovich, Esq., and Christopher A. Stafford, Esq., Fredrikson & Byron, PA, counsel for Defendant Scott TenNapel.
The Court issued its Order of December 11, 2013 (Doc. No. 257), accepting the parties’ agreed revision to the MSHS-Cambridge restraint policy. See Court Monitor, Report to the Court: Recommended Revision to MSHS-Cambridge Restraint Policy (December 6, 2013), (Doc. No. 256). The order’s Attachment A, the revised policy, is marked with a December 4, 2013 effective date.
The Court Monitor’s report noted that the Department of Human Service’s response to the draft report provided that, “The time for exercise [while in manual restraint] would be changed to 5 minutes out of every 20 minutes.” The Court Monitor stated, “The Monitor assumes that the 20 minutes is intended to mean 15 minutes and this will be corrected.” (emphasis added in both sentences).
MSHS-Cambridge did make that correction, and adopted a superseding policy effective December 20, 2013, marked in Attachment A to this filing at page 6. The Court Monitor recently received this corrected policy.
For clarity in the docket, and to avoid confusion in implementation, the Court Monitor requested the Court to approve and adopt the revision to conform to the expectations in the Court Monitor’s report.
2

CASE 0:09-cv-01775-DWF-BRT Document 279 Filed 03/10/14 Page 3 of 3

ORDER

Upon consideration of the Court Monitor’s suggested confirming revision of the

Order of December 11, 2013 (Doc. No. [257]),

IT IS HEREBY ORDERED that ATTACHMENT A hereto is SUBSTITUTED

for the ATTACHMENT A to the said order.

Dated: March 7, 2014

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

3

Attachment A
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Jensen et al v. Minnesota Department of Human Services et al, Docket No. 0:09-cv-01775 (D. Minn. Jul 10, 2009), Court Docket
General Information

Court
Federal Nature of Suit Docket Number

United States District Court for the District of Minnesota; United States District Court for the District of Minnesota Civil Rights - Other[440] 0:09-cv-01775

© 2018 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 15

 
 CASE 0:09-cv-01775-DWF-FLN Document 297 Filed 04/30/14 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
v.
Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually, and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and State of Minnesota,
Defendants.

Civil No. 09-1775 (DWF/FLN) ORDER

Mark R. Azman, Esq., and Shamus P. O’Meara, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

CASE 0:09-cv-01775-DWF-FLN Document 297 Filed 04/30/14 Page 2 of 3
Steven H. Alpert and Scott H. Ikeda, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants. Samuel D. Orbovich, Esq., and Christopher A. Stafford, Esq., Fredrikson & Byron, PA, counsel for Defendant Scott TenNapel.

The Court has reviewed the Court Monitor’s Memorandum to the Court: Hazards and Possibilities During MSHS-Cambridge’s Final Months (Doc. No. 294) (“Memorandum”), and notes his concern that, “in the closing months of MSHS-Cambridge’s existence, the remaining clients not be ‘orphaned’ and denied the safety, protection and treatment to which they are entitled under the Court’s orders. MSHS-Cambridge’s current residents are to move to community homes by June 30, 2014.1
The Minnesota Department of Human Services has responded to the Court Monitor’s inquiries which preceded the Memorandum. Recalling that this litigation was initiated after the 2009 public exposure of inappropriate and abusive force at MSHSCambridge’s predecessor METO,2 the Court is extremely disappointed that, more than two years after the approval of the Settlement Agreement, for some employees, safety is equated with “a show of force, power and control” in a “legacy of the old institutional way and not the direction we [DHS] are headed.”3 Also, DHS has found that, at least for

1

Id.

2 Minnesota Office of Ombudsman for Mental Health and Mental Disabilities, Just Plain Wrong (1009).

3 Memorandum at 2 (citing Department of Human Services report to the Court). 2

CASE 0:09-cv-01775-DWF-FLN Document 297 Filed 04/30/14 Page 3 of 3

the client highlighted in the Memorandum, staff were not competent and adequately

trained in her program and that her program was not being implemented. This state of

affairs is fraught with risk to the safety of clients and staff alike.

The Court expects the Minnesota Department of Human Services to utilize this

opportunity to reinvigorate protections and treatment at MSHS-Cambridge, to ensure

settlement-compliant meaningful activity at the facility, and to seriously consider implementation of the Court Monitor’s recommendations.4

Dated: April 29, 2014

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

4 If the Department disagrees with, or believes it cannot implement, the Monitor’s recommendations, it shall inform him immediately. Any unresolved issues on these recommendations may be brought to the attention of the Court.
3

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
v.
Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually, and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and the State of Minnesota,
Defendants.

Civil No. 09-1775 (DWF/FLN) ORDER

Mark R. Azman, Esq., and Shamus P. O’Meara, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

Aaron Winter, Scott H. Ikeda, and Anthony R. Noss, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants. Samuel D. Orbovich, Esq., and Christopher A. Stafford, Esq., Fredrikson & Byron, PA, counsel for Defendant Scott TenNapel.
INTRODUCTION Before the Court is the Court Monitor’s August 6, 2014 Report to the Court: Approval of Revised Olmstead Plan (“Olmstead Plan Report”) (Doc. No. 333) recommending Court approval of the State of Minnesota’s proposed modifications to Minnesota’s Olmstead Plan (“Proposed Olmstead Plan”) (Doc. No. 326-1). For the reasons discussed below, the Court declines to approve the Proposed Olmstead Plan as it is currently written.
BACKGROUND In the Court’s December 5, 2011 Final Approval Order for the Stipulated Class Action Settlement Agreement (“Settlement Agreement”), the Court ordered the following with respect to the Olmstead Plan: Within eighteen (18) months of the Court’s approval of this Agreement, the State and the Department shall develop and implement a comprehensive Olmstead Plan that uses measurable goals to increase the number of people with disabilities receiving services that best meet their individual needs and in the “Most Integrated Setting,” and is consistent and in accord with the U.S. Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 582 (1999). (Doc. No. 136, Ex. A at 18.) Since the Court’s December 5, 2011 Order, the Court and the Court Monitor have reiterated these requirements in numerous orders and reports. (See, e.g., Doc. No. 311 at 2 (reiterating that the Olmstead Plan must include “measurable
2

goals” and providing examples of such goals); Doc. No. 212 at 9 (reiterating that a comprehensive Olmstead Plan must use measurable goals).)
Pursuant to the terms of the Settlement Agreement, the State and the Department of Human Services (“DHS”) were to develop and implement a comprehensive Olmstead Plan within eighteen months of the Court’s approval of the Settlement Agreement. (Doc. No. 136, Ex. A at 18.) After the State and DHS failed to complete this directive by the original due date, the Court ordered the State and DHS to file the Olmstead Plan with the Court by November 1, 2013—five months after the due date—for the Court’s review and approval. (Doc. No. 224 at 5.) The State submitted the Olmstead Plan to the Court on October 31, 2013. (Doc. No. 246-1.) On January 22, 2014, the Court provisionally approved the Olmstead Plan, subject to the Court’s review of the State’s modifications and any submissions by Plaintiffs’ Class Counsel, and directed the State to file a revised Olmstead Plan by July 15, 2014. (Doc. No. 265 at 3-4.)
On July 10, 2014, the State filed the Proposed Olmstead Plan that is now before the Court. (Doc. No. 326-1.) In response to the Proposed Olmstead Plan, the Plaintiff Class submitted a letter to the Court on July 24, 2014, “reiterat[ing] the Settlement Class positions . . . in [its] prior letters to the Court and Court Monitor concerning the Olmstead Plan” (Doc. No. 332 at 11) and observing that “issues [] remain, including a necessary recommitment and focus needed to complete and implement an Olmstead Plan using measurable goals” (id. at 10). Specifically, the Plaintiff Class referenced a February 25, 2014 letter to the Court in which the Plaintiff Class expressed concerns that “the Olmstead Plan be strategic, measurable, and clearly state who is responsible, with a
3

listing of specific timelines, and how the Plan will be implemented, and specific resources needed” (Doc. No. 276 at 3), and an October 22, 2013 letter to the Court Monitor in which the Plaintiff Class criticized DHS’ “cavalier approach to the development of the Court ordered Olmstead Plan” and the resulting “rushed, incomplete and deficient Olmstead Plan” (Doc. No. 276-1 at 2, 6).
On August 6, 2014, the Court Monitor filed the Olmstead Plan Report with the Court, recommending final approval of the Proposed Olmstead Plan. (Doc. No. 333 at 2.) However, in the Olmstead Plan Report, the Court Monitor observed that “[s]ome concerns remain.” (Id. at 3.) The Court Monitor recommended “refinement with regard to [the Olmstead Plan’s] structure and specificity,” including the need for measurable goals, new methods for presenting and reporting information, and better phrasing of commitments to enable compliance evaluation. (Id. at 7.)
DISCUSSION The Court finds that the Proposed Olmstead Plan contains significant shortfalls that require modification to comply with the comprehensive standards articulated in the Settlement Agreement and in subsequent Court Orders and Court Monitor Reports. The Court emphasizes two particularly deficient areas of concern: (1) the lack of measurable goals; and (2) the lack of accurate reporting. I. Measurable Goals First, the Proposed Olmstead Plan lacks measurable goals. As stated above, the Court and the Court Monitor have repeatedly emphasized the need for specific, measurable goals to achieve compliance with the Settlement Agreement. However, the
4

Proposed Olmstead Plan lacks specificity as to how the goals will be accomplished. The Proposed Olmstead Plan merely states processes to establish baselines, but fails to provide comprehensive baseline data in almost all areas to allow measurement of whether the goals are being met. This is insufficient to comply with the Settlement Agreement requirements for measurable goals to achieve its purposes.
To comply with the Settlement Agreement’s measurable goals requirements, the Proposed Olmstead Plan must contain concrete, reliable, and realistic commitments, accompanied by specific and reasonable timetables, for which the public agencies will be held accountable. Vague assurances of future integrated options is insufficient; to be effective, the Proposed Olmstead Plan must demonstrate success in actually moving individuals to integrated settings in furtherance of the goals.
In an effort to advise the parties of the Court’s expectations, the Court describes two examples of measurable goals based on the objectives listed in the Proposed Olmstead Plan. First, the Proposed Olmstead Plan lists “access to dental services” for people with disabilities as a goal. (Doc. No. 326-1 at 79.) According to the Proposed Olmstead Plan, the State will develop an implementation plan, based on information obtained from a legislatively-mandated study of Minnesota Health Care Program’s dental program, that includes timelines and measurable goals, by June 30, 2014. (Id.) Based on the record before the Court, it is unclear whether the State established a measurable goal by June 30, 2014. To effectuate the Proposed Olmstead Plan’s goal of increased access to dental services for people with disabilities, the Court proposes the following as an
5

example of a measurable goal: “By July 1, 2015, no fewer than an additional 100 people with disabilities will receive dental services.”
Second, with respect to employment, the Proposed Olmstead Plan states a goal of “[e]xpanding opportunities for adults with disabilities.” (Id. at 42.) According to the Proposed Olmstead Plan, State agencies will “identify consistent baseline measures to assess progress on increased competitive employment of adults with disabilities (including but not limited to people with mental illness and intellectual/developmental disabilities)” by June 30, 2014, and “establish a baseline for the measures and establish measurable goals to demonstrate progress in increasing competitive employment for adults with disabilities” by September 30, 2014. (Id.) Once again, no concrete, measurable goals are articulated. An example of such a measurable goal is the following: “By June 30, 2015, no fewer than an additional 300 people (above the baseline) with disabilities will be competitively employed.” II. Accurate Reporting
Second, and relatedly, the State must ensure accurate progress reporting. Reports to the Court must be accurate, complete, and verifiable. The Court requires the State to report on the following: (1) the number of people who have moved from segregated settings into more integrated settings; (2) the number of people who are no longer on the waiting list; and (3) the quality of life measures. With respect to the first inquiry, any calculation must consider admissions, readmissions, discharges, and transfers—reflecting the dynamic movement of individuals through segregated settings—to determine the net number of people who have moved into more integrated settings. Regarding the second
6

inquiry, the State must evaluate whether the movement is at a reasonable pace. Finally, with respect to the third inquiry, the State must summarize and submit to the Court any available data and highlight any gaps in information.
Although the Court identifies only two of the most glaring flaws in the Proposed Olmstead Plan, the Court reminds the State of its comprehensive responsibilities under the Settlement Agreement and the Olmstead decision. The Court urges the State to apply the same passion, care, and concern for individuals with developmental disabilities that the State proclaimed at the time of the Settlement Agreement. When the State assured the Court at the time of the Settlement Agreement that the “important settlement” would “make a huge difference for people in a positive manner” (Doc. No. 146 at 27), the Court did not question the sincerity of the State’s declarations. However, nearly three years have passed since the Court approved the Settlement Agreement, and yet the record before the Court indicates that the “new and improved” Olmstead Plan heralded by the State has yet to be realized.
Whether the Settlement Agreement and revised Olmstead Plan ultimately will improve the lives of individuals with disabilities remains to be seen. The Court is committed to ensure that the Settlement Agreement is not an empty promise or a meaningless gesture to placate individuals with disabilities. As the Court has stated in prior opinions, many individuals with developmental disabilities and their families have lost faith in the improvements promised in the Settlement Agreement. Meaningful progress must be realized across the State. Justice requires no less.
7

ORDER

Based on the entire record of this case, IT IS HEREBY ORDERED THAT:

1. The Court DECLINES TO ADOPT the State’s Proposed Olmstead Plan

(Doc. No. [326-1]) at this time.

2. The parties shall submit a revised Olmstead Plan to the Court Monitor by

November 10, 2014.

Dated: September 18, 2014

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

8

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians, and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians, and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian, and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
v.
Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and the State of Minnesota,
Defendants.

Civil No. 09-1775 (DWF/BRT) ORDER

Mark R. Azman, Esq., and Shamus P. O’Meara, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

Nathan A. Brennaman, Scott H. Ikeda, Anthony R. Noss, and Aaron Winter, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants. Samuel D. Orbovich, Esq., and Christopher A. Stafford, Esq., Fredrikson & Byron, PA, counsel for Defendant Scott TenNapel.
INTRODUCTION Before the Court is the State of Minnesota’s March 20, 2015 proposed
modifications to Minnesota’s Olmstead Plan (“Proposed Olmstead Plan”). (Doc.
No. 401-1.) For the reasons discussed below, the Court declines to approve the Proposed
Olmstead Plan as it is currently written.
BACKGROUND
In June 2011, the parties to this class action litigation entered a Stipulated Class
Action Settlement Agreement (“Settlement Agreement”), which includes the following
provision with respect to the Olmstead Plan:
Within eighteen (18) months of the Court’s approval of this Agreement, the State and the Department shall develop and implement a comprehensive Olmstead plan that uses measurable goals to increase the number of people with disabilities receiving services that best meet their individual needs and in the “Most Integrated Setting,” and is consistent and in accord with the U.S. Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999).
(Doc. No. 104 at 18.) Based upon the presentations and submissions of the parties, including counsel’s remarks at the Final Approval Hearing,1 the Court approved the
Settlement Agreement on December 5, 2011. (See Doc. No. 136.)
1 At the Final Approval Hearing on December 1, 2011, both Plaintiffs and Defendants alike hailed the Settlement Agreement as one which would fundamentally improve the lives of individuals with disabilities in Minnesota and serve as a national model.
2

Pursuant to the terms of the Settlement Agreement, the State and the Department of Human Services (“DHS”) were to develop and implement a comprehensive Olmstead Plan within eighteen months of the Court’s approval of the Settlement Agreement. (Doc. No. 104 at 18.) After the State and DHS failed to develop and implement a comprehensive Olmstead Plan by the original due date, the Court ordered the State and DHS to file the Olmstead Plan with the Court by November 1, 2013—five months after the due date—for the Court’s review and approval. (Doc. No. 224 at 5.) The State submitted the Olmstead Plan to the Court on October 31, 2013. (Doc. No. 246-1.) On January 22, 2014, the Court provisionally approved the State’s proposed Olmstead Plan, subject to certain modifications, and directed the State to file an updated version of the Olmstead Plan by July 15, 2014. (Doc. No. 265 at 3-4.)
On July 10, 2014, the State filed a modified version of its Olmstead Plan. (See Doc. No. 326-1.) On September 18, 2014, the Court declined to approve the State’s modified Olmstead Plan after finding significant deficiencies, including a lack of measurable goals and a lack of accurate reporting, and directed the State to file a revised version of the Olmstead Plan by November 10, 2014. (Doc. No. 344 at 4-8.)
On November 10, 2014, the State filed a revised Olmstead Plan. (See Doc. No. 369-1.) On January 9, 2015, the Court provisionally approved the State’s revised Olmstead Plan, subject to certain modifications, and directed the State to file an updated version of the Olmstead Plan by March 20, 2015. (Doc. No. 378 at 14.)
On March 18, 2015, two days before the March 20, 2015 deadline, the State submitted a letter to the Court seeking “clarification on the scope of the Court’s January 9,
3

2015 Order requiring the State to submit a revised Olmstead Plan by March 20, 2015”
and requesting “the Court to extend the March 20 due date to allow for clarification of the
Court’s January 9 Order.” (Doc. No. 398 at 1.) On March 19, 2015, the Court denied the
State’s request in its entirety. (Doc. No. 400 at 5.)
On March 20, 2015, the State filed the Proposed Olmstead Plan that is now before
the Court for review. (Doc. No. 401-1.) In response to the State’s Proposed Olmstead
Plan, the Plaintiff Class filed objections with the Court, asserting that:
[T]his Court’s specific, important guidance has been repeatedly rejected by DHS which now offers another Revised Olmstead Plan without the fundamental measures needed to be successful, and accountable, to the people with disabilities and their families DHS seeks to serve. The result remains an incomplete plan in violation of the Jensen Settlement Agreement, the many prior Orders of this Court, and the civil rights of people with disabilities in Minnesota.
(Doc. No. 412 at 3.) Accordingly, the Plaintiff Class requests that the Proposed Olmstead
Plan “be rejected as insufficient and in violation of the Jensen Class Action Settlement
Agreement.” (Id.)
On April 6, 2015, interested nonparties to this litigation, Advocating Change Together (“ACT”)2 and the Minnesota Disability Law Center (“MDLC”) of Mid-Minnesota Legal Aid3 filed letter responses to the Proposed Olmstead Plan. (See
Doc. No. 408; Doc. No. 409.) ACT’s concerns focus on the Proposed Olmstead Plan’s
Community Engagement Section, specifically, the lack of supports and follow-up for
2 ACT’s mission is to “[e]mpower[] people with disabilities to advocate for themselves.” (Doc. No. 408 at 1.) 3 MDLC “provides legal and policy advocacy for individuals with all types of disabilities statewide on issues related to their disabilities.” (Doc. No. 427 at 2.)
4

person-centered plans and the lack of recognition of different engagement levels. (See Doc. No. 408 at 1-2.) MDLC’s concerns pertain primarily to the lack of “sufficient sound baseline data, measurable goals, or outcomes.” (Doc. No. 409 at 2; see also Doc. No. 427 at 16 (criticizing the Proposed Olmstead Plan for its failure to provide “necessary detail, accurate baseline data, and adequately robust goals”); id. at 16-22 (summarizing the deficiencies of the Proposed Olmstead Plan).) Consequently, MDLC contends that “[t]he Court should reject the State’s proposed plan but allow the State to continue developing a plan that fully complies with applicable law and that delivers upon the promises of the Olmstead decision and the Jensen settlement.” (Doc. No. 427 at 2.)
On April 14, 2015, the Court Monitor filed his Report to the Court: Verification of Representations by the State, in which he observes that “[t]he current proposed revised Plan does not comply with the Court’s orders.” (Doc. No. 414 at 16.) In light of this observation, the Court Monitor recommends that “[t]he State should revise the entire Olmstead Plan on a short timetable in accordance with the Court’s orders[.]” (Id. at 31.)
DISCUSSION The Court has repeatedly provided Defendants with the standards against which the Olmstead Plan is to be measured. (See, e.g., Doc. No. 212 at 9; Doc. No. 265 at 2-4; Doc. No. 344 at 2-7; Doc. No. 378 at 4-14.) As the Court has previously stated, “the Proposed Olmstead Plan must contain concrete, reliable, and realistic commitments, accompanied by specific and reasonable timetables, for which the public agencies will be held accountable.” (Doc. No. 344 at 5.) “Vague assurances of future integrated options is insufficient; to be effective, the Proposed Olmstead Plan must demonstrate success in
5

actually moving individuals to integrated settings in furtherance of the goals.” (Id.) In addition, reports to the Court must be accurate, complete, and verifiable. (Id. at 6.) The Court has provided numerous illustrative examples of the application of these standards in previous orders. (See, e.g., Doc. No. 344 at 4-7; Doc. No. 378 at 4-14.)
Comments submitted by the Plaintiff Class, the Court Monitor, consultants to the parties, Dr. Colleen Wieck and Roberta Opheim, and interested nonparties in response to previous versions of the Olmstead Plan have also clearly delineated areas of concern and highlighted numerous problems with the State’s proposed modifications. (See, e.g., Doc. No. 274-1; Doc. No. 275; Doc. No. 276; Doc. No. 332; Doc. No. 369; Doc. No. 384.)
After carefully reviewing the Proposed Olmstead Plan, the Court concludes that the Proposed Olmstead Plan does not comply with the comprehensive standards and requirements set forth in the Settlement Agreement, Olmstead v. L.C., 527 U.S. 581 (1999), and in numerous prior orders of this Court. The Court has detailed with specificity the deficiencies of previous submissions by the State based on these requirements for the Olmstead Plan. Without citing each instance in which the Proposed Olmstead Plan fails to meet these requirements, the Court finds that the State’s submission as a whole fails to meet the above standards. To the extent that Defendants request “further clarifications” of these standards (see Doc. No. 401 at 1), Defendants’ request is denied. The Court encourages Defendants to review the above-named requirements, the Court’s previous orders, and review and revise its Olmstead Plan accordingly to comply with these requirements.
6

CONCLUSION The Court reminds Defendants of their promise to “develop and implement a comprehensive Olmstead Plan” more than three years ago at the time of the Settlement Agreement. (See Doc. No. 104 at 18.) The Court expects Defendants to timely fulfill their obligations under the Settlement Agreement and to promptly comply with the Court’s orders. The Court, in turn, has an “obligation to oversee, facilitate, and . . . enforce compliance with the terms of th[e] Settlement Agreement that will benefit so many for years to come.” (See Doc. No. 224 at 10 (citing Doc. No. 159 at 12; Doc. No. 188 at 3).) The Court has repeatedly expressed its concerns regarding Defendants’ pattern of noncompliance with the terms of the Settlement Agreement that were announced at the Final Approval Hearing before this Court on December 1, 2011, and reaffirmed in this Court’s numerous subsequent orders. (See, e.g., Doc. No. 188; Doc. No. 205, Doc. No. 212, Doc. No. 223, Doc. No. 259, Doc. No. 368, Doc. No. 400.) More recently, the Court has expressed its concern regarding Defendants’ evident unfamiliarity or unawareness of this Court’s rules and orders regarding filing deadlines and the Local Rules regarding motions for clarification or reconsideration.4
4 The Court is troubled by Defendants’ apparent disregard for the established rules and procedures set forth in the Local Rules and the Court’s prior orders. (See, e.g., Doc. No. 398; Doc. No. 429, Ex. A.) However, the Court has previously notified the parties that issues relating to “compliance with federal rules and procedures regarding formal and informal submissions to the Court” and “compliance with the provisions of the Settlement Agreement and the Court’s Orders” will be addressed at the Status Conference on May 28, 2015. (See Doc. No. 421 at 2.)
7

The Court urges the State to apply the same passion, care, and concern for individuals with disabilities that the State proclaimed at the time of the Settlement Agreement. Nearly three years have passed since the Court approved the Settlement Agreement, and yet the record before the Court indicates that many of the improvements heralded by the State have yet to be realized. As the Court has previously stated, “[t]he challenge to each of the parties, the lawyers, and, yes, the Court, is to now carry out that same passion, spirit, and intention of the Settlement Agreement in order for the Settlement Agreement to amount to more than mere words, and so that the large number of individuals with disabilities will truly benefit from the Settlement Agreement.” (Doc. No. 188 at 10.)
The time has come to truly serve the best interests of individuals with disabilities within the State of Minnesota. Cooperation and communication of all parties are absolutely essential to develop and implement an improved Olmstead Plan. The State must demonstrate its commitment to fulfill the promise of Olmstead and ensure that the Settlement Agreement and Olmstead Plan will improve the lives of individuals with disabilities across the State. Justice requires no less.
ORDER Based upon the presentations and submissions of the parties and the Court Monitor, and given the continued concerns of this Court relating to the status of the case and Defendants’ noncompliance with the Settlement Agreement; and the Court being otherwise duly advised in the premises, IT IS HEREBY ORDERED that:
8

1. The Court DECLINES TO ADOPT the State’s Proposed Olmstead Plan (Doc. No. [401-1]).
2. The parties shall submit a revised Olmstead Plan to the Court by July 10, 2015. The revised Olmstead Plan shall encompass the requirements of the Settlement Agreement and prior orders of this Court and shall respond to previously identified gaps and deficiencies in the State’s proposed Olmstead Plan.
3. In lieu of contempt and other sanctions at this time, the Court requires Defendants to fulfill their obligations in a timely manner for the Court’s review and approval; attend any status conferences that may be scheduled by the undersigned or Magistrate Judge Becky R. Thorson regarding the Olmstead Plan; and actively seek input from the consultants to the parties, Dr. Colleen Wieck and Roberta Opheim, in this process.
4. The Court expressly reserves the right to issue an order to show cause or impose sanctions, depending upon the status of compliance with the specific provisions of the Settlement Agreement and the Court’s orders, as noted above.

Dated: May 6, 2015

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

9

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians, and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians, and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian, and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
v.
Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and the State of Minnesota,
Defendants.

Civil No. 09-1775 (DWF/BRT) ORDER

Shamus P. O’Meara, Esq., and Mark R. Azman, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

Nathan A. Brennaman, Deputy Attorney General, Scott H. Ikeda, Aaron Winter, and Anthony R. Noss, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants. Samuel D. Orbovich, Esq., and Christopher A. Stafford, Esq., Fredrikson & Byron, PA, counsel for Defendant Scott TenNapel. John W. Ursu, Esq., Karl C. Procaccini, Esq., and Katherine M. Swenson, Esq., Greene Espel PLLP, counsel for Amicus Ivan M. Levy.
INTRODUCTION Before the Court is the State of Minnesota’s August 10, 2015 proposed revisions to Minnesota’s Olmstead Plan (“Olmstead Plan”). (Doc. No. 486-1.) For the reasons discussed below, the Court approves the revised Olmstead Plan.
BACKGROUND The Supreme Court’s landmark decision in Olmstead v. L.C., 527 U.S. 581 (1999), provided a basis for this class action litigation and the resulting Olmstead Plan before the Court. The Olmstead case involved two women with mental disabilities who were forced to reside in state-run segregated institutions even though their treatment providers agreed that they could be appropriately treated in the community. Id. at 593. These women sought to live and receive treatment in an integrated community-based setting and argued that their confinement violated Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (“ADA”). Id. at 593-94. The Supreme Court considered the ADA and its implementing regulations, including the requirement that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to
2

the needs of qualified individuals with disabilities.” Id. at 592 (quoting 28 C.F.R. § 35.130(d) (1998)). It held:
States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Id. at 607. This decision gave individuals with disabilities throughout the country hope to believe that they could one day be truly integrated into society and given the same dignity and respect afforded to all persons. In June 2011, the parties to this class action litigation entered a Stipulated Class Action Settlement Agreement (“Settlement Agreement”). (Doc. No. 104.) One of the Settlement Agreement’s “System Wide Improvements” was a commitment to develop a comprehensive Olmstead Plan to improve the lives of individuals with disabilities. The State and the Department of Human Services (“DHS”) committed to the following: Within eighteen (18) months of the Court’s approval of this Agreement, the State and the Department shall develop and implement a comprehensive Olmstead plan that uses measurable goals to increase the number of people with disabilities receiving services that best meet their individual needs and in the “Most Integrated Setting,” and is consistent and in accord with the U.S. Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 582 (1999).
3

(Id. at 18.) Based upon the presentations and submissions of the parties, including counsel’s remarks at the Final Approval Hearing,1 the Court approved the Settlement Agreement on December 5, 2011. (See Doc. No. 136.)
On May 6, 2015—more than three years after the Court’s approval of the
Settlement Agreement—the Court addressed the State and DHS’s fourth revised version of the Olmstead Plan.2 The Court declined to approve the State’s modified Olmstead Plan after finding that it did not comply with the “comprehensive standards and requirements set forth in the Settlement Agreement, Olmstead v. L.C., 527 U.S. 581 (1999), and in numerous prior orders of this Court.” (Doc. No. 435 at 6.) The Court directed the State to file a revised Olmstead Plan by July 10, 2015, and to attend status conferences scheduled by the Court regarding the revised Olmstead Plan. (Id. at 9.)
Between June 10, 2015 and August 10, 2015, the parties participated in mediation meetings with Magistrate Judge Becky R. Thorson regarding the revised Olmstead Plan.
1 At the Final Approval Hearing on December 1, 2011, both Plaintiffs and Defendants alike hailed the Settlement Agreement as one that would fundamentally improve the lives of individuals with disabilities in Minnesota and serve as a national model. (See Doc. No. 146 at 7 (“Perhaps the most important aspect of this Settlement . . . is that it is going to benefit not only all Class Members, but the approximate 100,000 people with developmental disabilities in this state and their families.” (Attorney Shamus P. O’Meara, representing the Plaintiffs)); id. at 27 (“[T]his is an important settlement. It will make a huge difference for people in a positive manner. . . . And we think that this agreement will set the tone for other states, as well.” (Assistant Attorney General Steven H. Alpert, representing the Minnesota Department of Human Services)).) 2 For a complete procedural history of the Olmstead Plan and the Court’s prior Orders respecting the plan, see the Court’s May 6, 2015 Order. (Doc. No. 435 at 2-4.)
4

Based on the status of the mediation proceedings, the Court extended the July 10, 2015 filing deadline to August 10, 2015. (Doc. No. 472.)
On August 10, 2015, the State filed the Olmstead Plan that is now before the Court for review. (Doc. No. 486-1.) In response to the Olmstead Plan, the Plaintiff Class submitted letter objections to the Court on August 19, 2015. (Doc. No. 493.) On August 27, 2015, the State filed a letter response to the Plaintiff Class’ objections. (Doc. No. 503.) Ivan M. Levy submitted a Brief of Amicus Curiae on September 14, 2015. (Doc. No. 506.) On September 18, 2015, the State filed a response to Mr. Levy’s submission. (Doc. No. 508.) The Court has received and considered all of these submissions.
DISCUSSION The Court has previously set forth the standards against which the State’s Olmstead Plan should be measured. As the Court has stated in prior orders, “the Proposed Olmstead Plan must contain concrete, reliable, and realistic commitments, accompanied by specific and reasonable timetables, for which the public agencies will be held accountable.” (Doc. No. 344 at 5; Doc. No. 435 at 5.) “Vague assurances of future integrated options is insufficient; to be effective, the Proposed Olmstead Plan must demonstrate success in actually moving individuals to integrated settings in furtherance of the goals.” (Doc. No. 344 at 5; Doc. No. 435 at 5-6.) The Court has provided numerous illustrative examples of the application of these standards in previous orders. (See, e.g., Doc. No. 344 at 4-7; Doc. No. 378 at 4-14.)
5

The Plaintiff Class asserts that the State’s submission is deficient in some respects. (See Doc. No. 493.) For example, the Plaintiff Class objects to the revised Olmstead Plan to the extent that it fails to expressly prohibit the use of restraint and seclusion for individuals with disabilities with a single emergency exception. (Id. at 5.) The Plaintiff Class also objects to the waiver waiting list provisions of the Olmstead Plan. (Id.) The Plaintiff Class further expresses concerns regarding the State’s funding commitment and implementation plan to “ensure [the State and DHS] bring about actual tangible achievements rather than empty statements on a piece of paper.” (Id. at 6.)
The State, on the other hand, asserts that its revised Olmstead Plan meets, and in certain respects exceeds, the requirements set forth by the Court. (See Doc. No. 503 at 4 (“[T]he Plan is not only consistent with the Olmstead decision and the Court’s orders, but in several respects, goes above and beyond what is required.”).) In response to the Plaintiff Class’ objections, the State contends that its existing accomplishments and proposed advancements in the area of restraint and seclusion meet the State’s obligations under the Settlement Agreement and the Comprehensive Plan of Action. (See id. at 1-3.) In particular, the State emphasizes that it “continues to press forward on this topic, with goals that aim to further reduce the use of restraint and seclusion even in . . . limited emergency circumstances.” (Id. at 2.) The State also asserts that its redesigned waiting list process and ambitious goals in this area meet its responsibilities under the Settlement Agreement, the Court’s prior orders, and “the reasonable pace standard as set forth in the Olmstead decision.” (Id. at 4.) The State contends that it is “committed to ending the waiting list at the briskest pace possible within available resources.” (Id.) With respect
6

to the Plaintiff Class’ funding concerns, the State asserts that “[f]or the most part, there is sufficient funding to implement the goals set forth in the Plan,” and reiterates its commitment to secure funding not yet obtained, as outlined in the Olmstead Plan. (See id. at 3; see also Doc. No. 486-1 at 99.)
After carefully reviewing the State’s proposed revisions to the Olmstead Plan, the Court concludes that the State’s Olmstead Plan substantially complies with the comprehensive standards and requirements set forth in the Settlement Agreement, Olmstead v. L.C., 527 U.S. 581 (1999), and in prior orders of this Court. In approving this version of the Olmstead Plan, the Court emphasizes three key changes that make it a substantial improvement over prior submissions to the Court: (1) the addition of concrete baseline data and specific timelines to establish measurable goals; (2) improvements to each goal that make the Olmstead Plan not only measurable, but strategically tailored to make a significant impact in the lives of individuals with disabilities across the state; and (3) added commitments to make the Olmstead Plan an evolving document that will continue to respond to the changing needs of individuals in the state over time.
First, the Court finds that the State’s revised Olmstead Plan meets the requirement of having concrete, measurable goals with corresponding time lines. The Olmstead Plan’s inclusion of specific measurable goals and timetables represents a marked improvement from prior versions of the Olmstead Plan. These goals are supported by adequate baseline data and are accompanied by concrete and reasonable deadlines for completion. The new Olmstead Plan replaces vague assurances of future integrated options with verifiable commitments tied to specific metrics. (See, e.g., Doc. No. 486-1
7

at 45 (identifying a numeric baseline and annual goals to increase the number of individuals with disabilities living in the most integrated setting); id. at 50-51 (identifying numeric baselines and annual goals to increase the number of individuals with disabilities working in competitive, integrated employment).) In this Olmstead Plan, the State provides a rationale for each of the metrics used, explains why each metric was chosen, and explains how each metric will adequately reflect improvement over time. (See id. at 21.) The State also clearly identifies those areas where additional data is needed to ensure accurate measurement moving forward and commits to obtaining such data in a timely manner. (See, e.g., id. at 52.)
Second, the Court finds that the revised Olmstead Plan includes strategic and significant goals. Unlike prior submissions to the Court, the revised Olmstead Plan includes specific and realistic strategies for achieving each goal, along with a clear indication of the agencies responsible for ensuring that the goals are met. In particular, the revised Olmstead Plan includes a commitment to utilizing detailed and strategic workplans in accomplishing the State’s goals. (Id. at 16; 95; 124-30.) The State has committed to developing such workplans for all areas of the Olmstead Plan and commits to reviewing and updating these plans as needed to effectively achieve the Olmstead Plan’s laudable goals.
Third, the revised Olmstead Plan includes several components that will ensure continued improvements for individuals with disabilities into the future. The State views the Olmstead Plan as “a dynamic roadmap, determining its direction from information gained by experience implementing the Plan.” (Doc. No. 486 at 1.) To put this vision
8

into practice, the State has committed to establishing an annual review process and formal amendment process for the Olmstead Plan. (See Doc. No. 486-1 at 97.) These processes will allow the State to ensure that the plan is both meeting its goals and responding to the public’s needs and choices regarding any new goals that should be included in the implementation of the plan. Key to the plan’s successful implementation into the future is the central role of the Olmstead Implementation Office (“OIO”) with the dual roles of “(1) quality assurance and accountability, including compliance evaluation, verification and oversight; and (2) engagement with the community, especially people with disabilities, including on-going management of communications and the Quality of Life survey.” (Id. at 95.) These interrelated components of the revised Olmstead Plan represent an ambitious commitment by the State to continually improve the lives of individuals with disabilities many years into the future.
Finally, the Court approves the State’s Olmstead Plan over the objections of the Plaintiff Class. The Olmstead Plan contains sufficient and reasonable measurable goals intended to eliminate the use of restraint and seclusion in compliance with the parties’ Settlement Agreement. (See id. at 76-78.) These goals include specific numeric goals for reducing the use of restrictive procedures by disability service providers, reducing the number of Behavior Intervention Reporting Form reports of restrictive procedures, completely prohibiting the use of mechanical restraint by disability service providers with
9

limited exceptions to prevent serious injury,3 and reducing the emergency use of restrictive procedures in schools with a strategy directed at the eventual elimination of all seclusion in schools. (See id. at 76-78, 81.) Particularly with respect to the latter, these goals reflect the State’s desire to reasonably reduce the use of restraint and seclusion while avoiding “serious unintended consequences” that may result from an immediate and complete prohibition. (See Doc. No. 503 at 2.) The Court finds this approach reasonable under the circumstances. The State’s comprehensive strategy to reduce restraint and seclusion also reflects a collaborative effort of the Department of Human Services, the Department of Education, the Department of Health, and the Department of Corrections. (Doc. No. 486-1 at 81.) The Court finds that these agencies have taken critical and appropriate steps toward eliminating the use of restraint and seclusion, and the Court expects the progress in this topic area to continue upon the full implementation of the Olmstead Plan.
Also, the Court finds that the State’s measurable goals related to the waiver waiting lists are reasonable.4 Under these goals going forward, the waiting lists will
3 These goals specifically apply to individuals and service providers governed by Minnesota Statute Chapter 245D or Minnesota Rule Chapter 9544. (See Doc. No. 486-1 at 76-77.) 4 The Court notes the filing of a related case on the topic of the State’s waiting lists for waiver services: Guggenberger, et al. v. State of Minnesota, et al., 15-CV-3439 (D. Minn. Aug. 28, 2015). (See Doc. No. 504.) The Court does not express any opinion on the merits of that case through this Order.
10

either be eliminated or move at a reasonable pace within a reasonable timeframe.5 (See
id. at 59-60.) The State has committed to implementing initiatives to increase the pace of
the waiting lists, and it has taken critical steps to prioritize access to waiver funding
according to an individual’s urgency of need. (Id. at 61-62.) The State has committed to
eliminating the Community Access for Disability Inclusion (“CADI”) waiver waiting list
by October 1, 2016. (Id. at 59.) The State has also committed to eliminating the
Developmental Disabilities (“DD”) waiver waiting list by March 1, 2017 for persons leaving an institutional setting and for persons with immediate need6 and by June 30, 2020 for persons with a defined need.7 (Id. at 60.) The Olmstead Plan details the State’s
rationale for these timelines, noting where funding has been authorized and describing
funding growth that may impact the DD waiver waiting list goals. (See id. at 61.)
In addition, the Court finds that the State has adequately addressed the possibility
that the proposals it is committing to may require additional funding. (See id. at 99.) The
Court expects the State to not only follow through on these commitments, but to make
them a top priority in order to promptly address the pressing needs of individuals with
5 In reaching this conclusion, the Court is operating under the assumption that the State’s baseline data is current, complete, and accurate. The Court further assumes that the State’s metrics and data collection systems will accurately reflect the progress of the waiting lists going forward. 6 “[P]ersons with immediate need” is defined by Minnesota Statutes, Section 256B.49, subdivision 11a(b) and Section 256B.092, subdivision 12(b). (See Doc. No. 486-1 at 60.) 7 The goal concerning the elimination of the DD waiver waiting list for persons with a defined need specifies that the waiting list is to be eliminated “within available funding limits.” (Doc. No. 486-1 at 60.)
11

disabilities throughout the state. The Court wishes to strongly emphasize that the State must prioritize its allocation of funding to meet and achieve the Olmstead Plan’s goals. The State may not rely on the excuse of insufficient funding to avoid following through on the important commitments it has made in this version of the Olmstead Plan.
CONCLUSION The Court concludes that the State’s revised Olmstead Plan substantially complies with the requirements established by this Court and the Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999). The Olmstead case provides an opportunity for hope and inclusion for individuals with disabilities throughout the country. Through this Olmstead Plan, the State commits to making that hope a reality for individuals with disabilities in the State of Minnesota. In approving the revised Olmstead Plan, the Court also takes this opportunity to respond to those who have expressed fears about the plan’s purported harmful effects. The Court has received numerous submissions from concerned community members, parents, and advocates expressing fears that the Olmstead Plan will lead to fewer choices and diminished respect for individuals who choose not to fully integrate into community-based settings.8 Many individuals with disabilities in this state value living
8 See, e.g., Amicus Brief of Ivan M. Levy (Doc. No. 506 at 6-8) (expressing fears about the Olmstead Plan’s employment provisions and raising “concerns that the State will not fully respect [an individual’s] decision not to integrate”). The Court has also received and read individual letter submissions from parents concerned for the well-being of their children with disabilities.
12

and working alongside other individuals with disabilities in settings such as group homes and sheltered workshops.
The Court emphasizes that the Olmstead decision is not about forcing integration upon individuals who choose otherwise or who would not be appropriately served in community settings. Indeed, the Supreme Court’s holding in Olmstead explicitly incorporates this vision, requiring states to provide community-based treatment only when “the affected persons do not oppose such treatment.” Olmstead, 527 U.S. at 607. The Supreme Court emphasized that there is no “federal requirement that community-based treatment be imposed on patients who do not desire it.” Id. at 602 (citing 28 C.F.R. § 35.130(e)(1) (1998) (“Nothing in this part shall be construed to require an individual with a disability to accept an accommodation . . . which such individual chooses not to accept.”)). The goal of placing individuals with disabilities in the most integrated setting must be balanced against what is appropriate and desirable for the individual.
The Court finds that the revised Olmstead Plan upholds this central feature of the Olmstead decision by respecting and prioritizing an individual’s informed choice. The concepts of individual choice and person-centered decisionmaking are central to the Olmstead Plan’s effective implementation. (See Doc. No. 486-1 at 32-37 (identifying the following vision statement for the Person-Centered Planning topic area of the Olmstead Plan: “People with disabilities will decide for themselves where they will live, learn, work, and conduct their lives.”).) The Olmstead Plan is not about and should not be construed as forcing the closure of certain facilities or forcing integration where it is
13

neither appropriate nor desirable. (See id. at 6 (“[The Olmstead] Plan is about choice, not about closure.”).) Rather, it is about increasing available choices so that each individual can make meaningful decisions about how to live, work, and interact with the community.
The Court urges the State to remain vigilant to the public’s fears and concerns. Individual choice must remain a guiding factor in the delivery of community services and supports. The State must continue to assess its goals and priorities to ensure that they align with the goals and priorities of individuals with disabilities. It must also allocate its resources and funding according to the informed choices of those whom the Olmstead Plan is meant to serve. To fully effectuate its worthy aims, the State and the OIO must utilize the safeguards built into the revised Olmstead Plan to ensure that individual choices are honored and respected.
The Court applauds the parties for their collaboration in developing this landmark Olmstead Plan. Simply put, this revision of the Olmstead Plan is unlike any other version submitted to the Court. The Court fully expects the State to act on its promises to ensure that the Olmstead Plan will truly put the promise of Olmstead into practice across the state.
ORDER Based on the files, records, and proceedings herein, and the Court being otherwise duly advised in the premises, IT IS HEREBY ORDERED that: 1. The Court APPROVES the State’s Olmstead Plan (Doc. No. [486-1]). 2. The Court reserves ruling on the approval of the Olmstead Plan’s implementation plan because corresponding workplans are not yet submitted to the Court.
14

(See Doc. No. 486-1 at 16.) Once these workplans are submitted, the Court will review and approve the implementation plan based on the recommendations and input of Magistrate Judge Becky R. Thorson.
3. The Court reserves the right to exercise its continuing jurisdiction with respect to the revised Olmstead Plan to ensure that compliance with the Settlement Agreement is verified going forward. This paragraph contemplates that the Court will continue to carry out its oversight responsibility to oversee the State’s efforts in following through on the significant commitments it has made.

Dated: September 29, 2015

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

15

 
 CASE 0:09-cv-01775-DWF-BRT Document 521 Filed 11/06/15 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians, and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians, and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian, and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
v.
Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and the State of Minnesota,
Defendants.

Civil No. 09-1775 (DWF/BRT) ORDER

Shamus P. O’Meara, Esq., and Mark R. Azman, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

CASE 0:09-cv-01775-DWF-BRT Document 521 Filed 11/06/15 Page 2 of 3
Nathan A. Brennaman, Deputy Attorney General, Scott H. Ikeda, Aaron Winter, and Anthony R. Noss, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants.
Before the Court are the Olmstead Plan Workplans (“Workplans”), submitted to the Court on October 9, 2015. (Doc. No. 515-2.) In its September 29, 2015 Order approving the Olmstead Plan, the Court reserved ruling on the Olmstead Plan’s implementation plan, indicating that it would do so following the submission of these Workplans. (Doc. No. 510 at 14.) The Court also indicated it would review and approve the implementation plan based on the recommendations and input of Magistrate Judge Becky R. Thorson. (Id. at 15.)
On October 14 and October 26, 2015, Magistrate Judge Thorson held settlement meetings with the parties in part to discuss the Workplans. (Doc. Nos. 516, 519.) Based upon the submissions and presentations of the parties, the entire record before the Court, and the Court being otherwise duly advised in the premises, the Court hereby enters the following:
ORDER 1. The Court APPROVES the State’s Olmstead Plan Workplans. (Doc. No. [515-2].) 2. The Court notes that these Workplans cover only a “one to two year time period,” (Doc. No. 515-1), and “[a]djustments may be made to the workplans pending review by Magistrate Judge Becky R. Thorson . . . and approval of the Court.” (Id.) The Court reserves the right to exercise its continuing jurisdiction to ensure that compliance
2

CASE 0:09-cv-01775-DWF-BRT Document 521 Filed 11/06/15 Page 3 of 3

with the Settlement Agreement is verified going forward. The Court will continue to

carry out its oversight responsibility as the Workplans are updated to oversee the State’s

efforts in following through on the commitments it has made.

3. In a subsequent Order, the Court will identify a reporting schedule for the

State to submit periodic reports to the Court on the Olmstead Plan’s implementation.

Dated: November 6, 2015

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

3

 
 CASE 0:09-cv-01775-DWF-BRT Document 526 Filed 11/20/15 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians, and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians, and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian, and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
v.
Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and the State of Minnesota,
Defendants.

Civil No. 09-1775 (DWF/BRT) ORDER

This matter is before the Court upon Plaintiffs’ and Defendant Minnesota Department of Human Services’ (“Department”) joint motion for approval of negotiated attorneys’ fees for Class Counsel during the course of the implementation period

CASE 0:09-cv-01775-DWF-BRT Document 526 Filed 11/20/15 Page 2 of 3
following approval of the Stipulated Class Action Settlement (Doc. No. 136-1), including but not limited to the attorneys’ fees sought by Plaintiffs in Plaintiffs’ Motion for Sanctions (Doc. No. 230), which was left unresolved in the Court’s December 17, 2013 and September 3, 2014 Orders (Doc. Nos. 259 and 340), and not including attorneys’ fees addressed by this Court’s April 8, 2013 Order (Doc. No. 209). The Court, having considered the joint motion, and based upon the Court’s jurisdiction over the parties, counsel and the Settlement Class, as well as the Court’s own knowledge of the complexities of implementing the Settlement Agreement,
IT IS HEREBY ORDERED that: 1. The Joint Motion for Negotiated Attorneys’ Fees to Class Counsel (Doc. No. [525]) is hereby GRANTED. 2. This Motion resolves the claims for attorneys’ fees, costs, and disbursements made and incurred by Plaintiffs, on behalf of the Settlement Class, and represents the full and final settlement of attorneys’ fees, costs, and disbursements related to issues of concern and non-compliance raised by Plaintiffs, on behalf of the Settlement Class, with regard to the Settlement Agreement through final disposition of the Settlement Agreement or the above-captioned matter, whichever comes later, except for requests or claims for reimbursement of attorneys’ fees, costs, and disbursements incurred from the date of this Order due to proven intentional and willful misconduct which constitutes substantial non-compliance with the Settlement Agreement after the date of this Order.
2

CASE 0:09-cv-01775-DWF-BRT Document 526 Filed 11/20/15 Page 3 of 3

3. Plaintiffs and the Settlement Class are not permitted to make any further request or claim for reimbursement of attorneys’ fees, costs, and disbursements, through the final disposition of the Settlement Agreement or the above-captioned matter, whichever comes later, except for requests or claims for reimbursement of attorneys’ fees, costs, and disbursements incurred from the date of this Order due to proven intentional and willful conduct which constitutes substantial non-compliance with the Settlement Agreement after the date of this Order.
4. The notice requirements of Rule 23(h) of the Federal Rules of Civil procedure are not necessary and would be unduly burdensome in these circumstances where the negotiated attorneys’ fees are sought in connection with post-settlement activities relating to non-monetary provisions of the Settlement Agreement and do not have any effect on the amounts awarded to Class Members by the Court.
5. Within ten (10) days of the date of this Order, the Department shall pay Fifty Thousand Dollars ($50,000) to the law firm of O’Meara, Leer, Wagner & Kohl, P.A. as Settlement Class Counsel in this matter.

Dated: November 20, 2015

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

3

 
 CASE 0:09-cv-01775-DWF-BRT Document 531 Filed 02/02/16 Page 1 of 113
Jensen Settlement Agreement
Comprehensive Plan of Action (CPA)
Ninth Compliance Update Report Reporting Period: May 1- September 30,2015
· Minnesota Department ofHuman Services- -- - -- - --

CASE 0:09-cv-01775-DW F-BRT Document 531 Filed 02/02/16 Page 2 of 113
jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
Contents
Executive Summary.............................................................................................................................................................. 5 Background ............................................................................................................................................................................ 5 Settlement Agreem ent Section IV. METO Closure (EC 1 - 4)..................................................................................... 8
Evaluation Criteria 1: ................................................................................................................................................... 8 Evaluation Criteria 2: ................................................................................................................................................... 9 Evaluation Criteria 3: ................................................................................................................................................. 10 Evaluation Criteria 4: ................................................................................................................................................. 11 Settlement Agreement Section V.A. Prohibited Techniques- Restrain t (EC 5- 7) ............................................... 12 Evaluation Criteria 5: ................................................................................................................................................. 12 Evaluation Criteria 6: ................................................................................................................................................. 13 Evaluation Criteria 7: ................................................................................................................................................. 15 Settl ement Agreement Section V.B. Proh ibited Techn iques- Policy (EC 8 - 10) ................................................... 16 Evaluation Criteria 8: ................................................................................................................................................. 16 Evaluation Criteria 9: ................................................................................................................................................. 17 Evaluation Cr iteria 10: ............................................................................................................................................... 17 Settlement Agreement Section V.C. Prohib ited Techniques- Seclusion and Time Out (EC 11- 12) ................ 18 Evaluation Criteria 11 ................................................................................................................................................ 18 Evaluation Criteria 12 ............................................................................................................................. ................... 18 Settlement Agreem ent Section V.D. Prohibited Techniques - Chemical Restraint (EC 13 -14)......................... 19 Evaluation Criteria 13 ................................................................................................................................................ 19 Evaluation Criteria 14 ................................................................................................................................................ 19 Settlement Agreem ent Section V.E. Proh ibited Techniques - 3rd Party Expert (EC 15- 24) ............................... 20 Evaluation Criteria 15 ................................................................................................................................................ 20 Evaluation Criteria 16 ................................................................................................................................................ 20 Evaluation Criteria 17 ................................................................................................................................................ 20 Evaluation Criteria 18 ................................................................................................................................................ 20 Evaluation Criteria 19 ................................................................................................................................................ 21 Evaluation Criteria 20 ................................................................................................................................................ 21 Evaluation Criteria 21 .. .............................................................................................................................................. 22 Evaluation Criteria 22 ................................................................................................................................................ 22 Evaluation Criteria 23 ................................................................................................................................................ 22 Evaluation Cri teria 24 ................................................................................................................................................ 23 Settlement Agreement Section V.G. Prohibited Techniques - Zero Tolerance for Abuse and Neglect (EC 25 27) .......................................................................................................................................................................................... 23 Evaluation Criteria 25 ................................................................................................................................................ 23 Evaluation Criteria 26 ................................................................................................................................................ 24 Evaluation Criteria 27 ................................................................................................................................................ 24 Settlement Agreement Section VI.A. Res traint Reporting & MGMT - Form 31032 (EC 28 - 30)....................... 25 Evaluation Criteria 28 .................................... ..... ....................................................................................................... 25 Evaluation Criteria 29 ................................................................................................................................................ 25 Evaluation Criteria 30 .. .............................. ................................................................................................................ 25 Settlement Agreement Section VI.B. Restraint Reporting & MGMT- Notifications (EC 31- 37) .................... 26 Evaluation Criteria 31 ................................................................................................................................................ 26
Page 1 of 112

CASE 0:09-cv-01775-DWF-BRT Document 531 Filed 02/02/16 Page 3 of 113
Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report
Reporting Period: May J to September 30, 2015
Evaluation Criteria 32 ................................................................................................................................................ 26 Evaluation Criteria 33 ................................................................................................................................................ 26 Evaluation Criteria 34 .............. ........................................................................................... ....................................... 26 Evaluation Criteria 35 ....................................................................................................................... ............. ............ 27 Evaluation Criteria 37 ......................................................... ................................. ...................................................... 27 Settlement Agreement Section VI.C. Restraint Responses Are Not To Replace Other Incident Reporting, Investigation, Analysis & Follow-Up (EC 38) ............................................................................................................... 28 Evaluation Criteria 38 ................................................................................................................................................ 28 Settlement Agreement Section VII.B. Restraint Review- Internal Reviewer (EC 39- 41).................................. 28 Evaluation Criteria 39 ................................................................................................................................................ 28 Evaluation Criteria 40 ................................................................................................................................................ 30 Evaluation Criteria 41 .......................................................................................................... ...................................... 30 Settlement Agreement Section VII.B. Restraint Review - External Reviewer (EC 42- 44) ................................. 31 Evaluation Criteria 42 ................................................................................................................................................ 31 Evalu ation Criteria 43 ................................................................................................................................................ 31 Evaluation Criteria 44 ................................................................................................................................................ 31 External Entity and Plaintiffs' Access (EC 45 - 46) ....................................................................................................... 32 Evaluation Criteria 45 ................................................................................................................................................ 32 Evaluatio n Criteria 46 ............................................................................................................................................. ... 32 Settlement Agreement Section Vlll. Transition Plannjng (EC 47- 53) ................................................................... 32 Evaluation Criteria 47 ................................................................................................................................................ 32 Evaluation Criteria 48 ................................................................................................................................................ 34 Evaluation Criteria 49 ................................................................................................................................................ 35 Evaluation Crite ria 50 ................................................................................................................................................ 36 Evaluation Criteria 51 .......... ...................................................................................................................................... 37 Evaluation Criteria 52 ................................................................................................................................................ 37 Evaluation Criteria 53 ....................... ......................................................................................................................... 39 Settlement Agreement Section JX.A. Other Practices at the Facility- Staff Training (EC 54- 57)...................... 39 Evaluation Criteria 54 .......................................... .............. .................. ........................................................ .............. 39 Evaluation Criteria 55 ............................................................. ............................................................................ ....... 40 Evaluation Criteria 56 ......................................................... ....................................................................................... 40 Evaluation Criteria 57 ................................................................................................................................................ 41 Settlement Agreement Section IX.B. Other Practices at the Facility- Hours of Training (EC 58) ..................... 41 Evaluation Criteria 58 ................................................................................................................................................ 41 Settlement Agreement Section IX.C. Other Practices at the Facility- Visitor Policy (EC 59- 61) ..................... 42 Evaluation Criteria 59 ................................................................................................................................................ 42 Evaluation Criteria 60 ................................................................................................................................................ 42 Evalu ation Criteria 61 ......................................................................................................... ....................................... 42 Settlement Agreement Section IX..D. Other Practices at the Facility - No Inconsistent Publicity (EC 62- 64) 43 Evaluation Criteria 62 ................................................................................................................................................ 43 Evalu ation Criteria 64 ................................................................................................................................................ 43 Settlement Agreement Section IX.E. Other Practices at the Facility- Posting Requirements (EC 65 • 66) ....... 44 Evaluation Criteria 65 .................................................................................................. .............................................. 44 Evaluation Criteria 66 ................................................................................................................................................ 44
Page 2 of 112

CASE 0:09-cv-01775-DWF-BRT Document 531 Filed 02/02/16 Page 4 of 113
Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance U pdate Report
Reporting Period: May 1 to September 30, 2015
Settlement Agreement Section X.A. System Wide Improvemen ts- Expansion of Community Support Services (EC 67 - 78)........................................................................................................................................................... 45
Evaluation Criteria 67 ................................................................................ ......................................................... ....... 45
Ev aluation Criteria 68 ................................................................................................................................................ 46
Evaluation Criteria 69 ................................................ ............................................................. ..... .............................. 47 Evaluation Criteria 70 ................................................................................................................................................ 47 Evaluation Criteria 71 ................................................................................................................................................ 47 Eval uation Criteria 72 ................................................................................................................................................ 48 Evaluation Criteria 73 ........ ........................................................................................................................................ 49 Evaluation Criteria 74 ................. ...... .............................................. ........................................................................... 49 Evaluation Criteria 75 ............................................................. ................................................................................... 50 Evaluation Criteria 76 .............. .................................. ..................................... ........................................................... 51 Ev aluation Criteria 77 .......................................................................... ...................................................................... 51 Evaluation Criteria 78 ................................................................................................................................................ 51 Settlement Agreement Section X.B. System Wide Improvem ents- O lmstead Plan (EC 79) ............................... 52 Eva luation Criteria 79 ................................................................................................................................................ 52 Settlement Agreement Section X.C. System Wide Improvem ents- Rule 40 Modernization (EC 80) ................ 52 Evaluation Cri teria 80 .............................. .................................................................................................................. 52 Settlement Agreement Section X.D. System Wide Improvements - Minnesota Security Hospital (EC 81- 84) ................................................................................................................................................................................................ 53 Evaluation Criteria 81 ................................................................................................................................................ 53 Evaluation Criteria 82 ................................................................................................................................................ 55 Evaluation Criteria 83 ................................................................................................................................................ 55 Evaluation Criteria 84 ................................................................................................................................................ 55 Settlement Agreement Section X.E. System Wide Improvements - Anoka Metro Regional Treatment Center (EC 85)................................................................................................................................................................................... 56 Evaluation C1·ite ria 85 ................................................................................................................................................ 56 Settlement Agreement Section X.F. System Wide Improvements- Language (EC 86 - 87).................................. 58 Evaluation Criteria 86 ....................................................................................... ......................................................... 58 Evaluation Criteria 87 ................................................................................................................................................ 58 Closure of MSHS-Cambridge and Replacement with Community H omes and Services (EC 88 - 96) .............. 58 Evaluation Criteria 88 ............................... ................................................................................................................. 58 Evaluatiotl Criteria 89 ................................................................................................................................................ 59 Evaluatio n Criteria 90 ................................................................................................................................................ 59 Evaluation Criteria 91 ................................................................................................................................................ 60 Evaluation Criteria 92 ................................................................................................................................................ 60 Evaluation Criteria 93 ....................... ....................................... ............ ...................... ................................................ 61 Evaluation Criteria 94 ............. ...... ............................................... ............................... ........................................ ....... 62 Evaluation Criteria 95 ......................................... .......... ............................ ..... ............................... ............................. 62 Evaluation Criteria 96 .................................... ............................................................................................................ 62 Therapeutic Follow-Up of Class Members and Clients D ischarged from METO/MSHS-Cambridge (EC 98) 63 Evaluation Criteria 98 ................................................................................................................................................ 63 Modernization of Rule 40 (EC 99 - 104) .......- ................................................................................................................. 66 Evaluation Criteria 99 ................................................................................................................................................ 66 Evaluation Criteria 100 .............................................................................................................................................. 66
Page 3 of 112

CASE 0:09-cv-01775-DWF-BRT Document 531 Filed 02/02/16 Page 5 of 113 Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report
Reporting Period: May 1 to September 30, 2015 Evaluation Criteria 101 .............................................................................................................................................. 67 Evaluation Criteria 102 .............................................................................................................................................. 67 Evaluation Criteria 103 .............................................................................................................................................. 68 Evaluation Criteria 104 .............................................................................................................................................. 68 Court Monitor Evaluation Criteria Compliance Concerns ......................................................................................... 70 Single Point of Entry.......................................................................................................................................................... 71 Evaluation Criteria Index.................................................................................................................................................. 74
Page4 o£112

CASE 0:09-cv-01775-DWF-BRT Document 531 Filed 02/02/16 Page 6 of 113
Jensen Settlement Agreement Comprehensive Plan of Action N inth Compliance Update Report Reporting Period: May 1 to September 30, 2015
Executive Summary
This is the Ninth Compliance Update Report in response to the March 12, 2014 Comprehensive Plan of Action (CPA) (Doc. 284) and is based on data, documentation and information from May 1 through September 30, 2015. The Jensen Implementation Office developed this report from information submitted and verified by persons identified as being responsible for each evaluation criteria. The Jensen Implementation Office completed further verification and analysis of information submitted.
Court-ordered mediation began in June and involved Magistrate Judge Thorson, the Department of Human Services (Department), the defendant's counsel, the consultants and the plaintiffs' counsel. The court stayed reporting on the CPA d uring the mediation (Doc 462).
The Department filed the eighth Jensen Settlement Agreement CPA Update Report with the court on May 15, 2015.
Background
The Jensen Settlement Agreement is the resu lt of a lawsuit filed against the Depar tment in 2009 alleging that residents of the former Minnesota Extended Treatment Options (METO) program were unlawfully and unconstitutionally secluded and restrained. The Jensen Settlement Agreement allowed the department and the plaintiffs to resolve the claims in a mutually agreeable manner. The Comprehensive Plan of Action outlines the path that the department will take to come into compliance with the terms of the Agreement.
As part of the Comprehensive Plan of Action, the Department of Human Services established the Jensen Implementation Office (JlO). The JIO manages and coordinates this plan. During this reporting period, the JIO was staffed with four full time professionals and one support staff. This consisted of a director, manager, analyst, and data analyst and a support staff.
Jensen Implementation Office
The Department created the Jensen Implementa tion Office to improve compliance and quality oversight of the Jensen Settlement Agreement. There has been a Department internal workgroup providing technical expertise and updates on compliance with the jensen Settlement Agreement and the Comprehensive Plan of Action (CPA). There have been Jensen "parties meetings" including the Plaintiffs' Counsel Shamus O'Meara, the State Ombudsman for Mental Health and Developmental Disabilities, Roberta Opheim, Executive Director of the Minnesota Governor's Council on Developmental Disabilities, Dr. Colleen Wieck, as well as various Department staf( and the Jensen Implementation Office.
In October 2015, the focus of the Jensen Implementation Office changed to compliance monitoring and measurement. This change included a focus on developing a Department Wide Quality Assurance
Page 5 of 112

CASE 0:09-cv-01775-DWF-BRT Document 531 Filed 02/02/16 Page 7 of 113
Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
Plan, a Jensen Implementation Office specific Quality Assurance Plan, expanded Jensen Internal Reviewer responsibilities, and starting the process for contracting with Independent Subject Matter Experts. In January 2016, the Jensen Implementation Office will initiate regular meetings with the Department staff and consultants to the Jensen Settlement Agreement, Roberta Opheim and Colleen Wieck. The purpose of the meetings is to review and discuss quality improvement activities and verification of the Jensen Settlement Agreement Comprehensive Plan of Action Evaluation Criteria.
Jensen Internal Reviewer
The jensen (ntemal Reviewer will conduct internal investigations and reviews to ensure compliance with the Jensen Settlement Agreement, positive supports rule, Olmstead Plan (specific to the Department), person-centered planning, the CPA and other triggered/reported concerns.
Indep endent Subjects Matter Experts The Department, through its Community Supports Administration, is developing a Request for Proposals to create a "pool" of experts, in a variety of areas, to provide independent and objective assurance, advisory, and investigative services to the Department in relation to the Jensen Settlement Agreement. The highly qua lified and experienced subject matter experts, with specialized skills, will assist the Department in bringing significant improvements to the care and treatment of individuals with developmental disabilities outlined in the Jensen Settlement Agreement. The Jensen Implementation Office will be responsible for managing the contracts for the subject matter expert contracts.
Department Quality Assuran ce Committee A Performance Management and Quality Improvement Framework for People with Disabilities was drafted in 2015 to provide an agency-wide structure to monitor the quality of programs and services provided to people with disabilities. This framework will connect quality improvement efforts to ser vices supported throughout the department. The Department Quality Improvement Framework also aims to support the agency's goal to have all programs carry out the vision of Olmstead, to ensure that all people have choices and opportunities to live, learn and work and enjoy life in integrated settings.
The committee will utilize continuous improvement resources to identify opportunities for improvement, and facilitate development of work plans, and tracking of progress. A steering committee lead by Deputy Commissioner Charles E. Johnson will oversee the work of the committee. The first meeting of the commHtee is scheduled for January 27, 2016. The steering committee will be comprised of the following persons or their designees:
• Assistant Commissioner for Community Supports • Assistant Commissioner for Health Care Administration • Assistant Commissioner for Children and Family Services • Assistant Commissioner for Community and Partner Relations • Assistant Commissioner for Continuing Care for Older Adults
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CASE 0:09-cv-01775-DW F-BRT Document 531 Filed 02/02/16 Page 8 of 113
Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
• Chief Compliance Officer • Human Resources Director • Direct Care & Treatment Director • Jensen/Olmstead Director • Senior Legal Counsel • Jensen Internal Reviewer Single Point of Entry Launched February 19, 2015, the Single Point of Entry is a Department-piloted process, to improve the Department's ability to respond to requests for assistance in supporting people with disabilities in crisis. The Single Point of Entry is part of a larger Disability Services Division /Direct Care and Treatment Process Improvement Project that the Department initiated in January 2015. The Single Point of Entry Pilot coordinates Department efforts for persons with developmental or intellectual disabilities in crisis and at risk of losing their current placement. Additional information concerning the Single Point of Entr.y is provided on page 71 of this report.
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CASE 0:09-cv-01775-DWF-BRT Document 531 Filed 02/02/16 Page 9 of 113
Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
Evaluation Criteria State of Compliance
Settlement Agreement Section IV. METO Closure (EC 1 - 4)
Evaluation Criteria 1: The Facilities will comply with Olmstead v. L.C. The Facilities are and will remain licensed to serve people with developmental disabilities. The Facility will eliminate unnecessary segregation ofindividuals with developmental disabilities. People will be served in the most intregated /sic] setting to which they do not object. Each individual's program will include multiple opportunities on an ongoing basis to engage with: (1) citizens in the community, (2) regular community settings, (3) participating in valued activities (4) as members ofthe community. These community activities will be highly individualized, drawn fmm the person-centered planning processes, and developed alongside the individual.
State of Compliance
The Department has met criteria for Evaluation Criteria 1. Minnesota Life Bridge's mission is consistent with the Jensen Settlement Agreement and functions as a transitional adult foster care home as required by the Jensen Settl ement Agreement. "Successful Transition to a Successful Life" appropriately describes the intent and purpose of Minnesota Life Bridge. While providing services to persons with complex needs is a multi-faceted undertaking and subject to continuous improvement, Minnesota Life Bridge's mission is clear and consistent with the Jensen Settlement Agreement and the CPA. Minnesota Life Bridge's mission is also consistent with Olmstead's requirement to provide people with the most integrated or best alternative setting for residents while they plan for further transition to a more integrated setting in the community. Individualized treatment continues to be a main function of Minnesota Life Bridge homes; staff use person-centered planning approaches with all Minnesota Life Bridge residents.
During this reporting period, Minnesota Life Bridge served four people at Stratton Lake, including three people who were discharged and one person who was admitted, three people at Brobergs Lake, including one person who was discharged and one person who was admitted, and four people at East Central. Allll people served had individualized person-centered plans that addressed integration within the six life areas listed in Evaluation Criteria Land opportunities to personalize the interior setting of the home.
Person-centered planning is an ongoing process, based on the person's preferences, talents, dreams, and goals. Once a person achieves a goat there are other goals to work on. Person-centered plans are developed over time, and are frequently reviewed for continued applicability and progress on meeting goals. Minnesota Life Bridge staff review person-centered plans with each person at least once a month. Staff assist people receiving services in creating, enriching and refining their plans, including addressing community integration in the six life areas listed in Evaluation Criteria 1.
Minnesota Life Bridge staff also support individuals to make choices on the interior setting of the homes. Some examples of choices made are painting their bedroom, selecting new linens, and
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reorganizing furniture. People using Minnesota Life Bridge services do not have the choice of housemate, given the intent of Minn esota Life Bridge's short-term services. Roommates are a necessity given the limited amount of space available. However, with input and approval between the person and their team, Minnesota Life Bridge have moved people to another home to allow them to be in a location without a roommate.
Minnesota Life Bridge will continue to maintain appropriate licensure for all community settings. The Jensen Implementation Office will verify licenses are timely and appropriate by reviewing the DHS Licensing Lookup web page and storing a copy of the licenses in the Jensen SharePoint site.
Evaluation Criteria 2: Facilities utilize person-centered planning principles and positive behavioral supports consistent with applicable best practices including, but not limited to the Association of Positive Behavior Supports, Standards ofPractice for Positive Beluwior Supports.
The Department has met criteria for EC 2. During this reporting period, plans for allll people served at Stratton Lake, Brobergs Lake, and East Central were reviewed by Dr. Tim Moore, the Senior Behavior Medical Practitioner for Minnesota Life Bridge and the Successful Life Project. Dr. Moore determined that the plans demonstrated application of person-centered planning principles and included positive behavioral supports. The plans were consistent with applicable best practices including, but not limited to the Association of Positive Behavior Supports, Standards of Practice for Positive Behavior Supports. Each person worked with Minnesota Life Bridge staff and others (such as family, friends, and providers) they chose to participate in the development of a personal profile that informed the development of the person-centered plan within the tim~line and with the content and scope described in EC 2.2, 2.3 and 2.4.
Amber Maki, Minnesota Life Bridge Clinical Coordinator I Behavior Analyst 3 Supervisor, reviewed
positive support transition plans for people served at Stratton Lake and Brobergs Lake and found that th ree of six positive support transition plans included token economies. Todd Buckingham, Minnesota Life Bridge Crisis Residential Program Manager, reviewed positive support transition plans for East Central residents and found two of four included token economies. All positive support transition plans required that token economies be used sparingly, not for punishment, and only when weighed against the potential risks to the person's image and competencies in terms of exercising personal autonomy.
To ensure continued compliance with EC 2, the Jensen Implementation Office, the Jensen Internal Reviewer and Minnesota Life Bridge Clinical Diiector will provide oversight and verify through documentation review or direct observation that Minnesota Life Bridge provides a person-centered planning process and environment, positive behavior supports and transition planning, and conducts a functional behavioral analysis for all new admissions.
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Evaluation Criteria 3: Facilities serve only "Minnesotans who have developmental disabilities and exhibit severe behaviors which present a risk to public safety."
State of Compliance
The Department has met criteria for Evaluation Criteria 3. The admission criteria to serve only "Minnesotans who have developmental disabilities and exhibit severe behaviors which present a risk to public safety/' became the policy and practice in late 2013.
During this reporting period, there were 11 referrals to Minnesota Life Bridge. Minnesota Life Bridge determined seven of the 11 people to be eligible for Minnesota Life Bridge services. Four people were determined to be not eligible because they were not a Minnesotan with a developmen tal disability who exhibited severe behaviors that presented a risk to public safety. Minnesota Life Bridge communicates with the case manager and provides suggestions for diversion or other services for people who are ineligible.
In accordance with Evaluatjon Criteria 3.1, Minnesota Life Bridge also admits those persons with a developmental disability committed by a state court for competency restoration under Rule 20 of the Minnesota Rules of Criminal Procedure.1 This mission has not and will not undermine Minnesota Life Bridge's primary goal of using best efforts to transition all persons residing at Minnesota Life Bridge into the most integrated setting, in accordance with Olmstead principles.
To ensure that the Department continues to meet criteria for EC 3, the Minnesota Life Bridge Admissions Coordinator will continue to review all referrals and applications to Minnesota Life Bridge to ensure potential admissions meet the admission criteria. The Minnesota Life Bridge Admissions Coordinator and the Information Coordinator will also continue to maintain current data on referrals, admissions, transitions, and people determined to be ineligible for Minnesota Life Bridge.
The Department will also continue best efforts to identify and overcome obstacles to continued compliance. As the Department does not have, the "authority" to purchase homes, one of the challenges to expanding access to residential community-based treatment is finding suitable p roperty that the Department can lease. The purchase of land and buildings is done through the capital bond ing process. Under this process, the Department needs to put forth a capita l bonding request
1 Competency restoration includes comprehensive treatment and evaluation of individuals who have been committed for competency restoration pursuant to Minnesota Rule of Criminal Proced ure Rule 20.01 subd. 7. Services include, but are not limited to legal education (group and individual), psycho-social groups, psychiatric consultation, and rehabilitation progranuning in order to restore an individual's capacity to meaningfully participate in their criminal proceedings
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for funds to be used to purchase or build new facilities, and if approved, has authority that is limited to developing sites outlined only in that proposal. That is how the Department made the purchase of the current Minnesota State Operated Community Services-owned homes and why Minnesota State Operated Community Services pays bond debt payments annually. This process involves finding an investor who is willing to work with the Department and agrees to complete person-centered modifications that the Department needs to make to the home. As part of the continuous process improvement project, Minnesota Life Bridge is working with Direct Care and Treatment CommunityBased Services and Disability Services Division to identify and find solutions to the barriers in placing residents into community settings, as evidenced by the recent discharges from Minnesota We Bridge.
Evaluation Criteria 4: Facilities notift; legal representatives ofresidents and/or family to the extent permitted by law, at least annunlly, oftheir
opportunii:IJ to cnmment in writing, m; e-mail, and in person, on the operation ofthe Facility
State of Compliance
The Department has met criteria for Evaluation Criteria 4. In September 2015, Minnesota Life Bridge sent out satisfaction surveys for the three people who transitioned from Stratton Lake and Brobergs Lake to the community.2 Surveys are in the relevant language and include notification that survey responders can offer comments in multiple ways.
For two people, staff sent the survey to the person, their legal representative, and to their case manager; Minnesota Life Bridge received all surveys back, except from one case manager. Minnesota Life Bridge sent the survey to the third person who is his or her own guardian. The four residents at East Central completed satisfaction surveys in May 2015.
Upon receipt of survey responses, Minnesota Life Bridge and East Central reviews data, and incorporate changes into an action plan, if needed, to address concerns indicated by the survey responses. Minnesota Life Bridge or East Central staff will contact responders as appropriate regarding survey responses to discuss and better address their concerns. Minnesota Life Bridge and East Central have and will continue to collect and review data and incorporate changes into an action plan if changes are indicated. The jensen Implementation Office will review survey responses and verify that Minnesota Life Bridge completes actions to address concerns.
Minnesota Life Bridge will continue to distribute surveys w ithin five business days to people who move from a Minnesota Life Bridge home after each transition from the facility. Because of the small
2 Note: Four people transitioned out of a Minnesota Life Bridge home; one of the four moved from one Minnesota Life Bridge home to another home.
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population served, there are not a large number of surveys sent out or returned. The jensen Implementation Office also plans to discuss with Minnesota Life Bridge increasing the frequency of satisfaction surveys for persons admitted to Minnesota Life Bridge.
Settlement Agreement Section V.A. Prohibited Techniques- Restraint (EC 5 - 7)
Evaluation Criteria 5: The State/DHS immediJttely and permanently discontinues all the profzibited restraints and techniques. State of Compliance The Department has met criteria for Evaluation Criteria 5. During this reporti ng period, Minnesota Life Bridge staff did not use any prohibited restraints or techniques and there were no instances of prohibited use of PRN3f standing orders medication. Minnesota Life Bridge staff submitted DHS3654 Notification forms for PRN medication requests, 911 calls, and hospitalizations. The Court Monitor and Parties receive copies of the DHS-3654 Notification forms. Minnesota Life Bridge staff review incidents quarterly at Incident Review Meetings. In July 2015, Minnesota Life Bridge began incorporating additional analysis detail into Incident Review Meetings meeting notes. Specifically, beginning October 2015, Minnesota Life Bridge will include incident trend graphing in the Minnesota Life Bridge Incident Review Meeting notes. To ensure that the Department continues to meet criteria for EC 5, the Jensen Implementation Office, Jensen Internal Reviewer and Minnesota Life Bridge will continue enforcing the prohibition on specified techniques and restraints and continue to lTain new employees and provide annual retraining to employees on prohibited and permitted restraints and techniques. Jensen Implementation Office met with the Department's MN.IT Services (information technology services office) in September 2015 to request a technology solution to allow the jensen Implementation Office to receive electronic copies of incident reports of class members and members of the therapeutic follow-up group within 24 hours of submission. A change request is currently in queue for assignment to the Department's MN.IT Services staff.
3 Abbreviation for "pro re nata," a Latin phrase meaning "as needed."
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Evaluation Criteria 6: The State/DHS has not used any of the prohibited restraints and techniques.
State of Compliance
The Department has met criteria for Evaluation Criteria 6. Stratton Lake, Brobergs Lake and East Central, had no emergency use of restraints during this reporting period. Since January 1, 2015, there have been two incidents involving manual restraints. These incidents occurred on February 14, 2015, and on April 28, 2015. Both incidents occurred at Stratton Lake and they involved two different people. These incidents, that occurred prior to the reporting period, are described in detail below.
February 14, 2015 Incident: Staff attempted to redirect the person (Tl) verbally from cooking a full package of bacon and full package of sausage to eat. The person had a sign ificant history of fully burning items when cooking and refusing staff assistance (resulting in grease fires). The person threw two glasses with water and juice and a Tupperwarc dish of grapes, with a small amount of water in it at staff. The person approached the staff in a threating manner, aggressively swinging, knocking off staff's eyeglasses while continuing to aggress toward staff. Staff implemented an emergency use of manual restraint (EUMR) for two minutes to limit the continued aggression. Minnesota Life Bridge contacted the Medical Officer but not within 30 minutes of the emergency's onset. The staff person was not able to locate the phone number to call the Medical Director. S/he called the on-call supervisor who provided the phone number, and then called the Medical Officer. Minnesota Life Bridge has reviewed this inciden t and has ensured that the phone number for the Medical Director is clearly posted in all homes.
Minnesota Life Bridge management determined there were no issues with staff performance during the incident as staff attempted to follow the policy; the issue was that staff on duty could not easily locate the number. The designated coordinator verified the documentation of contact with the Medical Officer on the DHS-3654 form. The Jensen Implementation Office verified the DHS-3654 as completed timely and accurately. Staff also incorporated the DHS-3654 form into the person's medical record at Minnesota Life Bridge.
The emergency use of manual restraint was appropriate due to the continuous aggression toward the staff after not accepting staff attempts to assist in alternatives to prepare food in a safe manner (history of cooking in an unsafe manner, high heat, refusing assistance when needed, preferring items with high grease content, etc.). Program changes implemented included securing large quantities of food items while making available smaller portions for individual use, reducing the concern for safety and possible power struggles.
April28, 2015 Incident: At 6:15pm, after returning from an afternoon activity, the person (52) appeared more upset and impatient for dinner. After eating, she began yelling at s taff, desiring scissors and a yarn hook. She stated "staff always take her stuff and wreck her yarn." The person wanted to call the home's lead staff to tell her "staff owes her three skeins of yarn." The person took
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the phone, went to her room, and slammed the d oor shut. Staff attempted to assist the person by following her to assist in untangling her yarn. She yelled and blamed staff for tangling her yarn, throwing the phone directly at staff and hitting him/her in the right leg. The person charged toward staff, swinging, kicking and a ttempted to push staff down the stairs from the top of the stairway. The person's glasses fell off and were stepped on. The person noticed her glasses on the floor, escalated, continuing to throw punches and kicking staff. Adclitional staff came u pstairs and assisted the person to her bedroom away from the top of the stairs. The person continued to be physically aggressive and was swinging, kicking, spitting and trying to bite staff. Due to the level of physical aggression, staff used a modified side lying hold while on her bed. One staff held the right arm, the second staff held the left arm, and a third staff managed her legs d uring kicking.
After three minutes, staff released the person from the emergency use of manual restraint, the person immediately went d own stairs and grabbed the phone she previously threw at staff, and called 911 herself. Law enforcement and the ambulance arrived shortly after and talked with the person for approximately one hour. The person argued and yelled at law enforcement and the Emergency Medical Technician (EMT), yelling she will "do anything to be anywhere but here at Stratton Lake." The person threatened to jump off the roof when law enforcement leaves because she was not happy the EMT/police would not take her to the hospital. As soon as law enforcement left the person came down stairs to the kitchen, smashed a watermelon and pineapple on the kitchen floor, and threw the ceramic containers of apples creating a huge mess in the kitchen and living room. The person went back to her room, and entered onto the roof from her bedroom window. Staff called 911 and went outside to talk with the person from the front of the home. The person calmed down talking with staff, apologized for attacking staff. When law enforcement arrived the second time, staff assisted the person back into her bedroom from the roof. The person talked with law enforcement for about ten minutes. At 8:45 pm, the person spoke to the home lead staff regarding the evening and agreed to assist staff to clean up the mess she made. The person was polite and helpful assisting staff cleaning up the mess.
A DHS-3654 from was completed for the incident that included two 911 calls, and the use of manual restraint. The DI-IS-3654 form contains evidence of review by the Minnesota Life Bridge Operations Manager. Stratton Lake staff documented on the restraint form the circumstances leading up to the restraint, what imminent risk of harm precipitated the application of the restraint, observations during the restraint use, antecedent and subsequent behaviors, de-escalation and intervention strategies and outcomes. It is d ocumented th at the staff forgot to call the Medical Officer because of the intensity of the situation following the use of the manual restraint, and because of the onsite presence of law enforcement.
As part of Minnesota Life Bridge management's internal review, it was determined that the emergency use of manual restraint was appropriate due to the intensity and frequency of the aggression. Staff attempted to assist positively, but the person was not willing to accept redirection or assistance until law enforcement was on its way the second time. Minnesota Life Bridge management
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judged the threats of self-harm to be significant and staff correctly called 911 to assist if needed. As part of the internal review, Minnesota Life Bridge management also reviewed with staff the policy breakdown.
The Jensen Implementation Office reviewed the DHS-3654 form, determined it was complete, and distributed timely.
To ensure that the Department continues to meet criteria for EC 6, the Jensen Implementation Office, Jensen Internal Reviewer and Minnesota Life Bridge will continue enforcing the prohibition on specified techniques and restraints, continue to train new employees, and provide annual retraining to employees on prohibited and permitted restra ints and techniques. If there is any use of prohibited techniques, Minnesota Life Bridge staif w ill report its use to the Minnesota Adult Abuse Reporting Center (MAARC) 4 and will investigate as a potential allegation of abuse.
The Jensen Implementation Office met with the Department's MN.IT services staff in September 2015 to request a technology solution to allow the Jensen Implementation Office to receive electronic copies of incident reports of class members and members of the therapeutic follow-up group within 24 hours of submission. A change request is currently in queue for assignment to s the Department's MN.IT services staff.
Evaluation Criteria 7: Medical restraint, and psychotropic! neuroleptic medication have not been administered to residents for punishment, in lieu ofhabilitation, training, behavior support plans, for staffconvenience or as behavior modification.
State of Compliance
The Department has met criteria for Evaluation Criteria 7. Stratton Lake, Brobcrgs Lake and East Central, had no use of medical restraint and psychotropic/neuroleptic medications prohibited by Evaluation Criteria 7.
Minnesota Life Bridge facility policy continues to forbid specifically the use of restrictive interventions, including medical restraints and/or psychotropic/neuroleptic medication for: the purposes of punishment; in lieu of habilitation, training, or behavior support plans; for staff convenience; or as a behavior modification.
To ensure that the Department continues to meet criteria for EC 7, the Jensen Implementation Office, jensen Internal Reviewer and Minnesota Life Bridge will continue enforcing the prohibitions on
4 Minnesota Adult Abuse Reporting Center (MAARC) is the common entry point established by the commissioner of human services under Minnesota Statutes 626.557 Subds. 4 and 9
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Jensen Settlement Agreement Comprehensive Plan of Action Ninlh Compliance Update Report Reporting Period: May 1 to September 30, 2015
Medical restrain t, and psychotropic/ neuroleptic medication and main taining staff training and awareness.
Settlement Agreement Section V.B. Prohibited Techniques- Policy (EC 8- 10)
Evaluation Criteria 8: Restraints are used only in an emergency.
State of Compliance
The Department has met criteria for Evaluation Criteria 8. Stratton Lake, Brobergs Lake and East Central, had no emergency use of restraints d uring this reporting period. Since January 1, 2015, there have been two incidents involving manual restraints, which occurred on February 14,2015 and on April28, 2015. Both incidents occurred at Stratton Lake and involved two different people. These incidents occurred prior to the reporting period. These incidents are described in detail under Evaluation Criteria 6.
The people Minnesota Life Bridge provides services to are typically people with a history of need for emergency interventions. The need for emergency interventions is not always predicable, but
Minnesota Life Bridge staff are trained to observe and to provide positive suggestions I interventions.
Staff document any emergency use of manual restraint on the DHS-3654 forms, which are reviewed by the Minnesota Life Bridge Operations Director and Clinical Director as well as the Internal Reviewer to help learn and avoid or mitigate triggers.
To ensure that the Department continues to meet criteri a for EC 8, the Jensen Implementation Office, Jensen Internal Reviewer and Minnesota Life Bridge will continue enforcing the prohibition on specified techniques and restraints and continue to train new employees and provide annual retraining to employees on prohibited and permitted restraints and techniques. Minnesota Life Bridge will also continue to track, and the Jensen Implementation Office will verify, staff's successful completion of training. If there is any use of prohibited techniques, Minnesota Life Bridge staff will report its use to the Minnesota Adult Abuse Reporting Center (MAARC) and will investigate as a potential allegation of abuse.
Minnesota Life Bridge staff w ill continue to review incidents quarterly at Incident Review Meetings. In July 2015, Minnesota Life Bridge began incorporating additional analysis detail into Incident Review Meetings meeting notes. Spedfically, beginning October 2015, Minnesota Life Bridge will include incident trend graphing in the Minnesota Life Bridge Incident Review Meeting notes. Direct Care and Treatment Community Based Services also reviews Minnesota Life Bridge incidents and restraint use during their Quality Assurance/Performance Improvement meetings.
Jensen Implementation Office met with the Department's MN.IT services staff in September 2015 to request a technology solution to allow the Jensen Implementation Office to receive electronic copies of
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incident reports within 24 hours of submission. A change request is currently in queue for assignment to MN.IT services staff. Evaluation Criteria 9: The Policy (Settlement Agreement Att. A, as it may be revised after court approval, disseminationm1d staff training) was followed in eadt i11stance ofmanual restraint State of Compliance The Department has met criteria for Evaluation Criteria 9. Stratton Lake, Brobergs Lake and East Central, had no emergency use of restraints during this reporting period. Since January 1, 2015, there have been two incidents involving manual restraints, which occu rred on February 14, 2015, and on April28, 2015. These incidents, which occurred prior to the reporting period, are described in detail under Evaluation Criteria 6. The follow-up that occurred is also described in Evaluation Criteria 6. Minnesota Life Bridge wiU continue training to ensure staff awareness of prohibited and permitted restraints and techniques. The Jensen Implementation Office will verify that staff training on prohibited techniques continues to take place at new employee orientation and at annual staff training sessions. Evaluation Criteria 10: There were no instances ofprone restraint, chemical restraint, seclusion Dl' time out. [Seclusion: evaluated under Sec. V.C. Chemical restraint: evaluated under Sec. V.D.] State of Compliance The Department has met criteria for Evaluation Criteria 10. During this reporting period, there were no instances of prone restraint, chemical restraint, seclusion or time out. To ensure that the Department continues to meet criteria for EC 10, Minnesota Life Bridge will continue training to ensure staff awareness of the prohibition of prone or chemical restraint, seclusion, and time out. The Jensen Implementation Office w ill verify that staff tra ining on prohibited techniques continues to take p lace at new employee orientation and at annual staff training sessions.
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Jensen Settlement Agreement Comprehensive Plan of Action Ninth CompUance Update Report Reporting Period: May 1 to September 30, 2015
Settlement Agreement Section V.C. Prohibited Techniques - Seclusion and Time Out (EC 11 - 12)
Evaluation Criteria 11 There were zero insumces ofthe use ofSeclusion. Facility policy shall specifiJ that the use ofseclusion is prohibited. State of Compliance The Department has met criteria for Evaluation Criteria 11. Facility policy continues to specify that the use of seclusion is prohibited. During this reporting period, there were no instances of the use of seclusion. To ensure that the Department continues to meet criteria for EC 11, Minnesota Life Bridge will continue trairung to ensure staff awareness of the prohibition of seclusion. The Jensen Implementation Office will verify that staff training on prohibited techrnques continues to take p lace at new employee orientation and at annual staff training sessions. Evaluation Criteria 12 There were zero instances ofthe use ofRoom Time Out from Positive Reinforcement. Facility policy shall specify that the use oftime outfrom positive reinforcement is prohibited. State of Compliance The Department has met criteria for Evaluation Criteria 12. Facility policy continues to specify that the use of time out from positive reinforcement is prohibited. During this reporting period, there were zero instances of the use of Room Time Out from Positive Reinforcement. To ensure that the Department continues to meet criteria for EC 12, Minnesota Life Bridge will continue training to ensure staff awareness of the prohibition of the use of room time out from positive reinforcement. The Jensen Implementation Office will verify that staff training on prohibited techniques continues to take place at new employee orientation and at annual staff training sessions.
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jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
Settlement Agreement Section V.D. Prohibited Techniques - Chemical Restraint
(EC 13 -14) Evaluation Criteria 13
There were zero instances ofdrug I medication use to numage resident behavior OR to restrain freedom ofmovement. Facility polictj specifies the Facility shall not use chemical restraint. A chemical restraint is the administration ofadrug or medication when it is used as a restriction to manage the resident 's behavior or restrict the resident's freedom ofmovement and is not a standard treatment or dosage for the resident's condition.
State of Compliance
The Department has met criteria for Evaluation Criteria 13. Facility policy continues to specify the facility shall not use chemical restraint. During this reporting period, there w ere zero instances of drug I medication use to manage resident behavior OR to restrain freedom of movement. There have been no instances of chemical restraint since the U.S. District Court for the District of Minnesota adopted a Settlement Agreement on December 5, 2011.
To ensure that the Department continues to meet criteria for EC 13, Minnesota Life Bridge will continue training to ensure staff awareness of the prohibition of the use of chemical restraint. The Jensen Implementation Office will verify that staff training on prohibited techniques continues to take place at new employee orientation and at annu al staff training sessions.
Evaluation Criteria 14 There were zero instances ofPRN orders (standing orders) ofdrug/ medication used to manage behavior or restrictfreedom ofmovement. Facilih; policy specifies that PRNI standing order medications are prohibited from being used to manage resident behavior or restrict one's freedom ofmovement
State of Compliance
The Department HS has met criteria for Evaluation Criteria 14. Facility policy continues to specify PHN/standing order medications are prohibited from being used to manage resident behavior or restrict one's freedom of movement. During this reporting period, there were no instances of prohibited use of PRN /standing orders medication.
To ensure that The Department continues to meet criteria for EC 14, Minnesota Life Bridge will continue training to ensure staff awareness of the prohibition of PRN/ standing order medications to manage resident behavior or restrict one's freedom of movement. The Jensen Implementation Office will verify that staff training on prohibited techniques continues to take place at new employee orientation and at annual staff training sessions.
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Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report
Reporting Period: May 1 to September 30, 2015
Settlement Agreement Section V.E. Prohibited Techniques- 3rd Party Expert (EC
15- 24)
Evaluation Criteria 15 There is a protocol to contact a qualified Third Party Expert.
State of Compliance
The Department has met criteria for Evaluation Criteria 15. As of March 17, 2013, the Department had not been able to secure the services of qualified third party experts. In accordance with sections V.E. and V.F. of the Settlement Agreement, the Department initiated the Medical Officer Review.
The Department had identified as an obstacle finding qualified professionals willing to be a Third Party Expert.
Evaluation Criteria 16 There is a list ofat least 5 Experts pre-approved bt; Plaintiffs & Defendants. In the absence of this list, the DHS Medical or designee shall be contacted.
State of Compliance The Department has met criteria for Evaluation Criteria 16. In August 2014, in d iscussions with interested persons, people preferred at that time that Minnesota Life Bridge continue using the approved Medical Of6cer Review process rather than attempting to contract with an outside Third Party Expert.
The Department continues to have the approved Medical Officer Review process in place.
Evaluation Criteria 17 DHS has paid the Experts for the consultations
State of Compliance
The Department has met criteria for Evaluation Criteria 17. At this time, the Department continues to use the approved Medical Officer Review process.
Evaluation Criteria 18 A listed Expert has been contacted in each instance ofemergency use ofrestraint
State of Compliance
At this time, the Department continues to use the approved Medkal Officer Review process.
Stratton Lake, Brobergs Lake and East Central, had no emergency use of restraints during this reporting period. However, in the two emergency use of restraints on February 14, 2015 and April28,
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Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
2015, described in Evaluation Criteda 6, staff failed to contact the Medical Officer no later than 30 minutes after presentation of the emergency. These incidents occurred prior to the reporting period. During the February 14, 2015 incident, the staff person was not able to locate the phone number to call the Medical Director. S/he called the on-caJJ supervisor who provided the phone number, and then called the Medical Officer. During the April 28, 2015 incident, the staff forgot to call the Medical Officer because of the intensity of the situation following the use of the manual restraint, and because of the on-site presence of law enforcement. Minnesota Life Bridge management followed up with staff following each incident and determined there were no issues with staff performance du ring the incident. The numbers staff are to call are now clearly posted in all homes.
Evaluation Criteria 19 Each consuIta tion occurred no later than 30 minutes after presentation of the emergenClJ-
State of Compliance
At this time, the Department continues to use the approved Medical Officer Review process.
Stratton Lake, Brobergs Lake and East Central, had no emergency use of restraints during this reporting period. However, in the two emergency usc of restraints that occurred prior to this reporting period on February 14,2015 and April28, 2015, described in Evaluation Criteria 6, staff failed to contact the Medical Officer no later than 30 minutes after presentation of the emergency. During the February 14, 2015 incident, the staff person was not able to locate the phone number to call the Medical Director. S/he called the on-call supervisor who provided the phone number, and then called the Medical Officer. During the April28, 2015, incident, the staff forgot to call the Medical Officer because of the intensity of the situation following the use of the manual restraint, and because of the on-site presence of law enforcement. Minnesota Life Bridge management followed up with staff following each incident and determined there were no issues with staff performance during the incident. The numbers staff arc to call are now clearly posted in all homes.
Evaluation Criteria 20 Each use ofrestraint was an "emergenClJ."
State of Compliance
Stratton Lake, Brobergs Lake and East Central had no emergency use of restraints during this reporting period. Since January 1, 2015, there have been two incidents involving manual restraints on February 14, 2015 and on April28, 2015. Both occurred at Stratton Lake, involved two different people, and occurred prior to this reporting period. These incidents were described in detail under Evaluation Criteria 6. In both incidents, Minnesota Life Bridge management determined that the emergency use of manual restraint was appropriate.
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jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
Evaluation Criteria 21 The consultation with the Expert was to obtain professional assistance to abate the ernergenCIJ condilion, including the use ofpositive behavioral supports lech1tiques, safety techniques, and other best practices. If the Expert: was not available, see V.F. below.
State of Compliance At this time, the Department continues to use the approved Medical Officer Review process. Stratton Lake, Brobergs Lake and East Central, had no emergency use of restraints during this reporting period. However, in the two emergency use of restraints that occurred outside of this reporting period on February 14, 2015 and April28, 2015, described in Evaluation Criteria 6, staff failed to contact the Medical Officer no later than 30 minutes after presentation of the emergency.
See also Evaluation Criteria 19
Evaluation Criteria 22 The responsible Fadlity supervisor contacted the DHS medical officer on call not later than 30 minutes after the emergtmct) restraint use began.
State of Compliance
Stratton Lake, Brobergs Lake and East Central, had no emergency use of restraints during this reporting period. However, in the two emergency usc of restraints that occurred outside of the reporting period on February 14, 2015 and April28, 2015, described in Evaluation Criteria 6. staff failed to contact the Medical Officer no later than 30 minutes after presentation of the emergency. See also Evaluation Criteria 19
Evaluation Criteria 23 The medical officer assessed the situation, suggested strategies for de-escalating the situation, and approved of, or discontinued the use ofrestraint.
State of Compliance Stratton Lake, Brobergs Lake and East Central, had no any emergency use of restraints during this reporting period. However, in the two emergency use of restraints that occurred outside of the reporting period on February 14,2015 and April28, 2015, described in Evaluation Criteria 6, staff failed to contact the Medical Officer no later than 30 minutes after presentation of the emergency.
See also Evaluation Criteria 19
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Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
Evaluation Criteria 24 The consultation with the medical officer was documented in the resident's medical record.
State of Compliance
Stratton Lake, Brobergs Lake and East Central, had no emergency use of restraints during this reporting period. However, in the two emergency use of restraints that occurred outside of the reporting period on February 14, 2015 and April28, 2015, described in Evaluation Criteria 6, staff failed to contact the Medical Officer no later than 30 minutes after presentation of the emergency.
See also Evaluation Criteria 19
Settlement Agreement Section V.G. Prohibited Techniques- Zero Tolerance for Abuse and Neglect (EC 25- 27)
Evaluation Criteria 25 All allegations were fully investigated and conclusions were reached. Individuals conducting investigations will not have a direct or indirect line ofsupervision over the alleged perpetrators; the DHS Office ofthe Inspector General satisfies this requirement. Individuals conducting investigations, interviews and/or writing investigative reports will receive competency-based training in best practices far conducting abuse I neglect investigations involving individuals with cognitive and/or mental henUh disabilities and interviewing.
State of Compliance
Between May and September 2015, the Office of Inspector General issued 14 reports on investigations involving Jensen Class Members. These reports contained 17 allegations. Nine of the 14 reports included a substantiated finding.
Two of the nine reports with a substantiated finding involved two different vulnerable adults at d ifferent Minnesota State Operated Services facilities. Seven of the nine reports with a substantiated finding involved private providers; two of the seven reports involved the same vulnerable adult (J3) with the same private provider. The Office of Inspector General determined that the substantiated maltreatment for which the staff person was responsible in both reports involving J3 did not meet statutory criteria to be determined as recurring or serious. No additional reports were received involving this vulnerable adult or provider during this reporting period.
The Department's Chief Compliance Officer Gregory Gray continues to meet the qualifications to conduct peer quality reviews of investigations and has continued to provide peer quality reviews of investigations. The Department also continues to contract with Greg Wiley as needed, to conduct independent investigations. Mr. Wiley has completed the required competency-based training.
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Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
Evaluation Criteria 26 All staffmembers found to have committed abuse or neglect were disciplined pursuant to DHS policies and collective
bargaining agreement, if applicable.
State of Compliance The Department Office of the Inspector General substantiated one allegation of neglect involving three Minnesota Life Bridge employees in May 2014. The process is underway to determine what actions the Department will take with each employee pursuant to policies and the bargaining agreement. The employees have not exhausted their appeal rights. Since the Office of Inspector General issued their May 20, 2014 report regarding their completed investigation, two of the three employees have appealed. Appea l hearings were scheduled for January 2015 and March 2015, but both hearings were postponed. The two employees who appealed are still working at Minnesota Life Bridge in accordance with their union/employee rights. The third employee who did not appeal, no longer works at Minnesota Life Bridge (since January 2015). Internal review completed by the jensen Implementation Office has determined that Minnesota Life Bridge followed policies and procedures. Minnesota Life Bridge and the jensen Implementation Office will continue to monitor the legal process and follow the Department's policy and Union contracts regarding disciplinary actions.
Evaluation Criteria 27 Where appropriate, the State referred matters ofsuspected abuse or neglect to the county attorneyfor crimi11al prosecution. State of Compliance There were no known referrals of suspected abuse or neglect sent to the county attorney for criminal prosecution during this reporting period. The Department, Minnesota Life Bridge and the jensen Implementation Office will continue to monitor for suspected abuse or neglect.
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Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
Settlement Agreement Section VI.A. Restraint Reporting & MGMT- Form 31032 (EC 28- 30)
Evaluation Criteria 28 Form 31032 (or its successor) was fully completed whenever use was made ofmanual restraint.
State of Compliance
The DHS-3654 Form is the current form for reporting restraint use, 911 calls, and client requests for PRN medications. The Minnesota Life Bridge designated coordinator is responsible for reviewing the DHS-3654 forms for compliance. The designated coordinator is also responsible to follow up with the staff responsible for completing the for m if there is any missing or unclear information or if staff did not submit the form timely.
There were no instances of manual restraint use at Minnesota Life Bridge during this reporting period.
Evaluation Criteria 29 For each use, Form 31032 (or its successor) was timely completed by the end ofthe shift.
State of Compliance
The DHS-3654 Form is the current form for restraint use, 911 calls, and client requests for PRN medications. The Minnesota Life Bridge designated coordinator is responsible for reviewing the DHS-3654 forms for compliance. The Minnesota Life Bridge designated coordinator is responsible for reviewing the DHS-3654 forms for compliance. The d esignated coordinator is also responsible to follow up with the staff responsible for completing the form if there is any missing or unclear information or if staff did not submit the form timely.
There w ere no instances of manual restraint use at Minnesota Life Bridge during this reporting period.
Evaluation Criteria 30 Each Form 31032 (or its successor) indicates that no prohibited restraint was used.
State of Compliance
The DHS-3654 Form is the current form for restraint use, 911 calls, and client requests for PRN medications. The Minnesota Life Bridge designated coordinator is responsible for reviewing the DHS-3654 forms for compliance. The designated coordinator is also responsible to follow up with the staff responsible for completing the form if there is any missing or unclear in formation or if staff did not submit the form timely.
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There were no instances of manual restraint use at Minnesota Life Bridge during this reporting period.
Settlem ent Agreement Section VI.B. Restraint Reporting & MGMT- Notifications (EC 31- 37)
Evaluation Criteria 31 Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the Office ofHealth Facility Complaints. State of Compliance There were no instances of manual restraint use at Minnesota Life Bridge during this reporting period.
Evaluation Criteria 32 Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was .submitted to the Ombudsman for MH & DD State of Compliance There were no instances of manual restraint use at Minnesota Life Bridge during this reporting period.
Evaluation Criteria 33 Within 24 hours, and no later than one business ilo.y, Form 31032 (or its successor) in each instance was submitted to the DHS Licensing
State of Compliance There were no instances of manual restraint use at Minnesota Life Bridge during th is reporting period. Evaluation Criteria 34 Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the Court Monitor and to the DHS Internal Reviewer
State of Complian ce There were no instances of manual restraint usc at Minnesota Life Bridge during this reporting period.
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Jensen Settlement Agreement Comprehensive Plan of Action N inth Compliance Update Report Reporting Period: May 1 to September 30, 2015
Evaluation Criteria 35 Within 24 hours, and no later than one business day, Form 31032 (or its successor) in ead1 instance was submitted to the legal representative and/or family to the extent permitted by law. State of Compliance There were no instances of manual restraint u se at Minnesota Life Bridge during this reporting period. Evaluation Criteria 36 Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the Case manager. State of Compliance There were no instances of manual restraint use at Minnesota Life Bridge during this reporting period. Evaluation Criteria 37 Wi thin 24 hours, and no later than one business day, Form 31032 (or its successol') in each instance was submitted to the Plaintiffs' Counsel. State of Compliance There were no instances of manual restraint usc at Minnesota Life Bridge during this reporting period.
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Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
Settlement Agreement Section VI.C. Restraint Responses Are Not To Replace Other Incident Reporting, Investigation, Analysis & Follow-Up (EC 38)
Evaluation Criteria 38 Other reports, investigations, analyses and follow up were made in each case ofrestraint use.
State of Compliance
There were no instances of manual restraint use at Minnesota Life Bridge during this reporting period.
Minnesota Life Bridge and the Jensen implementation Office is working with the Disability Services Division on review and analysis of Behavior Intervention Report Form (BIRF) 5data.
Beginning in October 2015, incident trend graphing will also be included in the Minnesota Life Bridge Incident Review Committee meeting notes. The Jensen Implementation Office data analyst will work with the Minnesota Life Bridge Information Coordinator to continue to identify and address trends and/or patterns from investigations.
Settlement Agreement Section VII.B. Restraint Review- Internal Reviewer (EC 39 41)
Evaluation Criteria 39 In consultation with the Court Monitor during the duration ofthe Court's jurisdiction, DHS designates one employee as Internal Reviewer whose duties include afocus on monitoring the use of, and on elimination ofrestraints.
State of Compliance
The Department has met criteria for Evaluation Criteria 39. During this reporting period, Dr. Richard Amado concluded his responsibilities as the Jensen Internal Reviewer. Until the Department identified and hired the new Internal Reviewer, Dr. Mary Piggott, a Ph.D. level, positive behavior support professional who currently works in the Department Disability Services Division's Community Capacity Team provided coverage of the Internal Reviewer responsibilities. Prior to Dr. Piggott assuming these duties, she received trainjng from Dr. Amado. Dr. Amado was also available as needed for on-going mentoring.
ln spite of an aggressive recruitment plan, the Department was unable to identify qualified candidates at the salary and classification that the Department DHS was able to offer. Through networking, the
s "Behavior intervention report form" means the form prescribed by the commissioner to collect data in accordance with the requirements in M innesota Statutes 245.8251. subdivision 2.
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jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30,2015
Department learned that Dr. Daniel Baker might be interested in the position if the Department could meet his salary requirements.
The Department's Human Resources Division and the jensen Implementation Office worked with Minnesota Management and Budget to allow an exception so that the Department could hire Dr. Baker to an Administrative Agency Division Director Senior unclassified position to meet Dr. Baker's salary requirements. The Jensen Implementation Office extended an offer to Dr. Baker, which was accepted. Dr. Baker will start his new position in December 2015.6
Dr. Baker's clinical focus is on positive behavior support, models of community and educational support, transition services, and mental health services for persons with disabilities. Dr. Baker earned his Ph.D. in Educational Psychology in 1992 and a Teaching License in 1990 from the University of Minnesota. He has worked with people with a range of disabilities; his applied work includes work in schools, residential settings for people with disabilities, recreational programs, and employment supports.
Dr. Baker is well pubLished in both edited books and journals. Most of his published work addresses strategies for teaching dixect care staff to work with persons who present challenges. His contributions earned him the 2010 Clinical Practice Award from NADD, an international professional association dedicated to advancing mental wellness for persons with Intellectual or Developmental Disabilities. Dr. Baker is a reviewer for the journa ls Tntellectual and Developmental Disabilities, American Journal ofIntellectual and Developmental Disabilities, and Research in Developmental Disabilities. Dr. Baker is involved with NADD, an association for persons with developmental disabilities and mental health needs, serving on the Board of Directors and co-editing The NADD Bulletin from 2006-2011.
Previously Dr. Baker was the Director of Community Positive Behavior Support, Transition, and Supported Employment Projects, and Associate Professor of Pediatrics at The Boggs Center on Developmental Disabilities, Rutgers University- Robert Wood Johnson Medical School.
Dr. Baker will receive training and mentoring from Dr. Amado and Dr. Piggott during December 2015. Beginning January 2016, Dr. Baker will assume responsibility of the monthly reports regarding Minnesota Life Bridge clients.
The jensen Implementation Office e-mails the monthly Internal Reviewer reports to the Court Monitor, the Plaintiffs' Counsel, and the Office of Ombudsman for Mental Health and Developmental Disabilities and the Minnesota Governor's Office for Developmental Disabilities. These reports are also stored electronically on the Department's Jensen Settlement Agreement SharePoint site.
6 Dr. Baker officially started with the Department on December 1, 2015
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Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
Evaluation Criteria 40 The Facilihj provided form 31032 (or its successor) to the Internal Reviewer within 24 hours of lhe use ofmanual restraint, and no later than one business day.
State of Compliance
The Department has met criteria for Evaluation Criteria 40. There were no instances of manual restraint use during this reporting period.
To ensure that the Department continues to meet criteria for Evaluation Criteria 40, the new Internal Reviewer will receive training and mentoring by Dr. Amado and Dr. Piggott and the Jensen Implementation Office on responsibilities of the Internal Reviewer.
Minnesota Life Bridge will continue to provide notification to the Internal Reviewer within 24 hours of the use of a manual restraint.
Evaluation Criteria 41 Tlte Internal Reviewer will consult with staffpresent and directly involved with each restraint to address: 1) Wht;lhow deescalation strategies and less restrictive interventions failed to abate the threat ofharm; 2) What additional behavioral support strategies may assist the individual; 3) Systemic and individual issues raised btJ the use of restraint; and 4) the Internal Reviewer will also review Olmstead or other issues arising from or related to, admissions, discharges and other separations from the facility.
State of Compliance
The Department has met criteria for Evaluation Criteria 41. During this reporting period, Dr. Richard Amado concluded his responsibilities as the Jensen Internal Reviewer. Until the Department identified and hired the new Internal Reviewer, Dr. Mary Piggott a Ph.D.-level, positive behavior support professional who currently works in the Department's Disability Services Division's Community Capacity Team provided coverage of the Internal Reviewer responsibilities as identified in Evaluation Criteria 41. Prior to Dr. Piggott assuming these duties, she received training from Dr. Amado. Dr. Amado was also available as needed for on-going mentoring.
In spite of an aggressive recruitment plan, The Department was unable to identify qualified candidates at the salary and classification that the Department was able to offer. The Department's Human Resources Division and the Jensen Implementation Office worked with Minnesota Management and Budget to allow an exception to allow the Department to hire Dr. Baker to an Administrative Agency Division Director Senior unclassified position to meet Dr. Baker's salary requirements.
The Jensen Implementation Office extended an offer to Dr. Baker, which was accepted. Dr. Baker will start his new position in December 2015. Dr. Baker will receive training and mentoring from Dr. Amado and Dr. Piggott during December 2015 and beginning January 2016, Dr. Baker will assume responsibility of the monthly reports on Minnesota Life Bridge clients.
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For additional information on Dr. Baker's qualifications, see Evaluation Criteria 39
Settlement Agreement Section VII.B. Restraint Review - External Reviewer (EC 42
- 44) Evaluation Criteria 42
On April 23, 2013, the Court appointed the Court Monitor as the F.xternal Reviewer, with the consent ofPlaintiffs and Defendants. DHS funds the costs ofthe external reviewer.
Evaluation Criteria 43 After providing Plaintiffs' Class Counsel and the Department the opportunity to review and comment on a draft, the External Reviewer issues written qum·terly reports informing the Department whether the Facility is in substantial compliance with the Agreement and the incorporated policies, enumerating the factual basis for its conclusions.
Evaluation Criteria 44 In conjunction with duties and responsibilities under the Order ofjuly 17, 2012, the Court Monitor reviews and makes judgments on compliance, makes recommendations and offers technical assistance in his discretion, and files quarterly and other reports with the Court. Timing ofreports is subject to the Court's needs, results ofMonitor's reviews, and tc the monitoring plan pursuant to the Order ofAugust 28, 2013.
State of Compliance
The Department has met criteria for Evaluation Criteria 42, 43, and 44. During this reporting period, the Jensen Implementation Office received and responded to 18 requests for information on specific Jensen Class Members from the Court Monitor. These included requests for information on specific class members as well as requests for reports, access to DSD County E-list, Minnesota Life Bridge Incident Review Committee Meeting Notes and Commitment orders. In addition to these 18 requests from the Court Monitor, the Department sent to the Court Monitor 41 "Notices." Notices include DHS-3654 forms (Notice of Emergency Use of Manual Restraint, PRN medication requests, and 911 calls), admission /discharge information and major incidents in volving class members. The Jensen Implemen tation Office also provides regular updates on three Jensen Class Members to the Court Monitor.
To ensure the Department continues to meet criteria for Evaluation Criteria 42, 43, and 44, the Jensen Implementation Office will continue to respond timely to Court Monitor requests for information and address Court Monitor recommendations and reports. The Jensen Implementation Office will document Court Monitor requests and the Department's responses in the DHS Jensen Settlement Agreement SharePoint site.
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External Entity and Plaintiffs' Access (EC 45 - 46)
Evaluation Criteria 45 The following have access to the Facility and its records: The Office ofOmbudsman for Mental Health and Developmental Disabilities, The Disability Law Center, and Plaintiffs' Class Counsel.
Evaluation Criteria 46 The following exercised their access authority: The Office of Ombudsman for Men tal Health and Developmental Disabilities, The DisabilihJ Law Center, and Plaintiffs' Counsel.
State of Compliance
The Department has met criteria for Evaluation Criteria 45 and 46. There has been and will be no limits on access to the Facility and its records for the Office of Ombudsman for Mental Health and Developmental Disabilities, the Disability Law Center, and Plaintiffs' Class Counsel.
Settlement Agreement Section VIII. Transition Planning (EC 47- 53)
Evaluation Criteria 47 The State undertakes best efforts to ensure that each resident is served in the most integrated setting appropriate to meet such person's individualized needs, including home or community settings. Each individual currently living at the Facilil:l;, and all individuals admitted, will be assisted to move towards more integrated community settings. These settings are highly individualized and maximize the opportunity for social and physical integration, given each person's legal standing. In every situation, opportunities to move to a living situation with more freedom, and which is more typical, will be pursued.
State of Compliance
Minnesota Life Bridge provides people with the most integrated or best alternative setting while they plan for further transition to a more integrated setting in the community. For all persons served a t Brobergs Lake and Stratton Lake facilities, Minnesota Life Bridge develops a draft transition plan within 30 days of admission that includes requirements identified in the Comprehensive Plan of Action and Jensen Settlement Agreement.
The Jensen Implementation Office completed desk audits of the transition plans for the three people who transitioned from Minnesota Life Bridge during this reporting period. Desk audits scores of these plans were 94% (Dl} 95% (Sl) and 94% (S2). Transition plans for these three people include the elements identified in the CPA and Jensen Settlement Agreement.
During this reporting period, for the seven people receiving services at Minnesota Life Bridge three people moved out/transitioned from Stratton Lake and one person went from Stratton Lake to jail. However, the person who went from Stratton Lake to jail eventually transitioned to a community placement. As part of the transition process, Minnesota Life Bridge offered all people the opportunity to explore potential communities to identify places they find of value in a community, and to generate
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jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
an impression of the community prior to committing to relocating there. All people had opportunities to meet potential housemates, interview staff and providers and spend time in the home. Minnesota Life Bridge gives all people the opportunity to make a choice about the living situation, request program enhancements or adjustments, or decline the option, as their transition process progresses. These opportunities appear to be helpful for people to Jearn how much their choices are valued, to have options, and to make plans and decisions.
One Minnesota Life Bridge client declined an option after visiting the home, residents, and staff on multiple occasions, as he learned more about how the home was not a good fi t for his preferences. Minnesota Life Bridge supported his decision despite persistence from the provider and the county that the move was ready to happen. The person has now identified a new home that is a better fit for his preferences and is working on the transition to this location.
The Department will continue best efforts to identify and overcome obstacles to continued compliance. One of the primary challenges to continued compliance is community capacity. Once the person is committed to the commissioner, many county case managers feel that they do not have options for secure placement for that person. Some of the people have exhausted housing options prior to commitment. Additionally, providers are apprehensive to take persons with challenging behaviors. In some cases, providers feel that it could make the other people that they would be living with vulnerable. Recent changes in Minnesota Statutes, Chapter 245D and Minnesota Rule 9544 (Positive Supports Rule), have also caused some providers to be very selective in who they serve. Providers have told county case managers they cannot risk the liability that comes with serving certain people and the Department should consider how we can give them some protection from licensing if they are doing what they can to support someone.
To secure more housing options, Minnesota Life Bridge issued a Request for Information (RFI) in the July 27, 2015 edition of the Minnesota State Register (40 SR 79) and in the November 2, 2015 edition of the Minnesota State Register (40 SR 505). The purpose of the request for information was to solicit
interest from private providers to collaborate with the Department I Minnesota Life Bridge to develop
innovative and creative service alternatives for persons with complex and challenging needs. The Department also sent notification of the Request for Information to ARRM7 members on June 8, 2015 and on July 1, 2015 and posted the Request for Information on the public site in SWIFT (State Wide Integrated Financial Tools).
The Request for Information generated responses from two providers, but only one provider with experience working with challenging situations came to discuss what Minnesota Life Bridge was and
7 The ARRM acronym stands for"Association of Residential Resources in Minnesota." However, because members provide a wide range of conununity-based services in addition to residential supports the organization is now referred to as "ARRM."
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whom the p rogram serves. Developing one provider at a time with support and follow-up by Minnesota Life Bridge might be a possible solution. Addition ally, the Department will work to incorporate Olmstead work plan objectives to address challenges regarding community capacity. The Department will provide detail of these activities in future reports.
Minnesota Life Bridge has reported that it is difficult for some treatment teams to accept the direction/expectation of Minnesota Life Bridge during the person's stay, such as the importance of seeking permanent options or lack of willingness to accept positive behavior support/person-centered approaches. There could possibly be the mindset of seeing Minnesota Life Bridge as a longer-term placement rather than short-term service while seeking permanent p lacem ent. Minnesota Life Bridge is retooling their approaches to address any misconceptions for future teams, to identify the chosen direction of the person more quickly and to help teams stay focused on the larger picture.
The Department continues to identify additional training needs. Comprehensive behavioral support training based on evidenced-base models and/or recognized standards is critical to abate the continued need for crisis placements. Inconsistent training efforts result in unpredictable responses to crises. There also continues to be a need for education on current best practices of person-cen tered planning. Minnesota Life Bridge, Successful Life Project, and Community Services and Supports will continue providing trajning, information, and technical assistance as needed to ensure personcentered planning is implemented in accordance with jensen Settlement Agreement, Olmstead, the Center for Medicare and Medicaid Services (CMS) Home and Community-Based Services regu lations, and Minnesota statutes and rules on positive supports and person-centered planning.
Evaluation Cri teria 48 The State actively pursues the appropriate discharge ofresidents and provided them with adequate and appropriate transition plans, protections, supports, and services consistent with such person's individualized needs, in the most integrated setting and to which the individual does not object.
State of Compliance
The Department has met the requirements of Evaluation Criteria 48. The Department has discharged all residents at MSHS-Cambridge to the community with person-centered t ransition plans. MSHSCambridge was closed effective August 30,2014.
For all persons served at Minnesota Life Bridge Brobergs Lake and Stratton Lake facilities, Minnesota Life Br idge staff develop a draft transition plan within 30 days of admission. Minnesota Life Bridge recently put into use an updated version of the transition plan format that will enhance the team's ability to create effective transition plans.
During this reporting period, the jensen Implemen tation Office completed desk audits of the transition plans for the three peop le who transitioned from Minnesota Life Bridge during this reporting p eriod. Desk audit scores for these plans were 94% (Dl) 95% (S1) and 94% (52). Transition
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plans for these three people also include the elements identified in the Comprehensive Plan of Action and Jensen Settlement Agreement.
The Jensw Implementation Office will meet with Minnesota Life Bridge staff by the end of December 2015 on improving the process for tracking changes on transition plans to identify when and what updates are made. Minnesota Life Bridge will implement agreed upon changes in January 2016.
The Department will continue best efforts to identify and overcome obstacles to continued compliance. One of the primary challenges to continued compliance is community capacity. Once the person is committed to the commissioner county case managers feel that it is no longer their responsibility to secure placement options for that person. There is a heavy dependence on Minnesota State Operated Community Services to create placement options. Additionally, Counties have shared with the Department that some providers are apprehensive to take persons who are transitioning from Minnesota Life Bridge. Recent changes in the requirements related to Minnesota Statutes chapter 245D, the positive supports rule and the risk that providers feel they take if things don't go well have also caused some providers to be very selective in who they serve. Providers have told county case managers they cannot risk the liability that comes with serving Minnesota Life Bridge clients. The Department will work to incorporate Olmstead work plan objectives to address challenges regarding community capadty. The Department will provide detail of these activities in future reports.
Sec also Evaluation Criteria 47 for additional challenges and barriers to discharge.
The Jensen Implementation Office will continue to provide training on Jensen Settlement Agreement requirements to counties, tribes, health plans, and providers. Working with the University of Minnesota -Institute of Community Integration, the Department published a Jensen "101" Module was in the College of Direct Supports in September 2015. No data are available yet on the number of people who have reviewed the module
Evaluation Criteria 49 Each resident, the resident's legal representative and/or family to the extent permitted by law, has been permitted to be involved in Ihe team evaluation, decision making, and planning process to the greatest extent practicable, using whatever communication method he or she (or thetj) prefer..
State of Compliance
The Department has met the requirements of Evaluation Criteria 49. For aLlll people served at Stratton Lake, Brobergs Lake, and East Central during this reporting period, the person, family, and/or legal representatives were encouraged to be involved in the team evaluation, decision-making, and planning process to the greatest extent p racticable. Minnesota Life Bridge invited 16 family members and/or legal representatives to be involved in the team evaluation, decision-making, and planning process; 13 family members and/or legal representatives were actively involved and two residents are their own guardians
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To ensure that the Department continues to meet the requirements of Evaluation Criteria 49, Minnesota Life Bridge will continue to have the person involved in the team evaluation, decisionmaking, and planning process to the greatest extent practicable and to invite the person's family and /or lega l representative(s) to be involved in those activities using the preferred communication method(s).
Evaluation Criteria 50 To foster each resident's self-determination and independence, the State uses person-centered planning principles at each stage of the process to facilitate the idenlification of the resident's specific interests, goals, likes and dislikes, abilities and strengths, as well as support needs.
State of Compliance
The Department has met the requirements of Evaluation Criteria 50. During this reporting period, all 11 people served at Stratton Lake, Brobergs Lake, and East CentraL had person-centered planning principles and positive behavioral supports, consistent with applicable best practices including, but not limited to the Association of Positive Behavior Supports, Standards of Practice for Positive Behavior Supports incorporated in their treatment planning. All11 people were involved in the development of their plans person-centered plans that included their preferred activities and choices for their goals and how they want to spend their time across the day. Many of the people served have minimal "freely-given, conflict-free" relationships. Part of the Minnesota Life Bridge program is to assist persons to connect to the community and to learn to develop healthy relationships.
During this reporting period, for all seven people served at Stratton Lake and Brobergs Lake, Minnesota Life Bridge enriched, altered, and moved forward each person-centered plan at least every 30 days, as the person became better known and was moving toward a new living situation. For residents of East Central, Minnesota Life Bridge reviewed and updated each person's person-centered plan quarterly. The residents at East Central consider East Central their home and very rarely choice to transition out.
The Jensen Implementation Office completed desk audits of the transition plans for the three people who transitioned from Mjnnesota Life Bridge during this reporting period. Desk audit scores for these plans were 94%, 95%, and 94 %. Transition plans for these three people also include the elements identified in the Comprehensive plan of Action and Jensen Settlement Agreement.
To ensure that the Department continues to meet the requirements of Evaluation Criteria SO, Minnesota Life Bridge recently put into place an improved version of the transition plan format that will enhance the team's ability to create effective transition plans. One of the challenges Minnesota Life Bridge has encountered is the provider's ability to implement the person-centered plan after the person has transitioned to the community. Minnesota Life Bridge staff are prepared to step in as
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needed after the person has transitioned to the community to provide supports and/ or referrals as needed.
Evaluation Criteria 51 Each resident has been given the opportunity to express a choice regarding preferred activities that contribute to a quality life.
State of Compliance
The Department has met the requirements of Evaluation Criteria 51. It is the current practice of Minnesota Life Bridge to provide all people with the opportunity to express choices regarding preferred activities. All J 1 people served at Stratton Lake, Brobergs Lake, and East Central had person-centered planning principles used to facilitate the identification of specific interests, goals, likes and dislikes, abilities and strengths and support needs. Minnesota Life Bridge provides frequent, daily opportunities to engage in activities meaningful to the person.
Minnesota Life Bridge will continue at least monthly meetings with people served to allow them to determine and express choices about their We. Minnesota Life Bridge will continue implementation and revision of plans as necessary.
When people are admitted to Minnesota Life Bridge, they are often in a crisis and it may take time for them to be able to identify goals and other areas. Minnesota Life Bridge works with the person to help them get to the point where they are more able to express choices.
Evaluation Criteria 52 It is the State's goal that all residents be served in integrated community settings and services with adequate protections, supports and other necessary resources which are identified as available by service coordination. Ifan existing setting or service is not identified or available, best efforts will be utilized to create the appropriate setting or service using an individualized service design process.
State of Compliance
The language in Evaluation Criteria 52 continues to be the State's goal. The Department has issued Bulletins to describe Minnesota Life Bridge and the Successful Life Project. Minnesota Life Bridge and the jensen Implementation Office have also provided training videoconferences and webinars. In 2014, the Jensen Implementation Office has sent to county case managers and providers the names of the people they serve who are jensen class members and therapeutic foUow-up members. The Jensen Implementation Office is developing a Jensen Case Manager Community of Practice to share information and best practices.
During this reporting period, Minnesota Life Bridge has offered all persons receiving services the opportunity to explore their future or potential future home communities to idenlify places they find of value in a home community, and to generate an impression of the community of interest prior to
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committing to relocating there. Minnesota Life Bridge conducts monthly inter-disciplinary team meetings and bi-weekly meetings with the person and their staff. Transition plans include choices for where people want to live and how the environment, roommates, and staff will interact with them. Transition plans are developed and refined over time, as the person moves past the crisis or emergent situation that led to their admission, and prepares for transition back to the community.
The persons residing at East Central consider that their home and so focus more of their time on integrating with the local community versus exploring I mapping it. One person has identified a possible new provider and is working with staff on the very early stages of exploration.
The Department will continue best efforts to identify and overcome obstacles to continued compliance. One of the primary challenges to continued compliance is community capacity. As persons transition out of Minnesota Life Bridge, it is difficult to locate housing that will provide an appropriate setting for them. Some of the persons need to be in a residential setting where there are no other people receiving services. As the housing market has been on an upswing in the last year or so, several potential houses became unavailable because of the timing of making offers. Efforts are in progress to make the process to locate and capture housing quicker and more efficient.
Minnesota Life Bridge issued a Request for Information (RFI) in the July 27, 2015, edition of the Minnesota State Register (40 SR 79) and in the November 2, 2015, edition of the Minnesota State Register (40 SR 505). The purpose of the request for information was to solicit interest from private providers to collaborate with the Department I Minnesota Life Bridge to develop innovative and creative service alternatives for persons with complex and challenging needs. The Department also sent notification of the Request for Information to ARRM8 members on June 8, 2015, and on July 1, 2015, and posted the Request for Information on the public site in SWIFT (State Wide Integrated Financial Tools).
The Request for Information generated responses from two providers, but only one provider with experience working with challenging situations involving person with disabilities came to discuss what Minnesota Life Bridge is and whom the program serves. Developing one provider at a time with support and follow-up by Minnesota Life Bridge might be a possible solution. Minnesota Life Bridge will continue to collaborate with the Disability Services Division Community Capacity Building team and the Community Supports Administration to locate, provide support for, or assist in the development of new services and new community residences. Additionally, the Department will work to incorporate Olmstead work plan objectives to address challenges regarding community capacity. The Department will provide detail of these activities in future reports.
8 The ARRM acronym stands for "Association of Residential Resources in Minnesota." However, because members provide a wide range of community-based services in addition to residential supports the organization is now referred to as "ARRM."
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Minnesota Life Bridge will also continue to work with providers willing to serve persons with complex behaviors and needs and to stress the necessity of identification of customized supports, driven by the person-centered plan developed by the person
Evaluation Criteria 53 The provisions under this Transition Planning Section lulve been implemented in accord with the Olmstead decision
State of Compliance
The Department has met the requirements of Evaluation Criteria 53. Interaction between the Jensen Implementation Office and the Olmstead Implementation Office occurs on an ad hoc basis, as well as at monthly scheduled meetings.
Minnesota Life Bridge continues to implement person-centered transition planning and provide people with opportunities to receive services in integrated settings, in accord with the Olmstead decision, to the extent possible and according to the preferences of the person. Minnesota Life Bridge will also continue to work with providers willing to serve persons with complex behaviors and needs and to stress the necessity of identification of customized supports, driven by the person-centered plan developed by the person.
Settlement Agreement Section IX.A. Other Practices at the Facility - Staff Training
(EC 54- 57)
Evaluation Criteria 54 Facility treatment staffreceived training in positive behavioral supports, person-centered approaches, therapeutic interventums, personal safety lechniques, crises intervention and post crisis evaluation.
State of Compliance
The Department has met the requirements of Evaluation Criteria 54. The Jensen Implementation Office has verified that Facility staff have received all required training. Dr. Steven Pratt, Direct Care and Treatment Medical Director has provided training sessions open to all Department employees on trauma informed care. A training session on trauma informed care is also included in New Employee Orientation for Facility treatment staff.
To ensure that the Department continues to meet the requirements of Evaluation Criteria 54, Minnesota Life Bridge will continue to monitor attendance at annual training sessions for the listed topics. Minnesota Life Bridge is organizing all historic training records for Minnesota Life Bridge staff for data entry into the Department's Pathlore Learning Management System, which the Department has updated to track individual staff competency results along with class completion. Minnesota Life Bridge will complete data entry into Pathlore by January 2016.
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Minnesota Life Bridge will also arrange for training sessions on trauma informed care or other topics for staff as needed. Evaluation Criteria 55
Facilitlj staff training is consistent with applicable best practices, including but not limited to the Association ofPositive Behavior Supports, Standards ofPracticefor Positive Behavior Supports (http://apbs.org). Stafftraining programs will be competenClJ-based with staffdemonstrating current competency in both knowledge and skills
State of Compliance The Department has met the requirements of Evaluation Criteria 55. All Minnesota Life Bridge staff receive training that is consistent with applicable best practices and are competency-based. Minnesota Life Bridge's new person-centered planning facilitator, Mike Sherman, started work on April22, 2015. Mr. Sherman's professional development plan includes attendance at a regional conference, involvement with the statewide person-centered thinking leaders progra~, and one-onone mentoring from a senior, person-centered planning professional. To ensure that the Department continues to meet the requirements of Evaluation Criteria 55, Minnesota Life Bridge is organizing all historic training records for Minnesota Life Bridge staff for data entry into the web-based the Department's Pathlore Learning Management System, which the Department has updated to track individual staff competency results along with class completion. Minnesota Life Bridge will complete data entry into Pathlore by January 2016. Evaluation Criteria 56 The provisions under this Transition Planning Section have been implemented in acrord with the Olmstead decision
State of Compliance The Department has met the requirements of Evaluation Criteria 56. The Jensen Implementation Office has verified that all new lilies for successor faciJjties have completed the required training. To ensure that the Department continues to meet the requirements of Evaluation Criteria 56, Minnesota Life Bridge is organizing all historic training records for Minnesota Life Bridge staff for data entry into the Department's web-based Pathlore Learning Management System, which the Department has updated to track individual staff competency resul ts along with class completion. Minnesota Life Bridge will complete data entry into Pathlore by January 2016.
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Evaluation Criteria 57 For each instance ofrestraint, all Facility staffinvolved in imposing restraint received all/he training in Therapeutic Interventions, Persotzal SafehJ Techniques, and Medically Monitoring Restraint
State of Compliance
There were no manual restraints used during this reporting period.
To ensure that the Department continues to meet the requirements of Eva luation Criteria 57, Minnesota Life Bridge will continue to provide its current training programs and to track staff attendance and completion of training. Minnesota Life Bridge is organizing all historic training records for Minnesota Life Bridge staff for d ata entry into the Department's web-based Pathlore Learning Management System, which the Department has updated to track individual staff competency results along with class completion. Minnesota Life Bridge will complete data entry into Pathlore by January 2016.
Settlement Agreement Section IX.B. Other Practices at the Facility- Hours of Training (EC 58)
Evaluation Criteria 58 Facility staffreceive the specified number ofhours of training: Person-centered planning and positive behavior supports (with at least sixteen (16) hours on person-centered thinking I planning): a total40 hours; Post Crisis Evaluation and Assessment (4 hours).
State of Compliance
The Department has met the requirements of Evaluation Criteria 58. for Minnesota Life Bridge staf( the training hours identified in Evaluation Criteria 58 have been the standard of practice. The Minnesota Life Bridge training year runs from March 12 to March 11. The 2015/2016 annual training sched ule is in progress. Staff receive the specified hours of training, scheduled throughout the year
To ensure that the Department continues to meet the requirements of Evaluation Criteria 58, Minnesota Life Bridge will continue to provide its current training programs and to track staff attendance and completion of training. Minnesota Life Bridge is organizing all historic training records for Minnesota Life Bridge staff for data entry into the Department's web-based Pathlore Learning Management System, which the Department has updated to h·ack individual staff competency results along with class completion. Minnesota Life Bridge will complete data entry into Pathlore by January 2016.
The Minnesota Life Bridge Operations Manager or a designee and the jensen Implementation Office will continue to ensure that all staff receive the required training.
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Settlement Agreement Section IX.C. Other Practices at the Facility - Visitor Policy
(EC 59 - 61)
Evaluation Criteria 59 Residents are permitted unscheduled and scheduled visits with immediate family and/or guardians, at reasonable hours, unless the Interdisciplinary Team ([DT) reasonably determines the visit is contraindicated
State of Compliance
The Department has met the requirements of Eva luation Criteria 59. During this reporting period, all 11 people served at Stratton Lake, Brobergs Lake and East Central had friends and family visit whenever they wanted, and had no limits on visitor access to living areas.
The visitor policy identified in Evaluation Criteria 59- 61 continues to be Minnesola Life Bridge's facility policy and practice. Persons residing at the facility continue to visit with family and friends as desired. All Minnesota Life Bridge facilities allow scheduled and unscheduled visits. If there are any limits on visitors, based on the Interdisciplinary Team (lOT) determination or by Court Order, staff note that limit in the person's person-centered plan and/or facility records.
Evaluation Criteria 60 Visitors are allowed full and unrestricted access to the resident's living areas, including kitchen, living room, social and common areas, bedroom and bathrooms, consistent with all residents' rights to privacy.
State of Compliance
The Department has met the requirements of Evaluation Criteria 60. During this reporting period, all 11 people served at Stratton Lake, Brobergs Lake and East Central had friends and family visit whenever they wanted, and had no limits on visitor access to living areas. The visitor policy identified in Evaluation Criteria 59- 61 continues to be Minnesota Life Bridge facility policy and practice.
Staff discuss the visitor policy with people served at resident house meetings if there are any questions, concerns, or issues. If there are any limits on visitors, based on the lnterdisciplinary Team (IDT) determination or by Court Order, staff note that limit in the person's person-centered plan and/or facility records.
Evaluation Criteria 61 Residents are allowed to visit with immediate family members and/or guardians in private without staffsupervision, unless the IDT reasonably determines this is contraindicated.
State of Compliance
The Department has met the requirements of Evaluation Criteria 61. During this reporting period, all 11 people served at Stratton Lake, Brobergs Lake, and East Central had friends and family visit
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whenever they wanted, and had no limits on visitor access to living areas. The visitor policy identified in Evaluation Criteria 59- 61 continues to be Minnesota Life Bridge facility policy and practice.
Staff discuss the visitor policy with people served at resident house meetings if there are any questions, concerns, or iss ues. If there are any limits on visitors, based on the Interdisciplinary Team (IDT) determination or by Court Order, staff note that limit in the person's person-centered plan and/or facility records.
Settlement Agreement Section IX.D. Other Practices at the Facility - No Inconsistent Publicity (EC 62- 64)
Evaluation Criteria 62 There is no marketing, recruitment ofclients, or publicity targeted to prospective residents at the facility.
State of Compliance
The Department has met the requirements of Evaluation Criteria 62. The Department does not engage in any marketing, recrui tment of clients, or publicity targeted to prospective residents.
Evaluation Criteria 63
The FacilihJ purpose is clearly stated in a bulletin to state court judges, county directors, social service supervisors and staff, county attorneys and Consumers and Families and Legal Representatives ofconsumers ofDevelopmental Disabilities services. Any admission will be consistent with the requirements of this bulletin.
The Department has met the requirements of Evaluation Criteria 63. DHS issued Bulletin# 14-76-01: Transition of Minnesota Specialtv Health System (MSHS)- Cambridge to Minnesota Life Bridge: Admission and Dischar~e Processes, Transition Planning and Community Mobile Support Services on April 29, 2014. All admissions to Minnesota Life Bridge are consistent with the requirements identified in the Bulletin. In addition to the Bulletin, information concerning admission to Minnesota Life Bridge is also available on-line in the Department's Community-13ased Services Manual.
Evaluation Criteria 64 The Facility has a mission consistent with the Settlement Agreement and this Comprehensive Plan ofAction.
State of Compliance
The Department has met the requirements of Evaluation Criteria 64. Minnesota Li fe Bridge's mission is consistent with the Jensen Settlement Agreement and functions as a transitional adult foster care home as required by the jensen Settlement Agreement and EC 64. "Successful Transition to a Successful Life" appropriately describes the intent and purpose of Minnesota Life Bridge. Minnesota Life Bridge's mission is also consistent with Olmstead's requirement to provide people with the most
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integrated or best alternative for its residents while they plan for further transition to a more integrated setting in the community.
Individualized treatment continues to be a main function of Minnesota Life Bridge homes; staff use person-centered planning approaches with all Minnesota Life Bridge residents. People using Minnesota Life Bridge services do not have the choice of housemate, given the intent of Minnesota Life Bridge to provide short-term services. Roommates are a necessity given the limited amount of space available. However, with input and approval from the person and their team, Minnesota Life Bridge has moved some residents to another home to allow them to be in a location without a roommate.
Providing services to persons with complex needs is a multi-faceted undertaking and subject to continuous improvement. As part of a Direct Care and Treatment /Disability Services Division Continuous Process Improvement Project, Minnesota Life Bridge is working with Disability Services Division and Community Based Services to identify and find solutions to the barriers in placing residents into community settings, as evidenced by the recent discharges from Minnesota Life Bridge.
Settlement Agreement Section IX.E. Other Practices at the Facility - Posting Requirements (EC 65 - 66)
Evaluation Criteria 65 The Facility posts a Patient·I Resident Rights or Bill ofRights, or equivalent, applicable to the person and the placement or service, the name and phone number ofthe person within the Facility to whom inquiries about care and treatmen.t may be directed, and a briefstatement describing lww to file a complaint with the appropriate licensing authority.
State of Compliance
The Department has met the requirements of Evaluation Criteria 65. There are three versions of the Minnesota Life Bridge Rights Notice. One version contains the Minnesota Department of Health Care Bill of Rights (Minnesota Statute 144.6505). Another version contains the Department Service Recipient Rights. The third version includes pictures and simpler text and is at the Flesch-Kincaid Grade level 5.0. Minnesota Life Bridge posts the three versions of the Rights Notice in each Facility and provides a copy to lhe person and family/guardian at admission.
Evaluation Criteria 66 The Patient I Resident Bill of Rights posting is in aform and with content which is understandable by residents and family I guardinns.
State of Compliance
The Department has met the requirements of Evaluation Criteria 66. There are three versions of the Minnesota Life Bridge Rights Notice. One version contains the Minnesota Department of Health Care Bill of Rights (Minnesota Statute 144.6505). Another version contains the Department Service
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Recipient Rights. The th ird version includes pictures and simpler text and is at the Flesch-Kincaid Grade level 5.0. Minnesota LHe Bridge posts the three versions of the Rights Notice in each Facility and provides a copy to the person and family/guardian at admission. As part of the admission process, Minnesota Life Bridge can provide the notice in other languages besides English, if needed.9
Settlement Agreement Section X.A. System Wide Improvements - Expansion of Community Support Services (EC 67 - 78)
Evaluation Criteria 67 The expansion ofcommunih) services under this provision allows for the provision ofassessment, triage, and care coordination to assure persons with developmental disabilities receive the appropriate level ofcare at the right time, in the right place, and in the most integrated setting in accordance with the U.S. Supreme Court decision in Olmstead v. L.C.,
527 u.s. 582 (1999).
State of Compliance
Legislative action in 1993 created seven Community Support Services (CSS) teams across the state. Community Support Services provides community-based crisis intervention services through its mobile teams to support clinically complex persons in the community and build community capacity. Community Support Services provides clinical consultation and technical assistance in all87 Minnesota counties. Community Support Services promotes supports that are person-centered and develop paid and non-paid caregiver skills. A primary emphasis for all services is to assist those who know the person best. Community Support Services may fill a direct service gap temporarily while elements of a successful life plan are developed. However, training and mentoring others remains the Community Support Services focus.
Community Support Services fully implemented its Statewide Referral Data Tracking system on April 21, 2015. From May 1, 2015 to September 30, 2015, Community Support Services received ten referral inquiries for people with developmental disabilities experiencing crisis; all ten inquiries resulted in referrals for Community Support Services.
On February 19, 2015, the Department launched the Single Point of Entry project. The Single Point of Entry is a Department-piloted process to improve the agency's ability to respond to requests for assistance in supporting people with disabilities who are in crisis. The Single Point of Entry pilot focuses on coordinating the Department efforts for the target population, defined as persons with
9 The MN Resident Bill of Rights (MN Department of Health statute version) is available online in several languages at htq>://www.health.state.mn.us/divs/fpc/consumerinfofjndex.html.
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developmental or intellectual disabilities in crisis and at risk of losing their current placement. See also section on the Single Point of Enh·y .
To ensure that the Department continues to meet the requirements of Evaluation Criteria 67, Community Support Services will continue providing assessment, triage, and care coordination so people can receive the appropriate level of care in the most integrated setting that they agree to. Community Support Services will continue to document their actions and efforts, and the impact on people's' stability. The weekly diversion meetings with Community Support Services, Minnesota Life Bridge, Successful Life Project, Disability Services Division and Central Pre-Admission will also continue and provide a platform to determine w here is the best place for the person referred to Minnesota Life Bridge to receive assessments or services.
Evaluation Criteria 68 The Department identifies, and provides long term monitoring of, individuals with clinical and situational complexities in order to help avert crisis reactions, provide strategies for service entry changing needs, and to prevent multiple transfers
within the system..
State of Compliance
The Department has met the requirements of Evaluation Criteria 68. Community Support Services continues to evolve and build community capacity to service person with developmental disabilities who are clinically complex. During this reporting period, Community Support Services staff provided services to people and their support networks statewide1o:
• From April 25 to June 30, 2015, staff provided services to 307 people and their support networks statewide. That number includes 61 people with developmental disabilities receiving long-term monitoring ("Extended Supports").
• From July 1 to August 31, 2015, staff provided services to 301 people and their support networks statewide. That number includes 62 people with developmental disabilities receiving long-term monitoring
• From September 1 to September 30, 2015, staff provided services to 295 people and their supp ort networks statewide. That number includes the 65 people with developmental disabilities receiving long-term monitoring.
The Jensen Implementation Office to work with Community Support Services to develop improved tracking of the 75 people receiving long-term monitoring as a means to provide monthly reports on unduplicated counts of people Community Support Services has served.

to These counts are not unduplicated.

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jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30,2015
Evaluation Criteria 69 Approximately seventy five (75) individuals are targeted for long term monitoring.
State of Compliance
The Department has met the requirements of Evaluation Criteria 69. During this reporting period, Community Support Services staff provided services to people with developmental disabilities receiving long-term monitoringll:
• From April 25 to June 30, 2015, staff provided services to 61 people with developmental disabilities receiving long-term monitoring.
• From July 1 to August 31, 2015, staff provided services to 62 people with developmental d isabilities receiving long-term monitoring.
• From September 1 to September 30, 2015, staff provided services to 65 people with developmental disabilities receiving long-term monitoring.
The Jensen Implementation Office is working with Community Support Services to develop improved tracking of the 75 people receiving long term monitoring as a means to provide monthly reports on unduplicated counts of people being served.
Evaluation Criteria 70 CSS mobile wrap-around response teams are located across lhe statefor proactive response to maintain living arrangements.
State of Compliance
The Department has met the requirements of Evaluation Criteria 70. Eight of the 23locations for Community Support Services regional or home offices are located in the greater Twin Cities metropolitan area. Fifteen of the 23locations are located in what is often termed "outstate" or "greater" Minnesota. The outstate locations arc generally located in towns or cities that are regional hubs that provide access to less populated areas of the state. Having teams located around the state allows for a quick response time for initial visits and crises, and allows for responses in the local settings (home, work, school, etc.).
To ensure that the Department continues to meet the requirements of Evaluation Criteria 70, Community Support Services will maintain locations of teams I staff to provide effective supports.
Evaluation Criteria 71 CSS arranges a crisis intervention within three (3) hours from the time the parent or legal guardian authorizes CSS' involvement.

l l There counts are not unduplicated.

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Reporting Period: May 1 to September 30, 2015
State of Compliance
During this reporting period, the average time between receiving initial inquiry and Community Support Services sending out consents for services was 3.23 hours. The average time between receiving signed consents for service and Community Support Services initial service contact was 1.31 hours. 12
Community Support Services has implemented a new electronic tracking form to monitor inquiries. There was time needed for staff to understand and correctly use the form. Community Support Services can now analyze the electronic database more easily than reviewing individual sheets of paper.
To ensure that the Department continues to meet the requirements of Evaluation Criteria 71, Community Support Services and the Jensen Implementation Office will continue to monitor implementation.
Evaluation Criteria 72 CSS partners with Communih) Crisis Intervention Services to maximize support, complement strengths, and avoid duplication.
State of Compliance
The Department has met the requirements of Evaluation Criteria 72. Community Support Services collaborates with a variety of community crisis intervention services providers to maximize support, complement strengths, and avoid duplication. There are regular and as-needed meetings on specific
situations and on policy I practice. There is also ongoing collaboration with the Metro Crisis
Coordination Program (MCCP), with quarterly meetings and ongoing interaction as needed to serve people.
Many of the people served by Community Support Services have a Medicaid Home and CommunityBased Services (HCBS) waiver. One way Community Support Services avoids duplication is the requirement for the lead agency case manager to authorize services and document them in the person's plan.
To ensure that the Department continues to meet the requirements of Evaluation Criteria 72, Community Support Services will continue ad hoc and scheduled meetings with private sector crisis
12 Whenever possible the lead consultant assigned to the case makes this initial contact to provide crisis intervention and initiate Community Support Services. When not possible for the assigned lead consultant to provide this initial service contact, the collaborative consultant ensures a seamless transition to the lead consultant through teaming or other methods as appropriate to the situation.
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intervention providers. Community Support Services will schedule regional meetings with lead agencies to discuss relevant resource issues and identify opportunities for strengthening Community Support Services supports.
Evaluation Criteria 73 CSS provides augmentative training, mentoring and coaching.
State of Compliance
The Department has met the requirements of Evaluation Criteria 73. Between April25 and September 30, 2015, Community Support Services staff provided 36 augmentative support trainings sessions and trained 292 people. Community Support Services' Augmentative Supports is a direct service response that works side-by-side with a provider's employees to remediate crisis-related and situational complexities through short-term interventions. The shift work emphasizes modeling, coaching, training and implementation of activities designed by Community Support Services clinical lead staff. From the 36 training sessions provided, Community Support Services received 252 completed Training Satisfaction Surveys.
To ensure that the Department continues to meet the requirements of Evaluation Criteria 73, Community Support Services will continue to provide augmentative training, mentoring and coaching, and will review curricula at least annually and update as appropriate. The jensen Implementation Office will verify the number of augmentative training, mentoring and coaching sessions Community Support Services provides, the number of people trained, and that Community Support Services reviews the curriculum at least annually and updated as appropriate.
Evaluation Criteria 74 CSS provides staffat community based facilities and homes with state ofthe art training encompassing person-amtered thinking, multi- modal assessment, positive behavior supports, consultation and facilitator skills, and creative thinking.
State of Compliance
Between l\pril25 and September 30,2015, Community Support Services staff provided 36 augmentative support trainings sessions and trained 292 people. Community Support Services' Augmentative Supports is a direct service response that works side-by-side with a provider's employees to remediate crisis-related and situational complexities through short-term interventions. Augmentative supports emphasizes modeling, coaching, training and implementation of activities designed by Community Support Services cl injcallead staff.
During this reporting period, Michael Scharr, MS/LP led a workgroup to update the Community Support Services Positive Behavior Support curriculum to address new elements of the fina lized
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Positive Supports Rule (MN Rule Chapter 9455) 13• Mr. Scharr also led a workgroup that is reviewing and updating the Community Support Services Multimodal Functional Behavioral Assessment training curriculum. To ensure that the Department continues to meet the requirements of Evaluation Criteria 74, Community Support Services will continue to provide augmentative training mentoring and coaching and will review curricula at least annually and update as appropriate. The Jensen Implementation Office will verify the number of augmentative training, mentoring and coaching sessions Community Support Services provides, the number of people trained and that Community Support Services reviews at least annually and updated as appropriate.
Evaluation Criteria 75 CSS' mentoring and coaching as methodologies are targeted lo prepare for increased community capacity to support individuals in their community.
State of Compliance The Department has met the requirements of Evaluation Criteria 75. Between April 25 and September 30,2015, Community Support Services staff provided 36 augmentative support trainings sessions and trained 292 people. Community Support Services' Augmentative Supports is a direct service response that works side-by-side with a provider's employees to remediate crisis-related and situational complexities through short-term interventions. Augmentative supports emphasizes modeling, coaching, train ing, and implementation of activities designed by Community Support Services clinical lead staff. To ensure that the Department continues to meet the requirements of Evaluation Criteria 75, Community Support Services will continue to provide targeted mentoring and coaching. The Jensen Implementation Office will verify the number of targeted mentoring and coaching sessions Community Support Services provided and the number of people trained.
13 With the implementation of Minnesota law, Chapter 2450 in January 2014, and the positive supports rule Minnesota Rule 9544 in August 2015, all providers must use positive supports in place of restrictive interventions. The law prohibits the use of punitive practices and procedures, such as seclusion and restraint. Legislation allows for an 11-month transition period, if needed, to end prohibited practices.
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Evaluation Criteria 76 An additional fourteen (14) full time equivalent positions were added between February 2011 and june 30, 2011, configured as follows: Two (2) Behavior Analyst 3 positions; One (1) Community Senior Specialist 3; (2) Behtlvior Analyst 1; Five (5) Social Worker Specialist positions; and Five (5) Behavior Management Assistants.
State of Compliance
The Department has met the requirements of Evaluation Criteria 76 prior to the adoption of this Comprehensive Plan of Action. To ensure that the Department continues to meet the requirements of Evaluation Criteria 76, Com munity Support Services will continue to maintain locations of teams and staff to provide effective supports, and will continue to hire or train staff as needed.
Evaluation Criteria 77 None of the identified positions are vacant.
State of Compliance
The Department has met the requirements of Evaluation Criteria 77. Community Support Services has not hired any new Behavior Analyst 3 positions (or equivalents) since December 14,2014.
To ensure that the Department continues to meet the requirements of Evaluation Criteria 77, Community Support Services monitors staffing on an ongoing basis. The Department will continue to hire and retain qualified individuals for/in these positions. If there is turnover, other staff fill in where possible to maintain services.
Community Support Services works actively with the Department's Human Resources unit to post and quickly fill vacant positions with qualified candidates. In general, Minnesota Management & Budget (MMB) processes applications for employment within the Department.
Evaluation Criteria 78 Staffconducting the Functional Behavioral Assessment or writing or reviewing Behtlvior Plans shall do so under the supervision ofa Behavior Analyst who hils the requisite educational background, experience, and credentwls recognized by national associations such as the Association ofProfessional Behavior Analysts. Any supervisor will co-sign the plan and will be responsible for the plan and its implementation.
State of Compliance
NADD (National Association for the Dually Diagnosed) has accepted Michael Scharr's (Community Support Services Supervisor responsible for reviewing behavior plans) application for NADD-CC Certification. Mr. Scharr has obtained further direction regarding the work sample requirements.
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Mr. Scharr contin ues to develop his sample clinical portfolio. Mr. Scharr will submit to the NADDCC accreditation committee his clinical portfolio, for their review, by December 1, 2015. 14
Settlement Agreem ent Section X.B. System Wide Improvements- Olmstead Plan (EC 79)
Evaluation Criteria 79 The State and the Department developed a proposed Olmstead Plan, and will implement the Plan in accordance with the Court's orders. The Plan will be comprehensive and will use measurable goals to increase the number ofpeople with disabilities receiving services that best meet their individual needs and in the "Most Integrated Setting," and which is consistent and in accord with the U.S. Supreme Court's clecision in Olmstead v. L.C., 527 U.S. 581 (1999). The Olmstead Plan is addressed in Part 3 of Ihis Comprehensive Plan ofAction. State of Compliance On September 29, 2015, U.S. District Judge Donovan Frank approved the Olmstead Plan submitted in August 2015. The jensen Implementation Office and other areas of the Department will continue to maintain interaction with the Olmstead Implementation Office for implementa tion and compliance with the Olmstead Plan.
Settlement Agreement Section X.C. System Wide Improvements - Rule 40 Modernization (EC 80)
Evaluation Criteria 80 Rule 40 modernization is addressed in Part 2 of this Comprehensive Plan ofAction. DHS will not seek a waiver ofRule 40 (or its successor) for a Facility. State of Compliance The Department has met the requirements of Eva luation Criteria 80. The Department has not, and will not, seek a waiver of the Positive Su pports Rule for a facility.
14 Mr. Scharr submitted his work sample to NADD on December 10, 2015
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Settlement Agreement Section X.D. System Wide Improvements- Minnesota Security Hospital (EC 81 - 84)
Evaluation Criteria 81 The State takes best efforts to ensure that there are no transfers to or placements at the Minnesota Security Hospital of persons committed solely as a person with a developmental disability.
State of Com pliance
On May 19, 2015, Minnesota Security Hospital admHted a person (W1) committed solely as a person with a developmental disability.
Since an earlier discharge from the Minnesota Security I Iospital, W1 had been involved in a number of significant incidents that included aggression towards staff, property destruction, attempts to harm himself, and elopement. At least three staff had sustained injuries that required immediate medical attention; additionally, three staff resigned in the first four weeks due to concerns for their safety.
Wl had attempted to elope on four occasions, with the last attempt on May 8, 2015, resulting in W1 getting into a neighbor's bus parked on their property with the keys in it, trying to start it, and breaking windows in the bus. When staff attempted to intervene, W1 seriously assaulted a staff member. Staff called the police who took W1 into custody.
It was the clinical opinion of the Department experts that the Minnesota Security Hospital provided the best option for evaluation and transition planning for the person at that time. The Department notified the Court Monitor, plaintiff's counsel and consultants on May 14, 2015, of the pending admission. The Department also filed a motion with the Court to address the admission. The Department has engaged and involved WI in the transition planning to the extent recommended by his clinicians.
Since admission, the Department has actively pursued transition planning. The Department is providing the court monitor, plaintiff's counsel, and consultants with weekly updates on the status of the transition for this person, and is actively collaborating with the consultants and involved county officials.
As part of Wl's transition planning, the Department obtained expert consultation and evaluation by Dr. Gary LaVigna, Clinical Director at the Institute for Applied Behavior Analysis. Dr. LaVigna completed his evaluation the week of June 15, 2015 and submitted W1's Functional Behavioral Assessment to the Department on July 24, 2015. The Department sent a copy of the assessment to the court monitor, plaintiff's counsel, and consultants. The Department also contracted with Betsy Gadbois to update Wl's person-centered plan. Ms. Gadbois is the Director of Training and Life Planning at Lutheran Social Service of Minnesota. Ms. Gadbois completed the updated personcentered plan to the Department on September 1, 2015.
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Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May I to September 30, 20I5
Exploration of community-based options began in June 2015. During this reporting period, the Department and the County of Financial Responsibility (CFR) explored many in state and out-of-state options. The CFR also published a Request for Information specifically for this person. Only one provider responded and, after an initial meeting with the CFR, they declined to be involved. The Department then offered a partnership for home searching through the "Whatever It Takes" Grant. Efforts to find or create a suitable home and program for WI continued throughout and beyond this reporting period. 1s
During this reporting period, the Department has provided timely communications to county attorneys and state courts responsible for commitments, and to all county directors and case managers, concerning commitments to Minnesota Security Hospital of persons committed with a sole diagnosis of developmental disabilities.
The Department will continue best efforts to identify and overcome obstacles to continued compliance. One of the biggest challenges to transitioning residents of Minnesota Security Hospital and Anoka Metro Regional Treatment Center back to their community is community capacity. Once the person is committed to the commissioner, some county case managers have reported that they feel that it is no longer their responsibility to secure placement options for that person. There is also a heavy dependence on Minnesota State Operated Community Services (MSOCS) to create placement options. Additionally, providers are apprehensive about taking persons with challenging behaviors. Recent changes in Minnesota law, Chapter 2450 and Minnesota Rule 9544 (Positive Supports Rule)16, have caused some providers to be very selective in who they serve. Providers have told county case managers they cannot risk the liability that comes with serving certain persons.
Identification of situations that could put people at risk of admission to Minnesota Security Hospital or Anoka Metro Regional Treatment Center should happen as early as possible. If the Department can provide supports early enough, a diversion from admission may be possible. As part of the Single Point of Entry pilot project, the Department is tracking persons with developmental disabilities who are nearing a crisis; however, as the Department improves its ability to identify persons in need of crisis services, it will need additional dedicated resources to support diversion activities, possibly including mobile teams and other crisis services. Improvement to the diversionary process could include establishing an improved county engagement process from the beginning. The Department
1s In January 20I6, the Department obtained a home and the transition to the new home is ongoing. Details of the transition, including staffing, training and program specifics will be included in future reports 16 With the implementation of Minnesota law. Chapter 245D in January 2014, and the positive supports rule Minnesota Rule 9544 in August 2015, all providers must usc positive supports in place of restrictive interventions. The law prohibits the use of punitive practices and procedures, such as seclusion and restraint. Legislation allows for an 11-month transi tion period, if needed, to end prohibited practices.
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jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
would expect the county to be engaged in proactive measures to obtain appropriate services for their person rather than state commitment to settings that are more restrictive.
The Department will work to incorporate Olmstead work plan objective to address challenges relating to community capacity and crisis services. The Department will provide detail of these activities in future reports.
Evaluation Criteria 82 There are no transfers or placements ofpersons committed solely as a person with a developmental disability to the Minnesota Security Hospital (subject to the exceptions in the provision).
State of Compliance
On May 19,2015, Minnesota Security Hospital admitted a person (W1) committed solely as a person with a developmental disability. Wl's situation is explained in detail in Evaluation Criteria 81. During this reporting period, the Department has provided timely communications to county attorneys and state courts responsible for commitments, and to all county directors and case managers, concerning commitments to Minnesota Security Hospital of person committed with a sole diagnosis of developmental disability.
See also EvaJuation Criteria 81
Evaluation Criteria 83 There has been no chat1ge in commitment status ofany person originally committed solely as a person with a developmental disability without proper notice to that person's parent amUor guardmn and a full hearing before the appropriate adjudicative body.
State of Compliance
The Department has met the requirements of Evaluation Criteria 83. There has been no change in commitment status of any person originally committed solely as a person with a developmental disability, without proper notice to that person's parent and/or guardian and a full hearing before the appropriate adjudicative body.
The Department's Central Pre-Admissions reviews all potential admissions and transfers to ensure compliance with the jensen Settlement Agreement and to ensure the most appropriate placement for the person.
Evaluation Criteria 84 All persons presently confined at Minnesota Security Hospital who were committed solely as a person with a developmental disability and who were not admitted with otherforms ofcommitment or predatory offender status set forth in paragraph 1, above, are transferred by the Department to the most integrated setting consistent with Olmstead v. L.C.,
527 U.S. 581 (1999).
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Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report
Reporting Period: May 1 to September 30, 2015
State of Compliance The Department has met the requirements of Evaluation Criteria 84. Prior to the adoption date of this Comprehensive Plan of Action, any person confined at Minnesota Security Hospital who was committed solely as a person with a developmental disability and who was not admitted with other forms of commitment or predatory offender status had been transferred to a community setting.
There are currently five Jensen class members at Minnesota Security Hospital:
• One person is under a Mentally Ill and Dangerous Commitment • Three people are solely committed as a person with a developmental disability, with
Predatory Offender status • One person is under a Mentally Ill Commitment, with Predatory Offender status
To ensure the Department continues to meet the requirements of Evaluation Criteria 84, the Department will continue to monitor potential admissions and transfers so there are no people committed to Minnesota Security Hospital solely as a person with a developmental disability, without other forms of commitment or predatory offender status.
Settlement Agreement Section X.E. System Wide Improvements- Anoka Metro Regional Treatment Center (EC 85)
Evaluation Criteria 85 All AMRTC residents committed solely as a person with a developmental disabilit'IJ and who do not have an acute psychiatric condition are transferred from AMRTC to the most integrated setting consistent with Olmstead v. L.C., 527
U.S. 581 (1999).
State of Com pliance There were two people with developmental disability diagnoses at Anoka Metro Regional Treatment Center because of psychiatric episodes referenced in the last Compliance Report. Anoka Metro Regional Treatment Center discharged the person admitted October 23, 2014, on June 6, 2015, to a community setting. The person admitted on September 10, 2014, has a unique commitment from Hennepin County. This person was committed as a person with a developmental disability on November 6, 2014, with an indefinite expiration date, and was committed as a person with mental illness on November 6, 2014; with an expiration date of November 12, 2015, to stabilize his/her psychiatric conditions.
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jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
The county case manager has identified a REM Foster Care home in Bloomington and an anticipated discharge is the week of October 26, 2015.17 REM s taff recently met with the person to review the treatment and care in preparation for discharge.
During this reporting period, the Department has provided timely communications to county attorneys and state courts responsible for commitments, and to all county d irectors and case managers, concerning commitments to Anoka Metro Regional Treatment Center of person committed with a sole diagnosis of developmental disabilities.
The Department will continue best efforts to identify and overcome obstacles to continued compliance. One of the biggest challenges to transitioning residents of Minnesota Security Hospital and Anoka Metro Regional Treatment Center back to their community is community capacity. Once the person is committed to the commissioner, many coun ty case managers feel that they do not have options to secure placement for that person. Some of the people have exhausted housing options prior to commitment. Additionally, providers are apprehensive to take persons with challenging behaviors. In some cases, providers feel that it could make the other people that they would be living with vulnerable. Recent changes in Minnesota Statutes, Chapter 245D and Minnesota Rule 9544 (Positive Supports Rule), have also caused some providers to be selective in who they serve. Providers have told county case managers they cannot risk the liability that comes with serving certain people and the Department should consider how they could offer providers some protection from licensing if they are doing what they can to support someone.
Identification of situations that could put people at risk of admission to Minnesota Security Hospital or Anoka Metro Regional Treatment Center should happen as early as possible. If the Department can provide supports early enough, a diversion from ad mission may be possible. As part of the Single Point of Entry pilot project. the Department is tracking persons with developmental disabilities who are nearing a crisis; however, as the Department improves its ability to identify persons in need of crisis services, it will need additional dedicated resources to support diversion activities, possibly including mobile teams and other crisis services. Improvement to the diversionary process could include establishing an improved cou nty engagement process from the beginning. The Department would expect the county to be engage in proactive measures to obtain appropriate services for their person rather than sta te commitment to settings that are more restrictive.
The Department w ill work to incorporate Olmstead work plan objective to address challenges relating to community capacity and crisis services. The Department will provide detail of these activities in future reports.
17 Anoka Metro Regional Treatment Center discharged the person on 10/28/15 to REM Homes in Bloomington.
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Jensen Settlement Agreemen t Com prehensive Plan of Action N in th Compliance Update Report Reporting Period: May 1 to September 30, 2015
Settlement Agreement Section X.F. System Wide Improvements - Language (EC 86
- 87) Evaluation Criteria 86 The term "mental retardation" has been replaced with "developmental disabilities" in any DHS policy, bulletin, website, brochure, or other publication. DHS will continue to communicate to local government agencies, counties, tribes, courts and providers that they should adhere to this standard.
State of Compliance
The Department has met criteria for Evaluation Criteria 86. The Department has replaced outdated terminology when identified in any Departmen t policy, bulletin, website, brochure, or other publication. The Department has included a Terminology disclaimer statement1Rto the Department's webpages and the Department's Bulletin Template.
Evaluation Criteria 87 DHS drafted and submitted n bill for the Minnesota Legislature that will require the replacement ofterms such as winsane," "mentally incompetent," "mental deficiency," and other simz1ar inapprapriate terms that appear in Minnesota statutes and rules.
State of Compliance
The Department has met criteria for EC 87. Changes to statute and rule language took place in 2013, and those remain in place. The 2014 Mjnnesota Legislature made additiona l changes to state statute and rule mostly changing the word "deficient."
Closure of MSHS-Cambridge and Replacement with Community Homes and Services (EC 88 - 96)
Evaluation Criteria 88 MSHS-Cambridge will be closed. There will be communitlJ treatment homes dispersed geographically. Any need for additional community treatment homes beyond four will be determined based on a specific assessment ofneed based on client needs with regard to such criteria as those at risk for institutionalization or re-institutionalization, behavioral or other challenges, multiple hospitalizations or other transfers within the system, serious reported injuries, repeated failed placements, or other challenges identified in previous monitoring or interventions.
State of Compliance
18 Terminology Disclaimer - The terminology used to describe people with disabilities has changed over time. The Minnesota Department of Human Services ("Department") supports the use of "People First" language. Although outmoded and offensive terms might be found within documents on the Department's website, the Department does not endorse these terms.
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Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

The Department has met criteria for Evaluation Criteria 88. On Aug. 29, 2014, the last person transitioned out of the Minnesota-Specialty Health System-Cambridge and the Department closed the facility as part of the terms of the Jensen Settlement Agreement. Minnesota Specialty Health System (MSHS)-Carnbridge transitioned to Minnesota Life Bridge, a community-based residential treatment program (Program) that currently has four homes:

Minnesota Life Bridge includes the following homes:

• Stratton Lake, located a

Isanti, MN 55040 (Isanti County), opened

March 2014. Stratton Lake is licensed for four people.

• Brobergs Lake, located a

Cambridge, MN 55008 (Isanti County), opened

September 8, 2014. Brobergs Lake is licensed for three people.

• Two ad ditional homes located at

Hastings, MN 55033

(Dakota County) are scheduled to be open in January 2016. One side is licensed for one

person; the other side is licensed for two people.

The Department will continue efforts to hire and train new staff as efficiently as possible to ensure all homes are fully staffed.
Evaluation Criteria 89 Staffhired for new positions as well as to fill vacancies, will only be staffwho have experience in community based, crisis, beluwioral and person-centered services and whose qualifications are consistent with the Settlement Agreement and currently accepted professional standards. Staffreassigned from MSHS-Cambridge will receive additional orientation training and supervision to meet these qualifications within 6 months ofreassignment.
State of Compliance
The Department has met criteria for Evaluation Criteria 89. Staff reassigned to Minnesota Life Bridge community homes from MSI-IS-Cambrid ge received additional orientation training and supervision to meet the listed qualifications w ithin six months of reassignment. All staff receive individual sitespecific training and continue to progress toward Annual training expectations. The Minnesota Life Bridge training year runs from March 12 to March 11. The 2015/2016 annual training sched ule is in progress.
Minnesota Life Bridge Person-Centered Plan Facilitator, Mike Sherman, started work at Minnesota Life Bridge on April22, 2015. Mr. Sherman has assumed responsibility for Person Centered Plans and associated staff training at Minnesota Life Bridge. Mr. Sherman has made himself available for trainings in other Direct Care and Treatment programs.

Evaluation Criteria 90 Provide integrated vocational options including, for example, customized employment.
State of Compliance

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Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
The Department has met criteria for Evaluation Criteria 90. The initial focus when a person begins receiving Minnesota Life Bridge services is to address the crisis or emergent situation that brought them to Minnesota Life Bridge. Once the person is able to get past that, they continue to develop and enrich their person-centered plans and transition planning.
Based on the person-centered work completed with each person served by Minnesota Life Bridge, opportunities for developing or exercising vocational skills are explored that meet the expressed interests of that person. Sometimes this entails learning or brushing up on pre-vocational skills and activities (for example, what an employer expects of an employee- hygiene, clothing, work hours). This could also entail skills assessments and discussions to better clarify educational or vocational needs. Based on the person's' needs and interests there could be are other individualized activities
To ensure that the Department continues to meet criteria for Evaluation Criteria 90, Minnesota Life Bridge will continue o~ering opportunities to people to explore and develop vocational skills and experiences. Minnesota Life Bridge will continue to assist people with vocational assessments, training, seeking I attaining resources, applying for and maintaining employment.
Evaluation Criteria 91 All requirements in this Comprehensive Plan ofActi.on are fully met for each individual served in the area ofPersonCentered Planning.
State of Compliance
The Department has met criteria for Evaluation Criteria 91. The process to fully meet all requirements in the area of person-centered planning is in place and operational. Revising and updating plans is an ongoing process. The Department will continue to review and revise policies, practices, forms, and templates for person-centered planning as necessary to comply with the Comprehensive Plan of Action. Training and technical assistance on person centered planning is available through Minnesota Life Bridge, Disability Services Division, Community Support Services, Jensen Implementation Office, the College of Direct Supports, and other sources.
Evaluation Criteria 92 All requirements in this Comprehensive Plan ofAction arefully metfor each individual served in the area ofTransition Planning.
State of Compliance
The Department has met criteria for Evaluation Criteria 92. The process to fully meet all requirements in the area of transition planning is in place and operational. Revising and u pdating plans is an ongoing process. The Department will continue to review and revise policies, practices, forms, and templates for transition planning as necessary to comply with the Comprehen sive Plan of Action. The Department will maintain best practices in supporting people to take meaningful steps towards the lives they envision for themselves.
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Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
Evaluation Criteria 93 DHS will provide augmentative service supports, consultation, mobile teams, and training to those supporting the person. Dl JS will create stronger diversion supports through appropriate staffing and comprehensive data analysis.
State of Compliance The Department has met criteria for Evaluation Criteria 93. The Department continues to provide and strengthen augmentative, diversionary, consultative, training, and mobile supports
The Department does provide "mobile teams," although the Department is not yet augmenting private staff as envisioned in the Department's Bu lletin /114-76-01. Transition of Minnesota Special tv Health System (MSHS) - Cambridge to Minnesota Life Bridge: Admission and Discharge Processes, Transition Planning and Community Mobile Support Services issued April29, 2014. There are not separate, distinct mobile teams; instead, Minnesota Life Bridge deploys current staff as needed.
Minnesota Life Bridge and Community Support Services have provided mobile supports to persons and providers. Dr. Tim Moore, together with Minnesota Life Bridge clinicians, have provided mobile support not only to persons living in their home in the community but also for persons receiving services at Anoka Metro Regional Treatment Center; Minnesota Security Hospital; Mental Health and Substance Abuse Treatment Services, Community Support Services cases. Dr. Tim Moore, together with Minnesota Life Bridge clinicians, have provided mobile support to persons in the Therapeutic Follow-up cohort, and those persons referred to Minnesota Life Bridge admissions.
Another example is the deployment of State Operated Services staff to assist with a short-term crisis placement of a person in a crisis home until a permanent community home is ready.
The Department continues best efforts to identify and overcome obstacles for continued compliance. One potential challenge to continued compliance is staffing/ labor management issues. The Department needs to determine if positions used on mobile teams require any special considerations with respect to contract obligations. Based on initial discussions with the Department's Human Resources division, it appears that MAPE employee positions are the best fit for this position category. There are also potential legal concerns that the Department needs to explore, including liability within another provider's site.
Funding is not currently a significant barrier as initial positions have been allocated in the Minnesota Life Bridge Fiscal Year 2016 budget; however, positions will need to have on-going funding.
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Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
Evaluation Criteria 94 All sites, programs and services established or utilized under this Comprehensive Plan ofAction shall be licensed as required by sta.te law. State of Compliance The Department has met criteria for Evaluation Criteria 94. Minnesota Life Bridge will continue to maintain appropriate licensure for all community settings by reapplying annually or as otherwise required. The Jensen Implementation Office will verify licenses are timely and appropriate by reviewing the DHS Licensing Lookup web page and storing a copy of the licenses in the Jensen SharePoint site. Services funded through Medical Assistance must be from p roviders registered with the Department. Evaluation Criteria 95 Residents currently at MSHS-Cambridge transition to permanent community homes. State of Compliance The Department has met criteria for Evaluation Criteria 95. The final person transitioned to a permanent community home from MSHS-Cambridge in August 2014. Evaluation Criteria 96 Residents currently at MSHS-Cambridge transition to permanent community homes. State of Compliance The Department has met criteria for Evaluation Criteria 96. The final person transitioned from MSHS-Cambridge transitioned to a permanent community home in August 2014. Minnesota Life Bridge provided competency-based training for all staff in successor facilities and programs, and on individual plan updates for aU persons receiving support. These trainings were fully suited for community life and both emphasize and reflect choice, self-determination, and other person-centered practices and values. Minnesota Life Bridge continues to provide competency-based training for staff in all Successor facilities and programs, and on plan updates for all persons receiving su pport. Minnesota Life Bridge provides required annual trainings on a rotating schedule throughout the year.
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Jensen Settlement Agreement Comprehensive Plan of Action N inlh Compliance Update Report Reporting Period: May 1 to September 30, 2015
Therapeutic Follow-Up of Class Members and Clients Discharged from METO/MSHS-Cambridge (EC 98)
Evaluation Criteria 98 DHS will maintain therapeutic follow-up of Class Members, and clients disd1arged from METOIMSI-IS-Cambridge since May 1, 2011, by professional staff to provide a safety network, as needed, to help prevent re-institutionalization and other transfers to more restrictive settings, and to maintain the most integrated settingfor those individuals..
State of Compliance The Successful Life Project (SLP) continues to support members of the therapeutic follow-up group including members at risk of losing their h omes, at risk of transfer to settings that are more restrictive, and those transitioning to n ew homes. The Successful Life Project team becomes involved with class members, per the prioritization guidelin es noted in DHS Bulletin 15-76-01 -Successful Life Pro ject :
• Persons known to be in crisis, as referred by: o Citizens o Court Monitor o Minnesota Department of Health o Minnesota Department of H uman Services o Family members and/or guardians o Lead agency representatives o Minnesota Office of the Ombudsman for Mental Health and Developmental Disabilities o Plaintiff Class Counsel o Provide rs
• Persons previously supported by METO or MSHS-Cambridge who were or are considered to be high profile persons as d etermined by the results of the Successful Life Project initial assessment, and subsequent assessments o Persons who were admitted to METO or MSHS-Cambridge m ultiple times o Persons who had the longest tenures of residence in METO or MSHS-Cambridge o Persons d ischarged from M ETO or MSHS-Cambridge for th e longest time without return o Persons most recently disch arged from MSHS-Cambridge
Information about the Successful Life Project is also available on-line in the Community-based Services Manual
As of September 30, 2015, the Successful Life Project completed 263 initial assessments as part of Phase I. Fifty-five assessments are still pending, for the following reasons. Fifteen people (or their legal representative) declined to participate in the initial assessment; 17 peop le were unable to be located/contacted; 23 people (and legal representatives where applicable) could not be reached.
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jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
In May 2015, project staff made follow-up phone calls to the 15 people (or their legal representative) who declined to participate in the initial assessment to encourage their participation. None of the people (or legal representatives) who declined to participate in the initial assessment d uring Phase I had changed their mind and consented to participate.
The Successful Life Project received assistance from the Office of Special Investigations for the 19 people project staff were unable to locate during Phase I. During this reporting period, the Office of Special Investigations was able to locate two people; Successful Life Project has contacted both these people and have completed their assessments leaving 17 (19-2) people that project staff are still unable to locate.
In May 2015, follow up letters and a copy of the Successful Life Project Bulletin were mailed to the case managers and the 26 people (and legal representatives where applicable) who could not be reached to schedule initial assessments during Phase I. As a result, three additional people have completed their initial assessments leaving 23 (26 -3) people who could not be reached.
The second phase of evaluations began March 16, 2015, w ith Successful Life Project continuing to focus on the priority list for scheduling contacts and assessments. Based on experience and feedback from the class members' teams, Successful Life Project has adjusted the tool and created a revised version referred to as the Positive Behavior Support- System Evaluation Tool (PBS-SET). Successful Life Project works in an individualized manner to evaluate the person's situation and to support the unique needs and circumstances for each person, in collaboration with support teams (including county case managers, guardians, providers, and the Department resources including Disability Services Division and Community Support Services. The Successful Life Project and Community Support Services arc continuously improving coordination and efficiency with teams on which they are both providing support.
There have been a couple of situations in which either the person or the family/ guardian have asked to be removed from the person-centered planning process. After discussion, they better understood what person-centered planning is about, and the value of person-centered planning, and have been willing to go forward with the assessment.
Successful Life Project Priority Tracking The Successful Life Project Priority Tracking list determines who is included in the second phase of assessments at that time. The number of people on the priority-tracking list is in constant flux as circumstances and needs can change quickly, and Successful Life Project can address some needs relatively quickly while others take more time to resolve. The timetable for project staff to work with each individual priority case is determined individually, and is a function of the unique events and circumstances in their lives. The Successful Life Project team tracks status and next steps for priority cases on a weekly basis in an electronic tracking system.
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Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May J to September 30, 2015
As of September 30, 2015, there were 43 people on the priority-tracking list. Successful Life Project provides priority-level support to persons based on their situation and needs identified either in the initial assessment or in subsequent referral or identification, and the prioritization criteria. During Successful Life Project Priority weekly meetings, project staff review the priority list to identify any corrections needed, updates to action plan and/or additional supports needed as well as any class member discussed at the Minnesota Life Bridge Diversion meeting
El Criminal Case Status Update In response to a report to the State of rape on or about August 6, 2014, the alleged perpetrator was arrested on August 13, 2014. St. Louis County charged the alleged perpetrator with Criminal SexuaJ Conduct in the 1st Degree and the person made a first court appearance on Augusl15, 2014. The court gave the alleged perpetrator a Rule 20 evaluation and on February 24,2015, the person was found by the court to be incompetent.
The Department's Compliance Division followed up with Karl Sundquist, prosecutor for St. Louis County, on April21, 2015, and provided a brief training on the Jensen Settlement Agreement with Mr. Sundquist explaining who the Court Monitor is and the Department's obligations under the Jensen Settlement Agreement for Class Members. Mr. Sundquist informed the Department that the charges against the alleged perpetrator are stayed due to the finding of incompetence and Lhat the alleged perpetrator is 73 years o ld, and is not anticipated to be found competent due to a d iagnosis of dementia.
Successful Life Project Staffing The Successful Life Project staffing currently includes a clinical coordinator, a registered nurse, and four certified behavioral analysts (BA3). Successful Life Project currently has one certified behavioral analyst vacancy.
Successful We Project is in the process of hiring one behavioral analyst certified position, in pursuit of a full complement of five board certified behavioral analysts (BCBA) staff. Successful Life Project cond ucted one interview for the certified behavioral analyst's position d uring this reporting period but chose not to hire the person. The Department will repast the certified behavioral analysts position in November or December 2015.
Amber Maki has filled the Successful Life Project Clinical Coordinator position. Amber Maki will assume responsibilities of the Successful Life Project Clinical Coordinator following the hiring and training of the two open certified behavioral analyst's positions in the Minnesota Life Bridge residential program. Until that time, Ms. Maki will continue to provide behavior analyst support for Minnesota Life Bridge and Dr. Tim Moore will continue directing the day-to-day operations of Successful Life Project.
The Successful Life Project RN continues to interface with each Board Certified Behavior Analyst on a weekly basis to ensure communication of important information from medical evaluations.
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Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
Modernization of Rule 40 (EC 99 - 104)
Evaluation Criteria 99 The scope ofthe Rule 40 modernization shall include all individuals with developmental disabilities served in programs, settings and services licensed by the Department, regardless of the setting in which they live or the services which they receive. As stated in the Settlement Agreement, the modernizntion ofRule 40 which will be adopted under this Comprehensive Plan ofAction shall reflect current best practices, including, but not limited to the use ofpositive and social behavioral supports, and the developmerrt ofplacement plans consistent with the principle ofthe 'most integrated setting' and 'person centered planning, and developmen.t ofan 'Olmstead Plan"' consistent with the U.S. Supreme Court's decision in Olmstead v. L.C., 527 U.S. 582 (1999).
State of Compliance
The Department has met criteria for Evaluation Criteria 99. The Department published the Notice of Adoption of Minnesota Rules, Chapter 9544 in the in the August 17,2015 edition of the Minnesota State Register (40 SR 179), completing the promulgation of the rule. The rule became effective on August 31, 2015.
Evaluation Criteria 100 Within the scope set forth above, the rule-making process initiated by the Department ofHuman Services pursuant to the Settlement Agreement, the Department shall by December 31, 2014 propose a new rule in accordance with this Comprehensive Plan ofAction ("Proposed Rule"). This deadline may be extended for good cause shown upon application to the Court not later than 20 days prior to the deadline.
Should the Department ofHuman Services believe that it requires additional rule-making authority to satisfy the requirements ofthis Plan, in order to apply the rule to all providers covered by Rule 40 and the scope of this Plan, the Department will seek an amendments to statutes in the 2014 Minuesota Legislative session to ensure that the scope ofthe Rule 40 modernization stated above is fulfilled and will apply to all of the facilities and services to persons with developmental disabilities governed by Rule 40. Any proposed amendment(s) are subject to the notice and comment process under EC ~ below. If legislative approval for the requested authority is not obtained in the 2014 Minnesota Legislative session, the Court may use its authority to ensure that the Adopted Rule will apply consistent with the scope set forth in EC 99. By August 31, 2015, the Department ofHuman Services shall adopt a new nile to modernize Rule 40 ("Adopted Rule"). This deadline may be extendedfor good cause shown upon application to the Court not later than 60 days prior to the deadline.
State of Compliance
The Department completed the initial rule draft development phase in December 2014, culminating in the preparation of a Revisor-certified proposed rule and the Statement of Need and Reasonableness (SONAR) that supports it. The Department published the Notice of Hearing in the December 29, 2014 and January 12, 2015 State Registers.
The Office of Administrative Hearing held the rule hearing on February 23, 2015. The comment period remained op en until March 16,2015 at 4:30pm., and the rebuttal period remained open until March 23, 2015 at 4:30p.m. The administrative law judge issued a report approving the rule on April
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Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
22, 2015. However, the administrative law judge disapproved the cost determination required under Minnesota Statute §14.127. The effect of this disapproval is that providers with fewer than 50 fulltime employees would be able to claim exemption from the rule.
The Department requested and received a waiver from the Governor of the application of Mjnnesota Statute §14.127, subd. 3 (regariling the cost determmation disapproved by the admmistrative law judge). The expiration date of the waiver is August 30,2016. The Department intends to seek legislative approval of the rule, as contemplated by the statute, prior to expiration of the waiver.
The Department published the Notice of Adoption of Minnesota Rules, Chapter 9544 in the in the August 17,2015 edition of the Minnesota State Register (40 SR 179), completing the promulgation of the rule. The rule became effective on August 31,2015.
Evaluation Criteria 101 The Proposed Rule shall address the temporary use and tapering ofcarefully monitored individual medical restraints for self-injurious behavior while non-restraint positive behavior supports are implemented under professional supervision.
In formulating the Proposed Rule, and any other methods or tools ofimplementation, the Department shall carefully consider the recommendations ofDr. Fredda Brown, whose consultation on the Rule 40 modernization the Department requested with regard to matters on which the Advisory Committee had not reached consensus. The Department shall document the results ofthis review.
State of Compliance
The Department has met the requirements of Evaluation Criteria 101. The Department carefully considered Dr. Fredda Brown's recommendations m formulating the draft rule language. In late June 2014, the Department provided the draft rule to the Court Monitor, Plaintiff's class counsel, the Ombudsman for Mental Health and Developmental Disabilities, and the Executive Director of the Governor's Council on Developmental Disabilities. The Department met with Dr. Brown on August 20, 2014 and incorporated her input in the draft rule.
The rule became effective August 31, 2015. The subject of the first paragraph of this Evaluation Criterion is addressed in Minnesota Administrative Rules §9544.0130. Evaluation Criteria 102 The Proposed Rule shall be consistent with and incorporate, to the extent possible in rule, the Rule 40 Advisory Committee's consensus recommendations stated in its Recommendations on Best Practices and Modernization of Rule 40 (Final Version - July 2013). During the rule-making process, the Department shall advocate that the final rule be fully consistent with the Rule 40 Advison; Committee's recommendations. The phrase "to the extent possible in rule" above is intended to recognize that some elements ofthe Committee's recommendations are not susceptible to the format ofrules and, therefore, will be implemented by the Department through policies, bulletins, contract provisions, and by other means.
Not later than (30) days prior to public notice ofthe content ofthe Proposed Rule, the Department shall provide a draft of the rule to Plaintiffs' Class Counsel, the Court Monitor, the Ombudsman for Mental Health and Developmental
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CASE 0:09-cv-01775-DWF-BRT Document 531 Filed 02/02/16 Page 69 of 113
jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30,2015
Disabilities, and the Executive Director ofthe Governor's Council on Developmental Disabilities for review and comment
and, ifrequested by any of these ent.ities, for discussion in a conference prior to public notice ofthe content ofthe Proposed
Rule. The Department will slum with these entities the intended final content not later than five (5) days prior to the public notice.
State of Comp liance
The Department has met the requirements of Evaluation Criteria 102. The Department followed the Minnesota Administrative Procedures Act throughout the rulemaking process.
In late June 2014, the Department provided the draft rule to the Court Monitor, Plaintiff's Class Counsel, the Ombudsman for Mental Health and Developmental Disabilities, and the Executive Director of the Governor's Council on Developmental Disabilities. Multiple drafts of the proposed rules were shared with and input accepted from the Plaintiffs' Class Counsel, the Court Monitor, the Ombudsman for Mental Health and Developmental Disabilities, and the Executive Director of the Governor's Council on Developmental Disabilities throughout the rulemaking process.
The public hearing on the draft rules was held on February 23, 2015. The comment period remained open until March 16,2015 at 4:30pm., and the rebuttal period remained open until March 23,2015 at 4:30p.m. The administrative law judge issued a report approving the rule on April22, 2015.
Evaluation Criteria 103 Within thirty (30) dat;s ofthe promulgation ofthe Adopted Rule, Plaintiffs' Class Counsel, the Court Monitor, the Ombudsman for Mental Health and Developmental Disabilities, or the Executive Director ofthe Governor's Council on Developmental Disabilities may suggest to the Department ofHuman Se~11ices and/or to the Olmstead Implementation Office that there are elements in the Rule 40 Advisory Commitlee Recommendations on Best Practices and Modernization ofRule 40 (Final Version - July 2013) which have not been addressed, or have not adequately or properly been addressed irz the Adopted Rule. In that event, those elements shall be considered within the processfor modifications of the Olmstead Plan. The State shall address these suggestions through Olmstead Plan sub-cabinet and the Olmstead Implementation Office. Unresolved issues may be presented to the Court for resolution by am; of the above, and will be resolved by the Court.
State of Compliance
The Department is currently working with the Ombudsman for Mental Health and Developmental Disabilities and the Executive Director of the Governor's Council on Developmental Disabilities to address the elements identified by them under Evaluation Criteria 103. On September 8, 2015, the Office of Ombudsman for Mental Health and Developmental Disabilities and the Governor's Council on Developmental Disabilities submitted a letter to the Department with their comments on Rule 40 Advisory Committee recommendations they feel were not included in the final version of the Positive Supports Rule. Plaintiff's Counsel joined in the position of the consultants.
The Department met with the Office of Ombudsman for Mental Health and Developmental Disabilities and the Governor's Council on Developmental Disabilities and will continue discussions
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CASE 0:09-cv-01775-DWF-BRT Document 531 Filed 02/02/16 Page 70 of 113
Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
regarding the elements that may not be adequately or properly addressed. The Department will be providing a working document by mid-February 2016 that all parties can use to see if and how an element is addressed. Once an element is identified as not adequately or properly addressed, the Department, in conjunction with the Office of Ombudsman for Mental Health and Developmental Disabilities and the Governor's Council on Developmental Disabilities, will determine how to proceed to address them. Evaluation Criteria 104 The Department ofHuman Services shall implement the Adopted Rule and take other steps to implement the recommendations of the Rule 40 Advisory Committee. State of Compliance The Department published the Notice of Adoption of the Positive Supports Rule in the State Register on August 17, 2015, completing the promulgation of the rule. The rule became effective on August 31, 2015. The Department provided webinars and information on the internet to inform the public about implementation of the Rule. The Department continues its Positive Supports Community of Practice; the contract with the Research and Training Center on Community Living Institute on Community Integration, University of Minnesota (ICI) to provide person centered training and cohort training to increase community capacity; and the ongoing development and refinement of a positive supports manual and website. The Department wiJI continue discussions with Office of Ombudsman for Mental Health and Developmental Disabilities and the Governor's Council on Developmental Disabilities on Rule 40 Advisory Committee recommendations and implementation of the Positive Supports Rule.
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CASE 0:09-cv-01775-DWF-BRT Document 531 Filed 02/02/16 Page 71 of 113
Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
Court Monitor Evaluation Criteria Compliance Concerns
Evaluation Criteria 9 and 38 Verification completed by the Jensen Implementation Office as follow-up to concerns of noncompliance for Evaluation Criteria 9 and 38 included a review of Minnesota Life Bridge Incident Review Committee Meeting minutes for April and July 2015. The Department will provide detail of these activities in future reports. Jensen Implementation Office met with Department MN.IT in September 2015 to request a technology solution to allow the Jensen Implementation Office to receive electronic copies of incident reports of class members and members of the therapeutic follow -up group within 24 hours of submission. A change request is currently in queue for assignment to Minnesota Information Technology staff. Beginning October 2015, incident trend graphing will be included in the Minnesota Life Bridge Incident Review Committee Meeting minutes Evaluation Criteria 47,48,49,50 (choice), 51 (alternatives) and 52 The Jensen Implementation Office completed desk audits of the transition plans for the three people who transitioned from Minnesota Life Bridge during this reporting period. This tool used was adapted for Minnesota from the Person-Centered Positive Behavior Support Plan (PC-PBS) Report Scoring Criteria & Checklist, developed by the Kansas Institute for Positive Behavior Support. Desk audits scores for these plans were 94% (01) 95% (SI) and 94% (52). Transition plans for these three people all include the elements identified in the Comprehensive Plan of Action. Evaluation Criteria 64 Minnesota Life Bridge mission has always been consistent with the Jensen Settlement Agreement and has consistently functioned as a transitional adult foster care home as required by the Jensen
Settlement Agreement and EC 64. "Successful Transition to a Successful Life" appropriately describes
the intent and purpose of Minnesota Life Bridge. While providing services to persons with complex needs is a multi-faceted undertaking and subject to continuous improvement, Minnesota Life Bridge s mission is clear and consistent with the Jensen Settlement Agreement and Comprehensive Plan of Action.
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CASE 0:09-cv-01775-DWF-BRT Document 531 Filed 02/02/16 Page 72 of 113
jensen Settlement Agreemen t Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
Single Point of Entry
Launched February 19, 2015, the Single Point of Entry is a Department-piloted process to improve the agency's ability to respond to requests for assistance in supporting people with disabilities in crisis. The Single Point of Entry is part of a larger Disability Services Division /Direct Care and Treatment Process Improvement Project that the Department initiated in January 2015 that includes a number of process improvement projects.
The Single Point of Entry Pilot focuses on coordinating the Department efforts for the target population, defined as persons with developmental or intellectual disabilities in crisis and at risk of losing their current placement. The numbers below represent the nu mber of unduplicated referrals for people entered into the Single Point of Entry, during this reporting period, as identified by the target population:
• Feb:6
• March: 12 • April: 9
• May:21
• June: 15
• July: 6
• August: 4
• September: 23
On August 17, 2015, the Department launched a subset of CareManager (also referred to as Community Care), as a part of the longer- term (sustainable) solution for the Single Point of Entry. CareManager is a web-based application (software) developed by Netsmart for care coordination/care management
The Single Point of Entry process now in volves over 90 Department staff from Disability Services Division, Community Support Services, Central Pre-Admission, Minnesota Life Bridge, jensen Implementation Office and Successful Life Project using CareManager to support the care coordination efforts for people in the target population. The increase in staff supporting care coordination with CareManager is resulting in a decrease in duplication of efforts and time for individual client issues to be triaged and assigned to staff for resolution
Challenges and Barriers to Further Implementation
Technology Barriers Feedback received from Department staff is that the implem ented subset of CareManager requires staff to spend approximately one hour of data entry per new client. This is due in part because staff need to access other systems (such as MMIS) to obtain important information that they were not able
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CASE 0:09-cv-01775-DWF-BRT Document 531 Filed 02/02/16 Page 73 of 113
jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
to gather in the initial contact (either the caller does not know or the request comes through a fax to the Department and requires research upon receipt). Additionally, the current subset data fields are "spread out" within the CareManager platform, which requires staff to click into multiple screens before getting to the place the data should be entered. Lastly, some of the data is being stored in customized fields or assessments in CareManager because those elements are not currently accessible to staff with the Department's current contract. Implementation of the full CareManager application would eliminate a vast majority of the need for such customization and make it easier and more logical for staff to navigate CareManager
Avatar is another care coordination application that is used by Direct Care and Treatment. Although Avatar and CareManager are both Netsmart applications, currently CareManager and Avatar do not interface, or talk to each other. There is software available (CareConnect) that would allow data to be transferred between CareManager and Avatar. The duplication of work efforts, particularly as it relates to common fields s uch as demographics, would be marginalized if not eliminated, if these two systems could talk.
Developing reports has also been difficult due to the implementation of the subset and data housed in customized fields, multiple tables within the software product, or stored in a non-optimal location. Staff spend time putting together reports, and when data is extracted, it is not always in the forma t/look they need or want.
Full implementation of CareManager will eliminate or minimize the need to continue storing data in other databases, although full implementation has not yet been approved.
Staffing Barriers The Department's Central Pre-Admission plays an integral role with the Single Point of Entry process. They are the "front door" to the Single Point of Entry process and are the initial decision makers of whether or not an individual's event "qualifies" them for the Single Point of Entry process. Central Pre-Admission is able to manage the work with current target population, as the population is quite small.
Currently staff form Minnesota Ufe Bridge, Disability Services Division and Community Support Services join in a daily conference call to discuss new cases in CareManager. The Department is working towards having the Navigators (Katy Mattson, Barb Trytten and Jerry Rondeau) take over leading this call and triaging the cases thereby allowing the Triage Team (Jason Flint, Steve Dahl and Tim Moore) to focus on program management and capacity building.
Cross administration funding Staff from across the Department S use and support CareManager. Currently there is no crossdivisional funding options to financially support a model like this leaving the annual subscription
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CASE 0:09-cv-01775-DWF-BRT Document 531 Filed 02/02/16 Page 74 of 113
jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015
cost and the full implementation vulnerable to division funding siloes and likely leaving one division or another to foot the whole cost. Community Capacity Physical places for persons in the target population will be a challenge to realizing the full benefits of the Single Point of Entry process. Once entered into the Single Point of Entry process, a group of experts from Community Support Services, Disability Services Division, and Minnesota Life Bridge discuss cases daily to determine which work area can take the lead on following the case through to what is hopefully a successful placement. Often times, many staff hours are spent looking for any sort of options for placement. Staff are being creative and resourceful in this effort, but still encounter barriers regarding capacity, resulting in some individuals who remain in an inappropriate setting (e.g. jail or the emergency room) and on waiting lists. The Department will work to incorporate the Olmstead work plan objectives to address challenges regarding community capacity. The Department will provide detail of these activities in future reports.
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CASE 0:09-cv-01775-DWF-BRT Document 531 Filed 02/02/16 Page 75 of 113 Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report
Reporting Period: May 1 to September 30, 2015
Evaluation Criteria Index
Page 74 of 112

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Evaluation Criteria

Section Referenced

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1.

The Facilities will comply with Olmstead v. L.C. The Facilities are and will remain licensed to serve people

Se!!l ~:ment A&D:!:ment Section JV. MEIQ

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with developmental disabilities. The Facility will eliminate unnecessary segregation of individuals with

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developmental disabilities. People will be served in the most intregated [sic] setting to which they do not

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object. Each individual's program will include multiple opportunities on an ongoing basis to engage with: (1)

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citizens in the community, (2) regular community settings, (3) participating in valued activities (4) as members of the community. These community activities will be highly individualized, drawn from the person-centered

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planning processes, and developed alongside the individual.

1.1

Each individual's planning processes will specifically address integration within the following life areas: (1)

Settlement A&r~:!:m~:nt Section IV. METO

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home; (2) work; (3) transportation; (4) lifelong learning and education; (5) healthcare and healthy living; and (6) ~

community and civic engagement.

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1.2

Cambridge and successor facilities apply strong efforts to individualize and personalize the interior setting of Settlem!:nl A~eemen! ~~tism IY .Mf:TO

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the home. This includes exerting maximal feasible efforts to assist individuals to personalize and individualize ~

3

their bedrooms and common areas, to make each common area aesthetically pleasing, and to actively support individuals to bring, care for, acquire, and display personal possessions, photographs and important personal

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items. Consistent with person-centered plans, this may include the program purchasing such items, which will

build towards transition to a new place to live.

2.

Facilities utilize person-centered planning principles and positive behavioral supports consistent with

Seill~:m!i:DI Am~:ment Section N. METO

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applicable best practices including, but not limited to the Association of Positive Behavior Supports, Standards ~

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of Practice for Positive Behavior Supports .

2.1

Each individual will be involved to the greatest extent possible in the development of a person-centered profile Settlement Asrecmcnt ~ction TV. METO

centering on learning from the person and those who know the person best about their history, preferences, life Closure

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experiences, interests, talents, and capacities among other areas within 30 days of admission. This profile will

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be updated and revised as more is learned over time on at least a monthly basis.

A revised person-centered profile format will be developed from the current person-centered description to include the above areas and to include a method to note when revisions and additions are made, by whom, and in what venue (e.g., a person-centered meeting of the support team, interview, an individual update by a staff member, a phone call).

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

EC#

Evaluation Criteria

Section Referenced

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2.2

From the understanding in the person-centered profile, a person-centered plan will be completed which

Settlement Agreement Section IV. METO

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includes the development of a shared vision of the future to work towards within 30 days of admission, as well ~

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as agreements and shared objectives and commitments .

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2.3

The person-centered plan will directly inform the development of the individualized program plan (or

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Coordinated Service Support Plan). Such plans will build on the strengths and interests of the individual, and ~

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moving towards increasing relationships, roles, and community integration in these areas of life.

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2.4

The person-centered plan will directly inform the development of a Positive Behavior Support Plan. Life

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direction, talents, and interests will be capitalized on in any planned intervention. Each behavior support plan Closure wiU include teaching strategies to increase competencies and build on the strengths of the person.

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2.5

Each behavior support plan will be unique to each individual. The use of token economies and contingent

Settlement A&reement Section IV. METQ

reinforcement will be used sparingly, not for punishment, and only when weighed again the potential risks to Closure

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the person's image and competencies in terms of exercising personal autonomy.

2.6

Each behavior support plan will include a summary of the person's history and life experiences, the difficulties Settlement Agreement Section IV. METO

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and problems the person is experiencing, past strategies and results, and a comprehensive functional

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behavioral analysis, from which strategies are derived.

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2.7

Each Functional Behavioral Analysis will include a:

a. Review of records for psychological, health and medical factors which may influence behaviors;

b. Assessment of the person's likes and dislikes (events I activities I objects I people);

Settlement A&reement Section IV. METO

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c. Interviews with individual, caregivers and team members for their hypotheses regarding the causes of the

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behavior;

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d. Systematic observation of the occurrence of the identified behavior for an accurate definition/description of the frequency, duration and intensity; e. Review of the history of the behavior and previous interventions, if available; f. Systematic observation and analysis of the events that immediately precede each instance of the identified

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behavior;

g. Systematic observation and analysis of the consequences foUowing the identified behavior;

h. Analysis of functions that these behaviors serve for the person;

i. Analysis of the settings in which the behavior occurs most/least frequently. Factors to consider include the

physical setting, the social setting, the activities occurring and available, degree of participation and interest,

Page 76 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

EC#

Evaluation Criteria

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Section Referenced

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the nature of teaching, schedule, routines, the interactions between the individual and others, degree of choice

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and control, the amount and quality of social interaction, etc.

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j. Synthesis and formulation of all the above information into an hypothesis regarding the underlying causes

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and/or function of the targeted behavior.

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or shall be consistent with the standards of the Association of Positive Behavior Supports, Standards of Practice

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for Positive Behavior Supports fhtto://aobs.or2:).

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2.8

Each positive behavior support plan will include: 1. Understanding how and what the individual is

Settlement Agreement SectiQ[! IV, METO

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communicating; 2. Understanding the impact of others' presence, voice, tone, words, actions and gestures; 3. Supporting the individual in communicating choices and wishes; 4. Supporting workers to change their

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behavior when it has a detrimental impact; 5. Temporarily avoiding situations which are too difficult or too uncomfortable for the person; 6. Enabling the individual to exercise as much control and decision making as

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possible over day-to-day r~mtines; 7. Assisting the individual to increase control over life activities and

environment; 8. Teaching the person coping, communication and emotional self-regulation skills; 9.

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Anticipating situations that will be challenging, and assisting the individual to cope or calm; 10. Offering an

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abundance of positive activities, physical exercise, and relaxation, and 11. As best as possible, modifying the environment to remove stressors (such as noise, light, etc.).

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2.9

The format used for Positive Behavioral Support Plans will be revised to include each of the above areas, and Settlement Agreement SectiQn IV. METO

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will be used consistently.

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3.

Facilities serve only "Minnesotans who have developmental disabilities and exhibit severe behaviors which

Settlement Agreement SectiQD jV. METQ

present a risk to public safety."

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3.1

3.1 All referrals for admission wi11 be reviewed by the admissions coordinator to assure that they are persons Settlement Agxeement Section IV. METO

with a Developmental Disability and meet the criteria of exhibiting severe behaviors and present a risk to

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public safety taking into account court ordered admissions.

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4.

Facilities notify legal representatives of residents and/or family to the extent permitted by law, at least

Se!tl~m!:n l A~!:ffi!:nt ~@n IV, METO

annually, of their opportunity to comment in writing, by e-mail, and in person, on the operation of the Facility. ~

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Page 77 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30,2015

EC#

Evaluation Criteria

()

Section Referenced

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4.1

Initiate annual written survey process to all legal representatives of residents and/or family to the extent

permitted by law whose individual of interest was served within the past year which solicits input on the

Settlement Agreement Se~tion IV. MEIQ
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operation of the Facility. Each survey will be in the relevant language, and will include notification that

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comments on Facility operations may be offered in person or by mail or telephone by contacting Facility

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director or designee.

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4.2

Aggregate data will be collected from survey responses received from each survey process. Facility staff will Settlement A&reement Section IV. METO

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develop an action plan to outline changes which will be made as a result of survey data, and implement those Oosure

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changes.

5.

The State/DHS immediately and permanently discontinues all the prohibited restraints and techniques.

Settlement Agreement Section V.A.

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~rohibit~d Techni!lues - Restraint

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5.1

DHS will issue a memorandum to all Facility staff confirming the Department's commitment to provide

S!::ttlement Agreement Section V.A.

services and supports which are consistent with best practices including: 1) Providing individuals with a safe Probil2it~:g I~:!;;hniQ!.I~:i - R~traint

0

and therapeutic environment which includes positive behavioral supports and training on behavioral alternatives; 2) Recognizing that restraints are not a therapeutic intervention; 3) An immediate prohibition on prone restraint, mechanical restraints, seclusion and time out; 4) The Facilities' goal towards immediate

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reduction and eventual elimination of restraint use whenever possible; and 5) Restraint use is permitted only

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when the client's conduct poses an imminent risk of physical harm to self or others and less restrictive

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strategies would not achieve safety; client refusal to receive I participate in treatment shall not constitute and

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emergency.

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5.2

The Facility shall remove "mechanical restraint, " "prone restraint," "prone hold" and all other prohibited

techniques from all current Facility forms and protocols.

Settlement Agreement Section V.8,. Prohil2iteg Iechni~~ - B~tii'lin!

5.3

Facility policy(s) on Emergency Interventions shall minimally include: 1) The type of emergency interventions Settlement A&reement Section V.A.

permitted and prohibited; 2) The protocol for administering emergency interventions; 3) The authorization and Prohibited TechniQues- Restraint

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supervision needed for each emergency intervention; 4) The medica] monitoring required during and after

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each restraint; 5) The review requirements of each emergency intervention (administrative, internal and

external); 6) The data collection and aggregate data review of restrictive intervention usage. The Facility policy

shall separate and dearly delineate "therapeutic interventions" from "emergency restraint I interventions."

Current Facility policy/procedures shall be revised to comply with these requirements.

Page 78 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

EC#

Evaluation Criteria

()

Section Referenced

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5.4

All Facility staff members have received competency-based training on the p olicy I procedures identified

immediately above.

Settlement A~reement Section V.A. Prohibited Technis;jues - Restraint

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5.5

Competency-based training on the policy I procedures identified above has been incorporated into Facility

orientation and annual training curricula.

Settl~ment A~eement Section V.!!!,. Prohibited Tedmi!lues Restraint

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6.

The State/DHS has not used any of the prohibited restraints and techniques.

Settlem!illt ~gA;eement Section V.A.

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Prohi bited Techniques - Restraint

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Facility Staff will specify on Restraint Form which emergency technique was employed, verifying that a

Settlement Ag:reemenl Section V.A.

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prohibited technique was not used.

Prohibited Techni!lues Restraint

6.2

The supervisor will review each restraint with staff by the end of his/her shift, verifying that 1) The threat of Settlement Ag reement Section V.A

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imminent harm warranted the emergency intervention, 2) The intervention was an approved technique and no Prohi bited Techni~ues- Restraint

0

suspicion exists that a prohibited technique was used; and 3) When applicable, what immediate corrective

measures I administrative actions need to be taken.

6.3

Any/all use of prohibited techniques, e.g., prone restraints, mechanical restraints, seclusion. timeout, etc., will Settlement Agreement SectiQn V.A.

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be investigated as potential allegations of abuse. Facility Staff are required to immediately report any suspected Prohibited Techni!1J:!es Restraint

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use of prohibited restraints I techniques to their supervisor.)

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6.4

Reporting and review forms/procedures are revised, and utilized, to incorporate the above 6.1, 6.2 and 6.3.

Settlement AS'I·eement Section V.A.

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Medical restraint, and psychotropic/ neuroleptic medication have not been administered to residents for

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punishment, in lieu of habilitation, training, behavior support plans, for staff convenience or as behavior

~rohibited TechniQUe~- Resgai.nt

modification.

7.1

Facility policy shall specifically forbid the use of restrictive interventions, including medical restraints and/or Settlement A~cement Section V.A.

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psychotropic/neuroleptic medication for: the purposes of punishment; in lieu of habilitation, training, or

PrQhibit~d Techni!1J:!eS- Restraint

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behavior support plans; for staff convenience; or as a behavior modification.

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7.2

Facility policy will specify medication management protocols consistent with best practices in the support and Settlement A~reement ~lion V.A.

treatment of individuals with cognitive and/or mental health disabilities.

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Page 79 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

EC#

Evaluation Criteria

Section Referenced

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8.

Restraints are used only in an emergency.

Settlement Agreement Section V.B.

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Facility Staff will dearly document, on the restraint form, the circumstances leadin g up to the restraint and

Settlement Ag:reement Section V.B.

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what imminent risk of harm precipitated the application of the restraint. This shall include what antecedent

Prohibited Technisues Policy

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behaviors were present, what de-escalation and intervention strategies were employed and their outcomes.

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8.2

In the event a restraint was used in the absence of imminent risk of harm, staff will be immediately retrained Settlemgnt A&J:eement Section V.B.

on Facility policies addressing the "Therapeutic Interventions and Emergency Use of Personal Safety

PrQhil2ited TechniQues - Policy

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Techniques" policv with such retraining being entered into their training file.

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9.

The Policy (Settlement Agreement Att. A, as it may be revised after court approval, dissemination and staff

Settlement Agreement Se~tiQn V.B,

training) was followed in each instance of manual restraint

PrQhil2ited Techniques - Poli~

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:::0

9.1

As part of its data management processes, the Facility will collect, review and analyze information related to

Settlement A~·eement SectiQn V.B.

0
0

staffs adherence to restraint policy.

Prohibited Techniques Policy

c(')

10.

There were no instances of prone restraint, chemical restraint, seclusion or time out. [Seclusion: evaluated

Settlenumt Agreement Section V.B.

3co

under Sec. V.C. Chemical restraint: evaluated under Sec. V.D.)

PrQhibit~d T!;:chnigues- Policy

.::.::.:.:1..

(}1

10.1 Facility policy shall clearly identify prone restraint, chemical restraint, seclusion and timeout as "prohibited." SetU ement Agreement SectiQn v:s.

w
........

Prohibited Techni!lyes PQ!i~
Il

11.

There were zero instances of the use of Seclusion. Facility policy shall specify that the use of seclusion is

Settlement Agreement Section V.C.

co
0..

prohibited.

12.

There were zero instances of the use of Room Time Out from Positive Reinforcement. Facility policy shall

specify that the use of time out from positive reinforcement is prohibited.

Prohibited TechniQ!!eS- Seclusion and
Iim~Ql.! t
Settlement a&r~men! Se~tion v.c.
Prohibited Techni!lJ,leS Seclusion and

0 N
--0
N
--........
(j)

TimeOut

'U

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(X)

........

.0.....

........
w........

Page 80 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

EC #

Evaluation Criteria

()

Section Referenced

)>

(/)

13.

There were zero instances of drug I medication use to manage resident behavior OR to restrain freedom of

movement. Facility policy specifies the Facility shall not use chemical restraint. A chemical restraint is the

Settlement A~reement Section V.D.
_erohibit~g TerJmiQl.!E!~ - Ch~:mi!:i!l

m
0 0

administration of a drug or medication when it is used as a restriction to manage the resident's behavior or

Restraint

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(')

restrict the resident's freedom of movement and is not a standard treatment or dosage for the resident's

<

condition.

6
.......

14.

There were zero instances of PRN orders (standing orders) of drug! medication used to manage behavior or

Settlement Agreement Section V.D.

-...J -...J

restrict freedom of movement. Facility policy specifies that PRN/ standing order medications are prohibited

~mh1]2i~d Technigyes- Chemical

(}1
I

from being used to manage resident behavior or restrict one's freedom of movement.

B~straint

0
~

15.

There is a protocol to contact a qualified Third Party Expert.

Settlement A~eement Section V.E.

T1 I

Prohibit~d Techni!;jues- 3rd Pa.rt~ Ex12ert

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:::0

15.1 Facility policy stipulates that a Third Party Expert will be consulted within 30 minutes of the emergency's

Settlement Agreement Section Y.E,

onset.

Prohibited Techni~ues- 3rd Par~ Ex12ert

0

0

c(')

16.

There is a list of at least 5 Experts pre-approved by Plaintiffs & Defendants. In the absence of this list, the DHS Settlement A&reement Section V.E.

3co

Medical or designee shall be contacted.

Prohibited TechniSJ,!eS- 3rd Par~ Ex12ert

.::.::.:.:1..

17.

DHS has paid the Experts for the consultations.

(}1

Settlement A~eemenl Section V.E.

w
.......

Prohibited TechniQues - 3rd Partv Ex11ert

18.

A listed Expert has been contacted in each instance of emergency use of restraint.

19.

Each consultation occurred no later than 30 minutes after presentation of the emergency.

Il

Settlement Ag:reemenl Section V.E.

co
0..

Prol1ibited Techni$Jes -3rd Pa rt~ ~ert
Settlement A~:reement Section V.E. ;ErohibitedTechniQues - 3rd Par~ Ex12ert

0 N
--0
N
--.......

(j)

20.

Each use of restraint was an "emergency."

SgU!~m~nt Agr~ement SegiQn V.E.

"U

Prohibil!:d TechniQue~ - 3rd P!!rt): t;x~~rt

Sl>

<c.o0

21.

The consultation with the Expert was to obtain professional assistance to abate the emergency condition,

Settlement As,reement Section V.E.

including the use of positive behavioral supports techniques, safety techniques, and other best practices. If the Prohibited Te~hniQ!!~~ -3rd Pi.Ytv Ex12~rt

(X)
N
.0.....

Expert was not available, see V.F. below.

.......

.......

w

Page 81 of 112

Jensen Settlement Agreement Com prehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

EC#

Evaluation Criteria

Sectio n Referenced

() )>

(/)

21.1 On the restraint form, Facility staff will identify the Third Party or other expert and will document all

Settlement A~cement Section V.E.

m

recommendations given by the consultant, techniques, and the efficacy and outcomes of such interventions.

Prohibited Iechni~ue:;- 3rd Par~ Ex12ert

0 0

When reviewing the restraint form, 24 hours post-restraint, Designated Coordinator w ill verify that Facility

c.o I

(')

staff contacted the medical officer within 30 minutes of the emergency's onset.

<

22.

The responsible Facility supervisor contacted the DHS medical officer on call not later than 30 minutes after the Settlement Agreement Section V.E.

6
.......

emergency restraint use began.

Prohibited TechniQues- ~rd Part~ Ex12crt

-.J

-.J

(}1

23.1 On the Restraint Form, the Facility supervisor will document both the date/time that the emergency restraint Settlement A~eement Section V,E.

I
0

began and the date/time s/he contacted the designated medical officer.

Prohibited TeclmiQUCS- 3rd Partv Ex12~t

~

[sic]

23.

The medical officer assessed the situation, suggested strategies for de-escalating the situation, and approved of, Settlement A&reemenl Section V.E.

T1
_,O'J
:::0

or discontinued the u se of restraint.

ProhiQited TechniSjues- ~rg Party Ex12ert

0

23.1 The Facility supervisor will document on the restraint form and in the resid ent's record, the medical officer's

Settlement A~re~m~nt S~:ction V.E.

de-escalation strategies, the outcome of those st rategies used, and whether approval was needed and/or given Prohibited TechniQues 3rd Part)t Ex12e rt

for continued restraint use.

24.

The consultation with the medical officer was documented in the resident's medical record.

Settlement Agreement Section V .E. Prohibited Techni!;JUCS -3rd Pa rt~ ExJ;!erl

0
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3co
.::.:.::.:.1..
(}1
w

.......

24.1 When conducting his/her post-restraint review, the Designated Coordinator will verify that the supervisor

Settlement Agreement Section V.E.

Il

contacted the medical officer within 30 minutes of the emergency restraint and documented the details in the P1·ohibitcd Tcchnisaucs 3rd Part): Ex12ert

co

25.

resident's medical record. All allegations were fully investigated and conclusions were reached. Individuals conducting investigations will not have a direct or indirect line of supervision over the alleged perpetrators; the DHS Office of the Inspector General satisfies this requirement. Individuals conducting investigations, interviews and/or writing

Settlement Agreement Section V.G. Prohibited Te.clmiQues - Zero Tolerance for AQill!!: and N!;l&lect

0.. 0 N
--0
N
--.......

(j)

investigative reports w ill receive competency-based training in best practices for conducting abuse I neglect

investigations involving individuals with cognitive and/or mental health d isabilities an d interviewing.

"U Sl>

25.1 DHS employees having responsibility for investigative duties will receive 8 hours of continuing education or Settlement Agreement Section V.C.

<c.o0

in-service training each year specific to investigative practices.

Prohibited TechniQues - Zero Tolerance for

(X)

Abuse and N~lect

w

.0.....

....... .......
w

Page 82 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Complian ce Update Report Reporting Period: May 1 to September 30, 2015

EC #

Evaluation Criteria

()

Section Referenced

)>

(/)

25.2 Each investigation will undergo a quality review by a peer or supervisor who has, at minimum been trained in Settlement Agreement Section V.G.

the requirements set forth in this Implementation Plan.

Prohibited Techni~es- Zero Tolerance for

m
0 0

Abuse and Neglect

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I

(')

25.3 The Department will maintain an electronic data m anagement system. to track all information relevant to

Settlement A2reement Section V.G.

<
6

abuse/neglect investigations. This data management system will minimally include: 1) Incident date; 2) Report Prohibited TechniQues Zero Tolerance for

date; 3) Incident location; 4) Provider; 5) Allegation type; 6) Alleged victim; 7) Alleged perpetrator(s); 8)

Ab~~ and N~le&!

.......
-.J -.J
(}1

Injuries sustained; 9) Assigned investigator; 10) Date investigative report is completed; 11) Substantiation

I
0

status; 12) Systemic issues ide ntified and the corrective m easures taken to resolve s uch issue; 13) Whether or

~

not the case was referred to the county attorney; and 14) Whether or not charges were filed; and 15) Outcome

T1 I

of charges. 25.4 Allegations substantiated by DHS Licensing (Office of Inspector General) will be documented in the client's

Settlement Ag.reeme.nt Section V.G.

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:::0

Facility record.

Prohibited Technisues- Zero Tolerance for

Abuse and Neglect

0
0

c(')

26.

All staff members found to have committed abuse or neglect were disciplined pursuant to DHS policies and collective bargaining agreement, if a pplicable.

Settlement Agreement Section V.G. Prohibited TechniQues- Zero ToleFance for Abuse and Neglect

3co
,::.::.:.:1..

(}1
w

26.1 All substantiated allegations of staff abuse or neglect are referred to Human Resources for human resou rces

Settlement Asreement Section V.G.

.......

action in accordance with the definitions set forth under the Vulnerable Adults Act. All perpetrators will be

Prohibited Tcchni~u·es - Zero Tolerance for

Il

disciplined in accordance with DHS policies and procedures and Union Contracts.

Abuse and Neglect

co

0..

27.

Where appropriate, the State referred matters of s uspected abuse or neglect to the county attorney for criminal p r os ecution.

Settlement Agreement Section V.G. PrQhibited TechniQug~- Zero Tolerance for A]2yse l!nl! Negl~ct

0 N
--0
N
--.......

(j)

27.1 All allegations of abuse or neglect related to care of residents of a Facility will be submitted to the common

Settlement A&reement Section V.C.

entry point to determine whether or not the case will be referred to the county attorney for criminal prosecution.

.Prohibited Te!:!;]niQues- Zem Toleran~;e for

"U

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A:tm~~ and N~:gh:~t

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co

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....... .......
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Page 83 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

EC #

Evalu ation Criteria

()

Section Referen ced

)>

28.

Form 31032 (or its successor) was fully completed whenever use was made of manual restraint.

(/)

Settlement A~recment Section VI.A.

m

R!:strf!inl R!:~onins §!; M~MT - Form

0 0

~

<0

I

(')

28.1 When reviewing the restraint form 24 hours post-restraint, the Designated Coordinator wil1 verify that Form Settlement AsreE'ml'nt Se!';tion Vl.A.

< I
0

31032 (or any successor) was completed timely, accurately and in its entirety.

Restraint B~P-Qdicg & MGMI - Ellllll

~

--.J

3JJl32.

--.J

(]1

I

29.

For each u se, Form31032 (or its successor) was timely completed by the end of the shift.

Settlem~n t At: rcemcnt Section VI,A. Restraint RQBOrling & MGMT- Form

0
~
T1

~

I
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:::0

29.1

When reviewing the restraint form 24 hours post-restraint, the Designated Coordinator will verify that Form

SettlemQnl Acrc~ment Section VI.A.

31032 (or any successor) was completed timely, accurately and in its entirety.

R~traint RegQrting & MgMT - Fonn 31032

0
0

c(')

30.

Each Form 31032 (or its successor) indicates that n o prohibited restraint was used.

Settlement Ag rc~ment Section Vl.A.

3

Restraint Regorting §g; M g MT - Fonn 31032

CD
:..:.:.:.l .

30.1 Staff will indicate what type of restraint was used on Form 31032 (or any successor).

Settl!:ment flsr£!:m~nt ~lion Vl .fl.

Restrainl Regortin; & M~MT - Form

I!

31032

aCD.

30.2 When reviewing the restraint form, 24 hours or one business day post-restraint, the Designated Coordinator will verify that no p rohibited techniques were used.

~ttl~m~nt A g r!.l!i:!D~DI Se~:tion Vl .A. B.i:SI:Iainl Bci2QIDDI: & M GMI - f orm
Jim

0 N
-0
N
-~

(j)

31.

Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was

Settlement A~S:!:ID!:Dt Si:!'.:tiQ!J Vl.B.

subrrutted to the Office of Health Facility Complaints.

Restraint R!l12QWnil & MGMTNotifications

Page 84 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

EC#

Evaluation Criteria

Section Referenced

() )>

(/)

31.1 Form 31032 (or its successor) is sent to the Office of Health Facility Complaints within 24 hours or no later than Settlement A&reement Section Vl.B.

m

one business day.

Re~traint Re12ortin~ & MGMT -

0

0

Notifis:ations

c.o

I

()

32.

Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was

~11l~m~ct Agreem!i:nt Se~tion VI.B.

<
6

submitted to the Ombudsman for MH & DD

Restraint ReJ20rting & MGMT -

.......

Notifications

-.J -.J

(}1

I

32.1 Form 31032 (or its successor) is sent to the Ombudsman for MH & DD within 24 hours or no later than one business day.

Settlement Agreement Section VJ.B. Restraint Rej2Qrtin~ & MGMT-

0
~
T1

!;::!otifi~;ations

I

33.

Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was

Settlement Agreement Section VI.B.

_,OJ
:::0

submitted to the DHS Licensing

Restraint Rej2Qrting & MGMT-

tl!o!iti~::lltion:i

0
0

(c )

33.1 Form 31032 (or its successor) is sent to DHS Licensing within 24 hours or no later than one business day.

Settlement Ag:reement Section VT.B. Restraint Re12Qrting & MGMTNotifications

3co
.::.:.::.:.1..

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w

34.

Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was

Settlemen~ As:reement Section VT.B.

.......

submitted to the Court Monitor and to the DHS Internal Reviewer

R!:~t~int R!:J2Qrt!!}g ~ MgMT-

Il

Notifkation:~

co

0..

34.1 Form 31032 (or its successor) is sent to the Court Monitor and to the DHS Internal Reviewer within 24 hours or Settlem~nt Agr~ernent Section VLB.

no later than one business day.

Re;ztrain1ReJ2Qrting ~ MgMT -

tl[Qtifis;SltiQn;z

0 N
--0
N
--.......

(j)

35.

Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was

Settlement A&reemenl Section VI.B.

submitted to the legal representative and/or family to the extent permitted by law.

Restraint ReJ2orting & MGMTtl[otificati.Q!J§

"U Sl>
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co

(j)

.0.....
....... .......
w

Page 85 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

EC#

Evaluation Criteria

()

Section Referenced

)>

(/)

35.1 Form 31032 (or its successor) is sent to the legal representative, and/or family to the extent permitted by law,

Settlement AS'reement Section VT.B.

m

within 24 hours or no later than one business day.

R~~traint B~!2Qtting ~ MGMI Notifications

0
0c.o

'(")

36.

Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was

.Settlement Agreement Section VT.B.

<
6

submitted to the Case manager.

Re§traint Re12orting & MGMT-

.......

-.J

Notifi!:ation.s

-.J

(}1

36.1 Form 31032 (or its successor) is sent to the case manager within 24 hours or no later than one business day.

Settlement Agreement Section VT.B. Restraint Re_f2orting & MGMT -

0 ' ~
T1

Notifications

_,O'J
:::0

37.

Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was

Settlement A~reement Section Vl.B.

submitted to the Plaintiffs' Counsel.

B~trrunt B,g.f2Qtling ~ MgMT -

0

Notifi!:2tiomz

0

c(")

37.1 Form 31032 (or its successor) is sent to the Plaintiffs' Counsel within 24 hours or no later than one business day. Settlement Agreement Section VI.B. Restraint Re_f2Qrting & MGMTNotificf!lion§

3co
.::.:.::.:.1..

(}1

w

38.

Other reports, investigations, analyses and follow up were made in each case of restraint use.

Settlement Agreement ?ectiQn Vl.~.

.......

RestraintResgonses Are Not To Reglace

Il

Qther lng dent R~12orting, lnvestigs!!!Q!:I,

co

Ana!:£:Sis & Follow-U12

0..

38.1 The Designated Coordinator will review each client incident, injury and/or restraint use within 1 business day Settlement A gr~emen t Section VI.C.

0 N
--0
N
--.......
(j)

of its occurrence to: 1) Evaluate the immediate health and safety of the individual(s) involved; 2) Ensure no

Restraint Res12onses Are Not To Re12lace

prohibited techniques were used; 3) Ensure all documentation and notifications were properly made; and 4)

Other l ncident Re12ortin&, lnvestica tion,

"U Sl>

Determine what, if any, immediate measures must be taken.

Anal:,1sis & Follow-U12

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(X)

-.J

.0.....

....... .......
w

Page 86 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

EC#

Evaluation Criteria

()

Section Referenced

)>

(/)

38.2 The Designated Coordinator will convene an Interdisciplinary Team (IDT) meeting within 5 business days of a Settlement A ~;Veement Section Vf.C.

restraint to: 1) Review the circumstances surrounding the behavioral emergency; 2) Determine what factors

Restraint Re~12ons~" Are NQt To Re12lace

likely contributed to the behavioral emergency, i.e. life event, environmental, relational discord, etc.; 3) Identify Other Incident Reportin&, lnves11ga tion.

what therapeutic interventions, including individualized strategies, were employed and why they were

Analysis & Follow-Up

m
0
0c.o '(")
<

unsuccessful in de-escalating the situation; 4) Review and assess the efficacy of the individual's PBS plan,

6
.......

making changes as needed; 5) Determine if trends/patterns can be iden tified with this individual or this living

-...1 -...1

area; and 6) Take all corrective m easures deemed necessary, indicating what actions are being taken, the party

(}1
I

responsible for taking such actions, the date by which these actions will be taken, and how the efficacy of such actions will be monitored. Documentation of the IDT meeting, including attendees, review and actions taken

0
~
T1

will be thoroughly documented in the individual's record. 38.3 When changes to an individual's program plan and/or PBS plan are recommended during the IDT's restraint Settlement Agreement Section Vl.C.

I
_,OJ
:::0

review, the Designated Coordinator will ensure that such changes are made within 2 business days of the IDT R~straintR~$!ons~ Ar~ NQI To Re12la~

meeting related to the restraint use.

Qth~c ln~:is:lent Bf!20rling loJ&<:tigaliQD

0

Analy~i:! & FQllQw-!,!p

0
c(")

38.4 A facility-based Positive Behavioral Supports Review (PBSR), comprised of both behavioral analysts and non- Settlement Agreement SectiQn YI.C.

3co

clinical staff, will be established and maintained for the purposes of: 1) Reviewing all positive behavioral

Restraint Res12ons~ Are Not To Re12lace

.::.::.:.:1..

support plans to ensure they adhere to current best practice; 2) Approving and m onitoring the efficacy of all positive behavioral support plans; 3) Reviewing the use of any restrictive and/or emergency interventions, i.e.

Olherlncident Rej;!Mting. Investigation. Analysis & follow-Up

(}1
w
.......

restraints, 911 calls, etc. The PBSR Committee will meet on a monthly basis.

Il

co

38.5 The PBSR committee will maintain meeting minutes detailing attendance (person/title); chairperson; individual Settlement Ag:reem~nt Section VJ.C.

and aggregate data review; issues and trends identified (individual and systemic); corrective measures to be

Restraint Res12onses Are Not To Repla!;;e

taken; dates by which such corrective measures are to be completed; responsible parties, and follow-u}> of the previous month's action plans.

Other Incident Re12orting, Investigation, Anal~sis & Follow-Up

0.. 0 N
--0
N
--.......
(j)

38.6 The Department will identify and address any trends or patterns from investigations.

Settlement As:rcemenl Section Vl.C.

"U

Restraint ReSj,2t'lnses A re Not To Replace

Sl>

Other Incident Re12orting, lnvesti~tion,

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Anal:£sis & Foi!Qw-!212

(X)

(X)

.0.....
....... .......
w

Page 87 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

EC#

Evaluation Criteria

Section Referenced

() )>

(/)

39.

In consultation with the Court Monitor during the duration of the Court's jurisdiction, DHS designates one

Settlement As:reement Section VII.B.

m

employee as Internal Reviewer whose duties include a focus on monitoring the use of, and on elimination of

Restraint R!:view - Internal Reviewer

0 0

restraints.

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40.

The Facility provided Form 31032 (or its successor) to the Internal Review er w ithin 24 hours of the use of

Settlement A ~Teement Section VI1.B.

()
<

manual restraint, and no later than one business day.

B~lltDiiDl B~~!l~ - Iot~ma.! Rs:vi~w~r

6
.......

-...J

40.1 The shift supervisor/administrator on duty will notify the Internal Reviewer of the restraint within 24 hours

Settlement Agreemen t Section VII.B.

-...J
(}1

and no later than one business day. Notification will be made electronically along with the completed Form

Restraint ReYiew - Intema.! Reyiell!fi

I
0

31032 (or its successor).

~

41.

The Internal Reviewer will consult with staff present and directly involved with each restraint to address: 1)

Settlement A&reement Section VI!.B.

T1 I

Why/how de-escalation strategies and less restrictive interventions failed to abate the threat of harm; 2) What B~tiiliDt B~Yi~ll! - IDt~rnill Beviell!er

_,OJ
:::0

additional behavioral support strategies may assist the individual; 3) Systemic and individual issues raised by

the use of restraint; and 4) the Internal Reviewer will also review Olmstead or other issues arising from or

0

related to, admissions, discharges and other separations from the facilitv.

41.1 The Internal Reviewer will consult with staff present and directly involved with each restraint to address: 1)

Settlement Agr~ement Section VTI.B.

Why/how de-escalation[sic] strategies and less restrictive inteventions {sic) failed to abate the threat of harm; 2) Restraint Review - Internal Revie~er

0
(c )
3co

What additional behavioral support strategies may assis t the individual; 3) Systemic and individual issues

.::.:.::.:.1..

raised by the use of restraint; and 4) the Internal Reviewer will also review Olmstead or other issues arising

(}1
w

from or related to, admissions, discharges and other separations from the facility.

.......

42.

On April 23, 2013, the Court appointed the Court Monitor as the External Reviewer, with the consent of

Settlemen t A~neemen t &.~tion VII,B.

Il

Plaintiffs and Defendants. DHS funds the costs of the external reviewer.

R~straint Reyi~:w - External ReYiel:llei

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0..

43.

After providing Plaintiffs' Class Counsel and the Department the opportunity to review and comment on a

Settlement As reement Section VII.B.

draft, the External Reviewer issues written quarterly reports informing the Department whether the Facility is R~straint Rel1ii!l:ll - E~ti!mal Rel1it::l:lli!I

in substantial compliance with the Agreement and the incorporated policies, enumerating the factual basis for

0 N
--0
N
--.......

its conclusions.

(j)

44.

In conjunction with duties and responsibilities under the Order of July 17, 2012, the Court Monitor reviews and Settleme.nt Agreement Section VTI.B.

-u

makes judgments on compliance, makes recommendations and offers technical assistance in his discretion, and R~traint Review · External Reviewer files quarterly and other reports with the Court. Timing of reports is subject to the Court's needs, results of

Sl>
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(X)

Monitor's reviews, and to the monitoring plan pursuant to the Order of August 28, 2013.

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....... .......
w

Page 88 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

EC #

Evaluation Criteria

()

Section Referenced

)>

(/)

45.

The following have access to the Facility and its records: The Office of Ombudsman for Mental Health and

External Enti~ and Plaintiffs' Access

m

0

Developmental Disabilities, The Disability Law Center, and Plaintiffs' Class Counsel.

0

45.1 Open access to the Facility, its successors, and their records is given to the Office of Ombudsman-MH/DD, The External Enti~ and Plaintiffs' Access

<.0 I

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Disability Law Center and Plaintiffs' Class Counsel.

<
6

46.

The following exercised their access authority: The Office of Ombudsman for Mental Health and

Ext~mal Entit;Jo: and Plaintiffs' Access

.......

-.J

Developmental Disabilities, The Disability Law Center, and Plaintiffs' Counsel.

-.J

(}1

46.1 The Ombudsman-MH/DD, Disability Law Center and Plaintiffs' counsel have all exercised their authority to

E11temal Enli!;l! ang ~laintiff:;' A~;ce~~

I
0

access the Facility, its successors, and their records.

~

47.

The State undertakes best efforts to ensure that each resident is served in the most integrated setting

Settlement Agreement Section VJII.

T1 I

appropriate to meet such person's individualized needs, including home or community settings. Each

Transition Planning

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:::0

individual currently living at the Facility, and all individuals admitted, will be assisted to move towards more

integrated community settings. These settings are highly individualized and maximize the opportunity for

0

social and physical integration, given each person's legal s tanding. In every situation, opportunities to move to

a living situation with more freedom, and which is more typical, will be pursued.

47.2 Regarding transition planning for individuals entering more restrictive settings, the tasks under Evaluation

Settlement A~!Il£Dt SectiQn VIII.

0
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Criteria 48 to 53 shall be fulfilled.

Transition ~Ianning

.::.:.::.:.1..

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.......

48.

The State actively pursues the appropriate discharge of residents and provided them with adequate and

Settlement Agreement Section Vill.

appropriate transition plans, protections, supports, and services consistent with such person's individualized Transition Planning

Il co
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needs, in the most integrated setting and to which the individual does not object. 48.1 Each individual currently living at MSHS-Cambridge, and any individuals admitted prior to its closure, will

Settl~m~nt Ag~ment Se!;liQn VIll.

0 N
--0
N
--.......

have an appropriate transition plan developed within 30 days of admission in accordance with the individual Transition Planning

(j)

needs and preference for the most integrated setting possible. (For this purpose "admission" and "commitment"

"U

are treated the same.).

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Page 89 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

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Evaluation Criteria

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Section Referenced

)>

(/)

48.2 For individuals who may by law or court order be required to enter more restrictive and less integrated

Settlement A&:r<'cmcnt Section Vill.

circumstances, such as incarceration in a prison, person-centered planning and transition planning is given the Trnnsition f'lrmning

m
0 0

same importance as voluntary admissions. All efforts w ill be towards p reparation an d transition, safeguarding,

<0 I

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negotiating with facilities, supports while in a facility, and implemen ting immediate post-facility transition into

< I

weU-matched supports.

0
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49.

Each resident, the resident's legal representative and/or family to the extent permitted by law, has been

Settlement Agreem~ntS!:g!on VIII.

--.J --.J

permitted to be involved in the team evaluation, decision making, and planning process to the greatest extent Transition Plannin~

(]1
I

practicable, using whatever communication method he or she (or they) p refer.

0
~

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I

49.1 Each individual and/or the individual's family and/or legal representative as desired by the individual or

Settlement Agn:em!:nl Section YUI.

required by guardianship is permitted, actively encouraged, and welcom ed to be involved in the individual's Transition Plannin~

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:::0

person-centered planning and d ecision making to the greatest extent practicable utilizing whatever communication method the individual prefers and respecting the individual's right to choose the participants.

0
0

Invitations to all planning and evaluation meetings will be extended. Alternate means of participation will be

c(')

extended to those who cannot travel or attend, including phone and video conferencing. 49.2 Each individual will be invited and encouraged to participate in and take leadership in the person-centered

Settlement A~ement SectiQD YIJI,

3
CD
.::.:.:.:.l.

planning processes when this is possible and desired by the person. ln all circumstances, the person-centered Transition Plannin~

w(]1

planning process will be engaged in for and with all individuals, with the understanding that transition and

~

change will happen, that the people are vulnerable, and may n eed the alliance and support of other allies to

I!

support the p rocess of m oving forward. High quality person-centered planning, including the development of

person-centered profiles, plans, and transition plans, will not be delayed or minimized by a person"s perceived

level of readiness to take leadership of the process, or willingness to engage in the process.

50.

To foste r each resident's self-determination and independence, the State uses person-centered planning

Settlement ABn;:~m~nt SectiQD Ylll

principles at each stage of the process to facilitate the identification of the resident's sp ecific interests, goals,

TransitiQn Planning

aCD.
0 N
-0
N
-~

(j)

likes and disUkes, abilities and strengths, as well as support needs.

Page 90 of 112

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Evaluation Criteria

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50.1 Person-centered planning: 1) Will be started immediately upon meeting the person, before admission if

Settlement Agreement Section VITI.

m

possible; 2) Will be on-going; 3) Will be supported by a team of people who represent the interests of the

Transition Planning

0 0

person, if need be; 4) Without exception, and only if the person objects to the inclusion of specific people, the

c.o I

()

support team will include willing family members, case managers, current, past and future service workers,

<

and at least one individual who is in a freely-given relationship with the person which is conflict-free. This can

6

1-"

include a community advocate, citizen advocate, family member, or other individual who only has the welfare

-.J

-.J

of the individual to consider.

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I

If the individual is unable or unwilling to participate, people who know about and care for the individual, with the individual's approval, will still be invited to engage in sharing their perspectives about what that positive

0
~
T1

future can be and what is needed to bring it about. This process will begin at first contact, with a first personcentered plan drawn up by day 30 after admission or 45 days from approval of this Plan.

I
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50.2 Each Person-Centered Plan will be enriched, altered and moved forward at least every 30 days as the person

Settl~m~n! Agre~ment Ses;tion Vill.

becomes better known and moves toward a new living situation. As plans for this new living situation emerge, Transition Plannin~;

0

each plan will include all activities relevant for transition to a new living situation, relevant and necessary

0
(c )

supports to assure the person will have good success, and protections that need to be in place. 50.3 The information from each Person-Centered Plan will be fully incorporated into each person's transition plan, Sett!~ment Ag~m!mt Se~:tiQn ym,

3co
.::.:.::.:.1..

Positive Behavior Support Plan, goal plans, and service objectives within any Individual Service Plan.

Tran~itiQ!l £ l!!!:YJiD&

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w

1-"

50.4 AU plan facilitators will have, or function under the active supervision of a staff person who has, significant

Settlement A&reement Section VID.

experience and background in facilitation, social devaluation and its consequences, and the principles of

Transition Planning

Il

Normalization I Social Role Valorization, person-centered thinkinSt and the various and vast array of useful

co
0..

tools and techniques which may be of use for a particular person. Any such supervisor shall co-sign and be responsible for the plan and plan process. ln this manner, a thoughtful, authentic, individualized and successful planning p rocess will result in meaningful outcomes. Evidence of use of various, individualized techniques for different individual people will be dear in the development of person -centered plans. (PATH,

0 N
--0
N
--1-"
(j)

MAPS, Personal Futures Planning, One Page Profiles, and Helen Sanderson's Person-Centered Thinking, are

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examples).

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1-"
w1-"

Page 91 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

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Evaluation Criteria

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Section Referenced

)>

(/)

50.5 An annual learning and professional development plan which includes the above areas will be developed with Settlement Agreement Section V!II.

and for each facilitator of person-centered processes. Irmay include reading, research, formal, and informal

Transition Planning

m
0 0

training, mentoring, and development events. These learning and professional development plans will include

c.o I

()

a minimum of 25 hours per year of educational activities (formal and informal) focused on person-centered

<

planning, and will be completed as planned. Attendance at professional conferences, in and out of state, will be

6
.......

supported and facilitated.

-...1 -...1

50.6 Person-Centered Planning will include the intentional development of each support team's understanding and Settl~m~nt A~eem~nt Se~tiQn YITI.

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I

analysis of the individual's particular life experiences and how they have impacted the person. Themes, patterns, potential responses, and lessons should be drawn from this knowledge. Biographical timelines, or

Transition Planning

0
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other person-centered means to capture histories and understand the person will be conducted for each person, with the collaboration of the person and family, if appropriate.

I
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:::0

50.7 The development of a person-centered description or personal profile will be used to develop the initial

Settlement A&reement Section Vill.

person-centered plan.

Transition Planning

0

0

50.8 The formats for the Person-Centered Plan, person-centered description or personal profile will be revised to

Settl!:m~n! A&~emen! 5e£!iQn VIII.

comply with the content requirements of this CPA. The Individual Program Plan will incorporate the Person- Transition Plannin&

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Centered Plan.

:..:.:.J...

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The Person-Centered Plan will be re-designed to reflect a person-centered approach and style. This will include

w

adding: 1) The focus person's goals, interests and vision for the future; 2) The identification of any actions and

.......

plans towards achieving those goals; 3) Support to be provided and by whom; 4) Use of everyday, informal

Il

language and avoidance of unnecessary service jargon. Objectives for the Person-Centered Plan will be drawn

cco..

directly from the person-centered description I profile.

51.

Each resident has been given the opportunity to express a choice regarding preferred activities that contribute Settlement A~eement Section VIII.

to a quality life.

Tr!!!!§ition Plannin~

0 N
--0
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--.......

(j)

"U

51.1 For each person served at a Facility, the Person-Centered Plan will include preferred activities, areas in which Settlement A&reement Section VIli.

the person wants to learn and grow, relationships to strengthen, and competencies to learn.

Trll!lSition Planning

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Page 92 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

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Evaluation Criteria

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Section Referenced

)>

(/)

51.2 Frequent, daily opportunities will be built into daily life for each person to engage in meaningful activities that Settlement A&rn~:ment SectiQn VITI. are personalized, individualized, and selected by the person. These will be activities planned with the person, Transition Plannin~

m
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and carried out in an individualized fashion. "House activities" will generally not be consistent with providing

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individualized, person-centered activities which the person freely chooses to engage in.

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52.

It is the State's goal that all residents be served in integrated community settings and services with adequate

Settlement Agreement Section VIII.

protections, supports and other necessary resources which are identified as available by service coordination. If Transition Planning

.......
-.J -.J

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an existing setting or service is not identified or available, best efforts will be utilized to create the appropriate

I
0

setting or service using an individualized service design process.

~

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52.1 Each individual's Person-Centered Plan will embody continuously increasing clarity at each revision/ development meeting on what an ideal living situation m ay look like for the person. These will s upport and

Set.ll!:menl A&~ement Se!:tiQn Y:III, Transition Planning

I
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describe "must haves" components which must be in place in any conside red s ituation. This may include living

·situations which are not offe red in existing structured services. It may also be impossible to "show" a person a

0

service that matches their needs, even though they may select that option from several. 52.2 If an existing service/living situation is identified and selected by the individual with assis tance from the
support teail\ alterations, enhancements, and additional supports will be added whenever appropriate to

Settlement Agreement Section VUI. Transition Planning

0
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ensure robust community supports which meet the essential needs for assistance, structure, and support as

.::.:.::.:.1..

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outlined in the Person-Centered Plan. "Must haves" identified as in 52.1 are required to be in place.

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.......

52.3 If an existing residential service is not identified or available, the appropriate services must be created, using an Settlem~nt A&regment SegiQn VIII,

individualized service design process .

Iran~itiQ!l fi!!DDiDg

Il cco..

52.4 When a living situation is identified as a possibility, the individual and the s upport team as appropriate will

~ttlem!:nt Agreement SecliQn VHI.

have multiple opportunities to visit, meet potential house-mates, interview the staff and provider, spend time Transition Planning

0 N
--0
N
--.......

(j)

in the situation, and be given the opportunity to make a choice about the living situation, reques t program

enhancements or adjustments, or decline the option.

Page 93 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

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Evaluation Criteria

Section Referenced

() )>

(/)

52.5 When a discharge into an alternative living situation is agreed upon, the transition plan will be further

Settlement Agr~ement Ses;tiQn VITI,

m

developed and finalized. This pre-discharge iteration of the transition plan will include not only the sharing of Transition Planning

0 0

information and documents transfers between providers, 1) An individualized plan to facilitate a smooth

<.0 I

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move; 2) Assistance to the person to navigate the move with ease, and arrange for safeguarding and transfer of

<

I

the person's belongings; 3) Planning for and making purchases for new home,; 4) Assistance to become

0 .......

familiar with new neighborhood, area, town; 5) Planning for packing and move day ; 6) Personalization of new

-.J -.J

home; 7) Notification of family and friends; 8) Post office and utility changes; 9) Introductions to neighbors;

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10) Setting up opportunities to deepen relationships with future housemates; 11) Celebrations, welcoming, and farewells; 12) Designing layout of space, window treatments, etc. These types of considerations are a part of the

0
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typical processes that valued adults in our culture when preparing to move, and these and others shall be considered.

I
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52.6 The format for the transition plan will incorporate and provide for address of the elements in 52.5 above.

Settlement Agre~::ment Section VITI.

Tran~itiQn Pl;mning

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53.

The provisions under this Transition Planning Section have been implemented in accord with the Olmstead

Set!J~m~nt Agre~m~nt Section VIII.

decision.

Transition Planning

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53.1 Any living arrangement, day service, or other service which is administered or organized in a segregated

Sgttlgm1mt Agn~ement Section V(II,

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manner must be justified in writing as a part of the transition plan as being necessary. In a "segregated manner" Transition Planping

.......

means that the people served are all people with disabilities who have not specifically chosen to live or be

Il

served together. This justification will be accompanied by objectives to increase social and physical integration

co

0..

which will be included in service planning objectives and program planning.

53.2 All services provided and planned for, and transitioned into must be adequate, appropriate, and carefully

Settl~ment A~reeroent Section VIII.

monitored. This need for monitoring will be carefully weighed by each person-centered team and addressed. Transition Planning

This includes services at the Facility and new living and working situations into which a person is

0 N
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(j)

transitioning.

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Page 94 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

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Evaluation Criteria

()

Section Referenced

)>

(/)

53.3 All services provided will include assisting people to have meaningful roles in community life, civic life, relationships, work and career, home, and areas of personal interest. When appropriate, these areas of

Settlement Agreement Section vm.
Transition flilDDing

m
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engagement will be envisioned by the team alongside the individual served, and opportunities will be created

c.o I

()

for this engagement in everyday life. These roles and engagements will be consistently identified and

<

addressed within the Person-Centered Planning, Transition, and the Positive Behavior Support Plans

6
........

development processes.

-.J -.J

53.4 The above areas of engagement (community life, civic life, relationships, career, home, personal interests) will Settlement Agreement Se~tiQn yrn,

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I

be included in each Person-Centered Plan as focus areas for planning and related objectives.

Transition Planning

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54.

Facility treatment staff received training in positive behavioral supports, person-centered approaches,

SeU!!:ment Agr~ement Section D<.A. Other

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therapeu tic interventions, personal safety techniques, crises in tervention and post crisis evaluation.

Practices at the Facilit):: Staff Training 0

0

54.1 Facility staff in all positions receive annual standardized training in: 1.Therapeu tic Interventions

Settl!illl~l:ll Ag~ment ~ction DCA. Other

(c )

Practices at the Ess;ili~ - ::lti!ff Irl!inin~

3co

2. Personal safety techniques

.::.:.::.:.1..

3. Medically monitoring restraint

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4. Positive Behavior Supports

........

5. Person-Centered Approaches 6. Crisis Intervention 7. Post-Crisis Evaluation and Assessment 54.2 All new or temporary Facility staff in all positions receive standardized pre-service training in: l.Therapeutic Interventions 2. Personal safety techniques 3. Medically monitoring restrain t

Il

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Settlement AgreemE'nt Section IX.A. Othet Practices at the Facili~- Stafi Iri!ining

0 N
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--........

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4. Positive Behavior Supports

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5. Person-Centered Approaches

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6. Crisis Intervention

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7. Post-Crisis Evaluation and Assessment

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........
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Page 95 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

EC#

Evaluation Criteria

()

Section Referenced

)>

(/)

54.3 The Department will record, monitor and follow-up with the Facility administration to ensure that all facility Settlement Agreement Section DCA. Other

treatment staff receive all necessary training including, but not limited to, EC 62-6!!, below.

fri.u:ti!:fs ill tb!:: Esu;ililJI: - Srnf[ T[il.ining

m
0
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I

55

Facility staff training is consistent with applicable best practices, including but not limited to the Association of SeUJgment &~rggmem Sel;;tiQn IX.A. Other

Positive Behavior Supports, Standards of Practice for Positive Behavior Supports (http://apbs.org). Staff

Practices at !l!g F!!&ilH~- Staff T[aiiJin&

()
< I
0

training programs will be competency-based with staff demonstrating current competency in both knowledge

.......
-.J

and skills.

-.J
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55.1 All Facility staff training programs will be competency-based with staff demonstrating current competency in Settlement Agre~ment Section JX.A. Other

I
0

both knowledge and skills.

Practice~ at the Facili~ - Staff Training

~

T1

I

55.2 Training curricula are developed, based on, and consistent with bes t practices in: 1) Positive Behavioral

Settlement Agreement Section IX.A. Other

Supports; 2) Person-Centered approaches/practices; 3) Therapeutic Intervention Strategies; 4) Personal safety Practices at the Facili~ Staff Training

_,OJ
:::0

techniques; and 5) Crisis intervention and post crisis evaluation.

0

55.3 Each training program (that is, 1) Positive Behavioral Supports; 2) Person-Centered approaches/practices; 3) Therapeutic Intervention Strategies; 4) Personal Safety techniques; and 5) Crisis intervention & post crisis evaluation), will be evaluated at least annually and revised, if appropriate, to ensure adherence to evidence-

SeHl~m~DI Agr~~m~nt SectiQD IX.A. Qther Practic~s at l.h~ facilil~- 2!9£f I~:ainin~

0
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based and best practices.

.::.:.::.:.1..

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55.4 DHS will ensure training programs promote sensitivity awareness surrounding individuals with cognitive and Settlement A&reement Section IX.A. Other mental health disabilities and how their developmental level, cultural/familial background, history of physical Pr~ctice~ at the Facili~- Staff Training

w
.......

or sexual abuse and prior restraints may affect their reactions during behavioral emergencies.

Il

co

55.5 DHS will ensure that training programs are designed to also develop staffs self-awareness of how their own Settlement Agrgement Section IX.A. Qfu~r

0..

experiences, perceptions and attitudes affect their response to behavioral issues and emergencies.

Practices at the Facili~- Staff In~inin&

56.

Facility staff receive the specified number of hours of training: Therapeutic interventions (8 hours); Personal

Settlement A~reement SegjQn IX,A, Qth~r

safety techniques (8 hours); Medically monitoring restraint (1 hour).

Practices at the F!!cilit:t- :2tilff Tmining

0 N
--0
N
--.......
(j)

56.1 Competency-based training curriculum is developed which minimally provides 8 hours training in Therapeutic Interventions; Personal Safety Techniques and 1 hour in Medically Monitoring Restraints.

Setl!~ment Asre~m~nt :;!egion IX.A. Other Practice~ at the Facili~ - ~taff Trainin&

56.2 All current employees receive 8 hours of competency-based training on Therapeutic Interventions.

Settlement Asreement Section IX.A. Qth~I Practices at the Facili~ Staff Training

Page 96 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

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Evaluation Criteria

Section Referenced

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56.3 All current employees receive 8 hours of competency-based training on Personal Safety Techniques.

Settlement Agreement Section TX.A. Other

m

Proctic~s at the Facilitv - Staff Training

0

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56.4 All current employees receive 1 hour of competency-based training on Medically Monitoring restraints.

Settlement Agreement Section I:X.A. Qth!!r £r1:u;ti~ ilt Uu: Fa!:ili~ Staff Training

I
()
<
6

.......

57.

For each instance of restraint, all Facility staff involved in imposing res traint received all the training in

Settlement Ag:reement Section IX.A. Other

-.J -.J

Therapeutic Interventions, Personal Safety Techniques, and Medically Monitoring Restraint.

Practices at the F'aci lit~ - Staff Training

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I

0

57.1 No staff member is permitted to be assigned to direct support services until having received all required orientation and/or annual in-service training on all elements of EC 56, above.

Settlement Agreement Section IX.A. Other Praclices at the Facillt~ - Staff Training

58.

Facility staff receive the specified number of hours of training: Person-centered planning and positive behavior Settlement A~reement Section IX.B. Other

~
T1 I
_,OJ
:::0

supports (with at least sixteen (16) hours on person-centered thinking I planning): a total40 hours; Post Crisis Practices at_the Facilitv - !-lours of Training

0

Evaluation and Assessment (4 hours).

0

59.

Residents are permitted unscheduled and scheduled visits with immediate family and/or guardians, at

Settlement Agreement Section IX.C. Other

reasonable hours, unless the Interdisciplinary Team (IDT) reasonably determines the visit is contraindicated.

Practice.c; at the Facilitv - Visitor Polic~

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.::.::.:.:1..

59.1 Facilitate and allow all individuals to have scheduled and unscheduled visits with immediate family and/or guardians and other visitors if not contraindicated by court order or person-centered plans.

Settlement Agreement Section D<.C. Other Practices at the Facility:- Visitor Policv

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.......

60.

Visitors are allowed full and unrestricted access to the resident's living areas, including kitchen, living room, Settlement AgEement Section IX.C. Otl1er

social and common areas, bedroom and bathrooms, consistent with all residents' rights to privacy.

Practices at the Facilil:l- Visitor PQ!icv

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60.1 Facilitate all visitors access to the individual's living areas, including kitchen, living room, social and common Se!tl!.lm§!lt Am!.lm~nl Se~tion IX.C. Other

areas, bedroom and bathrooms, with attention paid to the right of individual privacy and person-centered

Practices at the Facilitv- Visitor Poli~

0 N
--0
N
--.......

plans or court requirements.

(j)

61.

Residents are allowed to vis~t with immediate family members and/or guardians in private without staff

supervision, unless the IDT reasonably determines this is contraindicated.

Settlement Ag:reement Section lX.C. Other

Practices at the Facili!l- Visitor PoliO!

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61.1 Provide privacy, if desired by the individual, for all individuals when visiting with immediate family members Sett!~menl Agreement Section TX.C. Other

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and/or guardians, unless the person-centered plans reasonably determines this is contraind icated or visitation rules are court ordered.

Pracl:i!,;es at the Fscili!)! - Visitor Polk~

(X)
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.......

.......

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Page 97 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

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Evaluation Criteria

Section Referenced

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62.

There is no marketing, recruitment of clients, or publicity targeted to prospective residents at the Facility.

Settlement As rcemcnt Section IX.D. Other

m

Practices at the Faci lit~ - Np Inconsistent

0

Publicitli

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63.

The Facility purpose is clearly stated in a bulletin to state court judges, county directors, social service

Settlement 8 gi!1!1ment Se~tiQn IX.D. Qther

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6

supervisors and staff, county attorneys and Consumers and Families and Legal Representatives of consumers Eral:til:es allhe Eacli~ - ~Q Ina:ln~ist!mt
of Developmental Disabilities services. Any admission will be consistent w ith the requirements of this bulletin. Publicit):

.......
-...J -...J

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I

63.1 Clearly state the Facility's purpose in a bulletin to state court judges, county directors, social service

Settlement A~reement Section IX.D. Other

supervisors and staff, county attorneys and Consumers and Families and Legal Representatives of consumers fractices at the Facilitv- No Inconsistent

0
~
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64.

of Developmental Disabilities services. The Facility has a mission consistent with the Settlement Agreement and this Comprehensive Plan of Action.

f ub!i!it): Settlement Agreement Section IX.D . Other

I
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Practices at the Facilitv - No Inconsi~tent

~y!2!i9t):

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65.

The Facility posts a Patient I Resident Rights or Bill of Rights, o r equivalent, applicable to the person and the Settlement Agreement Section IX.E. Other

placement or service, the name and phone number of the person within the Facility to whom inquiries about

Practices at the Facilit):- Posting

care and treatment may be directed, and a brief statement describing how to file a complaint with the

Recwirements

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.::.:.::.:.1..
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appropriate licensing authority.

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.......

66.

The Patient I Resident Bill of Rights posting is in a form and with content which is understandable by residents Setl!!ilment 8 gm!i:m!iln! Se~:,;tion IX t Qtiu:r

Il co

and family I guardians.

Practic~s at the Facili~- Posting

0..

Resuir~menl<;

66.1 Apart from any Patient/Resident Rights or Bill of Rights format which may be required by state law, an

Settlement A ~eement Section IX.E. Other

alternative version at an appropriate reading level for residents, and with clearly understandable content, will fractic!ils SJt th!il Eacili~ - £~ting

0 N
--0
N
--.......
(j)

be posted and provided to individuals, parents and guardians on admission, reviewed at IDT meetings, and

Requi rements

annually thereafter.

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67.

The expansion of community services under this provision allows for the provision of assessment, triage, and Settlement Ag reement Section X.A. Svstem

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care coordination to assure persons with developmental disabilities receive the appropriate level of care at the Wide Im12rov~ments - EXJ2i!!!Sion of Communi~ Sul2J?:Qrt Services

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right time, in the right place, and in the most integrated setting in accordance with the U.S. Supreme Court

Settlement A~Teemenl Section X.A. Svstem

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decision in Olmstead v. L.C., 527 U.S. 582 (1999).

Wigf: !mJ2rQ£gm~nt~ - f:l!ll2a!J5iQD Qf

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67.1 Community Support Services (CSS) provides assessment, triage, and care coordination so that persons with

Settlement ~greemenl Se~.:tion XA. S~rem

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developmental disabilities can receive the appropriate level of care in the m ost integrated setting.

Widf: lmJ2mYemgn~ - ~XJ!l!~illn 21

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Communi!>! SUJ2J20rt Services

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67.2 Collect and manage data to track CSS interventions noted in 67.1 and their outcomes.

Settlement Agreement SectiQn X.A. S~stem Wide ImJ2rovement~ Ex12ansion of

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Communib:: Su~mQrt Servi~

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67.3 Provide necessary administrative/ management support within CSS to accomplish data management and analysis.

Settlement Agreement Section X.A. S~stem

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Wide Improvements - Ex12ansion of

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Communi!>! SUJ2J20rt Services

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67.4 Focus weekly "diversion" meetings to include person-centered development strategies rather than considering Setllement AjUeement 5<.--ction X.A. Svstem

only existing vacancies and challenges. From this perspective: 1) Review any proposed admissions to more

Wide ImJ2rOvements - Ex12ansion Qf

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restrictive settings and consider all possible diversion strategies; 2) Review status of transition planning for all Communicy Su12ggrt Services

living at the Facility, 3) Add active, individualized planning I development focus to these transition discussions

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which is consistent with the Olmstead Plan and includes such activities as developing a person-centered

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request for proposals for any person or persons at the Facility without an identified and appropriate targeted home in the community. 67.5 Weekly diversion meetings consider all individuals in danger of losing their living situation with an emphasis Settlement Agreement Section X.A. Svstem

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upon development of integrated alternatives where none are available.

Wide lmJ2rovements Ex12ansion of

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67.6 CSS has additional administrative I managerial support to insure documentation and analysis of all diversion Set!:!em!:nt 8greement Section X.A. S~st!,':m

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efforts and their impact on individuals' stability regarding living situations and behavioral / mental health.

Wide lmj2rovements - Ex12ansion of

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67.7 CSS provides continuous and on-going d iversion from institutionalization and placement in less integrated

Settlement A~eement Section X. A. Svstem

0

settings whenever possible by establishing procedures for assessment, care planning, and providing additional Wide l!Di2TQ!l!i:men~ - Exp@~ion of •

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services, supports and expertise for individuals in jeopardy of losing their placements or living situations due CQmmtmity Suj212Qrt Services

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to behavioral or mental health problems.

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67.8 The Department will collect and review data relative to admissions and transitions. This shall include, but not Settlement Agreement Section X.A. Svstem

-...J

be limited to: 1) individual's name, date of birth and county of origin; 2) current residence, provider and type of Wige Im12rQv~men~- Ex12ansion of

residential setting, e.g., independent living, family of origin, group home, ICF/ID, etc.; 3) date the individual

Community SuppQtt Services

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moved to or was admitted to current residence; 4) previous residences, providers and residential settings; 5)

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dates of previous admissions and transitions including reason(s) for moves.

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68.

The Department identifies, and provides long term monitoring of, individuals with clinical and situational

Settlement Agreement Section X.A. SJ::stem

complexities in order to help avert crisis reactions, provide strategies for service entry changing needs, and to Wide Imj2!2Y~m~:n!~ - Ex12~nsion of

0

prevent multiple transfers within the system.

Communit~ Su12122rt Service11

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68.1 For DHS-operated services, the Department will maintain State and regional quality assurance committees to Settlement A&!!lemenl Section X.A. Sv~tem

review data on a monthly basis. This review will include: 1) identifying individuals at heightened risk and

Wide Im12rovements EXJ2<msion of

determining intervention strategies; 2) reviewing data by county, region and provider to determine if trends or Communit)! SU)2!2Qrt Se!Yi~~

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patterns exist and necessary corrective measures; and 3) maintaining meeting minutes detailing attendance

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(person/title), chairperson, individual and aggregate data review, issues and trends identified (individual and

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systemic), corrective measures to be taken, dates by which such corrective measures are to be completed,

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responsible parties, and follow-up of the previous months' action plans.

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68.2 The Department will maintain an electronic data collection system, which tracks the status of all corrective

Settlement Agr<.>ement Section X.A. S~:~tem

action plans generated by State and regional quality assurance committees, following up with the appropriate Wide Im12rovements - Ex12ansion of

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provider or county to ensure task completion.

!:omml!!li~ Sui212Q!! Servi.£es

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69.

Approximately seventy five (75) individuals are targeted for long term monitoring.

Settlem~nt Atp;eemenl Section X.A. S)!slem Wide ImJ2rQV!!:ffignt2 - ~X~!Y!~iQn Qf Communit)! SUJ2)2QT! Ser:iices

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69.1 CSS will identify individuals with clinical and situational complexities who have been served by CSS and who

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would likely benefit from more intensive monitoring.

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69.2 Seventy five individuals who are s~gnificantly at-risk for institutionalization or loss of home due to behavioral Settlement Awc<'ment Section X.A. Svstem

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or other challenges will be identified for intensive monitoring an<l if needed, intervention with additional supports and services.

Wide Im12rovements - Ex52ansion of
~ommunitx ~u121,2ort Seryjs;~

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69.3 These 75 individuals will be identified by CSS in collaboration with lead agency case managers based upon

Settlement Agreement Section X.A. S)lslem

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frequency of behaviors dangerous to self or others, frequency of interactions with the criminal justice system, Wide Im12rQV!i:ffient§ - Ex12ansiQll Qf

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sudden increases in usage of psychotropic medications, multiple hospitalizations or transfers w ithin the

Communi.tx ~Y1212M Se~~

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system, serious reported incidents, repeated failed place ments, or other challenges identified in previous

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monitoring or interventions and cost of placement. The status of these individuals will be reviewed at least

semi-annually by CSS.

0

70.

CSS mobile wrap-around response teams are located across the state for proactive response to maintain living Settlement Agreement Section X.A. S:o::stem

0

arrangements.

Wide lmj2rOvements - Ex12ansion of

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Communi.t)l SuJ2!22!1 Servis;g§

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70.1 Describe locations of the 9 teams that have been established in 23 locations throughout the state.

Settleme.nt Asreement Section X.A. Svstem

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Wide lmJ2rovements - Ex12ansion of

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Communitx Su1212Qrt Services

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70.2

Provide CSS with administrative I managerial support for the 9 teams to insure sufficient data collection and

~ltlemi!nt Agmlm~nt Section X A S)!s~m

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central data management 70.3 Document responses from CSS to individual's satisfaction surveys.

Wide Imwovements - Ex12ansion of

Communit)l 5Uj2J:!Ort Services Settlement Ag:r<!ement SectiQn C,..A :;!vstem

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Wide Imwovements - Expansion of

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~ommunit)l Su11110rt Services

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71.

CSS arranges a crisis intervention within three (3) hours from the time the parent or legal guardian authorizes Settlement Agreement Section X.A. Svstem

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CSS' involvement

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71.1 Strategically establish nine teams in 23 locations throughout the State to respond within 3 hours of a request

0

for service. CSS admissions contacts the person's case manager as soon as they learn of a potential or actual

0

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crisis situation.
71.2 Streamline authorization procedure to facilitate CSS' response to reported crises as quickly as possible.

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Settlement Agreement Section X.A. S)Lstem Wig~ Im~rQvements - Ex12ansion of

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72.

CSS partners with Community Crisis Intervention Services to maximize support, complement strengths, and Settl~ment Agreement Section X.A. S:Jlslem

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avoid duplication.

Wid!i: ll!ll2!Q:I1ements - F.J>i2an:;iQn 2t

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72.1 There is ongoing collaboration with the Metro Crisis Coordination Program (MCCP), whose intent is to

Settlement Agrgement Section X.A. S)Lstem

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provide a crisis safety net range of services for persons with developmental disa bilities or related conditions;

Wid~ lml!rovements - Ex~ansion of

MCCP is a collaborative effort of seven counties in the Twin Cities metropolitan area. (metrocrisis.org)

CQmmurnt;)l SJ,!J2RQTt ~rvi~:;

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72.2 Each county, and tribe as relevant, will have a system of locally available and affordable services to serve persons with developmental disabilities.

Settlement A~ement Section X.A. System Wide ImJ;!rovements - Exj;!~!Q!! of

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~Qffiffi.\lnit)L :;!UJ;!l!Qrt Servjs;e:1

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72.3 Continue quarterly meetings with MCCP.

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Settlement Agreement SectiQD X.8, S)Llit!!m

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Communit;)l Su1212ort Servic~:§

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73.

CSS provides augmentative training, mentoring and coaching.

Settlem~:nt A&r!:!:ffi!:D1 SegiQn X,t\. S~§t~m Wide Imwovements - Exf1ansion of Communi~ Su~12Qrt Services

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73.1 CSS Staff will offer and provide training, as requested or determined to be lacking, on coaching, mentoring and Settlement A!mlement Section X.A, S~ll!m!

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Augmentative training.

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73.2 CSS will update training manual as necessary.

Settlement Asreemcnt Section X.A. S~stcm

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Comn:um!t): Su12122rt Se[vi~

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73.3 CSS will have sufficient administrative/ managerial staff to track/analyze training as well as mentoring and

Settleme_nt Agreement Sel;l:iOO ~.8. 5)'SI~ID

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coaching services provided.

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74.

CSS provides staff at community based facilities and homes with state of the art training encompassing person- Settlement Agreement Section X.A. S\rstem

centered thinking, multi- modal assessment, positive behavior supports, consultation and facilitator skills, and Wide Imj;!rovements Ex12ansion of

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creative thinking.

Communi!~ 5UJ2J20tt Sen!i!.:~~

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74.1 CSS determines locations for teams and/or home-based staff.

Settlement Agreement Section X.A. S~stem

CSS creates position descriptions that identify the necessary knowledge, skills, and abilities.

Wide lmj2rOvements Ex12ansion of

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CSS hires or trains staff with necessary qualifications and skills to provide training.

CQmm!.!niU:: S!.!J212Qrl Servi!;;~

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74.2 CSS insures that all vacant trainer positions are filled as efficiently as possible and with appropriately qualified Settlement Agreement Section X.A. Svstem

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staff.

Wide Im12rovements - Ex12ansion Qf

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Communit;)l Su[![!Ort Servi!;e~

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74.3 Training curricula are reviewed routinely to insure consistency with best practices.

Settlement Agreement Section X. A. Svstem

Wide Im12rovements - EXJ2!YJSion Qf

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Communit): Su[!(;!QJ! Seai~;e§

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75.

CSS' mentoring and coaching as methodologies are targeted to prepare for increased community capacity to

SeU!~numt 8gr~:~ment S~tiQn X.A. S!i:il!ilm

support individuals in their community.

Wide Imj;!rovemgnts - EXj2i!ru!ion Qf

Communit): SUj212Q[t Servi~

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75.1

CSS will mentor and develop coaches in the community with a vision to support individuals in communities. Settlement Agreement Section X.A. S;11~tem

Wide ImJ2rovements Ex12ansion Qf

Community: 5UJ2J2Q[t Seaice~

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75.2 Track issues including frequency of behaviors dangerous to self or others, frequency of interactions with the

Settlement Asreement Section X. A. Svstem

0

criminal justice system, sudden increases in usage of psychotropic medications, multiple hospitalizations or

Wide ImJ:!rovements- Ex12ansi.on of

0

transfers within the system, serious reported incidents, repeated failed placements, or other challenges

CQmmyni~ SY~j2Qrt Servi~l!

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identified in previous monitoring or interventions and cost of placement. 75.3 Provide additional administrative/ managerial support to CSS sufficient to enable timely and complete data

Settlement Ag:reemenl Section )(A. S:tstem

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6
.......

collection. entry and analysis

Wid~ Im~rm~em!:nt§- ExJ2ansiQn Qf

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CQmmynit)1 Su~1221:! Servi~

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76.

An additional fourteen (14) full time equivalent positions were added between February 2011 and June 30,

Settlement Agreement Section X.A. S)1stCm

~

2011, configured as follows: Two (2) Behavior Analyst 3 positions; One (1) Community Senior Specialist 3; (2) Behavior Analyst 1; Five (5) Social Worker Specialist positions; and Five (5) Behavior Management Assistants.

Wide Im12rovements- Ex12ansion of Comm1!nit)1 SY!2122D Servi~~

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76.1 Review position descriptions, update as necessary. 76.2 Work with DHS Human Resources on advertising positions.

Settlement As-reement Secticm X. A. S)1stcm

Wide Im12rovements - Ex,12ansion of

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Communi!)! SuJ2j20rt Services

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Settl~m!i:nt 8g~~DJ~DI Ses;tiQD ~- A . S)!~t!i:m Wide Im12rovements - Ex.12ansion of

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Commurnt)! SuJ2!2Q!.:! SerYi~

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76.3 Fill any vacancies in functionally equivalent positions, with the required qualifications. As necessary to fulfill Settlement A~ement Section X.A. S;iStem

T1

this Comprehensive Plan of Action, fill any position.

Wide Imx;1rovements - Ex12ansion of

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Communit;:i Su11120rt Services

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77.

None of the identified positions are vacant.

Settlement Agreement Section X.A. S;istem
W!.Q~ lm~ro~m~n!~ - gii.J2!!n~iQn 2!
Communi!~ SUJ2!20r! Servic~s

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77.1 Fill as quickly as possible and with qualified applicants all vacancies in these and other functionally equivalent Settlement A~reement Section X. A. S)!5tem

positions. Provide sufficient salary, bonus and other structures and incentives to ensure that the positions are Wig!: Im12rovements - Ex12ansiQn of

filled.

Communit~ Suj2~rt Services

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78.

Staff conducting the Functional Behavioral Assessment or writing or reviewing Behavior Plans shall do so

Settlement A~reement Section X.A. S:r::stem

0

under the supervision of a Behavior Analyst who has the requisite educational background, experience, and

Wide Improvements - ExJ:!ansion of

0

credentials recognized by national associations such as the Association of Professional Behavior Analysts. Any !::2mm1.mitl( Su12122rt Servi&~

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supervisor will co-sign the plan and will be responsible for the plan and its implementation.

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79.

The State and the Department developed a proposed Olmstead Plan, and will implement the Plan in

Settl!l!!l~1A&Ie~meot Se~:;tiQn X.~. ~~t~m

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accordance with the Court's orders. The Plan will be comprehensive and will use measurable goals to increase Wige lrn~rQvgment~ - Qlm~tgad Plil.!l

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the number of people with disabilities receiving services that best meet their individual needs and in the ''Most

I
0

Integrated Setting," and which is consistent and in accord with the U.S. Supreme Court's decision in Olmstead

~

v. L.C., 527 U.S. 581 (1999). The Olmstead Plan is addressed in Part 3 of this Comprehensive Plan of Action.

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80.

Rule 40 modernization is addressed in Part 2 of this Comprehensive Plan of Action. DHS will not seek a waiver Settlement A&reement Section X.C. S;:ts~rn

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of Rule 40 (or its successor) for a Facility.

Wide Im~rovements - Rule 40

81.

The State takes best efforts to ensure that there are no transfers to or placements at the Minnesota Security

Hospital of persons committed solely as a person with a developmental disability.

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Settlement Ag.reement Section X.D. S:,::stem Wide Im12rovements- Minnesota Securitl( Hos12ital

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82.

There are no transfers or placements of persons committed solely as a person with a developmental disability to the Minnesota Security Hospital (subject to the exceptions in the provision).

Settlement Agreement Sec!]Qn ~.Q. :::!:r::l!tgm Wide lmJ2rovements - MinnesQta Securi~ Hosj;!ital

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82.1 DHS will communicate to all County Attorneys and state courts responsible for commitments, and to all

Settlement Agreement Sectign ~,D. S:t::!t~m

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county directors and case managers, that pursuant to the order of the federal court a pproving this Plan, no person committed with a sole diagnosis of developmental disability may be transferred or placed at the

Wjgg lmj2IQvgmgn~- Mirme:!Qta SgQ.!rit)::

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Minnesota Security Hospital. Such communication will be made from the Commissioner within 30 days of the

1-"
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order approving this plan and, in addition, by DHS staff who become aware of any such proposed

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commibnent or transfer.

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Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 301 2015

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82.2 The Jensen Implementation Team will document any proposed transition to or placement at MSH of any

Settlement Agreement Section X.D. 5)-:stern

0

person committed solely as a person with a developmental disability, including but not limited to any

Wide lm.j2rovements- Minnesota Security

0

diversion efforts prior to transfer or placement and any subsequent placements.

HQspital

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83.

There has been no change in commitment status of any person originally committed solely as a person with a developmental disability without proper notice to that person's parent and/or guardian and a full hearing

Settlement Asreement Section X.D. S)':stem WiQ!ll 1!!).}2rovements- MinnesQta Securitv

6
.......
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before the appropriate adjudicative body.

Ho§l!it;!l

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83.1 The Jensen Implementation Team will document any changes in commitment status of a person originally

Settlement Agreement Section X.D. S}:stem

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~

committed solely as a person with a developmental disability. The documentation will include any

Wide lmj;!rovements - Minn£Sota Securit)::

T1

I

notifications and a description of any hearing, and copies of petitions and other papers submitted in connection Hospital with notification and/or hearing.

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84.

AU persons presently confined at Minnesota Security Hospital who were committed solely as a person with a developmental disability and who were not admitted with other forms of commitment or predatory offender

Settlement A~rccmc:nl Section X. D. Svs tcm Wigg lmRrQygm£nt§ - Minn~ll! Se!J,!ril)l

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status set forth in paragraph 1, above, are transferred by the Department to the most integrated setting

Hospital

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consistent with Olmstead v. L.C. 1 527 U.S. 581 (1999}.

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84.1

Provide current censllS1 and identifying information, of any people living at MSH committed solely as a person Sett!~ment Almlgment Section X.D. Sy:;tem

:..:.:.J...

with a developmental disability.

Wide lm~r<~vements- Minncsotl;! Securi~ Hospital

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.......

84.2 Provide documentation of any transition/ placement from MSH since 12/5/2011 of any persons committed

Settlement Asreement Section X.D. Sxstem

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solely as a person with a developmental disability. Any such transfer/placement shall be to the most integrated Wid!: lm~rov!:;menls- Minnesota Security

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setting consistent with Olmstead v. L.C.1 527 U.S. 581 (1999).

Hospital

85.

All AMRTC residents committed solely as a person with a developmental disability and who do not have an Set!J.ecment Agn1ement Section X.E. Svstem

acute psychiatric condition are transferred from AMRTC to the most integrated setting consistent with

Wide lmJ2!:QVemen!:! - AnQka M!:trQ

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Olmstead v. L.C. 1 527 U.S. 581 (1999).

B!:giQL!1!l Ir!:atmen! C!:D~[

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85.1 DHS will communicate to all County Attorneys and state courts responsible for commitments, and to all

Sctllcment As:rccmcnt Section X.E. Svsfcm

0

county directors and case m anagers that, pursuant to the order of the federal court approving this Plan, no

Wict~ ImJ2rQvgmgn~ - AnQka MgtrQ

0

person committed with a sole diagnosis of developmental disability may be transferred or placed at the Anoka RegiQD!ll I[giiltmgnt ~!i.lnt!i.lr

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Metro Regional Treatment Center. Such communication will be made from the Commissioner within 30 days of the order approving this plan and, in addition, by DHS staff who become aware of any such proposed

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.......

commitment or transfer.

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85.2 The Jensen Implementation Team will document any proposed transition to or placement at Anoka Metro

Settlement Agreement Section X. E. Svstem

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Regional Treatment Center of any person committed solely as a person with a developmental disability, including but not limited to any diversion efforts prior to transfer or placement and any subsequent

Wid!: Iml2rQYml!i.li!~ - AnQka MgttQ B!i:giQnal I[gatment ~!i.lntgr

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placements.

86.

The term "mental retardation" has been replaced with "developmental disabilities" in any DHS policy,

Settlement Ag:reementSecliQn X.F. ~)/stem

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bulletin, website, brochure, or other publication. DHS will continue to communicate to local government

Wi2!: Imj2rQvgments - L!illg:yage

agencies, counties, tribes, courts and providers that they should adhere to this standard.

0
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86.1 All references to outdated terminology used to describe persons with Developmental Disabilities have been

~ttlement A&!£ementSection X.F. S;istem

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updated with clarification on the Departments use of people firs t language inserted in areas where historical

Wide Im12rovements - langyage

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documents are found. In addition to, or in lieu of, updating each webpage, DHS shall maintain the previously

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established "disclaimer" language to explain the presence in historical documents of outdated terminology.

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87.

DHS drafted and submitted a bill for the Minnesota Legislature that will require the replacement of terms such SetU1m1~nt Alml!.illJ!mt Se,tion X. F. Svstem

.......

as "insane," "mentally incompetent," "mental deficiency," and other similar inappropriate terms that appear in Wid~ Imj;!rovements - Lan~ac;e

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Minnesota statutes and rules.

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87.1 On the removal of inappropriate terms that appear in Minnesota statutes and Rules, see 2013 legislation at

Setllement Agreement Section X.F. S~stem

Chapter 62 and Chapter 59, Article 3, section 21 signed by the Governor on May 16, 2013. DHS will not seek to Wide Im12rovemen~ - L1!Dg111!g~

repeal or replace this legislation.

88.

MSH5-Cambridge will be dosed. There will be community treatment homes dispersed geographically. Any

Oo~urg of MSH~H:i!m!1lidgg ~ng

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need for additional community treatment homes beyond four will be determined based on a specific

Re~lacement with Communit:t Homes and

assessment of need based on client needs with regard to such criteria as those at risk for institutionalization or Services

re-institutionalization, behavioral or other challenges, multiple hospitalizations or other transfers within the

system. serious reported injuries, repeated failed placements, or other challenges identified in previous

monitoring or interventions.

Page 107 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

()

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Evaluation Criteria

Section Referenced

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89.

Staff hired for new positions as well as to fill vacancies, will only be staff who have experience in community Closure of MSHS-Cambx:i!:l~ 2!!!.1

0

based, crisis, behavioral and person-centered services and whose qualifications are consistent with the

Re~l3cCm!!lnt with Communi ~ Homes and

0

Settlement Agreement and currently accepted professional s tandards. Staff reassigned from MSHS-Cambridge 5.e..od.s:es.

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will receive additional orientation training and supervision to meet these qualifications within 6 months of

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reassiwunent.

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90.

Provide integrated vocational options including, for example, customized employment.

Closure of MSHS-Cambridge and

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Re~lacement with Communi~ Homes and

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91.

All requirements in this Comprehens ive Plan of Action are fully met for each individual served in the area of ~!2:1ur~ Qf MSHS-Cambridge and

Person-Centered Planning.

R~l2la£ement with Communit:l Homes and

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92.

All requirements in this Comprehensive Plan of Action are fully met for each individual served in the area of Closure of MSHS-Cambridg~ !Yl!.i

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Transition Planning.

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93.

DHS will provide augmentative service supports, consultation, mobile teams, and training to those supporting ~l2~1.m: Q{MSH~ki!mbridg!: am!

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the person. DHS will create stronger diversion supports through appropriate staffing and comprehensive data E!:Pli!~!i':!DWI with Communil!l Homes and

analysis.

Services

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94.

All sites, programs and services established or utilized under this Comprehensive Plan of Action shall be

licensed as required by state law.

95.

Residents currently at MSH5-Cambridge transition to permanent community homes.

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B!l~la~m~Dt ~ith Commynit~ Homes ang

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96.

Training plan for staff strongly emphasizes providing tools and support services in a person's home as quickly ~~Q~yre Qf MSHS-~ambridge and

as possible. Staff will also be trained in delivering community based programs and processes.

Reglacemen t with kCJmmunit ;:.: Home~ ans;!

Services

Page 108 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

()

EC #

Evaluation Criteria

98.

DHS will maintain therapeutic follow-up of Class Members, and clients discharged from METO/MSHS-

Section Referenced

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Thcragcutic Follow-Ug or Class Members

0

Cambridge since May 1, 2011, by professional staff to p rovide a safety network, as needed, to help prevent re- and Cli~n~ Qi~harg~:sl ([QW

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institutionalization and other transfers to more restrictive settings, and to maintain the most integrated setting Mt;TOIMSH~Cambridg!:

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for those individuals.

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98.1 Successful Life Project (SLP) staff will initiate a statewide review process on or about October 1, 2014 to

Thlm!J21::1Jti!: Eollu»:-!.!12 Qf CliiSS M~m!!eni

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perform an initial assessment on all persons included in the therapeutic follow-up group no later than

ii!Og Cli~nt§ Di:;charged from

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November 30, 2014. This review will be a brief face-to-face meeting with each individual to assess the general METO/MSHS-Cii!mbridge

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well-being of the person in his or her home and to determin e if there are any critical or immediate health or

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safety issues. 98.2 A tool to help reviewers screen individuals and document findings during the initial assessment was
developed from existing instruments.

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'111eral2~llli C Follow-!..!10! or Cla:;s Mcm!;zers and Client~ Qis~harg!ld frQm

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98.3

During the initial assessment, immediate follow-up will take place on any person for whom home health and

Th~>raJ!l!ptic FQIIQw-l..!R Qf Clasll Members

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safety concerns have been identified. Appropriate actions and referral w ill be made as appropriate.

and Clients Di~cl:!ar&!:Q from

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METO£MSH:2:CambriQ&e

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98.4 The results of this initial assessment process will assist the SLP in prioritizing needs of individuals for the n ext Thera12~!.!1:i!: FQIIQw-!.!12 Qf Clas~ Members

phase of the therapeutic follow-up, a m ore robust assessment using the Community Compliance Review Tool. iW9. Cli!:D~ I:1i~~bi!Ii:!:Q frQm

METQ£MSH:2:!:ii!m:t!cs:.lg!:

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98.5 Following the completion of the initial assessment and the prioritization of persons included in the therapeutic Thera12~:uti!; Follow-U12 of Class Members

follow-up group, MLB will begin the ongoing comprehensive compliance reviews using the Community

and Clientli Discharggd from

Compliance Review Tool.

METQ£MSHH:ilml2ris:.lg!:

98.6 A bulletin will be distributed widely to announce the Successful Life Project in the fall of 2014.

Therageuti!,; Follow-Ug of Class Members

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and Clients Dissbl!rg~:g frQm

METOlMSHS-~aml!tidg!:

98 .7

Behavior analysts or other s taff contact the guardian by telephone before the initial assessment (the first face-to- Th~ri!I!eutic Follo~-1!12 Qf Clasl! Members

face visit) to explain why they are coming and what to expect, and gets verbal consent to contact the person.

ang ~li~:ntli I:1i:;~:hi!rg!:!:l from

The manager may assist with some contacts if there are barriers or issues that may arise.

METQJM:m~Cl!ml2ridg~:

Page 109 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Upda te Report Reporting Period: May 1 to September 30, 2015

()

EC#

Evaluation Criteria

Section Referenced

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m

98.8 If the person I guardian refuses to give consent for an initial assessment or any subsequent compliance review, Ib~ra~~ti!: FQllQw-U~ 2f Cli!~ M!mlben!

0

individual letters will be sent to each person, guardian, provider, county case manager, family and other team and Clients Discharged from

0

members to explain the project and the process of following up with people, and information on how to contact METO/MSH5-~ambridge

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SLP for more information or to consent to the initial assessment or compliance review.

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.......

99.

The scope of the Rule 40 modernization shall include all individuals with developmental disabilities served in Modemiz.ation of Rule !10

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programs, settings and services licensed by the Department, regardless of the setting in which they live or the

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services which they receive. As stated in the Settlement Agreement, the modernization of Rule 40 which will be

0

adopted under this Comprehensive Plan of Action shall reflect current best practices, including, but not limited

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to the use of positive and social behavioral supports, and the development of placement plans consistent with the principle of the 'most integrated setting' and 'person centered planning, and development of an 'Olmstead

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Plan"' consistent with the U.S. Supreme Court's decision in Olmstead v. L.C., 527 U.S. 582 (1999).

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100. Within the scope set forth above, the rule-making process initiated by the Department of Human Services
pursuant to the Settlement Agreement, the Department shall by December 31, 2014 propose a new rule in accordance with this Comprehensive Plan of Action ("Proposed Rule"). This deadline may be extended for good cause shown upon application to the Court not later than 20 days prior to the deadline.

Modernization of Rule .W

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Should the Department of Human Services believe that it requires additional rule-making authority to satisfy

the requirements of this Plan, in order to apply the rule to all providers covered by Rule 40 and the scope of

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this Plan, the Department will seek an amendments to statutes in the 2014 Minnesota Legislative session to

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ensure that the scope of the Rule 40 modernization stated above is fulfilled and will apply to all of the facilities and services to persons with developmental disabilities governed by Rule 40. Any proposed amendment(s) are subject to the notice and comment process under EC _below.

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If legislative approval for the requested authority is not obtained in the 2014 Minnesota Legislative session, the

Court may use its authority to ensure that the Adopted Rule will apply consistent with the scope set forth in

EC99.

Page 110 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

()

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Evaluation Criteria

Section Referenced

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By August 31, 2015, the Department of Human Services shall adopt a new rule to modernize Rule 40 ('Adopted

0

Rule"). This deadline may be extended for good cause shown upon application to the Court not later than 60

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days prior to the deadline.

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101. The Proposed Rule shall address the temporary use and tapering of carefuUy monitored individual medical

MQs;!emil;~tioo of B.l!l!: 40

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restraints for self-injurious behavior while non-restraint positive behavior supports are implemented under

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professional supervision.

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In formulating the Proposed Rule, and any other methods or tools of implementation, the Department shall

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carefully consider the recommendations of Dr. Fredda Brown, whose consultation on the Rule 40 modernization the Department requested with regard to matters on which the Advisory Committee had not

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reached consensus. The Department shall document the results of this review.

102. The Proposed Rule shall be consistent with and incorporate, to the extent possible in rule, the Rule 40 Advisory Mad!!mizalicc of Rule~

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Committee's consensus recommendations stated in its Recommendations on Best Practices and Modernization

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of Rule 40 (Final Version- July 2013). During the rule-making process, the Department shall advocate that the

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final rule be fully consistent with the Rule 40 Advisory Committee's recommendations. The phrase "to the

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extent possible in rule" above is intended to recognize that some elements of the Committee's

recommendations are not susceptible to the format of rules and, therefore, will be implemented by the

Department through policies, buUetins, contract provisions, and by other means.

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Not later than (30) days prior to public notice of the content of the Proposed Rule, the Department shall provide a draft of the rule to Plaintiffs' Class Counsel, the Court Monitor, the Ombudsman for Mental Health and Developmental Disabilities, and the Executive Director of the Governor's Council on Developmental Disabilities for review and comment and, if requested by any of these entities, for discussion in a conference

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prior to public notice of the content of the Proposed Rule. The Department will share with these entities the

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intended final content not later than five (5) days prior to the public notice.

Page 111 of 112

Jensen Settlement Agreement Comprehensive Plan of Action Ninth Compliance Update Report Reporting Period: May 1 to September 30, 2015

()

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Evaluation Criteria

Section Referenced

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103. Within thirty (30) days of the promulgation of the Adopted Rule, Plaintiffs' Class Counsel, the Court Monitor, Mod~mi~tiQn Qf Ryl~ 40

0

the Ombudsman for Mental Health and Developmental Disabilities, or the Executive Director of the Governor's

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Council on Developmental Disabilities may suggest to the Department of Human Services and/or to the

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Olmstead Implementation Office that there are elements in the Rule 40 Advisory Conunittee Recommendations

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on Best Practices and Modernization of Rule 40 (Final Version -July 2013) which have not been addressed, or

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have not adequately or properly been addressed in the Adopted Rule. In that event, those elements shall be

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considered within the process for modifications of the Olmstead Plan. The State shall address these suggestions

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through Olmstead Plan sub-cabinet and the Olmstead Implementation Office. Unresolved issues may be

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presented to the Court for resolution by any of the above, and will be resolved by the Court.

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104. The Department of Human Services shall implement the Adopted Rule and take other steps to implement the M2demi~ti2n of Rul~ ~Q

recommendations of the Rule 40 Advisory Committee.

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Page 112 of 112

CASE 0:09-cv-01775-DWF-BRT Document 531-1 Filed 02/02/16 Page 1 of 1

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians and next friends of Bradley J. Jensen, et al.,
Plaintiffs, vs.
Minnesota Department of Human Services, an agency of the State of Minnesota, et al.,
Defendants.

File No. 09-CV-01775-DWF-BRT
PLACEHOLDER FOR JENSEN SETTLEMENT AGREEMENT COMPREHENSIVE PLAN OF ACTION (CPA) - NINTH COMPLIANCE UPDATE REPORT, REPORTING PERIOD: MAY 1 –
SEPTEMBER 30, 2015 (NON-REDACTED VERSION)

This document is a placeholder for the following item which is filed in conventional or physical form with the Clerk's Office:

Jensen Settlement Agreement Comprehensive Plan of Action (CPA) Ninth Compliance Update Report, Reporting Period: May 1 – September 30, 2015 (non-redacted version)

If you are a participant in this case, this filing will be served upon you in conventional format. This filing was not e-filed for the following reason:

Voluminous Document* (Document number of order granting leave to file conventionally: ___ )

Unable to Scan Documents (e.g., PDF file size of one page larger than 2MB, illegible when scanned)

Physical Object (description):

Non Graphical/Textual Computer File (audio, video, etc.) on CD or other media

Item Under Seal pursuant to court orders* (Pursuant to Protective Orders Doc. Nos. 57, 114, 190, 239)

Item Under Seal pursuant to the Fed. R. Civ. P. 52 and Fed. R. Crim. P. 49.1 (Document number of redacted version: ___ ) Other (description):
*Requires Judicial Approval

Jensen et al v. Minnesota Department of Human Services et al, Docket No. 0:09-cv-01775 (D. Minn. Jul 10, 2009), Court Docket
General Information

Court
Federal Nature of Suit Docket Number

United States District Court for the District of Minnesota; United States District Court for the District of Minnesota Civil Rights - Other[440] 0:09-cv-01775

© 2018 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 116

 
 CASE 0:09-cv-01775-DWF-BRT Document 544 Filed 02/22/16 Page 1 of 8

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians, and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians, and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian, and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
v.
Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and the State of Minnesota,
Defendants.

Civil No. 09-1775 (DWF/BRT)
ORDER FOR REPORTING ON OLMSTEAD PLAN

Shamus P. O’Meara, Esq., and Mark R. Azman, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

CASE 0:09-cv-01775-DWF-BRT Document 544 Filed 02/22/16 Page 2 of 8
Nathan A. Brennaman, Deputy Attorney General, Scott H. Ikeda, Aaron Winter, and Anthony R. Noss, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants. ________________________________________________________________________
On May 28, 2015, this matter came before the Court for a Status Conference. (Doc. No. 456.) Following this Status Conference, the parties participated in mediation meetings with Magistrate Judge Becky R. Thorson between June 2015 and October 2015. On June 18, 2015, the Court stayed the parties’ and the Court Monitor’s reporting obligations to the Court based on the status of the mediation proceedings. (Doc. No. 462 at 2.) On July 9, 2015, the Court extended the stay of the reporting requirements during the pendency of the mediation period to August 10, 2015. (Doc. No. 472 at 2.) The Court reserved the right to address the resumption of status reports or any modified reporting obligations by separate Order. (Id.)
On August 10, 2015, the Defendants submitted a revised Olmstead Plan for approval by the Court. (Doc. No. 486-1.) The Court approved this version of the Olmstead Plan on September 29, 2015.1 (Doc. No. 510.) In approving the Olmstead Plan, the Court emphasized the State’s commitment to relying on the Olmstead Implementation Office (“OIO”) to oversee the plan’s successful implementation. (Id. at 9.) The Court particularly highlighted the OIO’s role of “quality assurance and accountability, including compliance evaluation, verification and oversight.” (Id.) The
1 The Court does not express any opinion on the merits of the related case Guggenberger, et al. v. State of Minnesota, et al., 15-CV-3439 (D. Minn. Aug. 28, 2015) through this Order.
2

CASE 0:09-cv-01775-DWF-BRT Document 544 Filed 02/22/16 Page 3 of 8
Court also noted the State’s commitment to establishing an annual review and formal amendment process to ensure deliberate efforts to update and add goals to the Olmstead Plan over time. (Id.) While “applaud[ing] the parties for their collaboration in developing this landmark Olmstead Plan,” the Court also emphasized that it “fully expects the State to act on its promises to ensure that the Olmstead Plan will truly put the promise of Olmstead into practice across the state.” (Id. at 14.) The Court reserved ruling on the Olmstead Plan’s implementation plan, and reserved its right to exercise its continuing jurisdiction with respect to the revised Olmstead Plan. (Id. at 14-15.) Specifically, the Court noted that it “will continue to carry out its oversight responsibility to oversee the State’s efforts in following through on the significant commitments it has made.” (Id. at 15.)
On October 9, 2015, the Defendants submitted the Olmstead Plan Workplans for Court approval. (Doc. No. 515.) The Defendants explained that these workplans “form the blueprint for implementing the Olmstead Plan.” (Id. at 1.) On November 6, 2015, the Court approved the Olmstead Plan Workplans. (Doc. No. 521.) The Court again reserved its right to exercise continuing jurisdiction to ensure that compliance with the Settlement Agreement is verified in the future. (Id. at 2-3.) The Court noted that it would identify a reporting schedule for the State to submit periodic reports on the Olmstead Plan’s implementation in a subsequent Order. (Id. at 3.) On January 5, 2016, the Defendants submitted the Minnesota Olmstead Subcabinet Report to the Court: Status Update, March 1, 2015 - September 30, 2015, Gap Report. (Doc. No. 529.)
3

CASE 0:09-cv-01775-DWF-BRT Document 544 Filed 02/22/16 Page 4 of 8
Currently before the Court is the Plaintiffs’ Proposal for Reporting on Olmstead Plan, received by the Court on February 10, 2016 (Doc. No. 538), and the Defendants’ Proposal for Olmstead Plan Compliance Reporting, received by the Court on February 12, 2016 (Doc. Nos. 540-1 & 540-2).2 Both parties seek an Order from the Court establishing a schedule and format for Olmstead Plan compliance reporting.
ORDER Based upon the submissions of the parties, the entire record before the Court, the Court’s determination that there is a need for an Order establishing a schedule and format for Olmstead Plan compliance reporting, and the Court being otherwise duly advised in the premises, IT IS HEREBY ORDERED that: 1. The Minnesota Department of Human Services (“DHS”) shall submit to the Court, Plaintiffs’ Class Counsel, the Ombudsman for Mental Health and Developmental Disabilities, and the Executive Director of the Minnesota Governor’s Council on Developmental Disabilities (“Consultants”) quarterly and annual status reports regarding Olmstead Plan implementation based on the schedule listed in the attached Exhibit A entitled “Quarterly Reporting Schedule for Olmstead Plan Measurable Goals.” (See attached Exhibit A.)
2 On February 12, 2016, the Court also received a letter and accompanying attachments from Olmstead Subcabinet Chair Mary Tingerthal regarding proposed compliance evaluation, verification, and oversight of the Olmstead Plan. (Doc. No. 540.) And on February 18, 2016, the Court received a letter from the Defendants making a correction to their proposal and accompanying proposed order. (Doc. No. 543.)
4

CASE 0:09-cv-01775-DWF-BRT Document 544 Filed 02/22/16 Page 5 of 8
2. The initial quarterly status report shall include data acquired by the Olmstead Implementation Office through the last day of January 2016, and shall be due on February 29, 2016.
3. After the initial quarterly status report, quarterly reporting shall occur according to the following schedule:
a. First Quarter (data acquired by the Olmstead Implementation Office through the last day of April) quarterly status report due date May 31.
b. Second Quarter (data acquired by the Olmstead Implementation Office through the last day of July) quarterly status report due date August 31.
c. Third Quarter (data acquired by the Olmstead Implementation Office through the last day of October) quarterly status report due date November 30.
d. Fourth Quarter (data acquired by the Olmstead Implementation Office through the last day of January) quarterly status report due date February 28, or, in the case of a leap year, February 29. 4. The attached Exhibit A entitled “Quarterly Reporting Schedule for Olmstead Plan Measurable Goals” lists measurable goals for each topic area and corresponding reporting deadlines for each goal. In addition to reporting on the long-term measurable goals identified in Exhibit A, DHS shall also include in its quarterly reports the status of each Annual Goal included in the approved Olmstead Plan
5

CASE 0:09-cv-01775-DWF-BRT Document 544 Filed 02/22/16 Page 6 of 8
(Doc. No. 486-1). This information shall be reported in the next quarterly report following the Annual Goal deadline identified in the Olmstead Plan.3
5. Annual reports shall cover data acquired by the Olmstead Implementation Office during the period of October 1 through September 30 and shall be due on or before the following December 31.
6. DHS shall report to the Court on the implementation of the annual Olmstead Plan amendment process. Potential Plan amendments shall be identified and included in each annual report due on or before December 31. Plan amendments adopted by the Subcabinet shall be reported to the Court on or before February 28, or, in the case of a leap year, February 29.
7. When the reporting date is a Saturday, Sunday, or a legal holiday, the reporting shall be effected on the next day that is not a Saturday, Sunday, or legal holiday, as provided in Federal Rule of Civil Procedure 6(a)(1)(C).
8. All data included in reports to the Court must be confirmed as reliable and valid. All statements made in the reports must be accurate, complete, timely, and verified.
9. DHS shall submit all reports to the Court according to formal court filing procedures.
3 For example, the Olmstead Plan’s Person Centered Planning Goal One includes the following Annual Goal: “By June 30, 2016, the percent of plans that meet the required protocols will increase to 30%.” (Doc. No. 486-1 at 35.) Information regarding whether this goal has been met shall be reported to the Court in the August 2016 quarterly report.
6

CASE 0:09-cv-01775-DWF-BRT Document 544 Filed 02/22/16 Page 7 of 8
10. Upon receipt of each quarterly and annual report, the Court will notify DHS if further information is needed or if the report fails to meet the Court’s expectations. The Court presently approves the templates submitted as Attachments C and D to Olmstead Subcabinet Chair Mary Tingerthal’s February 12, 2016 letter to the Court. (See Doc. No. 540.) The Court reserves the right to request further or other detail, or to request a different format in subsequent reports.
11. Plaintiffs’ Class Counsel and the Consultants are permitted, but not required, to submit written comments to the Court following DHS’s submission of a quarterly or annual report. Such comments must be submitted to the Court no later than ten (10) days following the report’s submission.
12. The Court will convene bi-annual status conferences with Defendants’ Counsel, Plaintiffs’ Class Counsel, and the Consultants to facilitate the Court’s continued oversight of the Olmstead Plan’s implementation. Status conferences will be convened by the Court each June and December, beginning in June 2016. Prior to each status conference, the Court will issue an Order clarifying the timing and location of each status conference as well as a planned agenda explaining topics to be discussed.
13. DHS shall consult with Plaintiffs’ Class Counsel and the Consultants if DHS contemplates proposing to modify the reporting schedule or format, and any such proposals must be submitted to the Court for approval. If the Court requires modifications to the reporting schedule or format, it will notify DHS.
14. Prior orders of the Court (Doc. Nos. 136, 211, 212, 223, 224, 265, 340, 344, 457, 462, and 472) as they relate to the schedule for and submission of compliance
7

CASE 0:09-cv-01775-DWF-BRT Document 544 Filed 02/22/16 Page 8 of 8

reporting, are superseded by this Order to the extent they are inconsistent with this Order only as to reporting requirements.
15. At this time the Court places all Court Monitoring duties with respect to Olmstead Plan oversight on hold. The Court, however, reserves the right to facilitate additional Court oversight in the future through Court Monitoring.
16. Based on all of the above and the current status of this matter, and pursuant to the Settlement Agreement § XVIII.B and the Court’s September 3, 2014 Order (Doc. No. 340), the Court’s jurisdiction is extended to December 4, 2019. The Court expressly reserves the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of Defendants’ compliance and absent stipulation of the parties.

Dated: February 22, 2016

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

8

 
 CASE 0:09-cv-01775-DWF-BRT Document 545 Filed 02/22/16 Page 1 of 6

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians, and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians, and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian, and next friend of Jason R. Jacobs; and others similarly situated,

Civil No. 09-1775 (DWF/BRT)

Plaintiffs,

v.

ORDER FOR REPORTING

ON SETTLEMENT AGREEMENT

Minnesota Department of Human Services,

an agency of the State of Minnesota; Director,

Minnesota Extended Treatment Options, a

program of the Minnesota Department of

Human Services, an agency of the State of

Minnesota; Clinical Director, the Minnesota

Extended Treatment Options, a program of

the Minnesota Department of Human Services,

an agency of the State of Minnesota; Douglas

Bratvold, individually and as Director of the

Minnesota Extended Treatment Options, a

program of the Minnesota Department of Human

Services, an agency of the State of Minnesota;

Scott TenNapel, individually and as Clinical

Director of the Minnesota Extended Treatment

Options, a program of the Minnesota Department

of Human Services, an agency of the State of

Minnesota; and the State of Minnesota,

Defendants.

Shamus P. O’Meara, Esq., and Mark R. Azman, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

CASE 0:09-cv-01775-DWF-BRT Document 545 Filed 02/22/16 Page 2 of 6
Nathan A. Brennaman, Deputy Attorney General, Scott H. Ikeda, Aaron Winter, and Anthony R. Noss, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants. ________________________________________________________________________
On May 28, 2015, this matter came before the Court for a Status Conference. (Doc. No. 456.) Following this Status Conference, the parties participated in mediation meetings with Magistrate Judge Becky R. Thorson between June 2015 and October 2015. On June 18, 2015, the Court stayed the parties’ and the Court Monitor’s reporting obligations to the Court based on the status of the mediation proceedings. (Doc. No. 462 at 2.) On July 9, 2015, the Court extended the stay of the reporting requirements during the pendency of the mediation period to August 10, 2015. (Doc. No. 472 at 2.) The Court reserved the right to address the resumption of status reports or any modified reporting obligations by separate Order. (Id.) On February 2, 2016, the Defendants submitted the Jensen Settlement Agreement Comprehensive Plan of Action (CPA) – Ninth Compliance Update Report, Reporting Period: May 1 – September 30, 2015 (“Gap Report”).1 (Doc. No. 531.)
Currently before the Court is the Plaintiffs’ Proposal for Reporting on Jensen Agreement, received by the Court on February 10, 2016 (Doc. No. 537), and the Defendants’ Proposal on Compliance Reporting, received by the Court on February 12, 2016 (Doc. No. 539). Both parties seek an Order from the Court establishing a schedule for compliance reporting with respect to the Stipulated Class Action Settlement 1 The Court is currently reviewing Defendants’ Gap Report and will address this report in a forthcoming order. In particular, the Court may provide directives as to the adequacy and format of the Gap Report in this subsequent order.
2

CASE 0:09-cv-01775-DWF-BRT Document 545 Filed 02/22/16 Page 3 of 6
Agreement (“Settlement Agreement”) (Doc. No. 136-1) and the Comprehensive Plan of Action (“CPA”) (Doc. No. 283).
ORDER Based upon the submissions of the parties, the entire record before the Court, the Court’s determination that there is a need for an Order establishing a schedule for compliance reporting, and the Court being otherwise duly advised in the premises, IT IS HEREBY ORDERED that: 1. The Minnesota Department of Human Services (“DHS”) shall submit to the Court, Plaintiffs’ Class Counsel, the Ombudsman for Mental Health and Developmental Disabilities, and the Executive Director of the Minnesota Governor’s Council on Developmental Disabilities (“Consultants”) exception, semi-annual, and annual Comprehensive Plan of Action (“CPA”) reports based on the schedule listed in the attached Exhibit A entitled “Jensen Settlement Agreement Comprehensive Plan of Action Reporting Schedule. Appendix A.” (See attached Exhibit A.) 2. Semi-annual reporting shall occur according to the following schedule:
a. First semi-annual (January, February, March, April, May, June) CPA report due date August 31.2
b. Second semi-annual (July, August, September, October, November, December) CPA report due date February 28, or, in the case of a leap year, February 29.
2 The first semi-annual report due August 31, 2016 shall also include reporting for October, November, and December 2015.
3

CASE 0:09-cv-01775-DWF-BRT Document 545 Filed 02/22/16 Page 4 of 6
3. Annual Reports shall cover the period of January 1 to December 31 and shall be due on or before March 31.
4. Exception reporting is to be in accordance with the time frame and for the reasons listed in Exhibit A, with the exclusion of reports for Emergency Use of Manual Restraint (“EUMR”) which are governed by the terms of the Stipulated Class Action Settlement Agreement (Doc. No. 136-1).
5. When the reporting date is a Saturday, Sunday, or a legal holiday, the reporting shall be effected on the next day that is not a Saturday, Sunday, or legal holiday, as provided in Federal Rule of Civil Procedure 6(a)(1)(C).
6. All data included in reports to the Court must be confirmed as reliable and valid. All statements made in the reports must be accurate, complete, timely, and verified.
7. DHS shall provide a draft of the semi-annual and annual reports for comment to the Consultants no fewer than fifteen (15) business days prior to the due date of each report.
8. The Consultants may provide comment or feedback to DHS no later than close of business seven (7) business days before the due date of each report.
9. DHS shall submit all reports to the Court according to formal court filing procedures.
10. The Court understands that DHS has hired Dr. Daniel Baker as the new Jensen Internal Reviewer, replacing Dr. Richard Amado. (See Doc. No. 531, Gap Report at 28-29.) The Court approves of this replacement. DHS shall advise the Court, after
4

CASE 0:09-cv-01775-DWF-BRT Document 545 Filed 02/22/16 Page 5 of 6
consultation with the Consultants regarding replacement of the Internal Reviewer (CPA Evaluation Criteria (“EC”) 39), when the person responsible as the Internal Reviewer changes. Such change shall be reflected in the first semi-annual or annual CPA report following the change.
11. DHS shall reflect changes to a designated “Person responsible” in the first semi-annual or annual CPA report following the change.
12. Plaintiffs’ Class Counsel and the Consultants are permitted, but not required, to submit written comments to the Court following DHS’s submission of an exception, semi-annual, or annual report. Such comments must be submitted to the Court no later than ten (10) days following the report’s submission.
13. The Court will convene bi-annual status conferences with Defendants’ Counsel, Plaintiffs’ Class Counsel, and the Consultants to facilitate the Court’s continued oversight of the Defendants’ compliance with the CPA and the Jensen Settlement Agreement. Status conferences will be convened by the Court each June and December, beginning in June 2016. Prior to each status conference, the Court will issue an Order clarifying the timing and location of each status conference as well as a planned agenda explaining topics to be discussed.
14. DHS shall consult with Plaintiffs’ Class Counsel and the Consultants if DHS contemplates proposing to modify the reporting schedule or format, and any such proposals must be submitted to the Court for approval. If the Court requires modifications to the reporting schedule or format, it will notify DHS.
5

CASE 0:09-cv-01775-DWF-BRT Document 545 Filed 02/22/16 Page 6 of 6

15. Prior orders of the Court (Doc. Nos. 136, 136-1, 159, 211, 212, 223, 224, 266, 284, 323, 340, 457, 462, & 472) and the CPA (Doc. No. 283), as they relate to the schedule for and submission of compliance reporting, are superseded by this Order to the extent they are inconsistent with this Order only as to reporting requirements.
16. The Court understands that DHS is developing a “pool” of independent subject matter experts. (See Doc. No. 531, Gap Report at 6.) The Court will consider proposals by both parties regarding how the independent subject matter experts may be utilized for external reporting. Such proposals must be submitted to the Court within seven (7) days of this Order.
17. The Court will issue separate Orders regarding the role and reporting requirements of the Court Monitor, the external reviewer, and the independent subject matter experts.
18. Based on all of the above and the current status of this matter, and pursuant to the Settlement Agreement § XVIII.B and the Court’s September 3, 2014 Order (Doc. No. 340), the Court’s jurisdiction is extended to December 4, 2019. The Court expressly reserves the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of Defendants’ compliance and absent stipulation of the parties.

Dated: February 22, 2016

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

6

EC Reporting Color Key # Green: Semi-Annual
Pink: Annual Purple: Exception
1 Annual

Exhibit A CASE 0:09-cv-01775-DWF-BRT Document 545-1 Filed 02/22/16 Page 1 of 12
Minnesota Department of Human Services.
Jensen Settlement Agreement Comprehensive Plan of Action Reporting Schedule. Appendix A.

Comprehensive Plan of Action Evaluation Criteria

Exception Reporting: Exception Reporting has the meaning that the reporting will occur more frequently than semi-annually, if concerns are noted.

1. The Facilities will comply with Olmstead v. L.C. The Facilities are and will remain licensed to serve people with developmental disabilities. The Facility will eliminate unnecessary segregation of individuals with developmental disabilities. People will be served in the most integrated setting to which they do not object. Each individual's program will include multiple opportunities on an ongoing basis to engage with: (1) citizens in the community, (2) regular community settings, (3) participating in valued activities (4) as members of the community. These community activities will be highly individualized, drawn from the personcentered planning processes, and developed alongside the individual. C1+C1

1.1 Each individual's planning processes will specifically address integration within the following life areas: (1) home; (2) work; (3) transportation; (4) lifelong learning and education; (5) healthcare and healthy living; and (6) community and civic engagement.

1.2 Cambridge and successor facilities apply strong efforts to individualize and personalize the interior setting of the home. This includes exerting maximal feasible efforts to assist individuals to personalize and individualize their bedrooms and common areas, to make each common area aesthetically pleasing, and to actively support individuals to bring, care for, acquire, and display personal possessions, photographs and important personal items. Consistent with personcentered plans, this may include the program purchasing such items which will build towards transition to a new place to live.

2 Semi-Annual

2. Facilities utilize person-centered planning principles and positive behavioral supports consistent with applicable best practices including, but not limited to the Association of Positive Behavior Supports, Standards of Practice for Positive Behavior Supports .
Page 1 of 12

EC Reporting Color Key # Green: Semi-Annual
Pink: Annual Purple: Exception 3 Semi-Annual 4 Annual
5 Exception 6 Exception
7 Exception
8 Exception
9 Exception
10 Exception
11 Exception
12 Exception

CASE 0:09-cv-01775-DWF-BRT Document 545-1 Filed 02/22/16 Page 2 of 12 Minnesota Department of Human Services.
Jensen Settlement Agreement Comprehensive Plan of Action Reporting Schedule. Appendix A.

Comprehensive Plan of Action Evaluation Criteria

Exception Reporting: Exception Reporting has the meaning that the reporting will occur more frequently than semi-annually, if concerns are noted.

3. Facilities serve only "Minnesotans who have developmental disabilities and

exhibit severe behaviors which present a risk to public safety.”

4. Facilities notify legal representatives of residents and/or family to the extent

permitted by law, at least annually, of their opportunity to comment in writing, by e-

mail, and in person, on the operation of the Facility.

5. The State/DHS immediately and permanently discontinues all the prohibited Reporting will occur more frequently than

restraints and techniques.

semi-annually if concerns are noted.

6. The State/DHS has not used any of the prohibited restraints and techniques.

Reporting will occur more frequently than

semi-annually or annually if concerns are

noted.

7. Medical restraint, and psychotropic/ neuroleptic medication have not been

Reporting will occur more frequently than

administered to residents for punishment, in lieu of habilitation, training, behavior semi-annually or annually if concerns are

support plans, for staff convenience or as behavior modification.

noted.

8. Restraints are used only in an emergency.

Reporting will occur more frequently than

semi-annually or annually if concerns are

noted.

9. The Policy (Settlement Agreement Att. A, as it may be revised after court

Reporting will occur more frequently than

approval, dissemination and staff training) was followed in each instance of manual semi-annually or annually if concerns are

restraint

noted.

10. There were no instances of prone restraint, chemical restraint, seclusion or time Reporting will occur more frequently than

out. [Seclusion: evaluated under Sec. V.C. Chemical restraint: evaluated under Sec. semi-annually or annually if concerns are

V.D.]

noted.

11. There were zero instances of the use of Seclusion. Facility policy shall specify Reporting will occur more frequently than

that the use of seclusion is prohibited.

semi-annually or annually if concerns are

noted.

12. There were zero instances of the use of Room Time Out from Positive

Reporting will occur more frequently than

Reinforcement. Facility policy shall specify that the use of time out from positive semi-annually or annually if concerns are

reinforcement is prohibited.

noted.

Page 2 of 12

EC Reporting Color Key # Green: Semi-Annual
Pink: Annual Purple: Exception 13 Exception
14 Exception
22 Exception 23 Exception 24 Exception 25 Exception
28 Exception

CASE 0:09-cv-01775-DWF-BRT Document 545-1 Filed 02/22/16 Page 3 of 12 Minnesota Department of Human Services.
Jensen Settlement Agreement Comprehensive Plan of Action Reporting Schedule. Appendix A.

Comprehensive Plan of Action Evaluation Criteria

Exception Reporting: Exception Reporting has the meaning that the reporting will occur more frequently than semi-annually, if concerns are noted.

13. There were zero instances of drug / medication use to manage resident behavior Reporting will occur more frequently than

OR to restrain freedom of movement. Facility policy specifies the Facility shall not semi-annually or annually if concerns are

use chemical restraint. A chemical restraint is the administration of a drug or

noted.

medication when it is used as a restriction to manage the resident's behavior or

restrict the resident's freedom of movement and is not a standard treatment or

dosage for the resident's condition.

14. There were zero instances of PRN orders (standing orders) of drug/ medication Reporting will occur more frequently than used to manage behavior or restrict freedom of movement. Facility policy specifies semi-annually or annually if concerns are that PRN/ standing order medications are prohibited from being used to manage noted. resident behavior or restrict one's freedom of movement.

22. The responsible Facility supervisor contacted the DHS medical officer on call Reporting will occur more frequently than

not later than 30 minutes after the emergency restraint use began.

semi-annually or annually if concerns are

noted.

23. The medical officer assessed the situation, suggested strategies for de-escalating Reporting will occur more frequently than

the situation, and approved of, or discontinued the use of restraint.

semi-annually or annually if concerns are

noted.

24. The consultation with the medical officer was documented in the resident's Reporting will occur more frequently than

medical record.

semi-annually or annually if concerns are

noted.

25. All allegations were fully investigated and conclusions were reached.

Reporting will occur more frequently than

Individuals conducting investigations will not have a direct or indirect line of

semi-annually or annually if concerns are

supervision over the alleged perpetrators; the DHS Office of the Inspector General noted.

satisfies this requirement. Individuals conducting investigations, interviews and/or

writing investigative reports will receive competency-based training in best

practices for conducting abuse / neglect investigations involving individuals with

cognitive and/or mental health disabilities and interviewing.

28. Form 31032 (or its successor) was fully completed whenever use was made of Reporting will occur more frequently than

manual restraint.

semi-annually or annually if concerns are

noted.

Page 3 of 12

EC Reporting Color Key # Green: Semi-Annual
Pink: Annual Purple: Exception 29 Exception
30 Exception
32 Exception
33 Exception
35 Exception
36 Exception
38 Annual 39 Semi-Annual
40 Exception

CASE 0:09-cv-01775-DWF-BRT Document 545-1 Filed 02/22/16 Page 4 of 12 Minnesota Department of Human Services.
Jensen Settlement Agreement Comprehensive Plan of Action Reporting Schedule. Appendix A.

Comprehensive Plan of Action Evaluation Criteria

Exception Reporting: Exception Reporting has the meaning that the reporting will occur more frequently than semi-annually, if concerns are noted.

29. For each use, Form 31032 (or its successor) was timely completed by the end of the shift.
30. Each Form 31032 (or its successor) indicates that no prohibited restraint was used.
32. Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the Ombudsman for MH & DD
33. Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the DHS Licensing
35. Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the legal representative and/or family to the extent permitted by law. 36. Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the Case manager.
38. Other reports, investigations, analyses and follow up were made on incidents and restraint use. 39. In consultation with the Court Monitor during the duration of the Court's jurisdiction, DHS designates one employee as Internal Reviewer whose duties include a focus on monitoring the use of, and on elimination of restraints.

Reporting will occur more frequently than semi-annually or annually if concerns are noted.
Reporting will occur more frequently than semi-annually or annually if concerns are noted.
Reporting will occur more frequently than semi-annually or annually if concerns are noted.
Reporting will occur more frequently than semi-annually or annually if concerns are noted.
Reporting will occur more frequently than semi-annually or annually if concerns are noted.
Reporting will occur more frequently than semi-annually or annually if concerns are noted.

40. The Facility provided Form 31032 (or its successor) to the Internal Reviewer Reporting will occur more frequently than within 24 hours of the use of manual restraint, and no later than one business day. semi-annually or annually if concerns are
noted.

Page 4 of 12

EC Reporting Color Key # Green: Semi-Annual
Pink: Annual Purple: Exception 41 Semi-Annual
45 Annual 46 Annual 47 Semi-Annual
48 Semi-Annual
49 Semi-Annual

CASE 0:09-cv-01775-DWF-BRT Document 545-1 Filed 02/22/16 Page 5 of 12 Minnesota Department of Human Services.
Jensen Settlement Agreement Comprehensive Plan of Action Reporting Schedule. Appendix A.

Comprehensive Plan of Action Evaluation Criteria

Exception Reporting: Exception Reporting has the meaning that the reporting will occur more frequently than semi-annually, if concerns are noted.

41. The Internal Reviewer will consult with staff present and directly involved with each restraint to address: 1) Why/how de-escalation strategies and less restrictive interventions failed to abate the threat of harm; 2) What additional behavioral support strategies may assist the individual; 3) Systemic and individual issues raised by the use of restraint; and 4) the Internal Reviewer will also review Olmstead or other issues arising from or related to, admissions, discharges and other separations from the facility.

45. The following have access to the Facility and its records: The Office of Ombudsman for Mental Health and Developmental Disabilities, The Disability Law Center, and Plaintiffs' Class Counsel.
46. The following exercised their access authority: The Office of Ombudsman for Mental Health and Developmental Disabilities, The Disability Law Center, and Plaintiffs' Counsel.
47. The State undertakes best efforts to ensure that each resident is served in the most integrated setting appropriate to meet such person's individualized needs, including home or community settings. Each individual currently living at the Facility, and all individuals admitted, will be assisted to move towards more integrated community settings. These settings are highly individualized and maximize the opportunity for social and physical integration, given each person's legal standing. In every situation, opportunities to move to a living situation with more freedom, and which is more typical, will be pursued.

48. The State actively pursues the appropriate discharge of residents and provided them with adequate and appropriate transition plans, protections, supports, and services consistent with such person's individualized needs, in the most integrated setting and to which the individual does not object.
49. Each resident, the resident's legal representative and/or family to the extent permitted by law, has been permitted to be involved in the team evaluation, decision making, and planning process to the greatest extent practicable, using whatever communication method he or she (or they) prefer.

Page 5 of 12

EC Reporting Color Key # Green: Semi-Annual
Pink: Annual Purple: Exception 50 Semi-Annual
51 Semi-Annual 52 Semi-Annual
53 Semi-Annual 54 Annual 55 Annual
56 Annual 57 Annual

CASE 0:09-cv-01775-DWF-BRT Document 545-1 Filed 02/22/16 Page 6 of 12 Minnesota Department of Human Services.
Jensen Settlement Agreement Comprehensive Plan of Action Reporting Schedule. Appendix A.

Comprehensive Plan of Action Evaluation Criteria

Exception Reporting: Exception Reporting has the meaning that the reporting will occur more frequently than semi-annually, if concerns are noted.

50. To foster each resident's self-determination and independence, the State uses person-centered planning principles at each stage of the process to facilitate the identification of the resident's specific interests, goals, likes and dislikes, abilities and strengths, as well as support needs.
51. Each resident has been given the opportunity to express a choice regarding preferred activities that contribute to a quality life. 52. It is the State's goal that all residents be served in integrated community settings and services with adequate protections, supports and other necessary resources which are identified as available by service coordination. If an existing setting or service is not identified or available, best efforts will be utilized to create the appropriate setting or service using an individualized service design process.

53. The provisions under this Transition Planning Section have been implemented in accord with the Olmstead decision. 54. Facility treatment staff received training in positive behavioral supports, personcentered approaches, therapeutic interventions, personal safety techniques, crisis intervention and post crisis evaluation.
55. Facility staff training is consistent with applicable best practices, including but not limited to the Association of Positive Behavior Supports, Standards of Practice for Positive Behavior Supports (http://apbs.org). Staff training programs will be competency-based with staff demonstrating current competency in both knowledge and skills.
56. Facility staff receive the specified number of hours of training: Therapeutic interventions (8 hours); Personal safety techniques (8 hours); Medically monitoring restraint (1 hour).
57. For each instance of restraint, all Facility staff involved in imposing restraint received all the training in Therapeutic Interventions, Personal Safety Techniques, Medically Monitoring Restraint.

Page 6 of 12

EC Reporting Color Key # Green: Semi-Annual
Pink: Annual Purple: Exception 58 Annual
59 Annual
60 Annual
61 Annual
62 Annual 64 Semi-Annual 65 Annual
66 Annual 67 Semi-Annual

CASE 0:09-cv-01775-DWF-BRT Document 545-1 Filed 02/22/16 Page 7 of 12 Minnesota Department of Human Services.
Jensen Settlement Agreement Comprehensive Plan of Action Reporting Schedule. Appendix A.

Comprehensive Plan of Action Evaluation Criteria

Exception Reporting: Exception Reporting has the meaning that the reporting will occur more frequently than semi-annually, if concerns are noted.

58. Facility staff receive the specified number of hours of training: Person-centered planning and positive behavior supports (with at least sixteen (16) hours on personcentered thinking / planning): a total 40 hours; Post Crisis Evaluation and Assessment (4 hours).
59. Residents are permitted unscheduled and scheduled visits with immediate family and/or guardians, at reasonable hours, unless the Interdisciplinary Team (IDT) reasonably determines the visit is contraindicated.

60. Visitors are allowed full and unrestricted access to the resident's living areas, including kitchen, living room, social and common areas, bedroom and bathrooms, consistent with all residents' rights to privacy.
61. Residents are allowed to visit with immediate family members and/or guardians in private without staff supervision, unless the IDT reasonably determines this is contraindicated.
62. There is no marketing, recruitment of clients, or publicity targeted to prospective residents at the Facility. 64. The Facility has a mission consistent with the Settlement Agreement and this Comprehensive Plan of Action. 65. The Facility posts a Patient / Resident Rights or Bill of Rights, or equivalent, applicable to the person and the placement or service, the name and phone number of the person within the Facility to whom inquiries about care and treatment may be directed, and a brief statement describing how to file a complaint with the appropriate licensing authority.

66. The Patient / Resident Bill of Rights posting is in a form and with content which is understandable by residents and family / guardians. 67. The expansion of community services under this provision allows for the provision of assessment, triage, and care coordination to assure persons with developmental disabilities receive the appropriate level of care at the right time, in the right place, and in the most integrated setting in accordance with the U.S. Supreme Court decision in Olmstead v. L.C. , 527 U.S. 582 (1999).

Page 7 of 12

EC Reporting Color Key # Green: Semi-Annual
Pink: Annual Purple: Exception 68 Semi-Annual
69 Semi-Annual 70 Semi-Annual 71 Semi-Annual 72 Semi-Annual 73 Semi-Annual 74 Semi-Annual
75 Semi-Annual 76 Semi-Annual
77 Semi-Annual

CASE 0:09-cv-01775-DWF-BRT Document 545-1 Filed 02/22/16 Page 8 of 12 Minnesota Department of Human Services.
Jensen Settlement Agreement Comprehensive Plan of Action Reporting Schedule. Appendix A.

Comprehensive Plan of Action Evaluation Criteria

Exception Reporting: Exception Reporting has the meaning that the reporting will occur more frequently than semi-annually, if concerns are noted.

68. The Department identifies, and provides long term monitoring of, individuals with clinical and situational complexities in order to help avert crisis reactions, provide strategies for service entry changing needs, and to prevent multiple transfers within the system.
69. Approximately seventy five (75) individuals are targeted for long term monitoring. 70. CSS mobile wrap-around response teams are located across the state for proactive response to maintain living arrangements. 71. CSS arranges a crisis intervention within three (3) hours from the time the parent or legal guardian authorizes CSS' involvement. 72. CSS partners with Community Crisis Intervention Services to maximize support, complement strengths, and avoid duplication. 73. CSS provides augmentative training, mentoring and coaching. 74. CSS provides staff at community based facilities and homes with state of the art training encompassing person-centered thinking, multi- modal assessment, positive behavior supports, consultation and facilitator skills, and creative thinking.

75. CSS’ mentoring and coaching as methodologies are targeted to prepare for increased community capacity to support individuals in their community. 76. An additional fourteen (14) full time equivalent positions were added between February 2011 and June 30, 2011, configured as follows: Two (2) Behavior Analyst 3 positions; One (1) Community Senior Specialist 3; (2) Behavior Analyst 1; Five (5) Social Worker Specialist positions; and Five (5) Behavior Management Assistants.
77. None of the identified positions are vacant.

Page 8 of 12

EC Reporting Color Key # Green: Semi-Annual
Pink: Annual Purple: Exception 78 Semi-Annual
79 According to the Olmstead Plan reporting process

CASE 0:09-cv-01775-DWF-BRT Document 545-1 Filed 02/22/16 Page 9 of 12 Minnesota Department of Human Services.
Jensen Settlement Agreement Comprehensive Plan of Action Reporting Schedule. Appendix A.

Comprehensive Plan of Action Evaluation Criteria

Exception Reporting: Exception Reporting has the meaning that the reporting will occur more frequently than semi-annually, if concerns are noted.

78. Staff conducting the Functional Behavioral Assessment or writing or reviewing Behavior Plans shall do so under the supervision of a Behavior Analyst who has the requisite educational background, experience, and credentials recognized by national associations such as the Association of Professional Behavior Analysts. Any supervisor will co-sign the plan and will be responsible for the plan and its implementation.

79. The State and the Department developed a proposed Olmstead Plan, and will implement the Plan in accordance with the Court's orders. The Plan will be comprehensive and will use measurable goals to increase the number of people with disabilities receiving services that best meet their individual needs and in the "Most Integrated Setting," and which is consistent and in accord with the U.S. Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999). The Olmstead Plan is addressed in Part 3 of this Comprehensive Plan of Action.

80 Annual 81 Annual 82 Exception 83 Annual

80. Rule 40 modernization is addressed in Part 2 of this Comprehensive Plan of Action. DHS will not seek a waiver of Rule 40 (or its successor) for a Facility.

81. The State takes best efforts to ensure that there are no transfers to or

placements at the Minnesota Security Hospital of persons committed solely as a person with a developmental disability.

82. There are no transfers or placements of persons committed solely as a person Reporting will occur more frequently than

with a developmental disability to the Minnesota Security Hospital (subject to the semi-annually or annually if concerns are

exceptions in the provision).

noted.

83. There has been no change in commitment status of any person originally

committed solely as a person with a developmental disability without proper notice

to that person's parent and/or guardian and a full hearing before the appropriate adjudicative body.

Page 9 of 12

EC Reporting Color Key # Green: Semi-Annual
Pink: Annual Purple: Exception 84 Annual
85 Exception
89 Annual
90 Annual 91 Annual 92 Annual 93 Semi-Annual
94 Annual 96 Annual

CASE 0:09-cv-01775-DWF-BRT Document 545-1 Filed 02/22/16 Page 10 of 12 Minnesota Department of Human Services.
Jensen Settlement Agreement Comprehensive Plan of Action Reporting Schedule. Appendix A.

Comprehensive Plan of Action Evaluation Criteria

Exception Reporting: Exception Reporting has the meaning that the reporting will occur more frequently than semi-annually, if concerns are noted.

84. All persons presently confined at Minnesota Security Hospital who were committed solely as a person with a developmental disability and who were not admitted with other forms of commitment or predatory offender status set forth in paragraph 1, above, are transferred by the Department to the most integrated setting consistent with Olmstead v. L.C. , 527 U.S. 581 (1999).

85. All AMRTC residents committed solely as a person with a developmental disability and who do not have an acute psychiatric condition are transferred from AMRTC to the most integrated setting consistent with Olmstead v. L.C. , 527 U.S. 581 (1999).

Reporting will occur more frequently than semi-annually or annually if concerns are noted.

89. Staff hired for new positions as well as to fill vacancies, will only be staff who have experience in community based, crisis, behavioral and person-centered services and whose qualifications are consistent with the Settlement Agreement and currently accepted professional standards. Staff reassigned from MSHSCambridge will receive additional orientation training and supervision to meet these qualifications within 6 months of reassignment.

90. Provide integrated vocational options including, for example, customized employment. 91. All requirements in this Comprehensive Plan of Action are fully met for each individual served in the area of Person-Centered Planning. 92. All requirements in this Comprehensive Plan of Action are fully met for each individual served in the area of Transition Planning. 93. DHS will provide augmentative service supports, consultation, mobile teams, and training to those supporting the person. DHS will create stronger diversion supports through appropriate staffing and comprehensive data analysis.

94. All sites, programs and services established or utilized under this Comprehensive Plan of Action shall be licensed as required by state law. 96. Training plan for staff strongly emphasizes providing tools and support services in a person's home as quickly as possible. Staff will also be trained in delivering community based programs and processes.

Page 10 of 12

EC Reporting Color Key # Green: Semi-Annual
Pink: Annual Purple: Exception 98 Semi-Annual
100 Annual

CASE 0:09-cv-01775-DWF-BRT Document 545-1 Filed 02/22/16 Page 11 of 12 Minnesota Department of Human Services.
Jensen Settlement Agreement Comprehensive Plan of Action Reporting Schedule. Appendix A.

Comprehensive Plan of Action Evaluation Criteria

Exception Reporting: Exception Reporting has the meaning that the reporting will occur more frequently than semi-annually, if concerns are noted.

98. DHS will maintain therapeutic follow-up of Class Members, and clients discharged from METO/MSHS-Cambridge since May 1, 2011, by professional staff to provide a safety network, as needed, to help prevent re-institutionalization and other transfers to more restrictive settings, and to maintain the most integrated setting for those individuals.

100. Within the scope set forth above, the rule-making process initiated by the Department of Human Services pursuant to the Settlement Agreement, the Department shall by December 31, 2014 propose a new rule in accordance with this Comprehensive Plan of Action ("Proposed Rule"). This deadline may be extended for good cause shown upon application to the Court not later than 20 days prior to the deadline.

Should the Department of Human Services believe that it requires additional rulemaking authority to satisfy the requirements of this Plan, in order to apply the rule to all providers covered by Rule 40 and the scope of this Plan, the Department will seek an amendments to statutes in the 2014 Minnesota Legislative session to ensure that the scope of the Rule 40 modernization stated above is fulfilled and will apply to all of the facilities and services to persons with developmental disabilities governed by Rule 40. Any proposed amendment(s) are subject to the notice and comment process under EC __ below.

If legislative approval for the requested authority is not obtained in the 2014 Minnesota Legislative session, the Court may use its authority to ensure that the Adopted Rule will apply consistent with the scope set forth in EC 99.

By August 31, 2015, the Department of Human Services shall adopt a new rule to modernize Rule 40 ("Adopted Rule"). This deadline may be extended for good cause shown upon application to the Court not later than 60 days prior to the deadline.

Page 11 of 12

EC Reporting Color Key # Green: Semi-Annual
Pink: Annual Purple: Exception 101 Annual
103 Semi-Annual

CASE 0:09-cv-01775-DWF-BRT Document 545-1 Filed 02/22/16 Page 12 of 12 Minnesota Department of Human Services.
Jensen Settlement Agreement Comprehensive Plan of Action Reporting Schedule. Appendix A.

Comprehensive Plan of Action Evaluation Criteria

Exception Reporting: Exception Reporting has the meaning that the reporting will occur more frequently than semi-annually, if concerns are noted.

101. The Proposed Rule shall address the temporary use and tapering of carefully monitored individual medical restraints for self-injurious behavior while nonrestraint positive behavior supports are implemented under professional supervision.

In formulating the Proposed Rule, and any other methods or tools of implementation, the Department shall carefully consider the recommendations of Dr. Fredda Brown, whose consultation on the Rule 40 modernization the Department requested with regard to matters on which the Advisory Committee had not reached consensus. The Department shall document the results of this review.

103. Within thirty (30) days of the promulgation of the Adopted Rule, Plaintiffs' DHS is in the process of discussing items to

Class Counsel, the Court Monitor, the Ombudsman for Mental Health and

be included in the Olmstead plan.

Developmental Disabilities, or the Executive Director of the Governor's Council on

Developmental Disabilities may suggest to the Department of Human Services

and/or to the Olmstead Implementation Office that there are elements in the Rule

40 Advisory Committee Recommendations on Best Practices and Modernization of

Rule 40 (Final Version - July 2013) which have not been addressed, or have not

adequately or properly been addressed in the Adopted Rule. In that event, those

elements shall be considered within the process for modifications of the Olmstead

Plan. The State shall address these suggestions through Olmstead Plan sub-cabinet

and the Olmstead Implementation Office. Unresolved issues may be presented to

the Court for resolution by any of the above, and will be resolved by the Court.

Page 12 of 12

 
 CASE 0:09-cv-01775-DWF-BRT Document 551 Filed 03/18/16 Page 1 of 26

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians, and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians, and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian, and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
v.
Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and the State of Minnesota,
Defendants.

Civil No. 09-1775 (DWF/BRT) ORDER

Shamus P. O’Meara, Esq., and Mark R. Azman, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

CASE 0:09-cv-01775-DWF-BRT Document 551 Filed 03/18/16 Page 2 of 26
Nathan A. Brennaman, Deputy Attorney General, Scott H. Ikeda, Aaron Winter, and Anthony R. Noss, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants.
INTRODUCTION Before the Court is Defendants’ Jensen Settlement Agreement Comprehensive Plan of Action (CPA) – Ninth Compliance Update Report, Reporting Period: May 1 – September 30, 2015. (Doc. No. 531 (“Gap Report”).) The Court has thoroughly reviewed the Gap Report and issues this Order in response.
BACKGROUND On December 5, 2011, the Court approved the parties’ Stipulated Class Action Settlement Agreement (“Jensen Settlement Agreement”) and reserved jurisdiction over this matter “to enforce compliance with the provisions of the Agreement.” (Doc. No. 136 at 2.) The Jensen Settlement Agreement provided that the Court would retain jurisdiction for two years “or as the Court deems just and equitable.” (Doc. No. 136-1 at 39.) The Court has since extended its jurisdiction on three occasions, most recently extending its jurisdiction to December 4, 2019. (See Doc. Nos. 223, 340, 544, 545.) The Court is hopeful that substantial compliance with the Jensen Settlement Agreement will be achieved by this date. On May 28, 2015, this matter came before the Court for a Status Conference. (Doc. No. 456.) Following this Status Conference, the parties participated in mediation meetings with Magistrate Judge Becky R. Thorson between June 2015 and October 2015 on issues identified by the parties that related to the Jensen Settlement Agreement. On
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June 18, 2015, the Court stayed the parties’ and the Court Monitor’s reporting obligations to the Court to allow the parties to focus on the mediation proceedings. (Doc. No. 462 at 2.) On July 9, 2015, the Court extended the stay of the reporting requirements to August 10, 2015 due to continued mediation. (Doc. No. 472 at 2.) Following mediation on the identified Jensen Settlement Agreement issues, the Court directed the Defendants to submit a “Gap Report” to report on Defendants’ compliance with the Jensen Settlement Agreement for the period between May and September 2015. While this report was being prepared, a new Department of Human Services (“DHS”) Commissioner, Emily Johnson Piper, was appointed to replace former DHS Commissioner Lucinda Jesson. Given this administrative transition, the Court provided Defendants with additional time to prepare and submit the Gap Report to the Court. On February 2, 2016, the Defendants submitted the Gap Report currently before the Court for consideration. (Gap Report.)1
The 113-page Gap Report restates the agreed compliance Evaluation Criteria (“ECs”) with DHS’s report on the “state of compliance” for each.2 Defendants state that they have “met criteria” for many, but not for all, ECs. For some items, actions already
1 On February 22, 2016, the Court issued a separate Order addressing the schedule for the Defendants’ ongoing compliance reporting requirements with respect to the Jensen Settlement Agreement and the Comprehensive Plan of Action. (Doc. No. 545.) The same day, the Court also issued an Order addressing the schedule for the Defendants to submit periodic reports on the Olmstead Plan’s implementation. (Doc. No. 544.) 2 The ECs were developed by the Court Monitor and the parties and approved by the Court as part of the Comprehensive Plan of Action (“CPA”). (Doc. Nos. 283, 284.) The CPA “serve[s] as both a roadmap to compliance and as a measuring stick for compliance.” (Doc. No. 271 at 4.)
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taken are stated. For other items, actions in process or intended for future development are stated. Generally, no specific deadlines or time lines for contemplated actions are provided. Various source materials and underlying documentation are referenced. Forty additional pages of affidavits are provided to identify the individuals who attest to facts stated in the Gap Report.
As the Gap Report explains in detail, DHS has developed a new internal structure to oversee compliance with the Jensen Settlement Agreement. (Id. at 5-7.) The Court is hopeful that this new structure will improve DHS’s compliance efforts and ultimately improve the lives of individuals with disabilities throughout the state. The Jensen Implementation Office (“JIO”),3 an entity within DHS, was created “to improve compliance and quality oversight of the Jensen Settlement Agreement.” (Id. at 5.) In October 2015, the JIO changed its focus to “compliance monitoring and measurement.” (Id.) Specifically, the JIO will now focus on the following: “developing a Department Wide Quality Assurance Plan, a Jensen Implementation Office specific Quality Assurance Plan, expanded Jensen Internal Reviewer responsibilities, and starting the process for contracting with Independent Subject Matter Experts.” (Id. at 5-6.) The JIO will also meet regularly with DHS staff and the Jensen Settlement Agreement consultants, Roberta Opheim and Dr. Colleen Wieck to discuss quality improvement and verification. (Id. at 6.) 3 The Court is aware that DHS has changed the name of the JIO to the Jensen/Olmstead Quality Assurance and Compliance Office since submitting the Gap Report to the Court. (See Doc. No. 549.) For this Order, the Court will refer to the JIO by its former name for consistency with the Gap Report.
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In conjunction with the JIO, DHS will utilize internal and external verification
mechanisms to address compliance. The Jensen Internal Reviewer, Dr. Daniel Baker,
“will conduct internal investigations and reviews to ensure compliance with the Jensen
Settlement Agreement” and related areas such as Minnesota’s Olmstead Plan and the
positive supports rule. (See id. at 6, 28-29.) In addition, DHS is establishing a “pool” of
Independent Subject Matter Experts (“SMEs”) “to provide independent and objective
assurance, advisory, and investigative services to the Department in relation to the Jensen
Settlement Agreement.” (Id. at 6.) The SMEs will offer specialized skills and assistance in a variety of areas to aid DHS in achieving compliance. (Id.)4 Finally, DHS has
instituted a Department Quality Assurance Committee as part of its effort “to provide an
agency-wide structure to monitor the quality of programs and services provided to people
with disabilities.” (Id.) This committee will “identify opportunities for improvement, . . .
facilitate development of work plans, and track[] progress.” (Id.)
DHS has indicated that the JIO, the Jensen Internal Reviewer, the SMEs, and the
Quality Assurance Committee “work together, and in conjunction with the Olmstead
Implementation Office, to monitor and improve the quality of programs and services and
4 According to the Gap Report, the JIO will manage the contracts for the SMEs. (Gap Report at 6.) However, in a recent letter submission to the Court, DHS explained that “[t]he selected SMEs will be independent contractors, and will be expected to provide independent and objective investigative services and to form their opinions and recommendations based on their professional judgment and obligations.” (Doc. No. 549 at 1-2.) In addition, in another letter submission to the Court, DHS has proposed utilizing the SMEs to fulfill the External Reviewer function required under the Jensen Settlement Agreement. (Doc. No. 550 at 2.) According to this proposal, “Plaintiffs’ Counsel and the Department, in consultation with the Consultants, will jointly approve the selected External Reviewer.” (Id.) The Court will issue a separate order regarding DHS’s proposal on the External Reviewer role.
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to ensure compliance with the Settlement Agreement.” (Doc. No. 549 at 2.) The Court appreciates DHS’s efforts to develop and implement new measures to ensure compliance with the Jensen Settlement Agreement. When the Court no longer exercises jurisdiction over the Jensen Settlement Agreement, quality oversight measures such as these will ensure that Jensen’s legacy is not left an empty promise.
The Gap Report was presented in a new format intended to improve the quality and efficiency of reporting obligations. While the new format presents significant improvements, the reporting format lacks sufficiently complete information regarding DHS’s verification of its internal findings. In some cases, the report information has not been verified. For example, in reporting on licensure of sites, programs, and services governed by the CPA, DHS reports that it has met criteria and states that “[t]he Jensen Implementation Office will verify licenses are timely and appropriate by reviewing the DHS Licensing Lookup web page and storing a copy of the licenses in the Jensen SharePoint site.” (Gap Report at 62 (emphasis added).) Not only does this promise of future verification leave the Court with insufficient information to confirm DHS’s current state of compliance, such a statement also lacks the detail necessary to allow the Court to evaluate the results of DHS’s internal verification efforts. As described in greater detail below, the Court has selected several examples where verification is needed. If such information is provided to the Court, it would more fully support those sections of the Gap Report.
As for future reports, while affidavits from appropriate DHS employees may be helpful to track the accountability of DHS employees, Defendants are not required to file
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them in the future with the Court. Instead, future Compliance Update Reports must include verification information directly in the report. Verification information should be included in the body of the report, in a separate table, or both, connecting the report information to the verification steps. Providing verification in the report itself will hopefully eliminate the need for the Court or the Court Monitor to independently evaluate the report content.
Given DHS’s important updated organizational structure created to address, supervise, and sustain compliance and the Court’s desire to ensure that these measures will be successfully utilized to achieve their stated purposes, the Court finds that it is appropriate to propose specific follow-up by DHS (utilizing their new verification mechanisms) regarding certain items discussed in the Gap Report, rather than assign this follow-up to the Court Monitor. If the follow-up by DHS does not sufficiently clarify and support DHS’s compliance, the Court may request that the Court Monitor follow up on these items. The items that the Court has identified for additional follow-up are not an exhaustive list of the areas in which DHS could improve its compliance efforts. Rather, they are representative areas in which the Court seeks additional verification of DHS’s activities to ensure compliance with the Jensen Settlement Agreement and the CPA.
The Court views the Gap Report as a positive improvement on past reports and also sees this time as an opportunity to continue forward progress in achieving substantial compliance with the Jensen Settlement Agreement, the Comprehensive Plan of Action, and this Court’s Orders. In response to the Gap Report, the Court’s requirements
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regarding DHS’s verification, compliance, and future Compliance Update Reports,5 and parameters on the current role of the Court Monitor are stated in the Order below.
ORDER Based upon the presentations and submissions before the Court, and in particular the Jensen Settlement Agreement Comprehensive Plan of Action (CPA) – Ninth Compliance Update Report, Reporting Period: May 1 – September 30, 2015 (Doc. No. 531), the Court having reviewed the history of the case, and the Court being otherwise duly advised in the premises, IT IS HEREBY ORDERED that: 1. Defendants’ Verification Obligations. (See attached Exhibit A for a summary of the verification obligations discussed below.)
a. DHS shall complete the verification outlined below and report to the Court on its efforts no later than May 31, 2016.
b. Restraint Reporting (EC 28-30). In EC 28-30, the CPA describes the use of Form 31032 (or its successor) whenever use is made of manual restraint. (Doc. No. 283 at 10.) The ECs explain that the form will be “fully completed whenever use was made of manual restraint,” “timely completed by the end of the shift,” and will “indicate[] that no prohibited restraint was used.” (Id.)
5 As outlined below, the Court orders DHS to implement a number of changes to its subsequent reports to fully meet the Court’s reporting requirements. Such changes must be reflected in the next Jensen Settlement Agreement Comprehensive Plan of Action Compliance Update Report submitted to the Court in August 2016.
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i.

DHS explains that the current form relevant to

these ECs is DHS-3654 which is used “for reporting restraint

use, 911 calls, and client requests for PRN medications.”

(Gap Report at 25.) For all of these ECs, DHS reports that

“There were no instances of manual restraint use at Minnesota Life Bridge6 during this reporting period.” (Id. at

25-26.)

ii.

The Court concludes that additional detail from

DHS is needed to clarify whether any of the reported 911

calls at the facilities involved the use of prohibited restraints

such as handcuffs or chemical restraint. The Court

recommends that the JIO appoint an Independent SME to

investigate the 911 calls reported on the DHS-3654 forms

referenced in the Gap Report in order to verify whether

improper restraints were used. If results reveal a widespread

use of such restraints in response to 911 calls at the facilities,

the Court proposes that the Quality Assurance Committee

address this issue on a systemic level to prevent further

6 Minnesota Life Bridge is a transitional adult foster care home that serves individuals with disabilities in three separate sites located throughout Minnesota. (See Gap Report at 8.) Minnesota Life Bridge was established under the Jensen Settlement Agreement and the CPA as a successor to the former Minnesota Extended Treatment Options (“METO”) program which was closed as part of the Jensen Settlement Agreement following allegations of unlawful restraint and seclusion at the facility. (See id. at 5, 8.)

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incidents of improper restraint. Such efforts may require

investigation into the policies and practices of local police

departments responding to 911 crisis calls. DHS shall report

the results of this investigation to the Court.

c. Staff Training (EC 54-57). The CPA states in EC 54,

“Facility treatment staff received training in positive behavioral supports,

person-centered approaches, therapeutic interventions, personal safety

techniques, crisis intervention and post crisis evaluation.” (Doc. No. 283 at

19.) EC 55 provides that such training shall be “consistent with applicable

best practices” and “competency-based.” (Id. at 20.) ECs 56 and 57

provide specific requirements regarding training in Therapeutic

Interventions, Personal Safety Techniques, and Medically Monitoring

Restraint. (Id. at 20-21.)

i.

DHS reports that it has “met the requirements”

for all of these ECs, excluding EC 57 which relates to

incidents of manual restraints because there were no uses of

manual restraints this reporting period. (Gap Report at

39-41.) Specifically, DHS reports that “the [JIO] has verified

that Facility staff have received all required training.” (Id. at

39.) DHS states that Minnesota Life Bridge will monitor

attendance at training sessions and is organizing all of its

historical training records for data entry into a DHS learning

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management system database. (Id. at 39-40.) DHS also

states that training for Minnesota Life Bridge staff is

“consistent with applicable best practices” and “competency-

based.” (Id. at 40.) DHS reports that the JIO “has verified

that all new hires for successor facilities have completed the

required training.” (Id.)

ii.

The Court concludes that further verification is

necessary to ensure DHS is in compliance with the ECs

relating to staff training. To aid the Court in evaluating

Defendants’ compliance with the Jensen Settlement

Agreement and the CPA, the Court proposes that the JIO

appoint an Independent SME to evaluate and provide

feedback to DHS on its staff training curriculum. This

proposed evaluation would focus on the requirements in EC

55 providing that training must be both “consistent with

applicable best practices” and “competency-based.” In

addition, the Court recommends that the SME assess whether

training is appropriately standardized across divisions

throughout DHS. The Court also suggests that the SME

consult with the Quality Assurance Committee as appropriate.

DHS shall report the results of this investigation and provide

a summary report about its training to the Court.

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d. Community Support Services (“CSS”) (EC 67-72). The

CPA states in EC 67, “The expansion of community services under this

provision allows for the provision of assessment, triage, and care

coordination to assure persons with developmental disabilities receive the

appropriate level of care at the right time, in the right place, and in the most

integrated setting in accordance with the U.S. Supreme Court decision in

Olmstead v. L.C., 572 U.S. 582 (1999).” (Doc. No. 283 at 23.) ECs 68-72

explain how DHS will achieve this goal through long-term monitoring of

seventy-five “individuals with clinical and situational complexities,” CSS

mobile wrap-around response teams, timely crisis interventions, and

partnership with Community Crisis Intervention Services. (Id. at 24-25.)

i.

DHS reports that it has met the requirements of

these ECs. (Gap Report at 45-49.) It reports that CSS

implemented a Statewide Referral Data Tracking system in

April 2015. (Id. at 45.) In addition, it reports that it launched

a Single Point of Entry project to respond to requests from

individuals with disabilities in crisis in February 2015. (Id. at

45-46, 71-73.) The Single Point of Entry pilot project

“focuses on coordinating [DHS] efforts for . . . persons with

developmental or intellectual disabilities in crisis and at risk

of losing their current placement.” (Id. at 45-46.) DHS

explains that CSS will “document their actions and efforts,

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and the impact on people’s’ [sic] stability.” (Id. at 46.) DHS

provides numeric data on the number of individuals who

received services from CSS, including those receiving

long-term monitoring. (Id. at 46-47.) And DHS reports that

the JIO is working with CSS to develop tracking systems to

facilitate monthly reports on unduplicated counts of people

being served through long-term monitoring. (Id.) It also

provides data on the average response times for crisis

services. (Id. at 48.) DHS explains that CSS and the JIO will

continue to monitor crisis responses through a new electronic

tracking form. (Id.)

ii.

In conjunction with DHS’s efforts reported in

the Gap Report, DHS shall provide a follow-up report to the

Court detailing outcomes related to these ECs. The Court

recommends that DHS utilize the Jensen Internal Reviewer

and the Quality Assurance Committee to accomplish this task.

The Court suggests that the Jensen Internal Reviewer conduct

an internal investigation to verify the results reported in the

Gap Report. In addition, the Court proposes that the Jensen

Internal Reviewer develop a substantive performance report

to elaborate on DHS’s compliance with these ECs related to

CSS and crisis interventions. Specifically, the Court seeks

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further information regarding the services provided to the seventy-five individuals targeted for long-term monitoring. The Court also seeks further information on the staffing and administration of the Single Point of Entry project. The Court suggests that the Quality Assurance Committee provide input on its role in overseeing the Single Point of Entry, if any, offer recommendations on system-wide challenges that may impede compliance with these ECs, and make recommendations to address any impediments. e. Staff Qualifications (EC 78, 89). The CPA states in EC 78, under the “Expansion of Community Support Services” section, “Staff conducting the Functional Behavioral Assessment or writing or reviewing Behavior Plans shall do so under the supervision of a Behavior Analyst who has the requisite educational background, experience, and credentials. . . .” (Doc. No. 283 at 27.) In EC 89, under the “Closure of MSHS-Cambridge and Replacement with Community Homes and Services” section, the CPA states, “Staff hired for new positions as well as to fill vacancies, will only be staff who have experience in community based, crisis, behavioral and person-centered services and whose qualifications are consistent with the Settlement Agreement and currently accepted professional standards.” (Id. at 29.)
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i.

Under EC 78, DHS reports that the CSS

Supervisor responsible for reviewing behavior plans is

currently in the process of obtaining appropriate certification.

(Gap Report at 51-52.) Under EC 89, DHS reports that it has

“met criteria.” (Id. at 59.)

ii.

To aid the Court in evaluating Defendants’

compliance with the Jensen Settlement Agreement and the

CPA, DHS shall investigate and report to the Court on

whether the staff qualifications required by ECs 78 and 89 are

being met. The Court proposes that DHS utilize the Jensen

Internal Reviewer to conduct this investigation. To properly

verify the representations made in the Gap Report, the

investigation shall be based on more than DHS’s own

assertions that it is in compliance.

f. Evaluation Tools (See EC 98, 47, 48, 49, 50, 51, 52)

i.

DHS reports that the Successful Life Project7 utilizes

the Positive Behavior Support-System Evaluation Tool to evaluate

the life situations of class members. (Id. at 64.) In addition, DHS

reports that “[t]he [JIO] completed desk audits of the transition plans

7 The Successful Life Project supports individuals with disabilities who are members of the “therapeutic follow-up group” established by the CPA. This group includes “members at risk of losing their homes, at risk of transfer to settings that are more restrictive, and those transitioning to new homes.” (Gap Report at 63.)
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for the three people who transitioned from Minnesota Life Bridge

during this reporting period.” (Id. at 70.) For these audits, reviewers

used a tool adapted from the Person-Centered Positive Behavior

Support Plan Report Scoring Criteria & Checklist developed by the

Kansas Institute for Positive Behavior Support. (Id.) The transition

plans were scored at 94%, 95% and 94% in these desk audits. (Id.)

ii.

The Court concludes that more information is needed

to evaluate DHS’s use of these evaluation tools to achieve

compliance. First, because detailed results are not reported, the

Court cannot assess the extent to which these individuals’ lives are

improved by DHS’s efforts. Second, utilizing two different

evaluation tools to assess the outcomes for individuals being served

by DHS in varying settings inhibits meaningful comparison and

assessment. To aid the Court in evaluating Defendants’ compliance

with the Jensen Settlement Agreement and the CPA, DHS shall

compile, verify, and report on the results of the assessments

conducted with these evaluation tools. DHS shall also investigate

whether a uniform evaluation tool can be utilized to evaluate

individual outcomes across DHS’s service spectrum and report to the

Court on its findings. The Court recommends that the Jensen

Internal Reviewer complete this investigation. The Court also

suggests that the Jensen Internal Reviewer appoint an Independent

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SME for this task, if necessary, and rely on DHS’s Quality

Assurance Committee to the extent agency-wide consultation is

needed.

2. Changes to Subsequent Compliance Update Reports

a. As directed by the Court under a prior Order (Doc. No. 545 at

3), the next deadline for DHS to submit a Jensen Settlement Agreement Compliance Update Report is August 31, 2016.8 To improve subsequent

Compliance Update Reports, DHS shall implement the following changes:

i.

DHS shall report the steps it takes internally to

verify the contents of reports submitted to the Court.

Specifically, DHS must provide detail regarding which

specific representations were verified, who completed the

verification, and how the verification was completed. Such

information shall be included within the Compliance Update

Report and shall be reported for each separate section of the

report.

ii.

All data included in reports to the Court must be

confirmed as reliable and valid. All statements made in the

reports must be accurate, complete, timely, and verified.

8 The Court’s February 22, 2016 Order governs the schedule for DHS to submit exception, semi-annual, and annual CPA reports. (Doc. No. 545.) A detailed reporting schedule is included as Exhibit A to the February 22, 2016 Order. (Doc. No. 545-1.)
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iii.

Affidavits of DHS employees verifying the

accuracy of representations made to the Court may be

appropriate for DHS to internally document the work;

however, DHS is not required to submit the affidavits to the

Court. Instead, the report itself must show that the

information was verified. If verification is included, it is

more likely the Court will not have to task the Court Monitor

with conducting further verification of the report content.

iv.

DHS’s Compliance Update Reports shall be

consistent with best practices for such reporting. To the

extent necessary, the Court recommends that DHS consult

with the Jensen Settlement Agreement consultants and other

experts familiar with such practices.

b. The Court may request further or different information in

response to future Compliance Update Reports.

3. Court Monitoring. (See attached Exhibit B for a summary of the

verification duties discussed below.)

a. The Court Monitor was appointed by the Court on July 17,

2012. (Doc. No. 159.) Over the years, the Court has assigned various

duties to the Court Monitor in order to promote compliance with the Jensen

Settlement Agreement. Many of these duties evolved through the

agreement and cooperation of the parties. The Court will consider

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modifying aspects of the Court Monitor’s role if DHS’s new internal and

external verification mechanisms are demonstrated to appropriately

(internally and externally, through independent review) audit compliance

with the Jensen Settlement Agreement and the CPA.

b. For purposes of this Gap Report and absent further Order of

the Court, the Court Monitor’s work will focus on gathering information

and verifying DHS’s representations with respect to the ECs and issues

identified below.

c. Mobile Teams (EC 93). The CPA states in EC 93, “DHS

will provide augmentative service supports, consultation, mobile teams, and

training to those supporting the person.” (Doc. No. 283 at 30.)

i.

DHS states that it has “met criteria” for this EC

but also states that it is not providing “separate, distinct

mobile teams,” but rather is relying on “current staff as

needed.” (Gap Report at 61.) DHS explains how mobile

supports have been provided to individuals in a variety of

settings, both individuals receiving services at DHS facilities

and individuals residing in community settings. (Id.)

ii.

To aid the Court in evaluating Defendants’

compliance with the Jensen Settlement Agreement and the

CPA, DHS shall identify a designated point person (or

persons if necessary) for the Court Monitor on this topic

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within seven (7) days of this Order. The Court Monitor will

request information from the designated point person about

the deployment of mobile teams in response to crisis

situations at DHS facilities and in community settings. DHS

may provide additional information it believes is relevant to

the evaluation. For a representative sampling of these

deployments, the Court Monitor shall review the information

provided to verify that efforts reported with respect to mobile

teams are accurate and complete. The Court Monitor shall

also verify whether the data relied upon by Defendants with

respect to the deployment of mobile teams is reliable and

valid. The representative sampling for the Court Monitor’s

work shall be determined by agreement of the Court Monitor,

the designated DHS point person, the consultants, and

Plaintiff’s counsel within fourteen (14) days of this Order. If

the Court requires further investigation, another Order will

issue.

iii.

As part of its disclosures, DHS shall provide the

Court Monitor with Bulletin # 14-76-01, Transition of

Minnesota Specialty Health System (MSHS)-Cambridge to

Minnesota Life Bridge: Admission and Discharge Processes,

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Transition Planning and Community Mobile Support Services

issued April 29, 2014 within seven (7) days of this Order.

d. Successful Life Project (EC 98). The CPA states in EC 98,

“DHS will maintain therapeutic follow-up of Class Members, and clients

discharged from METO/MSHS-Cambridge since May 1, 2011, by

professional staff to provide a safety network, as needed, to help prevent re-

institutionalization and other transfers to more restrictive settings, and to

maintain the most integrated setting for those individuals.” (Doc. No. 283

at 30.)

i.

DHS does not state that it has “met criteria” for

this EC, but reports on the “Successful Life Project,”

describing how this project is utilized “to support members of

the therapeutic follow-up group.” (Gap Report at 63.) DHS

has completed 263 initial assessments through this project as

part of Phase I and Phase II is underway. (Id. at 63-64.) DHS

describes its process for assessment, including the use of the

Positive Behavior Support-System Evaluation Tool. (Id.) In

addition, DHS discusses the Successful Life Project Priority

Tracking lists which DHS uses to determine the priority of

individuals receiving Phase II assessments. (Id. at 64.) DHS

reports on one specific individual who was reported to the

State as a perpetrator of rape. (Id. at 65.) Finally, DHS

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describes the current staffing of the Successful Life Project.

(Id.)

ii.

Based upon the information in the Report, the

Court is unable to evaluate outcomes for individuals in the

therapeutic follow-up group. While DHS describes the

Successful Life Project in some detail, it has not provided

sufficient information regarding the outcomes of the project.

To aid the Court in evaluating Defendants’ compliance with

the Jensen Settlement Agreement and the CPA, DHS shall

identify a designated point person (or persons if necessary)

for the Court Monitor on this topic within seven (7) days of

this Order. The Court Monitor will request information from

the designated point person to verify the accuracy and

completeness of DHS’s representations with regard to the

Successful Life Project and to evaluate the results of the

project to determine whether the Successful Life Project is

achieving the goals of “prevent[ing] re-institutionalization

and other transfers to more restrictive settings, and . . .

maintain[ing] the most integrated setting for those

individuals.” (Doc. No. 283 at 30.) DHS may provide

additional information it believes is relevant to the evaluation.

In particular, the Court Monitor will verify the accuracy and

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completeness of DHS’s statements, and the reliability and

validity of the data DHS relies on by reviewing the

circumstances of a representative sampling of individuals in

the therapeutic follow-up group. The representative sampling

for the Court Monitor’s work shall be determined by

agreement of the Court Monitor, the designated DHS point

person, the consultants, and Plaintiff’s counsel within

fourteen (14) days of this Order. If the Court requires further

investigation, another Order will issue.

iii.

As part of its disclosures, DHS shall provide the

Court Monitor with Bulletin #15-76-01, Successful Life

Project and the Community-based Services Manual

referenced in the Gap Report within seven (7) days of this

Order. (See Gap Report at 63.)

e. The Court shall continue to communicate with the Court

Monitor while these duties are being completed. The Court Monitor must

complete his verification efforts relating to Mobile Teams and the

Successful Life Project no later than May 1, 2016. Once these tasks are

completed, the Court Monitor will notify the Court that the work has

concluded. The Court will then consult with the Court Monitor regarding

his next steps and clarify whether any formal reporting is needed in

connection with these verification efforts.

23

CASE 0:09-cv-01775-DWF-BRT Document 551 Filed 03/18/16 Page 24 of 26

f. Other Duties. All other Court Monitor duties directed under

prior Orders, including periodic reporting requirements, are stayed at this time.9 (See Doc. Nos. 159, 168, 205, 211, 212, 223, 224, 248, 257, 258,

265, 284, 292, 297, 308, 309, 323, 340, 368, 379.) Absent further order of

the Court, the Court Monitor’s work shall focus exclusively on the duties

identified above. The Court reserves the right to direct the Court Monitor

to investigate and verify other issues that may arise in the future. In

particular, the Court Monitor may be assigned further duties after DHS has

fulfilled its own verification obligations as directed in this Order. The

Court may issue subsequent orders on the scope of the Court Monitor’s role

following the completion of the verification duties outlined in this order. If,

at any time, a party or consultant wishes to request that further duties be

assigned to the Court Monitor, the party or consultant may submit a request

directly to the Court.

4. Other Reporting Requirements

a. Internal Reviewer

i.

According to the Gap Report, “[t]he Jensen

Implementation Office e-mails the monthly Internal Reviewer

reports to the Court Monitor, the Plaintiffs’ Counsel, and the

Office of Ombudsman for Mental Health and Developmental

9 The Court Monitor’s billing and payment process is not stayed, and the Court requires the Court Monitor and all parties to follow its prior orders with respect to this process. (See Doc. Nos. 160, 286, 546.)

24

CASE 0:09-cv-01775-DWF-BRT Document 551 Filed 03/18/16 Page 25 of 26

Disabilities and the Minnesota Governor’s Office for

Developmental Disabilities.” (Gap Report at 29.) Such

reporting is consistent with the Court’s prior order stating that

“[t]he Internal Reviewer . . . shall continue to issue his reports

to the Court Monitor.” (See Doc. No. 340 at 11.) Going

forward, a copy of these reports shall also be submitted to the

Court.

b. Independent Subject-Matter Experts and External

Reviewer

i.

The Court has received and reviewed two letter

submissions from DHS regarding the Independent SMEs and,

in particular, the role of the SMEs in completing the reporting

requirements of the External Reviewer required under the

Jensen Settlement Agreement. (Doc. Nos. 549, 550.) The

Court invites further submissions from the parties on these

issues after DHS has discussed its proposal with the

consultants and Plaintiff’s counsel. The Court will address

DHS’s proposal, and any modifications made to their

proposal, at a later time.

CONCLUSION

As the Court explained in its February 22, 2016 Order governing reporting

requirements for the Jensen Settlement Agreement and CPA, the Court will convene

25

CASE 0:09-cv-01775-DWF-BRT Document 551 Filed 03/18/16 Page 26 of 26

bi-annual status conferences with the parties and the consultants “to facilitate the Court’s

continued oversight of the Defendants’ compliance with the CPA and the Jensen

Settlement Agreement.” (Doc. No. 545 at 5.) The first such conference will take place in

June 2016. (Id.) By this time, the Court is hopeful that DHS will have completed the

verification obligations outlined in detail above. Completing these additional steps will

give DHS an opportunity to utilize its new organizational structure to facilitate internal

and external compliance evaluation, and it will prepare DHS to thoroughly verify its

compliance with the Jensen Settlement Agreement and the CPA on its own in future

reports to the Court. Ultimately, these measures will be essential for ensuring that DHS’s

efforts make a real and positive impact for individuals with disabilities and their families.

The Court concludes by noting that it has continued to hear from concerned

individuals and families who fear that the Jensen Settlement Agreement and the

Olmstead Plan will decrease choices and negatively impact the lives of individuals with

disabilities in this state. The Court is deeply concerned about the widespread public

misconceptions about the purpose and intent of the Jensen Settlement Agreement. Along

with utilizing its new organizational structure to improve its compliance and quality

assurance efforts, the Court urges DHS to make it a top priority to educate and inform the

public to correct these misconceptions. Only when such misconceptions and fears are

eliminated will the Class members and individuals affected by this landmark settlement

agreement be able to say that their lives have truly improved.

Dated: March 18, 2016

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

26

CASE 0:09-cv-01775-DWF-BRT Document 551-1 Filed 03/18/16 Page 1 of 5

EXHIBIT A. DEFENDANTS’ VERIFICATION OBLIGATIONS IN RESPONSE TO JENSEN GAP REPORT (See March 18, 2016 Court Order.)

Topic
Restraint Reporting
Staff Training

Governing Evaluation Criteria
• “Form 31032 (or its successor) was fully completed whenever use was made of manual restraint.” (EC 28.)
• “For each use, Form 31032 (or its successor) was timely completed by the end of the shift.” (EC 29.)
• “Each Form 31032 (or its successor) indicates that no prohibited restraint was used.” (EC 30.)

Reported State of Compliance
• The current form relevant to these ECs is DHS-3654 which is used “for reporting restraint use, 911 calls, and client requests for PRN medications.” (Gap Report at 25.)
• For all of these ECs, DHS reports that “There were no instances of manual restraint use at Minnesota Life Bridge during this reporting period.” (Id. at 2526.)

• “Facility treatment staff received training in positive behavioral supports, personcentered approaches, therapeutic interventions, personal safety techniques, crisis intervention and post crisis evaluation.” (EC 54.)
• “Facility staff training is consistent with applicable best practices, including but not limited to the Association of Positive Behavior Supports, Standards of Practice for Positive Behavior Supports (http://apbs.org). Staff training programs will be competency-based with staff demonstrating current competency in both knowledge and skills.” (EC 55.)
• “Facility staff receive the specified number of hours of training: Therapeutic

• DHS reports that it has “met the requirements” for all of these ECs, excluding EC 57 which relates to incidents of manual restraints because there were no uses of manual restraints this reporting period. (Gap Report at 39-41.)
• DHS reports that “the [JIO] has verified that Facility staff have received all required training.” (Id. at 39.)
• DHS states that Minnesota Life Bridge will monitor attendance at training sessions and is organizing all of its historical training records for data entry into a DHS learning management system database. (Id. at 39-40.)
• DHS also states that training for

Proposed Verification Actions
• DHS shall investigate and report to the Court on whether any of the reported 911 calls at the facilities involved the use of prohibited restraints such as handcuffs or chemical restraint.
• The Court recommends that the JIO appoint an Independent SME to investigate the 911 calls reported on the DHS-3654 forms referenced in the Gap Report in order to verify whether improper restraints were used.
• If results reveal a widespread use of such restraints in response to 911 calls at the facilities, the Court proposes that the Quality Assurance Committee address this issue on a systemic level to prevent further incidents of improper restraint. Such efforts may require investigation into the policies and practices of local police departments responding to 911 crisis calls.
• DHS shall verify whether it is in compliance with the Jensen Settlement Agreement and the CPA with regard to staff training. DHS shall report the results of this investigation and provide a summary report about its training to the Court.
• The Court proposes that the JIO appoint an Independent SME to evaluate and provide feedback to DHS on its staff training curriculum. This proposed evaluation would focus on the requirements in EC 55 providing that training must be both “consistent with applicable best practices” and “competency-based.” The Court also recommends that the SME assess

CASE 0:09-cv-01775-DWF-BRT Document 551-1 Filed 03/18/16 Page 2 of 5

Community Support Services (“CSS”)

interventions (8 hours); Personal safety techniques (8 hours); Medically monitoring restraint (1 hour).” (EC 56.) • “For each instance of restraint, all Facility staff involved in imposing restraint received all the training in Therapeutic Interventions, Personal Safety Techniques, Medically Monitoring Restraint.” (EC 57.)
• “The expansion of community services under this provision allows for the provision of assessment, triage, and care coordination to assure persons with developmental disabilities receive the appropriate level of care at the right time, in the right place, and in the most integrated setting in accordance with the U.S. Supreme Court decision in Olmstead v. L.C., 572 U.S. 582 (1999).” (EC 67.)
• “The Department identifies, and provides long term monitoring of, individuals with clinical and situational complexities in order to help avert crisis reactions, provide strategies for service entry changing needs, and to prevent multiple transfers within the system.” (EC 68.)
• “Approximately seventy five (75) individuals are targeted for long term monitoring.” (EC 69.)
• “CSS mobile wrap-around response teams are located across the state for proactive response to maintain living arrangements.” (EC 70.)
• “CSS arranges a crisis intervention within three (3) hours from the time the parent or legal guardian authorizes CSS’ involvement.” (EC 71.)
• “CSS partners with Community Crisis Intervention Services to maximize support,

Minnesota Life Bridge staff is “consistent with applicable best practices” and “competency-based.” (Id. at 40.) • DHS reports that the JIO “has verified that all new hires for successor facilities have completed the required training.” (Id.)
• DHS reports that it has met the requirements of these ECs. (Gap Report at 45-49.)
• DHS reports that CSS implemented a Statewide Referral Data Tracking system in April 2015. (Id. at 45.)
• DHS reports that it launched a Single Point of Entry project to respond to requests from individuals with disabilities in crisis in February 2015. (Id. at 45-46, 71-73.) The Single Point of Entry pilot project “focuses on coordinating [DHS] efforts for . . . persons with developmental or intellectual disabilities in crisis and at risk of losing their current placement.” (Id. at 45-46.)
• DHS explains that CSS will “document their actions and efforts, and the impact on people’s’ [sic] stability.” (Id. at 46.)
• DHS provides numeric data on the number of individuals who received services from CSS, including those receiving long-term monitoring. (Id. at 46-47) DHS reports that the JIO is working with CSS to develop tracking systems to facilitate monthly reports on unduplicated counts of people being served through long-term monitoring. (Id.)
• DHS provides data on the average response times for crisis services. (Id. at

whether training is appropriately standardized across divisions throughout DHS. The Court proposes that the SME consult with the Quality Assurance Committee as appropriate.
• DHS shall report to the Court detailing outcomes related to these ECs.
• The Court recommends that DHS utilize the Jensen Internal Reviewer and the Quality Assurance Committee to accomplish this task.
• The Court suggests that the Jensen Internal Reviewer conduct an internal investigation to verify the results reported in the Gap Report.
• The Court proposes that the Jensen Internal Reviewer develop a substantive performance report to elaborate on DHS’s compliance with these ECs related to CSS and crisis interventions. Specifically, the Court seeks further information regarding the services provided to the seventy-five individuals targeted for long-term monitoring. The Court also seeks further information on the staffing and administration of the Single Point of Entry project.
• The Court suggests that the Quality Assurance Committee provide input on its role in overseeing the Single Point of Entry, if any, offer recommendations on system-wide challenges that may impede compliance with these ECs, and make recommendations to address any impediments.

2

Staff Qualifications Evaluation Tools

CASE 0:09-cv-01775-DWF-BRT Document 551-1 Filed 03/18/16 Page 3 of 5

complement strengths, and avoid duplication.” (EC 72.)
• “Staff conducting the Functional Behavioral Assessment or writing or reviewing Behavior Plans shall do so under the supervision of a Behavior Analyst who has the requisite educational background, experience, and credentials recognized by national associations such as the Association of Professional Behavior Analysts. Any supervisor will co-sign the plan and will be responsible for the plan and its implementation.” (EC 78.)
• “Staff hired for new positions as well as to fill vacancies, will only be staff who have experience in community based, crisis, behavioral and person-centered services and whose qualifications are consistent with the Settlement Agreement and currently accepted professional standards. Staff reassigned from MSHSCambridge will receive additional orientation training and supervision to meet these qualifications within 6 months of reassignment.” (EC 89.)
• See EC 98, 47, 48, 49, 50, 51, 52 (discussed in Gap Report at 63-64, 70).
• “DHS will maintain therapeutic followup of Class Members, and clients discharged from METO/MSHSCambridge since May 1, 2011, by professional staff to provide a safety network, as needed, to help prevent reinstitutionalization and other transfers to more restrictive settings, and to maintain the most integrated setting for those

48.) DHS explains that CSS and the JIO will continue to monitor crisis responses through a new electronic tracking form. (Id.) • Under EC 78, DHS reports that the CSS Supervisor responsible for reviewing behavior plans is currently in the process of obtaining appropriate certification. (Gap Report at 51-52.) • Under EC 89, DHS reports that it has “met criteria.” (Id. at 59.)
• DHS reports that the Successful Life Project utilizes the Positive Behavior Support-System Evaluation Tool to evaluate the life situations of class members. (Gap Report at 64.)
• DHS reports that “[t]he [JIO] completed desk audits of the transition plans for the three people who transitioned from Minnesota Life Bridge during this reporting period.” (Id. at 70.) For these audits, reviewers used a tool adapted

• DHS shall investigate and report to the Court on whether the staff qualifications required by ECs 78 and 89 are being met.
• The Court proposes that DHS utilize the Jensen Internal Reviewer to conduct this investigation.
• To properly verify the representations made in the Gap Report, the investigation shall be based on more than DHS’s own assertions that it is in compliance.
• DHS shall compile, verify, and report on the results of the assessments conducted with these evaluation tools. DHS shall also investigate whether a uniform evaluation tool can be utilized to evaluate individual outcomes across DHS’s service spectrum and report to the Court on its findings.
• The Court recommends that the Jensen Internal Reviewer complete this investigation. The Court also suggests

3

CASE 0:09-cv-01775-DWF-BRT Document 551-1 Filed 03/18/16 Page 4 of 5

individuals.” (EC 98.) • “The State undertakes best efforts to
ensure that each resident is served in the most integrated setting appropriate to meet such person’s individualized needs, including home or community settings. Each individual currently living at the Facility, and all individuals admitted, will be assisted to move towards more integrated community settings. These settings are highly individualized and maximize the opportunity for social and physical integration, given each person’s legal standing. In every situation, opportunities to move to a living situation with more freedom, and which is more typical, will be pursued.” (EC 47.) • “The State actively pursues the appropriate discharge of residents and provided them with adequate and appropriate transition plans, protections, supports, and services consistent with such person’s individualized needs, in the most integrated setting and to which the individual does not object.” (EC 48.) • “Each resident, the resident’s legal representative and/or family to the extent permitted by law, has been permitted to be involved in the team evaluation, decision making, and planning process to the greatest extent practicable, using whatever communication method he or she (or they) prefer.” (EC 49.) • “To foster each resident’s selfdetermination and independence, the State uses person-centered planning principles at each stage of the process to facilitate the identification of the

from the Person-Centered Positive Behavior Support Plan Report Scoring Criteria & Checklist developed by the Kansas Institute for Positive Behavior Support. (Id.) The transition plans were scored at 94%, 95% and 94% in these desk audits. (Id.)

that the Jensen Internal Reviewer appoint an Independent SME for this task, if necessary, and rely on DHS’s Quality Assurance Committee to the extent agency-wide consultation is needed.

4

CASE 0:09-cv-01775-DWF-BRT Document 551-1 Filed 03/18/16 Page 5 of 5 resident’s specific interests, goals, likes and dislikes, abilities and strengths, as well as support needs.” (EC 50.) • “Each resident has been given the opportunity to express a choice regarding preferred activities that contribute to a quality life.” (EC 51.) • “It is the State’s goal that all residents be served in integrated community settings and services with adequate protections, supports and other necessary resources which are identified as available by service coordination. If an existing setting or service is not identified or available, best efforts will be utilized to create the appropriate setting or service using an individualized service design process.” (EC 52.)
5

CASE 0:09-cv-01775-DWF-BRT Document 551-2 Filed 03/18/16 Page 1 of 3

EXHIBIT B. COURT MONITOR’S VERIFICATION DUTIES IN RESPONSE TO JENSEN GAP REPORT (See March 18, 2016 Court Order.)

Topic
Mobile Teams

Governing Evaluation Criteria
• “DHS will provide augmentative service supports, consultation, mobile teams, and training to those supporting the person. DHS will create stronger diversion supports through appropriate staffing and comprehensive data analysis.” (EC 93.)

Reported State of Compliance
• DHS states that it has “met criteria” for this EC but also states that it is not providing “separate, distinct mobile teams,” but rather is relying on “current staff as needed.” (Gap Report at 61.)
• DHS explains how mobile supports have been provided to individuals in a variety of settings, both individuals receiving services at DHS facilities and individuals residing in community settings. (Id.)

Verification Duties
• DHS shall identify a designated point person (or persons if necessary) for the Court Monitor on this topic within seven (7) days of the Court’s March 18, 2016 Order.
• The Court Monitor will request information from the designated point person about the deployment of mobile teams in response to crisis situations at DHS facilities and in community settings. DHS may provide additional information it believes is relevant to the evaluation.
• For a representative sampling of these deployments, the Court Monitor shall review the information provided to verify that efforts reported with respect to mobile teams are accurate and complete. The Court Monitor shall also verify whether the data relied upon by Defendants with respect to the deployment of mobile teams is reliable and valid. The representative sampling for the Court Monitor’s work shall be determined by agreement of the Court Monitor, the designated DHS point person, the consultants, and Plaintiff’s counsel within fourteen (14) days of the Court’s March 18, 2016 Order.

To Be Provided by DHS to the Court Monitor
• As part of its disclosures, DHS shall provide the Court Monitor with Bulletin # 14-76-01, Transition of Minnesota Specialty Health System (MSHS)-Cambridge to Minnesota Life Bridge: Admission and Discharge Processes, Transition Planning and Community Mobile Support Services issued April 29, 2014 within seven (7) days of the Court’s March 18, 2016 Order.

Successful Life Project

CASE 0:09-cv-01775-DWF-BRT Document 551-2 Filed 03/18/16 Page 2 of 3

• “DHS will maintain therapeutic follow-up of Class Members, and clients discharged from METO/MSHS-Cambridge since May 1, 2011, by professional staff to provide a safety network, as needed, to help prevent reinstitutionalization and other transfers to more restrictive settings, and to maintain the most integrated setting for those individuals.” (EC 98.)

• DHS does not state that it has “met criteria” for this EC, but reports on the “Successful Life Project,” describing how this project is utilized “to support members of the therapeutic follow-up group.” (Gap Report at 63.)
• DHS has completed 263 initial assessments through this project as part of Phase I and Phase II is underway. (Id. at 63-64.) DHS describes its process for assessment, including the use of the Positive Behavior SupportSystem Evaluation Tool. (Id.) In addition, DHS discusses the Successful Life Project Priority Tracking lists which DHS uses to determine the priority of individuals receiving Phase II assessments. (Id. at 64.)
• DHS reports on one specific individual who was reported to the State as a perpetrator of rape. (Id. at 65.)
• DHS describes the current staffing of the Successful Life Project. (Id.)

• If the Court requires further investigation, another Order will issue.
• DHS shall identify a designated point person (or persons if necessary) for the Court Monitor on this topic within seven (7) days of the Court’s March 18, 2016 Order.
• The Court Monitor will request information from the designated point person to verify the accuracy and completeness of DHS’s representations with regard to the Successful Life Project and to evaluate the results of the project to determine whether the Successful Life Project is achieving the goals of “prevent[ing] reinstitutionalization and other transfers to more restrictive settings, and . . . maintain[ing] the most integrated setting for those individuals.” (Doc. No. 283 at 30.) DHS may provide additional information it believes is relevant to the evaluation.
• In particular, the Court Monitor will verify the accuracy and completeness of DHS’s statements, and the reliability and validity of the data DHS relies on by reviewing the circumstances of a representative sampling of individuals in the therapeutic

• As part of its disclosures, DHS shall provide the Court Monitor with Bulletin #15-76-01, Successful Life Project and the Community-based Services Manual referenced in the Gap Report within seven (7) days of the Court’s March 18, 2016 Order. (See Gap Report at 63.)

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CASE 0:09-cv-01775-DWF-BRT Document 551-2 Filed 03/18/16 Page 3 of 3 follow-up group. The representative sampling for the Court Monitor’s work shall be determined by agreement of the Court Monitor, the designated DHS point person, the consultants, and Plaintiff’s counsel within fourteen (14) days of the Court’s March 18, 2016 Order.
• If the Court requires further investigation, another Order will issue.
3

 
 CASE 0:09-cv-01775-DWF-BRT Document 553-2 Filed 03/31/16 Page 1 of 1

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians and next friends of Bradley J. Jensen, et al.,
Plaintiffs, vs.
Minnesota Department of Human Services, an agency of the State of Minnesota, et al.,
Defendants.

File No. 09-CV-01775-DWF-BRT
PLACEHOLDER FOR IDENTIFIER KEY TO JENSEN SETTLEMENT AGREEMENT COMPREHENSIVE PLAN OF ACTION (CPA) – 2015 COMPLIANCE ANNUAL REPORT, REPORTING PERIOD:
JANUARY 1 – DECEMBER 31, 2015

This document is a placeholder for the following item which is filed in conventional or physical form with the Clerk's Office:
Identifier Key to Jensen Settlement Agreement Comprehensive Plan of Action (CPA) – 2015 Compliance Annual Report, Reporting Period: January 1 – December 31, 2015
If you are a participant in this case, this filing will be served upon you in conventional format. This filing was not e-filed for the following reason:

Voluminous Document* (Document number of order granting leave to file conventionally: ___ )

Unable to Scan Documents (e.g., PDF file size of one page larger than 2MB, illegible when scanned)

Physical Object (description):

Non Graphical/Textual Computer File (audio, video, etc.) on CD or other media

Item Under Seal pursuant to court orders* (Pursuant to Protective Orders Doc. Nos. 57, 114, 190, 239)

Item Under Seal pursuant to the Fed. R. Civ. P. 52 and Fed. R. Crim. P. 49.1 (Document number of redacted version: ___ ) Other (description):
*Requires Judicial Approval

 
 CASE 0:09-cv-01775-DWF-BRT Document 572 Filed 05/31/16 Page 1 of 44
Jensen Settlement Agreement Comprehensive Plan of Action (CPA)
Report to Court In Response to March 18, 2016 Order (Doc. No. 551)
Filed May 31, 2016

CASE 0:09-cv-01775-DWF-BRT Document 572 Filed 05/31/16 Page 2 of 44 TABLE OF CONTENTS
DHS Verification Activities.............................................................................................................3 Restraint Reporting (ECs 28-30)..................................................................................................3 Staff Training (ECs 54-57)...........................................................................................................5 Community Support Services (ECs 67-72) ................................................................................13 Staff Qualifications (ECs 78, 89) ...............................................................................................26 Evaluation Tools (See ECs 47-52, 98) .......................................................................................27
Response to Court Monitor’s Report ............................................................................................32 Correcting Misconceptions ...........................................................................................................43
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CASE 0:09-cv-01775-DWF-BRT Document 572 Filed 05/31/16 Page 3 of 44

DHS Verification Activities
In the Court’s March 18, 2016 Order (Doc. No. 551), the Department of Human Services (the “Department”) was directed to complete a number of verifications activities regarding information that was reported in the Jensen Settlement Agreement Comprehensive Plan of Action (CPA) – Ninth Compliance Update Report, Reporting Period: May 1 – September 30, 2015 (“Ninth Compliance Update Report”) (Doc. No. 531).1

Restraint Reporting (ECs 28-30)
With respect to Restraint Reporting (ECs 28-30), the Court sought “additional detail…to clarify whether any of the reported 911 calls at the facilities involved the use of prohibited restraints…” (Doc. No. 551 at 9.) The Court recommended that the Department appoint an independent subject matter expert to investigate these 911 calls. In order to meet the deadline set by the Court for completion of this investigation, the Department sought and received Court approval to use the Internal Reviewer to conduct this investigation.
The Internal Reviewer reports:
During the reporting period, there were ten calls to 911 made by facility staff regarding facility residents. They are summarized in the following table. 911 calls were generated in regards to five individuals. In three of the ten incidents, handcuffs were used. In two of those three incidents, the individuals were arrested, with one person being charged with resisting arrest. In the other situation in which an arrest was made and handcuffs were used, the individual had been using dangerous objects to aggress against staff. In the third incident, the individual was handcuffed and “taken down” by the officer after grabbing at the officer’s shirt. The individual subsequently calmed and was not arrested. Two of the three incidents with handcuff use were with the same individual. There were no incidents during the reporting period in which law enforcement used a Taser, and there were no reports of injury to facility residents following police intervention.

911

Date

Call

J1 5/24/2015

Restraint by

Arrested

Police

None

Not arrested

Other specific information Being unsafe and potential violent.

1

The following abbreviations are used throughout this document: “JSA,” Jensen

Settlement Agreement (Doc. No. 104); “CPA,” the Second Amended Comprehensive Plan of

Action (Doc. No. 283); “EC,” Evaluation Criteria; “MLB,” Minnesota Life Bridge; “SLP,”

Successful Life Project; “JOQACO,” Jensen/Olmstead Quality Assurance and Compliance

Office; “CSS,” Community Support Services; “DSD,” Disability Services Division; “MSOCS,”

Minnesota State Operated Community Services.

3

CASE 0:09-cv-01775-DWF-BRT Document 572 Filed 05/31/16 Page 4 of 44

J1 9/17/2015 None

Not arrested and

J1 called to request

remained at home

transport to Mercy

Hospital but

subsequently

calmed down.

J1 9/22/2015 None

Not arrested

Threatening

comments, eloping,

and staff following

on road. Calmed

when officers

arrived.

D1 6/7/2015

None

Not arrested

Attempting to

hitchhike to St Paul

and swung at staff in

public. Staff called

911 for assistance.

D1 6/22/2015 Handcuffs

Arrested and charged Packed bags and

used

with resisting arrest attempted to

and disorderly

hitchhike to Seattle.

conduct after

becoming agitated

and argumentative

with police

D1 7/19/2015 Handcuffs and Not arrested and

Grabbed at officer's

manual

remained at home

chest resulting in

restraint used

police take down

and handcuffs being

used.

D1 9/1/2015

None

Not arrested

Police called

because D1 was

missing and was

transported back by

police.

C1 6/10/2015 None

Not arrested

Police called

because C1 was

missing but located

prior to police

finding him.

S1 7/30/2015 Handcuffs

Arrested

Attacking staff with

used

dangerous objects

and ran into the

road.

R1 8/11/2015 None

Not arrested

Eloped and walking

to Wal-Mart.

There are two potential concerns regarding 911 calls when efforts to reduce restraint use

are underway: (a) calling 911 merely for the purpose of having officers perform restraint,

4

CASE 0:09-cv-01775-DWF-BRT Document 572 Filed 05/31/16 Page 5 of 44
and (b) law enforcement using restraint procedures incommensurate with need or beyond what would be used in a situation with a person who does not have disabilities. Review of the information in the incident reports regarding the relevant 911 calls by the facility during this reporting period indicates neither of these is occurring. Handcuffs and manual restraint were used only when the individual was arrested or when the individual was grabbing at the responding officer. There is no evidence of improper nor widespread use of restraint used by police in these instances. Accordingly, there is no need to have the Department’s Quality Assurance Leadership Team address this issue on a systemic level.
Staff Training (ECs 54-57)
With respect to Staff Training (ECs 54-57), the Court sought additional information “[t]o aid the Court in evaluating [the Department’s] compliance with the Jensen Settlement Agreement and the CPA…” (Doc. No. 551 at 11.) The Court proposed that the Department appoint an independent subject matter expert to “evaluate and provide feedback…on staff training curriculum” at the facility (Minnesota Life Bridge). (Id.) In particular, the Court proposed a “focus on the requirements in EC 55 providing that training must be both ‘consistent with applicable best practices’ and ‘competency-based,’” and an assessment of “whether training is appropriately standardized across divisions throughout [the Department].” (Id.) In order to meet the deadline set by the Court for completion of this evaluation, the Department sought and received Court approval to use the Internal Reviewer to conduct this evaluation.
The Internal Reviewer reports:
List of Training Considered: Minnesota Life Bridge lists five formal elements to their staff training in compliance with EC 54-57: (a) Effective and Safe Engagement, (b) Positive Behavior Supports, (c) Person Centered Thinking, (d) Crisis/Post Crisis Intervention and Assessment, and (e) Medically Monitored Restraint.
Effective and Safe Engagement (EASE) Training Description provided by MLB. Participants learn to: Practice communication safety strategies; Practice authorized personal protective strategies; Explore team models for safety; Practice authorized physical safety strategies; Practice 360 Safety Planning and Balanced Teamwork; and Practice authorized group physical safety strategies designed for three or more team members. Content contained in the procedure include:
To provide an understanding of the Jensen Settlement Agreement (JSA) and its relation to use of Manual Restraints in an Emergency. To provide information on closely monitoring an individual’s physical condition during a manual restraint for signs of distress. To review MLB Procedure #15868, Therapeutic Interventions and Emergency Use of Personal Safety Techniques. To define Emergency and Emergency Use of Manual Restraint.
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CASE 0:09-cv-01775-DWF-BRT Document 572 Filed 05/31/16 Page 6 of 44
To clarify the allowed and prohibited procedures in an Emergency. To clarify the release and attempted release criteria when implementing Emergency Manual Restraints.
Source of Information used in EASE review: EASE written materials and demonstration videos online, competency assessments, interview of former trainees, and a telephone interview with the leader of training initiative for the Department. Please note that this training was not attended in person by the Internal Reviewer, so this report cannot assess fidelity of training implementation. There is Product Evidence, but not Observation Evidence.
The standards used in this review for purposes of comparison to Best Practices included (a) the Centers for Medicare & Medicaid Services (CMS) Guidance to Surveyors for ICF IID -Appendix J, Guidance 483.450(b)(1)(iv)(B) (https://www.cms.gov/Regulationsand-Guidance/Guidance/Manuals/Downloads/som107ap_j_intermcare.pdf), (b) the Joint Commission Standards on Restraint (www.jointcommission.org), and (c) accreditation/certification standards utilized by NADD: Advancing Mental Wellness for People with Intellectual or Developmental Disabilities (www.thenadd.org).
The Internal Reviewer completed a thorough review of EASE training and informational materials. The review noted many effective aspects of the EASE training and materials, and also noted some concerns and suggestions for improvement. These suggestions and concerns have been fully discussed with the developers of the EASE training within the Department. The EASE system is 16 hours of general training plus additional training specific to Minnesota Life Bridge residents.
It must be noted that evaluation of any crisis intervention program should begin with a recognition that even when necessary to assure safety at certain times, crisis intervention is only performed when other support systems for an individual have failed or have proven otherwise ineffective. It is contradictory to the spirit of the JSA and the CPA (as well as Best Practices in supporting persons with Intellectual or Developmental Disabilities) that crisis intervention be relied upon, as positive supports are called for as the primary means for intervention.
There are many aspects to the EASE Program, which are consistent with the best practice standards previously referenced, and they are enumerated below:
1. Builds in understanding of trauma 2. Knowledge of person 3. Consideration of the person’s past experience with any restraint 4. Focuses on person centeredness 5. De-escalation and communication 6. Emphasis on the learning cycle for teams and focus on teamwork, including
ongoing practice and mentoring for care providers in the application of EASE 7. Self-care (with specific connection to Minnesota Employee Assistance Plan) 8. Managing one’s own stress as a care provider 9. Competency evaluation as opposed to simply completing the training
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10. Respect for person and positive relationships 11. Imminent risk of harm is well defined 12. Cultural considerations are included 13. Inclusion of emotional environment 14. Cognitive level considered 15. Mentioned physiological response during crisis (“amygdala hijack”) 16. Consistent with CMS and Joint Commission guidelines 17. Video: avoidance and proxemics very well done, slide and pivot 18. The training materials discussed the JSA, which is a unique strength of having a
Minnesota program as opposed to using a commercial package. While this is not specifically addressing a best practice standard, it does represent the Department’s efforts to promote the vision of the JSA.
In addition to the 18 points noted above representing the strengths of the EASE Program, the review also noted some concerns and suggestions for improvement. It is recognized that any addition to the EASE training curriculum would require additional time for the training sessions. There were no materials in the curriculum which seemed extraneous. The suggestions are enumerated below:
1. While the EASE program is generic to the Department, a discussion of why challenging behaviors are more likely among persons with Intellectual or Developmental Disabilities is suggested for disability support providers, including MLB.
2. The content on negotiation strategies should be strengthened and enhanced. The Occupational Safety and Health Administration has produced excellent materials on negotiation as a means for workplace safety (https://www.osha.gov/SLTC/workplaceviolence/otherresources.html). This could include offering and highlighting the choices a person does have.
3. It needs to be more thoroughly stated that the need for physical intervention is a sign that positive supports have broken down and are not effective.
4. In Module 2, page 37 of the EASE workbook, this quote appears: “Better to be judged by twelve than carried by six.” - Booker T. Washington. This quote could easily be misinterpreted and misapplied, thus used as a rationale for using prohibited procedures. This concern was shared with the developer of EASE, who noted that this is discussed further in the training to prevent misunderstandings.
5. An article is included in the EASE materials reviewing aggressive behavior directed towards nurses. The article uses the terms “assailant” and “victim.” That is not a helpful way to present people whom we support and care providers if we wish to present positive means to avoid instances of aggression (p 414).
6. While Positive Behavior Support is mentioned, additional content, specifically focusing on instructional procedures for persons served, is necessary, along with a more thorough connection to positive support and person centered thinking strategies.
7. The show of support strategy, also used in other commercial packages, such as Mandt Training, is presented in the EASE materials. Caution is needed, as for some people who are potentially aggressive, this specifically elicits aggression.
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8. Four specific concerns were noted during review of the videos presenting physical intervention strategies: (1) There is a risk of hyper- extending the person's wrist in the arm control technique which appears on 1:55-2:07 in the video entitled “Release From Front Choke 4.” (2) There is a risk of asphyxiation in a move in which the person is wrapped up. The concern is brought up, but not with enough gravity. This appears in the video “Escort Option 6.” (3) A deflecting move to strike at the abdomen could be misconstrued as a clubbing move to hit the person as a strike rather than just deflecting. This appears in the video entitled “Third Block Strategy.” (4) In the instructional video for “The Base,” content should emphasize thumbs being tucked back to prevent thumbs catching when bringing hands up for protecting one’s face. This concern was shared with the developer of EASE, who noted that this is discussed further in the training.
Each of these was discussed with the developers of EASE, who noted that during the actual training, these are verbally discussed and practiced. The trainer noted that these concerns are addressed verbally in the training sessions and are individualized as needed. The training has not been observed directly, and this is not verified. It is recommended that the videos be revised to present these cautions in the videos as well as the actual training sessions.
Positive Behavioral Supports (PBS) Training description provided by MLB. Participants use activities, didactic, demonstrations and eight hours of on-the-job training practicum to acquire fundamentals of Positive Behavior Supports. Participants will describe the three pillars of Positive Behavior Supports: Applied Behavior Analysis, Person Centered Practices and Normalization/Inclusion (social role validation). Distinguish differences between positive/negative reinforcement and positive/negative punishment; list contraindications of punishment; describe how function-based treatment in PBS fits with other treatment models; conduct a simple functional behavior assessment (FBA); link FBA data to intervention approaches; demonstrate rapport-building and interaction skills; and collect objective data on behavior.
The Positive Behavior Supports training includes materials developed by the former Internal Reviewer, who was the original developer, and other Department behavioral health practitioners, as well as material from the current trainer, a BCBA.
Source of Information used in PBS Training review: Training curricula and ancillary materials used and discussion with current and former trainers. Please note that this training was not attended in person by the Internal Reviewer, so this report cannot assess fidelity of training implementation. There is Product Evidence, but not Observation Evidence.
The standards used for comparison to best practice included guidelines utilized as
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industry standards developed by: 1. The Behavior Analyst Certification Board, a professional association in behavior analysis (BACB.com) 2. Certification standards utilized by NADD: Advancing Mental Wellness for People with Intellectual or Developmental Disabilities (www.thenadd.org) 3. The College of Direct Supports, an computer-based training platform for direct support professionals working with people who have Intellectual or Developmental Disabilities (http://directcourseonline.com/direct-support/).
This training was thoroughly reviewed and found to be consistent with the standards used as reference materials in the following specific areas:
1. Very strong elements of person-centered thinking 2. Very strong explanation of reasons for challenging behavior 3. Inclusion of information regarding types of intervention strategies 4. Description of behavior analysis in plain language 5. Review of data collection and use 6. Explanation of how problem behaviors might make sense to the person 7. Review of the role that the context and environment contribute to problem
behavior 8. Definition of the team approach to responding to problem behaviors 9. Significant skill building focus for the person 10. The training materials discussed the Minnesota Positive Supports Rule. While
this is not specifically addressing a best practice standard, it does represent the Department’s efforts to promote the vision of the JSA.
It must be recognized that the materials presented had to be prioritized given the small amount of time and the desired outcomes of the training for direct care providers. Providing information is critical in the endeavor to adopt and utilize positive supports for persons with challenging behavior. Simply following established behavior support plans without understanding the underlying logic will not equip care providers to adapt their supports to ever-changing patterns of behavior. In this training, the information included important philosophies in an understandable, engaging manner. Plain language is used to teach complex concepts. It is important to note that competency is assessed via print and verbal quizzes.
The review noted that there are areas in which additional material should be added to be consistent with best practices.
1. Setting events were not covered, and it is recommended that they are added. 2. Given the high prevalence of mental health disorders among persons served by
MLB, content on mental health should be added. Both these suggestions have been shared with the current trainer.
This training is consistent with the vision of the Jensen Settlement Agreement and the Comprehensive Plan of Action.
Person Centered Training (PCT)
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Training Description provided by MLB. Two-day workshop designed by Michael Smull. All trainers certified by the Learning Community for Person Centered Practices. 12-hour interactive training where participants acquire person-centered thinking skills such as: the importance of being listened to and the effects of having no positive control, the role of daily rituals and routines, what is important ‘to’ and important ‘for,’ respectfully addressing significant issues of health or safety while supporting choice, how to develop goals that help people get more of what is important ‘to’ them while addressing the important ‘for.’ Individualized specific training reviews the specific strategies to implement an individual’s person centered plan.
Source of Materials Used in the Review of PCT Training: Attendance of the PCT training by the Internal Reviewer and review of training materials. Please note that this training was reviewed in person, so this report can assess fidelity of training implementation. There is Product Evidence and Observation Evidence.
The standards used in this assessment were: 1. The Person Centered Plan Scoring and Checklist Tool initially developed by Kansas University (described in detail in the section of this report detailing Evaluation Tools) 2. Reference materials from The Learning Community for Person Centered Practices (www.learningcommunity.us) 3. Guidance from the Centers for Medicare and Medicaid Support regarding person centered planning.
The training covered all elements of these standards. Training currently given under imprimatur of The Learning Community. Training content is set and required by The Learning Community. Training is provided by the Department and University of Minnesota staff and faculty. There is a high degree of ongoing supervision via mentor training from the Department (the prior Internal Reviewer), and University of Minnesota mentor trainers.
This training utilized the official curriculum from The Learning Community, and met all best practice standards. The process for becoming a trainer is rigorous, and is noted below:
1. Orientation 2. Mentor trainer Observation 3. Mentor guides study 4. Mentor observes first training and assures fidelity 5. Second demonstration, mentor observes and assures fidelity
To maintain certification, trainers must complete three training sessions per year, and must continue to use the official curriculum. Any update to curriculum requires adoption by all trainers. There are no suggestions for improvement made as a result of this review.
This training is consistent with the vision of the JSA and the CPA. As noted with Positive Behavior Supports, following established support plans without understanding
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the underlying logic will not equip care providers to participate in the team learning processes which are an assumption of person centered thinking and planning. In this training, the information included important philosophies in an understandable, engaging manner. Plain language is used to teach complex concepts.
Crisis Intervention/Post Crisis Intervention and Assessment Training description provided by MLB. A classroom training describing the purpose, review framework, process, format and follow up format of a critical action review. How to establish an environment to promote open discussion. Discuss crisis vs emergency; discuss what we can do to support people and prevent unwanted event/emergency/crisis; describe what we do following an incident; how we support everyone involved; and paperwork, individual support, and staff supports.
This training includes materials originally developed by Department behavioral health practitioners as well as the current trainers.
Source of Materials Used in the Review of Crisis Intervention/Post Crisis Intervention Training: The materials used in this review included training materials and information from the current trainers. Please note that this training was not attended in person by the Internal Reviewer, so this report cannot assess fidelity of training implementation. There is Product Evidence, but not Observation Evidence.
The standards used for comparison to best practice included guidelines utilized as industry standards developed by: Accreditation/Certification standards utilized by NADD: Advancing Mental Wellness for People with Intellectual or Developmental Disabilities (www.thenadd.org).
This thorough review of the materials resulted in the identification of numerous areas in which the training sessions were consistent with the best practice standards and these are listed below:
1. Solid content leading to understanding of some of the life circumstances of people we support
2. Strategies to prevent unwanted event/emergency/crisis 3. Highlight factors in the environment that lead to or reduce the likelihood of crisis 4. Rapport building 5. Connection to person-centered thinking 6. Focus on Positive Behavior Support 7. Strategies to support recovery post crisis
The review also resulted in suggestions to improve the training. 1. Mental wellness support strategies should be added 2. The term wellness appears in the training and should be defined 3. A competency exam should be added, as required in the CPA
These suggestions have been shared with the current trainers, who made all of the recommended revisions as of May 23, 2016. With the addition of a competency-based assessment, this training is now consistent with the vision of the JSA and CPA. Offering
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care providers further information about the nature of crisis and how to respond after a crisis is a necessary element of supporting persons with challenging behaviors.
Medically Monitored Restraint (MMR) Training Description provided by MLB. Review the medical monitoring of an individual during an emergency use of manual restraint per the Jensen Settlement. Learning to recognize physical aspects as the result of an EUMR. Review of EUMR processes and documentation, and vital signs.
Source of Materials Used in the Review of MMR Training: The materials used in this review included training materials and gathering of information from the current trainer. Please note that this training was not attended in person by the Internal Reviewer, so this report cannot assess fidelity of training implementation. There is Product Evidence, but not Observation Evidence.
The standards used in this review included the CMS Guidance to Surveyors for ICF IID -Appendix J, Guidance 483.450(b)(1)(iv)(B) (https://www.cms.gov/Regulations-andGuidance/Guidance/Manuals/Downloads/som107ap j intermcare.pdf) and the Joint Commission Standards on Restraint (www.jointcommission.org).
This thorough review of the materials resulted in the identification of numerous areas in which the training sessions are consistent with best practice standards, and these are listed below:
1. Review of Jensen Settlement Agreement 2. Highlighting of physical concerns 3. Notes the role of trauma and the need for trauma informed care. 4. Review of prohibited procedures 5. Solid and clear information 6. Competency assessment used in form of a quiz
The review process also identified additional materials that are needed for this training to assure greater consistency with best practice standards and more thorough sharing of the best practices with trainees:
1. It is unclear from the training how vital signs are to be monitored. 2. While it is laudable that trauma-informed care is discussed, it is necessary to add
potential ameliorating strategies. 3. The need to maintain dignity and rights is mentioned, but no strategies are listed. The trainer noted that these are covered verbally in the training sessions and are individualized as needed. The training has not been observed directly, and this is not verified. With the addition of written content related to the three recommendations given above, this training would represent the applicable best practices and will be substantially consistent with the standards used as review.
Standardization of Training across Divisions The Department will utilize an Independent Subject Matter Expert for this effort. The Internal Reviewer has notified the Quality Assurance Leadership Team that this matter
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will be investigated. Considerations in the use of a standardized training across Department divisions are as follows: (a) establishing the parameters of the Department’s Divisions, (b) identifying training practices in evaluation across each of the Divisions, (c) ascertaining the degree of overlap in these training practices, and (d) determination of feasibility of a more standardized approach to training.
JOQACO will follow up with MLB on the recommendations of the Internal Reviewer regarding training. JOQACO will obtain a plan of action to incorporate the recommendations no later than June 10, 2016, with anticipated implementation no later than July 15, 2016. The Executive Director of JOQACO is also currently participating in a business improvement project focused on increasing MLB training compliance with an expected completion date in July 2016.
Community Support Services (ECs 67-72) With respect to Community Support Services (ECs 67-72), the Court sought information
“detailing outcomes related to these ECs.” (Doc. No. 551 at 13.) The Court recommended that the Department use the Internal Reviewer to “verify the results reported in the Gap Report,” and to “develop a substantive performance report to elaborate on [Community Support Services] and crisis interventions.” (Id.) In particular, the Court sought information regarding “the services provided to the seventy-five individuals targeted for long-term monitoring,” and “the staffing and administration of the Single Point of Entry project.” (Id. at 14.) The Internal Reviewer reports:
Verification of CSS Numbers of Persons Served An attempt was made to verify the total numbers of persons receiving supports from CSS and the number of persons in Long Term Monitoring, utilizing the same time periods reported in the Ninth Compliance Update Report. The attempt for verification was made via queries to the CSS data base, and was performed by a different data analyst than the analyst who ran the queries for the prior report. The Internal Reviewer supervised the query creation. Four queries were done for each time period in question: (1) client served closed during the time period, (2) client served and opened during the time period, (3) opened prior to the time period and closed after the time period, and (4) opened prior to the time period and still open at end of the time period. In the drawing of data for the verification report, visual inspection of the data base revealed that one person had an inaccurate start date due to miscoding by the CSS clinician. This error was corrected in the CSS data base. The results are presented in the following tables.
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Total Number Served
4/25/2015-6/30/2015 7/1/2015-8/31/2015 9/1/2015-9/30/2015

Ninth Compliance Update Report 307 301 295

Verification Query 304 295 281

Long Term Monitoring Number Served

Ninth Compliance Update Report

4/25/2015-6/30/2015*

61

7/1/2015-8/31/2015

62

9/1/2015-9/30/2015

65

Verification Query 66 64 60

*This time period was chosen at random and an attempt to verify the number here was made using a secondary source of information. A spreadsheet of all persons in Long Term Monitoring at that time was viewed and individual lines were counted following visual inspection. A total of 66 persons were identified in the Long Term Monitoring group during this time period, which was equal to the figure noted in the Verification Report but not the Ninth Compliance Update Report.
Determination of Verification 1. The effort to verify the reported number of persons identified in the Ninth Compliance Update Report was not successful, as the Verification Query produced a different number of persons. The total numbers served are within a 95% margin for all three time periods. The Long Term Monitoring numbers served are not within a 95% margin in any of the three time periods. The statistic of 95% was selected as it is a common measure of statistical confidence intervals. Recommendations are presented in the Overall Summary of CSS. The CSS data analyst stated that the most likely reason for the lack of a match between the Ninth Compliance Update Report and the Verification Query is that the information reported in the Ninth Compliance Update Report included repetitions in the data and coding errors which have since been corrected, as described below. 2. The attempt to verify one of the entries in the table above using a secondary source of information was successful in verifying the numbers of persons noted in the Verification Query, but as such differed from the number in the Ninth Compliance Update Report. The first attempt to use the secondary source of information did not produce a match with the Verification Query, so CSS staff reviewed the spreadsheet listing all persons receiving Long term Monitoring and the databases, and noted seven erroneous records. The nature of the errors was typically miscoding. These were corrected, resulting in a match with the number served in Long Term Monitoring 4/25/2015-6/30/2015, and serving as a source of verification that the Verification Query was accurate post-corrections.
CSS and Crisis Intervention Substantive Performance Report The Substantive Performance Report included the following areas for consideration:
1. CSS Quality and Effectiveness 2. CSS Long Term Monitoring Activities

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3. CSS Business Case Analysis 4. Overall Summary of CSS Substantive Performance Review

In addition to CSS, the Department offers Crisis Intervention through the Successful Life Project, or SLP. As SLP was the subject of extensive Court Monitor review in the Court’s March 18, 2016 Order, this report focuses on CSS.

CSS Quality and Effectiveness CSS completes quarterly evaluations of all technical assistance recipients. In order to evaluate the effectiveness of CSS technical assistance efforts, these surveys were utilized as a source of information, considering the two quarters covered by the Ninth Compliance Update Report: April – Sept 2015. The table below summarizes selected measures in the results of these surveys. Selection of variables was made via consideration of relevance and general professional practices in measuring customer satisfaction (e.g., Qualtrics, Survey Monkey).

Query and (respondent) CSS responded in a timely manner (Care provider) I am satisfied with the services received (Care provider) Requests for services and/or expected outcomes were achieved (Care provider) CSS intervention helped prevent a loss of placement, prevented hospitalization, or prevented placement in a more restrictive setting (Care provider) CSS helped the person’s support network understand the person’s needs (Legal guardians) CSS staff understood what was important to me (Persons) The class was valuable/useful (Training attendees)

Apr-June, 2015 93% from 14 surveys
93% from 14 surveys

July – Sept 2015 95% from 22 surveys
95% from 22 surveys

93% from 14 surveys 95% from 22 surveys

86% from 14 surveys 82% from 22 surveys

100% from 5 surveys 92% from 12 surveys 100% from 11 surveys 90% from 10 surveys 99% from 168 surveys 99% from 162 surveys

The survey results from a multiplicity of sources regarding the scope of CSS activities indicate a high degree of satisfaction with CSS. The response to the question regarding

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loss of placement could reflect CSS not providing preventative support earlier in the emerging crisis development. As noted in the Business Case Analysis for CSS (see below), a concern of CSS staff is the fact that CSS often responds when a crisis has already begun. This is also true if referrals come to CSS from the Single Point of Entry: people come to the Single Point of Entry when problems have already begun. Proactive technical assistance before or at the very inception of challenging behavior could prevent some of the difficulties that result in threatened or actual loss of placement. Recommendations are made in the CSS Performance Report Summary regarding potential use of precision business intelligence to increase the operational efficiency of CSS, potentially creating additional time in which CSS could engage in preventative consultation prior to the occurrence of behavioral crises.

CSS Long Term Monitoring Activities For a review of the activities in which CSS engages with the Long-term Monitoring group, a random sample of five persons receiving this support were selected, and the quarterly reports for activities were reviewed to identify CSS activities. Tables below present the findings arrayed by person.

Type of Contact
Phone In Person Attend Team Meeting Direct Work with Individual Facilitate team communication and communication with family

B1

D2

A1

A2

G1

x

x

x

x

x

x

x

x

x

x

x

x

x

x

x

x

x

x

x

x

Summary: In the random sample drawn, CSS staff interact with the persons and their team utilizing a variety of methods. In-person contact was used for all five persons. Of importance to note is that in their service model, CSS will work directly with individuals. In this sample, activities included teaching coping skills, assisting with problem solving, and in one case, accompanying a person in career exploration and career development activities. This represents a significant difference from the technical assistance model of the Successful Life Project.

Technical Assistance Activities

B1

D2

A1

A2

G1

Review data including BIRFs

x

x

x

x

Assist team in problem solving

x

x

x

x

x

Identify specific positive supports

x

x

x

Assist in identifying more supportive

x

environments

Follow up to EUMRs

x

x

Complete FBA

x

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File reviews Develop formal support plans Identification of other supports Promote community employment

x

x

x

x

x

x

x

x

x

As demonstrated in this table, CSS staff engage in a wide variety of activities with LongTerm Monitoring group. CSS staff essentially function as outside team members, engaging in activities that are identified by CSS or the team as necessary in improving supports for people in Long-term Monitoring. Some of these activities, such as identifying other supports, fall into more of a case management role, while others, such as completion of Functional Behavioral Assessments, are purely technical functions. A consideration in the review of these activities is whether CSS is duplicating efforts that should typically be performed by the care providers, and the answer is yes, but CSS identifies these as tasks which the existing teams have trouble completing or lack the skill to complete (source of information: interviews with key informants in Business Case Analysis and CSS outcome documentation). The flexibility of the activities is a strength of the CSS model of technical assistance. As a case in point, the activities around promotion of community employment and career development for A1 played a critical role in her acquisition of volunteer positions and identification of career goals. CSS staff functioned as developers of technical documents and assisted in resolving questions such as determining why significant behavioral events occurred and reviewing rights issues such as compliance with medically-required diets. The specific detail of how involved CSS staff are varies by individual case. Please note that there is less activity with G1, as this individual was being transitioned from one CSS staff person to another for reasons of office proximity. The case notes for this individual reflect significant activity to assure continuity of supports, but certainly a smaller variety of activities occurred.

CSS Business Case Analysis As part of the substantive performance review of CSS, the Internal Reviewer performed a Business Case Analysis. This is an evaluation of business practices using the framework proposed in the book “Managing in a Time of Great Change” by Peter Drucker (Harvard Business Press, 2009). This specific model was adopted due to the fact that the support systems for people with Intellectual or Developmental Disabilities in the State of Minnesota in undergoing significant and rapid changes, particularly in the area of adoption of positive supports and person-centered thinking, both of which are central to CSS operations. The business case analysis is organized around a series of questions, which appear as follows. Four key informants were interviewed to assess the business case for CSS: the CSS administrator, a CSS team leader, a CSS regional manager, and a CSS clinician. Verification of representativeness utilized CSS’s outcomes database, completed by all CSS staff, and review of supporting material and documentation. Comments kept in their entirety from informants are noted with quotation marks.

1. What is the desired outcome of the business unit? There was significant agreement across all four key informants. The desired outcome of CSS is to support individuals and their support networks via positive programming and person-centered approaches. This involves efforts to increase the capacity of the

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stakeholders and provide positive outcomes for individuals with clinical complexity.
2. What has changed about the industry? All person interviewed noted significant changes in the industry, which are directly relevant to CSS operations. Elements are listed below:
A. Change in the Department’s regulations regarding behavior support. These include the Positive Supports Rule, the Olmstead Plan, and the JSA.
B. The labor force in Minnesota has become more limited due to low unemployment and job opportunities paying similar wages but seen as being “easier.”
C. Provider perception that with changes in allowable behavior interventions, they no longer can support the high acuity population.
D. County-based social services seem overwhelmed. E. Increased demands for CSS to respond to crises. This allows for less time spent
in prevention. F. Increased regulatory and monitoring demands on CSS. G. Greater demand for CSS to develop more formal behavior support plans and
functional behavior assessments. These are more time-intensive than providing simpler support suggestions, which could be sufficient if more preventative activities were possible prior to crises emerging.
3. What is changing about the industry? All informants noted significant changes in supports for persons with Intellectual or Developmental Disabilities in Minnesota. These changes included:
A. Minnesota’s Olmstead Plan is driving significant change in vision on community inclusion for all people with disabilities, in turn increasing pressure on CSS to broaden its service scope. CSS now includes efforts to focus on individuals with brain injuries and support for 24/7 mobile crisis teams. This expansion provides more integrated support for people with Intellectual or Developmental Disabilities and mental health concerns, but also increases the CSS workload.
B. There is a significant degree of overlap among services provided by CSS, SLP, and (to a lesser degree) Community Capacity Building. All three Department efforts may provide similar types of services, and as such there can be confusion among technical assistance providers and the community about the role of each group. There can be some people who are on a wait list for technical assistance, and others who have multiple Department clinicians involved.
C. Increased emphasis on staff credentialing. Concern was expressed regarding hiring staff with better credentials, such as having board certification as a behavior analyst, but less experience and clinical skill with people who have IDD.
D. Falling availability of crisis beds. E. Some providers are closing their doors, though others are opening. F. The Positive Supports Rule is creating greater interest in positive supports and
person-centered thinking. Support providers are asking for more FBAs. G. Technology is slowly making its way into disability supports.
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H. Many leaders in CSS and in the field of disability supports are retiring.
4. What are critical success factors? What is lacking?
A. Ability to teach skills to providers, people with disabilities, and families. B. Effective and flexible technical assistance strategies. C. Use of a variety of intervention methods. D. Coordination across all parties in a person’s life. E. Lacking: “Effective, efficient information management technology resources—
including an integrated electronic service record (ideally integrated across [the Department]) that eliminates current need for duplicate documentation (e.g., in Care Manager and our own project tracking system, which generates billing); mobile devices that enable field staff to more efficiently write notes, view documents, etc. on the road; greater implementation of electronic service records and information sharing across the service system (between collaborating providers, etc.)” F. Lacking: “Provider skill base and staffing. Provider willingness to use positive supports rather than using prior more restrictive strategies. There was a lot of change all at once and people didn’t know how to respond.”
5. Are the goals for the business unit viable with current resources? Informants expressed concerns including:
A. Increased demands placed on CSS have resulted in higher caseloads than what is clinically effective with longer wait times for service delivery from CSS to begin. The desired caseload is seven per person, but many CSS staff have a caseload of twelve or more.
B. CSS has been put into a crisis response mode, and that limits the effective prevention activities.
6. Is the organizational structure and practice based on established or benchmarked best practices?
Yes, CSS utilizes training and technical assistance strategies that are consistent with best practices, with the exception of the excessive focus on crisis services, noted previously. There is effective team functioning within CSS, though that could be expanded in areas in which sharing of strategies across CSS staff working with similar kinds of challenges would be helpful.
7. Do positions have clearly defined responsibilities and goals? Yes, though there is significant variability in the specific practices of what individual team members do, some of which is based on the different skills sets of different CSS workers.
Overall Summary of CSS Substantive Performance Review In a support system which is rapidly changing to adopt best practices in supporting people with Intellectual or Developmental Disabilities who present behavioral challenges, the smooth and effective operation of technical assistance bodies is critical. The positive
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supports rule changed the landscape of how providers could respond to issues of challenging behavior, and in the absence of means for disseminating information and technical assistance, this effort would struggle. The role of CSS is critical in supporting this effort. CSS outcomes are documented by survey and indicate a high degree of customer satisfaction and effectiveness. In-depth analysis of randomly chosen people involved in Long-Term Monitoring efforts document the wide variety of activities CSS staff utilize to provide extra support. A strength of CSS is the flexibility of supports.
The various elements of the Performance Review also note areas for improvement in efficiency. Please note that some of these are outside of CSS’s direct control.
1. Ability to work in a more proactive manner. Time is always better spent with prevention than with crisis management. There may be some technological means for assisting in this, noted below in Suggestion 3. The opportunity to intervene well upstream of a crisis can prevent significant difficulties later. CSS works primarily in a tertiary intervention when considered from a public health model perspective, working directly with people who are experiencing challenge and designing individualized supports. This is the most time-intensive approach. Primary (populationwide) and secondary (intervention package approaches) levels of intervention should be considered.
2. Resolve issues of overlap with the Successful Life Project and Community Capacity Building- Disability Services Division
There is a significant amount of overlap with other bodies providing technical assistance in the area of behavior support, most notably among Jensen class members receiving assistance from CSS and the Successful Life Project. This can result in unnecessary duplication of efforts and time spent with two different clinicians providing assistance, while other people are on a wait list receiving no assistance. This also creates confusion of roles and team process. It is recommended that the Department develop a clear decision rule on how technical assistance providers get assigned.
3. Use of information management systems and data CSS staff note some challenges with use of technology and information. Needing to keep redundant records was noted as a significant burden for CSS staff and causes a resulting lack of efficiency. Efforts to verify numbers of persons served by CSS reported in the Ninth Compliance Update Report was not successful, with differing numbers of persons appearing in a Verification Query (please refer to the appropriate section in this report for further detail). This is a concern and validity of data should be addressed as a high priority. Databases regarding persons served should be visually inspected and compared to secondary sources of information semi-annually. The review completed for purposes of this report resulted in identification of errors in the database and improvements in data accuracy. This process should occur on an ongoing basis and should include both the Long Term Monitoring and Total Number Served databases. It was noted within CSS and other elements of internal reviews that the Department maintains operational business intelligence. However, the Department should investigate a precision business intelligence presence which could sit on top of existing digital records
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systems. In addition to increasing efficiency, there are a number of potential positive outcomes:
A. CSS and other Department operations could look for efficiencies across clinicians, for example, essentially replacing heuristic operations with information-based decision making for the assignment of clinicians and programs.
B. Greater levels of information about specific clinical needs of people could be used to digitally identify small Communities of Practice for clinical staff working in similar situations. This would best be done for time-limited periods to assure sharing of learning and knowledge.
C. Structural information could be leveraged to add further detail on clinical operations and supports, assisting with risk management and caseload coordination. For example, CSS noted a preferred caseload of seven per clinician, though caseloads approach or exceed twelve in some cases. Analyzing workflow can assist in finding process improvements and optimization. For example, can the variety of different interventions and CSS activities be chosen based on information about likely effectiveness rather than clinical heuristics? Some activities with equal likelihood of positive outcome have vastly different time commitments.
D. Given the large numbers of people receiving support from CSS, greater levels of information about specific clinical needs would allow for use of a population health management strategy, looking at broader needs and allowing for larger scale interventions. For example, if it is determined that large numbers of people need stress management intervention, a training or brochure could be developed and only emailed/sent to the people for whom it would be needed. Alternatively, regional training could be offered in the areas where it is most needed.
E. Predictive Analytics for Behavioral Crisis. CSS reports that they are spending more time in crisis response and less time in prevention. Use of clinical analytics to predict which persons are more likely to escalate into crisis can assist in identifying where CSS staff should spend their time. There are a number of risk assessment and prediction tools, including one developed in part by the Internal Reviewer. This can be done in a non-digital manner as well.
Any time any type of precision business intelligence strategy is used, effort to implement and time spent in utilization must be balanced against likely gain. Simple commercial computer programs like Excel are often as effective as expensive proprietary programs while offering greater flexibility. CSS staff would need to see the likely outcomes as being worth their efforts to input information. Data must be clean, accurate, and semantically consistent in order to be useful.
Single Point of Entry The purpose of the Single Point of Entry (SPE) efforts is to manage and coordinate the system of supports response for persons who are nearing behavioral crisis.
Sources of Information Used in This Report: Documentation regarding SPE was utilized
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including description of SPE, flowcharts, and information bulletins; and interviews with SPE staff and stakeholders. The process utilized by SPE is depicted in the following graphic, and will be summarized briefly herein.
1. Persons can come into the SPE process either by phone or by email. Persons also can enter into this system as a result of significant Behavioral Incident Report Forms (tracked by the Disability Services Division) or from the receipt of 245D provider demission/discharge notices.
2. The initial response is to determine eligibility. This is done by Central PreAdmissions, and the primary consideration is the presence of an Intellectual or Developmental Disability. Excluded indicators are listed and exclude single indicators of Chemical Dependency, Dementia, Brain Injury, or sole diagnosis of Mental Illness.
3. If Central Pre-Admission determines a lack of eligibility, an appropriate referral is made to the appropriate State Agency.
4. If eligibility is established, the individual is entered into the Care Manager data management system, and the person’s status is reviewed.
5. Status is reviewed in a daily triage call every weekday morning and Friday afternoons as needed. Participants in the call include administration from the Disability Services Division with administrative, clinical, and resource expertise, three Disability Services Division Navigators, and leadership of CSS and SLP.
The purpose of these daily calls is to manage information regarding the approach to behavioral crisis. As a result of the triage calls, individuals can be identified as needing consultation from technical assistance regarding the behavioral challenges from CSS or SLP, or the identification of alternative residential supports. A key decision to be made in this process is the designation of a lead agency or lead person.
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from DSD, SLP, and CSS. The DSD representatives include Navigators. Please note that the Navigator position is not official at the current point, and no start date to the official status is established, but is likely to follow the list of final recommendations being developed by the Department in the move to Phase 2 of the SPE.
Outcomes of the SPE 1. A large number of persons with Intellectual or Developmental Disabilities and behavioral challenges have received additional tracking and monitoring through SPE. As reported in the Ninth Compliance Update Report, 96 persons have been monitored during that time period. The source of information here is reports generated by SPE detailing number of persons served. 2. SPE has resulted in quicker assignment to support services from CSS as CSS participates in SPE and service referrals are generated directly through this participation. This eliminates a step in the referral process. 3. SPE has expedited individual cases in moving through the service system with specific referrals for service provision generated directly through SPE. This also eliminates a step in the referral process.
Challenges in Administration of the SPE 1. Technology. As noted in the Ninth Compliance Update Report, the technological substrate of SPE is the CareManager system, which still is not operating as planned. Information is often entered into both the CareManager and Avatar databases, despite the fact that when CareManager was purchased, the Department was assured that these two digital systems would be linked. Many of the fields on the data entry interface for CareManager do not apply to current use and cannot be removed at this point. CareManager often is not able to track significant information, such as storing the history of changes in residence. The generation of reports using CareManager can be difficult and time consuming for staff, with resulting inefficiency. The business needs of SPE should drive further development of CareManager. 2. Dedicated work space for Central Pre-Admissions as related to SPE efforts was reported to not suit the specific business needs. 3. The decision of when to add a person to the SPE versus utilizing other existing processes to add support via other Department programs continues to represent a challenge. Central Pre-Admissions reports difficulties in identifying solid decision rules for when a person should be entered into the SPE. 4. Staffing of SPE. Significant expertise and commitment of time is involved in the daily calls, which results in opportunity cost for the Department, in that highly skilled behavioral professionals and administrators are not engaged in other activities which could build capacity to provide enhanced services for persons with Intellectual or Developmental Disabilities who engage in challenging behavior. 5. Identification of Services for Persons Followed by SPE. While the SPE is able to follow individual cases and identify the need for alternative supports when a person is or can no longer be served by previous care providers, this is incumbent on those additional services being, in fact, available. Triage efforts cannot always
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be based on what a person needs, and may be driven by what “open beds” are available. This is a particular need when a person is committed to the Commissioner. 6. Level of Awareness in the community about SPE. Existing means of disseminating information from the Department were used to inform the community about the SPE process. Interviews of County Administrators and Case Managers regarding SPE noted a lack of detailed information about SPE activities and processes, though all interviewed were aware of SPE and reported that they could find the information about how to make referrals.
Interface of SPE and Minnesota Life Bridge (MLB): When SPE results in a referral to MLB, the information is received by the MLB Admission/Transition Coordinator who determines if information is missing and if so, tries to track it down to determine eligibility. MLB clinical staff, including a BCBA, and an RN, can ask for further information, and often do so, but this is only successful when prior care providers are responsive to these requests.
Oversight from the Quality Assurance Committee: The Internal Reviewer presented a brief summary of SPE and the Court request to review SPE to the Quality Assurance Leadership Team on May 18, 2016. The Quality Assurance Leadership Team will thoroughly review the findings of this report regarding the SPE at the June 15, 2016 meeting and will consider its role in oversight, system-wide challenges, and providing input into recommendations to improve any impediments to compliance with related ECs.
Verification of Findings: Correspondence between multiple sources of information including interview and document reviews, including description of SPE, flowcharts, and information bulletins, served as the means of verification of findings.
The total numbers of persons receiving supports from CSS and the number of persons in Long Term Monitoring were verified by the program area at the time of the Ninth Compliance Update Report; however, they were unable to be recreated at a later date by the Internal Reviewer. As noted, data collection and database maintenance has been an area of challenge for CSS. JOQACO will follow up with CSS on the recommendations of the Internal Reviewer regarding database maintenance. JOQACO will obtain a plan of action to incorporate these recommendations no later than June 10, 2016, with anticipated implementation no later than July 15, 2016.
As detailed in the Ninth Compliance Update Report and other sections of this report, the focus of JOQACO has shifted from data collection and reporting to compliance and measurement, including verification activities. With this new focus, JOQACO will play a greater role in reviewing and verifying the information contained in future reports. JOQACO will use a standard, documented process to pull data so that it can be recreated at a later date.
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JOQACO will also explore with the Internal Reviewer the feasibility of the introduction of a precision business intelligence presence.
With respect to the recommendations of the Internal Reviewer regarding overlap of crisis intervention services, JOQACO will follow up with CSS. JOQACO will obtain a plan of action to incorporate the recommendations no later than June 10, 2016, with anticipated implementation no later than July 15, 2016.
With respect to the Internal Reviewer’s comments regarding CSS’s ability to work in a more proactive manner, the Department agrees that time is always better spent on prevention rather than crisis management. As noted in other sections of this report, the Department does utilize services to avoid crisis and strives to employ the most effective and efficient delivery methods available to provide the right service at the right time and place. JOQACO will explore with the Internal Reviewer the primary and secondary intervention approaches mentioned in his report as potential improvements to CSS and SPE services.
Staff Qualifications (ECs 78, 89)
With respect to Staff Qualifications (ECs 78, 89), the Court sought aid in evaluating whether these ECs are being met. The Court proposed that the Department use the Internal Reviewer to conduct this investigation, and directed that the investigation “be based on more than [the Department’s] own assertions.” (Doc. No. 551 at 15.)
The Internal Reviewer reports:
This section includes content regarding two areas of staff qualification: 1. CSS qualification for Behavior Analysts (EC 78) 2. Experience requirements for Minnesota Life Bridge staff (EC 89)
EC 78: CSS Qualification for Behavior Analyst EC 78 requires that “staff conducting the Functional Behavioral Assessment or writing or reviewing Behavior Plans shall do so under the supervision of a Behavior Analyst who has the requisite background, experience, and credentials recognized by national associations such as the Association of Professional Behavior Analysts.”
For CSS, there are two staff who perform this supervisory function. The first staff person is a credentialed Behavior Analyst with a BCBA, a nationally recognized credential. The Internal Reviewer verified this by checking the Behavior Analyst Certification Board (BABC)’s online directory of credentialed behavior analysts. The verification was performed May 3, 2016. This meets the EC 78 standard.
The second person acting as a supervisor is a Licensed Psychologist at a Master’s Level. The Internal Reviewer verified this via inspection of the licensing document. As psychology is licensed at a state, and not a national, level this staff person does not have
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credentials issued by a national association. EC 78 specifically excludes Behavior Analysts who have a psychology license but no other national certification. Due to the broader level of knowledge in most psychology training programs, professional acceptance of psychology licenses as a higher level of education than BCBAs is common, and psychology certifications have a broader acceptance for third party service payment. This staff person has applied for the credential of National Association of Dual Diagnosis Clinical Credential (NADD-CC), an internationally-recognized, competencybased credential. That credentialing effort is in progress and has not yet been conferred. The Internal Reviewer has verified with NADD that this staff person does have all materials in to NADD, and is awaiting examination, which is scheduled for May 25, 2016. When NADD-CC is conferred, this staff person will meet the EC 78 standard.
Similar MLB Qualifications: While not specifically required in the Court’s Order, the Internal Reviewer also verified that the Behavior Analyst 3 for Minnesota Life Bridge, does have the credential of BCBA as well. This was verified by checking BABC’s online directory of credentialed behavior analysts. The verification was performed May 3, 2016.
EC 89: MLB Experience Requirements for New Hires or Transfer EC 89 requires that “Staff hired for new positions as well as to fill vacancies, will only be staff who have experience in community based, crisis, behavioral and person-centered services and whose qualifications are consistent with the Settlement Agreement and currently accepted professional standards.”
There were seven new hires into MLB during the reporting period. The Internal Reviewer inspected their resumes and determined that they had the requisite prior experience and were in compliance with EC 89. Each had in excess of one year of prior work experience. The Internal Reviewer verified that the prior positions met EC 89 requirements.
There were five transfers from other Department sites where they were providing direct supports to an MLB site during the reporting period. The Internal Reviewer verified that the prior experience was of sufficient duration to be in compliance with EC 89. Each had in excess of one year of prior work experience. The Internal Reviewer verified that the prior positions met EC 89 requirements.
Evaluation Tools (See ECs 47-52, 98)
With respect to Evaluation Tools (see ECs 47-52, 98), the Court directed the Department to “compile, verify, and report on the results of the assessments conducted with [the] evaluation tools” discussed in the Ninth Compliance Update Report. (Doc. No. 551 at 16.) The Court further directed the Department to “investigate whether a uniform evaluation tool can be utilized to evaluate individual outcomes across [the Department’s] service spectrum.” (Id.) The Court recommended that the Department use the Internal Reviewer to conduct this investigation. (Id.)
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The Internal Reviewer reports:
This section includes content regarding two Evaluation Tools: 1. Positive Behavior Support Comprehensive Evaluation Tool (PBS CET) 2. Person Centered Plan Report Scoring Criteria and Checklist

Positive Behavior Support Comprehensive Evaluation Tool (PBS CET) The Positive Behavior Support Comprehensive Evaluation Tool (PBS CET) is a tool used by the Successful Life Project team to guide technical assistance and support for SLP members. The SLP team adapted the PBS CET from the Positive Environment Checklist originally developed by the Rehabilitation Research and Training Center on Positive Behavior Supports and a subsequent revision used in Missouri. The Positive Environment Checklist was widely disseminated on a national basis and was considered a best practice by the research community. The existing PBS CET was developed by the Department to evaluate service delivery within the framework of person-centered practices and positive behavior support. Adaptations were made to ensure each item was objectively worded and could lead clearly to recommendations that, when indicated, the SLP team could support the organization to address. The prior Internal Reviewer provided assistance in the development of the PBS CET. The Internal Reviewer looked at the questions in the PBS CET, comparing them to national standards in positive behavior support as developed by the Association for Positive Behavior Support (www.apbs.org), Board Certification in Behavior Analysis (bacb.com), and NADD: Advancing Mental Wellness for Persons with Intellectual or Developmental Disabilities (www.thenadd.org), and saw an excellent correspondence between the PBS CET and existing standards.

The PBS CET is used as part of initial efforts to provide technical assistance and includes 76 questions in 12 categories. Successful Life Project Behavior Analysts complete the PBS CET by reviewing documentation, interview with Care Providers, observation, and direct assessment. Successful Life Project Behavior Analysts work directly with teams of care providers to prioritize and select individual recommendations for follow-up and implementation.

A PBS CET was completed for eight persons during the reporting period for the Ninth Compliance Update Report. The number of recommendations for each person listed in the PBS CET is listed in the table appearing below. Additionally appearing in the table as the last row, is information on the number of recommendations actually implemented by care providers. These data were drawn from Successful Life Project activity tracking documentation completed by each Successful Life Project Behavior Analyst. The PBS CET completed during the reporting period for C1 was not utilized, as C1 changed residences and provider. Successful Life Project did maintain technical assistance throughout the move, and used the Functional Behavior Assessment to guide subsequent technical assistance. As PBS CETs are very specific to location, many of the items no longer applied to the new setting, and the team judged that the Functional Behavior Assessment provided sufficient information.

Physical environment

B1 K1 L1 M1 A1 A3 C1 S2

1 2 1

1 1

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Social setting

3 2 2 1

1

Structure/predictability of

1 2 2

2

routine

Communication

3 2 2 2

1 2

General agency expectations

2 3 2

1

Community access and

4 2 2

1 1 1

involvement

Support of Staff

2 3 1 1 111

Response to challenging

2 2 4 1

1 2 1

behavior

Monitoring and decision

4 2 2 2 12

2

making

Person Centered Planning 3 1 2 1

2 2

Additional supports

2 2 2 2 1

1 2

Management

1 2 2 2 1111

Recommendations used

3 1 5 3 2 4 NA 1

Verification of PBS CET results: Two PBS CETs were chosen at random using a random number generator, K1 and B1 (presented as first two columns). The Internal Reviewer conducted a thorough review of other documents for these two individuals, including Functional Behavior Assessments, Support Plans, Meeting Notes, and Case Notes looking for consistency with the items identified as suggestions in the PBS CETs. The question was whether the items noted in the PBS CET were also noted in other supporting documents. Findings for these two individuals suggested a very high degree of overlap, thus providing a source of verification for the validity of the PBS CET.

It is notable that only a fraction of the recommendations were implemented for each person during the reporting period. The PBS CET is intended to provide a menu of possible interventions, and individual teams select the interventions which they implement. It is typically not advisable to implement too many changes in support simultaneously, although the outcome of positive supports should be a comprehensive plan addressing lifestyle, instructional, and support elements. A potential suggestion is to present PBS CET recommendations in a staged manner, allowing teams and clinicians the flexibility to select areas of highest importance initially.

Please note that the PBS CET has been renamed the Positive Behavior Support System Evaluation Tool (PBS SET) since the completion of the Ninth Compliance Update Report.

Person Centered Plan Report Scoring Criteria and Checklist The Department uses a review tool to assess the quality of transition plans for persons transitioning from Minnesota Life Bridge. The Person Centered Plan Report Scoring Criteria and Checklist was modified from a tool developed at Kansas University, which identified best practices in Person Centered Planning. The Kansas University tool was widely disseminated and is considered an industry standard. This was modified by the

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Department and faculty from the University of Minnesota to provide greater levels of specificity in regards to practices and terminology specific to Minnesota. The tool includes 30 questions regarding the quality of the Person Centered Plan and three questions for Follow Up; each question is scored on a three point scale, 0-2, with 0 being no mention of the item, 1 being some information provided, and 2 being thorough description and source of data noted. The Follow Up items are based upon actual utilization and team process. There is very little overlap in content area between this tool and the PBS CET discussed in the prior section. They focus on very different areas and are used for different purposes, although the PBS CET does include one section which asks whether Person Centered Planning is being used or not. That section of the PBS CET does not present a means for evaluation of the quality of those plans. The Ninth Compliance Update Report noted that three transition plans were completed during the reporting period, and these had been scored using the Person Centered Plan Report Scoring Criteria and Checklist, with findings of 94%, 95%, and 94%.
Results of the Assessment Tool Use Use of the Person Centered Plan Report Scoring Criteria and Checklist to judge quality of the person centeredness of the transition plans indicates that the transition plans developed by the Department reflect many of the best practices of Person Centered Planning. The areas in which one or more of the three transition plans did not receive full scores per the review performed by the Internal Reviewer were as follows:
1. Brief story or history of the person’s life is provided (score of 1) 2. A global statement of the person’s dream is made (score of 1) 3. Work/school/retirement activities the person wants to engage in are described
(score of 1) 4. Materials, equipment, assistive technology needed to assist the person to achieve
his or her goals are described (score of 0) 5. Process for monitoring the person centered plan is described (score of 1) These findings were shared with Minnesota Life Bridge staff who will consider the potential need to revise the transition plans to either fully address these items or provide a rationale for why the item was not considered (e.g., no assistive technology needed).
Verification: The Internal Reviewer independently scored the transition plans using the Person Centered Plan Report Scoring Criteria and Checklist and did an item-by-item review to verify the findings of the prior desk audits. The Person Centered Plan Report Scoring Criteria and Checklist includes three Follow-up items regarding subsequent use of the assessment tool in service provision. These were not scored, as they are outside the scope of a desk audit of the documents.
D2: 90% inter-rater reliability. All three disagreements involved the prior reviewer scoring a 2, and the Internal Reviewer scoring a 1. S3: 94% inter-rater reliability. Both disagreements involved the prior reviewer scoring a 2, and the Internal Reviewer scoring a 1. S1: 94% inter-rater reliability. Both disagreements involved the prior reviewer scoring a 2, and the Internal Reviewer scoring a 1.
If scoring inter-rater reliability was scored as dichotomous (i.e., present or not present,
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collapsing 1 and 2 into a single score), inter-rater reliability would have been 100%. These are professionally acceptable levels of inter-rater reliability, and serve as verification of the initial scoring.
Use of a uniform evaluation tool to evaluate individual outcomes across [the Department’s] service spectrum
The Department will utilize an Independent Subject Matter Expert for this effort. The Internal Reviewer has notified the Quality Assurance Leadership Team that this matter will be investigated. Considerations in the use of a uniform evaluation tool are as follows: (a) establishing the parameters of the Department’s service spectrum, (b) identifying current practices in evaluation across each of the service areas, (c) determining informational needs from the different evaluative practices, (d) ascertaining the degree of overlap in these information needs across the service spectrum, and (e) determination of feasibility of a uniform evaluation tool.
While the ECs examined here are about evaluation tools used to review the quality of plans developed in the provision of services to persons with disabilities, the Court’s March 18, 2016 Order seems to seek information regarding a more direct measure – are individuals’ lives being improved by the Department’s efforts? The Department is currently involved in multiple survey development projects and data collection improvements that, when complete, should render data to that point. In the interim, the Department has collected a few examples of results of services for the Court’s consideration:
One individual who had struggled for years with daily multiple aggressions towards others, self, property and the community began to embrace their Person Centered Plan approximately three years ago. As of now, the person has been aggression-free for over two years and is proud of this accomplishment. For the first time, they have non-paid people in their life. They are an active member at their church, participate in social groups, and even shared their life story with community peers. They have been on vacation trips without MSOCS staff. They are a role model and mentor to their housemates. They are an active participant in MSOCS monthly activities, helping to prepare and support other peers during the activities. They are known in the community and greeted by name when out and about. They coordinate their own team meetings, plan the location, invite people and conduct the gatherings. They have an email account and are included in all email communications with their team. This year, their Jarvis order was discontinued as they have been medication-compliant and target behavior-free, and the court found no reason to continue the order.
Another individual had recently moved to a new home from MLB and was getting acclimated to living with a new housemate. One day, the housemate became upset, and the person got caught up in the episode. The techniques the staff were trying to address the situation were not effective. The person said to the housemate and staff, “Why don’t we do ‘what’s working and not working’?” calling on the person-centered thinking skill they had learned at MLB. This framework for the discussion generated a solution that worked, the situation was deescalated, and the person was proud of how they helped their housemate in a time of need.
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A third individual had been in corporate foster care with a provider who was certain that they had schizophrenia. Staff reported that the person was hearing voices and constantly fighting with roommates and was in danger of losing the placement. The person also was in a vocational program where the main work room was crowded and noisy. After completing an evaluation, the SLP Behavior Analyst uncovered that the person, although diagnosed with major hearing loss, had become expert at reading lips and would often misperceive that they were being attacked. Additionally, the person reported that the noise in the workroom at the vocational placement was agitating them, and they were experiencing the same issues of misreading a situation, taking things personally, and getting into altercations with peers and staff. The SLP Behavior Analyst learned of a program designed especially for individuals with hearing loss. The person toured the house and became excited to move to the new program. The person moved in January 2016 and is thriving. Additionally, this placement is not corporate foster care, rather it is an independent housing option designed to promote independent living skills. The person is currently working a program to move into their own apartment someday. They have also gotten into a vocational program for the deaf and hard of hearing and continue to succeed and learn new job skills.
Response to Court Monitor’s May 11, 2016 Report to the Court
In addition to the verification activities assigned to the Department, the Court’s March 18, 2016, Order also directed the Court Monitor to perform verification regarding the information in the Ninth Compliance Update Report on mobile teams under EC 93 and the Successful Life Project (SLP) under EC 98, as well as evaluate the results of the SLP. The Court Monitor’s Report to the Court (Doc. No. 565), filed on May 11, 2016, is troubling in many respects, including misinformation, unsupported conclusions, and exceeding the scope of the Court’s Order. The Department responds below:
Finding 1: The Gap Report for EC 93 and 98 is not based on DHS internal verification of the underlying source information.
As described in the Ninth Compliance Update Report, on February 9, 2016, the Jensen Implementation Office underwent a shift in focus. Up to this point, the office functioned mainly to coordinate and report efforts to comply with the Jensen Settlement Agreement and the Comprehensive Plan of Action. In that role, the Jensen Implementation Office relied on the program areas and reporters to verify the information provided. As was done with the Ninth Compliance Update Report, reporters accordingly signed affidavits attesting to those efforts. In this way, the Ninth Compliance Update Report is, contrary to the Court Monitor’s conclusion, based on DHS internal verification of the underlying source information.
The recent shift in focus of the office, which accompanies a name change to the Jensen/Olmstead Quality Assurance and Compliance Office (JOQACO), will result in a dual-
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verification process where the office will also verify information provided to it during future reporting periods. This process will provide an overall more robust program of Department internal oversight. Going forward, upon receiving reports from program areas, JOQACO will reverify the information by examining source data. As reported in the 2015 Annual Report (Doc. No. 553-1) filed with the Court on March 31, 2016, the office has already started this practice. JOQACO is also now engaged in a Department-Wide Quality Assurance Plan, expanded Internal Reviewer responsibilities, development of a pool of independent Subject Matter Experts who can be called upon for verification or technical assistance, and increased internal data analysis. These efforts will be detailed in future reports, with particular attention paid to the direction regarding verification included in the Court’s March 18, 2016, Order.
Finding 2: DHS does not provide Mobile Teams as required by EC 93 and, during the Gap Report period, failed to implement planned Mobile Teams with allocated funds.
The Department disagrees with the Court Monitor’s assertion that the Department does not provide mobile support teams as required by EC 93. As stated in the Ninth Compliance Update Report, the Department does provide “mobile teams,” although the Department is not yet augmenting private staff as envisioned in the Department’s Bulletin #14-76-01, Transition of Minnesota Specialty Health System (MSHS) – Cambridge to Minnesota Life Bridge: Admission and Discharge Processes, Transition Planning and Community Mobile Support Services, issued April 29, 2014. (Doc. No. 531 at 61.) In the Ninth Compliance Update Report, the Department listed examples of mobile supports provided by MLB and CSS staff, which comports with the statement in the Bulletin, “The Program...offers mobile support services to serve individuals in their current setting. […] These services will be provided in collaboration with the Community Support Services and other crisis services.”
The Court Monitor does not contend that the Department failed to provide the types of services listed in the Ninth Compliance Update Report; instead, the Court Monitor contends that the form in which these services were provided does not meet the definition of “mobile teams.”2 The Court Monitor does not actually provide the definition against which he is measuring the Department’s compliance with EC 93, and is unable to point to a definition of “mobile teams” anywhere within the JSA, the CPA, Department Bulletin #14-76-01 or this Court’s Orders.

2

In doing so, the Court Monitor exceeds the scope of the duties he was assigned by the

Court’s Order. The Court Monitor was specifically instructed to “verify that efforts reported

with respect to mobile teams are accurate and complete” and to “verify whether the data relied

upon by Defendants with respect to the deployment of mobile teams is reliable and valid.” (Doc.

No. 551 at 20.) Instead of determining whether the Department in fact provided the services it

reported in the Ninth Compliance Update Report or evaluating the validity and reliability of the

data that the Department relied upon, the Court Monitor engages in a lengthy critique of the form

in which services were delivered that was neither requested by the Court’s Order nor warranted

by what the Department reported for EC 93.

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By its plain meaning, “team” simply refers to “a group of people who work together,” or “a number of persons associated together in work or activity.”3 The fact that the Department did not have separate, distinct, defined groups of staff providing mobile supports during the reporting period was acknowledged in the Ninth Compliance Update Report, but this does not mean that the Department failed to provide mobile supports while working in a team environment. The Department provided mobile team supports within the plain meaning of “team” when MLB and/or CSS staff coordinated efforts with each other, as well as with case managers and other external parties, to provide supports to people in their current setting.
The Department also objects to the Court Monitor’s broad and unsupported assertion that “DHS officials agree that the DHS does not provide mobile teams.” The Court Monitor apparently bases this statement on the idea that MLB contemplated hiring dedicated mobile team staff, but has not yet done so. However, the Court Monitor’s assertion is misguided. First, the mere fact that MLB explored an alternative means of providing mobile team services does not negate the services that were provided during the reporting period. Second, the Court Monitor relies on misstated facts and speculative statements. For example, the Court Monitor states, “Despite this go-ahead, MLB has not been permitted to establish mobile teams.” The Court Monitor cites no evidence to support his statement that MLB had a “go-ahead” to proceed beyond the planning stage with hiring the proposed positions. As explained in the Ninth Compliance Update Report, the creation of distinct, separate teams raised legal concerns that were not resolved during the reporting period: “There are also potential legal concerns that the Department needs to explore, including liability within another provider’s site.” (Doc. No. 531 at 61.) The Court Monitor also states, “No documentation has been provided for dropping the mobile team project in the documents or e-mails provided by DHS (DHS represented that it was providing all mobile team information).” But the Department was not asked to and did not represent that it provided all information relating to mobile teams. The Court Monitor requested documents that would verify specific statements in the Ninth Compliance Update Report, which the Department provided.
Additionally, it should be noted that the Court Monitor overstated or misstated various aspects of the report of Manfred Tatzmann, Report on DSD Crisis Improvement Project (2015). For example, the Court Monitor stated, “During the Gap Report period, DHS commissioned a substantial analysis of the crisis it was facing.” (Emphasis added.) But there is no indication that the Tatzmann report was commissioned in response to a “crisis” in the Department; instead, the report states that the author was contracted “to conduct research and gather data to identify innovative approaches for creating physical capacity to serve the immediate crisis needs and ongoing long-term needs of individuals in the target population . . . .” Id. at 4 (emphasis added). The author also noted that this report was “not intended to be a thorough analysis of DHS’s community crisis residential programs, operations, or alternatives available elsewhere.” Id. at 3. It is difficult to understand how commissioning a report to help identify innovative models of

3

Merriam-Webster Dictionary (online), available at http://www.merriam-

webster.com/dictionary/team.

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service delivery somehow invalidates the mobile team supports that the Department provided during the reporting period.
Finding 3: DHS’ Gap Report information on EC 93 is not accurate; very few mobile supports were provided
The Department disagrees with the Court Monitor’s assertion that very few mobile supports were provided. The Court Monitor reviewed 17 deployments of mobile supports which were initiated during the reporting period. It should be noted that these 17 deployments do not encompass all mobile support activities during the period, just the agreed-upon sample of those that were initiated during the period. Next, the Court Monitor discounted all but four of the 17 deployments, stating they were not mobile supports. It appears that the Court Monitor discounted the other 13 deployments because he did not consider them to be “crisis situations.”
There is no indication in EC 93 that these mobile supports are intended to be limited to crisis situations. EC 93 comes under a section of the CPA about closing the Cambridge facility and replacing it with community homes and services, and details supports to be provided to those community homes and services. While the Court’s March 18, 2016, Order directed the Court Monitor to look at “the deployment of mobile teams in response to crisis situations” (Doc. No. 551 at 20), mobile supports can be useful in a variety of circumstances and the Department strives to make them available in the most appropriate and effective ways possible. In particular, the Department seeks to provide supports, mobile or otherwise, that prevent a crisis from occurring rather than waiting until a crisis arises to provide assistance. Accordingly, while some portion of the 17 deployments reviewed by the Court Monitor may not rise to his idea of a crisis, they were important and useful supports and should not be discounted as a sample of the mobile supports provided during the reporting period and reported in the Ninth Compliance Update Report.
Additionally, while claiming that “[t]he evidence is that mobile supports are essentially not present,” the Court Monitor fails to identify a single situation where a lack of supports resulted in a negative outcome for an individual or where a crisis situation was not addressed. If anything, the Court Monitor’s finding seems to indicate that the Department is providing services beyond what is required by EC 93.
Finding 4: Mobile supports were not utilized to prevent residential admission of any individuals during the report period.
The Department disagrees with the Court Monitor’s assertion that mobile supports were not utilized to prevent residential admissions of any individuals. As the Court Monitor states, seven of 11 people who were referred for admission to MLB during the reporting period were determined to be eligible for services. Four of the seven eligible persons were in either a hospital or jail at the time of the referral. For those people, mobile supports were not appropriate. Notably, one of the remaining three persons was, with the assistance and support of SLP, able to
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remain in their community foster care home with the support of their private provider. Accordingly, the Court Monitor’s finding that mobile supports were not utilized to prevent residential admission of any individuals is not supported by the data or by the Court Monitor’s analysis.
Finding 5: Slow movement of individuals through the “temporary” MLB successor facilities is impeding timely provision of services to those eligible for MLB.
The Department disagrees with the Court Monitor’s assertion that timely provision of MLB services is being impeded. First, this finding is inaccurate. During the reporting period, three of the seven eligible persons were placed on a wait list.4 By the end of the reporting period, only one person remained on the wait list. Second, this finding exceeds the scope of the duties the Court assigned to the Court Monitor with respect to EC 93. The Court Monitor was specifically instructed to “verify that efforts reported with respect to mobile teams are accurate and complete” and to “verify whether the data relied upon by Defendants with respect to the deployment of mobile teams is reliable and valid.” (Doc. No. 551 at 20.) This finding has no bearing on whether the efforts that the Department reported regarding mobile teams are accurate and complete or whether the data relied upon by the Department with respect to mobile teams is reliable and valid.
The Department further disagrees with the Court Monitor’s assertion, “The MLB bottleneck exacerbates the need for crisis services, including mobile teams. The absence of mobile teams (and of mobile supports) is therefore likely to lead to the unnecessary institutionalization of people in the community who are in crisis.” The first problem with this assertion is that it inaccurately presumes that the Department is not providing mobile team supports. As stated above, the Department does provide mobile team supports to persons in crisis, and to persons before they are in crisis. Second, as also noted above, a number of the referrals to MLB come from hospital and jail settings, rendering mobile supports not appropriate. The idea that a lack of mobile teams or mobile supports will lead to unnecessary institutionalization in these instances is pure speculation, and the Court Monitor has referenced no evidence that such institutionalizations have actually occurred because of an “absence” of mobile supports.
4 If admission to MLB is not immediately available for persons found eligible for services, the person’s situation is reviewed weekly by a cross-departmental team that includes participants from MLB, Central Pre-Admission, MSOCS, CSS, and DSD Community Support Team. This cross-departmental team evaluates the status of the person and determines what options may meet the person’s needs until services are provided.
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Finding 6: SLP-wide data raises concerns regarding SLP’s success in achieving its goals.
The Department disagrees with the Court Monitor’s assertion that the data raises concerns regarding SLP’s success in achieving its goals. As noted, there are 343 SLP members. The Court Monitor chose to include in his sample 18 individuals selected at random from the Priority List (the 43 individuals most in need of support) plus various numbers of individuals from other categories of SLP members, largely defined by living situation. The Court Monitor included in his sample all SLP members: people in jail, in the Minnesota Sex Offender Program, in a hospital, in a skilled nursing facility, in an intermediate care facility, or at MLB. This group encompassed all SLP members at the Minnesota Security Hospital (MSH).5 The Court Monitor also separately requested and received a list of all SLP member admissions to MSH and Anoka Metro Regional Treatment Center (AMRTC) since the initiation of SLP.
The Court Monitor highlights the numbers of admissions to MSH and AMRTC, as well as noting that 55 SLP members had no change in residence while a few made moves to various settings, including five people who moved to less restrictive settings. The Court Monitor then makes an unsupported leap of logic to say these data points “raise concerns regarding SLP’s success in achieving its goals.”
By including the entire population of SLP members at MSH in the sample, the Court Monitor ensured that the most challenging situations would be included in his review. The Department did not dispute that there would be value in reviewing those cases. However, a general overview of the program and its success cannot be extrapolated from such a sample. For example, the Court Monitor states, “[f]rom the SLP sample, there are six SLP members currently at MSH…” implying that there must be a statistical equivalent in the remainder of the SLP group. However, the six SLP members at MSH in the SLP sample are, in fact, all of the SLP members at MSH. They were all in the sample because the Court Monitor specifically chose to include them, not because they are statistically representative of the entire population of SLP members.6 Due to the sample chosen, no meaningful conclusions can be drawn from the sample regarding SLP’s overall success in achieving its goals.
Additionally, with respect to the 55 individuals for whom there was no change of residence, it is impossible to draw any conclusions without additional information regarding the quality of those residences. To say that such data raises concerns ignores the possibility that this is a reflection of positive stability.
As noted in the Ninth Compliance Update Report, since its formation in the fall of 2014, SLP has had considerable success in achieving its goals. It has moved through Phase 1, making
5 This group also would have encompassed any SLP members at AMRTC, but there are no SLP members currently at AMRTC. 6 It should also be noted that these six individuals are at MSH due to co-occurring bases, as contemplated by the Jensen Settlement Agreement. The Court Monitor provides no context about why these individuals were admitted to or continue to reside at MSH, making it impossible to reach any conclusion about SLP’s effectiveness.
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contact with the majority of class members and former residents of the Cambridge facility for the purposes of initial evaluation of health and safety. It established the Priority List of individuals deemed at risk of losing their housing or in need of immediate follow up for clinical or other reasons related to their living conditions, supports, or services. It has gained staff in various regions of the state to support individuals and their teams, and a nurse to perform desk medical reviews and make associated health, nutrition, and medication recommendations.
Work has now moved on to Phase 2, including a comprehensive program assessment known as the Positive Behavior Support Comprehensive Evaluation Tool (PBS CET), functional behavior assessment, and associated recommendations for behavioral supports, person-centered practices, and quality of life enhancement. The SLP team has developed formal processes and protocols as a group of experts in Positive Behavior Support focused on building the capacity of teams who request assistance to improve their support of individuals with complex needs. This work includes significant effort to communicate available services to providers, lead agencies, guardians, and advocates. As productive working partnerships are developed, a primary indicator of SLP success has been the number of recommendations from the functional behavior assessments and PBS CETs that teams have chosen to adopt.
Finding 7: SLP is not sufficiently mature or ready for review of its outcomes or of success in meeting the court-ordered goals.
The Department disagrees with the Court Monitor’s assertion that SLP is not sufficiently mature or ready for review. It is difficult to understand how the Court Monitor can make such a conclusion when he provides no evidence that SLP’s outcomes were unreviewable or that the services provided by SLP were deficient. To the contrary, in later findings, the Court Monitor recognizes that SLP Behavior Analyst staff “demonstrate much activity and concern for the individuals they serve” and that the SLP nurse “is an outstanding positive resource for SLP and does excellent, thorough work.” Nowhere does the Court Monitor provide evidence that SLP is not appropriately tracking members, prioritizing and providing services, and making progress toward the stated goals of preventing re-institutionalization and other transfers to more restrictive settings, and maintaining the most integrated setting.
Instead, the Court Monitor relies on a handful of isolated statements that are presented without context. For example, the Court Monitor relies on the fact that the Department did not claim compliance for EC 98 in the Ninth Compliance Update Report. But the fact that the Department does not yet deem EC 98 fully completed does not mean that SLP is “not sufficiently mature or ready for review.” The Court Monitor’s reliance on a statement made in a spreadsheet created and maintained by Dr. Tim Moore for internal program use is similarly flawed. The Court Monitor emphasizes that Dr. Moore “rates compliance with EC 98 as ‘Incomplete’ and projects a deadline of November 30, 2016, extended from the earlier August 31, 2014.” But the Court Monitor fails to note the six out of eight “actions” listed in that spreadsheet and designated “complete,” and that the status updates for the two actions listed “incomplete” indicate significant progress toward completion. The Court Monitor further relies on SLP Operational
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Meeting minutes that are seven and eight months old to support his claim that “[a]s of this report, SLP’s processes and staff responsibilities are not yet fully defined or operationalized” (emphasis added). These isolated statements serve only to show that SLP continues to assess and refine its operations and that, contrary to the Court Monitor’s claim, SLP has “begun to consider how to assess its own outcome results.”
An additional key indicator of success, and the purpose of SLP as described in EC 98, is keeping individuals from losing their homes and entering restrictive placements. Of the 68 individuals who have been on the Priority List, only four have entered a more restrictive placement (including hospitalization longer than a 72-hour hold) while receiving SLP services.7
Finding 8: It is impossible to determine at this point whether or when the gaps and deficiencies will be addressed and overcome, or whether the late 2016 self-identified compliance deadline for the critical EC 98 will be met.
The Department disagrees with this assertion of the Court Monitor, which is entirely unsupported by his analysis. First, the Court Monitor does not identify “the gaps and deficiencies” he refers to and does not explain how the administrative changes referenced will prevent the Department from overcoming these unspecified gaps and deficiencies. For example, the Court Monitor suggests that the new internal structure the Department developed to oversee compliance with the Jensen Settlement Agreement is a barrier to compliance with EC 98, but provides no explanation. It is difficult to understand how compliance with EC 98 will be hindered by the organizational changes that moved SLP under JOQACO and shifted the focus of JOQACO to compliance monitoring and measurement. As the Court itself recognized, the Department’s new internal structure to oversee compliance with the JSA has the potential to “improve DHS’s compliance efforts and ultimately improve the lives of individuals with disabilities throughout the state.” The Court Monitor also states that “[t]he new Commissioner made changes,” but does not identify these changes, nor explain how such changes show anything other than a responsiveness to the circumstances.
Second, the Court Monitor’s analysis contains inaccurate statements. For example, the Court Monitor states that, during the reporting period, “top leadership left the organization (Anne Barry, Direct Care and Treatment, and Steve Jensen, MLB).” Anne Barry did not leave the organization; she continues to serve the Department as an Assistant Commissioner and the Court Monitor provides no evidence that a “void” was created when she transitioned from Deputy to Assistant Commissioner. The Court Monitor also states, “During the chaos, DHS obtained at least two outside management consultation evaluations on what it considered to be a crisis.” But these two reports make no reference to an internal “crisis” or “chaos” at the Department. Instead, the reports state that the authors were contracted “to conduct research and gather data to identify innovative approaches for creating physical capacity to serve the immediate crisis needs
7 This does not include one demission in which the provider chose not to initiate services with SLP despite multiple attempts, and one individual currently admitted to a behavioral health hospital for treatment but not demitted from his/her home.
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and ongoing long-term needs of individuals in the target population,” Manfred Tatzmann, Report on DSD Crisis Improvement Project, at 4 (2015), and to help Community Based Services “assess the most effective organization structure to serve their client’s needs,” Management & Analysis Development, Department of Human Services, Community Based Services Organization Design, at 2 (2015). If anything, these reports demonstrate the ongoing efforts of the Department to continue to refine its services and to most effectively meet the needs of Minnesotans and its obligations under the JSA.
Lastly, the “self-identified compliance deadline” the Court Monitor references was taken from a spreadsheet maintained by SLP for its own internal use. A program area’s internal goal does not create a binding obligation on the Department.
Finding 9: SLP has insufficient authority to secure cooperation from others to further its court-ordered goals.
The Department disagrees with the premise of this finding. The Court Monitor states, “although the CPA empowers the Department to act effectively with regard to obtain [sic] cooperation from counties and providers, the SLP sees itself as able merely to offer recommendations and assistance, which counties and providers may freely reject.” Contrary to the Court Monitor’s assertion, the CPA does not “empower” the Department to do anything above and beyond what is allowed by statute. SLP operates as a supportive service. It has worked hard to develop positive working relationships with counties, providers and support teams in which teaching and learning can occur. This culture is an important aspect of the program and serves the principles of person-centeredness, as well. As noted above, a lead indicator of the success of the program is the frequency with which teams have adopted the recommendations of SLP.
The Court Monitor cites a few examples in which SLP staff encountered hesitation or a lack of responsiveness from a provider, team, or case manager, but provides no evidence that SLP “merely . . . offer[ed]” recommendations or assistance in these situations and did not ultimately secure cooperation. SLP provides many more examples of successful collaboration with counties, providers and support teams which have resulted in improvement to the lives of persons with disabilities (e.g., pages 31-32).
Finding 10: The SLP “full assessment,” which is key to a EC 98 goal, is many months behind schedule.
The Court Monitor inexplicably and erroneously claims that the Ninth Compliance Update Report “inaccurately states that the second phase began March 16, 2015.” This statement in the Ninth Compliance Update Report is, in fact, accurate. While the first individual’s full assessment was not completed until June 18, 2015, Phase 2 was initiated on March 16, 2015. This error is perhaps an indication that the Court Monitor fails to understand the complexity of the full assessment and the time it takes to complete one.
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The implementation of Phase 2, which includes the full assessment of SLP members, is taking longer than anticipated. The timeline set out in the SLP Bulletin, a Department goal and not a CPA obligation, turned out to be an unrealistic one.
The full assessment of Phase 2 is a lengthy process. First, SLP needs to obtain signed consent forms from each SLP member and/or their legal representative and schedule informational meetings. Only then can the assessment begin. Completion of an assessment usually requires about three to five visits, once or twice a week, to the residence to build rapport with the person and the team and to observe what is working and what is not working. It then takes approximately eight hours to review available reports and evaluations. Writing and editing the report with the team can take a few days to a few weeks, depending upon schedules.
Contrary to the Court Monitor’s report that 10 assessments were completed during the reporting period, SLP records (provided to the Court Monitor) show that 11 persons completed full assessments during that time. Five of these 11 SLP members also had a Functional Behavioral Assessment completed.8 Completion of the Functional Behavioral Assessment can take an additional one to two months. The amount of time required is largely dependent on the ability of the facility staff to gather data needed to complete the assessment..
As noted by the Court Monitor in another finding, the SLP BCBAs do much able work. Based on the experience they have gained with the tool, staff continue to revise the assessment tool and are identifying ways to decrease the time needed to complete a full assessment.
Finding 13: The Gap Report’s statement regarding discovery of two previously unlocated people is not accurate.
The Department agrees that the following statement in the Ninth Compliance Update Report is not accurate in that the events described actually occurred before the reporting period: “During this reporting period, the Office of Special Investigations was able to locate two people; Successful Life Project has contacted both these people and have completed their assessments . . .” (Doc. No. 531 at 64.) The Department informed the Court Monitor of this inadvertent error and stated that it would inform the Court about the error in the Department’s May 31 report. The documents provided to the Court Monitor, however, do confirm that the two individuals referenced in the Ninth Compliance Update Report were unable to be located, were located and completed assessments in late 2014, and have subsequently been unable to be reached or located. This misstatement in the Ninth Compliance Update Report was due to an unintentional error in reporting from the program, something which the new JOQACO focus on verification activities should prevent from reoccurring in the future.
The Court Monitor states that the two individuals “though considered off the map by SLP, were never ‘unlocated,’ ” but fails to distinguish how “off the map” is different from “unlocated.” Contrary to the Court Monitor’s implication that SLP failed to provide requested
8 Some of these Functional Behavioral Assessments were completed outside the reporting period.
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services to these individuals, the documentation provided to the Court Monitor indicates that one individual has not been able to be reached since s/he completed his/her initial assessment and that the other individual stated s/he was not interested in returning to Minnesota or receiving services.
Finding 14: The Gap Report’s other factual representations are generally accurate with several major exceptions.
The Department agrees with the Court Monitor’s assertion that the other factual representations are generally accurate, but disagrees with the claim that there are “several major exceptions.”
For example, with respect to Phase 2 of SLP, the Court Monitor erroneously equates the date that the first full assessment was complete with the date that Phase 2 was initiated, fails to appreciate the lengthy and complex process to complete a full assessment, and instead incorrectly concludes that the information in the Ninth Compliance Update Report is “incomplete and misleading.” The Court Monitor also incorrectly states the number of full assessments completed during the reporting period (as described above).
Additionally, with respect to the section of the Ninth Compliance Update Report regarding E1, while verified as accurate, the Court Monitor seems to take issue with the fact that some of the reported events took place outside of the reporting period. The Department included this information, clearly noted as to timing, due to the particular interest the Court has expressed in this situation, to provide context to the update. The Court Monitor goes on to note that the information is “incomplete and misleading” with no indication of what is missing or confusing. The Department stands by its report.
Court Monitor’s Review Methodology and Cost
The methodology the Court Monitor used to conduct his review was unnecessarily lengthy and costly. On April 5, 2016, Dr. Colleen Wieck sent an email to the Court Monitor on behalf of herself and Ms. Roberta Opheim detailing an appropriate sampling strategy and suggesting an efficient way to review and verify what was stated in the Ninth Compliance Update Report relating to ECs 93 and 98. (See Exhibit A.) In a letter dated April 5, 2016, the Court Monitor responded by, in essence, dismissing Dr. Wieck and Ms. Opheim’s suggested methodology. (See Exhibit B.) Had the Court Monitor used the methodology suggested by Dr. Wieck and Ms. Opheim, the Court Monitor’s review could have been accomplished in a much shorter time frame and, consequently, would have been less costly. The Court Monitor’s methodology was not the most cost effective way of accomplishing the Court’s objectives.
Additionally, the Department finds itself in a familiar place, that of having to pay for and respond to a report to the Court that is filled with inaccurate and misleading information. The Department has in the past paid the Court Monitor tens of thousands of taxpayer dollars for
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reports shown by the Department’s responses to be inaccurate and without support. As but one example, the Court Monitor spent numerous hours conducting interviews, reviewing documents, and contacting a number of Department staff as a basis for a report issued on April 14, 2015, entitled “Report to the Court: Verification of Representations by the State” (Report) (Doc. No. 414) in which the Court Monitor erroneously concluded that the Department made inaccurate and unverifiable statements in its compliance report to the Court. In a response dated October 30, 2014 (Doc. No. 429), the Department demonstrated that the Report was filled with inaccurate findings and conclusions for which the Department had to pay thousands of dollars. (Doc. Nos. 436, 436-1). The current report is no different and now, the Department must pay over $20,000 to the Court Monitor for another inaccurate and unsupported report.
Despite its many deficiencies, the Court Monitor uses his report to conclude that the Department does not demonstrate sufficient internal verification mechanisms. The Department disagrees. The Department has made great strides towards satisfaction of the JSA and the CPA, and continues to implement and improve processes of service provision and of internal oversight, both in pursuit of compliance with the JSA and beyond.
Correcting Misconceptions
The Court concludes its March 18, 2016, Order by noting that there continue to be misconceptions in the public about the purpose and intent of the JSA or Minnesota’s Olmstead Plan, and urging the Department to address them. The Department has tackled this task on several fronts and will continue to provide information and education whenever and wherever possible.
To better understand and target the misconceptions, the Department has reviewed correspondence to the Court, queried front-line staff, and inquired of the Court’s Consultants. The Department has included a reminder of the principles of the JSA and the Olmstead Plan in internal meetings. Several bulletins and FAQs have recently been issued and more are in progress to elaborate on and explain various facets of the JSA and the Olmstead Plan. Technical assistance is provided from multiple sources in the Department to providers, case managers, and teams. Department staff frequently give presentations to the public on the JSA and related topics such as person-centered planning and positive supports.
Through the Department’s efforts to better understand public perceptions, the Department has observed that the identified misconceptions tend to relate most closely to the Olmstead Plan or to system changes mistakenly attributed to the Olmstead Plan. The Department and the Olmstead Implementation Office (OIO) are part of a joint communications group that focuses on misconceptions about the Olmstead Plan. This communications group is working with a focus group of families and providers to better understand areas of concern and how the Department and OIO communications can more effectively address these concerns; the long-term goal is for this focus group to serve as an ongoing committee. The joint communications group has
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produced written materials and slide shows to educate the public about the Olmstead Plan, including an Olmstead overview document that has been revised to use more plain language, informational pages explaining how mental health services are impacted by Olmstead, and an overview document of Olmstead activities in 2016. Other communications efforts include responding to letters by providers and families to explain what Olmstead is and is not; presenting to stakeholders, including providers and parent/advocacy groups; providing trainings and technical assistance to counties about the Person-Centered Planning, Informed Choice and Transitions Protocol; participating in learning communities and communities of practice relating to person-centered approaches, person-centered planning, and positive supports; and holding forums and webinars to explain the federal Home and Community-Based Services rule, which is driving systems changes that members of the public mistakenly attribute to the Olmstead Plan. This group intends to take additional steps to address the concerns of the public, such as holding community meetings, updating the Olmstead website with the new materials, and launching an email update newsletter to facilitate ongoing communications.
The Department remains committed to the JSA and improving lives of Minnesotans with disabilities. The efforts detailed in this report demonstrate that changes implemented at the Department are improving the provision of services and facilitating the Department’s own compliance evaluation. These measures will ensure that the Department makes a real and positive impact on the lives of individuals with disabilities now and into the future.
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 CASE 0:09-cv-01775-DWF-BRT Document 587 Filed 08/29/16 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians, and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians, and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian, and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
v.
Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and the State of Minnesota,
Defendants.

Civil No. 09-1775 (DWF/BRT) ORDER

Shamus P. O’Meara, Esq., and Mark R. Azman, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

CASE 0:09-cv-01775-DWF-BRT Document 587 Filed 08/29/16 Page 2 of 3
Scott H. Ikeda, Aaron Winter, and Anthony R. Noss, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants.
In its September 29, 2015 Order approving the Olmstead Plan, the Court reserved ruling on the Olmstead Plan’s implementation plan, indicating that it would do so following the submission of the corresponding Workplans. (Doc. No. 510 at 14.) On October 9, 2016, the Department of Human Services filed the Olmstead Plan’s initial Workplans. (Doc. No. 515-2.) On November 6, 2015, the Court approved the State’s initial set of Olmstead Plan Workplans. (Doc. No. 521.) On May 31, 2016, Defendants submitted an updated Olmstead Plan incorporating new goals on Assistive Technology and Preventing Abuse and Neglect. (Doc. No. 571.) The Court approved the updated Olmstead Plan on June 21, 2016. (Doc. No. 578.)
Before the Court now are additional Olmstead Plan Workplans (“Workplans”), submitted to the Court on August 1, 2016, which relate to the new goals on Assistive Technology and Preventing Abuse and Neglect. (Doc. No. 581-1.) Based on the submissions and presentations of the parties, the entire record before the Court, and the Court being otherwise duly advised in the premises, the Court hereby enters the following:
ORDER 1. The Court APPROVES the State’s additional Olmstead Plan Workplans. (Doc. No. 581-1.)
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2. The Court notes that these Workplans cover only a “one to two-year time span,” (Doc. No. 581), and “are intended to be flexible blueprints capable of modification when necessary to better accomplish strategies.” (Id.) The Court reserves the right to exercise its continuing jurisdiction to ensure that compliance with the Settlement Agreement is verified going forward. The Court will continue to carry out its oversight responsibility as the Workplans are updated to oversee the State’s efforts in following through on the commitments it has made.

Dated: August 29, 2016

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

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 CASE 0:09-cv-01775-DWF-BRT Document 589 Filed 08/31/16 Page 1 of 120
Jensen Settlement Agreement
Comprehensive Plan of Action (CPA) August 2016 Semi-Annual Compliance Report
Reporting Period: October 1, 2015 -June 30, 2016
Minnesota Department of Human Services - - - - - -- -

CASE 0:09-cv-01775-DWF-BRT Document 589 Filed 08/31/16 Page 2 of 120
Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report Reporting Period: October 1, 2015 to June 30, 2016
Table of Contents
Introduction ........................................................................................................................................... 4 Background....................................................................................................................................................... 4 Jensen I Olmstead Quality Assurance and Compliance Office............................................................... 4
JOQACO Compliance Verification Process .............. .. ........... ............ .. .... ..... ...................... ....... ........ .. .......... .. .. ... ... . 5
Independent Subject Matter Experts......................................................................................................... lO Agency-wide Quality Assurance Leadership Team (QALT) ................................................................ 11 Minnesota's Olmstead Work Plans ........................................................................................................... 12 Evaluation Criteria State of Completion (Scheduled for Semi-Annual Reporting) .............. 14 Settlement Agreement Section IV. METO Closure ............................................................................... 14
Evaluation Criteria 2: .. ................. ....................................... .. .... ......... .............. ...... .............. ..... ... ........ ...... ......... .. .... . 14 Evaluation Criteria 3: ... ............. .... .............. ............................ .. ... ..~..... .... ....... .... ............... . .... .. ................ .......... ...... .. 16
Settlement Agreement Section VII.B. Restraint Review - Internal Reviewer ................................. 20
Evaluation Criteria 39 ... ............................... .............. ....... ..... ......... .. .. ............. ................... ..... ...... .. ........ .......... ........ 20 Evaluation Criteria 41 ..... ..... ........ .. ............ ... ................................ .. .... .... ...... ... .......................... ... .. ...... ..... ................ 23
Settlement Agreement Section VIII. Transition Planning ................................................................... 26
Evaluation Criteria 47 .... ....~............... ............... ............. ......... .. .. ...... ...... ....... ...... ... ........... ............ ...... ........ ... ............ 26 Evaluation Criteria 48 ... .. .... .... ................................................. .. .............. .. ....................................... ......... ... .. ........... 28 Evaluation Criteria 49 ........... .. ..... ........ ... ...... ............. ... .... ... ...... .. ............ ... .............. ... ................ ............ ....... ..... ... ... 31 Evaluation Criteria 50 ..... .... ... .......... ........... ...... .. ...... .. ......... ...... ..... .... .. .. ... .......... .... .................... ..... ..... ... .... .... ......... 32 Evaluation Criteria 51 ......... ........... ..... ............... ........... ........ ........... .. ......... .............. .... ............ ... .... ... ...... ............ ..... 33 Evaluation Criteria 52 .. .. ..... .... ....... ............ .. .. ............. ............. ..... ......................... ..... .. ............ ..... ............................ 34 Evaluation Criteria 53 .. ............ ... .... .... .. ... ..... ............................................................................................................. 35
Settlement Agreement Section IX.D. Other Practices at the Facility- No Inconsistent Publicity36
Evaluation Criteria 64 ... ............. ................................... ........... .. .......... ..... ................................. ......... .. ... ..... ..... ........ 36
Settlement Agreement Section X.A. System Wide Improvements -Expansion of Community Support Services ............................................................................................................................................ 37
Evaluation Criteria 67 ................... .............................. ......................... ..... ....... ........ .. ................... ....... .. ....... ............. 37 Evaluation Criteria 68 ....... ....... ......... .......... .. ........................ .. ............. ............ .. .... .. ... ................... ......... .. ........ ...... ... 39 Evaluation Criteria 69 .... ... ... .. ....... .. .... ..... ........... ... ................ .... .......... .. ........ ...... .. ................... ..... ...... ..... .... ... .......... 41 Evaluation Criteria 70 ... ...... ................................................ .... .......... ..... .. ................. .......... ......... .. ........... .......~... ..... .. 41 Evaluation Criteria 71 ........ .. ..... .... ........... .. .................................................................................. .. ..................... ....... 43 Evaluation Criteria 72 ......................................... .... ............ .............. .. .... ..... .... .......... .............. ... ....... ................... ..... 45 Evaluation Criteria 73 ............................................................................................................................. ................... 46 Evaluation Criteria 74 ..... .. ....... ... .... ............... .... ................... .... .................. ........ ....... ........................ .......... ....... ....... 47 Evaluation Criteria 75 .................................................................................................. .............................. ................ 48 Evaluation Criteria 76 ... ... ..... ....... ... ........................................................................................................................... 49 Evaluation Criteria 77 .. ... .. .... .... ... ....... ....~..... .............................:................................................................................. 50 Evaluation Criteria 78 ..... ... ............... .... .................... ...................... ...... .......... .. ................ .. ................. ...................... 50
Settlement Agreement Section X.B. System Wide Improvements- Olmstead Plan........................ 51
Evaluation Criteria 79 .. ... .. ....................... ..................... .. ..... ........... .. ............ ................. ...... ... ......... ..... ..... ... ............. 51
Closure of MSHS-Cambridge and Replacement with Community Homes and Services .............. 52
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Reporting Period: October 1, 2015 to June 30, 2016

'

Evaluation Criteria 93 ................................................................................................................................................. 52 Therapeutic Follow-Up of Class Members and Clients Discharged from METO/MSHSCambridge ...................................................................................................................................................... 58
Evaluation Criteria 98 ...... .. ............ ................................ -......... ... ............................................................................... 58 Modernization of Rule 40 (EC 103) ............................................................................................................ 64
Evaluation Criteria 103 .............................................................................................................................................. 64
Exception Reporting ........................................................................................................................... 65 Settlement Agreement Section IX.A. Other Practices at the Facility- Staff Training .................... 65
Evaluation Criteria 56 ....................... ............................................................................................... ............................ 65 Settlement Agreement Section IX.B. Other Practices at the Facility- Hours of Training ............. 66
Evaluation Criteria 58 .. ............... ...................................... ...... ..... .................... .......................................................... .. 66 Settlement Agreement Section X.D. System Wide Improvements - Minnesota Security Hospital ........................................................................................................................................................................... 70
Evaluation Criteria 81 ................................................................................................................................................ 70
Responses to the Court's June 21, 2016 Order (Doc. No. 578) .................................................... 72
Update on Community Support Services and Crisis Intervention Outcomes .................................. 72 Update on the Prevalence and Justification for 911 Calls at the Facility..................... .. ... .. ................................. 72
Compliance Verification Process ............................................................................................................... 76
Updates to the Department's May 31, 2016 Report to the Court (Doc. No. 572) ..................... 77
Staff Training (ECs 54-57) ............................................................................................................................ 77 Six Sigma Green Belt Project Update ....................................................................................................................... 79
Standardization of Training........................................................................................................................ 79 Community Support Services (ECs 67-72) ................................................................................................ 79
CSS Database Maintenance Action Plan........................................ .. .... ............................................ .................... .... 80 JOQACO Role in Reviewing and Verifying Information ........................... .. ............ ........................................... .. 81 Precision Business Intelligence ................................................................................................................................. 81 Overlap with the Successful Life Project and Community Support Services (Doc. No. 572 at 26) ................. 81 CSS Ability to work in a More Proactive Manner .................................................................................................. 81 Evaluation Tools ............................................................................................................................................ 82
Evaluation Criteria................................................................................................................................ 83

Listing of Tables
Table 1: MLB Referral Outcomes .... .................................. ...................... ......................................................... 18 Table 2: Monthly Summary of DHS 3654 Forms Completed ...................................... ..... ........ .................... 21 Table 3:911 Call Summary......................... ....................................................................................................... 22 Table 4: Internal Reviewer Training ........................................................................................................... ..... 25 Table 5: CSS Crisis Intervention .......... ..................................................... ........ .. .............................................. 44 Table 6: Movement to More Integrated Settings............................................................................................ 62 Table 7: 911 Call Analysis.................................................................................................................................. 74

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Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report Reporting Period: October 1, 2015 to June 30, 2016
Introduction
This is the Jensen Settlement Agreement Comprehensive Plan of Action (CPA)- August 2016 SemiAnnual Compliance Report, created in response to the February 22, 2016 Order for Reporting on Settlement Agreement (Doc. No. 545). This report is based on data, documentation and information from October 1, 2015 through June 30, 2016, and addresses the following Evaluation Criteria (EC), as scheduled: EC 2, EC 3, EC 39, EC 41, EC 47, EC 48, EC 49, EC 50, EC 51, EC 52, EC 53, EC 64, EC 67, EC 68, EC 69, EC 70, EC 71, EC 72, EC 73, EC 74, EC 75, EC 76, EC 77, EC 78, EC 79, EC 93, EC 98 and EC 103. (See Doc. No. 545-1). This report also provides Exception Reports (beginning on page 65), for the following ECs: EC 56, EC 58, and EC 81.
Additionally, this report provides updates on topics that are not part of the Minnesota Department of Human Services' (the "Department") scheduled semi-annual reporting obligations. The Court, by Order dated June 21, 2016 (Doc. No. 578 at 5-7, 11), specifically requested some of these updates. Other updates are in follow-up to topics discussed in the Department's May 31, 2016 report to the Court (Doc. No. 572). These updates are in separate sections following the Department's regularly scheduled updates and exception reports. [See Responses to the Court's June 21.2016 Order (Doc. No. 578) (beginning on page 72) and Updates to the Department's May 31,2016 Report to the Court (Doc. No. 572) (beginning on page 77).]
The Jensen/Olmstead Quality Assurance and Compliance Office (JOQACO) developed this report from information submitted and verified by persons identified as being responsible for each EC. For each EC addressed in this report, the responsible party is identified by title.
JOQACO completed further verification and/or analysis of information submitted by the responsible party. This process is explained in more detail on pages 5-6 and throughout the report.
Background
The Jensen Settlement Agreement is the result of a lawsuit filed against the Department in 2009 alleging that residents of the former Minnesota Extended Treatment Options (METO) program were unlawfully and unconstitutionally secluded and restrained. The Jensen Settlement Agreement ("JSA"; Doc. No. 104) allowed the Department and the plaintiffs to resolve the claims in a mutually agreeable manner. The Comprehensive Plan of Action ("CPA"; Doc. No. 283) outlines the actions the Department must take to comply with the terms of the JSA.
Jensen I Olmstead Quality Assurance and Compliance Office
As required by the CPA, the Department established the Jensen Implementation Office to manage and coordinate this plan.
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On February 10,2016, the Jensen Implementation Office moved from the Department's Community Supports Administration to the Department's Compliance Office and was renamed the Jensen/Olmstead Quality Assurance and Compliance Office (JOQACO).
JOQACO currently has four full-time professionals and one full-time support staff. The full-time professionals include a director, analyst, data analyst and the Internal Reviewer, who joined JOQACO on December 1, 2015. In January 2016, the JOQACO Office Manager retired from the Department. JOQACO submitted a request to fill this position with an attorney who would focus on compliance activities. In June 2016, the Department assigned an attorney, who is part of the Department's Compliance Office, to JOQACO.
The organizational and name changes for JOQACO have been accompanied by a shift in focus from implementation and coordination to quality assurance and compliance monitoring and measurement. Consistent with this new focus, JOQACO is developing enhanced verification protocols, expanding Internal Reviewer responsibilities, and managing the Master Contracts for the Independent Subject Matter Experts. For additional details on Independent Subject Matter Experts, see page 10.
On January 28, 2016, JOQACO initiated regular meetings with Department staff; JOQACO has extended invitations to these meetings to the Consultants for the Jensen Settlement Agreement, Roberta Opheim and Dr. Colleen Wieck. The purpose of these meetings is to review and discuss quality improvement activities and concerns relating to compliance with the Jensen Settlement Agreement Comprehensive Plan of Action Evaluation Criteria
JOQACO Compliance Verification Process
Consistent with JOQACO's shift in focus to quality assurance and compliance monitoring and measurement, JOQACO developed and is initiating testing of a multi-approach process for verifying information submitted to JOQACO and used in the Department's reports to the Court. This process will involve a variety of compliance verification activities, including on-site verification reviews by JOQACO to supplement and monitor the verification efforts of the program. The goal of these efforts is to ensure that the Department's quality assurance and compliance efforts, with respect to the JSA and CPA, are informed by information that is accurate, complete, and timely. This will ultimately help the Department further improve the services it provides to persons with developmental disabilities.
In developing this process, JOQACO sought to incorporate elements of the Olmstead Subcabinet's verification approach, as well as the suggestions of the Consultants. In late June 2016, JOQACO met with Dr. Wieck and Ms. Opheim to discuss desirable attributes of a verification process for CPA reporting. In July 2016, based on this discussion and elements of the Olmstead Subcabinet verification process, JOQACO developed a draft process document. JOQACO sought the feedback of Dr. Wieck and incorporated her comments into the process document. JOQACO will initiate a trial
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demonstration of the process in August 2016 to assess the feasibility and effectiveness of the process and to test the clarity of the written document.
The verification process JOQACO developed and will be testing for reports to the Court uses three primary approaches: monthly or bi-monthly compliance updates to JOQACO for active ECs; program area verification of the information provided to JOQACO; and JOQACO on-site verification reviews. JOQACO will begin a trial demonstration of this process, which is described in more detail below, in August 2016.
JOQACO began to implement enhanced verification activities, including on-site verification reviews and document reviews for selected ECs, in preparation for this report. These activities are summarized in the status updates for the relevant ECs and will inform JOQACO's efforts to test and refine the compliance verification process over the coming months. As the Court directed in the June 21, 2016 Order (Doc. No. 578 at 7), the Department will be prepared to update the court on the status of the Jensen compliance verification process at the December 2016 Biannual Status Conference.
Compliance Updates:
Receiving monthly or bi-monthly compliance updates (frequency depending on the EC) will allow JOQACO to, at any given time, have an up-to-date understanding of the current status of each active EC and to more readily identify problematic trends or barriers to compliance. The following is an outline of the process by which the program areas will submit, and by which JOQACO will track and review, regular updates regarding the status of each active EC:
Submission of Compliance Updates by Program Areas: 1. A "responsible party" is assigned to each of the active CPA ECs. 2. JOQACO will establish a reporting schedule and a template for each compliance update. 3. Based on the monthly and bi-monthly reporting schedule and using the compliance update template, the responsible party will provide JOQACO with information and data from the previous one or two months regarding the current status of each assigned EC. 4. For each compliance update, the responsible party must also include an explanation of how the program area verified the information and data provided to JOQACO was accurate, complete and timely. 5. For ECs that require monthly compliance updates,1 the responsible party will also be required to submit documentation that supports/corroborates the information and data reported in the compliance update. If an EC involves a large dataset or activities that program areas track in a
1 As of July 2016, JOQACO requires monthly updates for the following ECs: EC 38, EC 47, EC 48, EC 50, EC 52, EC 54, EC 56, EC 58, EC 67, EC 68, EC 69, EC 71, EC 73, EC 93, and EC 98. Compliance updates for all other active ECs must be provided on a bi-monthly basis.
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database, the responsible party will meet the supporting documentation requirement by submitting a data summary on a spreadsheet or similar document listing the relevant events, services provided, or people served, etc.2 JOQACO may request additional documentation for a random sample of these events/services/persons. 6. Data and information reported in the regular compliance updates will, after verification by JOQACO (see below), be used to report on the relevant ECs in the semi-annual, annual, or exception reports to the Court.
Receipt and Review of Compliance Updates by JOQACO: 1. JOQACO will track receipt of scheduled compliance updates and contact the responsible party if JOQACO does not receive a scheduled update. 2. JOQACO will review each compliance update to determine whether the information submitted fully addresses the current status of that EC, whether reported verification efforts are consistent with the program area's protocol, whether required documentation was submitted, and whether required documentation confirms that the statements and information in the compliance update are accurate, complete, and timely. 3. JOQACO will document these review efforts, any concerns identified through these review efforts, and any follow-up undertaken to address identified concerns. (See the Verification Analysis section below.)
Program Area Internal Verification Reviews: Program areas responsible for implementing the requirements of the CPA and providing updates on the current status of ECs will verify that information submitted to JOQACO is accurate, complete, and timely. Each program area must have a process, in writing and approved by JOQACO. The process must include the following components:
1. Parameters on what data/information will be gathered and when. 2. That the responsible party or their designee does program area reviews of the gathered
data/information for accuracy and completeness. 3. That databases are, according to an established schedule, routinely reconciled with other
sources of information (e.g., case notes). 4. That any errors or concerns identified for information maintained by the program area are
documented and resolved. The compliance update submitted to JOQACO will include a description of these identified errors or concerns and how they were resolved. 5. That prior to submission to JOQACO, the responsible party or designee reviews and authorizes each compliance update. By submitting the update to JOQACO, the responsible
2 ECs likely to fall into this category include the following: EC 38, EC 56, EC 58, EC 67-69, EC 71, EC 73, EC 83, EC 93, and EC 98.
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party is attesting that the information and statements in the update have been verified as accurate, complete, and timely.
]OQACO On-Site Verification Reviews: JOQACO will, on a semi-annual basis (corresponding to the reporting schedule), conduct on-site verification reviews for selected ECs. JOQACO will not inform program areas in advance which ECs JOQACO will review. This process will assess whether the information reported to JOQACO for the selected ECs is accurate, complete, and timely; whether the program area followed its own verification process in reporting; and, most importantly, whether there are opportunities for the program area to improve the quality of the services it provides and better ensure consistency with the requirements of the CPA.
The following describes the process for planning, implementing, and analyzing the results of JOQACO's on-site verification reviews:
Verification Plan: Prior to conducting the verification reviews, JOQACO will prepare a Verification Plan. The Verification Plan will:
1. List the specific ECs to be reviewed and information that will be verified (scope).3 2. Identify any limits or constraints of the Verification Plan (cost, time, personnel).4 . 3. Identify how verification will be completed-on-site inspection of records or data, interviews,
observation or other forms of testing, etc. 4. Define the sample size to be drawn. Sample size may be related to #2--limits of time, cost, and
personnel. 5. Identify the expected results. Depending on the nature of the EC and the data being reviewed,
expected results might be based on benchmarks/requirements stated in the CPA, information reported by the program area, or previous reports. 6. Prepare a schedule or timeline.
Implementation of Verification Plan: When performing verification reviews, JOQACO will complete the following tasks:
1. Conduct the verification according to the plan.
3 JOQACO's selection of the ECs to be included in each semi-annual review will be based on multiple considerations. These considerations include, but are not limited to, distribution of selected ECs across program areas and topics; the importance of the EC to the quality of life of people; discrepancies or concerns identified in the monthly/bi-monthly compliance updates or previous verification reviews; and significant staffing or policy changes in the relevant program area. 4 If an EC selected for the semi-annual verification review involves a large dataset, JOQACO may conduct the verification review by random sampling.
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2. During on-site visits, collect or view relevant documentation and speak with staff or clients, as appropriate and as consistent with Department policy. JOQACO may also follow up with lead agencies, case managers, or other external entities, as appropriate.
3. Document who was in attendance, how the verification was conducted, sample size, when the verification occurred (day, start time and end time), and where the verification occurred (physical location).
4. Capture and record the results.
Verification Analysis JOQACO will analyze the results of the verification review to determine the status of the review and identify opportunities for improvement relating to the quality of services provided and consistency with the requirements of the JSA and CPA and relating to the accuracy, completeness, and timeliness of information submitted to JOQACO.
1. JOQACO will complete an analysis of the results of the verification spot-check reviews. JOQACO will compare obtained results to the expected results and to the requirements of the JSA and CPA.
2. JOQACO will document its compliance verification efforts, including the ECs JOQACO reviewed and any opportunities for improvement identified by JOQACO's verification reviews (or by the compliance update reviews). Opportunities for improvement may relate to the quality of services provided and consistency with the requirements of the JSA and CPA. Opportunities for improvement may also relate to the program area's submission of information to JOQACO regarding compliance with the JSA and CPA including, but not limited to, discrepancies in the information/data submitted, inadequacy of documentation, inadequacy of verification efforts, failure to fully report on the status of an EC or provide information requested by JOQACO, and untimeliness of submissions.
3. JOQACO will present opportunities for improvement identified in JOQACO's verification reviews to agency leadership as needed to address patterns of noncompliance, barriers to compliance, or a program area's failure/refusal to address identified opportunities for improvement. As appropriate, JOQACO will refer compliance concerns to the Internal Reviewer, the Department's Quality Assurance Leadership Team, Independent Subject Matter Experts, and/or the internal audits team
4. JOQACO will provide each program area with its verification review documentation and will specify a reasonable period of time for addressing any identified opportunity for improvement.
If JOQACO identifies opportunities for performance improvement through this verification process, JOQACO will charge the person responsible for the relevant EC with ensuring the program area develops a performance improvement plan. The responsible party will report to JOQACO on the steps taken under this performance improvement plan and JOQACO will verify the results.
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Independent Subject Matter Experts
On February 1, 2016, the Department posted in SWIFT5 the Request for Proposals (RFP) for qualified contractors to serve as Independent Subject Matter Experts (SMEs). These SMEs are to assist the Department in bringing significant improvements to the care and treatment of persons with developmental disabilities, as outlined in the JSA, through a master contract program. The RFP required that these vendors have a minimum of five years' experience in one or more specified Specialty Service Areas:
• Persons with Intellectual and Developmental Disabilities (IDD)6, complex needs, or challenging behaviors
• Pharmacological reviews of medication regimens of persons with IDD with complex medical needs or challenging behaviors
• Positive behavior practices and • Qualitative and quantitative research design.
In response to the RFP, the Department received proposals for one or more of the identified specialty service areas from 12 vendors. The RFP Evaluation team evaluated proposals according to the evaluation methodology identified in the RFP. The RFP Evaluation Team included Dr. Wieck and Ms. Opheim, JOQACO, and other Department professional staff selected based on areas of expertise. The evaluation team identified eight vendors to serve as SMEs in one or more specialty areas. The Department sent out contracts for these eight vendors on June 9, 2016, and the Department received back all signed contracts by the end of the reporting period (June 30, 2016).7
JOQACO will manage the master contracts with the SMEs. As the Department has noted in communication with the Court, identification of the need for SME review can generate from internal or external sources:
• A SME review can be triggered internally by request of the Commissioner, Compliance Office, Department-wide Quality Assurance Leadership Team (QALT), Internal Reviewer, and JOQACO. Internal requests for a SME review should be submitted to and approved by the Quality Assurance Leadership Team (QALT). Once the QALT has approved a request for a SME, JOQACO will identify and contact contracted vendors in the appropriate Specialty Service Area to determine availability.
5 SWIFT (Statewide Integrated Financial Tools) is the online financial, procurement, and reporting system used by the state of Minnesota. 6 The term Intellectual and Developmental Disabilities (IDD) was used in the RFP because it is a term that is used by other states. 7 On July 18, 2016, the Department fully executed all Independent Subject Matter Expert Master Contracts with the eight selected vendors.
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• External parties, including Plaintiffs' Class Counsel, the Consultants, and the External Reviewer, can also initiate a SME review. External requests for a SME review should be submitted directly to JOQACO. JOQACO will identify and contact pre-approved vendors in the appropriate Specialty Service Area to determine availability.
The Department will follow the following process for SME reviews:
• The SME assigned to a request for review will be expected to provide JOQACO with a timely written report and documentation of recommendations. The Department will have ten days to respond to SME initial reports.
• The SME may also be asked to meet with Jensen Class Members and staff and/or provide oral reports.
• The SME will submit a final report to JOQACO within ten days after receipt of the Department's response, or within ten days of submission of the initial report, if the Department does not make a response.
• JOQACO will share final reports with Plaintiffs' Class Counsel, the Consultants, and the QALT for development of action plans and oversight of resolution of any negative findings.
Agency-wide Quality Assurance Leadership Team (QALT)
In 2015, the Department drafted a Performance Management and Quality Improvement Framework for People with Disabilities to establish a Department-wide structure to monitor the quality of programs and services provided to people with disabilities. On January 20, 2016, the Commissioner approved the Final Plan for the Performance Management and Quality Improvement Framework for People with Disabilities.
The Department held the first meeting of the agency-wide Quality Assurance Leadership Team (QALT), on January 27,2016.8 The Deputy Commissioner of the Central Office oversees the work of the QALT, which utilizes continuous improvement resources to identify opportunities for improvement, facilitate development of work plans, and track progress in the provision of services to people with disabilities. The following are examples of activities of the QALT that have touched on the JSA and CPA:
MSH Client Discharge: In February 2016, the QALT asked Department staff to review the situation that led to a person, who was committed solely as a person with a developmental disability, to remain at the Minnesota Security Hospital (MSH) for an extended period. In April2016, the QALT reviewed an analysis of data relating to the timing of discharge and provisional discharge and a report of initial findings. At this meeting, the QALT discussed the role of the Department's Housing Supports
8The membership of the QALT was listed in the Ninth Compliance Update Report (Doc. No. 531 at 6-7).
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Division in assisting the transition of this person and other current or future clients' transition out of MSH. The group also highlighted the importance of counties in successfully transitioning a person with developmental disabilities out of MSH. Direct Care and Treatment staff presented information on the importance of housing, and staff availability and flexibility, to help persons transition out of MSH. QALT has scheduled follow-up to discuss what the Department could do to help current and future clients transition out of MSH more quickly as well as prevent persons committed solely as a person with a developmental disability from admission to MSH.
Single Point of Entry: In June 2016, the QALT asked Department staff to review the Internal Reviewer's recommendations to improve the Single Point of Entry Project and to develop an implementation plan for these changes. The QALT established a work group that will follow up on this project in future meetings.
Standardization of Training: The Internal Reviewer submitted a proposal to the QALT at the July 20, 2016, meeting regarding the feasibility of standardizing training across Department divisions. The Internal Reviewer presented the recommendation from the Court regarding standardization of training (see Doc. No. 551 at 11), and the QALT agreed to consult in a review of training across the agency to consider opportunities for standardization. The QALT asked Department divisions to submit information on whether they provide training in any of the areas identified in the CPA. This information will be presented at the September QALT meeting. A subcommittee of the QALT involving relevant division representatives will then explore opportunities for standardization and report back to the QALT.
Minnesota's Olmstead Work Plans
In sections of the Ninth Compliance Update Report (Doc. No. 531), the Department noted that some Olmstead work plan objectives address challenges related to community capacity in the context of transition planning, developing appropriate supports, assisting Facility residents towards more integrated community settings, and facilitating transfers out of MSH and Anoka Metro Regional Treatment Center. (Doc. No. 531 at 34-35, 38, 55, 57). Below is a list of examples of progress made during the reporting period in the areas of the Olmstead work plans that most closely touch on these themes-namely, Person-centered Planning, Transition Services, and Housing and Services.9
Person-Centered Planning and Transition Services • Disability Services Division developed the Person-Centered, Informed Choice and Transition Protocol; all lead agency support planners are required to follow this protocol. This process is
9 It should be noted that the relevant criteria in the CPA focus on a narrow aspect of these themes-outcomes for specific groups of persons with developmental disabilities-while the Olmstead work plans address each theme across a wider population.
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designed to support people having and understanding real options in where and how they live so they can exercise informed choice. • DHS has issued various communications and tools, provided training and mentorship in person-centered practices in a number of formats and venues. • The Department and the Minnesota Department of Education have worked with the University of Minnesota's Institute for Community Integration to develop a plan for building a training and technical assistance infrastructure that will support person-centered practices. • Disability Services Division established a new requirement for MnCHOICES10 assessors to complete training in person-centered approaches. Housing and Services • The Department implemented the 2015 legislative changes to the Group Residential Housing (GRH) program to increase choice and access to individualized housing and supports, including communications and training. • The Department increased access to information about integrated housing options for persons with disabilities using improved web-based approaches. • The Department hosted "Housing Best Practices" forums for planners and other professionals to provide tools and build skills in developing individualized housing solutions. • The Department utilized new Section 811 Project Rental Assistance funding. More information is available on these activities in the reports to the Court on the Olmstead Plan.
10 MnCHOICES is a person-centered assessment to help people with long-term or chronic care needs make care decisions, and select support and service options.
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Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report Reporting Period: October 1, 2015 to June 30, 2016
Evaluation Criteria State of Completion (Scheduled for Semi-Annual Reporting)
Settlement Agreement Section IV. METO Closure
Evaluation Criteria 2: Facilities utilize person-centered planning principles and positive behavioral supports consistent with applicable best practices including, but not limited to the Association of Positive Behavior Supports, Standards of Practice for Positive Behavior Supports
Responsible Party: Minnesota Life Bridge Clinical Coordinator
Current Status
The Facility incorporates use of person-centered planning principles and positive behavioral supports consistent with applicable best practices throughout their process, which begins with the PersonCentered Description. All eight persons served at MLB treatment homes11 during the reporting period engaged with their team and/or the MLB Person Centered Planning Facilitator to contribute to the greatest extent possible to their Person-Centered Description. All persons participated in Picture of a Life, PATH, or MAPS12 to develop their Person-Centered Plan, which directly informed their Positive Behavior Support Plan. Persons worked collaboratively with the Person Centered Planning Facilitator to create their vision for their future based on what is important to them and important for them. This information guides the development of action steps towards achieving the person's vision.
The Person-Centered Plans of MLB treatment home residents are updated on a monthly basis. MLB staff have developed a method of color-coding revisions and additions to the plan to make it easier to identify who made updates and when. The person and their team contribute to updates during monthly team meetings. Once MLB staff compile information from the team and person into the Person Centered Description-Picture of a Life document, MLB initiates the process of updating the Coordinated Services and Support Plan Addendum (CSSP-A), the Positive Behavior Support Plan, and support outcomes, consistent with Actions 2.3-2.6 and 2.8-2.9.
11 MLB treatment homes include Stratton Lake, Brobergs Lake and the two Eagle Pointe facilities. The term "treatment home" comes from the CPA. (See Doc. No. 283 at 2, 29.) 12 Picture of a Life, PATH (Planning Alternative Tomorrows with Hope), and MAPS (Making Action Plans) are three processes that are commonly used for creating person-centered plans. These tools can be used to help the person think about what is important in their lives now and to think about what would make a good future.
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CASE 0:09-cv-01775-DWF-BRT Document 589 Filed 08/31/16 Page 15 of 120
Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report
Reporting Period: October 1, 2015 to June 30, 2016
During this reporting period, seven of the eight persons served in a MLB treatment home had a Positive Behavior Support Plan in place. As of the end of the reporting period, MLB had not yet developed a Positive Behavior Support Plan for C2, who was admitted on June 10, 2016, as C2 had not engaged in any challenging behaviors since admission. Upon the Internal Reviewer and JOQACO's review, it was recommended that a Positive Behavior Support Plan be developed for C2. MLB is to have the Positive Behavior Support Plan for C2 in place no later than September 15, 2016.
Two people served in a MLB Treatment Home during the reporting period (Tl and J2) met the criteria for a Positive Support Transition Plan (PSTP), outlined in Minn. Stat.§ 245D.02, subd. 23b, and the Positive Supports Rule, Minn. R. 9544.0070, subp. 3, and have PTSPs.
As of this reporting period, seven of the eight persons served in a MLB treatment home has had, consistent with Action 2.6, a Functional Behavior Assessment completed that provides information regarding history and life experiences, the difficulties and problems the person has or currently is experiencing, past strategies, and results of support planning, and that has the content outlined in Action 2.7. The Functional Behavior Assessment informs the person's Positive Behavior Support Plan.
As an example, during this reporting period, J2 and J2's team13 created a MAPS that included the following information: gifts, J2's dream for the future, where J2 would like to live, J2's preferences for family involvement, whether J2 would like a pet, and what J2 would like to explore for work. Target behaviors identified in J2's Functional Behavior Assessment and Positive Behavior Support Plan include physical and verbal aggression, property abuse, self-injurious behavior and elopement. Specific information from the Functional Behavior Assessment and Person-Centered Plan that was used in the development of J2's Positive Behavior Support Plan included the following: characteristics of people that work best with J2; the importance of having a daily plan in place and one that J2 can develop with staff; specific triggers, including issues with food and staff attention; shift transition; and the importance of talking with J2's parents.
To better prepare a person's team for MLB's utilization of person-centered planning and positive behavior supports, MLB management and clinical leads developed a Referral Response letter that MLB sends to the person making the referral, which provides additional details regarding roles and responsibilities, the transition planning process, person-centered planning, and positive behavior supports. If MLB admits a referred person, MLB staff also review the Referral Response letter at the admission meeting and again at the 10-day planning meeting.
13 J2's team included J2, a representative from a provider, J2's father, and J2's case manager.
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CASE 0:09-cv-01775-DWF-BRT Document 589 Filed 08/31/16 Page 16 of 120
Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report Reporting Period: October 1, 2015 to June 30, 2016
Verification
The responsible party verified information submitted to JOQACO for EC 2 through review of individual Person-Centered Descriptions and Transition Summaries and Plans. The responsible party also identified sections of the Transition Summary and Plan that were not complete for certain residents.
At the Cambridge Administrative Office for MLB, JOQACO staff reviewed the Transition Plans and Person-Centered Plans for 52 (Brobergs Lake), J1 (Brobergs Lake), G1 (Stratton Lake), and J2 (Stratton Lake) for the following elements: frequency of plan updates; ability to determine whether and when MLB made updates; actions taken and barriers to transition. JOQACO also conducted follow-up interviews with staff at Brobergs Lake and Stratton Lake. For the plans reviewed, JOQACO found that:
• Information regarding what is important to the person is well documented in the Transition Plans.
• With the exception of J2's Person-Centered Plan, MLB staff color-coded updates to the PersonCentered Plans, making it easier to identify what updates were made and when.
• MLB staff updated the four Transition Plans reviewed on a monthly basis.
JOQACO also identified opportunities for performance improvement including clearer documentation of the Transition Plan regarding options that have been pursued and the identification of outcomes and any barriers.
JOQACO followed up, in writing, with MLB on August 25, 2016, to request an Action Plan by September 15, 2016, that (1) details the steps MLB will take to complete the missing parts of residents Transition Summaries and Plans and to ensure, on an ongoing basis, that all Transition Summaries and Plans are complete; and (2) addresses the identified opportunities for performance review regarding documentation of options pursued as well identification of outcomes and barriers.
JOQACO also reviewed the Referral Response letter referenced above.
Evaluation Criteria 3: Facilities serve only "Minnesotans who have developmental disabilities and exhibit severe behaviors which present a risk to public safety."
Responsible Party: Minnesota Life Bridge Manager
Current Status
The admission criteria for MLB to serve only "Minnesotans who have developmental disabilities and exhibit severe behaviors which present a risk to public safety," became MLB's policy and practice in late 2013. During this reporting period, there were 24 referrals to MLB. To determine if a person referred to
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CASE 0:09-cv-01775-DWF-BRT Document 589 Filed 08/31/16 Page 17 of 120
Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report Reporting Period: October 1, 2015 to June 30, 2016
MLB meets the first criterion for admission-being a person with a developmental disability-the MLB Admissions Team14 reviews the Central Pre-Admission Referral document, available diagnostic and other professional assessments15, as well as service plans.16 The specific information reviewed by MLB in determining whether the first criterion is met depends on what documentation the referral source submits with the MLB referral or what information is available to MLB Y
The person' s history, legal documents, PSTP, and Individual Service Plan are typical documents the MLB Admissions Team reviews to verify whether a person meets the second criterion for admission exhibiting severe behaviors that present a risk to public safety. MLB's admission criteria is not met if the person has behavior that is injurious to oneself but not to others. Behaviors that could put others at risk, such as physical aggression or assault, fire setting, significant property destruction causing high safety risk, use of weapons or objects as weapons, auto theft, sexual behavior which poses a safety risk to others, etc., are examples that may meet MLB's admission criteria.
MLB determined that all 24 people referred during this reporting period met the admission criteria for MLB services. Three (G1, Tl, and J2) of the 24 referrals resulted in an admission to a MLB site. Two of these admissions (G1 and Tl) are Jensen Class Members. During this reporting period, MLB also admitted one person (C2) subject to the "48-hour law."18 C2 met the admission criteria for MLB because C2 has been diagnosed and committed as a person with a developmental disability and has exhibited behavior that poses a risk to public safety.
See Table 1 below for the status of the 24 referrals to MLB during this reporting period.
14 The MLB Admissions Team minimally includes the MLB Manager, Clinical Coordinator, and Transition Coordinator. 15 Assessments reviewed might include psychiatric assessments, psychological or neuropsychological assessments, psychosocial or social history assessments, functional behavior assessments, etc. 16 Service plans reviewed might include Coordinated Service and Support Plan or Individual Service Plan, Individual Abuse Prevention Plan, Individualized Education Program, and Person-Centered Description or Person-Centered Plan. 17 MLB may need to ask for further supporting information or clarifying information if key documents are not included. 1B Minn. Stat.§ 253B.10, subd. l(b).
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CASE 0:09-cv-01775-DWF-BRT Document 589 Filed 08/31/16 Page 18 of 120

Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report Reporting Period: October 1, 2015 to June 30, 2016

Table 1: MLB Referral Outcomes

Month/Year Oct2015
Nov 2015

No of Referrals
3
0

Referral Outcomes
1. Readmitted to MLB (G1) 2. Admitted to TBI Residential and Community Services in Duluth 3. Admitted to Northland Adult Foster Care No referrals

Dec2015 Jan 2016

4

1. Admitted to MLB (Tl)

2. Admitted to a Divine Crisis Home

3. Admitted to Pine City Crisis (MSOCS); Bridges identified as the long-term provider.

4. Admitted to TBI Residential and Community Services in Duluth

1

Person at Regions Hospital; Pinnacle is the identified provider19

Feb 2016
March 2016 April2016

5

1. Admitted to a Divine Crisis Home

2. Admitted to Artesian Homes

3. Admitted to Mount Olivet Rolling Acres; Bridges program identified as the long-term

provider

4. Admitted to Dungarvin

5. Released from jail and living with friends in the community; no longer receives Rule 185

services

3

1. Admitted to MLB (J2)

2. Admitted to Anoka Metro Regional Treatment Center (pursuant to 48-hour law);

Genesis has been identified as the long-term provider

3. Admitted to Genesis Group Homes

0

No referrals

May 2016 June 2016

4

1. In jail; REM identified as the long term provider20

2. Admitted to Mount Olivet Rolling Acres

3. Admitted to Hope Residence

4. In Mercy Hospital 21

4

1. Admitted to Pine City Crisis (MSOCS)

2. In Fairview Hospital; to be admitted to Opal Services

3. Admitted to Hillcrest (MSOCS)

4. County worked with provider (Community Living Options) and services not terminated

19 Pinnacle has made an offer on a home in Golden Valley, which was accepted. Pinnacle is going through the inspection/appraisal process. It will be two to four months before the home is ready. Regions Hospital is advocating for discharge. Person was added to the crisis priority list for a crisis bed. 20 Person admitted to CBS/CSS Crisis Home (Region 10) on July 27, 2016 from jail and will transition to REM after August 1, 2016. 21 Person continues at hospital. The county case manager advised they cannot return to their apartment but the provider has not terminated services. Person added to crisis priority list on July 14, 2016.
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CASE 0:09-cv-01775-DWF-BRT Document 589 Filed 08/31/16 Page 19 of 120
Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report Reporting Period: October 1, 2015 to June 30, 2016
MLB staff also provided diversion support for two people who were not formally referred to MLB: • October 2015: Competency Restoration Training provided to the county case manager and the person was able to remain with provider • April2016: Competency Restoration Training provided to the county case manager and the person is residing at a halfway house.
To ensure that the Department continues to apply the admission criteria stated in EC 3, the MLB Admissions Coordinator will continue to review all referrals and applications to MLB to identify potential admissions as Minnesotans who have developmental disabilities and exhibit severe behaviors that present a risk to public safety. The MLB Admissions Coordinator and the MLB Information Coordinator maintain current data on MLB referrals, admissions, and transitions. MLB staff work with the Disability Services Division Case Manager Policy Lead to help county case managers gain a better understanding of their responsibilities as part of transition planning, and of the resources available within the Disability Services Division to address funding barriers such as the process for requesting a rate exception, if needed. Verification The Department maintains and tracks data on MLB referrals, admissions, and transitions in the CareManager system and/or in the Weekly Diversion Meeting notes. JOQACO reviews Weekly Diversion Meeting notes prior to their dissemination to Plaintiffs' Class Counsel and the Consultants. JOQACO verified the data on referrals to MLB by crosschecking this information against the Weekly Diversion Meeting notes as well as through contacts with the MLB Transition Coordinator, MLB Information Coordinator, and Community-Based Services/Minnesota State Operated Community Services Admissions.
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CASE 0:09-cv-01775-DWF-BRT Document 589 Filed 08/31/16 Page 20 of 120
Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report Reporting Period: October 1, 2015 to June 30, 2016
Settlement Agreement Section VII.B. Restraint Review- Internal Reviewer
Evaluation Criteria 39
In consultation with the Court Monitor during the duration of the Court's jurisdiction, DHS designates one employee as Internal Reviewer whose duties include afocus on monitoring the use of and on elimination ofrestraints.
Responsible Party: Jensen/Olmstead Quality Assurance and Compliance Office Director
Current Status
On December 1, 2015, the Department hired the new Internal Reviewer, Dr. Daniel J. Baker. Consistent with EC 39, the Internal Reviewer's duties, described in more detail below, include a focus on monitoring the use and elimination of restraints at the Facility. The Internal Reviewer also monitors and follows up on the use of PRN medication at the request of the client, and 911 calls at the Facility.
Following each incident of emergency use of manual restraint (EUMR), a 911 call, or use of PRNs at the request of the client, MLB prepares a set of recommendations to provide improved positive supports to reduce the risk of recurrence of the challenging behavior that led to the incident. MLB sends the Internal Review form, which includes this set of recommendations, to the Internal Reviewer who verifies that the strategies identified by MLB are consistent with best practices and are likely to be effective. The Internal Reviewer provides feedback to MLB as appropriate and monitors MLB's progress toward completing these recommendations.
Upon arrival at the Department, the new Internal Reviewer established a weekly call with the MLB Clinical Coordinator, the MLB Information Coordinator, and MLB Community Residential Supervisors and Behavior Analysts. During each of these calls, MLB's efforts to complete the recommendations developed in response to incidents of EUMR, 911 calls, or use of PRNs at the request of the client are reviewed and progress toward reducing the risk of recurrence is discussed. The Internal Reviewer instituted this call to verify that MLB was making steady progress toward completing the recommendations and preventing future incidents. The Internal Reviewer also utilizes this call as an opportunity to provide ongoing guidance in the improvements of positive supports and to act as a source of information and referral. The Internal Reviewer reports progress and efforts to respond to the incidents monthly in the Internal Reviewer Monthly Report. The MLB Information Coordinator facilitates the weekly calls and maintains a spreadsheet, updated weekly, which the Internal Reviewer provides as an attachment to the Internal Reviewer Monthly Report.
During this reporting period, MLB reported 38 incidents that included PRNs at the request of the client, 911 calls, and/or EUMR. MLB uses DHS 3654 Form to report these incidents. Table 2 below presents a summary of these incidents.
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CASE 0:09-cv-01775-DWF-BRT Document 589 Filed 08/31/16 Page 21 of 120

Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report Reporting Period: October 1, 2015 to June 30, 2016

Table 2: Monthly Summary of DHS 3654 Forms Completed

Month October 2015 November 2015 December 2015 January 2016 February 2016 March 2016
April2016
May2016 June 2016

Location
East Central Stratton Lake Brobergs Lake East Central Brobergs Lake East Central Stratton Lake Brobergs Lake East Central Stratton Lake Brobergs Lake Stratton Lake Brobergs Lake Eagle Pointe Stratton Lake Eagle Pointe East Central Stratton Lake Brobergs Lake Eagle Pointe East Central Stratton Lake Brobergs Lake Eagle Pointe East Central Brobergs Lake Eagle Pointe
TOTALS

PRN 1 1 1 1
1 1 1 1 1
2
1
1
13

911 Call

PRN & 911 Call

1

1

1

1

2

1

1

1 1 1

1 3

1 2

16

2

EUMR
1 1
1
3

EUMR & 911 Call
1 1 1
1 4

Table 3 below provides additional information regarding 911 calls identified in DHS 3654 forms and Incident Reports, including the reason 911 was called. 22 See also page 72 for the Internal Reviewer's Update on the Prevalence and Iustification for 911 Calls at the Facility and 911 Call Analysis.

22 Table 3 includes three 911 calls initiated by the individual which are not reflected in Table 2 because calls initiated by the individual are not reported on DHS 3654 Forms.
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CASE 0:09-cv-01775-DWF-BRT Document 589 Filed 08/31/16 Page 22 of 120

Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report
Reporting Period: October 1, 2015 to June 30, 2016

Table 3: 911 Call Summary

Incident Date 11/20/15 11/20/15 12/6/15
1/2/16

Person J1 52 W2
52

1/4/16

J1

1/17/16

52

1/19/16

W2

2/14/16

J1

3/1/16

G1

3/1/16

T1

3/26/16

T1

4/5/16

W2

4/5/16

52

4/5/16

J2

4/22/16

H2

4/23/16

T1

5/1/16

H2

5/08/16

W2

5/14/16

W2

5/30/16

52

5/30/16

T1

6/4/16

Y2

6/15/16

52

6/21/16

H2

6/21/16

T1

Location Brobergs Lake Brobergs Lake East Central
Brobergs Lake
Brobergs Lake Brobergs Lake
East Central
Brobergs Lake
Stratton Lake
Eagle Pointe Eagle Pointe East Central Brobergs Lake Stratton Lake East Central Eagle Pointe East Central East Central
East Central
Brobergs Lake Eagle Pointe East Central Brobergs Lake East Central Eagle Pointe

Reason(s) 911 Called Physical aggression between housemates Physical aggression between housemates Elopement; W2 located by police Physical and verbal aggression; suicide ideation (two 911 calls made) Attempted elopement Property damage; verbal threats W2 feeling unsafe and wanting to hurt self, taken to hospital and admitted Verbal threats; elopement Property damage, G1 requested to go to hospital, taken to hospital and admitted Physical aggression Physical aggression; EUMR; taken to hospital Self-injury; feeling unsafe; admitted to hospital Individual initiated 911 call (Incident Report)
Physical aggression; multiple EUMRs; taken to hospital
Verbal aggression; elopement
Threatening staff; police talked with T1 Elopement to friend's house; police talked with H2, returned home Elopement; W2 requested staff to bring to hospital Elopement; W2 located by police; taken to hospital for possible ingestion of pills Individual initiated 911 call (Incident Report)
Attempted to leave moving vehicle; taken to hospital
Elopement; Y2located by police
Individual initiated 911 call (Incident Report)
Verbal and physical aggression; property damage
Physical aggression; EUMR; taken to hospital

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CASE 0:09-cv-01775-DWF-BRT Document 589 Filed 08/31/16 Page 23 of 120
Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report Reporting Period: October 1, 2015 to June 30, 2016
Verification
As part of the JOQACO internal quality assurance and verification processes, JOQACO developed a database to track all Incident Reports, Behavior Intervention Reporting Forms (BIRFs) and follow-up actions for persons served at MLB and members of the therapeutic follow-up group receiving services at a state-operated facility. This database has been in place since early 2016. JOQACO compares MLB incidents tracked in its database against the incident database maintained by MLB and the incident reports themselves.
JOQACO also maintains copies of the Internal Reviewer's Monthly Reports, which document the Internal Reviewer's activities regarding follow-up to incidents. JOQACO reconciled the data reported in this section with the Incident Reports/BIRFs, information in JOQACO's database, and the Internal Reviewer's Monthly Reports.
Evaluation Criteria 41
The Internal Reviewer will consult with staffpresent and directly involved with each restraint to address: 1) Why/how deescalation strategies and less restrictive interventions failed to abate the threat of harm; 2) What additional behavioral support strategies may assist the individual; 3) Systemic and individual issues raised by the use of restraint; and 4) the Internal Reviewer will also review Olmstead or other issues arising from or related to, admissions, discharges and other separations from the facilittj
Responsible Party: Jensen/Olmstead Quality Assurance and Compliance Office Director
Current Status
EC 41 directs the Internal Reviewer to consult with staff involved with incidents of restraint at the Facilities to address why less restrictive interventions or de-escalation strategies failed, what additional behavioral support strategies may assist the person, and systemic or individual issues raised by the use of restraints. This consultation and review occurs through the process described above in the status update for EC 39, page 20.
EC 41 also directs the Internal Reviewer to review Olmstead or other concerns arising from or related to admissions, discharges, and other separations from the Facility. The Internal Reviewer reviews each MLB admission or discharge and includes this review in the Internal Reviewer Monthly Report. The Internal Reviewer reviews each admission or discharge with a summary of the implications of that admission or discharge for Minnesota's Olmstead vision. The two most significant concerns noted are: (a) long tenures of MLB residents due to difficulties in placement, and (b) incomplete information about the person upon admission. The former is addressed in the sections below related to transition planning (ECs 47-53), and the latter has been addressed in the Internal Reviewer's Monthly Reports, with a summary in the April2016 report.
The Internal Reviewer re-instituted the "Rhythm of the Day" assessments initiated by the prior Internal Reviewer. As done previously, the Internal Reviewer is using the section of the Monthly
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CASE 0:09-cv-01775-DWF-BRT Document 589 Filed 08/31/16 Page 24 of 120
Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report Reporting Period: October 1, 2015 to June 30, 2016
Report entitled "Rhythm of the Day" to assess the degree to which the lives of people supported at MLB include culturally typical rhythms and activities. These assessments are conducted on a quarterly basis. Each assessment highlights, on a rotating basis, an individual residing at MLB. Content includes efforts to improve daytime activities, meaningful work, and preferred recreation for the highlighted individual. The focus is on the degree to which people supported at MLB have the daily rhythms and activities they prefer as documented in their Person-Centered Descriptions (PCD). For example, the Rhythm of the Day section in the Internal Reviewer's June 2016 Monthly Report explained that the current supports for J1 are in significant concordance with J1's preferred lifestyle, but noted that the acquisition of competitive employment remained an area for development and that J1 expressed dissatisfaction with his living quarters being on a lower level of the home. In his July Monthly Report, the Internal Reviewer followed up with J1's situation, noting that, in August, J1 would be moving to an upstairs apartment that would be more consistent with J1's preferences. The Internal Reviewer also noted that J1 is awaiting final approval for admission to a local employment program of J1's choosing. With respect to discharges from MLB, clinical expertise is a limiting factor in effectively supporting Jensen class members and former MLB residents in more integrated settings, consistent with the requirements of the CPA. As the Internal Reviewer has noted in his Monthly Reports, timely transition for MLB residents remains a challenge. During this reporting period, the Internal Reviewer provided training to internal Department staff and external audiences, including providers and lead agency staff (counties and health plans) on a variety of topics relevant to support of class members and MLB residents. These trainings aim to increase clinical expertise in the community, which in turn will help to address the challenge of timely transition for MLB residents, and are summarized in Table 4, below.
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CASE 0:09-cv-01775-DWF-BRT Document 589 Filed 08/31/16 Page 25 of 120

Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report
Reporting Period: October 1, 2015 to June 30, 2016

Table 4: Internal Reviewer Training

Date

Topic

Audience

12/22/2015 2/24/2016

Mental Health Support for People with Intellectual or Developmental Disability23 Person-centered Thinking

3/7/2016 3/15/2016 4/1/2016

Mental Health Support for People with IDD
Mental Health Support for People with IDD Intellectual or Developmental Disability supports

4/15/2016 4/20/2016 4/26/2016 6/1/2016

Mental Health Support for People with IDD
Intellectual or Developmental Disability supports Including a Mental Health Disorder into an FBA Positive Supports

6/14/2016 6/16/2016

Mental Health Support for People with Intellectual or Developmental Disability Positive Supports

Internal: Successful Life Project
Internal, External, and Providers: Personcentered Planning Community of Practice Internal: Crisis Home staff
Internal: CSS staff
Internal and External: Special Needs Health Plan representatives and Mobile Crisis workers24 Internal: PBS Leadership Group
Internal and External: Dakota County Case Managers Group Internal, External, and Providers: Positive Supports Community of Practice Internal, External, and Providers: Special Needs Health Plan representatives Internal, External, and Providers: Special Needs Health Plan representatives Internal, External, and Providers: Mobile Crisis workers

The Internal Reviewer is also an active participant in the following Department work groups/committees with activities that implicate or touch on the JSA, either directly or indirectly:
• DSD-DCT Project Core/Steering Team • Interim (PSTP) Review Panel • Lead Agency Review Subcommittee

23 Because mental health diagnoses are prevalent within the Jensen Class and MLB residents, the Internal Reviewer's training activities related to mental health support for persons with a developmental disability are particularly relevant to the effort to build clinical capacity to support these individuals. For a person with a mental health disorder, knowledge of strategies for including a mental health diagnosis within a Functional Behavior Assessment (FBA) is needed to competently complete an FBA; similarly, knowledge of the nature of the disorder and potential treatments is necessary to establish an effective positive support plan. 24 Mobile crisis workers included mental health outreach workers (mostly private providers) who respond to mental health crises. These persons do not work with people with developmental disabilities (DO) as a focus population, but occasionally respond to a call involving a person with DO who lives with their family.
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CASE 0:09-cv-01775-DWF-BRT Document 589 Filed 08/31/16 Page 26 of 120
Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report Reporting Period: October 1, 2015 to June 30, 2016
• MN Association of Positive Behavior Support • Person-Centered Planning and Equity • Person-Centered Work Group and Person-Centered Examples Subcommittee • Positive Behavior Support Leadership Group • Quality Assurance Leadership Team (QALT)
Through these training and committee activities, the Internal Reviewer has sought to increase relevant clinical expertise and gain familiarity with the services and providers, both internal and external to the Department that provide support to Minnesotans with developmental disabilitiesincluding Jensen Class Members and current or former MLB residents.
Verification
As part of the JOQACO internal quality assurance and verification processes, JOQACO developed a database to track all Incident Reports, BIRFs, and follow-up actions for persons served at MLB and members of the therapeutic follow-up group receiving services at a state-operated facility. This database has been in place since early 2016. JOQACO compares MLB incidents tracked in its database against the Incident Reports and the incident database maintained by MLB.
JOQACO also maintains copies of the Internal Reviewer's Monthly Reports, which document the Internal Reviewer's activities regarding monitoring and follow-up to incidents, his reviews of admissions and discharges, and his quarterly Rhythm of the Day assessments. The data reported in this section were reconciled with the Incident Reports/BIRFs, information in JOQACO's database, and the Internal Reviewer's Monthly Reports.
Settlement Agreement Section VIII. Transition Planning
Evaluation Criteria 47
The State undertakes best efforts to ensure that each resident is served in the most integrated setting appropriate to meet such person's individualized needs, including home or communihJ settings. Each individual currently living at the Facilitt;, and all individuals admitted, will be assisted to move towards more integrated communitt; settings . These settings are highly individualized and maximize the opportunity for social and physical integration, given each person's legal standing. In even; situation, opportunities to move to a living situation with more freedom, and which is more tt;pical, will be pursued.
Responsible Party: Minnesota Life Bridge Clinical Coordinator
Current Status
During this reporting period, MLB served eight people in the four MLB treatment homes. MLB admitted four people during this reporting period and discharged two people to community-based homes.
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CASE 0:09-cv-01775-DWF-BRT Document 589 Filed 08/31/16 Page 27 of 120
Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report Reporting Period: October 1, 2015 to June 30, 2016
MLB makes best efforts to provide each resident with the most integrated or best alternative setting while they plan for further transition to a more integrated setting in the community. MLB starts transition planning upon admission to the Brobergs Lake, Stratton Lake, and Eagle Pointe treatment homes and transition planning continues throughout the person's stay at these sites. More detailed information about the transition planning process at MLB, as well as MLB's efforts to ensure that each resident is served in the most integrated setting appropriate to their needs and that opportunities to move to a more integrated community setting are being pursued, are provided in the status updates to ECs 48-53, see pages 28-36.
In the Ninth Compliance Update Report (Doc. No. 531), the Department reported that it was difficult for some treatment teams to accept the direction or expectations of MLB during the person's stay, such as the importance of seeking permanent options or the importance of positive behavior supports/person-centered approaches. (Id. at 34.) In effort to better clarify MLB's mission, expectations, and reliance on person-centered approaches and positive behavior supports, and to correct any misconceptions up front, MLB management and clinical leads have developed a Referral Response letter that MLB sends to the person making the referral. The Referral Response letter provides additional detail regarding roles and responsibilities and detailed information regarding the transition planning process, person-centered planning, and positive behavior supports. After MLB admits a referred person, MLB staff review the Referral Response letter with the team at the admission meeting and again at the 10-day planning meeting. This new effort has been in place since early 2016.
In the Ninth Compliance Update Report (Doc. No. 531), the Department also reported that one of the challenges to continued compliance with this EC is a lack of community capacity for transitioning persons out of MLB. The Department noted that sections of Minnesota's Olmstead work plans might address some of the challenges regarding community capacity. For a brief list of examples of progress made during the reporting period in the areas of the Olmstead work plans that most closely touch on community capacity and transitioning to the most integrated setting possible, see earlier section on Minnesota's Olmstead Work Plan (beginning on page 12).
Verification
See the verification sections for ECs 48-53, pages 28-36.
JOQACO reviewed, and has on file, a copy of the Referral Response letter discussed in this status update.
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CASE 0:09-cv-01775-DWF-BRT Document 589 Filed 08/31/16 Page 28 of 120
Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report Reporting Period: October 1, 2015 to June 30, 2016
Evaluation Criteria 48
The State actively pursues the appropriate discharge of residents and provided them with adequate and appropriate transition plans, protections, supports, and services consistent with such person's individualized needs, in the most integrated setting and to which the individual does not object.
Responsible Party: Minnesota Life Bridge Clinical Coordinator
Current Status
During this reporting period, two people (Ll and J3) transitioned from MLB to community-based homes. MLB provided both people with adequate and appropriate Transition Plans, protections and services consist with their individualized needs. Both people also received supports from Community Support Services (CSS) to facilitate their transitions.
The Department's pursuit of the appropriate discharge of MLB residents begins with the transition planning process. MLB starts transition planning upon admission to the Brobergs Lake, Stratton Lake and Eagle Pointe treatment homes and continues throughout the person's stay at these sites. The primary guide to the transition planning process is the creation of a PATH, MAPS, or Picture of a Life that the person develops, with the support of the Person Centered Planning Facilitator. The plan covers where the person would like to live, what kind of home they would like, with whom they would like to live, what they will do for fun, what they will do for work, and desired family involvement. This picture-guided description of the person's desired life is translated into written documentation in the Person-Centered Plan and Transition Plan.25
A draft Transition Plan is to be completed within 30 days of admission, consistent with Action 48.1, and is to include requirements identified in the CPA and JSA (see, e.g., Action 52.5). The transition planning process continues throughout the person's stay at MLB. The person and their team contribute to transition planning and plan updates through monthly team meetings. During these monthly meetings, an agenda is created, the items discussed, action items set for the next meeting, and the Person-Centered Plan and Transition Plan updated with newly learned information.
During an on-site visit in July 2016, JOQACO conducted a spot check verification review of transition plans for four persons served at Brobergs Lake and Stratton Lake (more detail below under "Verification"). JOQACO confirmed that all four of the persons had transition plans and that MLB updated these plans on a monthly basis. However, it took longer than 30 days to develop a transition
25 Near the beginning of the reporting period, MLB began using an improved Transition Plan format that enhanced the team's ability to create effective Transition Plans. Feedback received from providers has been positive. The Department provided the Court Monitor, Plaintiffs' Class Counsel, and Consultants with a draft copy of the revised Transition Plan in March 2015 for feedback, as well as the final version of the Transition Plan in May 2015.
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plan for two of the persons (J2 and Tl) admitted during the reporting period. MLB reported that the delay in initiating the two transition plans was due in part to a delay in receiving documentation from the referral source.26 JOQACO followed up in writing with MLB in August 25, 2016, requesting an Action Plan by September 15, 2016 detailing the steps MLB will take to ensure that Transition Plans are developed within 30 days of admission, notwithstanding delays in receiving referral documentation.
As part of the transition planning process and its efforts to pursue the appropriate discharge of residents, MLB ensures that residents have the opportunity to explore potential homes and communities. For example, in October and December 2015, S2 visited and toured four different homes to find out if they would be a good match for S2's preferences. In January 2016, representatives from Hermantown came to Brobergs Lake to meet with J3 to discuss J3 visiting and potentially relocating to the Hermantown Midway House. In February 2016, two providers attended G1's team meeting to see if G1 was interested in learning more about their services. MLB reports that the providers are looking to develop a new site for G1 and are searching for property in the communities of G1's choice.
In the Ninth Compliance Update Report (Doc. No. 531), the Department reported that one of the challenges to continued compliance with this EC is a lack of community capacity for transitioning persons out of MLB. The Department noted that sections of Minnesota's Olmstead Work Plan might address some of the challenges regarding community capacity. For a brief list of examples of progress made during the reporting period in the areas of the Olmstead Work Plan that most closely touch on community capacity and transitioning to the most integrated setting possible, see earlier section on Minnesota's Olmstead Work Plan (beginning on page 12).
Verification
JOQACO reviewed the Transition Plans for the two people (Ll and J3) who transitioned from MLB to community-based homes during this reporting period. Both 11 and J3's Transition Plans were consistent with requirements for transition planning identified in EC 49 - EC 53, including the following:
• The person and their family or other people chosen by the person are involved to the greatest extent possible given each situation (EC 49).
• Person-centered principles and processes are used to obtain the greatest degree of selfdetermination and independence possible for that person throughout the process (EC 50).
26 The Internal Reviewer has also documented the delay in receiving referral information in his Monthly Reports.
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Reporting Period: October 1, 2015 to June 30, 2016
• Persons are given opportunities express choices regarding preferred activities contributing to their quality of life (EC 51).
JOQACO compared Ll's "Person-Centered Description- Picture of a Life and Action Planning" document with their "Transition Summary and Plan" document. Ll's Transition Summary and Person-Centered Description contain consistent documentation of Ll's choices regarding where they want to live. The new provider staff were involved in Ll's transition planning process prior toLl's move. Ll is very close to and active with their family and wanted to move close to them. Ll's family lives in the same town, as Ll's new home.
JOQACO also compared J3's "Person-Centered Description- Picture of a Life and Action Planning" document with their "Transition Summary and Plan" document. J3's Transition Summary and the Person-Centered Description contain consistent documentation of J3's choices regarding where they want to live. J3 would like to live in a big city to meet new people and have fun activities- J3 moved to an area that meets these criteria. At the time of J3's transition, J3 was still exploring possibilities for jobs. J3's staff, case manager, and Ombudsman have all been actively involved with J3.
JOQACO targeted on-site verification for EC 48. JOQACO wanted to obtain a better understanding of options being pursued and barriers to transition. At the Cambridge Administrative Office for MLB, JOQACO staff reviewed the Transition Plans and Person-Centered Plans for 52 (Brobergs Lake), Jl (Brobergs Lake), Gl (Stratton Lake) and J2 (Stratton Lake) for the following elements: frequency of plan updates, ability to determine whether and when MLB made updates, actions taken, and barriers to transition. JOQACO also conducted follow-up interviews with staff at Brobergs Lake and Stratton Lake. For the plans reviewed, JOQACO found that:
• Information regarding what is "important to" the person is well documented in the Transition Plans. This information is important to identify and target options preferred by the person.
• With the exception of J2's Person-Centered Plan, MLB staff color-coded updates to the PersonCentered Plans, making it easier to identify what updates were made and when.
• MLB updated the four Transition Plans reviewed on a monthly basis.
JOQACO also identified opportunities for performance improvement, including the following:
• JOQACO determined that MLB staff initiated only two of the four draft Transition Plans reviewed within the 30-day period stated in Action 48.1. This delay in initiating the Transition Plan is a barrier to transition that MLB needs to address.
• MLB needs to provide clearer documentation in the Transition Plan regarding options that have been pursued, identification of outcomes and any barriers to transition.
• After identification of a provider, MLB should have a standardized process for transition planning to clarify who is responsible for each task and the necessary timeline (for areas such as operations, clinical, and logistics).
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• MLB and Community-Based Services need to develop strategies regarding the transition of persons who no longer require MLB level of services but are reluctant to leave MLB.
JOQACO has verbally communicated with the Community-Based Services Director the above identified opportunities for performance improvement. JOQACO followed up in writing with MLB and Community-Based Services on August 25, 2016 requesting an Action Plan by September 15, 2016, to address the identified opportunities for performance improvement.
Evaluation Criteria 49
Each resident, the resident's legal representative and/or family to the extent permitted by law, has been permitted to be involved in the team evaluation, decision making, and planning process to the greatest extent practicable, using whatever communication method he or she (or they) prefer.
Responsible Party: Minnesota Life Bridge Clinical Coordinator
Current Status
MLB takes steps to encourage each person, the person's legal representative and/or family, to the extent permitted by law, to be involved in the processes detailed in the status updates for ECs 48 and 50-53. MLB documents family, friends, and other non-paid supports involved in the planning processes within the Person-Centered Description-Picture of a Life Plan (name, time known, and role) and within the Transition Plan. The person, however, has the final say on what is included in the plans and therefore what is in the plans ultimately comes from the person.
Team meetings can and have been scheduled on weekends to accommodate family and guardian work schedules. MLB house staff have set up their own conference call account and have purchased a wireless Bluetooth speaker device to ensure guardians can hear and be heard during telephone meetings, which encourages their continued participation. The following are some specific examples of choices made by MLB residents and facilitated by MLB regarding participation in planning:
• G1 has set the dates and times that work best as to when and where to have G1's team meeting. They have invited their guardian and case manager to attend. Their guardian is the person they consider closest to them and therefore their most desired attendee. MLB staff ensure that the guardian is contacted via their preferred method for dates, times, and if changes happen regarding G1's meeting. MLB staff transport G1 to their meetings when they occur outside of the home.
• Due to the inability of 52's guardian to secure transportation to Cambridge, MLB staff have been transporting 52 to the guardian's town for team meetings, thereby ensuring 52's guardian has continued participation in the planning process.
• Due to the long drive for J3's guardian, MLB staff have transported J3 to the guardian's area for team meetings, both to visit people J3 knows and misses and to ensure J3's guardian is able to attend the meeting and participate in the planning process.
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• Due to Jl's guardian living out-of-state, MLB home staff use their conference call account and the wireless Bluetooth speaker device (to ensure the guardians can hear and be heard during meetings) in order to ensure continued participation of J1's guardian.
• J2's guardians are usually not available to attend J2's meetings in person, so MLB home staff use their conference call account and the wireless Bluetooth speaker device (to ensure the guardian can hear and be heard during meetings) in order to ensure continued participation of both guardians.
• Tl's family supports live out-of-state, so the MLB home staff use the conference call account and wireless Bluetooth speaker device (to ensure the guardian can hear and be heard during meetings) in order to ensure Tl's family's contin~ed participation. In addition, MLB has held team meetings on weekends, to accommodate T1's family's work schedules.
As noted above in the status update for EC 47, in early 2016, the MLB management and clinical leads developed a Referral Response letter that MLB sends out at the time a referral is made to the program. This letter provides additional details regarding roles and responsibilities, the transition planning process, person-centered planning, and positive behavior supports at MLB. If MLB admits a referred person to one of the MLB homes, MLB reviews this letter at the admission meeting and again at the 10-day planning meeting. This letter includes information on the involvement of the person and their team in evaluation, decision-making and planning processes.
Verification
The responsible party verified information submitted to JOQACO for EC 49 through review of individual Transition Summaries, Transition Plans, and Progress Review Meeting minutes for persons at MLB treatment Homes.
JOQACO reviewed a copy of the Referral Response letter.
Evaluation Criteria 50 To foster each resident's self-determination and independence, the State uses person-centered planning principles at each stage of the process to facilitate the identification of the resident's specific interests, goals, likes and dislikes, abilities and strengths, as well as support needs.
Responsible Party: Minnesota Life Bridge Clinical Coordinator
Current Status
MLB uses person-centered planning principles at each stage of the transition planning process, beginning with the Person-Centered Description. As explained in the status update to EC 2, during this reporting period, all eight persons served at MLB treatment homes engaged with their team and/or the MLB Person Centered Planning Facilitator to contribute to the greatest extent possible to their Person-Centered Description. All persons served at MLB treatment homes during the reporting
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period participated in Picture of a Life, PATH, or MAPS to develop their Person-Centered Plan. The information in the Person-Centered Plan informs the person's Transition Plan, Positive Behavior Support Plan, and other key documents such as the Individual Service Plan and Coordinated Services and Support Plan Addendum, consistent with Action 50.3.
The Person-Centered Plans and Transition Plans of MLB treatment home residents are updated on a monthly basis, consistent with Action 50.2. MLB staff have developed a method of color-coding revisions and additions to the plan to make it easier to identify who made updates and when. The person and their team contribute to updates through monthly team meetings.
As explained in greater detail in EC 49, MLB takes steps to ensure that the person and their legal representatives and/or family members are involved in the planning process to the greatest extent practicable. See pages 31 and 32, for examples of choices made by MLB residents and facilitated by MLB regarding participation in planning.
Verification
The responsible party verified information submitted tq JOQACO for EC 50 through review of individual Person-Centered Descriptions, Transition Summaries, and Transition Plans of persons at MLB treatment homes.
JOQACO conducted on-site verification activities with respect to Transition Plans of MLB residents at the Brobergs Lake and Stratton Lake homes. See the "Verification" section for EC 48, pages 29-31, for more detail about these verification activities and JOQACO's findings.
Evaluation Criteria 51 Each resident has been given the opportunity to express a choice regarding preferred activities that contribute to a quality life.
Responsible Party: Minnesota Life Bridge Clinical Coordinator
Current Status
Consistent with Actions 51.1 and 51.2, each person residing at an MLB treatment home has the ability to plan their day and to fill their day with activities that are important to them and important for them. Planning is done through general conversation, weekly house meetings, Positive Behavior Support Review meetings, or use of a daily planning or trip planning tool.
Prior to any community trip, staff discuss with the person when, where and how long the outing will be; who will be with the person during the outing; whether the person would like to attempt conversation with peers or others; and whether the person would like to meet a new person on the outing. MLB details this process in the person's individual support plan.
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The following is an example of how MLB has facilitated the ability of persons to have daily opportunities to engage in meaningful activities that are personalized, individualized, and selected by the person:
It is very important to S2 that people who support them make plans with them. When staff make plans for S2, or others change S2's plans, it can be very frustrating or confusing for S2 and is a primary source of problem behavior occurrence. When discussing plans with S2, staff offer or remind S2 of activities that are important to S2, program objectives, and related activities in which it is important for S2 to participate.
Verification
The responsible party verified information submitted to JOQACO for EC 51, through review of individual Transition Summaries and Transition Plans, Progress Review Meeting minutes, and Community Services and Support Plan Addendum - Progress Report and Recommendations for persons served at an MLB treatment home.
Evaluation Criteria 52 It is the State's goal that all residents be served in integrated community settings and services with adequate
protections, supports and other necessary resources which are identified as available by service coordination. If
an existing setting or service is not identified or available, best efforts will be utilized to create the appropriate setting or service using an individualized service design process.
Responsible Party: Minnesota Life Bridge Clinical Coordinator
Current Status
During this reporting period, two persons (Ll and J3) transitioned from MLB to community-based homes. Both individuals had Transition Plans, which JOQACO reviewed for consistency with their needs and preferences (see "Verification" section below for more details). Both people also received supports from Community Support Services (CSS) to facilitate their transitions.
As part of MLB's efforts to assist people in moving forward to living in a more integrated setting that is consistent with person's needs and preferences, with adequate protections, supports and other necessary resources, MLB provides each person with opportunities to explore potential future home communities and potential future service providers. Some examples from this reporting period include:
• In October and December 2015, S2 visited and toured four different homes to find out if they would be a good match for S2's preferences.
• In January 2016, representatives from a home in Hermantown came to Brobergs Lake to meet with J3 to discuss J3 visiting and potentially relocating to the Hermantown.
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• In February 2016, two providers attended G1's team meeting to see if G1 was interested in learning more about their services. MLB reports that the providers are looking to develop a new site for G1 and are searching for property in the communities of G1's choice.
Verification:
JOQACO reviewed the Transition Plans for the two people (Ll and J3) who transitioned from MLB to community-based homes for compliance with EC 52. More specifically, JOQACO compared Ll's "Person-Centered Description -Picture of a Life and Action Planning" document with their "Transition Summary and Plan" document. L1's Transition Summary and Person-Centered Description contain consistent documentation of L1's choices regarding where they want to live. The new provider staff were involved in L1's transition planning process prior to L1's move.
JOQACO also compared J3's "Person-Centered Description - Picture of a Life and Action Planning" document with their "Transition Summary and Plan" document. J3's Transition Summary and the Person-Centered Description contain consistent documentation of J3's choices regarding where they want to live. J3's staff, case manager, and Ombudsman have all been actively involved with J3. (See also the Internal Reviewer's May and June Monthly Reports for a review of J3's discharge).
Evaluation Criteria 53 The provisions under this Transition Planning Section have been implemented in accord with the Olmstead decision .
Responsible Party: Minnesota Life Bridge Clinical Coordinator; Minnesota Life Bridge Director
Current Status
MLB continues to implement person-centered transition planning and provide people with opportunities to receive services in integrated settings, in accord with the Olmstead decision, to the extent possible and according to the preferences of the person. MLB, by its overall design, is a temporary treatment program meant to help people move forward into more integrated settings. Persons served are highly involved in developing their Person-Centered Descriptions and Transition Plans. If, after being provided with information to make an informed choice, they choose a "segregated" service, MLB documents this choice in their individual record. Persons and their support teams are encouraged to make an informed choice for future providers and MLB encourages transition to more independent settings whenever possible. During this reporting period, no person at MLB was transitioned to services in a more segregated setting.
MLB continues to work with providers willing to serve persons with complex behaviors and needs and to stress the necessity of identification of customized supports, driven by the Person-Centered Plan developed by the person and consistent with the requirements for transition planning outlined in EC 49- EC 53.
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Verification See Verification for EC 48, pages 29-31.
Settlement Agreement Section IX.D. Other Practices at the Facility- No Inconsistent Publicity
Evaluation Criteria 64 The Facility has a mission consistent with the Settlement Agreement and this Comprehensive Plan ofAction. Responsible Party: Minnesota Life Bridge Manager Current Status The mission of MLB can be described by the phrase, "Successful Transition to a Successful Life." Consistent with EC 3, MLB serves adults who have been determined to have a developmental disability and who exhibit severe behavior that poses a risk to public safety. MLB's residential treatment services are intended to be short-term, lasting no longer than is necessary to stabilize the person's behavioral crises and facilitate successful transition to living in homes of their choosing. MLB requires the use of positive behavioral supports and person-centered planning approaches consistent with best practices and prohibits the use of mechanical restraints of any kind, prone restraint, chemical restraint, seclusion and time out, and all other aversive or deprivation practices. The Department described these principles in the Bulletin on MLB (# 14-76-01), issued on April29, 2014. This Bulletin has been revised and updated and is now in the process of being finalized and approved. The Department expects the updated Bulletin to be available on its public web site in September 2016. The Department is also updating the Community-Based Services ManuaP page about MLB for consistency with the updated Bulletin. These updates seek to explain more clearly and concisely the mission and services of MLB, which are consistent with the JSA and CPA. Verification JOQACO has reviewed and provided input on the updated Bulletin and associated documents.
27 The Community Based Services Manual is an on-line reference tool for lead agencies who administer home and community-based services that support older Minnesotans and people with disabilities located on the department's County Link web site at http://www.dhs.state.mn.us/main/id 000402.
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Settlement Agreement Section X.A. System Wide Improvements - Expansion of Community Support Services
Evaluation Criteria 67 The expansion of community services under this provision allows for the provision of assessment, triage, and care coordination to assure persons with developmental disabilities receive the appropriate level of care at the right time, in the right place, and in the most integrated setting in accordance with the U.S. Supreme Court decision in Olmstead v. L.C., 527 U.S. 582 (1999).
Responsible Party: Community Supports Services Director
Current Status
During this reporting period, Community Support Services (CSS) mobile teams provided assessment, triage, and care coordination to 298 persons with developmental disabilities. This number includes 61 individuals who received long-term monitoring; the supports provided to individuals receiving longterm monitoring will be addressed in more detail in ECs 68 and 69.
JOQACO requested additional information for a random sample of the 237 persons that received CSS supports, excluding the persons who received long-term monitoring during the reporting period. The following are examples of supports received by persons in this random sample:
• E1 lost their residential placement after involvement with the criminal justice system. CSS assisted the person's team to secure placement in a group home and provided direct support, care coordination, and technical assistance during E1's transition from jail to the new home. After the move, CSS continued to provide care coordination and consultation to ensure a successful transition and development of programming to support E1's efforts toward a desired community lifestyle. Supports are ongoing.
• F1 was referred to CSS because F1's interfering behaviors, such as elopement and inappropriate touching, were leading the provider to have difficulty keeping staff and had led F1's employer to cut down F1's work hours. CSS completed a FBA and collaborated with F1's team to develop recommendations and supports based on the FBA. CSS monitored and assisted with the team's implementation of these recommendations. At the end of the reporting period, CSS was in the process of assisting F1's team with updating F1's PersonCentered Plan and with adjusting F1's Work Plan to address Fl's dissatisfaction with current tasks/assignments. Supports are ongoing.
• I1 was referred to CSS based on concerns regarding Il's unsafe behavior on social media and difficulty with boundaries. CSS worked directly with I1 and provided technical assistance to Il's staff to help improve Il's social skills and understanding of safety and boundaries. Supports are ongoing.
• During the reporting period, CSS provided regular consultation and technical assistance to Sl's team regarding behavioral concerns at home and work. By the end of the reporting
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period, S1 was exhibiting fewer target behaviors, displaying less intense aggression, and was exploring the possibility of an additional vocational placement. Supports are ongoing.
These are just some examples of how CSS services support persons with developmental disabilities to assure that they receive the appropriate level of care at the right time, in the right place, and in the most integrated setting possible.
Verification
The responsible party reported to JOQACO that he verified the number of persons who received supports from CSS and verified that persons were receiving the appropriate level of care, at the right time, in the right place, in the most integrated setting possible, through the following process:
1. The responsible party reviewed information obtained from the CSS Project Tracking System28 listing all people with developmental disabilities served by CSS for the period October 1, 2015 through June 30, 2016. CSS provided the spreadsheet listing these people to JOQACO, after the responsible party confirmed with staff that this spreadsheet accurately reported the data pulled from the CSS Project Tracking System.
2. To distinguish between people receiving standard CSS supports versus people receiving longterm monitoring (see ECs 68 and 69), the responsible party eliminated all people listed on the spreadsheet detailing persons who received long-term monitoring during the reporting period. This eliminated 61 people from the spreadsheet. The resulting list of 237 people served by CSS during the reporting period is documented on a separate spreadsheet, also provided to JOQACO.
3. The responsible party selected a random sample29 for verification of clinical activities. The sample size was 5% of the number of people with developmental disabilities served by CSS during the reporting period, excluding persons receiving long-term monitoring.
4. For persons in the random sample, the responsible party then reviewed key elements of the case notes, quarterly reports, and other documentation to verify that supports were provided during the reporting period and that the supports provided were appropriate.
JOQACO also conducted its own verification activities with respect to EC 67, obtaining case notes for a random sample of 15 people, or about 6%, who were included in the CSS case notes database during the reporting period, excluding persons receiving long-term monitoring. JOQACO reviewed the case notes to verify that people included in the random sample received supports from CSS during the reporting period and that these supports were appropriate. JOQACO contacted a CSS worker to
28 Database housing CSS case notes and billing information. 29 The responsible party used a random number generator (www.random.org) to generate numbers corresponding to the spreadsheet row number of individuals in the population.
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clarify information about the supports provided to two people. The CSS worker responded by email to provide additional details and verify the case notes.
JOQACO's review confirmed that during the reporting period, 12 out of 15 people in the sample received supports from CSS, each spanning periods of four or more months. The case note entries document that CSS provides frequent interactions with people receiving supports and their team. Services provided are person-centered and address the person's specific situation, needs, and preferences.
JOQACO identified opportunities for performance improvement with respect to CSS' data. Of the 15 people in the random sample, two did not actually receive supports during the reporting period. The case notes for these two people indicate that CSS made contact with the case manager or team to inquire about the need for CSS services, but that CSS was informed that its involvement was unnecessary. Another person in the random sample did in fact receive services from CSS, but nearly all of these supports were provided before the reporting period; CSS kept the person's case open from October-December 2015 in case the Interim Review Panel required any follow-up from CSS regarding the person's Positive Support Transition Plan. JOQACO is meeting with the CSS Director and staff in September 2016 to determine whether there is a way of flagging persons in these types of situations so that CSS and JOQACO can more easily obtain a complete and accurate picture of who is receiving what services from CSS at any given time.
Evaluation Criteria 68 The Department identifies, and provides long term monitoring of, individuals with clinical and situational complexities in order to help avert crisis reactions, provide strategies for service entry changing needs, and to prevent multiple transfers within the system.
Responsible Party: Community Supports Services Director
Current Status
During the reporting period, CSS provided long-term monitoring ("Extended Supports") to 61 persons with clinical and situational complexities. JOQACO requested additional information for a random sample of the 61 persons who received long-term monitoring during the reporting period. The following are examples of supports received by persons in this random sample:
A3: CSS had been providing long-term monitoring to A3 before this reporting period, and continued services up until the last month of this reporting period, when CSS transitioned A3's follow-up to the Successful Life Project (SLP). The outcome goals for CSS involvement were actually met in April 2016, but CSS remained involved with A3 for an additional time period for continuity of supports.
While A3 received long-term monitoring, there were meetings with A3 and A3's support team at least every two months. A3 wanted to start a business; CSS facilitated team meetings to discuss issues relevant to this goal, including any effects on SSI payments, what would happen if A3 could not do
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the work for a day or two, staff concerns about safety, and what would need to be done for A3 to set up a corporation. CSS also fielded questions from A3. A3 was asked to present on the business at a regional human services meeting in June 2016, and reportedly did an excellent job talking about the business. SLP is now the contact for ongoing follow-up for A3.
M3: In October 2015, CSS received a request for technical assistance from M3's residential provider. The CSS worker provided technical assistance and reviewed M3's current behavioral functioning and incidents at the home. CSS also provided consultation on crisis planning. Due at least in part to this assistance, M3 did not have to leave the residence.
When there was an incident later in the reporting period that resulted in a hospital stay and 72-hour hold, CSS provided care coordination and discussed support resource strategies with the residential provider. At the last team meeting during the reporting period, M3 and M3's team reviewed and discussed M3's Positive Support Transition Plan data, progress at work, and implementation of M3's Positive Support Transition Plan in the home and across environments. CSS support continues.
As these examples illustrate, CSS' long-term monitoring efforts have provided strategies to address changing needs and to prevent transfers within the system.
Verification
As part of their verification process, the responsible party verified the total number and names of people by crosschecking each entry on the spreadsheet provided to JOQACO with project entries in the CSS Project Tracking System. The responsible party eliminated cases that were closed prior to October 1, 2015. The responsible party selected a random sample for verification of clinical activities; the sample size was 5% of the number of people receiving long-term monitoring during the reporting period. The responsible party then reviewed the CSS Quarterly Reports for each person in the sample.
JOQACO also conducted verification activities with respect to EC 68, obtaining case notes for a random sample of 10 out of the 61 people who received long-term monitoring during the reporting period. JOQACO's review confirmed that, during the reporting period, all of the people in the random sample received monitoring and supports from CSS. As of the end of the reporting period:
• CSS monitoring and supports were ongoing for eight people; • CSS had transferred one case to SLP; and • CSS had closed one case because the person had made progress such that they no longer
required long-term monitoring by CSS.
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Evaluation Criteria 69 Approximately seventy five (75) individuals are targeted for long term monitoring. Responsible Party: Community Supports Services Director Current Status
As discussed in the status update for EC 68, during the reporting period, CSS provided long-term monitoring to 61 people with clinical and situational complexities. Verification
As part of their verification process, the responsible party verified the total number and names of people by crosschecking each entry on the spreadsheet provided to JOQACO with project entries in the CSS Project Tracking System. The responsible party eliminated cases that were closed prior to October 1, 2015.
JOQACO also conducted verification activities with respect to EC 68, obtaining case notes for a random sample of 10 out of the 61 people who received long-term monitoring during the reporting period. JOQACO's review confirmed that, during the reporting period, all of the people in the sample received monitoring and supports from CSS. Evaluation Criteria 70 CSS mobile wrap-around response teams are located across the state for proactive response to maintain living arrangements.
Responsible Party: Community Supports Services Director Current Status
CSS maintains 9 mobile wrap-around response teams and 23 office locations across the state30. CSS mobile teams promote positive supports and build collaborative support networks to strengthen the integrated community living of persons with complex behavioral health challenges.
To prevent and resolve behavioral crises, CSS mobile teams provide outreach services including: • Augmentative staffing supports
30 The CSS Brochure with information on the location of the statewide teams can be found on the Department's web site at https://edocs.dhs.state.mn.us/lfserver/Public/DHS-6506-ENG.
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• Assessment • Consultation • Engagement and coordination with community resources and • Training
CSS staffs each mobile team with at least two people with experience and training in behavior analysis, social work, psychology, nursing, and/or organization development and training. When CSS mobile supports are engaged, at least one member of the mobile team provides outreach services, in consultation with other mobile team members. To build collaborative support networks around persons supported, CSS mobile teams work in coordination with the person's team and community resources to prevent or resolve behavioral crises.
CSS' mobile teams receive administrative and managerial support from CSS Director, Southern and Northern Regional Managers, two Office Coordinators, and Direct Care and Treatment Information Technology Specialists. The administrative and managerial support provided by these people facilitates data collection and central data management related to CSS mobile team activities.
During the reporting period, CSS received 17 satisfaction surveys from persons who received services from CSS mobile teams, eight satisfaction surveys from legal representatives of persons unable to complete the survey, and 50 surveys from county case managers.
The surveys CSS received from the persons who received services or their legal representatives contained the following responses:
• 100% (17/17) of persons who received CSS mobile team services responded positively to the statement "I learned things that helped me."
• 75% (6/8) of legal representatives responded positively to the statement, "CSS helped the person receiving services with their challenges."
A review of the responses CSS received from the person's lead agency case manager revealed the following:
• 94% (47/50) responded positively to the statement, "CSS responded in a timely manner." • 96% (48/50) responded positively to the statement, "Requests for services and/or expected
outcomes were achieved." • 87% (39/45) responded positively to the statement, "CSS intervention helped prevent a loss of
placement, prevented hospitalization, or prevented placement in a more restrictive setting."
Five survey respondents, including three county case managers, one contracted case manager and one service recipient, identified specific concerns in their survey responses including:
• Expected outcomes (1)
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• Waiting period (3) and • Wanted CSS to assist in finding them a job (1).
CSS followed up directly with the four case managers and the CSS lead consultant for the service recipient to ensure a full understanding of the concern, provide clarifying information, and address any system issue within CSS. CSS did not make a direct follow-up with the service recipient as other support network members were addressing the concern expressed (wanting CSS to assist them in getting a job).
Verification
As part of their verification process, CSS reviewed the CSS Staff Directory report, which was last updated April14, 2016. CSS also crosschecked staff against the CSS Contacts on the CSS SharePoint site, which CSS updates routinely as staff changes occur.
The responsible party assigned to this EC responded personally to three of the survey responders and the CSS lead consultant for the service recipient. The CSS Southern Regional Manager followed up with the fifth survey respondent.
The concerns indicated in surveys and CSS' responses to these concerns are documented in CSS' Client and Customer Concern Response Log, which CSS provided to JOQACO.
JOQACO reviewed the following documents submitted by CSS to confirm that these documents supported the information provided by CSS: the CSS spreadsheet with survey responses from persons receiving services, legal representatives and county case managers; the survey response log; and the CSS staff directory.
Evaluation Criteria 71 CSS arranges a crisis intervention within three (3) hours from the time the parent or legal guardian authorizes CSS' involvement.
Responsible Party: Community Supports Services Director
Current Status
As explained in the status update for EC 70, CSS maintains 9 mobile teams and 23 office locations throughout the state.
During this reporting period, CSS arranged for a crisis intervention in 12 persons' situations. CSS arranged a crisis intervention within three hours from the time the parent or guardian authorized CSS' involvement in nine out of the 12 cases. See Table 5 below.
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Table 5: CSS Crisis Intervention

Date &Time Consent Received

Date & Time of First Official Contact

Time Between Consent and Initial Contact (Hours)

01/07/2016 08:40AM

01/07/2016 12:30 PM

3.83

04/20/2016 03:12 PM

04/20/2016 04:51 PM

1.65

02/11/2016 11:07 AM

02/11/2016 11:43 AM

0.60

10/26/2015 12:32 PM

10/26/2015 01:23PM

0.85

11/16/2015 09:00AM

11/16/2015 09:00 AM

0.00

11/13/2015 11 :45 AM

11/13/2015 11 :45 AM

0.00

06/01/2016 04:00PM

06/01/2016 04:00PM

0.00

01/20/2016 11:46 AM

01/20/2016 12:15 PM

0.48

10/15/2015 08:00AM

10/15/2015 08:30AM

0.50

10/09/2015 09:00 AM

10/09/2015 09:00AM

0.00

03/30/2016 01:38PM

03/31/2016 09:30AM

19.8731

05/03/2016 01:40PM

05/03/2016 06:00 PM

4.33

Verification
The responsible party reviewed a spreadsheet created by CSS staff with data regarding response times from the CSS Service Inquiry Tracking database. Initially, the responsible party reported that there were two outlier response times with respect to the time between receipt of consents to initial contact. When the responsible party crosschecked the information reported against case note entries, however, the responsible party determined that, in one of these instances, CSS staff entered the initial contact time incorrectly into the Service Inquiry Tracking database. The CSS staff documented the initial contact time as 4 pm when in fact, CSS' initial contact occurred at 8:30 am-30 minutes after

31 Refer to the "Verification" section for EC 71 for more information about the circumstances surrounding this outlier response time.
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CSS received the signed consent. The information reported in the status update above reflects this correction.
JOQACO requested more information about the reasons that contributed to the delay in initial contact after receiving consent for the outlier response time. According to the responsible party, the delay occurred when the intake coordinator went home ill and receipt of the consent was missed in the hand-off of responsibility for monitoring consents. As part of CSS' revamping of their referral process through Central Pre-Admissions, CSS is developing a failsafe plan to prevent this type of situation from repeating itself. JOQACO will be discussing this issue during a meeting with the CSS Director and staff in September 2016 and will continue to follow up with CSS to ensure that the revamped referral process addresses this concern.
Evaluation Criteria 72 CSS partners with Community Crisis Intervention Services to maximize support, complement strengths, and avoid duplication.
Responsible Party: Community Supports Services Director
Current Status
CSS continues to collaborate with other crisis intervention services, including the Metro Crisis Coordination Program (MCCP)32, to maximize support and avoid duplication. CSS met at least quarterly with MCCP during this reporting period.
CSS also continues to provide services to persons when lead agencies do not have funding available to pay for CSS services (Action 72.1); however, during this reporting period, CSS did not receive any requests to provide unfunded services.
On October 15, 2015, the CSS Director travelled to Bemidji to meet with stakeholders from lead agencies in Region 2. On January 14, 2016, the CSS Director travelled to Brainerd to meet with stakeholders from lead agencies in Region 5. These meetings included presentations on CSS services and the Department's ongoing work to improve crisis supports. These meetings also provided a forum for questions and discussion of opportunities to strengthen collaborations between the Department and lead agencies.
32 The Metro Crisis Coordination Program (MCCP) is a collaborative effort among the seven metro counties of Anoka, Carver, Dakota, Hennepin, Ramsey, Scott and Washington. MCCP works interdependently with individuals, private providers and public agencies to prevent crises that affect the residential and/or work (educational) placements of persons with developmental disabilities.
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Verification
The responsible party reviewed source documents, including minutes from the CSS/MCCP Collaboration meetings held during the reporting period (on October 8, 2015, October 29, 2015, January 21, 2016, and April28, 2016) and the agendas for the Regional Meetings (held October 15, 2015 and January 14, 2016). The responsible party directly participated in the January 2016 CSS/MCCP Collaboration meeting. The responsible party also reviewed the electronic folder where requests for unfunded services are stored to confirm that no such requests were made during the reporting period.
JOQACO reviewed the source documents submitted by CSS that confirm the collaboration between CSS and MCCP, including minutes and sign-in sheets from the meetings between MCCP and CSS from October 8, 2015 through April2.8, 2016, and the agenda for the two regional meetings referenced in this status update.
Evaluation Criteria 73 CSS provides augmentative training, mentoring and coaching.
Responsible Party: Community Supports Services Director
Current Status
During this reporting period, CSS provided 45 augmentative training sessions to 526 members of community support networks. These trainings covered a variety of topics relevant to support of persons with developmental disabilities, including Client Negotiations, De-escalation Techniques, Support Strategies for Clients, and Diagnoses and Recommended Intervention Strategies. CSS also mentors and coaches support networks for people with developmental disabilities by providing the services described in the status updates for ECs 67-69.
CSS continues to review and update its training curricula as necessary to ensure consistency with best practices. For example, on October 2, 2015, the CSS Training Committee33 approved a Version 2.0 of the Introduction to Positive Behavior Support training curriculum, to address elements of the Positive Supports Rule. On the same date, CSS also approved a Version 2.0 of the Functional Behavior Assessment and Intervention training curriculum.
33 The CSS Training Committee that approved the revised curricula included the following CSS staff: a Registered Nurse Senior; two Behavior Analyst III Supervisors; two Behavior Analysts Ills; a Social Worker; a Behavior Modification Assistant and the Direct Care & Treatment Training Coordinator.
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CSS continues to have sufficient administrative and managerial staff to track and analyze data related to training. CSS recently expanded its capacity for data management through creation of a Data Coordinator position for CSS. Additionally, CSS will be adding a Management Analyst position to develop and support sustainable, timely, and complete data collection and analysis.
A review of the training survey responses CSS received from the 453 external providers who participated in a CSS training revealed:
• 99.1 % (449/453) responded positively to the statement, "The class was valuable/useful." • 100% (453/453) responded positively to the statement, "I would recommend the training to
others."
Verification
The responsible party generated the information reported in this status update for augmentative training sessions by reviewing the CSS Program Evaluation database, which contains data on all training sessions provided by CSS staff; filtered the data to identify only training sessions that occurred during the reporting period; and eliminated all internal training sessions that were captured by this data pull.
The responsible party and JOQACO reviewed the manuals containing the CSS curricula for training sessions on Positive Behavior Support and Functional Behavior Assessment and Intervention; the version history for each manual lists the dates of review, update, and approval.
JOQACO also reviewed CSS' spreadsheets of internal and external training completed during this reporting period, which identifies lead trainer, date, location and audience for each training. JOQACO also reviewed the training evaluation summary spreadsheet submitted by CSS to support the reported survey results.
Evaluation Criteria 74 CSS provides staff at community based facilities and homes with state of the art training encompassing personcentered thinking, multi- modal assessment, positive behavior supports, consultation and facilitator skills, and creative thinking.
Responsible Party: Community Supports Services Director
Current Status
During this reporting period, CSS provided 45 augmentative training sessions to 526 members of community support networks, as explained in the status update for EC 73.
As explained in the status update for EC 73, CSS reviews training curricula to ensure consistency with best practices. As noted in the Ninth Compliance Update Report (Doc. No. 531 at 49-50), during the
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previous reporting period, the CSS Support/Supervisor led a workgroup to update the CSS Positive Behavior Support curriculum, to address new elements of the Positive Supports Rule, and to update the Functional Behavior Assessment and Intervention training curriculum. The workgroup included a Behavior Analyst 3 Supervisor (CSS Northern Region) and a Behavior Analyst 3 (CSS Northeast). As noted in the status update for EC 73, the CSS Training Committee approved both updated curricula during this reporting period.
Verification
For an explanation of verification activities regarding the services provided under this EC and EC 73, refer to the "Verification" section for EC 73.
Evaluation Criteria 75 CSS' mentoring and coaching as methodologies are targeted to prepare for increased community capacity to support individuals in their community.
Responsible Party: Community Supports Services Director
Current Status
Through its augmentative training sessions, CSS mentors and coaches persons who support persons with developmental disabilities in the community. During this reporting period, CSS provided 45 augmentative training sessions to 526 members of community support networks. CSS also mentors and coaches support networks for people with developmental disabilities by providing the services described in the status updates for ECs 67-69. CSS targets its mentoring and coaching methodologies to increase community capacity by training people to provide support in the community.
Consistent with Action 75.2, CSS currently tracks the following issues for persons receiving long-term monitoring: (1) frequency of behaviors dangerous to self or others; (2) frequency of interactions with the criminal justice system; (3) sudden increases in usage of psychotropic medications; (4) multiple hospitalizations or transfers within the system; (5) serious reported incidents, (6) repeated failed placements or (7) other challenges identified in previous monitoring or interventions and cost of placement. By March 1, 2017, CSS will begin tracking these issues for all people with developmental disabilities receiving CSS services. CSS's recently expanded capacity for data management through the creation of a data coordinator position will facilitate this expanded tracking. Additionally, CSS anticipates adding a management analyst position to develop and support sustainable, timely, and complete data collection and analysis.
Verification
For an explanation of verification activities regarding services provided pursuant to ECs 67-69, refer to the "Verification" sections under those ECs. For an explanation of verification activities regarding
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augmentative training sessions provided pursuant to ECs 73-74, refer to the "Verification" sections under those ECs.
Evaluation Criteria 76 An additional fourteen (14) full time equivalent positions were added between February 2011 and June 30, 2011, configured as follows: Two (2) Behavior Analyst 3 positions; One (1) Community Senior Specialist 3; (2) Behavior Analyst 1; Five (5) Social Worker Specialist positions; and Five (5) Behavior Management Assistants Responsible Party: Community Supports Services Director
Current Status During this reporting period, CSS worked with Human Resources to advertise vacancies during the reporting period and fill vacancies with individuals with the required qualifications. More specifically, CSS hired four Behavior Analyst 3 Supervisors during this reporting period. The staff hired in those positions have the following qualifications:
• Master's degree in social work; Licensed Independent Clinical Social Worker; several years' experience providing military and civilian supports to people with behavioral health challenges and training support networks.
• Master's degree in applied behavior analysis and therapy; Board Certified Behavior Analyst; and several years' experience supporting people with complex behavioral health challenges and training support networks.
• Bachelor's degree in applied behavior analysis; intensive training in person-centered positive behavior support through the University of Minnesota Institute on Community Integration; several years' experience supporting people with complex behavioral health challenges and training support networks.
• Master's degree in education; taught special education at college level; 20+ years' experience supporting people with complex behavioral health challenges as a direct support professional, residential supervisor and manager, crisis home supervisor, and behavioral consultant.
CSS also hired two Behavior Analyst 3s during this reporting period; the staff hired have the following qualifications:
• Master's degree in counseling psychology and took several courses in applied behavior analysis.
• Intensive training and mentoring in person-centered thinking and planning as well as positive behavior support received through the Director of Positive Behavior Support for Direct Care & Treatment and the MLB Clinical Coordinator; and several years' experience supporting people with complex behavioral health challenges and training support networks.
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Additionally, CSS hired an Occupational Therapist Senior during this reporting period. The person hired is a Registered and Licensed Occupational Therapist (OTR/L) in Minnesota, with several years' experience developing and implementing OT strategies with people with complex behavioral health challenges and training support networks.
Verification
The responsible party reviewed documents related to the hiring process, such as communications with Human Resources, and has personal knowledge of CSS staff hired during the reporting period. The responsible party verified the qualifications of newly hired staff through participation in the hiring process and through communication with hiring supervisors and managers.
JOQACO reviewed the documents submitted by the responsible party for EC 76 to confirm that they supported the information reported.
Evaluation Criteria 77 None of the identified positions are vacant.
Responsible Party: Community Supports Services Director
Current Status
During this reporting period, staff in one of the identified positions (Social Worker Specialist) received a promotion. However, that staff person is maintaining their caseload until the position is backfilled. The Department has posted for this position and interviews begin on August 16, 2016.
Verification
The responsible party verified this information by reviewing the CSS Mobile Teams Organization Chart and communicating with the CSS Southern Regional Manager, who is supporting the hiring process for the Soci.al Worker Specialist vacancy.
Evaluation Criteria 78 Staff conducting the Functional Behavioral Assessment or writing or reviewing Behavior Plans shall do so under the supervision of a Behavior Analyst who has the requisite educational background, experience, and credentials recognized by national associations such as the Association of Professional Behavior Analysts. Any supervisor will co-sign the plan and will be responsible for the plan and its implementation.
Responsible Party: Community Supports Services Director
Current Status
All CSS staff providing clinical oversight of FBAs and Behavior Plans hired after December 10, 2014, possess nationally recognized certifications.
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One of the CSS supervisors responsible for co-signing FBAs was hired before December 10, 2014, and lacked credentials recognized by a national association. To meet the requirements of EC 78, this supervisor submitted an application for the NADD Certified Clinician (NADD-CC) credential in February 2015.
On May 31,2016, the supervisor attained the NADD-CC credential. The NADD-CC credential identifies clinicians who demonstrate mastery of five core competencies34 in supporting persons with IDD who also experience mental illnesses. With this certification, the supervisor has joined the ranks of only twenty-six35 other such accomplished clinicians internationally.
Verification
JOQACO has reviewed the NADD Certification and has a copy available on file. The supervisor is also listed on the NADD Certified Clinicians web page.
Settlement Agreement Section X.B. System Wide Improvements - Olmstead Plan Evaluation Criteria 79
The State and the Department developed a proposed Olmstead Plan, and will implement the Plan in accordance with the Court's orders. The Plan will be comprehensive and will use measurable goals to increase the number of people with disabilities receiving services that best meet their individual needs and in the "Most Integrated Setting," and which is consistent and in accord with the U.S. Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999). The Olmstead Plan is addressed in Part 3 of this Comprehensive Plan ofAction.
Responsible Party: Director of Compliance, Olmstead Implementation Office
Current Status
On May 31, 2016, the Department filed with the Court a proposed updated Olmstead Plan, which incorporated new goals on Assistive Technology and Prevention of Abuse and Neglect. The Court held a status conference on June 6, 2016, which included discussion of issues related to the Olmstead Plan. The Court approved the updated Olmstead Plan, including the new goals, by Court Order on June 21, 2016.
34 The NADD five core competencies include, Positive Behavior Supports and Effective Environments, Psychotherapy, Psychopharmacology, Assessment of Medical Issues, and Assessment. 35 NADD Certified Clinicians web page, retrieved 7/12/2016 (http://thenadd.or~/products/accreditation-and­
certification-pro~rams/nadd-certified-clinicians/.
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The Olmstead Subcabinet and the Olmstead Implementation Office are monitoring the implementation of the Plan, and the Department is submitting separate reports to the Court on the Olmstead Plan. (See, e.g., Doc. Nos. 547-1, 569-1.)
Verification
JOQACO reviewed and has on file Doc. No. 578, filed June 21, 2016. The Director of JOQACO was present at the June 6, 2016, status conference.
Closure of MSHS-Cambridge and Replacement with Community Homes and Services
Evaluation Criteria 93 DHS will provide augmentative service supports, consultation, mobile teams, and training to those supporting the person. DHS will create stronger diversion supports through appropriate staffing and comprehensive data analysis.
Responsible Party: Community Supports Services Director
Current Status
In its June 21, 2016 Order, the Court specifically sought clarification of the following with respect to EC 93: "(1) What is the definition of mobile teams under EC 93? (2) When and how have mobile teams been deployed under this definition in the reporting period? (3) What were the outcomes of these deployments? (4) Were the mobile teams' efforts timely and effective? (Doc. No. 578 at 5.) These questions are addressed in order below.
1. What is the definition of mobile teams under EC 93?
During this reporting period, CSS mobile teams took responsibility for mobile support services under EC 93. CSS mobile teams promote positive supports and build collaborative support networks to strengthen the integrated community living of persons with complex behavioral health challenges. To prevent and resolve behavioral crises, CSS mobile teams provide outreach services including:
• Augmentative staffing supports • Assessment • Consultation • Engagement and coordination with community resources and • Training.
CSS mobile teams are located across the state to promote regional responsiveness. Each mobile team includes at least two staff with experience and training in behavior analysis, social work, psychology,
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nursing, and/or organization development and training. When CSS mobile supports are engaged, at least one member of the mobile team provides outreach services, in consultation with other mobile team members.
To build collaborative support networks around persons supported, CSS mobile teams work in coordination with the person's team and community resources to prevent or resolve behavioral crises.
2. When and how have mobile teams been deployed under this definition in the reporting period?
As reported in the status updates for ECs 67-69, CSS mobile teams provided supports to 298 people during the reporting period, including supports to persons receiving long-term monitoring (ECs 6869). In effort to avoid redundancy, and in recognition that EC 93 comes under a section of the CPA about closing the Cambridge facility and replacing it with community homes and services, the discussion in this section is focused on mobile team supports provided to persons who have a connection to the Facilities, such as persons referred to MLB during the reporting period and persons at or transitioning out of MLB during the reporting period.
During the reporting period, CSS deployed mobile team supports to six people referred to MLB.36 The mobile team interventions in these six cases included consultation and training to existing supports to stabilize the person's situation in the most integrated setting safely possible. In every case, at least one member of the CSS team provided outreach services, in consultation with other mobile team members.
For three of the six people, deployment of CSS mobile team supports was initiated during the reporting period:
• 53 was referred to CSS for mobile team supports in December 2015 because of aggressive behaviors that caused 53 to lose their job, that were posing a barrier to participation in community activities, and that had led to legal proceedings.37 One or two CSS mobile team members provided weekly supports to 53 and assisted 53's team to develop a support plan that would help reduce 53's aggressive behavior. Part of the goal was to develop a support plan that could address the court's concerns regarding 53's behavior without jail time or restriction.
• L2 was referred to CSS for mobile team supports in October 2015 because of increased aggression and medical concerns. Shortly after CSS became involved in L2's case, L2's
36 Most of these persons' situations triggered CSS mobile team involvement before referral was made to MLB. 37 In this case, the MLB referral was submitted because of legal proceedings; Commitment and Rule 20 proceedings are in progress.
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provider gave notice that L2's home was being closed. CSS mobile team members, through a combination of in-person and phone contact, provided consultation to L2's team to stabilize L2's behavior and medical concerns and to help locate another provider or home. • 54 was referred to CSS for mobile team supports in January 2016. 38 54's case manager referred 54 for C55 mobile team supports because 54 was likely going to be discharged from their current group home. A C55 mobile team psychologist met with 54 and 54's team through both in-person and phone contacts to identify 54's needs and wants in a provider and coordinated with 54's team to identify a provider who could develop a home for 54.
For the other three of the six people, the C55 mobile team supports were initiated before the reporting period. Two of these people (G1 and R1) were receiving long-term monitoring; the other person (B3) started receiving mobile team supports from C55 in the latter half of 2014. In all cases, however, the MLB referral and the mobile team supports addressing the situation or incidents connected to the MLB referral occurred during the reporting period.
During the reporting period, CSS also deployed mobile team supports to two persons discharged from MLB to the community (Ll and J3). For one of these people (J3), C5S initiated mobile team supports in April2016, shortly before the person's discharge from MLB. For the other person (Ll), C5S initiated mobile team supports prior to the reporting period, in March 2015, and continued the deployment into the reporting period-including the person's transition from MLB. In these cases, as for the six cases discussed above involving MLB referrals, at least one member of the C55 team provided outreach services, in consultation with other mobile team members.
3. What were the outcomes of these deployments?
By the end of the reporting period, the six people referred to MLB who received CS5 mobile team supports had either remained in the community (pending the outcome of legal proceedings), returned to the community, or had made concrete steps toward returning to the community-such as discharge from a hospital and/or identification of a permanent provider. The following provides greater detail regarding the progress or outcomes as of the end of the reporting period for these six people:
• 53: Legal proceedings are ongoing. With CS5' support, however, 53's current provider is willing to continue to serve 53. Both 53's county case manager and CSS believe that 53 can continue to be served by the current provider. 53 remains on the MLB waitlist because of the ongoing legal proceedings.
38 CSS classified the mobile team supports received by 54 as a crisis response.
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• L2: L2 was discharged from the hospital and admitted to a crisis home pending their readiness for transition to back to a re~idential provider. CSS plans to assist with L2's transition to the community.
• 54: As of the end of the reporting period, 54 is still in the hospital, but a provider has been identified and is developing a home for 54.39 CSS is offering the provider services and training to help support 54 in the community.
• Rl: R1 was admitted to the hospital in February 2016, and did not wish to return to the previous provider. The CSS mobile team, in collaboration with SLP, assisted R1's team with finding a crisis placement to get R1 out of the hospital and facilitated the transition planning process for R1. As of the end of the reporting period, a permanent provider has been identified and is moving forward with developing a home for Rl.
• Gl: CSS assisted G1's team with securing a placement for G1 at MLB and assisted with G1's transition from the hospital to MLB in October 2015. During the reporting period, CSS continued to monitor G1's progress while G1 is at MLB and continued to be available as a community resource to G1's team as they work to locate a permanent provider for Gl.
• B3: B3 was admitted to the hospital in late December 2015 after an incident of elopement that resulted in law enforcement involvement. Because of B3's behaviors, B3's former provider no longer was willing to provide services. Prior to B3's hospitalization, CSS was preparing to close B3's case; however, after this incident, CSS stayed on the case for an additional few months and provided consultation to B3's team in the search for a new provider. CSS closed the case in March 2016, with the understanding that CSS could provide support to a new provider, once the new provider was identified. In May 2016, B3 was discharged from the hospital and admitted to a residential foster care provider.
CSS also played a role in supporting the transition to the community for two persons discharged from MLB during the reporting period:
• J3: In his May and June Monthly reports, the Internal Reviewer provided updates regarding J3's transition to the community noting, among other things, that CSS has been active in the transition process and remains involved post-move to assure continuity of behavioral supports. The Internal Reviewer reported that, as of the 45-day meeting, J3 "was doing quite well" although J3 had not yet secured paid, competitive employment, which is a goal of the team. The Internal Reviewer noted that there had been one instance of property destruction, but the team made changes in the support strategies and there had not been a recurrence.
• Ll: As with J3, CSS was active in the transition process for L1 and remained involved postmove. Near the end of the reporting period, CSS provided consultation toLl's team as the
39 The provider made an offer on a home, which was accepted. The provider is going through the inspection/appraisal process. It will be two to four months before the home is ready. The hospital is advocating for discharge. The person was added to the crisis priority list.
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team worked to support 11 through and mitigate the consequences of criminal charges resulting from 11's damage of a nearby home.
4. Were the mobile team efforts timely and effective?
Timeliness One way to assess the timeliness of CSS mobile team efforts is to look at the time it took CSS to initiate supports after receiving a request for service. As noted above, a number of the mobile team supports received during the reporting period were initiated prior to the reporting period. For the three people referred to M1B whose mobile team supports were initiated during the reporting period, the following is a summary of the time it took CSS to initiate services after receiving an inquiry for service:
• One person whose mobile team supports were initiated during the reporting period (S4) was classified as being in a crisis situation. In S4's case, CSS initiated the referral process the same day CSS received the service inquiry. Although the first official contact did not occur until one week later, this delay was due to not receiving consent until one week after initiating the referral process. Within 30 minutes of receiving the consent, CSS made the first official contact.
• In the case of S3, CSS sent the legal rights packet and release of information forms to S3's guardian the same day that CSS received the request for services from S3's case manager. CSS received the consent the following day and one day after that met in person with S3 and S3's staff.
• In the case of 12, CSS sent out the intake paperwork the same day CSS received a referral phone call from 12's case manager. This paperwork and the consents were returned the following day. The lead CSS mobile team member received the case information four days later and called 12's case manager the same day to set up the first meeting with 12's team. The first meeting with 12's team occurred two days later.
Another way to assess the timeliness of CSS mobile team efforts is to look at how customers of CSS mobile team services viewed the timeliness of CSS' response. A review of the responses CSS received from county case manager revealed that 94% (47/50) of the respondents responded positively to the statement, "CSS responded in a timely manner."
Effectiveness
One way to evaluate the effectiveness of CSS mobile team efforts is to look at the progress achieved by persons served. See pages 53 through 56 above for summaries of services provided and progress achieved for the subset of mobile team supports that are the focus of this section. For additional information about the 298 CSS mobile team supports provided during the reporting period, see ECs 67-69 (pages 37 to 41).
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Another way in which to assess the effectiveness of CSS mobile team supports is to look at how members of the person's team viewed the effectiveness of the mobile team's supports. A review of the survey responses CSS received from county case managers revealed the following:
• 96% (48/50) responded positively to the statement, "Requests for services and/or expected outcomes were achieved."
• 87% (39/45) responded positively to the statement, "CSS intervention helped prevent a loss of placement, prevented hospitalization, or prevented placement in a more restrictive setting."
Verification The responsible party determined that seven people received mobile team supports by comparing the list of persons who were referred to MLB during the reporting period against the list of persons who received supports from CSS mobile teams during the reporting period. After reviewing the CSS documentation for services provided to these people, JOQACO determined that only six of these people received supports from CSS for a sufficient length of time during the reporting period to be counted here. JOQACO reviewed case notes and other documents relating to the provision of mobile team supports by CSS to the six persons referred to MLB and to the two persons discharged from MLB during the reporting period. JOQACO compared the information in these documents against information reported by CSS and MLB and used these documents to obtain information about the outcome and effectiveness of these deployments. JOQACO reviewed the CSS spreadsheet with survey responses from persons receiving services, legal representatives and county case managers, survey response log and the staff directory provided by CSS to confirm that these documents supported the information provided by CSS.
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Therapeutic Follow-Up of Class Members and Clients Discharged from METO/MSHS-Cambridge
Evaluation Criteria 98 DHS will maintain therapeutic follow-up of Class Members, and clients discharged from METOIMSHSCambridge since May 1, 2011, by professional staff to provide a safety network, as needed, to help prevent reinstitutionalization and other transfers to more restrictive settings, and to maintain the most integrated setting for those individuals.
Responsible Party: Jensen/Olmstead Quality Assurance and Compliance Office Director
Current Status
The following will first summarize the organizational and process changes that have occurred with the Successful Life Project (SLP) during this reporting period and then will address the four questions asked by the Court in its June 21,2016 Order with respect to EC 98: "(1) How many individuals have been followed up with in the reporting period? (2) In what settings were these individuals residing? (3) Have these individuals' lives been improved? (4) Were these individuals prevented from reinstitutionalization or transfers to more restrictive settings?" (Doc. No. 578 at 6 & n.3.)
Organizational Changes On April6, 2016, JOQACO assumed supervision of SLP. Currently, SLP includes four Board Certified Behavior Analysts and one Registered Nurse. There are currently two vacancies, one for the SLP Coordinator position and one for a Board Certified Behavior Analyst. JOQACO initiated the 1768 process40 to fill the SLP Coordinator position in June 2016, and the hiring process is ongoing. Before filling the Behavior Analyst position, the JOQACO Director is looking to identify gaps in the current skills of team members and is working with SLP staff to identify the competencies needed and qualities that should be sought in a new Behavior Analyst. SLP will be seeking people who have knowledge of intervention strategies including but not limited to mental health intervention strategies, mental wellness, and positive behavior supports.
SLP staff report to the JOQACO Director and receive clinical supervision from the Internal Reviewer. JOQACO has reviewed and updated the Board Certified Behavior Analyst and Registered Nurse Position Descriptions to provide better clarity regarding roles and responsibilities. The JOQACO Director also reviewed and revised the SLP Coordinator Position Description. New responsibilities for this position include working with lead agency case managers to address the issues and concerns of guardians or legal representatives providing consent. This position will also work with the Internal Reviewer on strategies for therapeutic follow-up of all SLP members, including identification
40 1768 is the on-line process used by the Department to fill staff vacancies.
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and monitoring of persons who are at potential risk to provide early intervention as well as contact with correctional facilities housing people in the therapeutic follow-up group. To improve coordination with CSS, Direct Care and Treatment, and the Disability Services Division regarding services to members of the therapeutic follow-up group, JOQACO has identified a SLP Behavior Analyst to participate in the daily Single Point of Entry Triage Meetings beginning August 1, 2016. Changes to SLP Approach and Processes To communicate more easily the services that SLP is providing to members of the therapeutic followup group, SLP has identified three different levels of support:
• Priority: The person has lost or is facing the potential loss of placement/home. Classification at this level of support takes into account both the challenge presented by the person's behaviors and the capacity of the placement.
• Secondary: Person is presenting challenging behavior, but placement is not threatened. • Proactive: All therapeutic follow-up group members NOT receiving Priority or Secondary
levels of support.
SLP is in the process of refining these definitions and the specific services and support provided at each level. SLP is also adding these categories to CareManager for reporting purposes. Question 1: How many individuals have been followed up with during the reporting period? During this reporting period, SLP staff provided supports to 87 members of the Therapeutic Followup group. This support resulted in the completion of:
• 25 PBS - SETs41 • 17 Person-Centered Plans • 12 Positive Behavior Support Plans
41The PBS-SET is the Positive Behavior Support-System Evaluation Tool. This tool focuses on evaluating the following areas: physical environment, social setting, schedule/predictability of routine, communication, general agency expectations, community access & involvement, support of staff, development and implementation of PBS plans, monitoring and decision making, person centered planning, additional supports, and management.
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• 11 Health assessments • 10 Functional Behavior Assessments • 1 Medication reviews • 3 Nursing consultations
Supports to the 87 members of the therapeutic follow-up group also included 24 instances of proactive supports, which included technical assistance/consultation, Behavior Intervention Reporting Form/Incident follow-up, demission notification follow-up, and other follow-up and training. While some of the proactive supports resulted in opening an active case, most did not.
During this reporting period, SLP closed 20 priority or secondary cases. The SLP team determined that these people no longer needed the higher level of support.
Question 2: In what settings were these individuals residing?
The 87 persons supported by SLP during this reporting period lived in a variety of settings including:
• 57 Corporate foster care • 3 Crisis home • 4 Home of family/friend • 90wnhome • 4 ICF/DD • 1 Jail/Detention center • 1 Hospital • 7 State Operated Facility (MSH, MSOP, MLB) • 1 Unknown
Question 3: Have these individuals' lives been improved? and Question 4: Were these individuals prevented from re-institutionalization or transfers to more restrictive settings?
As explained in the section on Evaluation Tools (page 82), efforts are in progress to determine whether the Olmstead Quality of Life Survey could help provide a quantitative answer to the question of the impact of SLP and the Department's other activities under the JSA on the lives of Jensen class members and members of the therapeutic follow-up group.
During this reporting period, SLP developed a consumer satisfaction survey that will address the quality of clinical supports provided by SLP and the ease of utilizing SLP services-questions that will at least indirectly address the impact of SLP services on people's lives. During August or September 2016, JOQACO will send a written and electronic survey to all therapeutic follow-up
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group members who received any support from SLP in the prior 12 months. There will be one version for persons with disabilities receiving services and legal representatives, and one for care providers. The exact number of persons who will receive the survey is still being determined.
Even without these quantitative tools, it is evident from updates regarding therapeutic follow-up group members to whom SLP provided support during this reporting period that SLP supports have improved the lives of these people. With the assistance of SLP support, situations have been stabilized and some persons have been able to move, or are in the planning stages to move, to a more integrated residential or work setting. The following are examples of how the lives of people receiving SLP follow-up improved during the reporting period:
• Since October 2015, after a private provider discharged A2 from their corporate foster care, A2 moved into an independent apartment with support staff (April2016). SLP assisted in developing a person-centered plan and provided training and technical assistance. On April 22, A2 (a big sports fan) was hired for a job at Target Field. Prior to this opportunity, A2 worked at a day program.
• B1 was residing in a crisis home when SLP became involved. SLP worked with B1 and the team to complete a Person-Centered Plan, which guided development of a new home.
• SLP has worked with B2 and B2's provider on the development of a Positive Behavior Support Plan. B2 has demonstrated a decrease in interfering behaviors. B2 has started work at a vocational placement and is currently earning alone time in the community and developing goals/plans to move to B2's own apartment.
• SLP worked with B3's provider to develop a Functional Behavior Assessment and PersonCentered Plan and to provide training and technical support. B3 identified that B3 did not like the work at his/her day program and that he/she is more interested in working outside on a lawn crew. The team is currently working to help B3 get a job that is consistent with B3's preferences.
• C3's provider contacted SLP for consultation and technical assistance. At C3's vocational placement, C3's 1:1 staffing is slowly and successfully being faded out, which allows C3 to work more in the community.
• C4 moved into a new apartment on May 31, 2016. C4 also started to work for a company contracted to work the Twins' games. C4loves working as a team leader at the stadium.
• SLP is working with a residential provider to further refine F3's Positive Behavior Support Plan and build capacity for data collection/analysis. The residential provider is developing a single site for F3.
• M1's BIRF rates have decreased from 25 in 2015 to only four in the first half of 2016. SLP has completed a PBS-SET, FBA, training, technical assistance/consultation, and a Person-Centered Plan. M1's staff is committed to helping M1live a fuller life and creatively working to develop opportunities to access the community and family including use of an iPad as a communication tool. When M1's mother died this past spring, M1 participated with family by using M1's iPad to "talk" at the funeral.
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• 52 was struggling at 52's residential and vocational placements. Last fall, 52 was at risk of losing placement due to aggression. SLP worked with 52' s team to address the recommendations resulting from the PBS-SET. 52 transferred from corporate foster care into a new placement in January 2016. 52 currently lives in a home developed through individualized housing services for persons who are hard of hearing. 52 has three roommates who are also deaf and attends a special program for hearing impaired adults at Rise42.
• W1 has continued to reduce challenging behaviors and increase access to community activities. W1's family is involved and regularly includes W1 in their gatherings. The team has risen to the challenge to get W1 out into the community for activities ranging from Special Olympics to going to movies and crafting events with peers. Currently, SLP has been working with a behavior analyst to develop a communication program to increase W1's talking from a one-word utterance to three-to-five-word sentences. SLP recently changed W1 's level of
service from priority to secondary.

With regard tore-institutionalization or transfers to a more restrictive setting, the vast majority of the therapeutic follow-up group members who received follow up during this reporting period were not residing in restrictive settings and did not transfer to settings that are more restrictive during the reporting period, suggesting positive stability. In total, during this reporting period, six members of the therapeutic follow-up group have been able to move or are in the planning stages to move to a
more integrated residential or work setting (see Table 6 below):

Table 6: Movement to More Integrated Settings

TFU Member
A2

Movement A2 has moved to an independent apartment and has a new job at Target Field

Bl

Bl will be moving into their own home through a private provider

C4

C4 has moved into his new apartment

F3

Residential provider working to develop a single site for F3

M2

M2 is living in an independent setting

Rl

Rl has moved from the hospital to a crisis home. Rl's team is working to develop a corporate

foster care setting where Rl can live independently with staff support.

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Three out of the 87 persons receiving SLP supports were transferred to settings that are more restrictive during the reporting period:
1. G1 was admitted to MLB on October 20, 2015. CSS remains the lead consultant. 2. J1 was admitted to MLB on August 18, 2015. SLP will assist with transition planning when
MLB identifies a home for Jl. 3. G2 was admitted to a community hospital, following a demission from the provider. G2 was
admitted to MLB on July 15, 2016. SLP was involved in transition planning and training MLB staff.
Another four people who received SLP follow-up during the reporting period resided in restrictive settings, such as MSH or prison, but had transferred to these settings prior to the reporting period. The following are updates for these people for this reporting period:
• C1 is at MSH and moved from Unit 200 to Unit 600; C1 engaged in very few challenging behaviors during the reporting period.
• F2 is at MSH and working with their team to find a more integrated location. The team has been unsuccessful in finding a provider that will take F2 due to F2's offender history.
• H1 is at MSH and is ready to transition to a more integrated setting. The team has identified a foster care provider in a more independent apartment setting. The team is waiting for the county to finish the licensing process.
• Y1 was moved from a maximum-security facility to a super maximum-security facility. SLP has maintained contact with the prison facility.
Verification
On July 20, 2016, JOQACO identified three random samples of people who received supports from the SLP during this reporting period: Random Sample #1 - Persons identified as receiving Primary or Secondary supports (20); Random Sample #2 -Persons identified as receiving Proactive supports (10); and Random Sample #3- Persons identified as receiving SLP Nursing supports (6).
Between August 3 and August 9, 2016, JOQACO reviewed case notes for each of the three samples and compared with information SLP staff reported in their summary updates to JOQACO. As needed, the JOQACO contacted SLP staff for additional clarification.
JOQACO was able to verify information reported by SLP staff with the information in the case notes from CareManager for 30 of 36 people. Through interviews with SLP staff, JOQACO was able to verify SLP involvement for the six people whose case notes were not in CareManager. JOQACO also determined through these interviews where SLP staff documented the information, if not in CareManager.
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JOQACO reminded SLP staff to be sure to utilize CareManager for all documentation and will follow up with SLP staff during the next reporting period to ensure this happens.
The JOQACO Director also interviewed three case managers regarding the outcomes reported by SLP for four people (A2, B1, R1 and M4). All case managers interviewed confirmed that what SLP reported was accurate.
Modernization of Rule 40 (EC 103)
Evaluation Criteria 103 Within thirty (30) days of the promulgation of the Adopted Rule, Plaintiffs' Class Counsel, the Court Monitor, the Ombudsman for Mental Health and Developmental Disabilities, or the Executive Director of the Governor's Council on Developmental Disabilities may suggest to the Department ofHuman Services and/or to the Olmstead Implementation Office that there are elements in the Rule 40 Advisory Committee Recommendations on Best Practices and Modernization of Rule 40 (Final Version- July 2013) which have not been addressed, or have not adequately or properly been addressed in the Adopted Rule. In that event, those elements shall be considered within the process for modifications of the Olmstead Plan. The State shall address these suggestions through Olmstead Plan sub-cabinet and the Olmstead Implementation Office. Unresolved issues may be presented to the Court for resolution by any of the above, and will be resolved by the Court.
Responsible Party: DHS Deputy Senior Counsel
Current Status
The Department began meeting with the Office of Ombudsman for Mental Health and Developmental Disabilities and the Governor's Council on Developmental Disabilities in the fall of 2015 to discuss elements of the Rule 40 Advisory Committee recommendations that may not be adequately or properly addressed by the Positive Supports Rule or other Department efforts. These discussions were put on hold during the 2016legislative session and will be picked up again in July 2016. As elements are identified as not adequately or properly addressed, the Department, in conjunction with the Office of Ombudsman for Mental Health and Developmental Disabilities and the Governor's Council on Developmental Disabilities, will determine how to proceed to address them.
Verification The responsible party was personally involved in the events reported in the status update for this EC.
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Exception Reporting
Settlement Agreement Section IX.A. Other Practices at the Facility- Staff Training
Evaluation Criteria 56 Facility staff receive the specified number of hours of training: Therapeutic interventions (8 hours); Personal safety techniques (8 hours); Medically monitoring restraint (1 hour).
Responsible Party: Minnesota Life Bridge Manager
Current Status
Facility direct care staff fulfill the training requirements specified by this EC through the following annual trainings:
• Effective and Safe Engagement (EASE) 2.0 Assess & Plan and Skills Demonstration (16 hours) • Minnesota Life Bridge Therapeutic Interventions and Emergency Use of Personal Safety
Techniques (TI/PST)/EASE Procedure (1 hour) • Medically Monitoring Restraint (1 hour).
Because the MLB training year runs from March 12 to the following March 11, the 2015/2016 training year was still in progress as of the end of the reporting period covered by the 2015 Compliance Annual Report (Doc. No. 553). In the 2015 Annual Report, the Department reported the following percentages of MLB and East Central staff who, as of December 31, 2015, had completed all of the required hours of EASE, TI/PST/EASE Procedure, and Medically Monitored Restraint training:
• 43% of MLB direct care staff and 0% of East Central direct care staff had completed the required hours of EASE training
• 27% of MLB direct care staff and 31% of East Central direct care staff had completed the required hour of TI/PST/EASE Procedure training and
• 82% of MLB direct care staff and 62% of East Central direct care staff had completed the required hour of Medically Monitored Restraint training.
(Id. at 16.) The Department noted that MLB and East Central held a number of staff training sessions after the end of the reporting period and before the end of the training year. (Id.) The final assessment of training completion was not available as of the date the Annual Report was filed, but the Department reported that a preliminary analysis showed a significant increase in completion of required 2015/2016 annual training. (Id.)
JOQACO subsequently confirmed that, while there was a significant increase in completion of required 2015/2016 training hours by the end of the training year, some training hours remained outstanding. Based on the information available to JOQACO, the following percentages of staff
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completed all of the required hours of EASE, TI/PST/EASE Procedure, and Medically Monitored Restraint training by the end of the 2015/2016 training year: 43
• 97.7% of MLB direct care staff and 84.6% of East Central direct care staff completed the required hours of EASE training
• 97.7% of MLB direct care staff and 100% of East Central direct care staff completed the required hour of TI/PST/EASE Procedure training and
• 95.3% of MLB direct care staff and 100% of East Central direct care staff completed the Medically Monitored Restraint training.
JOQACO directed MLB and East Central to ensure that all staff with outstanding hours from the 2015/2016 training year completed those outstanding hours in the 2016/2017 training year. These make-up training hours are to be in addition to the annual requirements for the 2016/2017 training period. JOQACO has been monitoring the progress of training to confirm that the training hours needed to satisfy outstanding 2015/2016 annual requirements are being completed and are being tracked separately from the training hours needed to complete the 2016/2017 annual requirements.
As of the date of this report, all active staff at MLB and East Central have completed outstanding training hours for EC 56 from the 2015/2016 training year.
Settlement Agreement Section IX.B. Other Practices at the Facility- Hours of Training
Evaluation Criteria 58
Facility staffreceive the specified number ofhours of training: Person-centered planning and positive behavior supports (with at least sixteen (16) hours on person-centered thinking I planning): a total40 hours; Post Crisis Evaluation and Assessment (4 hours).
Responsible Party: Minnesota Life Bridge Manager
Current Status
Facility direct care staff fulfill the training requirements specified by this EC through the following annual trainings:
• Effective and Safe Engagement (EASE) 2.0 Assess & Plan and Skills Demonstration (16 hours) • Minnesota Life Bridge Therapeutic Interventions and Emergency Use of Person Safety
Techniques Procedure (TPI/PST)/EASE Procedure (1 hour)
43 These percentages do not include one staff who was hired by/transferred to MLB on March 9, 2016, and did not have an opportunity to complete all of the trainings prior to the end of the training year on March 11, 2016.
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• Person-Centered Training (12 hours for existing employees, 16 hours for new employees) • Positive Behavior Supports (12 hours for existing employees, 24 hours for new employees) and • Crisis Intervention/Post Crisis Intervention and Assessment (4 hours) .
Because the MLB training year runs from March 12 to the following March 11, the 2015/2016 training year was still in progress as of the end of the reporting period covered by the 2015 Compliance Annual Report (Doc. No. 553). In the 2015 Annual Report, the Department reported the following percentages of MLB and East Central staff who, as of December 31, 2015, had completed all of the required number of hours of the trainings listed above:
• 43% of MLB direct care staff and 0% of East Central direct care staff had completed the required hours of EASE training
• 27% of MLB direct care staff and 31% of East Central direct care staff had completed the required hour of TI/PST/EASE Procedure training
• 82% of MLB direct care staff and 62% of East Central direct care staff had completed the required hour of Medically Monitored Restraint training
• 18% of existing MLB direct care staff and 8% of existing East Central staff had completed the required hours of Person-Centered Training
• 45% of MLB direct care staff and 38% of East Central staff had completed the required hours of Crisis Intervention/Post Crisis Intervention training
• 70% of MLB direct care staff had completed the required hours of Positive Behavior Supports training; 23% of East Central direct care staff had completed the required hours of Positive Behavior Supports training.
(Id. at 18.) The Department noted that MLB and East Central held a number of staff training sessions after the end of the reporting period and before the end of the training year. (Id. at 18-19.) The final assessment of training completion was not available as of the date the Annual Report was filed, but the Department reported that a preliminary analysis of the training completed as of March 11, 2016, showed a significant increase in completion of required 2015/2016 annual training. (Id. at 19.)
JOQACO subsequently confirmed that, while there was a significant increase in completion of required 2015/2016 training hours by the end of the training year, some training hours remained outstanding. Based on the information available to JOQACO, the following percentages of staff completed all of the required hours of the specified trainings by the end of the 2015/2016 training year: 44
44 These percentages do not include one staff who was hired by/transferred to MLB on March 9, 2016, and did not have had an opportunity to complete all of the trainings prior to the end of the training year on March 11, 2016.
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• 97.7% of MLB direct care staff and 84.6% of East Central direct care staff had completed the required hours of EASE training;
• 97.7% of MLB direct care staff and 100% of East Central direct care staff had completed the required hour of TI/PST/EASE Procedure training;
• 95.3% of MLB direct care staff and 100% of East Central direct care staff had completed the required hour of Medically Monitored Restraint training;
• 72.1% of MLB direct care staff and 100% of East Central direct care staff had completed the required hours of Person-centered Training;
• 86.0% of MLB direct care staff and 100% of East Central direct care staff had completed the required hours of Crisis Intervention/Post Crisis Intervention Training; and
• 72.1% of MLB direct care staff and 100% of East Central direct care staff had completed the required hours of Positive Behavioral Supports Training.
JOQACO directed MLB and East Central to ensure that all staff with outstanding hours from the 2015/2016 training year completed those outstanding hours in the 2016/2017 training year. These make-up training hours were to be in addition to the annual requirements for the 2016/2017 training period. JOQACO has been monitoring the progress of training to confirm that the training hours needed to satisfy outstanding 2015/2016 annual requirements were being completed and were being tracked separately from the training hours needed to complete the 2016/2017 annual requirements.
As of the date of this report, all active staf£45 at MLB and East Central have completed outstanding training hours for EC 58 from the 2015/2016 training year.
Verification and Monitoring (ECs 56 and 58)
As explained in the Ninth Compliance Update Report (Doc. No. 531 at 40-41) and the 2015 Compliance Annual Report (Doc. No. 553-1 at 17), MLB enters information about staff training completion, including staff competency results, into the Department's web-based Pathlore Learning Management System. Since early 2016, JOQACO's data analyst has requested, on a monthly basis, reports from Pathlore to review for missing or inaccurate data. This has involved, among other efforts, reviewing the Pathlore reports for errors or discrepancies and spot-checking information reported in Pathlore for consistency with training sign-in sheets or other documentation related to training. Through this process, JOQACO identified some Pathlore data entry errors, course code ' identification problems, and problems with timely entry of training hours into Pathlore-all of which JOQACO brought to the attention of MLB. JOQACO's data analyst has also provided MLB with
45 One staff who was hired to work at MLB in an on-call/intermittent capacity has not, as of the date of this report, completed 6.0 hours of Person-Centered Training that is outstanding from the 2015/2016 training year. However, this staff has not been active in working shifts at MLB in recent months. MLB informed the staff that they must contact MLB by August 8 and complete all needed training updates or they will be deemed to have voluntarily resigned.
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tracking sheets on a regular basis to help MLB chart progress toward meeting staff training requirements. JOQACO directed MLB to submit updated and verified tracking sheets to JOQACO on a monthly basis and will be meeting with MLB in September 2016 to formulate a more detailed plan of action regarding completion and reporting of training hours. In addition, JOQACO interviewed MLB staff about certain aspects of training while completing onsite verification reviews at Stratton Lake and Brobergs Lake in July 2016. JOQACO's review of the MLB training reports from Pathlore identified a number of hours of self-study labeled "PBS On-going Learning and Practice" (Course Code-SOS0001966). It was unclear from the description in Pathlore what staff studied during these training hours and how/by whom competency was evaluated. Both of the Brobergs Lake staff interviewed stated that, on a weekly basis, they receive and review information about updates to Positive Support Transition Plans, Positive Behavior Supports, client progress notes or meeting minutes. The Stratton Lake staff members interviewed by JOQACO also stated that a similar review of updated client information packets is also the practice at Stratton Lake. The designated coordinator for each site is responsible for assessing staff competency through interviews and documenting the results of the staff competency assessment. As there are ongoing changes to persons' plans and not all MLB staff participate in the meetings where such changes are developed, it is important that MLB has a way to ensure that staff are made aware of changes and demonstrate competency in these changes, as evaluated by the designated coordinator. JOQACO did identify opportunities for performance improvement in staff training. Both staff interviewed at Brobergs Lake expressed a need for more training support at the home from higher level BAs. Both staff interviewed at Stratton Lake expressed a need for better documentation of training processes. JOQACO is following up with MLB regarding these staff concerns; among other things, JOQACO is asking that MLB create a document that sets out the processes and expectations for training-particularly the content, competency, and documentation requirements associated with self-study training hours-to better ensure the consistency and quality of training. On August 25, 2016, JOQACO requested in writing that MLB provide, by September 15,2016, an Action Plan to develop such a document.
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Settlement Agreement Section X.D. System Wide Improvements- Minnesota Security Hospital
Evaluation Criteria 81
The State takes best efforts to ensure that there are no transfers to or placements at the Minnesota Security Hospital of persons committed solely as a person with a developmental disability.
Responsible Party: Executive Director- Forensic Services, JOQACO Director, and DHS Deputy Senior Counsel
Current Status
On May 19, 2015, MSH admitted a person (01) committed solely as a person with a developmental disability. Since admission, the Department actively pursued transition planning. The Department also provided the Court Monitor, Plaintiffs' Class Counsel, and Consultants with weekly updates on the status of the transition for this person, and collaborated with the Consultants and involved county officials. Exploration of community-based options began in June 2015. During Calendar Year 2015, the Department and the County of Financial Responsibility (CFR) explored many in state and out-ofstate options.46
On November 11, 2015, the Department identified an investor to work with the Department to purchase a home for 01. In December 2015, the Department identified a house in the northern suburbs. The Department viewed the home on December 17, 2015. The investor toured the home on December 28, 2015, and made a contingent offer. MSH and Community Based Services made arrangements for 01 to tour the home on January 29,2016. Closing on the home occurred on February 19, 2016. Following the closing, modifications to the home and licensing of the home began.
01's transition team reconvened on January 20, 2016. Scheduled transition meetings occurred at least every other week until 01's move to the new home in June 2016. The Director of Positive Behavior Support I Direct Care & Treatment Minnesota Department of Human Services, led the collaborative development of 01's Transition Plan and continues to be actively involved in the program.
On June 22,2016, MSH discharged 01 to 01's community home. With 01 now living in the community, there are no persons at MSH who were transferred to or placed at MSH based solely on a commitment as a person with a developmental disability.
46 In the Ninth Compliance Update Report, the Department reported that the CFR had published a Request for Information specifically for this person. The Department has since learned that the CFR did not complete a RFl process, but rather reached out directly to specific providers via personal conversations. Only one provider responded and, after an initial meeting with the CFR, they declined to be involved.
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In February 2016, the Quality Assurance Leadership Team (QALT) asked Department staff to review the situation that led 01 to remain at the Minnesota Security Hospital (MSH) for an extended period. In April2016, the QALT reviewed an analysis of data relating to the timing of discharge and provisional discharge and a report of initial findings. At this meeting, the QALT discussed the role of the Department's Housing Supports Division in assisting 01 and other current or future clients' transition out of MSH. The group also highlighted the importance of counties in successfully transitioning a person with developmental disabilities out of MSH. Direct Care and Treatment staff presented information on the importance of housing, and staff availability and flexibility, to help persons transition out of MSH. QALT has scheduled follow-up to discuss what the Department could do to help current and future clients transition out of MSH more quickly as well as prevent persons committed solely as a person with a developmental disability from admission to MSH. Verification The JOQACO Director and DHS Deputy Senior Counsel attended discharge-planning meetings for 01. MSH verified there were no transfers to or placements at the Minnesota Security Hospital of persons committed solely as a person with a developmental disability through review of admissions during the period of January 1, 2016- June 30, 2016 from the AVATAR47 PM Report-Admission Report48• MSH cross-referenced this report with weekly AVATAR Report-DD in Forensics.49
47 AVATAR is the electronic health record used by MSH. 48 This report provides the following information by program and unit: person's name, date and time of admission, age at admission, date of birth, type of admission (i.e. transfer, commitment, and evaluation), legal status, and county of financial responsibility. Legal status is reviewed to ensure MSH has not admitted a person committed solely as DD. 49This report provides the following information by program and unit: person's name, date of admission, county of financial responsibility, predatory offender designation, diagnosis and legal status. This report identifies anyone at MSH who has a diagnostic code of Mild, Moderate, or Unspecified intellectual disability.
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Responses to the Court's June 21,2016 Order (Doc. No. 578)50
Update on Community Support Services and Crisis Intervention Outcomes
In the June 21 Order, the Court requested an update "on the outcomes for individuals with disabilities resulting from Defendants' efforts with respect to Community Support Services and crisis interventions throughout the state (see ECs 67-72; Doc No. 551 at 12-14)." (Doc. No. 578 at 6.)
As explained on page 82, efforts are in progress to determine whether the Olmstead Quality of Life Survey could help provide a quantitative answer to the question of the impact of CSS' and the Department's other activities under the JSA and CPA on the lives of Jensen Class Members and members of the therapeutic follow-up group.
In the meantime, the Department has provided in this report information about services provided to specific people served by CSS during the reporting period and the impact of those services on these people's lives. (See the status updates for ECs 67-68 and 93.) Also instructive are the responses to CSS consumer satisfaction surveys for services provided during the reporting period (see pages 4243).
Update on the Prevalence and Justification for 911 Calls at the Facility
In the June 21 Order, the Court requested an update on "the prevalence and justification for 911 calls at the facilities, including a statement of whether the calls resulted in the use of handcuffs or chemical restraint (see ECs 28-30; Doc. No. 551 at 8-10)." (Doc. No. 578 at 6). In the June 21 Order, the Court also requested "information on whether any training is provided at the facilities to educate staff on the impropriety of using 911 calls in lieu of positive behavioral supports for the purpose of implementing prohibited restraints." (Id. at 6 n.4). The following addresses both of these requests.
911 Call Analysis
Table 7, below, summarizes the twenty-five (25) 911 calls made from the facilities during the reporting period. This count includes three calls initiated by the person receiving supports, with 22 calls made by staff. In two cases, the person became physically assaultive of the responding officers. In both of those cases, police manually restrained the person; in one of these two instances, police also handcuffed the person. These two cases were the only instances in which responding officers performed any form of restraint.
50 In the Court's June 21, 2016 Order (Doc. No. 578), the Court also requested clarification with respect to EC 93 (id. at 5 n.2) and EC 98 (id. at 6 n.3). The Court's requests for clarification on these topics are addressed in the sections of this report providing status updates on EC 93 (pages 52-57) and EC 98 (pages 58-64).
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Reporting Period: October 1, 2015 to June 30, 2016 There were no cases of the responding officers:
• Arresting persons, • Initiating physical restraint, or • Performing chemical restraint. There were, however, seven cases in which either the responding officer or ambulance transported persons to medical facilities. (See Table 3, page 22.)
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Table 7: 911 Call Analysis

Incident Date
11/20/15 11/20/15 12/6/15 1/2/16 1/2/16 1/4/16 1/17/16 1/19/16 2/14/16 3/ 1/16 3/1/16 3/26/16 4/5/16 4/5/16 4/22/16 4/23/16 5/1/16 5/08/16 5/14/16 5/30/16 5/30/16
6/4/16 6/15/16 6/21/16 6/21/15

Person
Jl 52 W2 52 52 Jl 52 W2 Jl Gl Tl5t Tl 5252 }253 H2 Tl H2 W2 W2 5254 Tl Y2 5255
H2 Tl

Location
Brobergs Lake Brobergs Lake
East Central Brobergs Lake Brobergs Lake Brobergs Lake Brobergs Lake
East Central Brobergs Lake Stratton Lake Eagle Pointe Eagle Pointe Brobergs Lake Stratton Lake
East Central Eagle Pointe East Central East Central East Central Brobergs Lake Eagle Pointe East Central Brobergs Lake East Central Eagle Pointe

Was person manually restrained by police?
No No No No No No No No No No Yes No No Yes No No No No No No No No No No No

Were handcuffs used?
No No No No No No No No No No No No No Yes No No No No No No No No No No No

51 T1 was assaultive of police and attempted to get Tl 's phone back from the police officer's pocket after hitting the officer's chest with an open hand. 52 Call initiated by 52 53 J2 was assaultive of police, spit at police, and was self-injurious. 54 Call initiated by 52 55 Call initiated by 52
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Jensen Settlement Agreement Comprehensive Plan of Action 2016 Semi-Annual Compliance Report Reporting Period: October 1, 2015 to June 30, 2016
Training Regarding 911 Calls
To investigate the training provided to MLB staff regarding calls to 911, the Internal Reviewer used three sources of information:
1. A review of MLB Procedure #15868, Therapeutic Interventions and Emergency Use of Personal Safety Techniques;
2. Training given to staff annually on Procedure #15868; and 3. A recent Positive Supports Transition Plan for a person supported by MLB whose behavior
has resulted in 911 calls.
Review ofMLB Procedure #15868
MLB Procedure #15868 guides use of physical intervention. MLB staff are given training on this Procedure as part of the Crisis/Post-crisis training. The policy states that staff "shall use the least amount of intervention necessary to safely physically manage an individual, only when less restrictive behavioral support strategies have been ineffective in sustaining safety, and only concurrent with the uncontrolled behavior." The policy calls for use of positive behavior supports as a means for making positive changes in behavior, but does not give specific guidance on when to call 911, and does not make explicit the connection between positive behavior supports and 911 utilization. There is, however, extensive guidance in this procedure about documentation of 911 calls.
Training on Minnesota Life Bridge Procedure #15868
The Internal Reviewer reviewed the training given to MLB staff on Procedure #15868 as part of the Crisis/Post-crisis training. This training did not give guidance on when to call 911, though reporting for 911 calls was mentioned.
Examination of a Positive Supports Transition Plan
The Internal Reviewer's examination of a Positive Supports Transition Plan for a person supported by MLB whose behavior has resulted in 911 calls noted inclusion of the following content: "If [the person] engages in any activity that poses an imminent risk of physical harm to self or others and less restrictive strategies would not achieve safety, do the following:
1. Use EASE techniques as trained to de-escalate the situation. 2. Follow procedure #15868 Therapeutic Interventions and Emergency Use of Personal Safety. 3. Call911 for law enforcement support as needed.
It is the recommendation of the Internal Reviewer that MLB develop policies specific to the appropriate utilization of 911 and that training on these specific policies be added to the training for
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MLB staff. It is also recommended by the Internal Reviewer that guidance specific to the appropriate utilization of 911 be added to each Positive Supports Transition Plan. The Internal Reviewer will follow up with MLB on these recommendations during the MLB conference call on August 19, 2016. In an effort to improve the capacity of the Department and providers to support persons with challenging behavior, the Internal Reviewer provided 11 training sessions during this reporting period targeting crucial areas of clinical need, including Positive Supports. See Table 4: Internal Reviewer Training, page 25.
Compliance Verification Process
In the June 21 Order, the Court recommended, (1) "that DHS establish a protocol to govern DHS' compliance evaluation and verification efforts, including efforts involving Independent Subject Matter Experts or the Internal Reviewer"; (2) "that DHS implement this protocol as soon as possible so that it may be used between now and the August 31,2016 Compliance Update Report deadline"; and (3) that DHS "consult with the Consultants to facilitate this process." (Doc. No. 578 at 6-7.) See earlier sections on the JOQACO Compliance Verification Process (beginning on page 5) and Independent Subject Matter Experts (beginning on page 10).
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Updates to the Department's May 31,2016 Report to the Court (Doc. No. 572)
Staff Training (ECs 54-57)
In response to the Court's March 18, 2016 Order (Doc. No. 551) regarding staff training at the Facility (ECs 54-57), the Internal Reviewer evaluated and provided feedback on MLB staff training curricula. The Internal Reviewer's evaluation and recommendations are documented in the Department's May 31, 2016 Report to the Court (see Doc. No. 572 at 5-13). In the May 31 Report, the Department stated,
"JOQACO will follow up with MLB on the recommendations of the Internal Reviewer regarding training. JOQACO will obtain a plan of action to incorporate the recommendations no later than June 10, 2016, with anticipated implementation no later than July 15, 2016. The Executive Director of JOQACO is also currently participating in a business improvement project focused on increasing MLB training compliance with an expected completion date in July 2016. (Id . at 13.)"
The Internal Reviewer recommendations related to training included:
• Effective and Safe Engagement (EASE): Revise videos to present cautions in the videos as well as in the actual training sessions.
• Positive Behavior Supports: Identification of areas in which additional material should be added to be consistent with best practices (i.e. setting events and content on mental health).
• Crisis Intervention/Post Crisis Intervention and Assessment: Mental wellness support strategies should be added; the term "wellness" should be defined; and a competency exam should be added, as required by the CPA.
• Medically Monitored Restraint: Additional materials are needed to assure greater consistency with best practice standards and more thorough sharing of best practices with trainees.
The Internal Reviewer had no recommendations with respect to Person-Centered Training.
On June 6, 2016, JOQACO shared the Internal Reviewer's recommendations related to staff training with MLB. Of the five staff training areas, MLB has direct control over the curriculum of three areas, namely Positive Behavioral Supports (PBS), Crisis Intervention/Post Crisis Intervention and Assessment, and Medically Monitored Restraint (MMR).
On June 9, JOQACO met with MLB to discuss the report recommendations concerning the curriculum changes within their control. MLB addressed these recommended changes by July 15, 2016. The Internal Reviewer verified that Minnesota Life Bridge made all of the recommended changes in
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Positive Behavioral Supports, Crisis Intervention/Post Crisis Intervention and Assessment, and Medically Monitored Restraint training curriculums.
As stated in the May 31 report to the court, the Internal Reviewer used "Product Evidence" not "Observation Evidence" in his review. In August 2016, the Internal Reviewer observed a session of the Crisis Intervention/Post Crisis Intervention and Assessment to verify that the training was conducted with fidelity to the revised training curriculum that had been approved by the Internal Reviewer. The Internal Reviewer made the following observations:
• During the observed training session, there was full fidelity to the training materials in all material aspects.
• The trainer supplemented the materials with real life examples drawn from the residents of MLB homes and presented situations relevant to the job responsibilities.
• One notable addition was that the trainer also discussed the fact that crisis moments are not the moments for teaching to occur.
• There was a strong effort to use only plain language.
In August 2016, the Internal Reviewer also observed sections of the Positive Behavior Supports training to verify that the training was conducted with fidelity to the revised training curriculum that had been approved by the Internal Reviewer. The Internal Reviewer made the following observations:
• During the observation, there was full fidelity to the training materials in all material aspects. • The trainer supplemented the materials with real life examples that were drawn from the
residents of MLB homes and presented situations relevant to the job responsibilities. • One notable addition was that the trainer focused heavily on instructional strategies; this
content was added to the training after the Internal Reviewer's review of the training materials. The Internal Reviewer recommends that this new content be modified to include examples of how instruction can be can be used to support behavior intervention.
The Internal Reviewer is sharing with the trainers and MLB administrators his observations and recommendations regarding the training sessions he attended. The Internal Reviewer will also observe a future session of Medically Monitored Restraint trainings, which will provide the Internal Reviewer with an additional opportunity to verify that MLB has addressed his recommendations with respect to this training.
The other staff training area for which the Internal Reviewer recommended changes, EASE, is not within MLB's control to make changes to the curriculum or delivery method because the Department's Learning and Development Division developed the training. The Internal Reviewer has discussed with the developers of EASE his recommended changes. The EASE curriculum developers have addressed all recommendations. The Internal Reviewer will observe the finished product when it is available.
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Six Sigma Green Belt Project Update In April2016, as part of their Six Sigma56 Green Belt training and certification, the JOQACO Director and CSS Director identified MLB staff training as their continuous improvement project area. The project objective is "The percentage ofMinnesota Life Bridge (MLB) employees who complete all Jensenrequired training within the required timelines will increase from 89% to 97% by January 12, 2017." As part of the Six Sigma DMAIC 57 process, key players examined a number of challenges related to completion of training and identified a number of solutions that MLB is in the process of implementing, including:
• Standardizing Training Participant Forms with pre-populated fields for course code and delivery method (in progress).
• Developing protocols defining roles and responsibilities related to training completion (will be completed by October 1, 2016).
• Publishing clear timelines for training completions (will be completed by December 1, 2016).
Standardization of Training
The Internal Reviewer submitted a proposal to the QALT at the July 20, 2016, meeting regarding the feasibility of standardizing training across divisions. The Internal Reviewer presented the recommendation from the Court regarding standardization of training, (see Doc. No. 551 at 11), and the QALT agreed to consult in a review of training across the agency to consider opportunities for standardization. The QALT asked Department divisions to submit information on whether they provide training in any of the areas identified in the CPA. This information will be presented at the September QALT meeting. A subcommittee of the QALT involving relevant division representatives will then explore opportunities for standardization and report back to the QALT. See also previous sections on the QALT and Standardization of Training on page 12.
Community Support Services (ECs 67-72)
In the Department's May 31, 2016 Report to the Court (Doc. No. 572), the Internal Reviewer reported on his efforts to "verify the results reported in the Gap Report," regarding ECs 67-72 and to "develop a substantive performance report to elaborate on [Community Support Services] and crisis interventions," as directed by the Court's March 18,2016 Order (Doc. No. 551). In response to the
56 Six Sigma is a set of techniques and tools that seeks to focus on customer requirements through minimizing variability and improving process quality. 57 DMAIC is an acronym for Define, Measure, Analyze, Improve and Control and refers to a data-driven improvement cycle used for improving, optimizing and stabilizing business processes and designs. The DMAIC improvement cycle is the core tool used to drive Six Sigma projects.
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Internal Reviewer's report regarding ECs 67-72, the Department stated that it would take the following actions:
1. "JOQACO will follow up with CSS on the recommendations of the Internal Reviewer regarding database maintenance. JOQACO will obtain a plan of action to incorporate these recommendations no later than June 10, 2016, with anticipated implementation no later than July 15, 2016." (Doc. No. 572 at 25.)
2. "JOQACO will play a greater role in reviewing and verifying information contained in future reports. JOQACO will use a standard, documented process to pull data so that it can be recreated at a later date." (Id.)
3. "JOQACO will also explore with the Internal Reviewer the feasibility of the introduction of a precision business intelligence presence." (Id. at 26.)
4. "With respect to the recommendations of the Internal Reviewer regarding overlap of crisis intervention services, JOQACO will follow up with CSS. JOQACO will obtain a plan of action to incorporate the recommendations no later than June 10, 2016, with anticipated implementation no later than July 15, 2016." (Id. at 26.)
5. "With respect to the Internal Reviewer's comments regarding CSS's ability to work in a more proactive manner, the Department agrees that time is always better spent on prevention rather than crisis management. ... JOQACO will explore with the Internal Reviewer the primary and secondary intervention approaches mentioned in his report as potential improvements to CSS and SPE services." (Id.)
CSS Database Maintenance Action Plan
On June 6, 2016, JOQACO shared with CSS the Internal Reviewer's recommendations related to information management systems and data. On June 10, CSS provided JOQACO with the following action plan:
Monthly, prior to submitting information to JOQACO, CSS will:
• Visually inspect databases regarding persons served (including those receiving Long-Term monitoring and persons with developmental disabilities receiving standard CSS services);
• Compare information to secondary sources of information; and • Reconcile any calculation discrepancies noted.
In CSS submissions to JOQACO during the reporting period, the responsible party attested that the information provided to JOQACO from CSS databases had been visually inspected and, for a random sample of persons served, compared against other sources of information (such as case notes). (See, for example, the "Verification" sections for ECs 67-69.) During the next reporting period, JOQACO will engage in verification activities to confirm that CSS is continuing to follow its action plan with respect to database maintenance.
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JOQACO Role in Reviewing and Verifying Information
See earlier section on IOOACO Compliance Verification Process beginning on page 5.
Precision Business Intelligence
Precision Business Intelligence is a technology-driven process for analyzing data and presenting actionable information to help make more informed decisions and gather analytical insights about business practices. In the context of SLP, precision business intelligence practices would mean gathering data with respect to specific clinical needs and supports through an iterative process to improve the effectiveness and efficiency of SLP therapeutic follow-up activities.
On June 9, 2016, JOQACO met with the Internal Reviewer to discuss recommendations in the May 31, 2016 Report concerning Precision Business Intelligence. On June 21, 2016, JOQACO and the Internal Reviewer met with SLP to gather input on defining primary, secondary and proactive levels of service for therapeutic follow-up group members. As part of a pilot project, JOQACO is targeting precision business intelligence practices and principles to the monitoring and provision of services to therapeutic follow-up group members who are in the proactive services group.
SLP is also looking at how to better use technical resources to identify and serve targeted information needs.
Overlap with the Successful Life Project and Community Support Services (Doc. No. 572 at 26)
On June 7 and June 27, 2016, JOQACO met with CSS to discuss the Internal Reviewer recommendations concerning overlap of SLP and CSS. To avoid confusion as to who will take the lead for therapeutic follow-up group members entered into the Single Point of Entry; SLP will now have a representatiye at the morning triage meetings for the Single Point of Entry58• To ensure that both CSS and SLP staff have access to all case notes on therapeutic follow-up group members, the CSS Director is following up with CSS System Support to discuss moving CSS data on persons with developmental disabilities to the CareManager system, which is the system used by SLP. CSS will also participate in an upcoming SLP meeting to discuss CSS/CareManager documentation processes.
CSS Ability to work in a More Proactive Manner
On June 27, 2016, JOQACO and the Internal Reviewer met with CSS to discuss the recommendations concerning the ability of CSS to work in a more proactive manner. Based on that meeting, it was determined that JOQACO will use the SLP precision business intelligence pilot to assess how SLP's efforts to work more proactively could be translated to the CSS model. To ensure that there is
ss SLP has identified the staff who will participate in the daily Single Point of Entry triage calls on a regular basis beginning August 1, 2016.
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Reporting Period: October 1, 2015 to June 30, 2016 continued follow-up on this Internal Reviewer recommendation, JOQACO will keep CSS informed about the progress of the SLP precision business intelligence pilot.
Evaluation Tools
In the Department's May 31, 2016 Report to the Court, the Internal Reviewer, as directed by the Court (See Doc. No. 551 at 16), examined evaluation tools used to review the quality of plans developed in the provision of services to persons with disabilities. (Doc. No. 572 at 27-31.) The Department noted, however, that "the Court's March 18, 2016 Order seems to seek information regarding a more direct measure-are peoples' lives being improved by the Department's efforts." To this end, the Internal Reviewer examined the Olmstead Quality of Life Survey to determine whether the inclusion of a sample of Jensen class members in the administration of this survey could help provide a quantitative answer to the question of whether the Department's efforts under the JSA have had a positive impact on the lives of class members or persons in the therapeutic follow-up group. The Internal Reviewer discussed his review of the Quality of Life Survey at the August 2016 Quality Assurance Leadership Team meeting, and work is in progress to address a number of logistical issues and determine the feasibility of pursuing this project.
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Evaluation Criteria

EC#

Evaluation Criteria

CPA Section

1.

The Facilities will comply with Olmstead v. L.C. The Facilities are and will remain licensed to serve Settlement Agreement Section N. METO

people with developmental disabilities. The Facility will eliminate unnecessary segregation of

Closure

individuals with developmental disabilities. People will be served in the most integrated [sic] setting

to which they do not object. Each individual's program will include multiple opportunities on an

ongoing basis to engage with: (1) citizens in the community, (2) regular community settings, (3)

participating in valued activities (4) as members of the community. These community activities will

be highly individualized, drawn from the person-centered planning processes, and developed

alo~de the individual.

1.1

Each individual's planning processes will specifically address integration within the following life

areas: (1) home; (2) work; (3) transportation; (4) lifelong learning and education; (5) healthcare and

Settlement Agreement Section N. METO Closure

healthy Hving; and (6) community and civic engagement.

1.2

Cambridge and successor facilities apply strong efforts to individualize and personalize the interior

Settlement Agreement Section N. METO

setting of the home. This includes exerting maximal feasible efforts to assist individuals to

Closure

personalize and individualize their bedrooms and common areas, to make each common area

aesthetically pleasing, and to actively support individuals to bring, care for, acquire, and display

personal possessions, photographs and important personal items. Consistent with person-centered

plans, this may include the program purchasing such items, which will build towards transition to a

new place to live.

2.

Facilities utilize person-centered planning principles and positive behavioral supports consistent with Settlement Agreement Section N. METO

applicable best practices including, but not limited to the Association of Positive Behavior Supports, Closure

Standards of Practice for Positive Behavior Supports.

2.1

Each individual will be involved to the greatest extent possible in the development of a person-

Settlement Agreement Section N. METO

centered profile centering on learning from the person and those who know the person best about

Closure

their history, preferences, life experiences, interests, talents, and capacities among other areas within

30 days of admission. This profile will be updated and revised as more is learned over time on at least

a monthly basis.

A revised person-centered profile format will be developed from the current person-centered

description to include the above areas and to include a method to note when revisions and additions

are made, by whom, and in what venue (e.g., a person-centered meeting of the support team,

interview, an individual update by a staff member, a phone call).

2.2

From the understanding in the person-centered profile, a person-centered plan will be completed

Settlement Agreement Section N. METO

which includes the development of a shared vision of the future to work towards within 30 days of

Closure

admission, as well as agreements and shared objectives and commitments .

Reporting Annual

SemiAnnual

-

-~

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EC#

Evaluation Criteria

CPA Section

2.3

The person-centered plan will directly inform the development of the individualized program plan

Settlement Agreement Section IV. METO

(or Coordinated Service Support Plan). Such plans will build on the strengths and interests of the

Closure

individual, and moving towards increasing relationships, roles, and community integration in these

areas of life.

2.4

The person-centered plan will directly inform the development of a Positive Behavior Support Plan. Settlement Agreement Section IV. METO

Life direction, talents, and interests will be capitalized on in any planned intervention. Each behavior Closure

support plan will include teaching strategies to increase competencies and build on the strengths of

the person.

2.5

Each behavior support plan will be unique to each individual. The use of token economies and

Settlement Agreement Section IV. METO

contingent reinforcement will be used sparingly, not for punishment, and only when weighed again Closure

the potential risks to the person's image and competencies in terms of exercising personal autonomy.

2.6

Each behavior support plan will include a summary of the person's history and life experiences, the

Settlement Agreement Section IV. METO

difficulties and problems the person is experiencing, past strategies and results, and a comprehensive Closure

functional behavioral analysis, from which strategies are derived.

2.7

Each Functional Behavioral Analysis will include a:

a. Review of records for psychological, health and medical factors which may influence behaviors;

Settlement Agreement Section IV. METO Closure

b . Assessment of the person's likes and dislikes (events I activities I objects I people);

c. Interviews with individual, caregivers and team members for their hypotheses regarding the causes

of the behavior;

d. Systematic observation of the occurrence of the identified behavior for an accurate

definition/description of the frequency, duration and intensity;

e. Review of the history of the behavior and previous interventions, if available;

f. Systematic observation and analysis of the events that immediately precede each instance of the

identified behavior;

g. Systematic observation and analysis of the consequences following the identified behavior;

h. Analysis of functions that these behaviors serve for the person;

i. Analysis of the settings in which the behavior occurs most/least frequently . Factors to consider

include the physical setting, the social setting, the activities occurring and available, degree of

participation and interest, the nature of teaching, schedule, routines, the interactions between the

individual and others, degree of choice and control, the amount and quality of social interaction, etc.

j. Synthesis and formulation of all the above information into a hypothesis regarding the underlying

causes and/or function of the targeted behavior.

Reporting

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EC#

Evaluation Criteria

CPA Section

Reporting

or shall be consistent with the standards of the Association of Positive Behavior Supports, Standards

of Practice for Positive Behavior Supports (htto://aobs.or2:).

2.8

Each positive behavior support plan will include: 1. Understanding how and what the individual is

Settlement Agreement Section IV. METO

communicating; 2. Understanding the impact of others' presence, voice, tone, words, actions and

Closure

gestures; 3. Supporting the individual in communicating choices and wishes; 4. Supporting workers to

change their behavior when it has a detrimental impact; 5. Temporarily avoiding situations which are

too difficult or too uncomfortable for the person; 6. Enabling the individual to exercise as much

control and decision making as possible over day-to-day routines; 7. Assisting the individual to

increase control over life activities and environment; 8. Teaching the person coping, communication

and emotional self-regulation skills; 9. Anticipating situations that will be challenging, and assisting

the individual to cope or calm; 10. Offering an abundance of positive activities, physical exercise, and

relaxation, and 11. As best as possible, modifying the environment to remove stressors (such as noise,

light, etc.).

2.9

The format used for Positive Behavioral Support Plans will be revised to include each of the above

Settlement Agreement Section IV. METO

areas, and will be used consistently.

Closure

3.

Facilities serve only "Minnesotans who have developmental disabilities and exhibit severe behaviors Settlement Agreement Section IV. METO

which present a risk to public safety."

Closure

3.1

3.1 All referrals for admission will be reviewed by the admissions coordinator to assure that they are Settlement Agreement Section IV. METO

persons with a Developmental Disability and meet the criteria of exhibiting severe behaviors and

Closure

present a risk to public safety taking into account court ordered admissions.

4.

Facilities notify legal representatives of residents and/or family to the extent permitted by law, at least Settlement Agreement Section IV. METO

annually, of their opportunity to comment in writing, by e-mail, and in person, on the operation of the Closure

Facility.

4.1

Initiate annual written survey process to all legal representatives of residents and/or family to the

Settlement Agreement Section IV. METO

extent permitted by law whose individual of interest was served within the past year which solicits

Closure

input on the operation of the Facility. Each survey will be in the relevant language, and will include

notification that comments on Facility operations may be offered in person or by mail or telephone by

contacting Facility director or designee.

SemiAnnual
Annual
I

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Evaluation Criteria

CPA Section

4.2

Aggregate data will be collected from survey responses received from each survey process. Facility

Settlement Agreement Section IV. METO

staff will develop an action plan to outline changes which will be made as a result of survey data, and Closure

implement those changes.

5.

The State/DHS immediately and permanently discontinues all the prohibited restraints and

techniques.

Settlement Agreement Section V.A. Prohibited Techniques- Restraint

5.1

DHS will issue a memorandum to all Facility staff confirming the Department's commitment to

provide services and supports which are consistent with best practices including: 1) Providing

Settlement Agreement Section V.A. Prohibited Techniques- Restraint

individuals with a safe and therapeutic environment which includes positive behavioral supports and

training on behavioral alternatives; 2) Recognizing that restraints are not a therapeutic intervention; 3)

An immediate prohibition on prone restraint, mechanical restraints, seclusion and time out; 4) The

Facilities' goal towards immediate reduction and eventual elimination of restraint use whenever

possible; and 5) Restraint use is permitted only when the client's conduct poses an imminent risk of

physical harm to self or others and less restrictive strategies would not achieve safety; client refusal to

receive I participate in treatment shall not constitute and emerge:n_cy_,

5.2

The Facility shall remove "mechanical restraint," "prone restraint," "prone hold" and all other

prohibited techniques from all current Facility forms and protocols.

Settlement Agreement Section V.A. Prohibited Techniques -Restraint

5.3

Facility policy(s) on Emergency Interventions shall minimally include: 1) The type of emergency

Settlement Agreement Section V.A.

interventions permitted and prohibited; 2) The protocol for administering emergency interventions; 3) Prohibited Techniques- Restraint

The authorization and supervision needed for each emergency intervention; 4) The medical

monitoring required during and after each restraint; 5) The review requirements of each emergency

intervention (administrative, internal and external); 6) The data collection and aggregate data review

of restrictive intervention usage. The Facility policy shall separate and clearly delineate "therapeutic

interventions" from "emergency restraint I interventions."

Current Facility policy/procedures shall be revised to comply with these requirements.

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Exception
59

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Evaluation Criteria

5.4

All Facility staff members have received competency-based training on the policy I procedures

identified immediately above.

5.5

Competency-based training on the policy I procedures identified above has been incorporated into

Facility orientation and annual training curricula.

CPA Section
Settlement Agreement Section V.A Prohibited Techniques- Restraint
Settlement Agreement Section V.A. Prohibited Techniques- Restraint

6.

The State/DHS has not used any of the prohibited restraints and techniques.

Settlement Agreement Section V.A Prohibited Techniques- Restraint

6.1

Facility Staff will specify on Restraint Form which emergency technique was employed, verifying that Settlement Agreement Section V.A

a prohibited technique was not used.

Prohibited Techniques- Restraint

6.2

The supervisor will review each restraint with staff by the end of his/her shift, verifying that: 1) The

Settlement Agreement Section V.A

threat of imminent harm warranted the emergency intervention, 2) The intervention was an approved Prohibited Techniques- Restraint

technique and no suspicion exists that a prohibited technique was used; and 3) When applicable, what

immediate corrective measures I administrative actions need to be taken.

6.3

Any/all use of prohibited techniques, e.g., prone restraints, mechanical restraints, seclusion, timeout, Settlement Agreement Section V.A

etc., will be investigated as potential allegations of abuse. Facility Staff are required to immediately

Prohibited Techniques- Restraint

report any suspected use of prohibited restraints I techniques to their supervisor.)

6.4

Reporting and review forms/procedures are revised, and utilized, to incorporate the above 6.1, 6.2 and Settlement Agreement Section V.A

6.3.

Prohibited Techniques - Restraint

7.

Medical restraint, and psychotropic/ neuroleptic medication have not been administered to residents Settlement Agreement Section V.A

for punishment, in lieu of habilitation, training, behavior support plans, for staff convenience or as

Prohibited Techniques- Restraint

behavior modification.

7.1

Facility policy shall specifically forbid the use of restrictive interventions, including medical restraints Settlement Agreement Section V.A

and/or psychotropic/neuroleptic medication for: the purposes of punishment; in lieu of habilitation,

Prohibited Techniques- Restraint

training, or behavior support plans; for staff convenience; or as a behavior modification.

7.2

Facility policy will specify medication management protocols consistent with best practices in the

Settlement Agreement Section V.A

support and treatment of individuals with cognitive and/or mental health disabilities.

Prohibited Techniques- Restraint

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Evaluation Criteria

CPA Section

8.

Restraints are used only in an emergency.

Settlement Agreement Section V.B. Prohibited Techniques- Policy

Reporting Exception

8.1

Facility Staff will clearly document, on the restraint form, the circumstances leading up to the restraint Settlement Agreement Section V.B.

and what irruninent risk of harm precipitated the application of the restraint. This shall include what Prohibited Techniques- Policy

antecedent behaviors were present, what de-escalation and intervention strategies were employed

and their outcomes.

8.2

In the event a restraint was used in the absence of irruninent risk of harm, staff will be immediately

retrained on Facility policies addressing the "Therapeutic Interventions and Emergency Use of

Settlement Agreement Section V.B. Prohibited Techniques -Policy

Personal Safety Techniques" policy with such retraining being entered into their training file.

9.

The Policy (Settlement Agreement Att. A, as it may be revised after court approval, dissemination

Settlement Agreement Section V.B.

and staff training) was followed in each instance of manual restraint

Prohibited Techniques- Policy

Exception

9.1

As part of its data management processes, the Facility will collect, review and analyze information

related to staff's adherence to restraint policy.

10.

There were no instances of prone restraint, chemical restraint, seclusion or time out. [Seclusion:

evaluated under Sec. V.C. Chemical restraint: evaluated under Sec. V.D.]

Settlement Agreement Section V.B. Prohibited Techniques - Policy
Settlement Agreement Section V.B. Prohibited Techniques - Policy

Exception

10.1 Facility policy shall clearly identify prone restraint, chemical restraint, seclusion and timeout as
"prohibited."

Settlement Agreement Section V.B . Prohibited Techniques - Policy

11.

There were zero instances of the use of Seclusion. Facility policy shall specify that the use of seclusion Settlement Agreement Section V.C.

Exception

is prohibited.

Prohibited Techniques- Seclusion and Time

Out

12.

There were zero instances of the use of Room Time Out from Positive Reinforcement. Facility policy Settlement Agreement Section V.C.

Exception

shall specify that the use of time out from positive reinforcement is prohibited.

Prohibited Techniques- Seclusion and Time

Out

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Evaluation Criteria

CPA Section

13.

There were zero instances of drug I medication use to manage resident behavior OR to restrain

freedom of movement. Facility policy specifies the Facility shall not use chemical restraint. A

Settlement Agreement Section V.D. Prohibited Techniques_- Chemical Restraint

chemical restraint is the administration of a drug or medication when it is used as a restriction to

manage the resident's behavior or restrict the resident's freedom of movement and is not a standard

treatment or dosage for the resident's condition.

14.

There were zero instances of PRN orders (standing orders) of drug/ medication used to manage

Settlement Agreement Section V.D.

behavior or restrict freedom of movement. Facility policy specifies that PRN/ standing order

Prohibited Techniques- Chemical Restraint

medications are prohibited from being used to manage resident behavior or restrict one's freedom of

movement.

15.

There is a protocol to contact a qualified Third Party Expert.

Settlement Agreement Section V.E. Prohibited Techniques- 3rd Party Expert

Reporting Exception
Exception

15.1 Facility policy stipulates that a Third Party Expert will be consulted within 30 minutes of the emergency's onset.

Settlement Agreement Section V.E. Prohibited Techniques - 3rd Party Expert

16.

There is a list of at least 5 Experts pre-approved by Plaintiffs & Defendants. In the absence of this list, Settlement Agreement Section V.E.

the DHS Medical or designee shall be contacted.

Prohibited Techniques- 3rd Party Expert

17.

DHS has paid the Experts for the consultations.

Settlement Agreement Section V.E. Prohibited Techniques - 3rd Party Expert

18.

A listed Expert has been contacted in each instance of emergency use of restraint.

19.

Each consultation occurred no later than 30 minutes after presentation of the emergency.

20.

Each use of restraint was an "emergency."

-

Settlement Agreement Section V.E. Prohibited Techniques - 3rd Party Expert
Settlement Agreement Section V.E. Prohibited Techniques- 3rd Party Expert
Settlement Agreement Section V.E. Prohibited Techniques- 3rd Party Expert

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Evaluation Criteria

CPA Section

21. 21.1
22. 23.1 [sic] 23. 23.1 24.

The consultation with the Expert was to obtain professional assistance to abate the emergency condition, including the use of positive behavioral supports techniques, safety techniques, and other best practices. If the Expert was not available, see V.F. below. On the restraint form, Facility staff will identify the Third Party or other expert and will document all recommendations given by the consultant, techniques, and the efficacy and outcomes of such interventions. When reviewing the restraint form, 24 hours post-restraint, Designated Coordinator will verify that Facility staff contacted the medical officer within 30 minutes of the emergency's onset. The responsible Facility supervisor contacted the DHS medical officer on call not later than 30 minutes
after the emergency restraint use began.

Settlement Agreement Section V.E. Prohibited Techniques - 3rd Party Expert
Settlement Agreement Section V.E. Prohibited Techniques- 3rd Party Expert
Settlement Agreement Section V.E. Prohibited Techniques - 3rd Party Expert

On the Restraint Form, the Facility supervisor will document both the date/time that the emergency restraint began and the date/time s/he contacted the designated medical officer.

Settlement Agreement Section V.E. Prohibited Techniques- 3rd Party Expert

The medical officer assessed the situation, suggested strategies for de-escalating the situation, and approved of, or discontinued the use of restraint.
The Facility supervisor will document on the restraint form and in the resident's record, the medical officer's de-escalation strategies, the outcome of those strategies used, and whether approval was needed and/or given for continued restraint use. The consultation with the medical officer was documented in the resident's medical record.

Settlement Agreement Section V.E. Prohibited Techniques - 3rd Party Expert
Settlement Agreement Section V.E. Prohibited Techniques - 3rd Party Expert
Settlement Agreement Section V.E. Prohibited Techniques- 3rd Party Expert

24.1 When conducting his/her post-restraint review, the Designated Coordinator will verify that the supervisor contacted the medical officer within 30 minutes of the emergency restraint and

Settlement Agreement Section V.E. Prohibited Techniques- 3rd Party Expert

documented the details in the resident's medical record.

25.

All allegations were fully investigated and conclusions were reached. Individuals conducting

Settlement Agreement Section V.G.

investigations will not have a direct or indirect line of supervision over the alleged perpetrators; the

Prohibited Techniques- Zero Tolerance for

DHS Office of the Inspector General satisfies this requirement. Individuals conducting investigations, Abuse and Neglect

interviews and/or writing investigative reports will receive competency-based training in best

practices for conducting abuse I neglect investigations involving individuals with cognitive and/or

mental health disabilities and interviewing.

Reporting
Exception
i
Exception
I
Exception
I I
Exception

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Evaluation Criteria

CPA Section

25.1 DHS employees having responsibility for investigative duties will receive 8 hours of continuing education or in-service training each year specific to investigative practices.

Settlement Agreement Section V.G. Prohibited Techniques- Zero Tolerance for Abuse and Neglect

25.2 Each investigation will undergo a quality review by a peer or supervisor who has, at minimum been Settlement Agreement Section V.G.

trained in the requirements set forth in this Implementation Plan.

Prohibited Techniques- Zero Tolerance for

Abuse and Neglect

25.3 The Department will maintain an electronic data management system, to track all information

Settlement Agreement Section V.G.

relevant to abuse/neglect investigations. This data management system will minimally include: 1)

Prohibited Techniques- Zero Tolerance for

Incident date; 2) Report date; 3) Incident location; 4) Provider; 5) Allegation type; 6) Alleged victim; 7) Abuse and Neglect

Alleged perpetrator(s); 8) Injuries sustained; 9) Assigned investigator; 10) Date investigative report is completed; 11) Substantiation status; 12) Systemic issues identified and the corrective measures taken

to resolve such issue; 13) Whether or not the case was referred to the county attorney; and 14)

Whether or not charges were filed; and 15) Outcome of charges.

25.4 Allegations substantiated by DHS Licensing (Office of Inspector General) will be documented in the client's Facility record.

Settlement Agreement Section V.G. Prohibited Techniques- Zero Tolerance for Abuse and Neglect

26.

All staff members found to have committed abuse or neglect were disciplined pursuant to DHS

policies and collective bargaining agreement, if applicable.

Settlement Agreement Section V.G. Prohibited Techniques- Zero Tolerance for Abuse and Neglect

26.1 All substantiated allegations of staff abuse or neglect are referred to Human Resources for human resources action in accordance with the definitions set forth under the Vulnerable Adults Act. All
perpetrators will be disciplined in accordance with DHS policies and procedures and Union

Settlement Agreement Section V.G. Prohibited Techniques- Zero Tolerance for Abuse and Neglect

Contracts.

27.

Where appropriate, the State referred matters of suspected abuse or neglect to the county attorney for Settlement Agreement Section V.G.

criminal prosecution.

Prohibited Techniques- Zero Tolerance for

Abuse and Neglect

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Reporting

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Evaluation Criteria

CPA Section

Reporting

27.1 All allegations of abuse or neglect related to care of residents of a Facility will be submitted to the common entry point to determine whether or not the case will be referred to the county attorney for
criminal prosecution.

28.

Form 31032 (or its successor) was fully completed whenever use was made of manual restraint.

Settlement Agreement Section V.G. Prohibited Techniques- Zero Tolerance for Abuse and Neglect
Settlement Agreement Section VI.A. Restraint Reporting & MGMT- Form 31032

Exception

28.1 When reviewing the restraint form 24 hours post-restraint, the Designated Coordinator will verify that Settlement Agreement Section VI.A.

Form 31032 (or any successor) was completed timely, accurately and in its entirety.

Restraint Reporting & MGMT- Form 31032

29.

For each use, Form 31032 (or its successor) was timely completed by the end of the shift.

Settlement Agreement Section VI.A. Restraint Reporting & MGMT- Form 31032

Exception

29.1 When reviewing the restraint form 24 hours post-restraint, the Designated Coordinator will verify that Settlement Agreement Section VI.A.

Form 31032 (or any successor) was completed timely, accurately and in its entirety.

Restraint Reporting & MGMT- Form 31032

30.

Each Form 31032 (or its successor) indicates that no prohibited restraint was used.

r

Settlement Agreement Section VI.A. Restraint Reporting & MGMT- Form 31032

Exception

30.1 Staff will indicate what type of restraint was used on Form 31032 (or any successor).

Settlement Agreement Section VI.A. Restraint Reporting & MGMT- Form 31032

30.2 When reviewing the restraint form, 24 hours or one business day post-restraint, the Designated Coordinator will verify that no prohibited techniques were used.

31.

Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance

was submitted to the Office of Health Facility Complaints.

Settlement Agreement Section VI.A. Restraint Reporting & MGMT- Form 31032
Settlement Agreement Section VI.B. Restraint Reporting & MGMT- Notifications

31.1 Form 31032 (or its successor) is sent to the Office of Health Facility Complaints within 24 hours or no Settlement Agreement Section VI. B. Restraint

later than one business day.

Reporting & MGMT- Notifications

I

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Evaluation Criteria

CPA Section

Reporting

32. 32.1 33. 33.1 34. 34.1 35. 35.1 36. 36.1 37.

Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the Ombudsman for MH & DD

Settlement Agreement Section VI.B. Restraint Exception Reporting & MGMT- Notifications

Form 31032 (or its successor) is sent to the Ombudsman for MH & DD within 24 hours or no later than Settlement Agreement Section VI.B. Restraint

one business day.

Reporting & MGMT- Notifications

Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the DHS Licensing

Settlement Agreement Section VI.B. Restraint Exception Reporting & MGMT- Notifications

Form 31032 (or its successor) is sent to DHS Licensing within 24 hours or no later than one business day.

Settlement Agreement Section VI.B. Restraint Reporting & MGMT- Notifications

Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the Court Monitor and to the DHS Internal Reviewer

Settlement Agreement Section VI. B. Restraint Reporting & MGMT- Notifications

Form 31032 (or its successor) is sent to the Court Monitor and to the DHS Internal Reviewer within 24 Settlement Agreement Section VI.B. Restraint

hours or no later than one business day.

Reporting & MGMT- Notifications

Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the legal representative and/or family to the extent permitted by law.

Settlement Agreement Section VI.B. Restraint Exception Reporting & MGMT- Notifications

Form 31032 (or its successor) is sent to the legal representative, and/or family to the extent permitted by law, within 24 hours or no later than one business day.

Settlement Agreement Section VI.B. Restraint Reporting & MGMT- Notifications

Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the Case manager.

Settlement Agreement Section VI.B. Restraint Exception Reporting & MGMT- Notifications

Form 31032 (or its successor) is sent to the case manager within 24 hours or no later than one business Settlement Agreement Section VI.B. Restraint

day.

Reporting & MGMT- Notifications

Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the Plaintiffs' Counsel.

Settlement Agreement Section VI.B. Restraint Reporting & MGMT- Notifications

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Evaluation Criteria

CPA Section

Reporting

37.1 Form 31032 (or its successor) is sent to the Plaintiffs' Counsel within 24 hours or no later than one
business day.

Settlement Agreement Section VI.B. Restraint Reporting & MGMT- Notifications

38.

Other reports, investigations, analyses and follow up were made in each case of restraint use.

Settlement Agreement Section VI.C. Restraint Responses Are Not To Replace Other Incident Reporting, Investigation, Analysis & Follow-Up

Annual

38.1 The Designated Coordinator will review each client incident, injury and/or restraint use within 1

Settlement Agreement Section VI.C.

business day of its occurrence to: 1) Evaluate the immediate health and safety of the individual(s)

Restraint Responses Are Not To Replace

involved; 2) Ensure no prohibited techniques were used; 3) Ensure all documentation and

Other Incident Reporting, Investigation,

notifications were properly made; and 4) Determine what, if any, immediate measures must be taken. Analysis & Follow-Up

38.2

The Designated Coordinator will convene an Interdisciplinary Team (IDT) meeting within 5 business days of a restraint to: 1) Review the circumstances surrounding the behavioral emergency; 2)

Settlement Agreement Section VI.C. Restraint Responses Are Not To Replace

Determine what factors likely contributed to the behavioral emergency, i.e. life event, environmental, Other Incident Reporting, Investigation,

relational discord, etc.; 3) Identify what therapeutic interventions, including individualized strategies, Analysis & Follow-Up

were employed and why they were unsuccessful in de-escalating the situation; 4) Review and assess

the efficacy of the individual's PBS plan, making changes as needed; 5) Determine if trends/patterns

can be identified with this individual or this living area; and 6) Take all corrective measures deemed

necessary, indicating what actions are being taken, the party responsible for taking such actions, the

date by which these actions will be taken, and how the efficacy of such actions will be monitored.

Documentation of the IDT meeting, including attendees, review and actions taken will be thoroughly

documented in the individual's record.

38.3 When changes to an individual's program plan and/or PBS plan are recommended during the IDT's
restraint review, the Designated Coordinator will ensure that such changes are made within 2
business days of the IDT meeting related to the restraint use.

Settlement Agreement Section VI.C. Restraint Responses Are Not To Replace Other Incident Reporting, Investigation, Analysis & Follow-Up

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Evaluation Criteria

CPA Section

38.4 A facility-based Positive Behavioral Supports Review (PBSR), comprised of both behavioral analysts Settlement Agreement Section VI.C. and non-clinical staff, will be established and maintained for the purposes of: 1) Reviewing all positive Restraint Responses Are Not To Replace

behavioral support plans to ensure they adhere to current best practice; 2) Approving and monitoring Other Incident Reporting, Investigation,

the efficacy of all positive behavioral support plans; 3) Reviewing the use of any restrictive and/or

Analysis & Follow-Up

emergency interventions, i.e. restraints, 911 calls, etc. The PBSR Committee will meet on a monthly

basis.

38.5 The PBSR committee will maintain meeting minutes detailing attendance (person/title); chairperson; Settlement Agreement Section VI.C.

individual and aggregate data review; issues and trends identified (individual and systemic);

Restraint Responses Are Not To Replace

corrective measures to be taken; dates by which such corrective measures are to be completed;

Other Incident Reporting, Investigation,

responsible parties, and follow-up of the previous month's action plans.

Analysis & Follow-Up

38.6 The Department will identify and address any trends or patterns from investigations.

Settlement Agreement Section VI.C. Restraint Responses Are Not To Replace Other Incident Reporting, Investigation, Analysis & Follow-Up

39.

In consultation with the Court Monitor during the duration of the Court's jurisdiction, DHS

Settlement Agreement Section VII.B.

designates one employee as Internal Reviewer whose duties include a focus on monitoring the use of, Restraint Review - Internal Reviewer

and on elimination of restraints.

40.

The Facility provided Form 31032 (or its successor) to the Internal Reviewer within 24 hours of the use Settlement Agreement Section VII.B.

of manual restraint, and no later than one business day.

Restraint Review - Internal Reviewer

40.1 The shift supervisor/administrator on duty will notify the Internal Reviewer of the restraint within 24 Settlement Agreement Section VII.B.

hours and no later than one business day. Notification will be made electronically along with the

Restraint Review - Internal Reviewer

completed Form 31032 (or its successor).

41.

The Internal Reviewer will consult with staff present and directly involved with each restraint to

address: 1) Why/how de-escalation strategies and less restrictive interventions failed to abate the

Settlement Agreement Section VII.B. Restraint Review - Internal Reviewer

threat of harm; 2) What additional behavioral support strategies may assist the individual; 3) Systemic

and individual issues raised by the use of restraint; and 4) the Internal Reviewer will also review Olmstead or other issues arising from or related to, admissions, discharges and other separations from

the facility.

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SemiAnnual Exception SemiAnnual

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Evaluation Criteria

CPA Section

41.1 The Internal Reviewer will consult with staff present and directly involved with each restraint to

Settlement Agreement Section VII.B.

address: 1) Why/how de-escalation[sic] strategies and less restrictive interventions [sic] failed to abate Restraint Review - Internal Reviewer

the threat of harm; 2) What additional behavioral support strategies may assist the individual; 3)

Systemic and individual issues raised by the use of restraint; and 4) the Internal Reviewer will also

review Olmstead or other issues arising from or related to, admissions, discharges and other

separations from the facility.

42.

On April23, 2013, the Court appointed the Court Monitor as the External Reviewer, with the consent Settlement Agreement Section VII.B.

of Plaintiffs and Defendants. DHS funds the costs of the external reviewer.

Restraint Review - External Reviewer

43.

After providing Plaintiffs' Class Counsel and the Department the opportunity to review and comment Settlement Agreement Section VII.B.

on a draft, the External Reviewer issues written quarterly reports informing the Department whether Restraint Review - External Reviewer

the Facility is in substantial compliance with the Agreement and the incorporated policies,

enumerating the factual basis for its conclusions.

44.

In conjunction with duties and responsibilities under the Order of July 17, 2012, the Court Monitor

Settlement Agreement Section VII.B.

reviews and makes judgments on compliance, makes recommendations and offers technical assistance Restraint Review - External Reviewer

in his discretion, and files quarterly and other reports with the Court. Timing of reports is subject to

the Court's needs, results of Monitor's reviews, and to the monitoring plan pursuant to the Order of

August 28, 2013.

45.

The following have access to the Facility and its records: The Office of Ombudsman for Mental Health External Entity and Plaintiffs' Access

and Developmental Disabilities, The Disability Law Center, and Plaintiffs' Class Counsel.

45.1 Open access to the Facility, its successors, and their records is given to the Office of OmbudsmanMH/DD, The Disability Law Center and Plaintiffs' Class Counsel.

External Entity and Plaintiffs' Access

46.

The following exercised their access authority: The Office of Ombudsman for Mental Health and

Developmental Disabilities, The Disability Law Center, and Plaintiffs' Counsel.

External Entity and Plaintiffs' Access

46.1 The Ombudsman-MH/DD, Disability Law Center and Plaintiffs' counsel have all exercised their authority to access the Facility, its successors, and their records.

External Entity and Plaintiffs' Access

Reporting
I I
Annual Annual

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EC# 47.

Evaluation Criteria

CPA Section

The State undertakes best efforts to ensure that each resident is served in the most integrated setting appropriate to meet such person's individualized needs, including home or community settings. Each individual currently living at the Facility, and all individuals admitted, will be assisted to move towards more integrated community settings. These settings are highly individualized and maximize the opportunity for social and physical integration, given each person's legal standing. In every situation, opportunities to move to a living situation with more freedom, and which is more typical,
will be pursued.

Settlement Agreement Section VID. Transition Planning

47.2 Regarding transition planning for individuals entering more restrictive settings, the tasks under Evaluation Criteria 48 to 53 shall be fulfilled.

48 .

The State actively pursues the appropriate discharge of residents and provided them with adequate

and appropriate transition plans, protections, supports, and services consistent with such person's

individualized needs, in the most integrated setting and to which the individual does not object.

Settlement Agreement Section VITI Transition Planning
Settlement Agreement Section Vill. Transition Planning

48.1 48.2 49 .

Each individual currently living at MSHS-Cambridge, and any individuals admitted prior to its closure, will have an appropriate transition plan developed within 30 days of admission in accordance with the individual needs and preference for the most integrated setting possible. (For this purpose
"admission" and "commitment" are treated the same.).

Settlement Agreement Section VIII. Transition Planning

For individuals who may by law or court order be required to enter more restrictive and less integrated circumstances, such as incarceration in a prison, person-centered planning and transition planning is given the same importance as voluntary admissions. All efforts will be towards preparation and transition, safeguarding, negotiating with facilities, supports while in a facility, and implementing immediate post-facility transition into well-matched supports.

Settlement Agreement Section VID. Transition Planning

Each resident, the resident's legal representative and/or family to the extent permitted by law, has been permitted to be involved in the team evaluation, decision making, and planning process to the
greatest extent practicable, using whatever communication method he or she (or they) prefer.

Settlement Agreement Section VIII. Transition Planning

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Evaluation Criteria

CPA Section

49.1 49.2
50. 50.1

Each individual and/or the individual's family and/or legal representative as desired by the individual or required by guardianship is permitted, actively encouraged, and welcomed to be involved in the individual's person-centered planning and decision making to the greatest extent practicable utilizing whatever communication method the individual prefers and respecting the individual's right to choose the participants. Invitations to all planning and evaluation meetings will be extended . Alternate means of participation will be extended to those who cannot travel or attend, including
phone and video conferendng. Each individual will be invited and encouraged to participate in and take leadership in the personcentered planning processes when this is possible and desired by the person. In all circumstances, the person-centered planning process will be engaged in for and with all individuals, with the understanding that transition and change will happen, that the people are vulnerable, and may need the alliance and support of other allies to support the process of moving forward. High quality person-centered planning, including the development of person-centered profiles, plans, and transition plans, will not be delayed or minimized by a person's perceived level of readiness to take leadership of the process, or willingness to en__g<lge in the process. To foster each resident's self-determination and independence, the State uses person-centered planning principles at each stage of the process to facilitate the identification of the resident's specific interests, goals, likes and dislikes, abilities and strengths, as well as support needs.
Person-centered planning: 1) Will be started immediately upon meeting the person, before admission if possible; 2) Will be on-going; 3) Will be supported by a team of people who represent the interests of the person, if need be; 4) Without exception, and only if the person objects to the inclusion of specific people, the support team will include willing family members, case managers, current, past and future service workers, and at least one individual who is in a freely -given relationship with the person which is conflict-free. This can include a community advocate, citizen advocate, family member, or other individual who only has the welfare of the individual to consider. If the individual is unable or unwilling to participate, people who know about and care for the individual, with the individual's approval, will still be invited to engage in sharing their perspectives about what that positive future can be and what is needed to bring it about. This process will begin at first contact, with a first person-centered plan drawn up by day 30 after admission or 45 days from
approval of this Plan. --

Settlement Agreement Section VIII. Transition Planning
Settlement Agreement Section VIII. Transition Planning
Settlement Agreement Section VIII. Transition Planning Settlement Agreement Section VIII. Transition Planning

Reporting
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Evaluation Criteria

CPA Section

50.2 Each Person-Centered Plan will be enriched, altered and moved forward at least every 30 days as the Settlement Agreement Section VIII. person becomes better known and moves toward a new living situation. As plans for this new living Transition Planning situation emerge, each plan will include all activities relevant for transition to a new living situation, relevant and necessary supports to assure the person will have good success, and protections that need to be in place.

50.3 The information from each Person-Centered Plan will be fully incorporated into each person's transition plan, Positive Behavior Support Plan, goal plans, and service objectives within any

Settlement Agreement Section VIII. Transition Planning

Individual Service Plan.

50.4 All plan facilitators will have, or function under the active supervision of a staff person who has,

Settlement Agreement Section VIII.

significant experience and background in facilitation, social devaluation and its consequences, and the Transition Planning

principles of Normalization I Social Role Valorization, person-centered thinking, and the various and

vast array of useful tools and techniques which may be of use for a particular person. Any such

supervisor shall co-sign and be responsible for the plan and plan process. In this manner, a

thoughtful, authentic, individualized and successful planning process will result in meaningful

outcomes. Evidence of use of various, individualized techniques for different individual people will

be clear in the development of person -centered plans. (PATH, MAPS, Personal Futures Planning,

One Page Profiles, and Helen Sanderson's Person-Centered Thinking, are examples).

50.5 An annual learning and professional development plan which includes the above areas will be

Settlement Agreement Section VIII.

developed with and for each facilitator of person-centered processes. It may include reading,

Transition Planning

research, formal, and informal training, mentoring, and development events. These learning and

professional development plans will include a minimum of 25 hours per year of educational activities

(formal and informal) focused on person-centered planning, and will be completed as planned.

Attendance at professional conferences, in and out of state, will be supported and facilitated.

50.6 Person-Centered Planning will include the intentional development of each support team's

Settlement Agreement Section VIII.

understanding and analysis of the individual's particular life experiences and how they have

Transition Planning

impacted the person. Themes, patterns, potential responses, and lessons should be drawn from this

knowledge. Biographical tirnelines, or other person-centered means to capture histories and

understand the person will be conducted for each person, with the collaboration of the person and

family, if appropriate.

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Evaluation Criteria

CPA Section

50.7 The development of a person-centered description or personal profile will be used to develop the
initial person-centered plan.

Settlement Agreement Section Vill. Transition Planning

50.8 The formats for the Person-Centered Plan, person-centered description or personal profile will be
revised to comply with the content requirements of this CPA. The Individual Program Plan will

Settlement Agreement Section Vill. Transition Planning

incorporate the Person-Centered Plan. The Person-Centered Plan will be re-designed to reflect a person-centered approach and style. This
will include adding: 1) The focus person's goals, interests and vision for the future; 2) The identification of any actions and plans towards achieving those goals; 3) Support to be provided and by whom; 4) Use of everyday, informal language and avoidance of unnecessary service jargon.
Objectives for the Person-Centered Plan will be drawn directly from the person-centered description I

profile.

51.

Each resident has been given the opportunity to express a choice regarding preferred activities that

Settlement Agreement Section Vill.

contribute to a quality life.

Transition Planning

51.1 51.2
52.

For each person served at a Facility, the Person-Centered Plan will include preferred activities, areas in which the person wants to learn and grow, relationships to strengthen, and competencies to learn.

Settlement Agreement Section Vill. Transition Planning

Frequent, daily opportunities will be built into daily life for each person to engage in meaningful activities that are personalized, individualized, and selected by the person. These will be activities planned with the person, and carried out in an individualized fashion . "House activities" will generally not be consistent with providing individualized, person-centered activities which the person
freely chooses to engage in.

It is the State's goal that all residents be served in integrated community settings and services with adequate protections, supports and other necessary resources which are identified as available by service coordination. If an existing setting or service is not identified or available, best efforts will be utilized to create the appropriate setting or service using an individualized service design process.

-

-

-

Settlement Agreement Section Vill. Transition Planning
Settlement Agreement Section VIII. Transition Planning

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EC# 52.1
52.2 52.3

Evaluation Criteria

I

CPA Section

Each individual's Person-Centered Plan will embody continuously increasing clarity at each revision/ Settlement Agreement Section VIII.

development meeting on what an ideal living situation may look like for the person. These will

Transition Planning

support and describe "must haves" components which must be in place in any considered situation.

This may include living situations which are not offered in existing structured services. It may also be

impossible to "show" a person a service that matches their needs, even though they may select that

option from several.

If an existing service/living situation is identified and selected by the individual with assistance from the support team, alterations, enhancements, and additional supports will be added whenever

Settlement Agreement Section VIII. Transition Planning

appropriate to ensure robust community supports which meet the essential needs for assistance,

structure, and support as outlined in the Person-Centered Plan. "Must haves" identified as in 52.1 are

required to be in place.

If an existing residential service is not identified or available, the appropriate services must be created, Settlement Agreement Section VIII.

using an individualized service design process.

Transition Planning

52.4 When a living situation is identified as a possibility, the individual and the support team as

Settlement Agreement Section VIII.

appropriate will have multiple opportunities to visit, meet potential house-mates, interview the staff Transition Planning

and provider, spend time in the situation, and be given the opportunity to make a choice about the

living situation, request program enhancements or adjustments, or decline the option.

52.5 When a discharge into an alternative living situation is agreed upon, the transition plan will be further Settlement Agreement Section VIII. developed and finalized. This pre-discharge iteration of the transition plan will include not only the Transition Planning sharing of information and documents transfers between providers, 1) An individualized plan to facilitate a smooth move; 2) Assistance to the person to navigate the move with ease, and arrange for safeguarding and transfer of the person's belongings ; 3) Planning for and making purchases for new home,; 4) Assistance to become familiar with new neighborhood, area, town; 5) Planning for packing and move day ; 6) Personalization of new home; 7) Notification of family and friends ; 8) Post office and utility changes ; 9) Introductions to neighbors; 10) Setting up opportunities to deepen relationships with future housemates; 11) Celebrations, welcoming, and farewells; 12) Designing layout of space, window treatments, etc. These types of considerations are a part of the typical processes that valued adults in our culture when preparing to move, and these and others shall be
considered.

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Evaluation Criteria

CPA Section

52.6 The format for the transition plan will incorporate and provide for address of the elements in 52.5 above.

53.

The provisions under this Transition Planning Section have been implemented in accord with the

Olmstead decision.

Settlement Agreement Section VIII. Transition Planning
Settlement Agreement Section VIII. Transition Planning

53.1 Any living arrangement, day service, or other service which is administered or organized in a

Settlement Agreement Section VIII.

segregated manner must be justified in writing as a part of the transition plan as being necessary. In a Transition Planning

"segregated manner" means that the people served are all people with disabilities who have not

specifically chosen to live or be served together. This justification will be accompanied by objectives to

increase social and physical integration which will be included in service planning objectives and

program planning.

53.2 All services provided and planned for, and transitioned into must be adequate, appropriate, and carefully monitored. This need for monitoring will be carefully weighed by each person-centered

Settlement Agreement Section VIII. Transition Planning

team and addressed. This includes services at the Facility and new living and working situations into

which a person is transitioning.

53.3 All services provided will include assisting people to have meaningful roles in community life, civic life, relationships, work and career, home, and areas of personal interest. When appropriate, these

Settlement Agreement Section VIII. Transition Planning

areas of engagement will be envisioned by the team alongside the individual served, and

opportunities will be created for this engagement in everyday life. These roles and engagements will

be consistently identified and addressed within the Person-Centered Planning, Transition, and the

Positive Behavior Support Plans development processes.

53.4 The above areas of engagement (community life, civic life, relationships, career, home, personal interests) will be included in each Person-Centered Plan as focus areas for planning and related
objectives.

Settlement Agreement Section VIII. Transition Planning

54.

Facility treatment staff received training in positive behavioral supports, person-centered approaches, Settlement Agreement Section IX.A. Other

therapeutic interventions, personal safety techniques, crisis intervention and post crisis evaluation.

Practices at the Facility- Staff Training

Reporting SemiAnnual
Annual

54.1 Facility staff in all positions receive annual standardized training in: l.Therapeutic Interventions 2. Personal safety techniques 3. Medically monitoring restraint

Settlement Agreement Section IX.A. Other Practices at the Facility- Staff Training

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Evaluation Criteria

CPA Section

Reporting

54.2
54.3 55 55.1 55.2 55.3

4. Positive Behavior Supports 5. Person-Centered Approaches 6. Crisis Intervention 7. Post-Crisis Evaluation and Assessment All new or temporary Facility staff in all positions receive standardized pre-service training in: l.Therapeutic Interventions 2. Personal safety techniques 3. Medically monitoring restraint 4. Positive Behavior Supports 5. Person-Centered Approaches 6. Crisis Intervention 7. Post-Crisis Evaluation and Assessment The Department will record, monitor and follow-up with the Facility administration to ensure that all facility treatment staff receive all necessary training including, but not limited to, EC 62-64, below.

Settlement Agreement Section IX.A. Other Practices at the Facility- Staff Training
Settlement Agreement Section IX.A. Other Practices at the Facility -Staff Training

Facility staff training is consistent with applicable best practices, including but not limited to the Association of Positive Behavior Supports, Standards of Practice for Positive Behavior Supports (http://apbs.org). Staff training programs will be competency-based with staff demonstrating current competency in both knowledge and skills. All Facility staff training programs will be competency-based with staff demonstrating current
competency in both knowledge and skills.

Settlement Agreement Section IX.A. Other Practices at the Facility - Staff Training
Settlement Agreement Section IX.A. Other Practices at the Facility - Staff Training

Training curricula are developed, based on, and consistent with best practices in: 1) Positive Behavioral Supports; 2) Person-Centered approaches/practices; 3) Therapeutic Intervention Strategies; 4) Personal safety techniques; and 5) Crisis intervention and post crisis evaluation.

Settlement Agreement Section IX.A. Other Practices at the Facility -Staff Training

Each training program (that is, 1) Positive Behavioral Supports; 2) Person-Centered

approaches/practices; 3) Therapeutic Intervention Strategies; 4) Personal Safety techniques; and 5)

Crisis intervention & post crisis evaluation), will be evaluated at least annually and revised, if

app ropriate, to ensure adherence to evidence-based and best practices.

-

Settlement Agreement Section IX.A. Other Practices at the Facility- Staff Training
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Annual

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Evaluation Criteria

CPA Section

55.4 DHS will ensure traiillng programs promote sensitivity awareness surrounding individuals with

Settlement Agreement Section IX.A. Other

cognitive and mental health disabilities and how their developmental level, cultural/familial

Practices at the Facility- Staff Traiillng

background, history of physical or sexual abuse and prior restraints may affect their reactions during

behavioral emergencies.
55.5 DHS will ensure that training programs are designed to also develop staffs self-awareness of how their own experiences, perceptions and attitudes affect their response to behavioral issues and

Settlement Agreement Section IX.A. Other Practices at the Facility- Staff Traiillng

emergencies.

56.

Facility staff receive the specified number of hours of traiillng: Therapeutic interventions (8 hours);

Personal safety techniques (8 hours); Medically monitoring restraint (1 hour).

Settlement Agreement Section IX.A. Other Practices at the Facility- Staff Traiillng

56.1 Competency-based training curriculum is developed which minimally provides 8 hours training in

Settlement Agreement Section IX.A. Other

Therapeutic Interventions; Personal Safety Techniques and 1 hour in Medically Monitoring Restraints. Practices at the Facility -Staff Traiillng

56.2 All current employees receive 8 hours of competency-based traiillng on Therapeutic Interventions.

Settlement Agreement Section IX.A. Other Practices at the Facility- Staff Traiillng

56.3 All current employees receive 8 hours of competency-based traiillng on Personal Safety Techniques.

Settlement Agreement Section IX.A. Other Practices at the Facility- Staff Traiillng

56.4 All current employees receive 1 hour of competency-based traiillng on Medically Monitoring restraints.

Settlement Agreement Section IX.A. Other Practices at the Facility -Staff Traiillng

57.

For each instance of restraint, all Facility staff involved in imposing restraint received all the traiillng Settlement Agreement Section IX.A. Other

in Therapeutic Interventions, Personal Safety Techniques, and Medically Monitoring Restraint.

Practices at the Facility - Staff Traiillng

57.1 No staff member is permitted to be assigned to direct support services until having received all required orientation and/or annual in-service training on all elements of EC 56, above.

Settlement Agreement Section IX.A. Other Practices at the Facility- Staff Traiillng

58.

Facility staff receive the specified number of hours of traiillng: Person-centered planning and positive Settlement Agreement Section IX.B. Other

behavior supports (with at least sixteen (16) hours on person-centered thinking I planning): a total40 Practices at the Facility- Hours of Traiillng

hou.rs; Post Crisis Evaluation and Assessment (4 hours).

Reporting Annual
Annual Annual

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Evaluation Criteria

CPA Section

59.

Residents are permitted unscheduled and scheduled visits with immediate family and/or guardians, Settlement Agreement Section IX.C. Other

at reasonable hours, unless the Interdisciplinary Team (IDT) reasonably determines the visit is

Practices at the Facility- Visitor Policy

contraindicated.

59.1 Facilitate and allow all individuals to have scheduled and unscheduled visits with immediate family Settlement Agreement Section IX.C. Other

and/or guardians and other visitors if not contraindicated by court order or person-centered plans.

Practices at the Facility- Visitor Policy

60.

Visitors are allowed full and unrestricted access to the resident's living areas, including kitchen, living Settlement Agreement Section IX.C. Other

room, social and common areas, bedroom and bathrooms, consistent with all residents' rights to

Practices at the Facility- Visitor Policy

privacy.

60.1 Facilitate all visitors access to the individual's living areas, including kitchen, living room, social and Settlement Agreement Section IX.C. Other

common areas, bedroom and bathrooms, with attention paid to the right of individual privacy and

Practices at the Facility -Visitor Policy

person-centered plans or court requirements.

61.

Residents are allowed to visit with immediate family members and/or guardians in private without

Settlement Agreement Section IX.C. Other

staff supervision, unless the IDT reasonably determines this is contraindicated.

Practices at the Facility- Visitor Policy

61.1 Provide privacy, if desired by the individual, for all individuals when visiting with immediate family Settlement Agreement Section IX.C. Other

members and/or guardians, unless the person-centered plans reasonably determines this is

Practices at the Facility- Visitor Policy

contraindicated or visitation rules are court ordered.

62.

There is no marketing, recruitment of clients, or publicity targeted to prospective residents at the

Settlement Agreement Section IX.D. Other

Facility.

Practices at the Facility- No Inconsistent

Publicity

63.

The Facility purpose is clearly stated in a bulletin to state court judges, county directors, social service Settlement Agreement Section IX.D. Other

supervisors and staff, county attorneys and Consumers and Families and Legal Representatives of

Practices at the Facility- No Inconsistent

consumers of Developmental Disabilities services. Any admission will be consistent with the

Publicity

requirements of this bulletin.

63.1 Clearly state the Facility's purpose in a bulletin to state court judges, county directors, social service supervisors and staff, county attorneys and Consumers and Families and Legal Representatives of

Settlement Agreement Section IX.D. Other Practices at the Facility- No Inconsistent

consumers of Developmental Disabilities services.

Publicity

Reporting I Annual I
I
Annual I
I ! I I
Annual
Annual

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EC# 64.

Evaluation Criteria
The Facility has a mission consistent with the Settlement Agreement and this Comprehensive Plan of Action.

CPA Section
Settlement Agreement Section IX.D. Other Practices at the Facility- No Inconsistent Publicity

65.

The Facility posts a Patient I Resident Rights or Bill of Rights, or equivalent, applicable to the person Settlement Agreement Section IX.E. Other

and the placement or service, the name and phone number of the person within the Facility to whom Practices at the Facility- Posting

inquiries about care and treatment may be directed, and a brief statement describing how to file a

Requirements

complaint with the appropriate licensing authority.

66.

The Patient I Resident Bill of Rights posting is in a form and with content which is understandable by Settlement Agreement Section IX.E. Other

residents and family I guardians.

Practices at the Facility- Posting

Requirements

66.1 Apart from any Patient/Resident Rights or Bill of Rights format which may be required by state law, Settlement Agreement Section IX.E. Other an alternative version at an appropriate reading level for residents, and with clearly understandable Practices at the Facility- Posting
content, will be posted and provided to individuals, parents and guardians on admission, reviewed at Requirements

IDT meetings, and annually thereafter.

67.

The expansion of community services under this provision allows for the provision of assessment,

triage, and care coordination to assure persons with developmental disabilities receive the

appropriate level of care at the right time, in the right place, and in the most integrated setting in

Settlement Agreement Section X.A. System Wide Improvements- Expansion of Community Support Services

accordance with the U.S. Supreme Court decision in Olmstead v. L.C., 527 U.S. 582 (1999).

Settlement Agreement Section X.A. System

Wide Improvements - Expansion of

Community Support Services

67.1 Community Support Services (CSS) provides assessment, triage, and care coordination so that persons Settlement Agreement Section X.A. System with developmental disabilities can receive the appropriate level of care in the most integrated setting. Wide Improvements - Expansion of
Community Support Services

67.2 Collect and manage data to track CSS interventions noted in 67.1 and their outcomes.

Settlement Agreement Section X.A. System Wide Improvements - Expansion of Community Support Services

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Evaluation Criteria

CPA Section

67.3 Provide necessary administrative/ management support within CSS to accomplish data management Settlement Agreement Section X.A. System

and analysis.

Wide Improvements - Expansion of

Community Support Services

67.4 Focus weekly "diversion" meetings to include person-centered development strategies rather than

Settlement Agreement Section X.A. System

considering only existing vacancies and challenges. From this perspective: 1) Review any proposed Wide Improvements - Expansion of

admissions to more restrictive settings and consider all possible diversion strategies; 2) Review status Community Support Services

of transition planning for all living at the Facility, 3) Add active, individualized planning I

development focus to these transition discussions which is consistent with the Olmstead Plan and

includes such activities as developing a person-centered request for proposals for any person or

persons at the Facility without an identified and appropriate targeted home in the community.

67.5 Weekly diversion meetings consider all individuals in danger of losing their living situation with an emphasis upon development of integrated alternatives where none are available.

Settlement Agreement Section X.A. System Wide Improvements -Expansion of Community Support Services

67.6 CSS has additional administrative I managerial support to insure documentation and analysis of all

Settlement Agreement Section X.A. System

diversion efforts and their impact on individuals' stability regarding living situations and behavioral I Wide Improvements - Expansion of

mental health.

Community Support Services

67.7 CSS provides continuous and on-going diversion from institutionalization and placement in less integrated settings whenever possible by establishing procedures for assessment, care planning, and

Settlement Agreement Section X.A. System Wide Improvements- Expansion of

providing additional services, supports and expertise for individuals in jeopardy of losing their

Community Support Services

plaeements or living situations due to behavioral or mental health problems.

67.8 The Department will collect and review data relative to admissions and transitions. This shall include, but not be limited to: 1) individual's name, date of birth and county of origin; 2) current

Settlement Agreement Section X.A. System Wide Improvements - Expansion of

residence, provider and type of residential setting, e.g., independent living, family of origin, group

Community Support Services

home, ICF/ID, etc.; 3) date the individual moved to or was admitted to current residence; 4) previous

residences, providers and residential settings; 5) dates of previous admissions and transitions

including reason(s) for moves.

68.

The Department identifies, and provides long term monitoring of, individuals with clinical and

situational complexities in order to help avert crisis reactions, provide strategies for service entry

Settlement Agreement Section X.A. System Wide Improvements - Expansion of

changing needs, and to prevent multiple transfers within the system.

Community Support Services

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Evaluation Criteria

CPA Section

68.1 For DHS-operated services, the Department will maintain State and regional quality assurance

Settlement Agreement Section X.A. System

committees to review data on a monthly basis. This review will include: 1) identifying individuals at Wide Improvements - Expansion of

heightened risk and determining intervention strategies; 2) reviewing data by county, region and

Community Support Services

provider to determine if trends or patterns exist and necessary corrective measures; and 3)

maintaining meeting minutes detailing attendance (person/title), chairperson, individual and

aggregate data review, issues and trends identified (individual and systemic), corrective measures to

be taken, dates by which such corrective measures are to be completed, responsible parties, and

follow-up of the previous months' action plans.

68.2 The Department will maintain an electronic data collection system, which tracks the status of all corrective action plans generated by State and regional quality assurance committees, following up
with the appropriate provider or county to ensure task completion.

69.

Approximately seventy five (75) individuals are targeted for long term monitoring.

Settlement Agreement Section X.A. System Wide Improvements - Expansion of Community Support Services
Settlement Agreement Section X.A. System Wide Improvements - Expansion of Community Support Services

69.1 CSS will identify individuals with clinical and situational complexities who have been served by CSS and who would likely benefit from more intensive monitoring.

69.2 Seventy five individuals who are significantly at-risk for institutionalization or loss of home due to

Settlement Agreement Section X.A. System

behavioral or other challenges will be identified for intensive monitoring and, if needed, intervention Wide Improvements -Expansion of

with additional supports and services.

Community Support Services

69.3 These 75 individuals will be identified by CSS in collaboration with lead agency case managers based Settlement Agreement Section X.A. System upon frequency of behaviors dangerous to self or others, frequency of interactions with the criminal Wide Improvements - Expansion of

justice system, sudden increases in usage of psychotropic medications, multiple hospitalizations or

Community Support Services

transfers within the system, serious reported incidents, repeated failed placements, or other challenges

identified in previous monitoring or interventions and cost of placement. The status of these

individuals will be reviewed at least semi-annually by CSS.

Reporting
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Evaluation Criteria

CPA Section

70.

CSS mobile wrap-around response teams are located across the state for proactive response to

maintain living arrangements.

Settlement Agreement Section X.A. System Wide hnprovements - Expansion of Community Support Services

70.1 Describe locations of the 9 teams that have been established in 23 locations throughout the state.

Settlement Agreement Section X.A. System Wide hnprovements- Expansion of Community Support Services

70.2 Provide CSS with administrative I managerial support for the 9 teams to insure sufficient data
collection and central data management

Settlement Agreement Section X.A. System Wide hnprovements -Expansion of Community Support Services

70.3 Document responses from CSS to individual's satisfaction surveys.

Settlement Agreement Section X.A. System Wide hnprovements - Expansion of Community Support Services

71.

CSS arranges a crisis intervention within three (3) hours from the time the parent or legal guardian

authorizes CSS' involvement.

Settlement Agreement Section X.A. System Wide hnprovements- Expansion of Community Support Services

71.1 Strategically establish nine teams in 23 locations throughout the State to respond within 3 hours of a Settlement Agreement Section X.A. System

request for service. CSS admissions contacts the person's case manager as soon as they learn of a

Wide hnprovements - Expansion of

potential or actual crisis situation.

Community Support Services

71.2 Streamline authorization procedure to facilitate CSS' response to reported crises as quickly as possible. Settlement Agreement Section X.A. System Wide hnprovements -Expansion of
Community Support Services

72.

CSS partners with Community Crisis Intervention Services to maximize support, complement

strengths, and avoid duplication.

Settlement Agreement Section X.A. System Wide hnprovements - Expansion of Community Support Services

Reporting SemiAnnual
I I
I
SemiAnnual
I
SemiAnnual
-

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Evaluation Criteria

CPA Section

72.1 There is ongoing collaboration with the Metro Crisis Coordination Program (MCCP), whose intent is Settlement Agreement Section X.A. System

to provide a crisis safety net range of services for persons with developmental disabilities or related

Wide Improvements -Expansion of

conditions; MCCP is a collaborative effort of seven counties in the Twin Cities metropolitan area.

Community Support Services

(metrocrisis.org)

72.2 Each county, and tribe as relevant, will have a system of locally available and affordable services to serve persons with developmental disabilities.

Settlement Agreement Section X.A. System Wide Improvements - Expansion of Community Support Services

72.3 Continue quarterly meetings with MCCP.

Settlement Agreement Section X.A. System Wide Improvements - Expansion of Community Support Services

73.

CSS provides augmentative training, mentoring and coaching.

Settlement Agreement Section X.A. System Wide Improvements- Expansion of Community Support Services

73.1 CSS Staff will offer and provide training, as requested or determined to be lacking, on coaching, mentoring and Augmentative training.

Settlement Agreement Section X.A. System Wide Improvements - Expansion of Community Support Services

73.2 CSS will update training manual as necessary.

Settlement Agreement Section X.A. System Wide Improvements - Expansion of Community Support Services

73.3 CSS will have sufficient administrative/ managerial staff to track/analyze training as well as mentoring and coaching services provided.

Settlement Agreement Section X.A. System Wide Improvements - Expansion of Community Support Services

74.

CSS provides staff at community based facilities and homes with state of the art training

encompassing person-centered thinking, multi- modal assessment, positive behavior supports,

consultation and facilitator skills, and creative thinking.

--

Settlement Agreement Section X.A. System Wide Improvements - Expansion of Community Support Services

Reporting
SemiAnnual
SemiAnnual

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Evaluation Criteria

CPA Section

74.1 CSS determines locations for teams and/or home-based staff. CSS creates position descriptions that identify the necessary knowledge, skills, and abilities.
- CSS hires or trains staff with necessary qualifications and skills to provide training.

Settlement Agreement Section X.A. System Wide Improvements- Expansion of Community Support Services

74.2 CSS insures that all vacant trainer positions are filled as efficiently as possible and with appropriately Settlement Agreement Section X.A. System

qualified staff.

Wide Improvements -Expansion of

Community Support Services

74.3 Training curricula are reviewed routinely to ins_ure consistency with best practices.

Settlement Agreement Section X.A. System Wide Improvements - Expansion of Community Support Services

75.

CSS' mentoring and coaching as methodologies are targeted to prepare for increased community

capacity to support individuals in their community.

Settlement Agreement Section X.A. System Wide Improvements - Expansion of Community Support Services

75.1 CSS will mentor and develop coaches in the community with a vision to support individuals in communities.

Settlement Agreement Section X.A. System Wide Improvements - Expansion of Community Support Services

75.2 Track issues including frequency of behaviors dangerous to self or others, frequency of interactions

Settlement Agreement Section X.A. System

with the criminal justice system, sudden increases in usage of psychotropic medications, multiple

Wide Improvements- Expansion of

hospitalizations or transfers within the system, serious reported incidents, repeated failed placements, Community Support Services

or other challenges identified in previous monitoring or interventions and cost of placement.

75.3 Provide additional administrative/ managerial support to CSS sufficient to enable timely and

Settlement Agreement Section X.A. System

complete data collection, entry and analysis

Wide Improvements- Expansion of

Community Support Services

76.

An additional fourteen (14) full time equivalent positions were added between February 2011 and

Settlement Agreement Section X.A. System

June 30, 2011, configured as follows: Two (2) Behavior Analyst 3 positions; One (1) Community Senior Wide Improvements - Expansion of

Specialist 3; (2) Behavior Analyst 1; Five (5) Social Worker Specialist positions; and Five (5) Behavior Community Support Services

Management Assistants.

Reporting
SemiAnnual
I I
SemiAnnual

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Evaluation Criteria

CPA Section

76.1 Review position descriptions, update as necessary.

Settlement Agreement Section X.A. System Wide Improvements- Expansion of Community Support Services

76.2 Work with DHS Human Resources on advertising positions.

Settlement Agreement Section X.A. System Wide Improvements- Expansion of Community Support Services

76.3 Fill any vacancies in functionally equivalent positions, with the required qualifications. As necessary Settlement Agreement Section X.A. System

to fulfill this Comprehensive Plan of Action, fill any position.

Wide Improvements- Expansion of

Community Support Services

77.

None of the identified positions are vacant.

Settlement Agreement Section X.A. System Wide Improvements - Expansion of Community Support Services

77.1 Fill as quickly as possible and with qualified applicants all vacancies in these and other functionally equivalent positions. Provide sufficient salary, bonus and other structures and incentives to ensure
that the positions are filled.

Settlement Agreement Section X.A. System Wide Improvements - Expansion of Community Support Services

78.

Staff conducting the Functional Behavioral Assessment or writing or reviewing Behavior Plans shall Settlement Agreement Section X.A. System

do so under the supervision of a Behavior Analyst who has the requisite educational background,

Wide Improvements- Expansion of

experience, and credentials recognized by national associations such as the Association of Professional Community Support Services

Behavior Analysts. Any supervisor will co-sign the plan and will be responsible for the plan and its

implementation.

79.

The State and the Department developed a proposed Olmstead Plan, and will implement the Plan in Settlement Agreement Section X.B. System

accordance with the Court's orders. The Plan will be comprehensive and will use measurable goals to Wide Improvements - Olmstead Plan

increase the number of people with disabilities receiving services that best meet their individual needs

and in the "Most Integrated Setting," and which is consistent and in accord with the U.S. Supreme

Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999). The Olmstead Plan is addressed in Part 3 of

this Comprehensive Plan of Action.

Reporting
SemiAnnual
SemiAnnual
According to the
Olmstead Plan
reporting process

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Evaluation Criteria

CPA Section

80.

Rule 40 modernization is addressed in Part 2 of this Comprehensive Plan of Action. DHS will not

seek a waiver of Rule 40 (or its successor) for a Facility.

Settlement Agreement Section X.C. System Wide Improvements -Rule 40

Reporting Annual

81.

The State takes best efforts to ensure that there are no transfers to or placements at the Minnesota

Security Hospital of persons committed solely as a person with a developmental disability.

Settlement Agreement Section X.D. System Wide Improvements - Minnesota Security Hospital

Annual

82.

There are no transfers or placements of persons committed solely as a person with a developmental

Settlement Agreement Section X.D. System

disability to the Minnesota Security Hospital (subject to the exceptions in the provision).

Wide Improvements -Minnesota Security

Hospital

82.1 DHS will communicate to all County Attorneys and state courts responsible for commitments, and to Settlement Agreement Section X.D. System

all county directors and case managers, that pursuant to the order of the federal court approving this Wide Improvements -Minnesota Security

Plan, no person committed with a sole diagnosis of developmental disability may be transferred or

Hospital

placed at the Minnesota Security Hospital. Such communication will be made from the Commissioner

within 30 days of the order approving this plan and, in addition, by DHS staff who become aware of

any such proposed commitment or transfer.

82.2 The Jensen Implementation Team will document any proposed transition to or placement at MSH of Settlement Agreement Section X.D. System

any person committed solely as a person with a developmental disability, including but not limited to Wide Improvements -Minnesota Security

any diversion efforts prior to transfer or placement and any subsequent placements.

Hospital

83.

There has been no change in commitment status of any person originally committed solely as a person Settlement Agreement Section X.D. System

with a developmental disability without proper notice to that person's parent and/or guardian and a Wide Improvements -Minnesota Security

full hearing before the appropriate adjudicative body.

Hospital

83.1 The Jensen Implementation Team will document any changes in commitment status of a person originally committed solely as a person with a developmental disability. The documentation will include any notifications and a description of any hearing, and copies of petitions and other papers
submitted in connection with notification and/or hearing.

Settlement Agreement Section X.D. System Wide Improvements- Minnesota Security Hospital

Exception Annual

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Evaluation Criteria

CPA Section

84.

All persons presently confined at Minnesota Security Hospital who were committed solely as a person Settlement Agreement Section X.D. System

with a developmental disability and who were not admitted with other forms of commitment or

Wide Improvements - Minnesota Security

predatory offender status set forth in paragraph 1, above, are transferred by the Department to the

Hospital

most integrated setting consistent with Olmstead v. L.C. , 527 U.S. 581 (1999).

84.1 Provide current census, and identifying information, of any people living at MSH committed solely as Settlement Agreement Section X.D. System

a person with a developmental disability.

Wide Improvements- Minnesota Security

Hospital

Reporting Annual

84.2 85. 85 .1
85.2 86.

Provide documentation of any transition/ placement from MSH since 12/5/2011 of any persons committed solely as a person with a developmental disability. Any such transfer/placement shall be to the most integrated setting consistent with Olmstead v. L.C., 527 U.S. 581 (1999).
All AMRTC residents committed solely as a person with a developmental disability and who do not have an acute psychiatric condition are transferred from AMRTC to the most integrated setting consistent with Olmstead v. L.C., 527 U.S. 581 (1999).
DHS will communicate to all County Attorneys and state courts responsible for commitments, and to all county directors and case managers that, pursuant to the order of the federal court approving this Plan, no person committed with a sole diagnosis of developmental disability may be transferred or placed at the Anoka Metro Regional Treatment Center. Such communication will be made from the Commissioner within 30 days of the order approving this plan and, in addition, by DHS staff who become aware of any such_1Jroposed commitment or transfer. The Jensen Implementation Team will document any proposed transition to or placement at Anoka Metro Regional Treatment Center of any person committed solely as a person with a developmental disability, including but not limited to any diversion efforts prior to transfer or placement and any subsequent placements. The term "mental retardation" has been replaced with "developmental disabilities" in any DHS policy, bulletin, website, brochure, or other publication. DHS will continue to communicate to local government agencies, counties, tribes, courts and providers that they should adhere to this standard.

Settlement Agreement Section X.D. System Wide Improvements- Minnesota Security Hospital
Settlement Agreement Section X.E. System Wide Improvements -Anoka Metro Regional Treatment Center

!
Exception I I

Settlement Agreement Section X.E. System Wide Improvements -Anoka Metro Regional Treatment Center

Settlement Agreement Section X.E. System Wide Improvements- Anoka Metro Regional Treatment Center
Settlement Agreement Section X.F. System Wide Improvements -Language

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Evaluation Criteria

CPA Section

86.1 All references to outdated terminology used to describe persons with Developmental Disabilities have Settlement Agreement Section X.F. System

been updated with clarification on the Departments use of people first language inserted in areas

Wide Improvements -Language

where historical documents are found. In addition to, or in lieu of, updating each webpage, DHS shall

maintain the previously established "disclaimer" language to explain the presence in historical

documents of outdated terminology.

87.

DHS drafted and submitted a bill for the Minnesota Legislature that will require the replacement of

Settlement Agreement Section X.F. System

terms such as "insane," "mentally incompetent," "mental deficiency," and other similar inappropriate Wide Improvements -Language

terms that appear in Minnesota statutes and rules.

87.1 On the removal of inappropriate terms that appear in Minnesota statutes and Rules, see 2013

Settlement Agreement Section X.F. System

legislation at Chapter 62 and Chapter 59, Article 3, section 21 signed by the Governor on May 16, 2013 . Wide Improvements -Language

DHS will not seek to repeal or replace this legislation.

88.

MSHS-Cambridge will be closed. There will be community treatment homes dispersed

Closure of MSHS-Cambridge and

geographically. Any need for additional community treatment homes beyond four will be

Replacement with Community Homes and

determined based on a specific assessment of need based on client needs with regard to such criteria Services

as those at risk for institutionalization or re-institutionalization, behavioral or other challenges,

multiple hospitalizations or other transfers within the system, serious reported injuries, repeated

failed placements, or other challenges identified in previous monitoring or interventions.

89.

Staff hired for new positions as well as to fill vacancies, will only be staff who have experience in

community based, crisis, behavioral and person-centered services and whose qualifications are

consistent with the Settlement Agreement and currently accepted professional standards. Staff

reassigned from MSHS-Cambridge will receive additional orientation training and supervision to

meet these qualifications within 6 months of reassignment.

90.

Provide integrated vocational options including, for example, customized employment.

Closure of MSHS-Cambridge and Replacement with Community Homes and Services
Closure of MSHS-Cambridge and Replacement with Community Homes and Services

91.

All requirements in this Comprehensive Plan of Action are fully met for each individual served in the Closure of MSHS-Cambridge and

area of Person-Centered Planning.

Replacement with Community Homes and

Services

Reporting
Annual Annual Annual

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Evaluation Criteria

CPA Section

92.

All requirements in this Comprehensive Plan of Action are fully met for each individual served in the Closure of MSHS-Cambridge and

area of Transition Planning.

Replacement with Community Homes and

Services

93.

DHS will provide augmentative service supports, consultation, mobile teams, and training to those

Closure of MSHS-Cambridge and

supporting the person. DHS will create stronger diversion supports through appropriate staffing and Replacement with Community Homes and

comprehensive data analysis.

Services

94.

All sites, programs and services established or utilized under this Comprehensive Plan of Action shall Closure of MSHS-Cambridge and

be licensed as required by state law.

Replacement with Community Homes and

Services

95.

Residents currently at MSHS-Cambridge transition to permanent community homes.

Closure of MSHS-Cambridge and Replacement with Community Homes and Services

96.

Training plan for staff strongly emphasizes providing tools and support services in a person's home as Closure of MSHS-Cambridge and

quickly as possible. Staff will also be trained in delivering community based programs and processes. Replacement with Community Homes and

Services

98.

DHS will maintain therapeutic follow-up of Class Members, and clients discharged from

Therapeutic Follow-Up of Class Members

METO/MSHS-Cambridge since May 1, 2011, by professional staff to provide a safety network, as

and Clients Discharged from METO/MSHS-

needed, to help prevent re-institutionalization and other transfers to more restrictive settings, and to Cambridge

maintain the most integrated setting for those individuals.

98.1 Successful Life Project (SLP) staff will initiate a statewide review process on or about October 1, 2014 Therapeutic Follow-Up of Class Members

to perform an initial assessment on all persons included in the therapeutic follow-up group no later and Clients Discharged from METO/MSHS-

than November 30,2014. This review will be a brief face-to-face meeting with each individual to

Cambridge

assess the general well-being of the person in his or her home and to determine if there are any critical

or immediate health or safety issues.

Reporting Annual
SemiAnnual Annual
Annual
SemiAnnual

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CPA Section

98.2 A tool to help reviewers screen individuals and document findings during the initial assessment was Therapeutic Follow-Up of Class Members

developed from existing instruments.

and Clients Discharged from METO/MSHS-

Cambridge

98.3 During the initial assessment, immediate follow-up will take place on any person for whom home health and safety concerns have been identified. Appropriate actions and referral will be made as
appropriate.

Therapeutic Follow-Up of Class Members and Clients Discharged from METO/MSHSCambridge

98.4 The results of this initial assessment process will assist the SLP in prioritizing needs of individuals for Therapeutic Follow-Up of Class Members

the next phase of the therapeutic follow-up, a more robust assessment using the Community

and Clients Discharged from METO/MSHS-

Compliance Review Tool.

Cambridge

98.5 Following the completion of the initial assessment and the prioritization of persons included in the

Therapeutic Follow-Up of Class Members

therapeutic follow-up group, MLB will begin the ongoing comprehensive compliance reviews using and Clients Discharged from METO/MSHS-

the Community Compliance Review Tool.

Cambridge

98.6 A bulletin will be distributed widely to announce the Successful Life Project in the fall of 2014.

Therapeutic Follow-Up of Class Members and Clients Discharged from METO/MSHSCambridge

98.7 Behavior analysts or other staff contact the guardian by telephone before the initial assessment (the

Therapeutic Follow-Up of Class Members

first face-to-face visit) to explain why they are coming and what to expect, and gets verbal consent to and Clients Discharged from METO/MSHS-

contact the person. The manager may assist with some contacts if there are barriers or issues that may Cambridge

arise.

98.8 If the person I guardian refuses to give consent for an initial assessment or any subsequent compliance Therapeutic Follow-Up of Class Members
review, individual letters will be sent to each person, guardian, provider, county case manager, family and Clients Discharged from METO/MSHS-

and other team members to explain the project and the process of following up with people, and

Cambridge

information on how to contact SLP for more information or to consent to the initial assessment or

compliance review.

Reporting
I
I
I I

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Evaluation Criteria

CPA Section

99.

The scope of the Rule 40 modernization shall include all individuals with developmental disabilities Modernization of Rule 40

served in programs, settings and services licensed by the Department, regardless of the setting in

which they live or the services which they receive. As stated in the Settlement Agreement, the

modernization of Rule 40 which will be adopted under this Comprehensive Plan of Action shall

reflect current best practices, including, but not limited to the use of positive and social behavioral

supports, and the development of placement plans consistent with the principle of the 'most

integrated setting' and 'person centered planning, and development of an 'Olmstead Plan"' consistent

with the U.S. Supreme Court's decision in Olmstead v. L.C., 527 U.S. 582 (1999).

100. Within the scope set forth above, the rule-making process initiated by the Department of Human

Modernization of Rule 40

Services pursuant to the Settlement Agreement, the Department shall by December 31,2014 propose a

new rule in accordance with this Comprehensive Plan of Action ("Proposed Rule"). This deadline

may be extended for good cause shown upon application to the Court not later than 20 days prior to

the deadline.

Should the Department of Human Services believe that it requires additional rule-making authority to satisfy the requirements of this Plan, in order to apply the rule to all providers covered by Rule 40 and the scope of this Plan, the Department will seek an amendments to statutes in the 2014 Minnesota Legislative session to ensure that the scope of the Rule 40 modernization stated above is fulfilled and will apply to all of the facilities and services to persons with developmental disabilities governed by Rule 40. Any proposed amendment(s) are subject to the notice and comment process under EC _ below.

If legislative approval for the requested authority is not obtained in the 2014 Minnesota Legislative session, the Court may use its authority to ensure that the Adopted Rule will apply consistent with the scope set forth in EC 99.

By August 31, 2015, the Department of Human Services shall adopt a new rule to modernize Rule 40

("Adopted Rule"). This deadline may be extended for good cause shown upon application to the

Court not later than 60 days prior to the deadline.

101. The Proposed Rule shall address the temporary use and tapering of carefully monitored individual

Modernization of Rule 40

medical restraints for self-injurious behavior while non-restraint positive behavior supports are

implemented under professional supervision.

Page 118 of 120

Reporting
I I
Annual
I I I
Annual

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Evaluation Criteria

CPA Section

In formulating the Proposed Rule, and any other methods or tools of implementation, the Department shall carefully consider the recommendations of Dr. Fredda Brown, whose consultation on the Rule 40 modernization the Department requested with regard to matters on which the Advisory Committee had not reached consensus. The Department shall document the results of this review. 102. The Proposed Rule shall be consistent with and incorporate, to the extent possible in rule, the Rule 40 Modernization of Rule 40 Advisory Committee's consensus recommendations stated in its Recommendations on Best Practices and Modernization of Rule 40 (Final Version- July 2013). During the rule-making process, the Department shall advocate that the final rule be fully consistent with the Rule 40 Advisory Committee's recommendations. The phrase "to the extent possible in rule" above is intended to recognize that some elements of the Committee's recommendations are not susceptible to the format of rules and, therefore, will be implemented by the Department through policies, bulletins, contract provisions, and by other means.
Not later than (30) days prior to public notice of the content of the Proposed Rule, the Department shall provide a draft of the rule to Plaintiffs' Class Counsel, the Court Monitor, the Ombudsman for Mental Health and Developmental Disabilities, and the Executive Director of the Governor's Council on Developmental Disabilities for review and comment and, if requested by any of these entities, for discussion in a conference prior to public notice of the content of the Proposed Rule. The Department will share with these entities the intended final content not later than five (5) days prior to the public notice. 103. Within thirty (30) days of the promulgation of the Adopted Rule, Plaintiffs' Class Counsel, the Court Modernization of Rule 40 Monitor, the Ombudsman for Mental Health and Developmental Disabilities, or the Executive Director of the Governor's Council on Developmental Disabilities may suggest to the Department of Human Services and/or to the Olmstead Implementation Office that there are elements in the Rule 40 Advisory Committee Recommendations on Best Practices and Modernization of Rule 40 (Final Version -July 2013) which have not been addressed, or have not adequately or properly been addressed in the Adopted Rule. In that event, those elements shall be considered within the process for modifications of the Olmstead Plan. The State shall address these suggestions through Olmstead Plan sub-cabinet and the Olmstead Implementation Office. Unresolved issues may be presented to the Court for resolution by any of the above, and will be resolved by the Court.

Reporting
SemiAnnual

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Evaluation Criteria

CPA Section

104. The Department of Human Services shall implement the Adopted Rule and take other steps to
implement the recommendations of the Rule 40 Advisory Committee.

Modernization of Rule 40

Reporting

Page 120 of 120

 
 CASE 0:09-cv-01775-DWF-BRT Document 595 Filed 09/29/16 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians, and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians, and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian, and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
v.
Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and the State of Minnesota,
Defendants.

Civil No. 09-1775 (DWF/BRT) ORDER

Shamus P. O’Meara, Esq., and Mark R. Azman, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

CASE 0:09-cv-01775-DWF-BRT Document 595 Filed 09/29/16 Page 2 of 3
Scott H. Ikeda, Aaron Winter, and Anthony R. Noss, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants.
The Court received the Jensen Settlement Agreement Comprehensive Plan of Action (CPA) – August 2016 Semi-Annual Compliance Report, Reporting Period: October 1, 2015 – June 30, 2016 (Doc. No. 589) from the Department of Human Services on August 31, 2016. Pursuant to the Court’s September 20, 2016 Order, David Ferleger remains appointed as the Court Monitor and External Reviewer in this case. (Doc. No. 593.) Pursuant to the Court’s March 18, 2016 Order, the Court Monitor’s duties directed under prior Orders, including periodic reporting requirements, were stayed. (Doc. No. 551 at 24.) The Court, however, stated that it “reserve[d] the right to direct the Court Monitor to investigate and verify other issues that may arise in the future,” and that it “may issue subsequent orders on the scope of the Court Monitor’s role.” (Id.) In its September 20, 2016 Order, the Court indicated that a separate Order would follow indicating the next steps the Court Monitor will take regarding the investigation and monitoring of Defendants’ compliance with the Jensen Settlement Agreement (“JSA”) and the Comprehensive Plan of Action (“CPA”). (Doc. No. 593.)
Based on the current status of this case, and the continued need for ongoing monitoring of Defendants’ compliance with the Jensen Settlement Agreement and CPA, IT IS HEREBY ORDERED as follows:
1. The Court’s stay on the Court Monitor’s duties is hereby lifted as follows. The Court Monitor shall review the Jensen Settlement Agreement Comprehensive Plan of
2

CASE 0:09-cv-01775-DWF-BRT Document 595 Filed 09/29/16 Page 3 of 3

Action (CPA) – August 2016 Semi-Annual Compliance Report, Reporting Period: October 1, 2015 – June 30, 2016 (Doc. No. 589), along with prior reports that addressed ECs not covered in the most recent report, review the JSA and CPA, and provide the Court with a report that assesses substantial compliance with regard to all components of the JSA and CPA based on his review of those documents. In addition, the Court Monitor shall identify in its report to the Court those areas where he needs more information and his recommendation for obtaining that information. The Court Monitor’s report should be provided to the Court by October 21, 2016.

Dated: September 29, 2016

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

3

 
 CASE 0:09-cv-01775-DWF-BRT Document 604 Filed 11/29/16 Page 1 of 132

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, Guardians and next friends of Bradley J. Jensen, et al.,

Plaintiffs,

v.

Civil No. 09-1775

Minnesota Department of Human Services, an agency of the State of Minnesota, et al.,

Defendants.

COMPLIANCE ASSESSMENT
Pursuant to Order of September 29, 2016 (Doc. No. 595)

David Ferleger Court Monitor
413 Johnson Street Jenkintown, PA 19046 Phone: (215) 887-0123 david@ferleger.com
November 22, 2016

CASE 0:09-cv-01775-DWF-BRT Document 604 Filed 11/29/16 Page 2 of 132

TABLE OF CONTENTS

Detailed Table of Contents: Evaluation Criteria

3

Executive Summary

5

A. Compliance Assessment Summary Table

10

B. Obtaining Information Summary Table

13

Compliance Assessment

16

I. Background

16

II. The Vitality of the Evaluation Criteria

17

III. Defendants’ Self-reporting is not Conclusive

18

IV. Weaknesses in DHS Reporting and Verification

19

V. Counties

20

VI. The Lenient Approach Toward Compliance Assessment 21

VII. Maintenance of Effort

21

VIII. Highlights

22

IX. Report Structure

24

X.. Compliance Assessment of Evaluation Criteria

24

XI. Conclusion

132

2

CASE 0:09-cv-01775-DWF-BRT Document 604 Filed 11/29/16 Page 3 of 132

Detailed Table of Contents Evaluation Criteria

EC 1. Facilities: Most

23

Integrated

EC 2. Facilities: Person-

24

Centered Planning

EC 3. Facilities: Admissions 27

Meet Criteria

EC 4. Facilities: Family

28

Comment

EC 5. Restraint: Prohibited 29

Restraint Discontinued

EC 6. Restraint: Prohibited 31

Restraint Not Used

EC 7. Restraint: Medical

32

Restraint Not Used

EC 8. Restraint: Emergency 34

Restraint Only

EC 9: Restraint Policy

35

Followed

EC 10. Restraint: No Prone, 36

Chemical, Seclusion

EC 11. Restraint: No

37

Seclusion

EC 12: Restraint: No Time 38

Out

EC 13: Restraint: No

39

Chemical Restraint

EC 14: Restraint: No PRN

40

Orders

EC 15-24: Restraint: Third 40

Party Consultation

EC 25. Abuse/Neglect

43

Investigations

EC 26. Abuse/Neglect Staff 44

Discipline

EC 27. Abuse/Neglect:

46

Prosecution Referral

EC 28 – 30. Restraint:

47

Reporting Form

EC 31-37. Restraint: Receipt 48

of Restraint Reports

EC 38. Incidents & Restraints: 50

Other Analyses

EC 39. Internal Reviewer:

51

Restraints

EC 40. Internal Reviewer: 53

Receipt of Restraint Reports

EC 41. Internal Reviewer:

54

Olmstead, Admissions,

Discharges

EC 42-44. External Reviewer 56

/ Court Monitor

EC 45 – 46. Plaintiffs’ & Third 56

Party Access

EC 47. Transition: Most

58

Integrated

EC 48. Transition:

60

Appropriate Discharge

EC 49. Transition: Family

62

Involvement

EC 50. Transition: Person- 63

Centered Planning

EC 51: Transition: Choice

66

EC 52. Transition: Integrated 67

Settings & Services

EC 53. Transition:

69

Segregation & Olmstead

EC 54. Facility Staff Training: 70

Topics

EC 55. Facility Staff Training: 72

Best Practices

EC 56. Facility Staff Training: 73

Intervention

EC 57. Facility Staff Training: 75

Restraints

EC 58. Facility Staff Training: 75

Person-Centered

EC 59-61. Visitation

77

EC 62. No Targeted

78

Marketing

EC 63. Public Statement of 79

Facility Purpose

EC 64. Facility: Consistent 80

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Mission

EC 65. Bill of Rights Posted 81

EC 66. Bill of Rights

82

Accessibility

EC 67. CSS: Community

83

Services Expansion

EC 68. CSS: Long Term

85

Monitoring

EC 69. Long Term Monitoring 87

Cases

EC 70. CSS: Mobile Teams

88

EC 71. CSS: Response Time 89

EC 72. CSS: Collaboration

91

EC 73. CSS: Training

92

EC 74. CSS: Training in

93

Community

EC 75. Mentoring & Data

94

EC 76. CSS: Additional Staff 95

EC 77. CSS: Staff Vacancies 96

EC 78. FBA Staff

98

EC 79. Olmstead Plan

99

EC 80. Rule 40

99

Modernization: Waiver

EC 81. MSH: Efforts Re

100

Placements

EC 82. MSH: Placements

101

EC 83. Commitment Status 102

Change

EC 84. MSH Commitments 103

EC 85. AMRTC Commitments 104

EC 86. Terminology

105

EC 87. Statutory Language 106

Changes

EC 88. Cambridge Closed

107

EC 89. MLB Staff Experience 108

EC 90. Integrated Vocational 109

Options

EC 91 Individuals’ Person- 110

Centered Planning

Requirements Met

EC 92. Individuals’ Transition 111

Planning Requirements Met

EC 93. Diversion Supports & 112

Data Analysis

EC 94. Licensure Required 114

Under CPA

EC 95. Cambridge Residents 115

Move to Community

EC 96. Staff Training

116

Emphasizes Community

EC 97. [There is no EC 97.]

EC 98. Successful Life Project 117

EC 99. Rule 40

119

Modernization: Scope

EC 100. Rule 40

120

Modernization: Adoption

EC 101. Rule 40

122

Modernization: Medical

Restraint

EC 102. Rule 40

123

Modernization: Proposed

Rule

EC 103. Rule 40

124

Modernization: Issue

Resolution

EC 104. Rule 40

125

Modernization: Rule

Implementation

4

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Executive Summary
Background. By Order of September 29, 2016 (Doc. No. 595), the Court requested the Court Monitor to provide the Court with a report which “assesses substantial compliance with regard to all components of the JSA (Jensen Settlement Agreement) and CPA (Comprehensive Plan of Action)” and also identifies of “those areas where he needs more information and his recommendation for obtaining that information.” This Compliance Assessment is based on DHS’ most recent docketed reports.1
Adopted by the Court amid continued compliance concerns, and without objection from any party (Doc. No. 284), The court-ordered Comprehensive Plan of Action (CPA) is the roadmap to compliance. It includes verbatim, modified, restated and, in some cases, expanded Settlement Agreement requirements, and additional relief. These are embodied in more than 100 Evaluation Criteria (EC). The Evaluation Criteria are enforceable and set forth “outcomes to be achieved.”
The Vitality of the Evaluation Criteria. Adopted by the Court amid continued compliance concerns, and without objection from any party, the Comprehensive Plan of Action is the roadmap to compliance. It includes verbatim, modified, restated and, in some cases, expanded Jensen Settlement Agreement requirements, and additional relief. These are embodied in more than 100 Evaluation Criteria (EC).
1 An exception to sourcing in these reports is the Court Monitor’s inclusion of Defendants’ failure to report the arrest of a staff person for sexual abuse of a Jensen class member. See EC 25-27. The seriousness of this omission prompts that inclusion.
5

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The Evaluation Criteria are enforceable and set forth “outcomes to be achieved.” ECs generally include “Actions” which are not themselves enforceable but compliance with an EC “will be deemed to have been achieved if the EC’s Actions are taken.” The CPA Actions provide vitality to the order.

Before the CPA, Defendants operated without any plans to implement the lean Settlement Agreement. The Court’s and Court Monitor’s urgings that an implementation plan be advanced were not heeded, even as Defendants were struggling toward compliance. Eventually, after the Court ordered the Court Monitor to finalize implementation planning, the CPA was developed through cooperation between experts engaged by the Court Monitor, and DHS program staff and officials; they worked through each Evaluation Criterion to articulate the implementation components including the Actions.2 The CPA was approved by Plaintiffs and the Consultants and then adopted by the Court.

Defendants’ Self-reporting is not Conclusive. This Compliance Assessment appraises Defendants’ representations – their self-reporting – on the status of their compliance.

Defendants may believe that the Court Monitor must accept as conclusive their selfreporting on compliance on each EC. When Defendants report compliance, there is compliance. The Court Monitor must concur that X occurred without further inquiry. Such an ipse dixit is mistaken.
In addition to the Court’s order which elicited

The Court’s order for this report anticipated subsequent information-gathering by the Court Monitor. (Doc. No. 595) (Court Monitor will “identify in its report to the Court those areas where he needs more information and his recommendation for obtaining that information.”). (Doc. No. 599) (same).
By definition, a Court Monitor, accountable to the Court, is not a mere conduit of Defendants’ self-reporting. Here, Defendants’ non-compliance and deficient reporting prompted the 2012 appointment of the Court Monitor. The Court’s mandate has consistently been for independent factual inquiry. E.g., (Doc. 211) (“The Monitor will independently investigate, verify, and report on compliance. . . .” “Monitor reports to be “based upon his investigation, without relying on the conclusion of the DHS. . . .”) (emphasis added).

2 See, e.g., Doc. No. 224 (requiring Implementation Plans); Doc. 237 (DHS plan is not acceptable; without objection, Court Monitor given authority to finalize the DHS plan in cooperation with DHS Deputy Commissioner); Doc. No. 266 (requiring Court Monitor to submit final report addressing the Implementation Plan); Doc. 284 (accepting Court Monitor report, and requiring that Defendants “shall comply with the CPA.”) (CPA is at Doc. 283).
6

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this Assessment (see box), the history of this litigation supports robust Court Monitor review. The Court has noted significant continued non-compliance by Defendants since mid-2012. Defendants’ credibility has been undermined. Defendants have misrepresented information to the Court and provided unverifiable compliance information. Concomitantly, Defendants have repeatedly acknowledged non-compliance.
The Court and Court Monitor have pressed Defendants to improve their selfassessments and their reporting. Defendants are making progress in those respects. One is hopeful that such improvements will increasingly reflect increasing compliance with the Court’s orders, confirmed by appropriate review. As Defendants informed the Court at the outset, they “expect to have their compliance monitored.” (Doc. 159 at 10).
Weaknesses in Defendants’ Self-reporting. The assessment makes plain several weaknesses in Defendants’ self-reporting and verification which impact on assessing substantial compliance:
Outcomes related to quality of life or required interactions among people are not verified, and typically not reported, in the DHS compliance reports. Interviews with individuals with first hand compliance information do not take place as a regular part of DHS self-evaluation. Document review is virtually the sole source of DHS compliance information. Verification of the adequacy of community settings and services takes place without visits to the community settings or services, or meeting the individuals. The reliability and completeness of the reported information is in doubt in some respects. For elements with a “best efforts” standard, information demonstrating best efforts is not provided.
Counties. Many requirements of the Court’s decrees necessitate collaboration with the counties and settings/services providers. The Comprehensive Plan of Action anticipates an active role for DHS with regard to effecting county/provider adherence “through all necessary means within” DHS’ authority.
The Lenient Approach Toward Compliance Assessment. The Court Monitor adopts an exceptionally lenient approach to the Court’s direction to assess compliance with the Court’s orders. Thus, in borderline cases or where DHS reports do not address the matter covered by the EC, compliance is marked, “Inconclusive.”
7

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Had this report relied simply on what is stated in DHS’ reports, many of the “inconclusive” findings would have been “non-compliance” findings.

Maintenance of Effort. Each EC is assessed as being in a Compliance, Noncompliance, or Inconclusive status. Because under the Court’s order, the source data are Defendants’ self-reporting and, some of it from 2015 or earlier, the status is not necessarily current. However, it is expected that Defendants continue to diligently move toward and to maintain compliance.

Where an EC is assessed as being in Compliance, it is vital that there be follow-up to ensure maintenance of effort, and that there is no backsliding. This is indicated for those ECs by the phrase, “Maintenance Follow-up.”

In litigation involving systemic relief, compliance cannot reasonably be assessed by a “snapshot” in time. One moment meeting a standard does not establish compliance for an ongoing obligation. Perhaps especially where there is a history of non-compliance, one would expect a defendant to have sustained a sufficient level of compliance to assure that there is momentum to its continuance.

Results. For the reader’s

After the independent Court Monitor’s fuller assessment, it would be appropriate for the parties,

convenience, each Evaluation Criterion is presented in full,

Consultants and Court to seek agreement on what remains to be done.

followed by the Court Monitor’s

comments on the data, and a compliance assessment: Compliance, Non-compliance,

Inconclusive. Summary charts are placed after this Executive Summary.

44 ECs are assessed as being in Compliance

5 ECs are assessed as being in Non-compliance

49 ECs are assessed as Inconclusive.3

Highlights. It is not possible to fairly summarize the results of this assessment. There are dozens of requirements. Some ECs are vital to individuals’ health and safety; others are functional or supportive. Highlights include:

A. Lack of community capacity for transitions to community supports and services, and insufficient DHS response, are negatively affecting compliance:

• MSHS-Cambridge has been closed and replaced by the Minnesota Life Bridge treatment homes.

• The need for more robust community structure causes long MLB stays. Clinical expertise in the community is a limiting factor.

3 The remaining ECs are not subject to assessment for a variety of reasons. 8

CASE 0:09-cv-01775-DWF-BRT Document 604 Filed 11/29/16 Page 9 of 132
• There is a lack of community capacity for transitioning persons out of MLB. • DHS has obligations under the Court’s orders to exert its authority regarding
community supports necessary for compliance. B. This report finds significant progress and compliance in a number of areas, for example: • MSHS-Cambridge is closed. • Prohibited forms of restraint are not used in the Cambridge facility successors. • Community training by DHS’ Community Support Services is extensive. • While there remain some elements of concern, the Positive Supports Rule is promulgated and it replaces the aversive orientation of the prior Rule 40. The new rule’s implementation remains to be gauged. • Restraint chairs and seclusion continue to be used at Minnesota Security Hospital and in other licensed settings. There is a question regarding permissibility of such use under the CPA. C. This report finds substantial non-compliance with a number of requirements based on the content of DHS’ self-reporting. D. It is time, some would say past time, to conclude the last piece of the Positive Supports Rule. If the suggestions are well-founded, individuals are needlessly being subjected to inappropriate aversive practices. The process to resolve pending issues should be concluded as soon as possible. Tables. Two tables follow: A. Compliance Assessment Summary B. Methods for Obtaining Additional Information Summary
9

CASE 0:09-cv-01775-DWF-BRT Document 604 Filed 11/29/16 Page 10 of 132

A. Compliance Assessment
Summary

Color Key4

Compliance

Noncompliance

Inconclusive

EC 1. Facilities: Most Integrated EC 2. Facilities: Person-Centered Planning EC 3. Facilities: Admissions Meet Criteria EC 4. Facilities: Family Comment EC 5. Restraint: Prohibited Restraint Discontinued EC 6. Restraint: Prohibited Restraint Not Used EC 7. Restraint: Medical Restraint Not Used EC 8. Restraint: Emergency Restraint Only EC 9: Restraint Policy Followed EC 10. Restraint: No

4 A color display or printout is required for these summaries. Readers who cannot interpret this output may contact the Court Monitor for an alternative.
10

Prone, Chemical, Seclusion EC 11. Restraint: No Seclusion EC 12: Restraint: No Time Out EC 13: Restraint: No Chemical Restraint EC 14: Restraint: No PRN Orders EC 15-24: Restraint: Third Party Consultation EC 25. Abuse/Neglect Investigations EC 26. Abuse/Neglect Staff Discipline EC 27. Abuse/Neglect: Prosecution Referral EC 28 – 30. Restraint: Reporting Form EC 31-37. Restraint: Receipt of Restraint Reports EC 38. Incidents & Restraints: Other Analyses EC 39. Internal Reviewer: Restraints EC 40. Internal Reviewer: Receipt of Restraint Reports EC 41. Internal Reviewer: Olmstead, Admissions, Discharges
EC 42-44. External Reviewer / Court Monitor

Not applicable

CASE 0:09-cv-01775-DWF-BRT Document 604 Filed 11/29/16 Page 11 of 132

EC 45 – 46. Plaintiffs’ & Third Party Access
EC 47. Transition: Most Integrated EC 48. Transition: Appropriate Discharge EC 49. Transition: Family Involvement EC 50. Transition: Person-Centered Planning EC 51: Transition: Choice
EC 52. Transition: Integrated Settings & Services
EC 53. Transition: Segregation & Olmstead EC 54. Facility Staff Training: Topics EC 55. Facility Staff Training: Best Practices EC 56. Facility Staff Training: Intervention EC 57. Facility Staff Training: Restraints EC 58. Facility Staff Training: PersonCentered EC 59-61. Visitation EC 62. No Targeted Marketing EC 63. Facility: Purpose EC 64. Facility: Consistent Mission

EC 65. Bill of Rights Posted EC 66. Bill of Rights Accessibility EC 67. CSS: Community Services Expansion EC 68. CSS: Long Term Monitoring EC 69. Long Term Monitoring Cases EC 70. CSS: Mobile Teams
EC 71. CSS: Response Time
EC 72. CSS: Collaboration EC 73. CSS: Training EC 74. CSS: Training in Community EC 75. Mentoring & Data EC 76. CSS: Additional Staff EC 77. CSS: Staff Vacancies EC 78. FBA Staff

EC 79. Olmstead Plan

Not covered here

EC 80. Rule 40 Modernization: Waiver EC 81. MSH: Efforts Re Placements EC 82. MSH: Placements EC 83. Commitment Status Change EC 84. MSH

11

CASE 0:09-cv-01775-DWF-BRT Document 604 Filed 11/29/16 Page 12 of 132

Commitments EC 85. AMRTC Commitments EC 86. Terminology EC 87. Statutory Language Changes EC 88. Cambridge Closed EC 89. MLB Staff Experience EC 90. Integrated Vocational Options EC 91 Individuals’ Person-Centered Planning Requirements Met EC 92. Individuals’ Transition Planning Requirements Met EC 93. Diversion Supports & Data Analysis EC 94. Licensure Required Under CPA EC 95. Cambridge

Residents Move to Community EC 96. Staff Training Emphasizes Community

EC 97. [There is no EC 97]

EC 98. Successful Life Project EC 99. Rule 40 Modernization: Scope EC 100. Rule 40 Modernization: Adoption EC 101. Rule 40 Modernization: Medical Restraint EC 102. Rule 40 Modernization: Proposed Rule EC 103. Rule 40 Modernization: Issue Resolution EC 104. Rule 40 Modernization: Rule Implementation

Pending resolution

12

CASE 0:09-cv-01775-DWF-BRT Document 604 Filed 11/29/16 Page 13 of 132

B. Obtaining Information Summary

Color Key5

Monitor Document
Review

Monitor Interviews

Monitor with
Consultant

EC 1. Facilities: Most Integrated EC 2. Facilities: Person-Centered Planning EC 3. Facilities: Admissions Meet Criteria EC 4. Facilities: Family Comment EC 5. Restraint: Prohibited Restraint Discontinued EC 6. Restraint: Prohibited Restraint Not Used EC 7. Restraint: Medical Restraint Not Used EC 8. Restraint: Emergency Restraint Only EC 9: Restraint Policy Followed EC 10. Restraint: No

Maintenance Follow-up
Maintenance Follow-up
Maintenance

5 A color display or printout is required for these summaries. Readers who cannot interpret this output may contact the Court Monitor for an alternative.

Prone, Chemical, Seclusion EC 11: Restraint: No Seclusion EC 12: Restraint: No Time Out EC 13: Restraint: No Chemical Restraint EC 14: Restraint: No PRN Orders EC 15-24: Restraint: Third Party Consultation EC 25. Abuse/Neglect Investigations EC 26. Abuse/Neglect Staff Discipline EC 27. Abuse/Neglect: Prosecution Referral EC 28 – 30. Restraint: Reporting Form EC 31-37. Restraint: Receipt of Restraint Reports EC 38. Incidents & Restraints: Other Analyses EC 39. Internal Reviewer: Restraints EC 40. Internal Reviewer: Receipt of Restraint Reports EC 41. Internal Reviewer: Olmstead, Admissions, Discharges EC 42-44. External Reviewer/Court Monitor EC 45 – 46. Plaintiffs’ & Third Party Access EC 47. Transition: Most Integrated

Follow-up Maintenance
Follow-up Maintenance
Follow-up Maintenance
Follow-up Maintenance
Follow-up Maintenance
Follow-up
Maintenance Follow-up
Maintenance Follow-up
Maintenance Follow-up
Maintenance Follow-up
Not Applicable
None

13

CASE 0:09-cv-01775-DWF-BRT Document 604 Filed 11/29/16 Page 14 of 132

EC 48. Transition: Appropriate Discharge EC 49. Transition: Family Involvement EC 50. Transition: Person-Centered Planning EC 51. Transition Choice EC 52. Transition: Integrated Settings & Services EC 53. Transition: Segregation & Olmstead EC 54. Facility Staff Training: Topics EC 55. Facility Staff Training: Best Practices EC 56. Facility Staff Training: Intervention EC 57. Facility Staff Training: Restraints EC 58. Facility Staff Training: PersonCentered EC 59-61. Visitation EC 62. No Targeted Marketing EC 63. Public Statement of Facility Purpose EC 64. Facility: Consistent Mission EC 65. Bill of Rights Posted EC 66. Bill of Rights Accessibility EC 67. CSS:

Maintenance
Follow-up.

Community Services Expansion EC 68. CSS: Long Term Monitoring EC 69. Long Term Monitoring Cases EC 70. CSS: Mobile Teams EC 71. CSS: Response Time EC 72. CSS: Collaboration
EC 73. CSS: Training
EC 74. CSS: Training
EC 75. CSS: Mentoring & Data EC 76. CSS: Additional Staff EC 77. CSS: Staff Vacancies EC 78. FBA Staff
EC 79. Olmstead Plan
EC 80. Rule 40 Modernization: Waiver EC 81. MSH: Efforts Re Placements EC 82. MSH: Placements EC 83. Commitment Status Change EC 84. MSH Commitments EC 85. AMRTC Commitments EC 86. Terminology EC 87. Statutory Language Changes

Maintenance Follow-up
Maintenance Follow-up
Maintenance Follow-up
Maintenance Follow-up Not covered in this review
Maintenance Follow-up
None None

14

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EC 88. Cambridge
None
Closed

EC 89. MLB Staff

Experience

EC 90. Integrated

Vocational Options

EC 91. Individuals’

Person-Centered

Planning

Requirements Met

EC 92. Individuals’

Transition Planning

Requirements Met

EC 93. Diversion

Supports & Data

Analysis

EC 94. Licensure

Required Under CPA

EC 95. Cambridge

Residents Move to

None

Community

EC 96. Staff Training

Emphasizes

Community

EC 97. [There is no EC 97]

EC 98. Successful Life

Project

EC 99. Rule 40

Modernization: Scope

EC 100. Rule 40

Modernization:

None

Adoption

EC 101. Rule 40

Modernization:

None

Medical Restraint

EC 102. Rule 40

Modernization:

None

Proposed Rule

EC 103. Rule 40

Modernization: Issue

Resolution

EC 104. Rule 40

Modernization: Rule

Implementation

15

CASE 0:09-cv-01775-DWF-BRT Document 604 Filed 11/29/16 Page 16 of 132
Compliance Assessment
I. Background By Order of September 29, 2016 (Doc. No. 595), the Court requested the
Court Monitor to provide the Court with a report which “assesses substantial compliance with regard to all components of the JSA [Jensen Settlement Agreement] and CPA [Comprehensive Plan of Action” and also identification of “those areas where he needs more information and his recommendation for obtaining that information” to enable an assessment of substantial compliance.
This Compliance Assessment is based on DHS’ most recent docketed reports.6 An exception to sourcing in these reports is the Court Monitor’s inclusion of Defendants’ failure to report the arrest of a staff person for sexual abuse of a Jensen class member. See EC 25-27. The seriousness of this omission prompts that inclusion.
6 This Compliance Assessment is based on DHS’ most recent docketed reports covering overlapping time periods:
! August 2016 Semi-Annual Report, Reporting Period: October 1, 2015 – June 30, 2016 (Doc. No. 589) (“August 2016 Report”), a nine-month period
! Jensen Settlement Agreement Comprehensive Plan of Action (CPA) - Ninth Compliance Update Report, Reporting Period: May 1-September 30, 2015 (Doc. No. 531) (“September 2015 Gap Report”), a five-month period
! Overlapping the September 15, 2015 Gap Report, the 2015 Compliance Annual Report: Reporting Period: January 1 – December 31, 2015 (Doc. No. 553-1) (“2015 Compliance Annual Report”), a twelve-month period, covering 28 ECs.
The Assessment also considers DHS’ Report to Court in Response to March 18, 2016 Order (Doc. No. 551) (filed May 31, 2016 (“May 2016 Report”). The Court Monitor also met with Defendants on November 10 and with Plaintiffs’ counsel on November 17 and received their feedback on a prior version of this assessment.
16

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II. The Vitality of the Evaluation Criteria Adopted by the Court amid continued compliance concerns, and without
objection from any party (Doc. No. 284), the Comprehensive Plan of Action is the roadmap to compliance. It includes verbatim, modified, restated and, in some cases, expanded Jensen Settlement Agreement requirements, and additional relief.7 These are embodied in more than 100 Evaluation Criteria (EC). The Evaluation Criteria are enforceable and set forth “outcomes to be achieved.”
Before the CPA, Defendants operated without any plans to implement the lean Settlement Agreement. The Court’s and Court Monitor’s urgings that an implementation plan be advanced were not heeded, even as Defendants were struggling toward compliance. The Court then ordered Defendants to submit implementation plans but the submissions were inadequate as they acknowledged. Without objection, the Court ordered the Court Monitor to finalize implementation planning. The Court Monitor chose to engage independent professionals in developmental disabilities to work directly with Defendants’ program and administrative professionals; for days, they worked through each Evaluation Criterion to articulate the implementation components including the Actions. The CPA was approved by Plaintiffs and the Consultants and then adopted by the Court.8
7 Court Monitor, Report to the Court: Comprehensive Plan of Action (Doc. No. 254). 8 See, e.g., Doc. No. 224 (requiring Implementation Plans); Doc. 237 (DHS plan is not acceptable; without objection, Court Monitor given authority to finalize the DHS
17

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The cooperative professional effort between Defendants and the Court Monitor led to the agreement, then ordered by the Court, that – as the CPA puts it – “compliance with an EC will be deemed to have been achieved if the EC's Actions are taken.” CPA at 1 (quoted above). Doing it another way is acceptable through the established modification process. Doing it another way does not give Defendants the benefit of the “deeming” standard.

III. Defendants’ Self-reporting is not Conclusive

This Compliance Assessment appraises Defendants’ representations – their self-reporting – on the status of their compliance.

Defendants may believe that the Court Monitor must accept as conclusive their self-reporting on compliance on each EC. When Defendants report compliance, there is compliance. The Court Monitor must concur that X occurred without further inquiry. Such an ipse dixit is mistaken.

In addition to the Court’s order which elicited this Assessment (see box), the history of this litigation supports robust Court Monitor review. The Court has noted significant continued non-compliance by Defendants since mid-2012. Their credibility has been undermined on more than one occasion. Defendants have misrepresented information to the Court and provided information on

The Court’s order for this report anticipated subsequent information-gathering by the Court Monitor. (Doc. No. 595) (Court Monitor will “identify in its report to the Court those areas where he needs more information and his recommendation for obtaining that information.”). (Doc. No. 599) (same).
By definition, a Court Monitor, accountable to the Court, is not a mere conduit of Defendants’ self-reporting. Here, Defendants’ non-compliance and deficient reporting prompted the 2012 appointment of the Court Monitor. The Court’s mandate has consistently been for independent factual inquiry. E.g., (Doc. 211) (“The Monitor will independently investigate, verify, and report on compliance. . . .” “Monitor reports to be “based upon his investigation, without relying on the conclusion of the DHS. . . .”) (emphasis added).

plan in cooperation with DHS Deputy Commissioner); Doc. No. 266 (requiring Court Monitor to submit final report addressing the Implementation Plan); Doc. 284 (accepting Court Monitor report, and requiring that Defendants “shall comply with the CPA.”) (CPA is at Doc. 283).
18

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compliance, which could not be verified.9 Concomitantly, Defendants have repeatedly acknowledged non-compliance, failed to contest non-compliance findings, and been found in non-compliance by the Court.10
The Court and Court Monitor have pressed Defendants to improve their selfassessments and their reporting. Defendants are making progress in those respects. One is hopeful that such improvements will increasingly reflect increasing compliance with the Court’s orders. Independent Court Monitor review, to be sure, is perhaps frustrating to Defendants. However, as Defendants informed the Court at the outset, they “expect to have their compliance monitored.” (Doc. 159 at 10).
IV. Weaknesses in DHS Reporting and Verification
This assessment review makes plain several weaknesses in Defendants’ selfreporting and verification:
Outcomes related to quality of life or required interactions among people are not verified, and typically not reported, in the DHS compliance reports. For some Evaluation Criteria, the outcomes are such things as production of a plan or other document, or a staff with a particular credential. For
9 E.g., Defendants “concealed and misled” the Court. (Doc. 259) (“The Court further finds that the DHS consciously concealed and misled the Plaintiffs and the Court with regard to the lack of licensure, or if not consciously concealed and misled, was indifferent to both the violation and the expectation of candor with all parties, including the Court; conceding the violation once reported by the Court Monitor does not mitigate this in any way.”). See reports to the Court by the Court Monitor, Report to the Court: Client __: AWOL v. Transitioned to the Community (Doc. No. 251) (DHS compliance director reported that class member ___ had “transitioned” to community services; in fact, he had absconded and DHS did not know his whereabouts); Report to the Court: Verification of Representations by the State (Doc. No. 414) (information provided by DHS cannot be verified; DHS’ own documentation demonstrates non-compliance); Report to the Court. Verification Items: DHS 4th and 5th Compliance Update Report (Doc. No. 374) (investigations and person-centered plans). 10 Doc. 223 at 12 (Court noted and detailed non-compliance not contested by Defendants; found that “heightened supervision” of Defendants is required.); Doc. No. 340 (Court refrained from issuing contempt and other punitive sanctions for the most recently established non-compliance; DHS’ recognized “that it must do more to ensure that the counties comply with the court’s mandates.”); Doc. No. 368 (order based on Monitor reports on use of aversives on individuals).
19

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others, the outcomes are such things as interactions among individuals, families and staff, or quality of life, characteristics of environments, or establishment of systems or processes. Interviews with individuals with first hand compliance information do not take place as a regular part of DHS self-evaluation. Interviews with individuals, families, or providers are not a source of any of the information in the DHS reports. Interviews with DHS direct support staff, or DHS employees not involved in the report writing/reviews are not a source of any of the information in the DHS reports (except in a handful of instances the content of which is not reported). Document review is virtually the sole source of DHS compliance information. This is the case even when, as with Transition Planning for example, the nature and extent of inter-personal interaction is fundamental to compliance assessment. Verification of the adequacy of community settings and services takes place without visits to the community settings or services, or meeting the individuals. The reliability and completeness of the reported information is in doubt in some respects. Some data is incomplete. Some survey results are provided only in part. Sometimes, just a portion of the CPA provisions are addressed. For elements with a “best efforts” standard, information demonstrating best efforts is not provided.
V. Counties
Many requirements of the Court’s decrees necessitate collaboration with the counties and settings/services providers. This is the case as to both facilities (e.g., Transition Planning) and expansion of community services. Meaningful determination of compliance must involve those intersections of county/provider with the state.
The Comprehensive Plan of Action anticipates an active role for DHS with regard to effecting county/provider adherence “through all necessary means within” DHS’ authority:
Consistent with its obligations under the Settlement Agreement, applicable law, and the federal court orders in this case, the Department of Human Services shall utilize best efforts to require counties and providers to comply with the Comprehensive Plan of Action through all necessary means within the Department of Human
20

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Services' authority, including but not limited to incentives, rule, regulation, contract, rate-setting, and withholding of funds. (CPA at 2).

Heightened exercise of the state’s role vis-à-vis the counties would significantly increase the level of compliance, a conclusion bolstered by Defendants’ own conclusions.

VI. The Lenient Approach Toward Compliance Assessment

The Court Monitor adopts an exceptionally lenient approach to the Court’s direction to assess compliance with the Court’s orders. Thus, in borderline cases or where DHS reports do not address the matter covered by the EC, compliance is marked, “Inconclusive.”

Had this report relied simply on what is stated in DHS’ reports, many of the “inconclusive” findings would have been “non-compliance” findings.11

For most Evaluation Criteria, the DHS reports do not address some or many of the requirements of the particular criterion. DHS JOQACO verification addresses only an incomplete universe. In these instances, there is no information with which to make an assessment that there is compliance. The DHS reports’ flaws identified in Section II above compound the challenge.

The leniency of “inconclusive” is justified at this preliminary stage because of the possibility that a comprehensive independent compliance review might find compliance in some of those instances. Non-compliance is assessed where noncompliance is evident.

VII. Maintenance of Effort
Each EC is assessed as being in one of three statuses: Compliance, Non-compliance, Inconclusive. Because under the Court’s order, the source data are Defendants’ self-reporting and, some of it from 2015 or earlier, the status is not necessarily current. The data limitation also means that

In litigation involving systemic relief, compliance cannot reasonably be assessed by a “snapshot” in time. One moment meeting a standard does not establish compliance for an ongoing obligation. Perhaps especially where there is a history of non-compliance, one would expect a defendant to have sustained a sufficient level of compliance to assure that there is momentum to its continuance.
After the independent Court Monitor fuller assessment, it would be appropriate for the parties, Consultants and Court to seek agreement on what remains to be done.

11 In one instance, the Court Monitor’s leniency is exercised in another way. What would otherwise be “non-compliance” with regard to EC 15-24 (Third Party Consultation) is rated “compliance.”
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it is beyond the scope of this report to advise whether compliance has been maintained to a sufficient degree or length of time to assure the Court that the EC no longer requires active judicial oversight. However, it is expected that Defendants continue to diligently move toward and to maintain compliance.
Where an EC is assessed as being in Compliance, the Court Monitor generally indicates that there is not currently a need for additional information, but that there should be follow-up to ensure maintenance of effort, and that there is no backsliding. This is indicated for those ECs by the phrase, “Maintenance Follow-up.”12
The data limitation also means that it is beyond the scope of this report to advise whether compliance has been maintained to a sufficient degree or length of time to assure the Court that the EC no longer requires active judicial oversight.
VIII. Highlights.
It is not possible, and it would not be fair to the Court or the parties, to seek to fully summarize the results of this assessment. There are dozens of requirements. Some ECs are vital to individuals’ health and safety; others are functional or supportive. Here, we provide several highlights that bear on systemic themes.
A. Lack of community capacity for transitions to community supports and services, and insufficient DHS response, are negatively affecting compliance:
• MSHS-Cambridge has been closed and replaced by the Minnesota Life Bridge treatment homes which are intended to provide short-term intensive support. The Court Monitor shares DHS’ concerns with the unnecessarily long tenures of individuals in MLB’s facility settings and the lack of community capacity to ensure compliance with the CPA.
• Inadequate community resources cause long MLB stays; the needs arise at the front end and on discharge. MLB sometimes receives incomplete information on admission. Clinical expertise in the community is a limiting factor in effectively supporting MLB residents in integrated settings, consistent with the requirements of the Comprehensive Plan of Action.
• In addition, there is a lack of community capacity for transitioning persons out of MLB. Compounding that challenge, it is difficult for some treatment teams in the community to accept the expectation of MLB regarding the importance of seeking community options or the importance of positive behavior supports/person-centered approaches.
12 For some items, there is no need for maintenance follow-up (e.g., the fact that MHS-Cambridge is closed).
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• DHS has obligations under the Court’s orders to exert its authority regarding community supports necessary for compliance. B. This report finds significant progress and compliance in a number of
areas, for example:
• MSHS-Cambridge is closed. It is a sizeable achievement in this litigation that a facility designated to serve individuals who are a risk to public safety has been replaced by geographically dispersed, short-term small treatment facilities.
• Prohibited forms of restraint are not used in the Cambridge facility successors.
• Community training and mentoring efforts by DHS’ Community Support Services are extensive, both within DHS and in outreach to the community. The training is varied and there is attention to its evolution.
• While there remain some elements of concern, the Positive Supports Rule is promulgated and it replaces the aversive orientation of the prior Rule 40. The new rule’s implementation remains to be gauged.
• Restraint chairs and seclusion continue to be used at Minnesota Security Hospital and in other licensed settings. There is a question regarding permissibility of such use under the CPA C. This report finds non-compliance with a number of requirements
based on the content of DHS’ self-reporting. D. It is time, some would say past time, to conclude the last piece of the
Positive Supports Rule. Under EC 103, suggestions were made to Defendants that the adopted rule is inadequate in a number of important ways. If the suggestions are well-founded, individuals are needlessly being subjected to inappropriate aversive practices. The mandated process to resolve these issues should be concluded as soon as possible.
Summary totals of assessment results are:
44 ECs are assessed as being in Compliance 5 ECs are assessed as being in Non-compliance 49 ECs are assessed as Inconclusive.13
13 The remaining ECs are not subject to assessment for a variety of reasons.
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IX. Report Structure

For the reader’s convenience, each Evaluation Criterion is presented in full, followed by the Court Monitor’s comments on the data, and a compliance assessment: Compliance, Non-compliance, Inconclusive. Areas in which the Court Monitor needs additional information to make an assessment are discussed next, with a concluding table stating the applicable recommendation of mechanisms for obtaining that information:

Monitor Document Review

Monitor Interviews

Monitor with Consultant

Three tables follow the Executive Summary above: A. Compliance Assessment Summary B. Methods for Obtaining Additional Information Summary The Report utilizes several conventions stated in the footnote.14

X. Compliance Assessment of Evaluation Criteria

14 a. References to report page numbers are in the form “(p. x)” for the August 2016 Report. Page references to other documents are cited with the document title.
b. For Evaluation Criteria reported in both the DHS’ 2015 Gap Report and the August 2016 Report, this Compliance Assessment utilizes the more recent 2016 information. Where the 2016 Report does not include an Evaluation Criterion, the 2015 Report information is used.
c. On February 10, 2016 the Jensen Implementation Office (JIO) was moved to DHS’ Compliance Office and renamed the Jensen/Olmstead Quality Assurance and Compliance Office (JOQACO). For simplicity and narrative consistency, the JIO is referred to as JOQACO.
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EC 1. Facilities: Individualized Service in Most Integrated Settings

1. The Facilities will comply with Olmstead v. L.C. The Facilities are and will remain licensed to serve people with developmental disabilities. The Facility will eliminate unnecessary segregation of individuals with developmental disabilities. People will be served in the most integrated setting to which they do not object. Each individual's program will include multiple opportunities on an ongoing basis to engage with: (1) citizens in the community, (2) regular community settings, (3) participating in valued activities (4) as members of the community. These community activities will be highly individualized, drawn from the person-centered planning processes, and developed alongside the individual.
1.1 Each individual's planning processes will specifically address integration within the following life areas: (1) home; (2) work; (3) transportation; (4) lifelong learning and education; (5) healthcare and healthy living; and (6) community and civic engagement. 1.2 Cambridge and successor facilities apply strong efforts to individualize and personalize the interior setting of the home. This includes exerting maximal feasible efforts to assist individuals to personalize and individualize their bedrooms and common areas, to make each common area aesthetically pleasing, and to actively support individuals to bring, care for, acquire, and display personal possessions, photographs and important personal items. Consistent with personcentered plans, this may include the program purchasing such items that will build towards transition to a new place to live.

Comments Regarding DHS Information

• DHS provides narrative conclusory statements, and does not include results of interviews with individuals, families/guardians, case managers, providers or others.
• The statement does not discuss analysis of documents or state that any review or analysis of documents occurred. (For example, it is stated personcentered plans exist, but no information is provided on the degree or extent of plan implementation).
• No verification by the Jensen Implementation Office occurred. DHS Data: September 2015 Gap Report 2015 Compliance Annual Report
Compliance Assessment

EC 1. Facilities: Most

Inconclusive

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Integrated

Areas Needing Additional Information

The planning and implementation processes under this EC and its actions contemplate involvement of the individuals and their families/guardians staff, case managers and providers. The plans contemplate implementation and interaction among professional and support staff, and with the individual as well. Additional information is also needed regarding the individualization, appropriateness and completeness of the plans, especially considering the discovery of missing parts of some unstated number of plans. Ascertaining compliance requires interviews of relevant parties, document review and input of consultants.

Obtaining Additional Information

EC 1. Facilities: Most Integrated

Monitor with Consultant

EC 2. Facilities: Person-Centered Planning & Positive Behavioral Supports
2. Facilities utilize person-centered planning principles and positive behavioral supports consistent with applicable best practices including, but not limited to the Association of Positive Behavior Supports, Standards of Practice for Positive Behavior Supports.
2.1 Each individual will be involved to the greatest extent possible in the development of a personcentered profile centering on learning from the person and those who know the person best about their history, preferences, life experiences, interests, talents, and capacities among other areas within 30 days of admission. This profile will be updated and revised as more is learned over time on at least a monthly basis. A revised person-centered profile format will be developed from the current person-centered description to include the above areas and to include a method to note when revisions and additions are made, by whom, and in what venue (e.g., a person-centered meeting of the support team, interview, an individual update by a staff member, a phone call). 2.2 From the understanding in the person-centered profile, a person-centered plan will be completed which includes the development of a shared vision of the future to work towards within 30 days of admission, as well as agreements and shared objectives and commitments to work towards. 2.3 The person-centered plan will directly inform the development of the individualized program plan (or Coordinated Service Support Plan). Such plans will build on the strengths and interests of
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the individual, and moving towards increasing relationships, roles, and community integration in these areas of life. 2.4 The person-centered plan will directly inform the development of a Positive Behavior Support Plan. Life direction, talents, and interests will be capitalized on in any planned intervention. Each behavior support plan will include teaching strategies to increase competencies and build on the strengths of the person. 2.5 Each behavior support plan will be unique to each individual. The use of token economies, and contingent reinforcement will be used sparingly, not for punishment, and only when weighed again the potential risks to the person's image and competencies in terms of exercising personal autonomy. 2.6 Each behavior support plan will include a summary of the person’s history and life experiences, the difficulties and problems the person is experiencing, past strategies and results, and a comprehensive functional behavioral analysis, from which strategies are derived. 2.7 Each Functional Behavioral Analysis will include a. Review of records for psychological, health and medical factors which may influence behaviors b. Assessment of the person’s likes and dislikes (events/activities/objects/people) c. Interviews with individual, caregivers and team members for their hypotheses regarding the causes of the behavior; d. Systematic observation of the occurrence of the identified behavior for an accurate definition/description of the frequency, duration and intensity; e. Review of the history of the behavior and previous interventions, if available; f. Systematic observation and analysis of the events that immediately precede each instance of the identified behavior; g. Systematic observation and analysis of the consequences following the identified behavior. Analysis of functions that these behaviors serve for the person; i. Analysis of the settings in which the behavior occurs most/least frequently. Factors to consider include the physical setting, the social setting, the activities occurring and available, degree of participation and interest, the nature of teaching, schedule, routines, the interactions between the individual and others, degree of choice and control, the amount and quality of social interaction, etc. j. Synthesis and formulation of all the above information to formulate a hypothesis regarding the underlying causes and/or function of the targeted behavior. or shall be consistent with the standards of the Association of Positive Behavior Supports, Standards of Practice for Positive Behavior Supports (http://apbs.org).
2.8 Each positive behavior support plan will include: 1. Understanding how and what the individual is communicating; 2. Understanding the impact of others’ presence, voice, tone, words, actions and gestures; 3. Supporting the individual in communicating choices and wishes; 4. Supporting workers to change their behavior when it has a detrimental impact; 5. Temporarily avoiding situations which are too difficult or too uncomfortable for the person; 6. Enabling the individual to exercise as much control and decision making as possible over day-to-day routines; 7. Assisting the individual to increase control over life activities and environment; 8. Teaching the person coping, communication and emotional self-regulation skills; 9. Anticipating situations that will be challenging, and assisting the individual to cope or calm; 10. Offering an abundance of positive activities, physical exercise, and relaxation, and 11. As best as possible, modifying the environment to remove stressors (such as noise, light, etc.).
2.9 The format used for Positive Behavioral Support Plans will be revised to include each of the above areas, and will be used consistently.
Comments Regarding DHS Information
• Includes references to CPA Actions.
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• Describes Person-Centered Plan development and Positive Behavior Support Plan development for residents of the Cambridge-successor facilities.
• Includes one individual example of one person’s planning. • Does not provide data for all the individuals in the facilities. • No outcome information is provided. • JOQACO verification included interviews with staff at 2 of the 4 successor
facilities, and did not interview staff at the other two.
• JOQACO does not report any observation of individuals and plan implementation.
• JOQACO verification did not include interviews with individuals or families/guardians, providers or case managers.
• JOQACO found that there were “missing parts of residents Transition Summaries and Plans.” Parts were missing for “certain residents.” Neither the number of residents’ plans, nor the missing parts of records is described. (p. 16). DHS Data: August 2016 Report

Compliance Assessment

EC 2. Facilities: PersonCentered Planning

Inconclusive

Except for information on one person (which may or may not have been based on interviews or observation),

Areas Needing Additional Information

The planning and implementation processes under this EC and its actions contemplate involvement of the individuals and their families/guardians staff, case managers and providers. The plans contemplate implementation and interaction among professional and support staff, and with the individual as well. Additional information is also needed regarding the individualization, appropriateness and completeness of the plans, especially considering the discovery of missing parts of some unstated number of plans. Ascertaining compliance requires interviews of relevant parties, document review and input of consultants.

Obtaining Additional Information

EC 2. Facilities: Person-

Monitor with Consultant
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Centered Planning

EC 3.

Facilities: Admissions Meet Criteria

3. Facilities serve only "Minnesotans who have developmental disabilities and exhibit severe behaviors which present a risk to public safety.”
3.1 All referrals for admission will be reviewed by the admissions coordinator to assure that they are persons with a Developmental Disability and meet the criteria of exhibiting severe behaviors and present a risk to public safety taking into account court ordered admissions.

Comments Regarding DHS Information

• During the reporting period, there were 24 referrals to Minnesota Life Bridge. 3 individuals were admitted (one of these was a re-admission).
• DHS provides Table 1 with a short phrase identifying the outcome of each referral (p. 18).
• No information is provided on why the referral agency (or individual) believed the person met the admission criteria, or why MLB believed the person did not meet criteria, or whether MLB denied admission for another reason.
• The report describes which officials review which papers, and the items in the related database.
• JOQACO’s verification consists of maintaining and tracking referral, admission, and transition data.
• There is no verification by JOQACO of whether admissions meet the EC standard, or whether those denied admission would meet the EC standard. DHS Data: August 2016 Report

Compliance Assessment

EC 3. Facilities: Admissions Meet Criteria

Inconclusive

Areas Needing Additional Information

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Additional information is needed regarding why the referral agency (or individual) believed the person met the admission criteria, or why MLB believed the person did not meet criteria, or whether MLB denied admission for another reason.

Obtaining Additional Information

EC 3. Facilities: Admissions Meet Criteria

Monitor Document Review

Monitor Interviews

EC 4.

Facilities: Family Comment

4. Facilities notify legal representatives of residents and/or family to the extent permitted by law, at least annually, of their opportunity to comment in writing, by e-mail, and in person, on the operation of the Facility.
4.1 Initiate annual written survey process to all legal representatives of residents and/or family to the extent permitted by law whose individual of interest was served within the past year which solicits input on the operation of the Facility. Each survey will be in the relevant language, and will include notification that comments on Facility operations may be offered in person or by mail or telephone by contacting Facility director or designee. 4.2 Aggregate data will be collected from survey responses received from each survey process. Facility staff will develop an action plan to outline changes which will be made as a result of survey data, and implement those changes.
Comments Regarding DHS Information
• In September, 2016, the final month covered by the five month gap report, DHS “sent out satisfaction surveys for the three people who transitioned” from Minnesota Life Bridge to the community.
• Four residents of East Central had completed satisfaction surveys in May 2015.
• DHS reports that in Calendar Year 2015 MLB sent surveys to 12 people (12 were returned), and annual or transition surveys to case managers and legal representatives; incomplete information is reported on the number of surveys returned apart from the 12. The 4 residents of East Central completed satisfaction surveys in May 2015.
• DHS reports that “Minnesota Life Bridge and East Central do not report any issues or concerns from the 2015 survey process.” DHS does not report

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whether case managers or legal representatives reported any issues or concerns.
• DHS states that it planned to respond to surveys (“will contact,” “will continue to collect and review,” “will track,” “will verify” completion of actions to address concerns, “will continue to distribute”).
• DHS is discussing starting an initial 3 month post-admission satisfaction survey.
• No results, aggregate data, or action plan of surveys were provided. DHS Data: September 2015 Gap Report 2015 Compliance Annual Report

Compliance Assessment

EC 4. Facilities: Family Comment

Inconclusive

Areas Needing Additional Information

Survey documents (forms and responses) and DHS analysis and description of any action taken in response to survey feedback.

Obtaining Additional Information

EC 4. Facilities: Family Comment

Monitor Document Review

Monitor Interviews

EC 5.

Restraint: Prohibited Restraint Discontinued

5. The State/DHS immediately and permanently discontinues all the prohibited restraints and techniques.
5.1 DHS will issue a memorandum to all Facility staff confirming the Department's commitment to provide services and supports which are consistent with best practices including: 1) Providing individuals with a safe and therapeutic environment which includes positive behavioral supports and training on behavioral alternatives; 2) Recognizing that restraints are not a therapeutic intervention; 3) An immediate prohibition on prone restraint, mechanical restraints, seclusion and time out; 4) The Facilities' goal towards immediate reduction and eventual elimination of restraint
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use whenever possible; and 5) Restraint use is permitted only when the client's conduct poses an imminent risk of physical harm to self or others and less restrictive strategies would not achieve safety; client refusal to receive/participate in treatment shall not constitute and emergency. 5.2. The Facility shall remove "mechanical restraint," "prone restraint," "prone hold" and all other prohibited techniques from all current Facility forms and protocols. 5.3 Facility policy(s) on Emergency Interventions shall minimally include: 1) The type of emergency interventions permitted and prohibited; 2) The protocol for administering emergency interventions; 3) The authorization and supervision needed for each emergency intervention; 4) The medical monitoring required during and after each restraint; 5) The review requirements of each emergency intervention (administrative, internal and external); 6) The data collection and aggregate data review of restrictive intervention usage. The Facility policy shall separate and clearly delineate "therapeutic interventions" from "emergency restraint/interventions." Current Facility policy/procedures shall be revised to comply with these requirements. 5.4 All Facility staff members have received competency-based training on the policy/procedures identified immediately above. 5.5 Competency-based training on the policy/procedures identified above has been incorporated into Facility orientation and annual training curricula.

Comments Regarding DHS Information

• During the reporting period, no prohibited restraints or techniques were used at the Cambridge successors. The policies had been adopted.
• Notes: ! The Compliance finding does not apply to MSH or AMRTC, or to any restraint use under the Positive Support Rule (Rule 40 modernization); the Court Monitor expresses no opinion here on the applicable rules, standards or practices with regard to those matters. ! Actions 5.4 and 5.5 (staff training) are not covered by the Compliance finding; these are covered in EC 54 et seq. DHS Data: September 2015 Gap Report

Compliance Assessment

EC 5. Restraint: Prohibited Restraint Discontinued

Compliance

• Notes: ! The findings do not apply to MSH or AMRTC, or to any restraint use under
the Positive Support Rule (Rule 40 modernization); the Court Monitor
expresses no opinion here on the applicable rules, standards or practices with regard to those matters.

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! Actions 5.4 and 5.5 (staff training) are not covered by the Compliance finding; these are covered in EC 54 et seq.

Areas Needing Additional Information

None.

Obtaining Additional Information

EC 5. Restraint: Prohibited Restraint Discontinued

Maintenance Follow-up

Court Monitor access and receipt of restraint, PRN use, 911 calls, incident reports and related information, to continue.

EC 6.

Restraint: Prohibited Restraint Not Used

6. The State/DHS has not used any of the prohibited restraints and techniques.
6.1 Facility Staff will specify on Restraint Form which emergency technique was employed, verifying that a prohibited technique was not used. 6.2 The supervisor will review each restraint with staff by the end of his/her shift, verifying that: 1) The threat of imminent harm warranted the emergency intervention, 2) The intervention was an approved technique and no suspicion exists that a prohibited technique was used; and 3) When applicable, what immediate corrective measures/administrative actions need to be taken. 6.3 Any/all use of prohibited techniques, e.g., prone restraints, mechanical restraints, seclusion, timeout, etc., will be investigated as potential allegations of abuse. Facility Staff are required to immediately report any suspected use of prohibited restraints/techniques to their supervisor.) 6.4 Reporting and review forms/procedures are revised, and utilized, to incorporate the above 6.1, 6.2 and 6.3.

Comments Regarding DHS Information

• DHS reports that during the reporting period there was no use of prohibited restraints or techniques at the Cambridge successors.
• DHS reports on two incidents involving manual (not prohibited) restraint at Cambridge successors. The reports include facts from written reports by staff only.

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• MLB concluded there was “policy breakdown” with regard to notification of the Medical Officer. In one incident, MLB staff contacted the Medical Officer “but not within” the required 30 minute window. In the other, staff forgot to make the call.
• The JOQACO reviewed the forms. • There were no interviews with the individuals or with staff to verify the
reports. • Notably, the description of the two incidents does not state that the
individuals’ program, behavioral or other plans were consulted, were known by staff, or whether there were any requirements or guidelines for use of restraint with the particular clients, or with regard to the circumstances which prompted the use of the manual restraints. • Note: The findings do not apply to MSH or AMRTC, or to any restraint use under the Positive Support Rule (Rule 40 modernization); the Court Monitor expresses no opinion here on the applicable rules, standards or practices with regard to those matters.
DHS Data: September 2015 Gap Report

Compliance Assessment

EC 6. Restraint: Prohibited Restraint Not Used

Inconclusive

Areas Needing Additional Information

Document review and interview with person who was restrained and any witnesses; review of individuals’ program, behavioral and related plans.

Obtaining Additional Information

EC 6. Restraint: Prohibited Restraint Not Used

Monitor Document Review

Monitor Interviews

Access and receipt of restraint, PRN use, 911 calls, incident reports and related information, to continue.

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EC 7.

Restraint: Medical Restraint Not Used

7. Medical restraint, and psychotropic/ neuroleptic medication have not been administered to residents for punishment, in lieu of habilitation, training, behavior support plans, for staff convenience or as behavior modification.
7.1 Facility policy shall specifically forbid the use of restrictive interventions, including medical restraints and/or psychotropic/neuroleptic medication for: the purposes of punishment; in lieu of habilitation, training, or behavior support plans; for staff convenience; or as a behavior modification. 7.2 Facility policy will specify medication management protocols consistent with best practices in the support and treatment of individuals with cognitive and/or mental health disabilities.

Comments Regarding DHS Information

• DHS reports that there was no use of medical restraint prohibited by EC 7. • Note: The findings do not apply to MSH or AMRTC, or to any restraint use
under the Positive Support Rule (Rule 40 modernization); the Court Monitor expresses no opinion here on the applicable rules, standards or practices with regard to those matters.
DHS Data: Gap Report

Compliance Assessment

EC 7. Restraint: Medical Restraint Not Used

Compliance

Areas Needing Additional Information

None.

Obtaining Additional Information

EC 7. Restraint: Medical Restraint Not Used

Maintenance Follow-up

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Court Monitor access and receipt of restraint, PRN use, 911 calls, incident reports and related information, to continue.

EC 8.

Restraint: Emergency Restraint Only

8. Restraints are used only in an emergency.
8.1 Facility Staff will clearly document, on the restraint form, the circumstances leading up to the restraint and what imminent risk of harm precipitated the application of the restraint. This shall include what antecedent behaviors were present, what de-escalation and intervention strategies were employed and their outcomes. 8.2 In the event a restraint was used in the absence of imminent risk of harm, staff will be immediately retrained on Facility policies addressing the "Therapeutic Interventions and Emergency Use of Personal Safety Techniques" policy with such retraining being entered into their training file.

Comments Regarding DHS Information

• See discussion under EC 6. • DHS’s report for EC 8 and 9 generally repeats that for EC 6.
DHS Data: September 2015 Gap Report

Compliance Assessment

EC 8. Restraint: Emergency Restraint Only

Inconclusive

Areas Needing Additional Information

Document review and interview with person who was restrained and any witnesses; review of individuals’ program, behavioral and related plans.

Obtaining Additional Information

EC 8. Restraint: Emergency Restraint Only

Monitor Document Review

Monitor Interviews

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Access and receipt of restraint, PRN use, 911 calls, incident reports and related information, to continue.

EC 9.

Restraint Policy Followed

9. The Policy (Settlement Agreement Att. A, as it may be revised after court approval, dissemination and staff training) was followed in each instance of manual restraint
9.1 As part of its data management processes, the Facility will collect, review and analyze information related to staff's adherence to restraint policy.
Comments Regarding DHS Information

• EC 9 requires ongoing attention to following policy including data analysis of staff adherence as part of data management processes.
• See discussion under EC 6. • DHS’s report for EC 8 and 9 generally repeats that for EC 6. • DHS reports no information on the data analysis requirement. • DHS states that JOQACO “will verify that staff training on prohibited
techniques continues to take place at new employee orientation and at annual staff training sessions” (p. 17, Gap Report) but reports no data in this regard. [See compliance assessments below in staff training section]
DHS Data: September 2015 Gap Report

Compliance Assessment

EC 9: Restraint Policy Followed

Inconclusive

Areas Needing Additional Information
Document review and interview with persons responsible for the data analysis, and for responses to any policy revisions.

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Obtaining Additional Information

EC 9: Restraint Policy Followed

Monitor Document Review

Monitor Interviews

Access and receipt of restraint, PRN use, 911 calls, incident reports and related information, to continue.

EC 10. Restraint: No Prone, Chemical, Seclusion

10. There were no instances of prone restraint, chemical restraint, seclusion or time out. [Seclusion: evaluated under Sec. V.C. Chemical restraint: evaluated under Sec. V.D.]
10.1 Facility policy shall clearly identify prone restraint, chemical restraint, seclusion and timeout as "prohibited."
Comments Regarding DHS Information

• DHS reports that there was no use of prone restraint, chemical restraint, seclusion or time out during this reporting period.
• Note: The findings do not apply to MSH or AMRTC, or to any restraint use under the Positive Support Rule (Rule 40 modernization); the Court Monitor expresses no opinion here on the applicable rules, standards or practices with regard to those matters.
DHS Data: September 2015 Gap Report

Compliance Assessment

EC 10. Restraint: No Prone, Chemical, Seclusion

Compliance

Areas Needing Additional Information

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None.

Obtaining Additional Information

EC 10. Restraint: No Prone, Chemical, Seclusion

Maintenance Follow-up

Court Monitor access and receipt of restraint, PRN use, 911 calls, incident reports and related information, to continue.

EC 11. Restraint: No Seclusion

11. There were zero instances of the use of Seclusion. Facility policy shall specify that the use of seclusion is prohibited.

Comments Regarding DHS Information

See EC 10.

DHS Data: September 2015 Gap Report

Compliance Assessment

EC 11. Restraint: No Seclusion

Compliance

Areas Needing Additional Information

None.

Obtaining Additional Information

EC 11: Restraint: No

Maintenance Follow-up

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Seclusion
Court Monitor access and receipt of restraint, PRN use, 911 calls, incident reports and related information, to continue.

EC 12. Restraint: No Time Out

12. There were zero instances of the use of Room Time Out from Positive Reinforcement. Facility policy shall specify that the use of time out from positive reinforcement is prohibited.

Comments Regarding DHS Information

See EC 10.

DHS Data: September 2015 Gap Report

Compliance Assessment

EC 12: Restraint: No Time Out

Compliance

Areas Needing Additional Information

None.

Obtaining Additional Information

EC 12: Restraint: No Time Out

Maintenance Follow-up

Court Monitor access and receipt of restraint, PRN use, 911 calls, incident reports and related information, to continue.

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EC 13. Restraint: No Chemical Restraint

13. There were zero instances of drug / medication use to manage resident behavior OR to restrain freedom of movement. Facility policy specifies the Facility shall not use chemical restraint. A chemical restraint is the administration of a drug or medication when it is used as a restriction to manage the resident's behavior or restrict the resident's freedom of movement and is not a standard treatment or dosage for the resident's condition.

Comments Regarding DHS Information

See EC 10.

DHS Data: September 2015 Gap Report

Compliance Assessment

EC 13: Restraint: No Chemical Restraint

Compliance

Areas Needing Additional Information

None.

Obtaining Additional Information

EC 13: Restraint: No Chemical Restraint

Maintenance Follow-up

Court Monitor access and receipt of restraint, PRN use, 911 calls, incident reports and related information, to continue.

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EC 14. Restraint: No PRN Orders

14. There were zero instances of PRN orders (standing orders) of drug/ medication used to manage behavior or restrict freedom of movement. Facility policy specifies that PRN/standing order medications are prohibited from being used to manage resident behavior or restrict one's freedom of movement.

Comments Regarding DHS Information

See EC 10.

DHS Data: September 2015 Gap Report

Compliance Assessment

EC 14: Restraint: No PRN Orders

Compliance

Areas Needing Additional Information

None.

Obtaining Additional Information

EC 14: Restraint: No PRN Orders

Maintenance Follow-up

Court Monitor access and receipt of restraint, PRN use, 911 calls, incident reports and related information, to continue.

EC 15 - 24. Restraint: Third Party Consultation
15. There is a protocol to contact a qualified Third Party Expert. 42

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15.1 Facility policy stipulates that a Third Party Expert will be consulted within 30 minutes of the emergency's onset.
16. There is a list of at least 5 Experts pre-approved by Plaintiffs & Defendants. In the absence of this list, the DHS Medical or designee shall be contacted. 17. DHS has paid the Experts for the consultations.
18. A listed Expert has been contacted in each instance of emergency use of restraint.
19. Each consultation occurred no later than 30 minutes after presentation of the emergency.
20. Each use of restraint was an “emergency.”
21. The consultation with the Expert was to obtain professional assistance to abate the emergency condition, including the use of positive behavioral supports techniques, safety techniques, and other best practices. If the Expert was not available, see V.F. below.
21.1 On the restraint form, Facility staff will identify the Third Party or other expert and will document all recommendations given by the consultant, techniques, and the efficacy and outcomes of such interventions. When reviewing the restraint form 24 hrs post-restraint, Designated Coordinator will verify that Facility staff contacted the medical officer within 30 minutes of the emergency's onset.
22. The responsible Facility supervisor contacted the DHS medical officer on call not later than 30 minutes after the emergency restraint use began.
23.1 On the Restraint Form, the Facility supervisor will document both the date/time that the emergency restraint began and the date/time s/he contacted the designated medical officer.
23. The medical officer assessed the situation, suggested strategies for deescalating the situation, and approved of, or discontinued the use of restraint.
23.1 The Facility supervisor will document on the restraint form and in the resident's record, the medical officer's de-escalation strategies, the outcome of those strategies used, and whether approval was needed and/or given for continued restraint use.
24. The consultation with the medical officer was documented in the resident's medical record.
24.1 When conducting his/her post-restraint review, the Designated Coordinator will verify that the supervisor contacted the medical officer within 30 minutes of the emergency restraint and documented the details in the resident's medical record.
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Comments Regarding DHS Information

• ECs 15-24 involve Third Party Expert consultation by Facility staff regarding each incident of the use of restraints. In the absence of establishment of the anticipated review by one of a panel of outside experts, EC 16 provided that the DHS Medical Officer or designee perform the consultation.
• The consultation was to obtain assistance to abate the emergency condition through use of positive supports, safety techniques and other best practices. EC 21.
• To be useful, the contact with the consultant was to begin no later than 30 minutes after the emergency restraint use began.
• The EC 16 panel list was never established. • DHS states that “in August 2014, in discussions with [unidentified] interested
persons, people preferred at that time that” MLB continue using the Medical Officer review process “rather than attempting to contract with an outside Third Party.” (p. 20, 2015 Gap Report). • From EC 6 discussion above (based on 2015 Gap Report): MLB concluded there was “policy breakdown” with regard to notification of the Medical Officer. In one incident, MLB staff contacted the Medical Officer “but not within” the required 30 minute window. In the other, staff forgot to make the call. This breakdown results in a non-compliance finding here; in 100% of the two instances, the 30-minute window was missed. However, in the interest of fairness – and in a departure from the structure of this report, the Court Monitor observes that generally subsequent individual incident reports on restraints do show that the Medical Officer is timely contacted. Therefore, the Court Monitor does not assess non-compliance.
DHS Data: September 2015 Gap Report See final bullet re: other reports

Compliance Assessment

EC 15-24: Restraint: Third Party Consultation

Compliance

Areas Needing Additional Information

None.

Obtaining Additional Information

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EC 15-24: Restraint: Third Party Consultation

Maintenance Follow-up

EC 25. Abuse/Neglect Investigations
25. All allegations were fully investigated and conclusions were reached. Individuals conducting investigations will not have a direct or indirect line of supervision over the alleged perpetrators; the DHS Office of the Inspector General satisfies this requirement. Individuals conducting investigations, interviews and/or writing investigative reports will receive competencybased training in best practices for conducting abuse/neglect investigations involving individuals with cognitive and/or mental health disabilities and interviewing.
25.1 DHS employees having responsibility for investigative duties will receive 8 hours of continuing education or in-service training each year specific to investigative practices. 25.2 Each investigation will undergo a quality review by a peer or supervisor who has, at minimum been trained in the requirements set forth in this Implementation Plan. 25.3 The Department will maintain an electronic data management system, to track all information relevant to abuse/neglect investigations. This data management system will minimally include: 1) Incident date; 2) Report date; 3) Incident location; 4) Provider; 5) Allegation type; 6) Alleged victim; 7) Alleged perpetrator(s); 8) Injuries sustained; 9) Assigned investigator; 10) Date investigative report is completed; 11) Substantiation status; 12) Systemic issues identified and the corrective measures taken to resolve such issue; 13) Whether or not the case was referred to the county attorney; and 14) Whether or not charges were filed; and 15) Outcome of charges. 25.4 Allegations substantiated by DHS Licensing (Office of Inspector General) will be documented in the client's Facility record.
Comments Regarding DHS Information
• • Abuse/neglect of class members is quite serious and the CPA requires “All
allegations were fully investigated and conclusions were reached.” • The primary information on this EC reported by DHS is that during the
reporting period for the September 2015 Gap Report there were 14 reports on Jensen class members, with 9 of the reports including a substantiated finding. The victims were at both state and private providers:
Between May and September 2015, the Office of Inspector General issued 14 reports on investigations involving Jensen Class
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Members. These reports contained 17 allegations. Nine of the 14

reports included a substantiated finding.

Two of the nine reports with a substantiated finding involved

two different vulnerable adults at different Minnesota State Operated

Services facilities. Seven of the nine reports with a substantiated

finding involved private providers; two of the seven reports involved

the same vulnerable adult (J3) with the same private provider. The

Office of Inspector General determined that the substantiated

maltreatment for which the staff person was responsible in both

reports involving J3 did not meet statutory criteria to be determined

as recurring or serious. No additional reports were received involving

this vulnerable adult or provider during this reporting period.

(September 2015 Gap Report at 23).

• For the reports by the DHS OIG, DHS reports nothing about the circumstances, any commonalities or differences, or how the abuse/neglect was addressed by DHS or the

Unreported Staff Arrest for Sexual Abuse A staff person was arrested between October and November, 2015 for sexual abuse of a Jensen class member. See Court Monitor Memorandum to Peg Booth, November 3, 2015 (“As you know, a female staff person has been criminally charged in

providers. (On one case involving MLB employees, see EC 26). • DHS reports no information on whether DHS OIG investigators, interviewers

connection with sexual abuse of ____. On October 6, 2015, he told staff that this female staff person had shared alcohol with him and that he’d had sex with her three times since October 3, 2015.”)
This arrest and abuse are not reported in Defendants’ compliance reports to the Court (the August 2016 and the 2015 Annual Reports include

and writers received the

this time period).

required training with regard

to the 14 cases.15

• DHS reports no information on whether there is an electronic data

management system and, if so, whether it meets the requirements.

• DHS reports no information on whether substantiated allegations are

documented in the individuals’ Facility records.

DHS Data: September 2015 Gap Report

(The arrest is not reported in the 2015 Annual or the August 2016 reports)

Compliance Assessment

15 DHS contracts with Greg Wiley for employee investigations. It is unclear how his role differs from that of the DHS Office of Inspector General which is mandated to investigate abuse/neglect. Mr. Wiley’s training experience has been presented to the Court Monitor in the past.
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EC 25. Abuse/Neglect Investigations

Non-compliance

Areas Needing Additional Information

Review of investigations, interviews with relevant Office of Inspector General management and staff. Review training materials and practices. Confirm manner, timing and content of documentation of substantiation in individuals’ records.

Obtaining Additional Information

EC 25. Abuse/Neglect Investigations

Monitor Document Review

Monitor Interviews

EC 26. Abuse/Neglect Staff Discipline
26. All staff members found to have committed abuse or neglect were disciplined pursuant to DHS policies and collective bargaining agreement, if applicable.
26.1 All substantiated allegations of staff abuse or neglect are referred to Human Resources for human resources action in accordance with the definitions set forth under the Vulnerable Adults Act. All perpetrators will be disciplined in accordance with DHS policies and procedures and Union Contracts.
Comments Regarding DHS Information
• DHS’ primary information is that during the reporting period there were 14 reports on Jensen class members, with 9 of the reports including a substantiated finding. The victims were at both state and private providers. (EC 25 at p. 23, 2015 Gap Report, referenced above under EC 25).
• Except for 1 of the cases, DHS fails to report on any discipline or other action in these staff abuse/neglect cases. ! “Two of the nine reports with a substantiated finding involved two different vulnerable adults at different Minnesota State Operated Services facilities.” (id.). ! Under EC 26, DHS reports that the “Office of Inspector General substantiated one allegation of neglect involving three Minnesota Life
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Bridge employees in May 2014.” (p. 24, 2015 Gap Report). Evidently, this is one of the two (of the nine reports) at a state facility. ! There is no statement in the DHS report that the perpetrators in both cases were disciplined; only one case (3 employees) is referenced as involving discipline.
• See text block under EC 25. DHS Data: September 2015 Gap Report
(The arrest is not reported in the 2015 Annual or the August 2016 reports)

Compliance Assessment

EC 26. Abuse/Neglect Staff Discipline

Non-compliance

Areas Needing Additional Information

Review of investigations, interviews with relevant Office of Inspector General and Human Resources management and staff. Review disciplinary and related records.

Obtaining Additional Information

EC 26. Abuse/Neglect Staff Discipline

Monitor Document Review

Monitor Interviews

EC 27. Abuse/Neglect: Prosecution Referral
27. Where appropriate, the State referred matters of suspected abuse or neglect to the county attorney for criminal prosecution.
27.1 All allegations of abuse or neglect related to care of residents of a Facility will be submitted to the common entry point to determine whether or not the case will be referred to the county attorney for criminal prosecution.
Comments Regarding DHS Information
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• There were 9 substantiated abuse/neglect allegations against Jensen class members during the reporting period. EC 25-26.
• The DHS report on EC 27 states, “There were no known referrals of suspected abuse or neglect sent to the county attorney during this reporting period.” (emphasis added).
• It is insufficient to state that there were “no known referrals.” DHS has the capacity to inquire and determine if there were referrals.
• There is no information that any of the 9 cases were referred for prosecution, or when or how or whether they were considered for referral.
• See text block under EC 25 for a case, omitted by Defendants, which was prosecuted and known to DHS. DHS Data: September 2015 Gap Report (The arrest is not reported in the 2015 Annual or the August 2016 reports)

Compliance Assessment

EC 27. Abuse/Neglect: Prosecution Referral

Inconclusive

Areas Needing Additional Information

Review of investigations, interviews with relevant Office of Inspector General and Human Resources management and staff. Review disciplinary and related records.

Obtaining Additional Information

EC 27. Abuse/Neglect: Prosecution Referral

Monitor Document Review

Monitor Interviews

EC 28 - 30.

Restraint: Reporting Form

28. Form 31032 (or its successor) was fully completed whenever use was made of manual restraint.
28.1 When reviewing the restraint form 24 hrs post-restraint, the Designated Coordinator will
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verify that Form 31032 (or any successor) was completed timely, accurately and in its entirety.
29. For each use, Form 31032 (or its successor) was timely completed by the end of the shift.
29.1 When reviewing the restraint form 24 hrs post-restraint, the Designated Coordinator will verify that Form 31032 (or any successor) was completed timely, accurately and in its entirety.
30. Each Form 31032 (or its successor) indicates that no prohibited restraint was used.
30.1 Staff will indicate what type of restraint was used on Form 31032 (or any successor). 30.2 When reviewing the restraint form 24 hrs or one business day post-restraint, the Designated Coordinator will verify that no prohibited techniques were used.
Comments Regarding DHS Information

• EC 28-30 require use of a particular form for restraint use, 911 calls and PRN medication, and follow up on the form’s completion.
• The DHS report states that there were no manual restraints during this reporting period.
• The Court Monitor, who receives and reviews all such forms, knows that such forms continue to be in use and completed since the 2015 Gap Report’s reference.16 In an exercise of leniency, the Court Monitor finds this requirement in compliance. DHS Data: September 2015 Gap Report May 2016 Report
Compliance Assessment

EC 28 – 30.

Restraint: Reporting

Compliance

`

Form

Areas Needing Additional Information

None. Should DHS contemplate changes to the reporting form or its procedures, the parties, consultants and Court Monitor should be notified

Obtaining Additional Information

EC 28 – 30.

Maintenance Follow-up

16 This observation is about the use of the form, and not a comment on its content. 50

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Restraint: Reporting Form
EC 31 - 37 Restraint: Receipt of Restraint Reports
31. Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the Office of Health Facility Complaints.
31.1 Form 31032 (or its successor) is sent to the Office of Health Facility Complaints within 24 hours or no later than one business day.
32. Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the Ombudsman for MH & DD
32.1 Form 31032 (or its successor) is sent to the Ombudsman for MH & DD within 24 hours or no later than one business day.
33. Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the DHS Licensing
33.1 Form 31032 (or its successor) is sent to DHS Licensing within 24 hours or no later than one business day.
34. Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the Court Monitor and to the DHS Internal Reviewer
34.1 Form 31032 (or its successor) is sent to the Court Monitor and to the DHS Internal Reviewer within 24 hours or no later than one business day.
35. Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the legal representative and/or family to the extent permitted by law.
35.1 Form 31032 (or its successor) is sent to the legal representative, and/or family to the extent permitted by law, within 24 hours or no later than one business day.
36. Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the Case manager.
36.1 Form 31032 (or its successor) is sent to sent to the case manager within 24 hours or no later than one business day.
37. Within 24 hours, and no later than one business day, Form 31032 (or its successor) in each instance was submitted to the Plaintiff's Counsel.
37.1 Form 31032 (or its successor) is sent to the Plaintiff's Counsel within 24 hours or no later than one business day.
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Comments Regarding DHS Information

• The Court Monitor, who receives and reviews all such forms, knows that such forms continue to be in use and completed since the 2015 Gap Report’s reference.17 In an exercise of leniency, the Court Monitor finds this requirement in compliance. DHS Data: August 2016 Report

Compliance Assessment

EC 31-37. Restraint: Receipt of Restraint Reports

Compliance

Areas Needing Additional Information

None.

Obtaining Additional Information

EC 31-37. Restraint: Receipt of Restraint Reports

Maintenance Follow-up

EC 38. Incidents & Restraints: Other Analyses
38. Other reports, investigations, analyses and follow up were made on incidents and restraint use.
38.1 The Designated Coordinator will review each client incident, injury and/or restraint use within 1 business day of its occurrence to: 1) Evaluate the immediate health and safety of the individual(s) involved; 2) Ensure no prohibited techniques were used; 3) Ensure all documentation and notifications were properly made; and 4) Determine what, if any, immediate measures must be taken.
17 This observation is about the use of the form, and not a comment on its content.
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38.2 The Designated Coordinator will convene an Interdisciplinary Team (IDT) meeting within 5 business days of a restraint to: 1) Review the circumstances surrounding the behavioral emergency; 2) Determine what factors likely contributed to the behavioral emergency, i.e. life event, environmental, relational discord, etc.; 3) Identify what therapeutic interventions, including individualized strategies, were employed and why they were unsuccessful in de-escalating the situation; 4) Review and assess the efficacy of the individual's PBS plan, making changes as needed; 5) Determine if trends/patterns can be identified with this individual or this living area; and 6) Take all corrective measures deemed necessary, indicating what actions are being taken, the party responsible for taking such actions, the date by which these actions will be taken, and how the efficacy of such actions will be monitored. Documentation of the IDT meeting, including attendees, review and actions taken will be thoroughly documented in the individual's record. 38.3 When changes to an individual's program plan and/or PBS plan are recommended during the IDT's restraint review, the Designated Coordinator will ensure that such changes are made within 2 business days of the IDT meeting related to the restraint use. 38.4 A facility-based Positive Behavioral Supports Review (PBSR), comprised of both behavioral analysts and non-clinical staff, will be established and maintained for the purposes of: 1) Reviewing all positive behavioral support plans to ensure they adhere to current best practice; 2) Approving and monitoring the efficacy of all positive behavioral support plans; 3) Reviewing the use of any restrictive and/or emergency interventions, i.e. restraints, 911 calls, etc. The PBSR Committee will meet on a monthly basis. 38.5 The PBSR committee will maintain meeting minutes detailing attendance (person/title); chairperson; individual and aggregate data review; issues and trends identified (individual and systemic); corrective measures to be taken; dates by which such corrective measures are to be completed; responsible parties, and follow-up of the previous month's action plans. 38.6 The Department will identify and address any trends or patterns from investigations.
Comments Regarding DHS Information
• The DHS Gap report refers to these two activities of analysis of analysis ((p. 28, September 2015 Gap Report); however, the 2015 Compliance Annual Report does not report anything regarding these analyses: ! JOQACO “is working with the Disability Services Division on review and analysis of Behavior Intervention Report Form (BIRF) data.” ! The JOQACO “data analyst will continue to identify and address trends and/or patterns from investigations.”
• DHS reports that MLB staff in July 2015 began incorporating “additional analysis detail into Incident Review Meetings notes.” The 2015 Compliance Annual Report includes several graphs of frequency of incidents, restraints, and PRN use, but no data on any other variables, and no analysis or discussion of follow up (or notation of the origin or source of the charts).
• The DHS report does not present data from the other reviews of restraints. • The DHS report does not present data regarding trends/patterns from
investigations. • Activities under Actions 38.1 to 38.6 are not reported by DHS.
DHS Data: September 2015 Gap Report 2015 Compliance Annual Report
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Compliance Assessment

EC 38. Incidents & Restraints: Other Analyses

Inconclusive

Areas Needing Additional Information

Review of underlying data, minutes and other presentations in committees, analyses of trends and patterns, and interviews of management and other staff responsible for these functions.

Obtaining Additional Information

EC 38. Incidents & Restraints: Other Analyses

Monitor Document Review

Monitor Interviews

EC 39. Internal Reviewer: Restraints
39. In consultation with the Court Monitor during the duration of the Court's jurisdiction, DHS designates one employee as Internal Reviewer whose duties include a focus on monitoring the use of, and on elimination of restraints.
Comments Regarding DHS Information
• Because 911 calls from facilities may relate to behavior plan implementation, and to the use/avoidance of emergency restraint, it is vital that DHS maintain and track accurate information on the number and nature of 911 calls.
• The current Internal Reviewer, Dr. Daniel J. Baker, was hired December 1, 2015. Only the 2016 Report covers his activities.18
18 The Gap Report on EC 39 discusses the departure of Dr. Richard Amado and the delay in hiring his replacement, Dr. Baker.
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• MLB documents and examines each incident of emergency use of manual restraint, 911 calls or use of PRN medication. The information is reviewed by the Internal Reviewer who provides feedback and monitoring. 38 incidents occurred during the reporting period for the August 2016 Report. The information in Defendants’ report consists of lists, but does not include analysis of variables or recommendations for elimination of the interventions to the extent possible.
• Defendants describe generally the activities of the Internal Reviewer and reference the existence of his monthly reports. When the Court Monitor asked Defendants if they wished him to review those monthly reports regarding compliance with this EC and report on that here, they demurred.
• The Internal Reviewer reported the “prevalence and justification” for 911 calls to the facilities as requested by the Court. (Doc. 578 at 6). (August 2016 Report at 73 ff.). He found: ! MLB policy “does not give specific guidance on when to call 911, and does not make explicit the connection between positive behavior supports and 911 utilization.” ! MLB training “This training did not give guidance on when to call 911, though reporting for 911 calls was mentioned.” o The Internal Reviewer made recommendations for improvements; implementation is not yet reported.
• For verification, JOQACO maintains and compares relevant databases, maintains the Internal Reviewer reports, and “reconciles” various pertinent data. DHS Data: August 2016 Report

Compliance Assessment

EC 39. Internal Reviewer: Restraints

Inconclusive

Areas Needing Additional Information

There is little information reported on the content of the communications between MLB staff and the Internal Reviewer, or on the molding of final recommendations. There is no information reported on whether there are disagreements between the two and, if no, how they are resolved. Also, the discrepancies on the number of 911 calls – which discrepancies were not identified by JOQACO, even in the current report – should be examined. Information related to these areas need to be examined.

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Obtaining Additional Information

Further review of this EC would require:

EC 39. Internal Reviewer: Restraints

Monitor Document Review

Monitor Interviews

EC 40. Internal Reviewer: Receipt of Restraint Reports

40. The Facility provided Form 31032 (or its successor) to the Internal Reviewer within 24 hours of the use of manual restraint, and no later than one business day.
40.1 The shift supervisor/administrator on duty will notify the Internal Reviewer of the restraint within 24 hours and no later than one business day. Notification will be made electronically along with the completed Form 31032 (or its successor).

Comments Regarding DHS Information

The Internal Reviewer receives the same restraint report at the same time as the other recipients receive it. EC 31-37.
DHS Data: August 2016 Report

Compliance Assessment

EC 40. Internal Reviewer: Receipt of Restraint Reports

Compliance

Areas Needing Additional Information

None.

Obtaining Additional Information

EC 40.

Maintenance Follow-up

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EC 41. Internal Reviewer: Olmstead, Admissions, Discharges
41. The Internal Reviewer will consult with staff present and directly involved with each restraint to address: 1) Why/how de-escalation strategies and less restrictive interventions failed to abate the threat of harm; 2) What additional behavioral support strategies may assist the individual; 3) Systemic and individual issues raised by the use of restraint; and 4) the Internal Reviewer will also review Olmstead or other issues arising from or related to, admissions, discharges and other separations from the facility.
41.1 The Internal Reviewer will consult with staff present and directly involved with each restraint to address: 1) Why/how de-escalation strategies and less restrictive interventions failed to abate the threat of harm; 2) What additional behavioral support strategies may assist the individual; 3) Systemic and individual issues raised by the use of restraint; and 4) the Internal Reviewer will also review Olmstead or other issues arising from or related to, admissions, discharges and other separations from the facility.
Comments Regarding DHS Information
• The first sentence of this EC relates to the Internal Reviewer’s consultation with staff present and directly involved in restraint situations. (This contrasts with the larger framework of EC 39).
• The Internal Reviewer does address the admission/discharge challenges under item “4” of this EC; the Court Monitor’s concern is whether and how the issues he raises are accepted and effectively addressed by those within DHS receiving his reports.
• The Internal Reviewer’s examination of admissions, discharges and separations, has resulted in these “two most significant concerns:” “(a) long tenures of MLB residents due to difficulties in placement, and (b) incomplete information about the person upon admission.” (p. 23).
• The report also states that, “with respect to discharges, [long tenure of MLB residents], clinical expertise is a limiting factor in effectively supporting MLB residents in integrated settings, consistent with the requirements of the CPA.” (p. 24).
• The Internal Reviewer’s report on one person’s Rhythm of the Day is summarized.
• The Internal Reviewer’s educational and related presentations are summarized.
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• No verification activities by JOQACO are described (the same text at p. 23 is pasted at p. 26) though it does not relate to the new information under this EC. DHS Data: August 2016 Report

Compliance Assessment

EC 41. Internal Reviewer: Olmstead, Admissions, Discharges

Compliance

Areas Needing Additional Information

• None needed. • The Court Monitor notes that the second concern voiced by the Internal
Reviewer is consistent with the additional inquiry the Court Monitor suggests with regard to EC 3 on admissions/referrals.
• Neither additional document review nor interviews would likely add to the Court Monitor’s ability to draw a compliance assessment.

Obtaining Additional Information

EC 41. Internal Reviewer: Olmstead, Admissions, Discharges

Maintenance Follow-up

EC 42-44.

External Reviewer / Court Monitor

NOT APPLICABLE TO THIS REPORT

42. On April 23, 2013, the Court appointed the Court Monitor as the External Reviewer, with the consent of Plaintiffs and Defendants. DHS funds the costs of the external reviewer.

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43. After providing Plaintiffs' Class Counsel and the Department the opportunity to review and comment on a draft, the External Reviewer issues written quarterly reports informing the Department whether the Facility is in substantial compliance with the Agreement and the incorporated policies, enumerating the factual basis for its conclusions.
44. In conjunction with duties and responsibilities under the Order of July 17, 2012, the Court Monitor reviews and makes judgments on compliance, makes recommendations and offers technical assistance in his discretion, and files quarterly and other reports with the Court. Timing of reports is subject to the Court's needs, results of Monitor's reviews, and to the monitoring plan pursuant to the Order of August 28, 2013.
EC 45 – 46. Plaintiffs’ & Third Party Access
45. The following have access to the Facility and its records: The Office of Ombudsman for Mental Health and Developmental Disabilities, The Disability Law Center, and Plaintiffs' Class Counsel.
45.1 Open access to the Facility, its successors, and their records is given to the Office of Ombudsman-MH/DD, The Disability Law Center and Plaintiffs' Class Counsel.
46. The following exercised their access authority: The Office of Ombudsman for Mental Health and Developmental Disabilities, The Disability Law Center, and Plaintiffs' Counsel.
46.1 The Ombudsman-MH/DD, Disability Law Center and Plaintiffs' counsel have all exercised their authority to access the Facility, its successors, and their records.
Comments Regarding DHS Information
• EC 45 and 46 provide for access to the Cambridge successors and the facility records for the Ombudsman, the Disability Law Center and Plaintiffs’ counsel.
• DHS reports, “there has been and will be no limits on such access. . . .” (p. 32, September 2015 Gap Report).
• The Court Monitor does not recommend “maintenance follow-up” for this item, as the entities with guaranteed access would surely raise the issue should it arise. DHS Data: September 2015 Gap Report
Compliance Assessment
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EC 45 – 46. Plaintiffs’ & Third Party Access

Compliance

Areas Needing Additional Information

None. Obtaining Additional Information

EC 45 – 46. Plaintiffs’ & Third Party Access

None

EC 47. Transition: Most Integrated
47. The State undertakes best efforts to ensure that each resident is served in the most integrated setting appropriate to meet such person's individualized needs, including home or community settings. Each individual currently living at the Facility, and all individuals admitted, will be assisted to move towards more integrated community settings. These settings are highly individualized and maximize the opportunity for social and physical integration, given each person's legal standing. In every situation, opportunities to move to a living situation with more freedom, and which is more typical, will be pursued.
47.2 Regarding transition planning for individuals entering more restrictive settings, the tasks under Evaluation Criteria 48 to 53 shall be fulfilled.
Comments Regarding DHS Information
• Defendants approach on this EC is significantly less demanding than the EC itself. That this requirement has a “best efforts” standard suggests that the DHS reports describe and demonstrate how best efforts have been exercised. ! The first sentence of DHS’ report on this EC states: o “MLB makes best efforts to provide each resident with the most integrated or best alternative setting while they plan for further
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transition to a more integrated setting in the community.” (p. 27). (emphasis added)
! However, the EC is significantly more demanding: o “The State undertakes best efforts to ensure that each resident is served in the most integrated setting appropriate to meet such person’s individual needs, including home or community setting.” (emphasis added)
! Efforts under the EC are “to ensure” and are undertaken by “The State.” The DHS report is about “pursuing,” not ensuring, and about activities by MLB, a structure with limited authority and purview, rather than DHS as the relevant state actor under the CPA in this regard.
o The CPA’s requirement is of the State itself, and mandates attention to the State’s leverage and other influence on Counties and providers:
o CPA at 2: “Consistent with its obligations under the Settlement Agreement, applicable law, and the federal court orders in this case, the Department of Human Services shall utilize best efforts to require counties and providers to comply with the Comprehensive Plan of Action through all necessary means within the Department of Human Services’ authority, including but not limited to incentives, rule, regulation, contract, rate-setting, and withholding of funds.”
• The report identifies two areas in which compliance is a challenge, though the report does not explicitly state that the result is non-compliance. First, it is “difficult for some treatment teams [in the community] to accept the direction or expectation of MLB during the person’s stay [at MLB], such as the importance of seeking permanent options or the importance of positive behavior supports/person-centered approaches. (p. 27). Second, there is a “lack of community capacity for transitioning persons out of MLB.” (id.).
• JOQACO reviewed individual’s transitions to community homes by reviewing the plan documents themselves. (Staff at two MLB homes were interviewed in that regard, though the report does not indicate the results of the interviews)
• No individuals were interviewed; no families/guardians were interviewed. • No community homes or day/work programs were visited. • No case managers or provider staff were interviewed.
DHS Data: August 2016 Report May 2016 Report
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Compliance Assessment

EC 47. Transition: Most Integrated

Inconclusive

Areas Needing Additional Information

Further information is required regarding the activities of MLB and other DHS actors regarding planning and implementation of placements, and the extent to which planned and implemented placements satisfy the requirements of this EC. Also, the nature and extent of the challenges asserted by DHS needs to be examined to determine whether, in the context of the individuals at MLB, they are hindering placement consistent with the EC.

Compliance with this EC by definition requires “eyes-on” and “ears-on” interaction with the settings into which the planning documents placed the individual; interviews with the individual, family/guardians, case manager, provider, and DHS staff to validate and corroborate the written plans (E.g., “These settings are highly individualized and maximize the opportunity for social and physical integration, given each person's legal standing.” “[l]iving situation with “more freedom,” “typical”).

The need for such information is unsurprising. DHS has never questioned that assessment of community placements necessitates on-site community review. When DHS reviewed the Court Monitor’s community assessment, the JOQACO staff visited the individual at his/her home. When the MLB Successful Life Project under the CPA assessed individual status, staff made physical contact on site in the person’s community.

Obtaining Additional Information

EC 47. Transition: Most Integrated

Monitor with Consultant

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EC 48. Transition: Appropriate Discharge
48. The State actively pursues the appropriate discharge of residents and provided them with adequate and appropriate transition plans, protections, supports, and services consistent with such person's individualized needs, in the most integrated setting and to which the individual does not object.
48.1 Each individual currently living at MSHS-Cambridge, and any individuals admitted prior to its closure, will have an appropriate transition plan developed within 30 days of admission in accordance with the individual needs and preference for the most integrated setting possible . (For this purpose "admission" and "commitment" are treated the same.). 48.2 For individuals who may by law or court order be required to enter more restrictive and less integrated circumstances, such as incarceration in a prison, person-centered planning and transition planning is given the same importance as voluntary admissions. All efforts will be towards preparation and transition, safeguarding, negotiating with facilities, supports while in a facility, and implementing immediate post-facility transition into well-matched supports.
Comments Regarding DHS Information
• The report describes the transition planning process as beginning on admission to MLB and continuing throughout the person’s stay.
• Under Action 48.1, a draft Transition Plan is to be completed within 30 days of admission.
• “The person and their team contribute to transition planning and plan updates through monthly team meetings.” (p. 28).
• JOQACO reviewed 4 transition plans for current facility residents, and found that the plans and monthly updates exist. However, 2 plans were not initiated within 30 days as required.
• JOQACO reviewed transition plans for the 2 individuals transitioned from MLB during the reporting period. Follow-up interviews with MLB staff occurred regarding the written plans. ! No individuals were interviewed; no families/guardians were interviewed. ! No community homes or day/work programs were visited. ! No case managers or provider staff were interviewed.
• There is a tool DHS is using to examine transition plans, Called the Person Centered Plan Report Scoring Criteria and Checklist. This tool is to be used to assess transition plans for individuals leaving MLB. It is reported to have been completed for 3 individual’s’ plans. May 2016 Report at 30. This is a paper review of a paper document.
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DHS Data: August 2016 Report May 2016 Report

Compliance Assessment

EC 48. Transition: Appropriate Discharge

Inconclusive

Areas Needing Additional Information

The EC requires both plans and the existence of “services consistent with such person's individualized needs, in the most integrated setting and to which the individual does not object.” Plans are not enough; they must be implemented.

The discussion under EC 47 regarding need for additional information is incorporated here by reference.

Obtaining Additional Information

EC 48. Transition: Appropriate Discharge

Monitor with Consultant

EC 49. Transition: Family Involvement
49. Each resident, the resident's legal representative and/or family to the extent permitted by law, has been permitted to be involved in the team evaluation, decision making, and planning process to the greatest extent practicable, using whatever communication method he or she (or they) prefer.
49.1 Each individual and/or the individual's family and/or legal representative as desired by the individual or required by guardianship is permitted, actively encouraged, and welcomed to be involved in the individual's person-centered planning and decision making to the greatest extent practicable utilizing whatever communication method the individual prefers and respecting the individual's right to choose the participants. Invitations to all planning and evaluation meetings
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will be extended. Alternate means of participation will be extended to those who cannot travel or attend, including phone and video conferencing. 49.2 Each individual will be invited and encouraged to participate in and take leadership in the person-centered planning processes when this is possible and desired by the person. In all circumstances, the person-centered planning process will be engaged in for and with all individuals, with the understanding that transition and change will happen, that the people are vulnerable, and may need the alliance and support of other allies to support the process of moving forward. High quality person-centered planning, including the development of person-centered profiles, plans, and transition plans, will not be delayed or minimized by a person's perceived level of readiness to take leadership of the process, or willingness to engage in the process.

Comments Regarding DHS Information

• The report states that family involvement is encouraged by MLB. Participation is supported through conference calls, scheduling of team meetings, flexible locations for team meetings, and the like.
• The DHS “responsible party” reporting the original data to JOQACO verified compliance solely through review of written plans and MLB progress review meetings.
• JOQACO did not verify any of that information. JOQACO reviewed only a copy of the “Referral Response Letter” which is a form letter by which MLB responds to referrals for placement; it appears to have nothing to do with assessing implementation of this EC.
• No individuals were interviewed; no families/guardians were interviewed. • No community homes or day/work programs were visited. • No case managers or provider staff were interviewed.
DHS Data: August 2016 Report
Compliance Assessment

EC 49. Transition: Family Involvement

Inconclusive

Areas Needing Additional Information

The questions which require answering under the EC are: Was the family was involved in the circumstances stated? Was the preferred communication method used? DHS reports what is written on its paper. The family’s information and opinions are needed for a full and accurate representation of compliance.
Obtaining Additional Information

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EC 49. Transition: Family Involvement

Monitor Document Review

Monitor Interviews

EC 50. Transition: Person-Centered Planning
50. To foster each resident's self-determination and independence, the State uses person-centered planning principles at each stage of the process to facilitate the identification of the resident's specific interests, goals, likes and dislikes, abilities and strengths, as well as support needs.
50.1 Person-centered planning: 1) Will be started immediately upon meeting the person, before admission if possible; 2) Will be on-going; 3) Will be supported by a team of people who represent the interests of the person, if need be; 4) Without exception, and only if the person objects to the inclusion of specific people, the support team will include willing family members, case managers, current, past and future service workers, and at least one individual who is in a freely-given relationship with the person which is conflict-free. This can include a community advocate, citizen advocate, family member, or other individual who only has the welfare of the individual to consider. If the individual is unable or unwilling to participate, people who know about and care for the individual, with the individual's approval, will still be invited to engage in sharing their perspectives about what that positive future can be and what is needed to bring it about. This process will begin at first contact, with a first person-centered plan drawn up by day 30 after admission or 45 days from approval of this Plan. 50.2 Each Person-Centered Plan will be enriched, altered and moved forward at least every 30 days as the person becomes better known and moves toward a new living situation. As plans for this new living situation emerge, each plan will include all activities relevant for transition to a new living situation, relevant and necessary supports to assure the person will have good success, and protections that need to be in place. 50.3 The information from each Person-Centered Plan will be fully incorporated into each person's transition plan, Positive Behavior Support Plan, goal plans, and service objectives within any Individual Service Plan. 50.4 All plan facilitators will have, or function under the active supervision of a staff person who has, significant experience and background in facilitation, social devaluation and its consequences, and the principles of Normalization / Social Role Valorization, person-centered thinking, and the various and vast array of useful tools and techniques which may be of use for a particular person. Any such supervisor shall co-sign and be responsible for the plan and plan process. In this manner, a thoughtful, authentic, individualized and successful planning process will result in meaningful outcomes. Evidence of use of various, individualized techniques for different individual people will be clear in the development of person -centered plans. (PATH, MAPS, Personal Futures Planning, One Page Profiles, and Helen Sanderson's Person-Centered Thinking, are examples) 50.5 An annual learning and professional development plan which includes the above areas will be developed with and for each facilitator of person-centered processes. It may include reading, research, formal, and informal training, mentoring, and development events. These learning and
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professional development plans will include a minimum of 25 hours per year of educational activities (formal and informal) focused on person-centered planning, and will be completed as planned. Attendance at professional conferences, in and out of state, will be supported and facilitated. 50.6 Person-Centered Planning will include the intentional development of each support team's understanding and analysis of the individual's particular life experiences and how they have impacted the person. Themes, patterns, potential responses, and lessons should be drawn from this knowledge. Biographical timelines, or other person-centered means to capture histories and understand the person will be conducted for each person, with the collaboration of the person and family, if appropriate. 50.7 The development of a person-centered description or personal profile will be used to develop the initial person-centered plan. 50.8 The formats for the Person-Centered Plan, person-centered description or personal profile will be revised to comply with the content requirements of this CPA. The Individual Program Plan will incorporate the Person-Centered Plan.
The Person-Centered Plan will be re-designed to reflect a person-centered approach and style. This will include adding: 1) The focus person's goals, interests and vision for the future; 2) The identification of any actions and plans towards achieving those goals; 3) Support to be provided and by whom; 4) Use of everyday, informal language and avoidance of unnecessary service jargon. Objectives for the Person-Centered Plan will be drawn directly from the person-centered description/profile.
Comments Regarding DHS Information
• The DHS report references and incorporates its discussions at EC 2, 48 and 49.
• DHS reports that monthly updates occur “consistent with Action 50.2.” (p. 33).
• DHS reports that information in the Person-Centered Plan informs multiple other plans “consistent with Action 50.3.” (p. 33).
• Although DHS notes two of the 8 Actions in this EC, the others are missing it DHS’ discussion. The DHS report includes no information on fundamental elements of this EC and its Actions that are not in other ECs. The report does not explain why these elements are ignored. DHS’ data do not mention them at all. There is no information that any data on these was collected or analyzed. For example, ! Team Membership. The Person-Centered Plan team must include: “Without exception, and only if the person objects to the inclusion of specific people, the support team will include willing family members, case managers, current, past and future service workers, and at least one individual who is in a freely-given relationship with the person which is conflict-free. This can include a community advocate, citizen advocate, family member, or other individual who only has the welfare of the individual to consider.” (Action 50.1).
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! Supervision of Person-Centered Plan Facilitators. Need for specific training and experience in order to produce “meaningful outcomes.” (Action 50.4).
! Annual Learning and Professional Development Plan. This is for plan facilitators and involves flexible formats and approaches. (Action 50.5). DHS Data: August 2016 Report

Compliance Assessment

EC 50. Transition: PersonCentered Planning

Inconclusive

Areas Needing Additional Information

Like DHS, the Court Monitor references and incorporates the discussions at EC 2, 48 and 49 above regarding areas needing additional information.

In addition, information is needed requiring all elements of this EC, most of which are ignored in the DHS report.

Obtaining Additional Information

EC 50. Transition: PersonCentered Planning

Monitor with Consultant

EC 51. Transition: Choice

51. Each resident has been given the opportunity to express a choice regarding preferred activities that contribute to a quality life.
51.1 For each person served at a Facility, the Person-Centered Plan will include preferred activities, areas in which the person wants to learn and grow, relationships to strengthen, and competencies to learn. 51.2 Frequent, daily opportunities will be built into daily life for each person to engage in meaningful activities that are personalized, individualized, and selected by the person. These will
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be activities planned with the person, and carried out in an individualized fashion. "House activities" will generally not be consistent with providing individualized, person-centered activities which the person freely chooses to engage in.

Comments Regarding DHS Information

• DHS reports that, consistent with Actions 51.1 and 51.2, each MLB resident has the ability to plan his or her day, and to include activities important to them.
• An example of one individual is provided (the example does not mention any activities; it describes the individual’s reactions and desires about planning activities).
• The reporting responsible party reviewed only documents to support this report.
• No verification by JOQACO occurred. DHS Data: August 2016 Report

Compliance Assessment

EC 51: Transition: Choice

Inconclusive

Areas Needing Additional Information

This EC requires that “each resident” have opportunities for “choice.” Activities are to “contribute to a quality life.” Planning and implementation with staff takes place. Assessment requires obtaining information from the individuals and staff, and consideration of compliance in the context of the person’s Person-Centered Plan.

Obtaining Additional Information

EC 51. Transition Choice

Monitor with Consultant

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EC 52. Transition: Integrated Settings & Services
52. It is the State's goal that all residents be served in integrated community settings and services with adequate protections, supports and other necessary resources which are identified as available by service coordination. If an existing setting or service is not identified or available, best efforts will be utilized to create the appropriate setting or service using an individualized service design process.
52.1 Each individual's Person-Centered Plan will embody continuously increasing clarity at each revision/development meeting on what an ideal living situation may look like for the person. These will support and describe "must haves" components which must be in place in any considered situation. This may include living situations which are not offered in existing structured services. It may also be impossible to "show" a person a service that matches their needs, even though they may select that option from several. 52.2 If an existing service/living situation is identified and selected by the individual with assistance from the support team, alterations, enhancements, and additional supports will be added whenever appropriate to ensure robust community supports which meet the essential needs for assistance, structure, and support as outlined in the Person-Centered Plan. "Must haves" identified as in 52.1 are required to be in place. 52.3 If an existing residential service is not identified or available, the appropriate services must be created, using an individualized service design process. 52.4 When a living situation is identified as a possibility, the individual and the support team as appropriate will have multiple opportunities to visit, meet potential house-mates, interview the staff and provider, spend time in the situation, and be given the opportunity to make a choice about the living situation, request program enhancements or adjustments, or decline the option . 52.5 When a discharge into an alternative living situation is agreed upon, the transition plan will be further developed and finalized. This pre-discharge iteration of the transition plan will include not only the sharing of information and documents transfers between providers, 1) An individualized plan to facilitate a smooth move; 2) Assistance to the person to navigate the move with ease, and arrange for safeguarding and transfer of the person's belongings ; 3) Planning for and making purchases for new home, ; 4) Assistance to become familiar with new neighborhood, area, town; 5) Planning for packing and move day ; 6) Personalization of new home; 7) Notification of family and friends ; 8) Post office and utility changes ; 9) Introductions to neighbors; 10) Setting up opportunities to deepen relationships with future housemates; 11) Celebrations, welcoming, and farewells; 12) Designing layout of space, window treatments, etc. These types of considerations are a part of the typical processes that valued adults in our culture when preparing to move, and these and others shall be considered. 52.6 The format for the transition plan will incorporate and provide for address of the elements in 52.5 above.
Comments Regarding DHS Information
• This EC requires integrated community settings along with services and related resources. “If an existing setting or service is not identified or
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available, best efforts will be utilized to create the appropriate setting or service using an individualized service design process.” The Actions include extensive detail on accomplishing these outcomes. • That this requirement has a “best efforts” standard suggests that the DHS reports describe and demonstrate how best efforts have been exercised. DHS has not done so. • DHS reports two accomplishments: a) two persons transitioned to the community during the reporting period, and b) individuals have “opportunities to explore potential future communities and potential future service providers.” (p. 34). • The other elements of the EC are not addressed. • JOQACO’s verification was review of the two individuals’ planning documents.
DHS Data: August 2016 Report
Compliance Assessment

EC 52. Transition: Integrated Settings & Services

Inconclusive

Areas Needing Additional Information

The Court Monitor references and incorporates the discussions at EC 2, 48, 49 and 50 above regarding areas needing additional information.

In addition, information is needed requiring all elements of this EC, most of which are ignored in the DHS report.

Obtaining Additional Information

EC 52. Transition: Integrated Settings & Services

Monitor with Consultant

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EC 53. Transition: Segregation & Olmstead

53. The provisions under this Transition Planning Section have been implemented in accord with the Olmstead decision.
53.1 Any living arrangement, day service, or other service which is administered or organized in a segregated manner must be justified in writing as a part of the transition plan as being necessary. In a "segregated manner" means that the people served are all people with disabilities who have not specifically chosen to live or be served together. This justification will be accompanied by objectives to increase social and physical integration which will be included in service planning objectives and program planning. 53.2 All services provided and planned for, and transitioned into must be adequate, appropriate, and carefully monitored. This need for monitoring will be carefully weighed by each personcentered team and addressed. This includes services at the Facility and new living and working situations into which a person is transitioning. 53.3 All services provided will include assisting people to have meaningful roles in community life, civic life, relationships, work and career, home, and areas of personal interest. When appropriate, these areas of engagement will be envisioned by the team alongside the individual served, and opportunities will be created for this engagement in everyday life. These roles and engagements will be consistently identified and addressed within the Person-Centered Planning, Transition, and the Positive Behavior Support Plans development processes. 53.4 The above areas of engagement (community life, civic life, relationships, career, home, personal interests) will be included in each Person-Centered Plan as focus areas for planning and related objectives.

Comments Regarding DHS Information

• DHS addresses this EC in terms of the principles of the Olmstead decision that favor integrated settings over segregated settings.
• DHS reports, “During this reporting period, no person at MLB was transitioned to services in a more segregated setting.” (p. 35).
• MLB works with providers willing to serve persons with “complex behaviors and needs” and MLB stresses “the requirements for transition planning outlined in EC 49 – EC 53.”
• For verification, DHS references its discussion under EC 48. DHS Data: August 2016 Report

Compliance Assessment

EC 53. Transition: Segregation & Olmstead

Inconclusive

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Echoing DHS, the Court Monitor references and incorporates the discussions at EC 48-53 above regarding areas needing additional information.

In addition, information is needed requiring all elements of this EC, most of which are ignored in the DHS report.

Obtaining Additional Information

EC 53. Transition: Segregation & Olmstead

Monitor with Consultant

EC 54. Facility Staff Training: Topics
54. Facility treatment staff received training in positive behavioral supports, person-centered approaches, therapeutic interventions, personal safety techniques, crisis intervention and post crisis evaluation.
54.1 Facility staff in all positions receive annual standardized training in: 1.Therapeutic Interventions 2. Personal safety techniques 3. Medically monitoring restraint 4. Positive Behavior Supports 5. Person-Centered Approaches 6. Crisis Intervention 7. Post-Crisis Evaluation and Assessment
54.2 All new or temporary Facility staff in all positions receive standardized pre-service training in: 1.Therapeutic Interventions 2. Personal safety techniques 3. Medically monitoring restraint 4. Positive Behavior Supports 5. Person-Centered Approaches 6. Crisis Intervention 7. Post-Crisis Evaluation and Assessment
54.3 The Department will record, monitor and follow-up with the Facility administration to ensure that all facility treatment staff receive all necessary training including, but not limited to, EC 62-64, below.
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Comments Regarding DHS Information
• DHS’ information here on staff training is provided for ECs 54-57 collectively.19
• DHS has recently changed its method for maintaining and organizing training records.20
• The Court’s Order of March 18, 2016 (Doc. No. 551 at 10-11) requested DHS to review staff training. The Internal Reviewer did so and provided an evaluation and recommendations, near the June 30, 2016 end of the reporting period for the August 2016 Report. See DHS May 31, 2016 Report to the Court (Doc. 572 at 5-13).
• DHS reports that, after the June 30, 2016 end of the reporting period, the Internal Reviewer found that some of the recommendations were implemented and, as to the EASE curriculum, changes were anticipated.
• DHS is exploring opportunities for standardizing training across divisions, citing the Court’s recommendation at Doc. No. 551. (p. 79).
• See discussion under EC 56. • Improvements are in process but not completed. Especially in light of the
history of non-compliance with training requirements, independent review and verification is crucial.
DHS Data: August 2016 Report 2015 Compliance Annual Report May 2016 Report

Compliance Assessment
EC 54. Facility Staff Training:
Topics

Inconclusive

19 The DHS August 2016 Report includes more current information than the 2015 Compliance Annual Report (for example, on DHS’ response to the Internal Reviewer report). In any event, the 2015 Compliance Annual Report is a narrative with no data reported and no verification activities reported. 20 Gap Report at 40 (“Minnesota Life Bridge is organizing all historic training records for Minnesota Life Bridge staff for data entry into the web-based the Department’s Pathlore Learning Management System, which the Department has updated to track individual staff competency results along with class completion. Minnesota Life Bridge will complete data entry into Pathlore by January 2016.”).
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Areas Needing Additional Information

When DHS has implemented the anticipated changes in training, this requirement should be assessed again through document review and interviews.

Obtaining Additional Information

EC 54. Facility Staff Training:
Topics

Monitor Document Review

Monitor Interviews

EC 55. Facility Staff Training: Best Practices
55. Facility staff training is consistent with applicable best practices, including but not limited to the Association of Positive Behavior Supports, Standards of Practice for Positive Behavior Supports (http://apbs.org). Staff training programs will be competency-based with staff demonstrating current competency in both knowledge and skills.
55.1 All Facility staff training programs will be competency-based with staff demonstrating current competency in both knowledge and skills. 55.2 Training curricula are developed, based on, and consistent with best practices in: 1) Positive Behavioral Supports; 2) Person-Centered approaches/practices; 3) Therapeutic Intervention Strategies; 4) Personal safety techniques; and 5) Crisis intervention and post crisis evaluation. 55.3 Each training program (that is, 1) Positive Behavioral Supports; 2) Person-Centered approaches/practices; 3) Therapeutic Intervention Strategies; 4) Personal Safety techniques; and 5) Crisis intervention & post crisis evaluation), will be evaluated at least annually and revised, if appropriate, to ensure adherence to evidence-based and best practices. 55.4 DHS will ensure training programs promote sensitivity awareness surrounding individuals with cognitive and mental health disabilities and how their developmental level, cultural/familial background, history of physical or sexual abuse and prior restraints may affect their reactions during behavioral emergencies. 55.5 DHS will ensure that training programs are designed to also develop staff's self-awareness of how their own experiences, perceptions and attitudes affect their response to behavioral issues and emergencies.
Comments Regarding DHS Information
See discussion at EC 54.
• The 2015 Compliance Annual Report states that MLB “will be implementing a new process” for “reviews and fidelity checks for positive behavior support programs and positive behavior support program training” with “corrective action where staff do not demonstrate fidelity checks to programs.” (p. 15).
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This was to begin in February 2016. The August 2016 Report, however, does not cover EC 55. Given the major changes anticipated (see EC 54), the status of this planned effort is unclear.
• Improvements are in process but not completed. Especially in light of the history of non-compliance with training requirements, independent review and verification is crucial. DHS Data: August 2016 Report 2015 Compliance Annual Report

Compliance Assessment

EC 55. Facility Staff Training: Best Practices

Inconclusive

Areas Needing Additional Information

When DHS has implemented the anticipated changes in training, this requirement should be assessed again through document review and interviews.

Obtaining Additional Information

EC 55. Facility Staff Training: Best Practices

Monitor Document Review

Monitor Interviews

EC 56. Facility Staff Training: Intervention
56. Facility staff receive the specified number of hours of training: Therapeutic interventions (8 hours); Personal safety techniques (8 hours); Medically monitoring restraint (1 hour).
56.1 Competency-based training curriculum is developed which minimally provides 8 hours training in Therapeutic Interventions; Personal Safety Techniques and 1 hour in Medically Monitoring Restraints. 56.2 All current employees receive 8 hours of competency-based training on Therapeutic Interventions. 56.3 All current employees receive 8 hours of competency-based training on Personal Safety Techniques.
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56.4 All current employees receive1 hour of competency-based training on Medically Monitoring restraints.
Comments Regarding DHS Information
• Training is fundamental to compliance. The CPA calls for training to the level of competence. One expects that this leads to habit, the incorporation of the learned skills in daily practice.
• Compliance with these staff training requirements has repeatedly been spotty and problematic. DHS’ recent reports continue to reflect that history.

• DHS states that as of the “date of this report,” that is August 2016, after the June 30, 2016 closing date for the report, and after the end of the DHS training year, “all active staff” at MLB and East Central have completed EC 56 training hours “from the 2015/2016 training year,” that is, March 12, 2015 to March 11, 2016. ! DHS does not explain who is excluded by the phrase “active staff.” (The requirement applies to all staff).21 ! DHS’ statement indicates that some staff were not fully trained for as late as 17 months after the beginning of the DHS training year.
• DHS’ 2016 reporting method and language is confusing and obfuscating. EC 56 is assigned Annual reporting to the Court. Regardless of the non-calendar “training year,” it is a simple matter for DHS, once a year, for the relatively few Facility staff, to simply look back over the prior 12 months and determine whether each staff had the required training during those 12 months.
• See discussion at EC 54. DHS Data: August 2016 Report 2015 Compliance Annual Report

Compliance Assessment
EC 56. Facility Staff Training: Intervention

Inconclusive

21 This training is about use of restraints, and therapeutic interventions that include non-restraint approaches, and about ensuring safety for staff. It is reasonably necessary for part-time staff, and administrative and management staff, all of whom may encounter individuals served by the Facility.
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Areas Needing Additional Information

Analysis of original training records for all Facility staff, the DHS computerized and other record systems, interviews with individuals involved. When DHS has implemented the anticipated changes in training, this requirement should be assessed again through document review and interviews.

Obtaining Additional Information

EC 56. Facility Staff Training: Intervention

Monitor Document Review

Monitor Interviews

EC 57. Facility Staff Training: Restraints

57. For each instance of restraint, all Facility staff involved in imposing restraint received all the training in Therapeutic Interventions, Personal Safety Techniques, Medically Monitoring Restraint.
57.1 No staff member is permitted to be assigned to direct support services until having received all required orientation and/or annual inservice training on all elements of EC 56, above.

Comments Regarding DHS Information

See discussion at EC 54, 55 and 56.

DHS Data: August 2016 Report 2015 Compliance Annual Report

Compliance Assessment

EC 57. Facility Staff Training: Restraints

Inconclusive

Areas Needing Additional Information Analysis of original training records for all Facility staff, the DHS computerized and other record systems, interviews with individuals involved. When DHS has
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implemented the anticipated changes in training, this requirement should be assessed again through document review and interviews.

Obtaining Additional Information

EC 57. Facility Staff Training:
Restraints

Monitor Document Review

Monitor Interviews

EC 58. Facility Staff Training: Person-Centered
58. Facility staff receive the specified number of hours of training: Personcentered planning and positive behavior supports (with at least sixteen (16) hours on person-centered thinking/planning): a total 40 hours; Post Crisis Evaluation and Assessment (4 hours).
Comments Regarding DHS Information
• See comments under EC 54, 55 and 56. • As of December 31, 2015, according to DHS’ 2015 Compliance Annual Report
(p. 18), there was non-compliance with the training required under EC 58. The following year January to March 2016) – after the reporting period -DHS conducted additional training resulting in a “significant increase;” however, DHS does not report the extent of the increase or whether compliance was achieved. • The 2016 report identifies non-compliance, mis-counting of regular activities as training, and a need address training further: ! JOQACO identified problems with reporting as a result of which it will
meet with MLB in September 2016 “to formulate a more detailed plan of action regarding completion and reporting of training hours.” (p. 69). ! Through interviews with MLB staff, JOQACO learned that hours of staff’s regular and expected review of updates to individuals’ support and transition plans, progress notes and meeting minutes were being counted as a self-study course titled “PBS On-going Learning and Practice” (Course Code SOS00011966). This was included in training reports in DHS’ Pathlore training record system. (p. 69). ! Staff interviews by JOQACO also identified staff need for more training support “from higher level BAs” and for “better documentation of training processes.” (p. 69). MLB is to produce an Action Plan on the “processes
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and expectations for training – particularly the content, competency, and documentation requirements associated with self-study training hours – to better ensure the consistency and quality of training.” (p. 69).
DHS Data: August 2016 Report 2015 Compliance Annual Report

Compliance Assessment

EC 58. Facility Staff Training: PersonCentered

Non-compliance

Areas Needing Additional Information

Analysis of original training records for all Facility staff, the DHS computerized and other record systems, interviews with individuals involved. When DHS has implemented the anticipated changes in training, this requirement should be assessed again through document review and interviews.

Obtaining Additional Information

EC 58. Facility Staff Training:
PersonCentered

Monitor Document Review

Monitor Interviews

EC 59 - 61 Visitation
59. Residents are permitted unscheduled and scheduled visits with immediate family and/or guardians, at reasonable hours, unless the Interdisciplinary Team (IDT) reasonably determines the visit is contraindicated.
59.1 Facilitate and allow all individuals to have scheduled and unscheduled visits with immediate family and/or guardians and other visitors if not contraindicated by court order or personcentered plans.

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60. Visitors are allowed full and unrestricted access to the resident's living areas, including kitchen, living room, social and common areas, bedroom and bathrooms, consistent with all residents' rights to privacy.
60. 1 Facilitate all visitors access to the individual's living areas, including kitchen, living room, social and common areas, bedroom and bathrooms, with attention paid to the right of individual privacy and person-centered plans or court requirements.
61. Residents are allowed to visit with immediate family members and/or guardians in private without staff supervision, unless the IDT reasonably determines this is contraindicated.
61.1 Provide privacy, if desired by the individual, for all individuals when visiting with immediate family members and/or guardians, unless the person-centered plans reasonably determines this is contraindicated or visitation rules are court ordered.
Comments Regarding DHS Information
• DHS states that it implements the visitor policy in ECs 59-61 at the Cambridge successor facilities.
• “[I]f” there are limits on visitors, based on Interdisciplinary Team decision or by court order, “staff note that limit in the person’s person-centered plan and/or facility records.” (p. 42, September 2015 Gap Report).
• DHS provides no information on number(s) of visitors or on the number/nature of any limits by the Team or court order. Whether or not a log is kept of visitors, staff must keep track of visitors to ensure that requirements of person-centered plans are satisfied.
• No interviews with individuals or families are reported in connection with verifying DHS’ report of compliance. DHS Data: September 2015 Gap Report 2015 Compliance Annual Report

Compliance Assessment

EC 59-61. Visitation

Inconclusive

Areas Needing Additional Information

Interviews with staff, individuals and families/guardians. Review of individuals’ plans if there are visitor limits.

Obtaining Additional Information

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EC 59-61. Visitation

Monitor Document Review

Monitor Interviews

EC 62. No Targeted Marketing
62. There is no marketing, recruitment of clients, or publicity targeted to prospective residents at the Facility.
Comments Regarding DHS Information
• DHS states, “The Department does not engage in any marketing, recruitment of clients, or publicity targeted to prospective residents. “ (p. 43, September 2015 Gap Report). DHS Data: September 2015 Gap Report 2015 Compliance Annual Report

Compliance Assessment

EC 62. No

Targeted

Compliance

`

Marketing

Areas Needing Additional Information

None.

Obtaining Additional Information

EC 62. No Targeted Marketing

Maintenance Follow-up.

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EC 63. Facility: Purpose

63. The Facility purpose is clearly stated in a bulletin to state court judges, county directors, social service supervisors and staff, county attorneys and Consumers and Families and Legal Representatives of consumers of Developmental Disabilities services. Any admission will be consistent with the requirements of this bulletin.
63.1 Clearly state the Facility's purpose in a bulletin to state court judges, county directors, social service supervisors and staff, county attorneys and Consumers and Families and Legal Representatives of consumers of Developmental Disabilities services.

Comments Regarding DHS Information

• The bulletin that was adopted in 2014 is in the process of revision. See EC 64.
• The 2014 bulletin expired early in 2016. See Bulletin #14-76-01 (April 29, 2014) Transition of Minnesota Specialty

The Bulletin Drafting Process The 2014 Bulletin was drafted and issued after extensive discussion with the Consultants and Plaintiffs’ counsel, their input into revisions, and with their

Health System (MSHS) – Cambridge to agreement. The Court Monitor took part

Minnesota Life Bridge: Admission and

in those discussions.The bulletin’s terms

Discharge Processes, Transition

are integral to many elements of the

Planning and Community Mobile Support Services (expiration date: April 29, 2016).

CPA. One would expect that the same process is being, or will be, followed now.

• The bulletin was adopted explicitly to

comply with the orders in this litigation.

• It would be unreasonable and a waste of resources to assess compliance

based on a two year old expired bulletin for which DHS has drafted a

replacement, and publication of which is soon to occur. (DHS has declined to

provide the Court Monitor with a draft of the replacement).

• No conclusion can be reached at this time.

DHS Data: August 2016 Report

September 2015 Gap Report

Compliance Assessment

EC 63. Facility: Purpose

Inconclusive

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Areas Needing Additional Information
Review of expected Bulletin and Manual page revisions. Check-in with plaintiffs and court consultants.
Obtaining Additional Information

EC 63. Facility: Monitor Document

Purpose

Review

EC 64. Facility: Consistent Mission

64. The Facility has a mission consistent with the Settlement Agreement and this Comprehensive Plan of Action.

Comments Regarding DHS Information

• The Facility’s mission is summarized by DHS as “Successful Transition to a Successful Life.”
• MLB’s residential treatment services are intended to be restraint-free, shortterm and to facilitate “successful transition to living in homes of their choosing.” (p. 36)
• MLB’s principles and operations had been set forth in DHS Bulletin #14-7601 (issued April 29, 2014), after review by the parties and Court Monitor.
• The report references DHS Bulletin #14-76-01 (see EC 63 discussion above) and states, “This Bulletin is in the process of being revised and updated and is now in the process of being finalized and approved.” (p. 36). The update and that of the corresponding Community-Based Services Manual page are expected to be available publicly in September 2016.
• The above updates have not yet been issued. DHS Data: August 2016 Report

Compliance Assessment

EC 64. Facility: Consistent Mission

Inconclusive

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Obtaining Additional Information

EC 64. Facility: Consistent Mission

Monitor Document Review

EC 65. Bill of Rights Posted

65. The Facility posts a Patient/Resident Rights or Bill of Rights, or equivalent, applicable to the person and the placement or service, the name and phone number of the person within the Facility to whom inquiries about care and treatment may be directed, and a brief statement describing how to file a complaint with the appropriate licensing authority.

Comments Regarding DHS Information

• A Bill of Rights must be posted in each of the Facilities. Also, additional information on making inquiries about treatment, and how to file a complaint must be posted.
• DHS’ Gap report states that three versions of a Bill of Rights are posted, but does not provide information on the posting or the other required information.

DHS Data: September 2015 Gap Report 2015 Compliance Annual Report

Compliance Assessment

EC 65. Bill of Rights Posted

Inconclusive

Areas Needing Additional Information

Observation of what is posted, its location, compliance with the requirements, and accessibility to individuals.

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Obtaining Additional Information

EC 65. Bill of Rights Posted

Monitor Document Review

EC 66. Bill of Rights Accessibility

66. The Patient/Resident Bill of Rights posting is in a form and with content which is understandable by residents and family/guardians.
66.1 Apart from any Patient/Resident Rights or Bill of Rights format which may be required by state law, an alternative version at an appropriate reading level for residents, and with clearly understandable content, will be posted and provided to individuals, parents and guardians on admission, reviewed at IDT meetings, and annually thereafter.

Comments Regarding DHS Information

• The Bill of Rights form and content must be understandable by individuals and parents/guardians.
• It is to be provided “on admission, reviewed at IDT meetings, and annually thereafter.”
• DHS reports that the form and content meet EC 66. • However, DHS reports that the Bill of Rights is provided only on admission.
The time of admission is often emotional and hectic, and is by definition prior to the individual becoming familiar with the environment and program. The additional exposure contemplated in EC 66 is important.
DHS Data: September 2015 Gap Report 2015 Compliance Annual Report

Compliance Assessment

EC 66. Bill of Rights Accessibility

Inconclusive

Areas Needing Additional Information

Review of what is posted, and interviews with individuals and staff on when and how it is provided to individuals.

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Obtaining Additional Information

EC 66. Bill of Rights Accessibility

Monitor Document Review

Monitor Interviews

EC 67. CSS: Community Services Expansion
67. The expansion of community services under this provision allows for the provision of assessment, triage, and care coordination to assure persons with developmental disabilities receive the appropriate level of care at the right time, in the right place, and in the most integrated setting in accordance with the U.S. Supreme Court decision in Olmstead v. L.C. , 527 U.S. 582 (1999).
67.1 Community Support Services (CSS) provides assessment, triage, and care coordination so that persons with developmental disabilities can receive the appropriate level of care in the most integrated setting. 67.2 Collect and manage data to track CSS interventions noted in 67.1 and their outcomes. 67.3 Provide necessary administrative/ management support within CSS to accomplish data management and analysis. 67.4 Focus weekly "diversion" meetings to include person-centered development strategies rather than considering only existing vacancies and challenges. From this perspective: 1) Review any proposed admissions to more restrictive settings and consider all possible diversion strategies; 2) Review status of transition planning for all living at the Facility, 3) Add active, individualized planning/development focus to these transition discussions which is consistent with the Olmstead Plan and includes such activities as developing a person-centered request for proposals for any person or persons at the Facility without an identified and appropriate targeted home in the community. 67.5 Weekly diversion meetings consider all individuals in danger of losing their living situation with an emphasis upon development of integrated alternatives where none are available. 67.6 CSS has additional administrative / managerial support to insure documentation and analysis of all diversion efforts and their impact on individuals' stability regarding living situations and behavioral / mental health. 67.7 CSS provides continuous and on-going diversion from institutionalization and placement in less integrated settings whenever possible by establishing procedures for assessment, care planning, and providing additional services, supports and expertise for individuals in jeopardy of losing their placements or living situations due to behavioral or mental health problems. 67.8 The Department will collect and review data relative to admissions and transitions. This shall include, but not be limited to: 1) individual's name, date of birth and county of origin; 2) current residence, provider and type of residential setting, e.g., independent living, family of origin, group home, ICF/ID, etc.; 3) date the individual moved to or was admitted to current residence; 4) previous residences, providers and residential settings; 5) dates of previous admissions and transitions including reason(s) for moves.
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Comments Regarding DHS Information

• The outcome sought in EC 67 (“to assure persons with developmental disabilities receive the appropriate level of care at the right time, in the right place, and in the most integrated setting”) was not evaluated by DHS. This outcome cannot be assessed at a distance, based only on second- and thirdhand information, and document review. ! DHS reports counts of individuals receiving services, and that document review indicates “supports provided were appropriate” but there is no report on right time, right place or most integrated setting. ! The Internal Reviewer provided an admirable and detailed “performance report”on CSS and Crisis Intervention, with recommendations for improvement. (May 2016 Report at 14-21). However, the individuals’ situations were considered from paper reviews, with no direct interaction with individuals, families/guardians or case managers.22
• The DHS report does not address the EC Action elements regarding management, staffing, data collection and review, diversion meetings, existence of procedures for specified purposes, tracking of outcomes, and others.
• DHS reports that “Community Support Services (CSS) mobile teams provided assessment, triage and care coordination to 298 persons with developmental disabilities,” including “61 individuals who received long term monitoring.” (p. 37). [Long term monitoring is addressed in ECs 68 and 69].
• JOQACO did a 6% sample (about 15 individuals) reviewing only CSS worker case notes to verify, “Supports were appropriate.” (p. 38). The review was of those documents only, with an email contact about two cases.
• No individuals or their families were interviewed. • No case managers or providers were interviewed. • No residential or day/vocational settings were visited. • The data reported is based solely on document review (aside from two
emails) DHS Data: August 2016 Report May 2016 Report

Compliance Assessment

EC 67. CSS: Community

Inconclusive

22 Seven survey questions’ results were cited, reported to be from training attendees, care providers, legal guardians (5 surveys) and individuals (11 surveys).
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Services Expansion

Areas Needing Additional Information

Through interviews and sampling, and selected site visits, as well as document review, information is needed on the operations of CSS contemplated under this EC at both the individual case level and the organizational level.

Obtaining Additional Information

EC 67. CSS: Community Services Expansion Community Services Expansion

Monitor with Consultant

EC 68. CSS: Long Term Monitoring
68. The Department identifies, and provides long term monitoring of, individuals with clinical and situational complexities in order to help avert crisis reactions, provide strategies for service entry changing needs, and to prevent multiple transfers within the system.
68.1 For DHS-operated services, the Department will maintain State and regional quality assurance committees to review data on a monthly basis. This review will include: 1) identifying individuals at heightened risk and determining intervention strategies; 2) reviewing data by county, region and provider to determine if trends or patterns exist and necessary corrective measures; and 3) maintaining meeting minutes detailing attendance (person/title), chairperson, individual and aggregate data review, issues and trends identified (individual and systemic), corrective measures to be taken, dates by which such corrective measures are to be completed, responsible parties, and follow-up of the previous months' action plans. 68.2 The Department will maintain an electronic data collection system which tracks the status of all corrective action plans generated by State and regional quality assurance committees, following up with the appropriate provider or county to ensure task completion.
Comments Regarding DHS Information
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• See discussion at EC 67. • The outcome sought in EC 68 (”to help avert crisis reactions, provide
strategies for service entry changing needs, and to prevent multiple transfers within the system”) was not evaluated by DHS. No outcome information is provided. • DHS states that for its review it took a “random sample” of the 61 individuals receiving long term monitoring but no percentage or number of individuals in the sample is provided.
• Information is provided on only 2 individuals cited as “examples.” • JOQACO separately reviewed CSS case notes for a sample of 10 of the 61,
reviewed the documents and found that services for 8 were “ongoing,” 1 was transferred to SLP and 1 was closed.
• No information is provided on the State and regional quality assurance committees, the monthly reviews they are to provide, the data reviewed, their address of trends and corrective measures.
• No information is provided on the electronic data collection system for tracking corrective action plans, or follow-up with providers and counties.

DHS Data: August 2016 Report May 2016 Report

Compliance Assessment

EC 68. CSS: Long Term Monitoring

Inconclusive

Areas Needing Additional Information

Information on the outcomes of the long term monitoring is needed, at both the individual and aggregate level. Information is required on the State and regional quality assurance committees, the monthly reviews they are to provide, the data reviewed, their address of trends and corrective measures, and on the electronic data collection system for tracking corrective action plans, or follow-up with providers and counties.

Obtaining Additional Information

EC 68. CSS: Long Term Monitoring

Monitor with Consultant

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EC 69. CSS: Long Term Monitoring Cases

69. Approximately seventy five (75) individuals are targeted for long term monitoring.
69.1 CSS will identify individuals with clinical and situational complexities who have been served by CSS and who would likely benefit from more intensive monitoring. 69.2 Seventy five individuals who are significantly at-risk for institutionalization or loss of home due to behavioral or other challenges will be identified for intensive monitoring and, if needed, intervention with additional supports and services. 69.3 These 75 individuals will be identified by CSS in collaboration with lead agency case managers based upon frequency of behaviors dangerous to self or others, frequency of interactions with the criminal justice system, sudden increases in usage of psychotropic medications, multiple hospitalizations or transfers within the system, serious reported incidents, repeated failed placements, or other challenges identified in previous monitoring or interventions and cost of placement. The status of these individuals will be reviewed at least semi-annually by CSS.

Comments Regarding DHS Information

• See discussion at EC 67. • This long term monitoring is extremely important to protecting at-risk
individuals. Those to be monitored are individuals “significantly at-risk for institutionalization or loss of home due to behavioral or other challenges will be identified for intensive monitoring and, if needed, intervention with additional supports and services.”
• DHS reported and verified that 61 individuals are in long term monitoring. • The requirement is that approximately 75 individuals are targeted for long
term monitoring. • The discrepancy between 61 and 75 is sufficient for the non-compliance
assessment. DHS does not assert in their reports that there are no more than 61 individuals who meet the criteria.
• In addition, the EC Actions include detailed identification process and criteria as well as a requirement for specific semi-annual status reviews. No information is provided on these elements. DHS Data: August 2016 Report May 2016 Report

Compliance Assessment

EC 69. Long Term Monitoring

Non-compliance

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Cases [On November 10, 2016, DHS told the Court Monitor that they understand that more information is needed to explain why 75 individuals are not being monitored, and that they have such information, but DHS declined to provide that information. Therefore, the Court Monitor assesses this EC as in Non-compliance.]

Areas Needing Additional Information

Additional information regarding remedy and the situation of those individuals receiving long term monitoring is needed.

Obtaining Additional Information

EC 69. Long Term Monitoring Cases

Monitor Document Review

Monitor Interviews

Monitor with Consultant

EC 70. CSS: Mobile Teams
70. CSS mobile wrap-around response teams are located across the state for proactive response to maintain living arrangements.
70.1 Describe locations of the 9 teams that have been established in 23 locations throughout the state. 70.2 Provide CSS with administrative / managerial support for the 9 teams to insure sufficient data collection and central data management 70.3 Document responses from CSS to individual's satisfaction surveys.
Comments Regarding DHS Information
• See discussion at EC 67. • DHS reports that it maintains “9 mobile wrap-around response teams and 23
office locations across the state.” (p. 42). • CSS staffs each mobile team with at least two people. “When CSS mobile
supports are engaged, at least one member of the mobile team provides outreach services, in consultation with other mobile team members.” • DHS conducted a survey (see Action 70.3) and received 17 responses from persons who received services from mobile teams, 8 responses from legal
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representatives, and 50 from county case managers. The results reported are incomplete and of questionable utility. ! DHS does not report the number of surveys sent out, the proportion of
potential recipients to whom it was sent, and does not indicate the number of non-responders. ! DHS does not report the number of questions on the survey. DHS reports results of 2 questions to legal representatives of individuals receiving services and to 3 questions to case managers.
DHS Data: August 2016 Report May 2016 Report

Compliance Assessment

EC 70. CSS: Mobile Teams

Inconclusive

Areas Needing Additional Information

Information needed includes interviews of CSS management and selected CSS staff, and consideration of interviews with some survey respondents. Also, the full survey and responses are required. Information on the functioning and location of the 9 mobile teams is needed.

Obtaining Additional Information

EC 70. CSS: Mobile Teams

Monitor Document Review

Monitor Interviews

EC 71. CSS: Response Time
71. CSS arranges a crisis intervention within three (3) hours from the time the parent or legal guardian authorizes CSS' involvement.
71.1 Strategically establish nine teams in 23 locations throughout the State to respond within 3 hours of a request for service. CSS admissions contacts the person's case manager as soon as they learn of a potential or actual crisis situation. 71.2 Streamline authorization procedure to facilitate CSS' response to reported crises as quickly as possible.
• See discussion at EC 67.
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• DHS reports that CSS arranged for a crisis intervention in 12 persons’ situations during the reporting period.
• “CSS arranged a crisis intervention within three hours from the time a parent or guardian authorized CSS’ involvement” in all but one of the 12 cases.23
• CSS starts the 3-hour time computation from receipt of a written “signed consent,” not from when “the parent or legal guardian authorizes CSS’ involvement;” the latter is the EC language. DHS does not provide information on the time lag between the initial call for crisis intervention, and the receipt of the written consent. DHS does not provide information on the complexity of the written consent or on what occurs if a written consent is not returned after CSS is alerted to a crisis situation.

Comments Regarding DHS Information

• DHS reports that CSS arranged for a crisis intervention in 12 persons’ situations during the reporting period.
• “CSS arranged a crisis intervention within three hours from the time a parent or guardian authorized CSS’ involvement” in all but one of the 12 cases.
• CSS starts the 3-hour time computation from receipt of a written “signed consent,” not from when “the parent or legal guardian authorizes CSS’ involvement;” the latter is the EC language. DHS does not provide information on the time lag between the initial call for crisis intervention, and the receipt of the written consent. DHS does not provide information on the complexity of the written consent or on what occurs if a written consent is not returned after CSS is alerted to a crisis situation.
• While it may be that in the usual situation written consent is required, it is also the case that in a crisis there may be alternatives to obtaining it, or that the immediately responding crisis worker can obtain consent on the spot. It is thus important to explore the implementation of this requirement. DHS Data: August 2016 Report May 2016 Report

Compliance Assessment

EC 71. CSS: Response Time

Inconclusive

23 In one case, a time was entered incorrectly into a database. In another, an intake worker left ill and handoff to the successor was missed, causing a 19.87 hour delay.
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Areas Needing Additional Information

Review of the CSS policy and practice on response time, and also the consent form. Interviews with CSS management and analysis of the data on crisis response time is needed.

Obtaining Additional Information

EC 71. CSS: Response Time

Monitor Document Review

Monitor Interviews

EC 72. CSS: Collaboration
72. CSS partners with Community Crisis Intervention Services to maximize support, complement strengths, and avoid duplication.
72.1 There is ongoing collaboration with the Metro Crisis Coordination Program (MCCP), whose intent is to provide a crisis safety net range of services for persons with developmental disabilities or related conditions; MCCP is a collaborative effort of seven counties in the Twin Cities metropolitan area. (metrocrisis.org) 72.2 Each county, and tribe as relevant, will have a system of locally available and affordable services to serve persons with developmental disabilities. 72.3 Continue quarterly meetings with MCCP.
Comments Regarding DHS Information
• See discussion at EC 67. • DHS reports collaboration with other crisis intervention services, and
meetings with lead agencies across the state. • With regard to safety net (Action 72.1), DHS is available to provide CSS
services if needed by a lead agency in the community. • DHS does not provide any information on Action 72.2, that each county and
tribe “will have a system of locally available and affordable services.” DHS Data: August 2016 Report May 2016 Report
Compliance Assessment
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EC 72. CSS: Collaboration

Inconclusive

Areas Needing Additional Information

The nature of the collaboration can be identified through interviews and document review, together with interactions related to the sufficiency of services locally.

Obtaining Additional Information

EC 72. CSS: Collaboration

Monitor Document Review

Monitor Interviews

EC 73. CSS: Training

73. CSS provides augmentative training, mentoring and coaching.

73.1 CSS Staff will offer and provide training, as requested or determined to be lacking, on coaching, mentoring and Augmentative training. 73.2 CSS will update training manual as necessary. 73.3 CSS will have sufficient administrative/ managerial staff to track/analyze training as well as mentoring and coaching services provided.

Comments Regarding DHS Information

• DHS reports on numbers of trainings and the existence and updating of curriculum.
• DHS reporst 99%/100% positive response from 453 respondents to a survey asking whether the “class was valuable/useful” and whether the class is “recommended.”
• JOQACO and CSS reviewed curriculum for “best practices” and updated its materials in that regard. DHS Data: August 2016 Report

Compliance Assessment

EC 73. CSS: Training

Compliance

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Areas Needing Additional Information

None.

Obtaining Additional Information

EC 73. CSS: Training

Maintenance Follow-up

EC 74. CSS: Training in Community
74. CSS provides staff at community based facilities and homes with state of the art training encompassing person-centered thinking, multi- modal assessment, positive behavior supports, consultation and facilitator skills, and creative thinking.
74.1 CSS determines locations for teams and/or home-based staff. CSS creates position descriptions that identify the necessary knowledge, skills, and abilities. CSS hires or trains staff with necessary qualifications and skills to provide training. 74.2 CSS insures that all vacant trainer positions are filled as efficiently as possible and with appropriately qualified staff. 74.3 Training curricula are reviewed routinely to insure consistency with best practices.

Comments Regarding DHS Information

• DHS refers to its report on EC 73. • It is noted that DHS does not reference Action 74.2 (filling vacancies).
DHS Data: August 2016 Report

Compliance Assessment

EC 74. CSS: Training in Community

Compliance

Areas Needing Additional Information

None, unless information is received in other elements of CSS review indicating unmet need due to trainer vacancies.

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Obtaining Additional Information

EC 74. CSS: Training

Maintenance Follow-up

EC 75. CSS: Mentoring & Data

75. CSS’ mentoring and coaching as methodologies are targeted to prepare for increased community capacity to support individuals in their community.
75.1 CSS will mentor and develop coaches in the community with a vision to support individuals in communities. 75.2 Track issues including frequency of behaviors dangerous to self or others, frequency of interactions with the criminal justice system, sudden increases in usage of psychotropic medications, multiple hospitalizations or transfers within the system, serious reported incidents, repeated failed placements, or other challenges identified in previous monitoring or interventions and cost of placement. 75.3 Provide additional administrative/ managerial support to CSS sufficient to enable timely and complete data collection, entry and analysis.
Comments Regarding DHS Information

• DHS states that it accomplishes mentoring and coaching through the augmentative training sessions described with regard to immediately prior ECs.
• With regard to the tracking under Action 75.2, DHS states that it will begin to track those issues for all people with developmental disabilities by March 1, 2017.24
• DHS recently expanded data management capacity by “creation of a data coordinator position [which] will facilitate this expanded tracking.” (p. 48).
• DHS “anticipates adding a management analyst position to develop and support sustainable, timely and complete data collection and analysis.” DHS Data: August 2016 Report

Compliance Assessment

EC 75.

Inconclusive

24 DHS currently tracks those issues for people with long term monitoring. (p. 48). 98

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Mentoring & Data

Areas Needing Additional Information

Information needed includes review of tracking currently done, the post March 1, 2017 status, and the results of the added capacity.

Obtaining Additional Information

EC 75. CSS: Mentoring & Data

Monitor Document Review

Monitor Interviews

EC 76. CSS: Additional Staff
76. An additional fourteen (14) full time equivalent positions were added between February 2011 and June 30, 2011, configured as follows: Two (2) Behavior Analyst 3 positions; One (1) Community Senior Specialist 3; (2) Behavior Analyst 1; Five (5) Social Worker Specialist positions; and Five (5) Behavior Management Assistants.
76.1 Review position descriptions, update as necessary. 76.2 Work with DHS Human Resources on advertising positions. 76.3 Fill any vacancies in functionally equivalent positions, with the required qualifications. As necessary to fulfill this Comprehensive Plan of Action, fill any position.
Comments Regarding DHS Information
• DHS reports on advertising and filling vacancies in CSS, and that four Behavior Analyst 3 Supervisors, and three Behavior Analyst 3 level staff were hired during the recent reporting period.
• A registered licensed Occupational Therapist Senior was also hired during the recent reporting period.
• DHS provided detailed summaries of the qualifications and experience of the added behavioral analyst staff in the recent report.
• Given the information in the recent and the Gap Report, this EC appears fulfilled. DHS Data: August 2016 Report September 2015 Gap Report
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Compliance Assessment

EC 76. CSS: Additional Staff

Compliance

Areas Needing Additional Information

No further information is deemed necessary. Little if anything would likely be gained by review of the newly hired individuals’ curricula vitae.

Obtaining Additional Information

EC 76. CSS: Additional Staff

Maintenance Follow-up

EC 77. CSS: Staff Vacancies
77. None of the identified positions are vacant.
77.1 Fill as quickly as possible and with qualified applicants all vacancies in these and other functionally equivalent positions. Provide sufficient salary, bonus and other structures and incentives to ensure that the positions are filled.
Comments Regarding DHS Information
• DHS reports that a social worker in one identified position was promoted. The position was posted and interviews “begin on August 16, 2016.”
• The Court Monitor observes that vacancies occur naturally in any enterprise. The EC does not forbid vacancies, but requires that they be filled “as quickly as possible.” (p. 50).
• There is no reason at this time to deem as non-compliance the single recent vacancy, with interviews imminent. DHS Data: August 2016 Report
Compliance Assessment
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EC 77. CSS: Staff Vacancies

Compliance

Areas Needing Additional Information

No further information is deemed necessary.

Obtaining Additional Information

EC 77. CSS: Staff Vacancies

Maintenance Follow-up

EC 78. FBA Staff
78. Staff conducting the Functional Behavioral Assessment or writing or reviewing Behavior Plans shall do so under the supervision of a Behavior Analyst who has the requisite educational background, experience, and credentials recognized by national associations such as the Association of Professional Behavior Analysts. Any supervisor will co-sign the plan and will be responsible for the plan and its implementation.
Comments Regarding DHS Information
• EC 78 requires that a credentialed analyst supervise staff writing or reviewing Functional Behavioral Assessments. Also, a supervisor must “cosign the plan and will be responsible for the plan and its implementation.” (p. 50).
• DHS reports that, for CSS, there are two staff who perform this function,” one of whom has the required national certification credentials and one of whom is a psychologist who at the time of the report was without the required credentials, although the examination was to take place prior to the filing of the report (p. 26-27, May 2016 Report).
• DHS reports no data on, and does not mention, the second sentence on cosigning, and responsibility for plans and their implementation.
• There is no information on the number of plans, whether they are co-signed, timeliness of co-signing, or the nature and extent of the supervisors’ involvement in the plans’ implementation. DHS Data: August 2016 Report
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September 2015 Gap Report May 2016 Report

Compliance Assessment

EC 78. FBA Staff

Inconclusive

Areas Needing Additional Information

Interviews with CSS FBA supervisors, and the staff with whom they are to co-sign. Review of FBAs and records regarding signature and implementation.

Obtaining Additional Information

EC 78. FBA Staff

Monitor Document Review

Monitor Interviews

EC 79. Olmstead Plan
79. The State and the Department developed a proposed Olmstead Plan, and will implement the Plan in accordance with the Court's orders. The Plan will be comprehensive and will use measurable goals to increase the number of people with disabilities receiving services that best meet their individual needs and in the "Most Integrated Setting," and which is consistent and in accord with the U.S. Supreme Court's decision in Olmstead v. L.C. , 527 U.S. 581 (1999). The Olmstead Plan is addressed in Part 3 of this Comprehensive Plan of Action.
NOT COVERED IN THIS REVIEW
EC 80. Rule 40 Modernization: Waiver
80. Rule 40 modernization is addressed in Part 2 of this Comprehensive Plan of Action. DHS will not seek a waiver of Rule 40 (or its successor) for a Facility.
Comments Regarding DHS Information
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DHS reports that it has not, and will not, seek a waiver for a Facility. DHS Data: September 2015 Gap Report 2015 Compliance Annual Report

Compliance Assessment

EC 80. Rule 40 Modernization: Waiver

Compliance

Areas Needing Additional Information

None.

Obtaining Additional Information

EC 80. Rule 40 Modernization: Waiver

Maintenance Follow-up

EC 81. MSH: Efforts Re Placements
81. The State takes best efforts to ensure that there are no transfers to or placements at the Minnesota Security Hospital of persons committed solely as a person with a developmental disability.
Comments Regarding DHS Information
• DHS reports that “MSH verified” that there were no transfers to or placements at MSH to which this EC is applicable from January 1, 2016 to June 30, 2016. The verification is reported to be based on computer and documentary reports.
• DHS also reports that it admitted a child to MSH committed solely as a person with a developmental disability on May 19, 2015. 2015 Compliance Annual Report, p. 23). The child is referenced here as “___”
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• DHS agrees that ___’s entry into MSH was in knowing violation of the CPA. That ___ was at CPA was discovered by the Court Monitor; DHS had not informed the Court Monitor, Plaintiffs or the Consultants of ___.
• DHS reports on the status of ___. • DHS is discussing “what the Department could do to help current and future
clients transition out of MSH more quickly as well as prevent persons committed solely as a person with a developmental disability from admission to MSH.” (August 2015 Report, p. 71).
• Given that ___ entered MSH in violation of the CPA during the reporting period and that DHS is in the process of discussing what it can do to prevent similar situations, compliance with this EC is assessed as Inconclusive.
• The compliance assessment by the Court Monitor does not represent any opinion regarding ___ placement, care or discharge. DHS Data: August 2016 Report 2015 Compliance Annual Report

Compliance Assessment

EC 81. MSH:

Efforts Re

Inconclusive*

Placements

* This finding is apart from the orders and other activity of the Court and parties

with regard to ___. This finding does not represent any opinion regarding ____’s

placement, care or discharge.

Areas Needing Additional Information

None.

Obtaining Additional Information

EC 81. MSH: Efforts Re Placements

Monitor Document Review

Monitor Interviews

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EC 82. MSH: Placements

82. There are no transfers or placements of persons committed solely as a person with a developmental disability to the Minnesota Security Hospital (subject to the exceptions in the provision).
82.1 DHS will communicate to all County Attorneys and state courts responsible for commitments, and to all county directors and case managers, that, pursuant to the order of the federal court approving this Plan, no person committed with a sole diagnosis of developmental disability may be transferred or placed at the Minnesota Security Hospital. Such communication will be made from the Commissioner within 30 days of the order approving this plan and, in addition, by DHS staff who become aware of any such proposed commitment or transfer. 82.2 The Jensen Implementation Team will document any proposed transition to or placement at MSH of any person committed solely as a person with a developmental disability, including but not limited to any diversion efforts prior to transfer or placement and any subsequent placements.

Comments Regarding DHS Information

• See discussion at EC 81.

DHS Data: August 2016 Report

Compliance Assessment

EC 82. MSH: Placements

Inconclusive*

* This finding is apart from the orders and other activity of the Court and parties

with regard to __. This finding does not represent any opinion regarding ___

placement, care or discharge.

Areas Needing Additional Information

None.

Obtaining Additional Information

EC 82. MSH: Placements

Monitor Document Review

Monitor Interviews

EC 83.

Commitment Status Change
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83. There has been no change in commitment status of any person originally committed solely as a person with a developmental disability without proper notice to that person's parent and/or guardian and a full hearing before the appropriate adjudicative body.
83.1 The Jensen Implementation Team will document any changes in commitment status of a person originally committed solely as a person with a developmental disability. The documentation will include any notifications and a description of any hearing, and copies of petitions and other papers submitted in connection with notification and/or hearing.

Comments Regarding DHS Information

• See discussion at EC 81. • DHS reports that there have been no commitment changes in violation of this
requirement. DHS Data: September 2015 Gap Report 2015 Compliance Annual Report

Compliance Assessment

EC 83. Commitment Status Change

Inconclusive

Areas Needing Additional Information

Information on commitments of people with developmental disabilities at the facility.

Obtaining Additional Information

EC 83. Commitment Status Change

Monitor Document Review

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EC 84. MSH Commitments
84. All persons presently confined at Minnesota Security Hospital who were committed solely as a person with a developmental disability and who were not admitted with other forms of commitment or predatory offender status set forth in paragraph 1, above, are transferred by the Department to the most integrated setting consistent with Olmstead v. L.C. , 527 U.S. 581 (1999).
84.1 Provide current census, and identifying information, of any people living at MSH committed solely as a person with a developmental disability. 84.2 Provide documentation of any transition/ placement from MSH since 12/5/2011 of any persons committed solely as a person with a developmental disability. Any such transfer/placement shall be to the most integrated setting consistent with Olmstead v. L.C., 527 U.S. 581 (1999).
Comments Regarding DHS Information
• DHS reports that, at the time of the September 2015 Gap Report, there were five Jensen class members at MSH. Each was reported to fit within the exceptions of this EC. (six class members at the time of the 2015 Compliance Annual Report plus a member of the CPA Therapeutic Follow Up group). Thus, at the time of that report, there was reported compliance with regard to class members.
• EC 84 is not limited to class members. DHS does not mention whether there were other people with developmental disabilities at MSH who were not class members.
• See discussion at EC 81. DHS Data: September 2015 Gap Report 2015 Compliance Annual Report

Compliance Assessment

EC 84. MSH Commitments

Inconclusive

Areas Needing Additional Information

Information on commitments of people with developmental disabilities to MSH.

Obtaining Additional Information

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EC 84. MSH

Monitor Document

Commitments

Review

EC 85. AMRTC Commitments

85. All AMRTC residents committed solely as a person with a developmental disability and who do not have an acute psychiatric condition are transferred from AMRTC to the most integrated setting consistent with Olmstead v. L.C. , 527 U.S. 581 (1999).
85.1 DHS will communicate to all County Attorneys and state courts responsible for commitments, and to all county directors and case managers, that, pursuant to the order of the federal court approving this Plan, no person committed with a sole diagnosis of developmental disability may be transferred or placed at the Anoka Metro Regional Treatment Center. Such communication will be made from the Commissioner within 30 days of the order approving this plan and, in addition, by DHS staff who become aware of any such proposed commitment or transfer. 85.2 The Jensen Implementation Team will document any proposed transition to or placement at Anoka Metro Regional Treatment Center of any person committed solely as a person with a developmental disability, including but not limited to any diversion efforts prior to transfer or placement and any subsequent placements.

Comments Regarding DHS Information

• DHS reports that, while there had been two individuals at AMRTC due to

psychiatric episodes, one was discharged to the community, and one was

committed with a mental illness. Thus, at the time of that report, there was

reported compliance.

• EC 85 is not limited to class members. DHS does not mention whether there

were other people with developmental disabilities a AMRTC who were not

class members.

• See discussion at EC 81.

DHS Data: September 2015 Gap Report

Compliance Assessment

EC 85. AMRTC Commitments

Inconclusive

Areas Needing Additional Information

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Information on commitments of people with developmental disabilities to MSH.

Obtaining Additional Information

EC 85. AMRTC Monitor Document

Commitments

Review

EC 86. Terminology
86. The term “mental retardation” has been replaced with “developmental disabilities” in any DHS policy, bulletin, website, brochure, or other publication. DHS will continue to communicate to local government agencies, counties, tribes, courts and providers that they should adhere to this standard.
86.1 All references to outdated terminology used to describe persons with Developmental Disabilities have been updated with clarification on the Departments use of people first language inserted in areas where historical documents are found. In addition to, or in lieu of, updating each webpage, DHS shall maintain the previously established "disclaimer" language to explain the presence in historical documents of outdated terminology.

Comments Regarding DHS Information

• DHS reports that outdated terminology has been replaced when identified in DHS material and that a “terminology disclaimer” statement has been added to DHS’ webpages and the DHS Bulletin template. DHS Data: September 2015 Gap Report

Compliance Assessment

EC 86. Terminology

Compliance

Areas Needing Additional Information

None.

Obtaining Additional Information

EC 86.

None

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Terminology

EC 87. Statutory Language Changes

87. DHS drafted and submitted a bill for the Minnesota Legislature that will require the replacement of terms such as "insane," "mentally incompetent," "mental deficiency," and other similar inappropriate terms that appear in Minnesota statutes and rules.
87.1 On the removal of inappropriate terms that appear in Minnesota statutes and Rules, see 2013 legislation at Chapter 62 and Chapter 59, Article 3, section 21 signed by the Governor on May 16, 2013. DHS will not seek to repeal or replace this legislation.

Comments Regarding DHS Information

• DHS reports that the statutory and rule language changes took place in 2013. DHS Data: September 2015 Gap Report

Compliance Assessment

EC 87. Statutory Language Changes

Compliance

Areas Needing Additional Information

None.

Obtaining Additional Information

EC 87. Statutory Language Changes

None

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EC 88. Cambridge Closed
88. MSHS-Cambridge will be closed. There will be community treatment homes dispersed geographically. Any need for additional community treatment homes beyond four will be determined based on a specific assessment of need based on client needs with regard to such criteria as those at risk for institutionalization or re-institutionalization, behavioral or other challenges, multiple hospitalizations or other transfers within the system, serious reported injuries, repeated failed placements, or other challenges identified in previous monitoring or interventions.

Comments Regarding DHS Information

• DHS reports that Cambridge closed as of August 29, 2014. There are four successor homes to Cambridge, geographically dispersed.
• No activity or need is reported by DHS for additional homes beyond the four. The Court Monitor expresses no opinion on this question.
• The assessment of compliance relates solely to the first two sentences of this EC 88. DHS Data: September 2015 Gap Report

Compliance Assessment

EC 88. Cambridge Closed

Compliance

Areas Needing Additional Information

None.

Obtaining Additional Information

EC 88. Cambridge
Closed

None

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EC 89. MLB Staff Experience
89. Staff hired for new positions as well as to fill vacancies, will only be staff who have experience in community based, crisis, behavioral and personcentered services and whose qualifications are consistent with the Settlement Agreement and currently accepted professional standards. Staff reassigned from MSHS-Cambridge will receive additional orientation training and supervision to meet these qualifications within 6 months of reassignment.
Comments Regarding DHS Information
• DHS reports the conclusion that this EC is satisfied but no data regarding that conclusion, and no verification activities regarding that conclusion.
• The Internal Reviewer reports that there were 7 new hires for MLB during the reporting period, and 7 staff transferred in. He states he reviewed their resumes and concluded from that review that they meet the EC criteria.
• Aside from document review, accomplished without spot checking or interview (including interview of supervisors), there is no verification reported of compliance with this EC. DHS Data: September 2015 Gap Report 2015 Compliance Annual Report May 2016 Report

Compliance Assessment

EC 89. MLB Staff Experience

Areas Needing Additional Information

Review and spot check of resumes, selected interviews.

Obtaining Additional Information

EC 89. MLB Staff Experience

Monitor Document Review

Monitor Interviews

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Inconclusive

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EC 90. Integrated Vocational Options
90. Provide integrated vocational options including, for example, customized employment.
Comments Regarding DHS Information
• DHS reports the conclusion that this EC is satisfied but no data regarding that conclusion, and no verification activities regarding that conclusion.
• DHS does not report that anyone was “provided” any vocational option (opportunities are only “explored”).
• The Internal Reviewer is planning – over the next year – to assess each MLB resident to determine if the person is employed in competitive integrated employment which meets the person’s preferences. (p. 27, 2015 Compliance Annual Report). There is thus no current information showing compliance. DHS Data: September 2015 Gap Report 2015 Compliance Annual Report

Compliance Assessment

EC 90. Integrated Vocational Options

Inconclusive

Areas Needing Additional Information

Data regarding fulfillment of provision of integrated vocational options, including customized employment, for individuals served.

Obtaining Additional Information

EC 90. Integrated Vocational Options

Monitor with Consultant

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EC 91. Individuals’ Person-Centered Planning Requirements Met
91. All requirements in this Comprehensive Plan of Action are fully met for each individual served in the area of Person-Centered Planning.
Comments Regarding DHS Information
• DHS reports the conclusion that this EC is satisfied but no data regarding that conclusion, and no verification activities regarding that conclusion. DHS Data: September 2015 Gap Report 2015 Compliance Annual Report

Compliance Assessment

EC 91 Individuals’ PersonCentered Planning Requirements Met

Inconclusive

Areas Needing Additional Information

Data regarding fulfillment of Person-Centered Planning for individuals served.

Obtaining Additional Information

EC 91. Individuals’ PersonCentered Planning Requirements Met

Monitor with Consultant

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EC 92. Individuals’ Transition Planning Requirements Met
92. All requirements in this Comprehensive Plan of Action are fully met for each individual served in the area of Transition Planning.

Comments Regarding DHS Information
• DHS reports the conclusion that this EC is satisfied but no data regarding that conclusion, and no verification activities regarding that conclusion. DHS Data: September 2015 Gap Report 2015 Compliance Annual Report

Compliance Assessment

EC 92. Individuals’ Transition Planning Requirements Met

Inconclusive

Areas Needing Additional Information

Data regarding fulfillment of Transition Planning for individuals served.

Obtaining Additional Information

EC 92. Individuals’ Transition Planning Requirements Met

Monitor with Consultant

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EC 93. Diversion Supports & Data Analysis

93. DHS will provide augmentative service supports, consultation, mobile teams, and training to those supporting the person. DHS will create stronger diversion supports through appropriate staffing and comprehensive data analysis.

Comments Regarding DHS Information

• On the first sentence of this EC, see EC 67-69. • This EC also requires “comprehensive data analysis” on the diversion
supports: “augmentative service supports, consultation, mobile teams, and training to those supporting the person.” On this EC, DHS does not report that there is such analysis or, if not, when and how it will be provided. • An effectively functioning system, serving hundreds of individuals under this EC with dozens of professional staff, requires analysis of data on what is happening (or not happening) for the individuals intended to benefit from the activity. DHS acknowledges that this piece did get missed.
DHS Data: August 2016 Report

Compliance Assessment

EC 93. Diversion Supports & Data Analysis

Non-compliance

Areas Needing Additional Information

Needed is “comprehensive data analysis” on the diversion supports: “augmentative service supports, consultation, mobile teams, and training to those supporting the person.” Also, interviews with the officials and staff responsible for that analysis.

Nothing further needed on the non-compliance matter.

Obtaining Additional Information

Nothing further needed on the non-compliance matter. On the data analysis:

EC 93. Diversion

Monitor Document Review

Monitor Interviews

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Supports & Data Analysis

EC 94. Licensure Required Under CPA
94. All sites, programs and services established or utilized under this Comprehensive Plan of Action shall be licensed as required by state law.
Comments Regarding DHS Information
• EC 94 requires licensure, if applicable, for “all sites, programs and services” under the CPA.
• DHS does not report any data regarding EC 94. • The DHS September 2015 Gap Report states that MLB will maintain licenses
for its “settings” and JOQACO “will verify.” • DHS reports that “services funded through Medical Assistance” will be from
“providers registered with the Department.” No data is reported on this. DHS Data: September 2015 Gap Report 2015 Compliance Annual Report

Compliance Assessment

EC 94. Licensure Required Under CPA

Areas Needing Additional Information

Licensure and registration information.

Obtaining Additional Information

EC 94. Licensure Required Under CPA

Monitor Document Review

Monitor Interviews

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Inconclusive

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EC 95. Cambridge Residents Move to Community
95. Residents currently at MSHS-Cambridge transition to permanent community homes.
Comments Regarding DHS Information
• The final person leaving MSHS-Cambridge transitioned to a permanent community home in August 2014. DHS Data: September 2015 Gap Report 2015 Compliance Annual Report (mislabels this requirement as EC 96)

Compliance Assessment

EC 95. Cambridge Residents Move to Community

Compliance

Areas Needing Additional Information
None.
Obtaining Additional Information
EC 95. Cambridge Residents Move to Community

None

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EC 96. Staff Training Emphasizes Community

96. Training plan for staff strongly emphasizes providing tools and support services in a person's home as quickly as possible. Staff will also be trained in delivering community based programs and processes.

Comments Regarding DHS Information

• The DHS report erroneously copies EC 95 as EC 96. (p. 62, September 2015 Gap Report). In the Gap Report, no information is stated for EC 96.
• Therefore, the Court Monitor looked to the status report for September 15, 2014 that is reported in the May 2015 Eighth Compliance Update Report (covering March 1 through April 30, 2015) (pp. 392-393). The 2014 data is referenced in the May 2015 Report.
• DHS reports that Cambridge successor and remaining Cambridge staff received community-oriented training. A “staff training plan” is referenced, as are the MLB “Training Tracker” documents for various dates.
• No data is reported showing the timeliness of completeness of the training, or the content of the staff training plan. DHS Data: September 2015 Gap Report May 2015 Eighth Compliance Update Report

Compliance Assessment

EC 96. Staff Training Emphasizes Community

Inconclusive

Areas Needing Additional Information

Review of the training plan for staff, its content and its implementation.

Obtaining Additional Information

EC 96. Staff Training

Monitor Document Review

Monitor Interviews

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Emphasizes Community
[Note: There is no EC 97]
EC 98. Successful Life Project
98. DHS will maintain therapeutic follow-up of Class Members, and clients discharged from METO/MSHS-Cambridge since May 1, 2011, by professional staff to provide a safety network, as needed, to help prevent reinstitutionalization and other transfers to more restrictive settings, and to maintain the most integrated setting for those individuals.
Comments Regarding DHS Information
• Purpose of EC 98 and Fundamental Changes in Process ! EC 98 requires a safeguarding structure to benefit individuals who left the METO/Cambridge institution since the settlement agreement was written. The intention is to help prevent re-institutionalization and other transfers to more restrictive settings, and to maintain the most integrated setting for those individuals. ! The EC 98 safeguard called the Successful Life Project (SLP) has had a number of configurations. Less than two months before the August 2016 Report’s closing period, SLP was moved within the DHS organizational structure. “On April 6, 2016, JOQACO assumed supervision of SLP.” (p. 58). ! Major changes are occurring. There are two staff vacancies; position descriptions are in flux; and there are “changes to SLP approach and processes.” (p. 59). Efforts are in progress to evaluate SLP’s impact and the quality of its clinical supports. (p. 60).
• Outcomes and Quality of Life ! As shown in its discussion of the tools discussed below, DHS is currently looking at plans for individuals. ! DHS is not yet able to provide more than anecdotal information responsive to the Court’s interest on whether individuals’ lives are being improved by the Department’s efforts: o “While the ECs examined here are about evaluation tools used to review the quality of plans developed in the provision of services to persons with disabilities, the Court’s March 18, 2016 Order seems to seek information regarding a more direct measure – are individuals’
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lives being improved by the Department’s efforts? The Department is currently involved in multiple survey development projects and data collection improvements that, when complete, should render data to that point. In the interim, the Department has collected a few examples of results of services for the Court’s consideration.” May 2016 Report at 31.
• Initial Visits ! More than 263 individuals are under the charge of the SLP. The SLP during its initial stage, within the year from the CPA, visited and assessed their circumstances.25
• Positive Behavior Support System Evaluation Tool (PBS SET) ! The May 2016 Report describes an evaluation tool being used to assess the circumstances of individuals served by the SLP. It is called PBS-SET (formerly, PBS-CET). During the reporting period, a PBS-CET was completed for 8 individuals (the results for 1 of the 8 became irrelevant as the person moved to a new home). ! Of about 113 recommendations by the SLP staff for the remaining 7 individuals, only 19 recommendations were implemented. The Internal Reviewer acknowledges that “It is notable that only a fraction of the recommendations were implemented for each person during the reporting period.” While not too many changes should be implemented simultaneously, he states that “h the outcome of positive supports should be a comprehensive plan addressing lifestyle, instructional, and support elements.” May 2016 Report at 29.
• Person Centered Plan Report Scoring Criteria and Checklist ! This tool is to be used to assess transition plans for individuals leaving MLB. ! It is reported to have been completed for 3 individual’s’ plans. May 2016 Report at 30
• Activities During August 2016 Report Period. See Order of June 21, 2016 at 6, n. 3. ! During the reporting period, SLP provided supports to 87 individuals in a variety of settings including (highest three settings: 57 corporate foster care community settings, 9 own home, and 7 in state operated facilities (MSH, MSOP and MLB). DHS is in the process of developing mechanisms to evaluate improvement in individuals’ lives; DHS does not yet have a
25 As of September 30, 2015, SLP had conducted 263 initial assessments of individuals who are in its charge. 55 additional individuals on the roll were not yet assessed at that time for a variety of reasons. September 2015 Gap Report at 63.
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methodology for evaluating whether DHS efforts “have had a positive impact on the lives of class members or persons in the therapeutic followup group.” (p. 82). ! DHS describes positive changes for 10 individuals. 3 of the 87 were transferred to more restrictive settings during the reporting period.

• Verification by JOQACO ! JOQACO’s verification consisted of reviewing documents regarding a random sample of 36 of the 87 individuals who “received supports from the SLP during this reporting period.” (p. 63). JOQACO also interviewed three case managers. ! JOQACO did not interview individuals, their families/guardians or providers. ! JOQACO did not visit any institutional or community settings serving the SLP beneficiaries. ! JOQACO did not perform any verification regarding the SLP group beyond the 87. DHS Data: August 2016 Report September 2015 Gap Report May 2016 Report
Compliance Assessment

EC 98. Successful Life Project

Inconclusive

Areas Needing Additional Information

The results of the many changes occurring need to be evaluated. It happens that 87 of the total 263 SLP received follow-up during this report period; the SLP enterprise seeks to protect the entire group and an analysis needs to consider whether there are others who, had they been attended to, had a need for follow-up (for example, people living at their own homes, in nursing homes or state facilities). Interviews with individuals, families/guardians, providers and case managers are essential, along with visits to settings and services.
Obtaining Additional Information

EC 98. Successful Life Project

Monitor with Consultant

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EC 99. Rule 40 Modernization: Scope
99. The scope of the Rule 40 modernization shall include all individuals with developmental disabilities served in programs, settings and services licensed by the Department, regardless of the setting in which they live or the services which they receive. As stated in the Settlement Agreement, the modernization of Rule 40 which will be adopted under this Comprehensive Plan of Action shall reflect current best practices, including, but not limited to the use of positive and social behavioral supports, and the development of placement plans consistent with the principle of the 'most integrated setting' and 'person centered planning, and development of an ‘Olmstead Plan’” consistent with the U.S. Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 582 (1999)."
Comments Regarding DHS Information
• The EC requires that the rule cover “all individuals with developmental disabilities served in programs, settings and services licensed by the Department, regardless of the setting in which they live or the services which they receive.” This expanse includes, among other things, Minnesota Security Hospital and Anoka Metro Regional Treatment Center. The rule must also “reflect current best practices, including, but not limited to the use of positive and social behavioral supports.”
• The Rule was adopted with the EC 99 scope. MN State Register, 40 SR 179. However, questions have arisen regarding whether the use of mechanical restraints and seclusion in MSH, AMRTC and other settings is consistent with the rule and the CPA generally.
• This litigation was triggered by a report exposing, among other things, the use of mechanical restraints at a state institution for people with developmental disabilities.26 The Settlement Agreement looked to “extending the application” of the Agreement “to all state operated locations” serving
26 September 2008, Minnesota Ombudsman on Mental Health and Developmental Disabilitiess Report, Just Plain Wrong, Evaluating Minnesota Extended Treatment Options (METO) Program at 1 (September, 2008).
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people with developmental disabilities who would meet METO/Cambridge admission standards.27 • The Court ordered that the Rule 40 modernization would address “any emergency use of restraint or seclusion.”28 The CPA prohibits mechanical restraint at the original facilities. The CPA’s System Wide Improvement goals extend beyond the “Facilities” defined in the Settlement Agreement.29 The CPA mandated a no-exceptions scope for the rule replacing Rule 40 (EC 99) (“all individuals with developmental disabilities served in programs, settings and services licensed by the Department, regardless of the setting in which they live or the services which they receive.”). As DHS stated in the CPA, it will “establish a plan to prohibit use of seclusion and restraints for programs and services licensed or certified by the department.” Indeed, the rule modernizing Rule 40 under the CPA prohibits mechanical and other aversive techniques: ! “The license holder is prohibited from using chemical restraints,
mechanical restraints, manual restraints, time out, seclusion, or any other aversive or deprivation procedure, as a substitute for adequate staffing, for a behavioral or therapeutic program to reduce or eliminate behavior, as punishment, or for staff convenience.” Minnesota Statutes, section 245D.06, subdivision 5 (emphasis added).30
DHS Data: September 2015 Gap Report
27 (Doc. No. 136-1 at 3, §7):
The State also agrees that its goal is to utilize the Rule 40 Committee and Olmstead Committee process described in this Agreement to extend the application of the provisions in this Agreement to all state operated locations serving people with developmental disabilities with severe behavioral problems or other conditions that would qualify for admission to METO, its Cambridge, Minnesota successor, or the two new adult foster care transitional homes. (emphasis added) 28 (Doc. No. 224) (quoting the “Department’s Closing Words,” Rule 40 Advisory Committee Recommendations on Best Practices and Modernization of Rule 40, Final Version (July 2, 2013) at 36 (Doc. No. 219)).
29 CPA at 2 (“the "scope of DHS obligations" to individuals with developmental disabilities under the System Wide Improvements (§X) is not limited to residents of the Facility.”). The Rule 40 modernization, which is §X.C. of the CPA, is thus not limited to residents of the original settlement “Facility” or its successors.
30 Similarly, the Olmstead Plan addresses DHS’ Chapter 245D rules prohibiting nonemergency use of restrictive procedures, which includes restraints. (Doc. No. 571, Att. 1 at 80-81). The updated Olmstead Plan was approved. (Doc. No. 578 at 10).
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Compliance Assessment

EC 99. Rule 40 Modernization: Scope

Inconclusive

Areas Needing Additional Information

Information regarding the use of mechanical restraints and seclusion at MSH, AMRTC and other locations. Assessment would be considerably facilitated through use of the DHS collected BIRF reports and the digital data system for such events at MSH and AMRTC, linking easily to individual information.

Obtaining Additional Information

EC 99. Rule 40 Modernization: Scope

Monitor Document Review

Monitor Interviews

EC 100. Rule 40 Modernization: Adoption
100. Within the scope set forth above, the rule-making process initiated by the Department of Human Services pursuant to the Settlement Agreement, the Department shall by December 31, 2014 propose a new rule in accordance with this Comprehensive Plan of Action ("Proposed Rule"). This deadline may be extended for good cause shown upon application to the Court not later than 20 days prior to the deadline. Should the Department of Human Services believe that it requires additional rule-making authority to satisfy the requirements of this Plan, in order to apply the rule to all providers covered by Rule 40 and the scope of this Plan, the Department will seek an amendments to statutes in the 2014 Minnesota Legislative session to ensure that the scope of the Rule 40 modernization stated above is fulfilled and will apply to all of the facilities and services to persons with developmental disabilities governed by Rule 40. Any proposed amendment(s) are subject to the notice and comment process under EC __ below.

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If legislative approval for the requested authority is not obtained in the 2014 Minnesota Legislative session, the Court may use its authority to ensure that the Adopted Rule will apply consistent with the scope set forth in EC 99. By August 31, 2015, the Department of Human Services shall adopt a new rule to modernize Rule 40 ("Adopted Rule"). This deadline may be extended for good cause shown upon application to the Court not later than 60 days prior to the deadline.

Comments Regarding DHS Information

The Rule was adopted. MN State Register, 40 SR 179. DHS Data: September 2015 Gap Report 2015 Compliance Annual Report

Compliance Assessment

EC 100. Rule 40 Modernization: Adoption

Compliance

Areas Needing Additional Information

None.

Obtaining Additional Information

EC 100. Rule 40 Modernization: Adoption

None

EC 101. Rule 40 Modernization: Medical Restraint
101. The Proposed Rule shall address the temporary use and tapering of carefully monitored individual medical restraints for self-injurious behavior while nonrestraint positive behavior supports are implemented under professional supervision.
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In formulating the Proposed Rule, and any other methods or tools of implementation, the Department shall carefully consider the recommendations of Dr. Fredda Brown, whose consultation on the Rule 40 modernization the Department requested with regard to matters on which the Advisory Committee had not reached consensus. The Department shall document the results of this review.

Comments Regarding DHS Information

• The Proposed Rule incorporates the stated temporary use of monitored individual medical restraints, after DHS considered the input of Dr. Fredda Brown. DHS Data: September 2015 Gap Report 2015 Compliance Annual Report

Compliance Assessment

EC 101. Rule 40 Modernization: Medical Restraint

Compliance

Areas Needing Additional Information

None.

Obtaining Additional Information

EC 101. Rule 40 Modernization: Medical Restraint

None

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EC 102. Rule 40 Modernization: Proposed Rule

102. The Proposed Rule shall be consistent with and incorporate, to the extent possible in rule, the Rule 40 Advisory Committee's consensus recommendations stated in its Recommendations on Best Practices and Modernization of Rule 40 (Final Version - July 2013). During the rule-making process, the Department shall advocate that the final rule be fully consistent with the Rule 40 Advisory Committee's recommendations. The phrase "to the extent possible in rule" above is intended to recognize that some elements of the Committee's recommendations are not susceptible to the format of rules and, therefore, will be implemented by the Department through policies, bulletins, contract provisions, and by other means.

Not later than (30) days prior to public notice of the content of the Proposed Rule, the Department shall provide a draft of the rule to Plaintiffs' Class Counsel, the Court Monitor, the Ombudsman for Mental Health and Developmental Disabilities, and the Executive Director of the Governor's Council on Developmental Disabilities for review and comment and, if requested by any of these entities, for discussion in a conference prior to public notice of the content of the Proposed Rule. The Department will share with these entities the intended final content not later than five (5) days prior to the public notice.

Comments Regarding DHS Information

• The Proposed Rule, with some changes, was adopted after notice and some process.
• The compliance assessment here is not intended to express and opinion on any issues addressed in the EC 103 process. DHS Data: September 2015 Gap Report

Compliance Assessment

EC 102. Rule 40 Modernization: Proposed Rule

Compliance

Areas Needing Additional Information

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None
Obtaining Additional Information
EC 102. Rule 40 Modernization: Proposed Rule

None

EC 103. Rule 40 Modernization: Issue Resolution
103. Within thirty (30) days of the promulgation of the Adopted Rule, Plaintiffs' Class Counsel, the Court Monitor, the Ombudsman for Mental Health and Developmental Disabilities, or the Executive Director of the Governor's Council on Developmental Disabilities may suggest to the Department of Human Services and/or to the Olmstead Implementation Office that there are elements in the Rule 40 Advisory Committee Recommendations on Best Practices and Modernization of Rule 40 (Final Version - July 2013) which have not been addressed, or have not adequately or properly been addressed in the Adopted Rule. In that event, those elements shall be considered within the process for modifications of the Olmstead Plan. The State shall address these suggestions through Olmstead Plan sub-cabinet and the Olmstead Implementation Office. Unresolved issues may be presented to the Court for resolution by any of the above, and will be resolved by the Court.
Comments Regarding DHS Information
• EC 103 contemplates that there may be suggestions that there are elements which are not adequately or properly addressed in the Adopted Rule replacing Rule 40. Such suggestions were made.
• DHS reports that it has been meeting on the suggestions with the Ombudsman for Mental Health and Developmental Disabilities and the Governor’s Council on Developmental Disabilities since the fall of 2015, with some interruptions.
• EC 103 requires that the suggestions be considered in the “process for modifications of the Olmstead Plan.” Unresolved issues may be presented to the Court and “will be resolved by the Court.”
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• While discussion of this issue understandably has taken place, there is a cost to delay in resolving the matter; individuals intended to benefit from the Adopted Rule may be receiving aversive interventions that would be prohibited if the Rule were otherwise. DHS Data: August 2016 Report

Compliance Assessment

EC 103. Rule 40 Modernization: Issue Resolution

Issues should be resolved by the Court if not resolved through Olmstead modification process.

Areas Needing Additional Information

Discussion with parties regarding status of suggestions for the Adopted Rule.

Obtaining Additional Information

EC 103. Rule 40 Modernization: Issue Resolution

Monitor Interviews

EC 104. Rule 40 Modernization: Rule Implementation
104. The Department of Human Services shall implement the Adopted Rule and take other steps to implement the recommendations of the Rule 40 Advisory Committee.
Comments Regarding DHS Information
• The Positive Supports Rule became effective on August 1, 2015, replacing Rule 40, two months before the September 30, 2015 end of the reporting period for the Gap Report.
• EC 104 imposes two obligations on DHS: ! Implementation of the Positive Supports Rule, and
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! Taking other steps to “implement the recommendations of the Rule 40 Advisory Committee.” See EC 102.31
• Neither the September 2015 Gap Report nor the August 2016 Report cover compliance with these two obligations. Therefore, no assessment is possible in this Report.
• See discussion above at EC 99. DHS Data: September 2015 Gap Report August 2016 Report

Compliance Assessment

EC 104. Rule 40 Modernization: Rule Implementation

Inconclusive

Areas Needing Additional Information

Information is needed regarding both obligations: implementation of the Rule and of the Advisory Committee recommendations. The changes wrought through this provision are statewide and interviews, document review, and consultation are appropriate.

Obtaining Additional Information

EC 104. Rule 40 Modernization: Rule Implementation

Monitor Document Review

Monitor Interviews

Monitor with Consultant

31 EC 102 (“The phrase "to the extent possible in rule" above is intended to recognize that some elements of the Committee's recommendations are not susceptible to the format of rules and, therefore, will be implemented by the Department through policies, bulletins, contract provisions, and by other means.”).
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XI. Conclusion The Court Monitor respectfully submits this Compliance Assessment to the
Court.
Respectfully submitted,

November 22, 2016

David Ferleger

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 CASE 0:09-cv-01775-DWF-BRT Document 614-1 Filed 02/24/17 Page 1 of 94
Jensen Settlement Agreement Comprehensive Plan of Action (CPA)
February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 – December 31, 2016

CASE 0:09-cv-01775-DWF-BRT Document 614-1 Filed 02/24/17 Page 2 of 94
Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016
Table of Contents
Introduction ........................................................................................................................................... 4 Background....................................................................................................................................................... 4 Components of the Department’s Internal Oversight System ............................................................... 4
Jensen/Olmstead Quality Assurance and Compliance Office ................................................................................... 4 JOQACO Compliance Verification Process .............................................................................................................. 5 Independent Subject Matter Experts.......................................................................................................................... 6 Agency-wide Quality Assurance Leadership Team ................................................................................................ 8
Evaluation Criteria State of Completion (Scheduled for Semi-Annual Report)...................... 9 Settlement Agreement Section IV. METO Closure (EC) ........................................................................ 9
Evaluation Criteria 2 .................................................................................................................................................... 9 Evaluation Criteria 3 .................................................................................................................................................. 16 Evaluation Criteria 39 ................................................................................................................................................ 18 Evaluation Criteria 41 ................................................................................................................................................ 22
Settlement Agreement Section VIII. Transition Planning (EC 47-53)................................................ 24
Evaluation Criteria 47 ................................................................................................................................................ 24 Evaluation Criteria 48 ................................................................................................................................................ 25 Evaluation Criteria 49 ................................................................................................................................................ 34 Evaluation Criteria 50 ................................................................................................................................................ 35 Evaluation Criteria 51 ................................................................................................................................................ 37 Evaluation Criteria 52 ................................................................................................................................................ 40 Evaluation Criteria 53 ................................................................................................................................................ 42
Settlement Agreement Section IX.D. Other Practices at the Facility – No Inconsistent Publicity (EC 64).............................................................................................................................................................. 43
Evaluation Criteria 64 ................................................................................................................................................ 43
Settlement Agreement Section X.A. System Wide Improvements – Expansion of Community Support Services (EC 67-78)......................................................................................................................... 44
Evaluation Criteria 67 ................................................................................................................................................ 44 Evaluation Criteria 68 ................................................................................................................................................ 50 Evaluation Criteria 69 ................................................................................................................................................ 57 Evaluation Criteria 70 ................................................................................................................................................ 59 Evaluation Criteria 71 ................................................................................................................................................ 61 Evaluation Criteria 72 ................................................................................................................................................ 63 Evaluation Criteria 73 ................................................................................................................................................ 64
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016
Evaluation Criteria 74 ................................................................................................................................................ 65 Evaluation Criteria 75 ................................................................................................................................................ 66 Evaluation Criteria 76 ................................................................................................................................................ 67 Evaluation Criteria 77 ................................................................................................................................................ 68 Evaluation Criteria 78 ................................................................................................................................................ 68
Settlement Agreement Section X.B. System Wide Improvements – Olmstead Plan (EC 79).......... 70
Evaluation Criteria 79 ................................................................................................................................................ 70
Closure of MSHS-Cambridge and Replacement with Community Homes and Services (EC 93) 71
Evaluation Criteria 93 ................................................................................................................................................ 71
Therapeutic Follow-Up of Class Members and Clients Discharged from METO/MSHSCambridge (EC 98) ........................................................................................................................................ 78
Evaluation Criteria 98 ................................................................................................................................................ 78
Modernization of Rule 40 (EC 103) ............................................................................................................ 92
Evaluation Criteria 103 .............................................................................................................................................. 92
Exception Reporting ........................................................................................................................... 93
Evaluation Criteria 25 ................................................................................................................................................ 93
Listing of Tables
Table 1: Monthly Summary of DHS 3564 Forms Completed....................................................................... 20 Table 2: Internal Reviewer Training ................................................................................................................ 23 Table 3: CSS Crisis Interventions ..................................................................................................................... 62
Listing of Figures
Figure 1: Successful Life Project Survey Responses No. 1............................................................................ 88 Figure 2: Successful Life Project Survey Responses No. 2............................................................................ 89
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016
Introduction
This is the Jensen Settlement Agreement (JSA) Comprehensive Plan of Action (CPA) – February 2017 Semi-Annual Compliance Report, created in response to the February 22, 2016 Order for Reporting on Settlement Agreement (Doc. Nos. 545, 545-1). The Department based this report on data, documentation and information from July 1, 2016 through December 31, 2016. This report addresses the following Evaluation Criteria (EC), as scheduled: 2, 3, 39, 41, 47-53, 64, 67-79, 93, 98, and 103. (See Doc. No. 545-1). This report also includes an Exception Report for EC 25, pages 94-95.
The Jensen/Olmstead Quality Assurance and Compliance Office (JOQACO) developed this report from information submitted and verified by parties identified as being responsible for each EC. The Responsible Party for each EC is identified by title.
JOQACO completed further verification and analysis of the information submitted by the Responsible Parties. JOQACO’s compliance monitoring and verification process is explained in more detail below. The update for each EC in this report includes a description of the verification efforts specific to that EC.
Background
The JSA (Doc. No. 136-1) is the result of a lawsuit filed against the Department in 2009, which alleged that residents of the former Minnesota Extended Treatment Options program were unlawfully and unconstitutionally secluded and restrained. The JSA allowed the Department and the Plaintiffs to resolve the claims in a mutually agreeable manner. The CPA (Doc. No. 283) is the implementation plan for the JSA. (See Doc. No. 284 at 2).
Components of the Department’s Internal Oversight System Jensen/Olmstead Quality Assurance and Compliance Office
As required by the CPA, the Department established the Jensen Implementation Office to manage and coordinate this plan. As previously reported, the Jensen Implementation Office moved to the Department’s Compliance Office in early 2016 and was renamed the Jensen/Olmstead Quality Assurance and Compliance Office (JOQACO). (See Doc. No. 589 at 5.)
JOQACO currently has four full-time professionals and one full-time support staff. The full-time professionals include a director, analyst, data analyst and the Jensen Internal Reviewer. Additionally, the Department’s Compliance Office assigned an attorney to JOQACO.
The Successful Life Project became part of JOQACO in April 2016. (See Doc. No. 589 at 58.) Staff for the Successful Life Project includes board-certified behavior analysts, a registered nurse and the Successful Life Project Supervisor. The Jensen Internal Reviewer provides clinical oversight of the
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016
behavior analysts. For additional information about the Successful Life Project, see also the status update for EC 98 in this report, beginning on page 79.
JOQACO Compliance Verification Process In the August 2016 Semi-Annual Compliance Report, JOQACO reported on the development and testing of a multi-approach process to verify information submitted to JOQACO and used in the Department’s reports to the Court. (See Doc. No. 589 at 5-9.) As explained in the August 2016 Report, this process uses a variety of compliance verification activities to supplement and monitor the program areas verification efforts. (Id.) The goal of these efforts is to ensure the Department informs its JSA and CPA quality assurance and compliance efforts with accurate, timely, and complete information. This serves to further improve the services the Department provides to persons with developmental disabilities.
As previously reported (Doc. No. 589 at 5-9), the verification process uses three primary approaches:
• Regular compliance updates from the program areas to JOQACO; • Internal program area verification procedures for the information provided to JOQACO; and • JOQACO on-site verification reviews involving interviews, observation, and document
reviews.1
JOQACO began to implement these verification activities in preparation for the August 2016 Report and continued to test and refine these efforts in preparation for this report.
Consistent with the compliance verification process described in the August 2016 Semi-Annual Report (Doc. No. 589 at 5-9), JOQACO started to receive compliance updates from program areas on a scheduled basis during this reporting period and, based on need and logistics, has refined this aspect of the process by adjusting the schedule for how frequently the program areas provide updates for specific ECs.2 During this reporting period, JOQACO also met with individual program areas to provide guidance for improving their internal data collection and verification efforts.
1 For services that do not involve a discrete “site,” such as supports provided by Community Supports Services or the Successful Life Project, these verification reviews involve follow-up with staff and external parties, such as case managers, providers, or guardians.
2 In the August 2016 Semi-Annual Report, the Department stated that compliance updates from the program areas were due to JOQACO on a monthly or bimonthly basis. JOQACO has since refined the schedule to require updates on a monthly or quarterly basis, depending on the EC.
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CASE 0:09-cv-01775-DWF-BRT Document 614-1 Filed 02/24/17 Page 6 of 94
Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016
In preparation for this report, JOQACO also engaged in verification activities. Consistent with the compliance verification process previously described, JOQACO verification activities for this report included the following efforts:
• Reviews of program area compliance updates and supporting documentation; • On-site visits to the four Minnesota Life Bridge treatment homes to interview staff and
persons served;3 and • Follow-up with case managers, providers, and guardians for persons discharged from
Minnesota Life Bridge during the reporting period and for random samples of persons served by Community Support Services and the Successful Life Project during the reporting period.
These verification efforts and the information obtained through these efforts are explained in more detail in the status updates for the relevant ECs.
Independent Subject Matter Experts As previously reported, the Department has, through the Request for Proposals process, developed a pool of qualified contractors to serve as Independent Subject Matter Experts. (Doc. No. 589 at 10.) The Independent Subject Matter Experts, through a master contract program, are to assist the Department in bringing significant improvements to the care and treatment of persons with developmental disabilities.
The Department posted the Request for Proposals in February 2016. An evaluation team comprised of JOQACO; the Court Consultants, Dr. Colleen Wieck and Roberta Opheim (the Consultants); and Department staff identified eight vendors to serve as Independent Subject Matter Experts in one or more of the following specialty service areas:
• Persons with Intellectual and Developmental Disabilities,4 complex needs, or challenging behaviors;
• Pharmacological reviews of medication regimens of persons with IDD with complex medical needs or challenging behaviors;
• Positive behavior practices; and • Qualitative and quantitative research design.
3 To ensure compliance with applicable regulations and Department policies regarding interaction with clients, JOQACO worked with the Department’s Institutional Review Board during this reporting period to obtain authorization and develop a protocol for interviewing Minnesota Life Bridge residents.
4 The term Intellectual and Developmental Disabilities (IDD) was used in the RFP because it is a term that is used by other states.
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016
The Department obtained signed contracts for each of these vendors before the end of the previous reporting period (June 30, 2016). On July 18, 2016, the Department executed all Independent Subject Matter Expert Master Contracts with the eight selected vendors. JOQACO manages the master contracts with the Independent Subject Matter Experts.
In September 2016, JOQACO, via e-mail, provided the Consultants and Plaintiffs’ Class Counsel with a document outlining the process for Independent Subject Matter Expert reviews. JOQACO updated this document in December 2016 and e-mailed the updated protocol to the Consultants and Plaintiffs’ Class Counsel.5
As the Department communicated, identification of the need for an Independent Subject Matter Expert review can generate from internal or external sources:
• Internally, by request of the Commissioner, Compliance Office, Department-wide Quality Assurance Leadership Team, Jensen Internal Reviewer, or JOQACO; and
• Externally, by request of parties, including Plaintiffs’ Class Counsel and the Consultants.
Both internal and external requests for Independent Subject Matter Expert review are submitted to JOQACO’s Director, who will review requests for approval and identify and contact pre-approved vendors in the appropriate specialty service area to determine availability. After confirming the Independent Subject Matter Expert’s availability, JOQACO will work with the Expert to develop a work order that details the scope of the Expert’s review, the Expert’s obligations, and measures of performance. The receipt of a fully executed work order authorizes the Independent Subject Matter Expert to begin work under the master contract.
In December 2016, JOQACO initiated the procedure for an Independent Subject Matter Expert review related to EC 90. The goal of this review is to develop recommendations that will guide Minnesota Life Bridge in providing integrated vocational options to residents in a more coordinated or
5 The only change between the version of the protocol sent to the Consultants and Plaintiffs’ Class Counsel in September 2016 and the version sent in December 2016 is that approval by the Department’s Quality Assurance Leadership Team is no longer required for internally triggered Independent Subject Matter Expert reviews. As JOQACO went through the process of initiating its first Independent Subject Matter Expert review, it found that this was an unnecessary bureaucratic step. It also posed a timing issue as the Quality Assurance Leadership Team meets once a month. The Quality Assurance Leadership Team will still receive final reports from Independent Subject Matter Experts and be involved in development and oversight of any action plans. This refinement did not change the process for externally triggered Independent Subject Matter Expert reviews, which never required approval by the Quality Assurance Leadership Team.
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systematic fashion. By the end of this reporting period, JOQACO and the Jensen Internal Reviewer developed an initial proposal for the review, met with Minnesota Life Bridge to discuss the proposal and contacted one of the pre-approved vendors with relevant expertise to inquire about availability.6 The Department will provide additional information about this process in the Department’s 2016 Annual Report, due to the Court on March 31, 2017. Agency-wide Quality Assurance Leadership Team The Quality Assurance Leadership Team continues to operate as described in previous reports, meeting on a monthly basis to monitor the quality of programs and services provided to people with disabilities across the Department. (See, e.g., Doc. Nos. 589 at 11-12; Doc. No. 553-1 at 5-6.)
6 The identified vendor submitted to JOQACO an initial proposed work order on January 17, 2017. JOQACO worked with the identified vendor to modify the scope of the work order and submitted the revised work order to the Department’s Contracts Unit for review on February 8, 2017.
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016
Evaluation Criteria State of Completion (Scheduled for Semi-Annual Report)
Settlement Agreement Section IV. METO Closure (EC) Evaluation Criteria 2
Facilities utilize person-centered planning principles and positive behavioral supports consistent with applicable best practices including, but not limited to the Association of Positive Behavior Supports, Standards of Practice for Positive Behavior Supports.
Responsible Party: Minnesota Life Bridge Manager
Current Status
Consistent with the requirements of EC 2, the Minnesota Life Bridge treatment homes7 utilize personcentered planning principles and positive behavioral supports at all stages of a resident’s treatment program, which starts with the development of the resident’s Person-Centered Description. The development of the Person-Centered Description is initiated via interview shortly after admission or earlier if the Minnesota Life Bridge Person-Centered Thinking/Training Facilitator can visit the person prior to admission. All eleven persons served at Minnesota Life Bridge treatment homes during the reporting period met with the Person-Centered Thinking/Training Facilitator to contribute to their Person-Centered Descriptions. All eleven persons served at Minnesota Life Bridge treatment homes during the reporting period also had a Person-Centered Plan that was developed through participation in Picture of a Life, PATH, or MAPS.8 Through these processes, persons worked collaboratively with the Person-Centered Thinking/Training Facilitator to create their vision for the future based on what is important to and for them. This information became the focus of the 30-day team meeting to guide the development of action steps towards achieving each person’s vision.9 The
7 There are four Minnesota Life Bridge treatment homes: Stratton Lake, Brobergs Lake, and the two Eagle Pointe homes. The term “treatment home” comes from the CPA. (See Doc. No. 283 at 2, 29.)
8 Picture of a Life, PATH (Planning Alternative Tomorrows with Hope), and MAPS (Making Action Plans) are processes that are commonly used for creating person-centered plans. These tools can be used to help the person think about what is important in their lives now and to think about what would make a good future.
9 For three of the five persons admitted to Minnesota Life Bridge during the reporting period (M4, M3 and S3) and two of the six persons admitted to Minnesota Life Bridge before this reporting period (G4 and T1), the 30day planning meeting was held outside the 30-day window. Minnesota Life Bridge explained that this was to accommodate the schedules of family members, guardians, and/or case managers and allow these parties to participate in the meeting.
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016
Person-Centered Description/Plan informs the objectives in each person’s Coordinated Services and Support Plan Addendum (CSSP-A).
During the reporting period, all eleven persons served at a Minnesota Life Bridge treatment home had their Person-Centered Description/Plan updated on a monthly basis after the initial team meeting. The person and their support team contribute to updates during monthly team meetings and the Minnesota Life Bridge Person-Centered Thinking/Training Facilitator reviews the PersonCentered Description/Plan at least monthly. Minnesota Life Bridge records the dates of updates on the first page of the document. Minnesota Life Bridge also saves each version of the Person-Centered Description/Plan on the program’s network drive. Additionally, Minnesota Life Bridge staff colorcode revisions and additions to the plan, making it easier to identify who made which updates and when.
All eleven persons served at a Minnesota Life Bridge treatment home during the reporting period have a Functional Behavior Assessment on file10 and Positive Behavior Support Plan on file. 11 Both the Functional Behavior Assessment and the Person-Centered Description/Plan directly inform the Positive Behavior Support Plan.12

10 Information provided by the Functional Behavior Assessment includes the following: (a) psychological, health and medical factors that may influence behaviors, (b) preferences, (c) ways in which the person communicates with others, (d) description of challenging behaviors, (e) context and triggers for challenging behaviors, (f) typical consequences of and past attempts to treat challenging behaviors, and (g) overall hypothesis about the function or causes of the challenging behavior.

11 In the August 2016 Semi-Annual Report, the Department noted that, as of the end of the previous reporting

period, Minnesota Life Bridge had yet to develop a Positive Behavior Support Plan for

(Doc. No. 589 at 15.) The

Jensen Internal Reviewer and JOQACO, however, recommended that a Positive Behavior Support Plan be

developed

and be in place no later than September 15, 2016. (Id.) JOQACO verified that Minnesota Life

Bridge met this deadline.

12 The information provided by the Positive Behavior Support Plan includes the following: (a) person- centered information, which drives development of support strategies, (b) clear operational definitions of behaviors to be increased as well as decreased, (c) a listing of contexts, antecedents, and consequences that influence the

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CASE 0:09-cv-01775-DWF-BRT Document 614-1 Filed 02/24/17 Page 11 of 94
Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016 The following is an example of how Minnesota Life Bridge uses person-centered principles and positive behavior supports.
Verification The Responsible Party verified the information submitted to JOQACO for EC 2 through review of Minnesota Life Bridge residents’ Person-Centered Descriptions/Plans, Person-Centered Planning Meeting minutes, Functional Behavior Assessments, and Positive Behavior Support Planning documents. The Responsible Party also provided JOQACO with copies of these documents. During this reporting period, JOQACO monitored and verified the use of person-centered planning principles and positive behavior supports at Minnesota Life Bridge treatment homes, consistent with EC 2, in multiple ways. The first of these compliance monitoring and verification methods involved the activities of the Jensen Internal Reviewer. The Jensen Internal Reviewer monitored the use of positive behavior support strategies and consistency with applicable best practices on an ongoing basis through review of support strategies Minnesota Life Bridge used in response to occurrences of challenging behavior. The Jensen Internal Reviewer participated in weekly calls with Minnesota Life Bridge to review progress on use of positive supports, as described in the status update for EC 39, page 19. The second method used by JOQACO to provide compliance monitoring and verification of information reported for EC 2 was the review of each Minnesota Life Bridge treatment home resident’s Person-Centered Description/Plan, Functional Behavior Assessment, Positive Behavior Support Plan, CSSP-A, and other related documents, such as the minutes of residents’ monthly team
occurrence of the behaviors of concern, (d) functional skills to be taught with instructional strategies, (e) support strategies, (f) data collection, and (g) criteria to determine plan success.
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CASE 0:09-cv-01775-DWF-BRT Document 614-1 Filed 02/24/17 Page 12 of 94 Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report Reporting Period: July 1, 2016 to December 31, 2016
meetings. Through review of these documents, JOQACO verified that all residents had a PersonCentered Description/Plan, Positive Behavior Support Plan, Functional Behavior Assessment, and CSSP-A; that all residents’ Person-Centered Descriptions/Plans were initiated within 30 days; that residents’ Person-Centered Descriptions/Plans were updated on at least a monthly basis; and that residents’ Positive Behavior Support Plans were reviewed and updated periodically, as needed. Team involvement in the planning process was verified by the minutes of residents’ monthly team meetings and the planning documents themselves. The third way that JOQACO provided compliance monitoring and verification of the information reported for EC 2 is through on-site visits to the Minnesota Life Bridge treatment homes. During this reporting period and the preparation of this report, JOQACO visited each of the four treatment homes. During these visits, JOQACO staff or the Jensen Internal Reviewer interviewed residents, if they were willing to be interviewed, as well as Minnesota Life Bridge staff. In these interviews, JOQACO and the Jensen Internal Reviewer focused on specific concerns that had been identified by JOQACO’s review of residents’ documentation or that were identified by the residents themselves.
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CASE 0:09-cv-01775-DWF-BRT Document 614-1 Filed 02/24/17 Page 13 of 94
Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016

JOQACO also interviewed two direct support staff at the

home in July about staff

training and how updates to key resident documents and plans are communicated to staff who are

not involved in residents’ planning meetings. Both staff stated that, on a weekly basis, they receive

and review updates to residents’ Positive Behavior Support Plans, resident progress notes, or minutes

of resident team meetings.

In July 2016, JOQACO visited

primarily for the purpose of addressing

concerns that JOQACO had identified relating to staff training. During this visit, JOQACO

interviewed

staff, who stated that staff review of updated client information—including

updates regarding resident positive behavior supports—is standard practice at the home.

JOQACO spoke with two

staff, who provided paper copies of the residents’

Person-Centered Description/Plan and Positive Behavior Support Plan. Although JOQACO has

confirmed that the residents in the home have Transition Summaries and Plans, the staff who were

interviewed did not have copies of the Transition Summaries or know where one was available on-

site. It also was not clear from the documentation or conversations with staff how the residents’ daily

activities aligned with what was in the Person-Centered Plan. For information on how JOQACO is

following up on these opportunities for performance improvement, see the “Summary of Verification

Findings and Areas for Improvement” below, pages 15-16.

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13 This information was included in the October 2016 Jensen Internal Reviewer Monthly Report, which the Department distributed to the Court on November 15, 2016 (see page 6 of that report). 14 This information was included in the January 2017 Jensen Internal Reviewer Monthly Report, which the Department distributed to the Court on February 15, 2017 (see pages 4-8 of that report).
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Reporting Period: July 1, 2016 to December 31, 2016
Summary of Verification Findings and Areas for Improvement
In summary, the compliance monitoring and verification activities of JOQACO and the Jensen Internal Reviewer confirm the use of person-centered planning principles and positive behavior supports at the Minnesota Life Bridge treatment homes consistent with applicable best practices, as required by EC 2. Through their compliance monitoring and verification activities, JOQACO and the Jensen Internal Reviewer have also identified opportunities for performance improvement that relate to the following:
• Completeness or clarity of transition plan documentation (opportunity for performance improvement identified through review of S5’s transition documents in July 2016);
• Direct support staff awareness of residents’ transition plans (opportunity for performance improvement identified through interview of staff in December 2016);
• Increased focus on acquisition of employment or employment-related skills (opportunity for performance improvement identified through the Jensen Internal Reviewer’s on-site visit with T1); and
• Clarity of documentation and staff understanding of how residents’ daily activities align with what is in the Person-Centered Plan (opportunity for performance improvement identified through interview of staff in December 2016).
Because the first two of these areas for performance improvement relate to the transition planning ECs, specifically EC 48, the follow-up efforts in these areas are discussed in more detail in the EC 48 Verification section of this report, page 33.
The third of these areas for performance improvement relates to EC 90, which requires the Facilities to provide integrated vocational options to residents. As of the end of this reporting period, JOQACO and the Jensen Internal Reviewer had initiated the procedure for an Independent Subject Matter Expert review to develop recommendations that will guide Minnesota Life Bridge in providing integrated vocational options to residents in a more coordinated and systematic fashion. Because EC 90 is reported annually (see Doc. Nos. 545, 545-1), the Department will provide additional information about this process in the 2016 Annual Report, due to the Court on March 31, 2017.
With respect to the fourth opportunity for performance improvement, JOQACO has shared its concerns with Minnesota Life Bridge regarding the lack of clarity in documentation or staff understanding of how residents’ daily activities aligned with what was in their Person-Centered Plans. JOQACO is in the process of implementing additional follow-up and has requested an action plan, due February 24, 2017, to address this opportunity for performance improvement. This is also being addressed by ongoing activities of JOQACO and the Jensen Internal Reviewer relating to the creation and maintenance of a therapeutic environment at Minnesota Life Bridge. After meetings with Minnesota Life Bridge supervisors and staff in September and October 2016, JOQACO and the
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Reporting Period: July 1, 2016 to December 31, 2016
Jensen Internal Reviewer identified a list of factors associated with the creation and maintenance of a therapeutic environment, including factors that address whether the person is participating in meaningful activities important to that person. The checklist is being piloted by the Jensen Internal Reviewer’s Rhythm of the Day Assessments to help provide guidance to Minnesota Life Bridge staff about how they can enhance services for Minnesota Life Bridge residents.
Evaluation Criteria 3 Facilities serve only "Minnesotans who have developmental disabilities and exhibit severe behaviors which present a risk to public safety.”
Responsible Party: Minnesota Life Bridge Manager
Current Status
The EC 3 requirement that Minnesota Life Bridge treatment homes admit only “Minnesotans who have developmental disabilities and exhibit severe behaviors which present a risk to public safety” became Minnesota Life Bridge policy and practice in late 2013. During this reporting period, Minnesota Life Bridge used the following process to determine whether persons referred to Minnesota Life Bridge met the criteria in EC 3.
To determine whether a person met the first admission criterion—being a person with a developmental disability—the Minnesota Life Bridge Manager,15 with oversight by the Department’s Community Based Services Short-term Residential Program Manager, reviewed professional assessments or court documents to determine if the person has been diagnosed with a developmental disability.
To determine whether a person met the second admission criterion—exhibiting severe behaviors, which present a risk to public safety—the Minnesota Life Bridge Manager looked for documented history of the following behaviors:
1. Assault or aggression toward others; 2. Extreme property destruction creating a likelihood of harm to others; 3. Sexual aggression or behavior that targets others; 4. Theft of motor vehicles;
15 The Minnesota Life Bridge Transition Coordinator and Clinical Coordinator participate in this process. During this reporting period, however, the persons in these positions left Minnesota Life Bridge. In January 2017, Minnesota Life Bridge extended an offer, which was accepted, for the Clinical Coordinator position; the new Clinical Coordinator is expected to start in March 2017. Despite recruitment efforts, Minnesota Life Bridge has not yet identified a qualified person to fill the Transition Coordinator position.
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016
Evaluation Criteria 39
In consultation with the Court Monitor during the duration of the Court's jurisdiction, DHS designates one employee as Internal Reviewer whose duties include a focus on monitoring the use of, and on elimination of restraints.
Responsible Party: JOQACO Director
Current Status
The current Jensen Internal Reviewer has been in this role since December 1, 2015. Consistent with EC 39, the Jensen Internal Reviewer’s duties, described in more detail below, include a focus on monitoring the use and elimination of restraints at the Minnesota Life Bridge treatment homes. The Jensen Internal Reviewer also monitors and follows up on the use of pro re nata (PRN) medication at the request of the client and 911 calls at the Minnesota Life Bridge treatment homes.
Following each incident of emergency use of manual restraint (EUMR), 911 call, or use of PRN medication at the request of the client, Minnesota Life Bridge internal procedures require Minnesota Life Bridge clinical staff to prepare a set of recommendations for improved positive supports to reduce the risk of recurrence of the challenging behavior that led to the incident. Minnesota Life Bridge sends the Internal Review form, which includes this set of recommendations, to the Jensen Internal Reviewer.17 The Jensen Internal Reviewer then verifies that these recommendations are consistent with best practices and likely to be effective. The Jensen Internal Reviewer provides feedback to Minnesota Life Bridge as appropriate and monitors progress toward completing these recommendations. The Jensen Internal Reviewer reports monthly on Minnesota Life Bridge’s efforts to respond to incidents in the Jensen Internal Reviewer Monthly Report. During the reporting period, the Jensen Internal Reviewer Monthly Reports were sent to the Court, the Consultants, Plaintiffs’ Class
17 During November and December 2016, Minnesota Life Bridge failed to meet internal deadlines for developing recommendations for improved positive supports following incidents. The Jensen Internal Reviewer reported on this issue in the November 2016 and December 2016 Jensen Internal Reviewer Monthly Reports, noting that a primary contributor was the turnover of clinical staff at Minnesota Life Bridge. As explained in these Monthly Reports, the Jensen Internal Reviewer and JOQACO provided extensive input and guidance to help Minnesota Life Bridge remedy this issue and prevent its recurrence. As of January 6, 2017, all outstanding reviews had been completed, submitted to, and approved by the Jensen Internal Reviewer.
The Department will provide additional detail about this issue and efforts to prevent its recurrence in the status update for EC 38 (“Other reports, investigations, analyses and follow up were made on incidents and restraint use”) in the 2016 Annual Report, due to the Court on March 31, 2017.
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Reporting Period: July 1, 2016 to December 31, 2016 Counsel, and the Court Monitor, as required by the Court’s March 18, 2016 Order (Doc. No. 551 at 2425). The Jensen Internal Reviewer conducts weekly phone calls with the Minnesota Life Bridge Clinical Coordinator, Information Coordinator, Community Residential Supervisors, and the Behavior Analysts to discuss and review Minnesota Life Bridge’s efforts to complete the recommendations developed in response to incidents of EUMR, 911 calls, or use of PRNs at the request of the resident and the progress toward reducing the risk of recurrence. The Jensen Internal Reviewer instituted this call to verify that Minnesota Life Bridge was making steady progress toward completing the recommendations and preventing future incidents. The Minnesota Life Bridge Information Coordinator facilitates the weekly calls and maintains a spreadsheet that tracks Minnesota Life Bridge’s progress toward completing the recommendations for follow-up to incidents. The Jensen Internal Reviewer provides this spreadsheet as an attachment to each Jensen Internal Reviewer Monthly Report. The Jensen Internal Reviewer also utilizes the weekly call with Minnesota Life Bridge as an opportunity to provide ongoing guidance in the improvement of positive supports and to act as a source of information and referral. For example, during this reporting period, the Jensen Internal Reviewer provided guidance to ensure that Minnesota Life Bridge staff consider the potential functions of resident behaviors. The Jensen Internal Reviewer also provided guidance to Minnesota Life Bridge staff about incorporating mental wellness into support planning and providing instruction in relaxation and coping skills for residents. During this reporting period, Minnesota Life Bridge reported a total of 75 incidents involving PRN at the request of the client, a 911 call, and/or EUMR. Minnesota Life Bridge is required to report incidents involving the use of such emergency behavioral interventions through completion and submission of the DHS 3654 Form. Table 1 presents a summary of these incidents.
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Reporting Period: July 1, 2016 to December 31, 2016
Minnesota Life Bridge reported in DHS 3654 forms and other incident notifications and reporting forms. This database has been in place since early 2016, before the beginning of this reporting period. JOQACO compared Minnesota Life Bridge incidents tracked in its database against the incident database maintained by Minnesota Life Bridge and reviewed the contents of the reports for consistency, completeness, and issues that required follow-up. JOQACO also maintained copies of the Jensen Internal Reviewer Monthly Reports, which report the Jensen Internal Reviewer’s activities regarding follow-up to incidents. JOQACO reconciled the data reported in this section with the DHS 3654 forms and other incident reports filed during the reporting period, the information in JOQACO’s database, and the Jensen Internal Reviewer Monthly Reports.
Follow-up to Previous Report
In its June 21, 2016 Order, the Court requested information on “whether any training is provided at the facilities to educate staff on the impropriety of using 911 calls in lieu of positive behavioral supports for the purpose of implementing prohibited restraints.” (Doc. No. 578 at 6 & n.4.) The Department provided the requested information in the August 2016 Semi-Annual Report. (Doc. No. 589 at 75-76.) In that report, the Jensen Internal Reviewer recommended that Minnesota Life Bridge develop policies specific to the appropriate utilization of 911, that training on these policies be added to the training for [Minnesota Life Bridge] staff, and that guidance specific to the appropriate utilization of 911 be added to residents’ Positive Behavior Support Plans. (Id.)
To address these recommendations, during this reporting period, Minnesota Life Bridge clarified their policies and revised staff training to emphasize the impropriety of using 911 calls in lieu of positive behavior supports. The revised training, which the Jensen Internal Reviewer reviewed and approved, has been provided to staff at the four Minnesota Life Bridge treatment homes, and provision of this training has been verified by JOQACO through review of training transcripts. The Jensen Internal Reviewer and JOQACO also verified through review of residents’ Positive Behavior Support Plans that Minnesota Life Bridge is now providing guidance related to use of 911 calls in residents’ Positive Behavior Support Plans. All Minnesota Life Bridge staff are trained on residents’ Positive Behavior Support Plans. The Jensen Internal Reviewer finds these procedures sufficient to address concerns about educating Minnesota Life Bridge staff on the appropriate use of 911.
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016
Evaluation Criteria 41
The Internal Reviewer will consult with staff present and directly involved with each restraint to address: 1) Why/how deescalation strategies and less restrictive interventions failed to abate the threat of harm; 2) What additional behavioral support strategies may assist the individual; 3) Systemic and individual issues raised by the use of restraint; and 4) the Internal Reviewer will also review Olmstead or other issues arising from or related to, admissions, discharges and other separations from the facility
Responsible Party: JOQACO Director
Current Status
EC 41 directs the Jensen Internal Reviewer to consult with staff involved with incidents of restraint at the Facility to address why less restrictive interventions or de-escalation strategies failed, what additional behavioral support strategies may assist the person, and systemic or individual issues raised by the use of restraints. This consultation and review occurs through the process described above in the status update for EC 39, pages 18-19.
EC 41 also directs the Jensen Internal Reviewer to review Olmstead or other issues arising from or related to admissions, discharges, and other separations from the Facility. During this reporting period, the Jensen Internal Reviewer reviewed each Minnesota Life Bridge admission or discharge and included this review in the Jensen Internal Reviewer Monthly Report with a summary of the implications of that admission or discharge for Minnesota’s Olmstead vision. Since July 2016, the Jensen Internal Reviewer’s review of admissions has also included an assessment of whether the person meets the criteria for admission to Minnesota Life Bridge set out in EC 3. For more information about these assessments see the Verification section for EC 3, pages 17-18.
During this reporting period, the Jensen Internal Reviewer also provided training to internal Department staff and external audiences, including providers and lead agency staff (counties and health plans) on a variety of topics relevant to support of Minnesota Life Bridge residents and Jensen Class Members. These trainings aim to increase clinical expertise in the community, which in turn will help to address the challenge of timely transition for Minnesota Life Bridge residents—a challenge that has been noted in the Jensen Internal Reviewer Monthly Reports. The training sessions that the Jensen Internal Reviewer provided during the reporting period are summarized in Table 2.
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Reporting Period: July 1, 2016 to December 31, 2016

Table 2: Jensen Internal Reviewer Training

Date

Topic

Audience

7/18/2016 Positive Identity Development

Community care providers

7/18/2016 7/20/2016 7/29/2016 11/22/2016 12/6/2016 8/1/2016
9/7/2016 9/29/2016 11/3/2016
11/28/2016

Training related to using positive supports, provided through work with the Interim Review Panel
Positive behavior supports, including mental health supports and trauma informed care Positive Identity Development
Intellectual disabilities Clinical certification in positive supports
Teaching people with Intellectual and Developmental Disabilities to relax

Community care providers
Reinventing Quality Conference attendees
Arc of Greater Twin Cities Health care coordinators National Association for the Dually Diagnosed (NADD) International Conference Minnesota Life Bridge clinical staff

During this reporting period, the Jensen Internal Reviewer also identified a knowledge gap among some clinicians providing supports through the Successful Life Project regarding suicidality in persons with intellectual or developmental disabilities. In response, JOQACO organized a webinar in December 2016 featuring Dr. Rick Blumberg, a nationally recognized expert in the provision of mental health supports to persons with intellectual or developmental disabilities. JOQACO offered the webinar to staff at the Successful Life Project, Community Support Services, and Minnesota Life Bridge. In preparation for the webinar, the Jensen Internal Reviewer provided input to Dr. Blumberg to assure that the content presented matched with clinical support needs.
Additionally, the Jensen Internal Reviewer is an active participant in the following Department work groups or committees with activities that implicate the JSA:
• Disability Services Division/Direct Care and Treatment Project Core/Steering Team • Interim (PSTP) Review Panel • Lead Agency Review Subcommittee • Minnesota Association of Positive Behavior Support • Person-Centered Planning and Equity
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Reporting Period: July 1, 2016 to December 31, 2016
• Person-Centered Work Group • Positive Supports Gathering Planning Committee • Positive Behavior Support Leadership Group • Quality Assurance Leadership Team
Through these training and committee activities, the Jensen Internal Reviewer has sought to increase relevant clinical expertise in the community and foster positive relationships with the services and providers that provide support to Minnesotans with developmental disabilities—including Jensen Class Members and current or former Minnesota Life Bridge residents.
Verification
The Jensen Internal Reviewer was personally involved in the activities reported for this EC. See also the Verification section for EC 39, pages 20-21.
Settlement Agreement Section VIII. Transition Planning (EC 47-53) Evaluation Criteria 47
The State undertakes best efforts to ensure that each resident is served in the most integrated setting appropriate to meet such person's individualized needs, including home or community settings. Each individual currently living at the Facility, and all individuals admitted, will be assisted to move towards more integrated community settings. These settings are highly individualized and maximize the opportunity for social and physical integration, given each person's legal standing. In every situation, opportunities to move to a living situation with more freedom, and which is more typical, will be pursued.
Responsible Party: Minnesota Life Bridge Manager
Current Status
EC 47 relates to whether the Department has engaged in best efforts to ensure that residents of the Minnesota Life Bridge treatment homes are served in the most integrated setting appropriate to meet their individual needs, and that each resident is assisted to move toward more integrated community settings that are highly individualized and maximize the opportunity for social and physical integration.
Minnesota Life Bridge serves residents in community-based treatment homes. As described in more detail in this report under ECs 2 and 48-53, these residents receive person-centered supports in these community-based settings while they plan, with the assistance of their support teams and Minnesota Life Bridge, for transition to the most integrated setting appropriate to their needs and legal status. Minnesota Life Bridge begins the person-centered and transition planning processes upon admission to the treatment homes and these processes continue throughout the person’s stay at these sites. The person-centered and transition planning processes not only guide the provision of supports while the
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Reporting Period: July 1, 2016 to December 31, 2016
person is at Minnesota Life Bridge, but also inform Minnesota Life Bridge’s efforts to assist the person in moving toward more integrated community settings. More detailed information about the personcentered and transition-planning processes at Minnesota Life Bridge and Minnesota Life Bridge’s efforts to pursue the appropriate discharge of residents to the most integrated setting that is consistent with the person’s needs and preferences are provided in the status updates in this report for ECs 2 and 48-53, pages 9-16 and 25-43.
Verification
Refer to the Verification sections for ECs 2 and 48-53, pages 11-16, 30-33, 35, 36, 39-40, 41-42, and 43.
Evaluation Criteria 48
The State actively pursues the appropriate discharge of residents and provided them with adequate and appropriate transition plans, protections, supports, and services consistent with such person's individualized needs, in the most integrated setting and to which the individual does not object.
Responsible Party: Minnesota Life Bridge Manager
Current Status
EC 48 relates to the Department’s active pursuit of appropriate discharge for residents of the Minnesota Life Bridge treatment homes. The process of transition planning is central to the pursuit of appropriate discharge, informing the steps taken to identify and explore potential providers, homes, and communities, as well as to determine the services, supports, and protections necessary to facilitate a successful transition. In other words, transition planning is critical to defining what an appropriate discharge looks like for each person and to make sure that the needs and preferences of the person are at the center of the discharge process. The CPA itself recognizes this; notably, the Actions under EC 48 focus on transition planning. 19 (See Doc. No. 283 at 48.1-2.)
The transition planning process begins upon admission with the person’s development of a description of their desired life through the PATH, MAPS, or Picture of a Life process, which are supported by the Minnesota Life Bridge Person-Centered Thinking/Training Facilitator. Through this process, the person identifies where they would like to live, what kind of home they would like, with whom they would like to live, what they want to do for work and recreation, and if or how they would like their family to be involved. This picture-guided description of the person’s desired life is translated into written documentation in the Person-Centered Description/Plan and Transition Plan.
19 The term “Actions” comes from the CPA. The CPA states that “[t]he ECs set forth the outcomes to be achieved and are enforceable” while “[t]he Actions under the ECs are not enforceable requirements.” (Doc. No. 283 at p. 1.)
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Reporting Period: July 1, 2016 to December 31, 2016 The draft transition documents are intentionally not complete until the person moves from Minnesota Life Bridge. Best practice encourages the support team to finish the Transition Plan together. Some areas that address how a person is best supported are left blank until the person’s future provider is identified. This is so the description of supports in the Transition Plan is in the context of what the person needs at the time of transition and takes into account the specific provider and home. The transition planning process continues throughout the person’s stay at Minnesota Life Bridge with the person, their support team, and Minnesota Life Bridge working together to update and further develop the Transition Plan at monthly team meetings. See the EC 2 status update in this report, pages 9-11, for additional information on these activities during the reporting period. During this reporting period, all eleven persons served at Minnesota Life Bridge treatment homes had Transition Plans that were updated on a monthly basis. Four out of the five people admitted during the reporting period had their initial Transition Plan created within 30 days of admission. See the Verification section for this EC, page 30, for additional information. During this reporting period, Minnesota Life Bridge’s efforts to pursue the appropriate discharge of residents resulted in the transition of four people (J2, S5, G4, and B4) to community-based homes. Minnesota Life Bridge facilitated the discharge of these residents through adequate and appropriate transition plans, protections, supports, and services consistent with their individualized needs in accordance with EC 48. The following provides additional context for each discharge. See also the EC 48 Verification section, pages 32-33, for additional information obtained by JOQACO regarding these discharges.
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20
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Efforts and progress toward discharge for other treatment home residents For the other seven residents served at Minnesota Life Bridge treatment homes during this reporting period, Minnesota Life Bridge actively worked with the person and their team to pursue appropriate discharge through the transition planning process. JOQACO asked Minnesota Life Bridge to provide client-specific information for one of these residents at each of the four treatment homes (if there was more than one resident at a treatment home, JOQACO randomly selected one person for this purpose). The following is a summary of progress and efforts toward appropriate discharge for each of these residents during the reporting period:
21
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Verification The Responsible Party verified information submitted to JOQACO by reviewing person-centered planning and transition planning documentation, progress reports, minutes of monthly team meetings for residents, and 45-day reviews for people transitioned out of Minnesota Life Bridge. The Responsible Party informed JOQACO that, during this reporting period, the Minnesota Life Bridge Person-Centered Thinking/Training Facilitator did not create one resident’s initial Transition Plan within 30 days after admission. Although the Person-Centered Thinking/Training Facilitator had completed the initial work of obtaining person-centered information within the first 30 days which was used to create the Person-Centered Description/Plan, this information was not transferred into the initial Transition Plan document during that time period. The Person-Centered Thinking/Training Facilitator reported this was an oversight. JOQACO confirmed with Minnesota Life Bridge that they have since provided instruction to the Person-Centered Thinking/Training Facilitator to improve the timely creation of initial Transition Plans.
22 The 2009 Minnesota Legislature enacted a moratorium on the growth of licensed adult and child corporate foster care settings. The Department can exempt new corporate foster care or community residential settings from the moratorium under certain conditions.
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Reporting Period: July 1, 2016 to December 31, 2016
JOQACO reviewed the supporting documentation submitted by the Responsible Party to verify the information reported, including the existence of Transition Plans for each Minnesota Life Bridge treatment home resident, the timeliness of transition plans (refer to the previous paragraph), the number and timing of discharges, the circumstances surrounding discharges (pages 26-29), and the summaries of progress toward discharge for the random sample of residents (pages 29-30).
Additionally, the Jensen Internal Reviewer reviewed all discharges from Minnesota Life Bridge and reported on these reviews in the Jensen Internal Reviewer Monthly Reports. During this reporting period, the Jensen Internal Reviewer evaluated:

As has been acknowledged in previous CPA Compliance Reports (Doc. Nos. 531, 589) and the Jensen

Internal Reviewer Monthly Reports, timely discharge from Minnesota Life Bridge remains a challenge

due mainly to community capacity for serving people with challenging behaviors, complex mental

health needs, or legal issues. During this reporting period, while two of the four persons

discharged—

—were discharged after 3-4 months, the other two—

—were at

Minnesota Life Bridge for over a year. This issue has been a focus for improvement by the Jensen

Internal Reviewer and JOQACO. In August 2016, the Jensen Internal Reviewer interviewed

Minnesota Life Bridge staff and administration to identify factors that are contributing to long lengths

of stay and in November 2016 convened a meeting between Minnesota Life Bridge and JOQACO to

identify strategies for reducing the time to discharge and reducing the likelihood of a post-Minnesota

Life Bridge community placement failing due to challenging behaviors.23 The Jensen Internal

Reviewer and JOQACO continue to monitor length of stay at Minnesota Life Bridge and help

Minnesota Life Bridge identify and overcome the barriers to timely discharge.

23 Information about these efforts is included in the August 2016 Jensen Internal Reviewer Monthly Report (distributed to the court September 14, 2016, page 6) and November 2016 Jensen Internal Reviewer Monthly Report (distributed to the Court December 15, 2016, page 6).
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Reporting Period: July 1, 2016 to December 31, 2016
For information obtained from on-site visits to Minnesota Life Bridge regarding person-centered planning and transition planning, refer to the Verification section for EC 2, pages 11-16.
Follow-up Regarding Discharges
JOQACO also followed up with the Minnesota Life Bridge site manager or supervisor, the case manager, the guardian, and the new residential provider for each of the four people who transitioned out of Minnesota Life Bridge treatment homes during this reporting period. This was done to further verify that Minnesota Life Bridge pursued the appropriate discharge of residents through transition planning. JOQACO received responses from the Minnesota Life Bridge site manager or supervisor for each person who transitioned, as well as three case managers and one provider. Although JOQACO contacted the guardians for each of the four people who transitioned, none responded to JOQACO’s request for follow up.
For those who responded, the consensus was that the Transition Plan was useful because it described in detail the person’s wants and needs so that the new provider had a framework with which to begin supporting the person. By reviewing and discussing the Transition Plan, Minnesota Life Bridge, the case manager, and the provider were able to determine specific ways to address things that were important to and for the person. Respondents noted that this was not always an easy process, as Minnesota Life Bridge operates differently from other providers. More specifically, case managers and providers were not fully expecting the detail and level of involvement that was expected of them in the Minnesota Life Bridge transition process. Over time, however, respondents came to recognize the usefulness of the process. For example, one respondent stated, “At first [there were] so many meetings. Once it got going, we worked on the [T]ransition [P]lan, which was very helpful, [and] it made sense. [Minnesota Life Bridge] provided such detail that the transition went well.” Case managers and providers also expressed appreciation for the person and Minnesota Life Bridge staff providing training at the new home.
For one person, the case manager felt that Minnesota Life Bridge was not very clear about the person’s level of behaviors and needs; the new provider was unable to provide the level of supports needed and that first placement quickly failed with the person hospitalized. However, that case manager liked how well Minnesota Life Bridge worked with the person and would like to have that replicated in a different placement.
JOQACO also asked respondents if the Transition Plan was used in the creation of supports in the person’s new home. The answers varied. One case manager thought the new provider did nothing to help the person achieve goals. In another instance, a provider stated, “We have been able to have an extremely successful transition” and that Minnesota Life Bridge “did an absolutely fantastic job on the [Person-Centered Plan]” which provided a “good setup” for training new staff. The case manager for a different person stated that the new provider has been delivering supports consistent with the
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Reporting Period: July 1, 2016 to December 31, 2016
person’s preferences identified in the Transition Plan, including addressing the person as they prefer and allowing the person time to respond—“things they learned from Minnesota Life Bridge.”
JOQACO shared the feedback it received regarding transitions with Minnesota Life Bridge to be used in ongoing performance improvement efforts—particularly the concern raised by one case manager that Minnesota Life Bridge did not clearly communicate the full extent of the person’s behaviors and level of need to the new provider and the comments from case managers and providers indicating that they did not fully anticipate the level of involvement that Minnesota Life Bridge expected of them during the transition process. Additionally, JOQACO is following up with the case manager who stated that the new provider did nothing to help the person achieve their goals in order to better understand the case manager’s concerns and determine appropriate follow-up.
Follow-up to Prior Report—Opportunities for Performance Improvement
In the August 2016 Semi-Annual Report, JOQACO identified opportunities for performance improvement relating to transition planning, including timely initiation of Transition Plans, clearer documentation in Transition Plans regarding options that have been pursued, outcomes, and any barriers to transition; and a standardized process for transition planning to clarify who is responsible for each task and the expected timeline.24 (Doc. No. 589 at 30.) JOQACO communicated these opportunities for improvement to Minnesota Life Bridge and requested an Action Plan by September 15, 2016. Minnesota Life Bridge timely submitted the Action Plan and confirmed that the steps were completed. For example, Minnesota Life Bridge developed and is piloting a checklist tool to be used during transition planning meetings to give everyone involved a clearer picture of the tasks that need to be completed before the person’s transition and to help standardize the process. Additionally, Minnesota Life Bridge provided clarification to staff about expectations regarding transition plan documentation to allow for better and more complete information when discussing what services are important to and important for the person. Over the course of this reporting period, JOQACO has observed improvement in Minnesota Life Bridge Transition Plans and Summaries, including clearer and more detailed documentation of options pursued, identification of who is responsible for each task, and identification of when the task is to be completed. JOQACO continues to monitor the completion and clarity of Minnesota Life Bridge transition documents to ensure that such improvements are being implemented consistently.
24 Because these issues were identified during the early months of this reporting period, some of the same or similar opportunities for improvements are also raised by the information contained in this report (e.g., EC 2, page 15, and EC 48, page 27).
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Reporting Period: July 1, 2016 to December 31, 2016
Evaluation Criteria 49
Each resident, the resident's legal representative and/or family to the extent permitted by law, has been permitted to be involved in the team evaluation, decision making, and planning process to the greatest extent practicable, using whatever communication method he or she (or they) prefer.
Responsible Party: Minnesota Life Bridge Manager
Current Status
EC 49 applies to the Minnesota Life Bridge treatment homes and relates to the involvement of the resident and the resident’s legal representative and/or family in the person-centered and transition planning processes. Consistent with Actions25 49.1 and 49.2, all eleven persons served at Minnesota Life Bridge treatment homes during the reporting period had Person-Centered Descriptions/Plans and Transition Plans that were developed through the participation of the person, with the assistance of the Minnesota Life Bridge Person-Centered Thinking/Training Facilitator and the person’s support team. All persons admitted to Minnesota Life Bridge during the reporting period had the personcentered planning process initiated within 30 days of admission.26
Consistent with Action 49.1, Minnesota Life Bridge encourages and facilitates the involvement not only of the person, but also of the person’s legal representative and/or family (as permitted by law and desired by the person) in the planning and decision-making process. Minnesota Life Bridge extends planning meeting invitations to all interested parties and accommodates participation by scheduling meetings around family members or guardians’ schedules. Minnesota Life Bridge also facilitates family member participation by holding the planning meeting at a location that allows for easy access for participants. Family members and guardians can also call into planning meetings using Minnesota Life Bridge’s conference call account. To allow persons participating in meetings remotely to better hear and be heard, Minnesota Life Bridge staff use a wireless Bluetooth speakerphone. During this reporting period, these accommodations were used as necessary.
25 The term “Actions” comes from the CPA. The CPA states that “[t]he ECs set forth the outcomes to be achieved and are enforceable” while “[t]he Actions under the ECs are not enforceable requirements.” (Doc. No. 283 at p. 1.)
26 Three of the five individuals admitted during the reporting period (S3, M3, and M4) had their 30-day planning meeting more than 30 days after admission in order to accommodate the schedules of family members or case managers. These individuals’ Person-Centered Descriptions and Plans, however, were initiated within 30 days of admission.
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Verification
The Responsible Party verified information submitted to JOQACO by reviewing the Monthly Progress Review Meeting minutes for residents of the Minnesota Life Bridge treatment homes.
JOQACO compared the information submitted by the Responsible Party with resident meeting notes, and verified consistency between the information reported and the supporting documentation.
Evaluation Criteria 50 To foster each resident's self-determination and independence, the State uses person-centered planning principles at each stage of the process to facilitate the identification of the resident's specific interests, goals, likes and dislikes, abilities and strengths, as well as support needs.
Responsible Party: Minnesota Life Bridge Manager
Current Status
EC 50 requires the Department to use person-centered planning principles at each stage of the transition planning process for residents of Minnesota Life Bridge treatment homes. Consistent with this requirement, the transition planning process at Minnesota Life Bridge uses, and is driven by, person-centered principles. As explained in more detail in the status update for EC 2, this process begins with the development of the Person-Centered Description. All eleven persons served at Minnesota Life Bridge treatment homes during the reporting period engaged with the Minnesota Life Bridge Person-Centered Thinking/Training Facilitator to contribute to their Person-Centered Descriptions.
All eleven persons served at Minnesota Life Bridge treatment homes during the reporting period had a Person-Centered Plan that was developed through participation in Picture of a Life, PATH, or MAPS. Through these processes, persons worked collaboratively with the Person-Centered Thinking/Training Facilitator to create their vision for the future based on what is important to and for them. This information became the focus of the 30-day team meeting to guide the development of action steps towards achieving each person’s vision.
After the 30-day team meeting, the person and their team contribute to updates to the PersonCentered Description/Plan and Transition Plan during monthly team meetings and the Minnesota Life Bridge Person-Centered Thinking/Training Facilitator reviews the Person-Centered Description/Plan at least monthly. The Person-Centered Description/Plan informs the objectives in the Coordinated Services and Support Plan Addendum (CSSP-A). Information from the PersonCentered Description/Plan is also directly incorporated into the Transition Plan and Positive Behavior Support Plan. During the reporting period, each person served a Minnesota Life Bridge treatment home had their Person-Centered Description/Plan updated on a monthly basis after the initial team meeting.
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During this reporting period, Minnesota Life Bridge continued to have a dedicated Person-Centered Thinking/Training Facilitator, who develops and maintains all Person-entered Plans of Minnesota Life Bridge treatment home residents and helps to ensure that person-centered principles guide each stage of the transition planning process. The Person-Centered Thinking/Training Facilitator has experience in facilitating Person-Centered Plans using PATH, MAPS and other tools and has received training in PATH and MAPS from the tools’ creators. While employed with the Department, the PersonCentered Thinking/Training Facilitator has further developed person-centered planning expertise by engaging in training, mentoring, and attendance at professional conferences. For example, the Person-Centered Thinking/Training Facilitator mentors under Dr. Angela Amado, one of the state’s leaders in Person-Centered Thinking and Planning. During this reporting period, the PersonCentered Thinking/Training Facilitator also attended multiple professional development events, including the National Person-Centered Gathering in Portland, Oregon; the Minnesota PersonCentered Thinking Gathering, hosted by the University of Minnesota Institute of Community Integration; and the Person-Centered Thinking Coaches and Leaders Workshops.
Verification
The Responsible Party verified the information submitted to JOQACO for EC 2 and EC 50 through review of Minnesota Life Bridge treatment home residents’ Person-Centered Descriptions/ Plans and Transition Plans. The Responsible Party also verified the Minnesota Life Bridge Person-Centered Thinking/Training Facilitators’ qualifications and professional development activities through documentation, including the Facilitator’s training transcript, resume, and certification of training in person-centered planning.
JOQACO reviewed the supporting documentation submitted by the responsible party to verify the Minnesota Life Bridge Person Centered Thinking/Training Facilitator’s qualifications and ongoing professional development activities. This included the Minnesota Life Bridge Person-Centered Thinking/Training Facilitator’s certificates from trainings and training transcript.
See the Verification section for EC 2, pages 11-16, for additional detail about JOQACO’s verification efforts related to person-centered planning at Minnesota Life Bridge treatment homes and the Verification section for EC 48, pages 30-33, for additional detail about JOQACO’s verification efforts related to transition planning at Minnesota Life Bridge treatment homes.
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Evaluation Criteria 51 Each resident has been given the opportunity to express a choice regarding preferred activities that contribute to a quality life.
Responsible Party: Minnesota Life Bridge Manager
Current Status
EC 51 requires that Minnesota Life Bridge treatment homes give each resident the opportunity to express choice regarding preferred activities that contribute to a quality life. In its Response to the Court Monitor’s Assessment, filed with the Court on December 12, 2016 (Doc. No. 606-2), the Department expressed that what has previously been reported for EC 51 (Doc. No. 589 at 33-34) is sufficient to establish substantial compliance with the enforceable requirements of EC 51. (Doc. No. 606-2 at 21.) However, the Department acknowledged that the specificity of reporting for EC 51 could improve to better illustrate the extent of the Department’s efforts in this area and the work that happens on a daily basis at Minnesota Life Bridge. (Id.) In its January 17, 2017 Order, the Court directed the Department to incorporate in future reports the clarifications it identified regarding EC 51. (Doc. No. 612 at 3.) Accordingly, the Department includes here additional information about the process Minnesota Life Bridge staff uses to provide each resident with opportunities to express choice regarding preferred activities, as well as additional and more detailed client-specific examples.
Minnesota Life Bridge staff ensure that each treatment home resident has the opportunity to plan and fill their day with preferred activities that are important to and for them, through a process that is highly individualized. Staff engage with each resident on a regular basis—typically daily—to discuss their choices and plans for activities. Some residents prefer to plan their activities on a weekly basis through a weekly activity plan, which often doubles as a budget reminder. Other residents prefer to choose and plan their activities on a daily basis, either verbally or via written schedule. Minnesota Life Bridge frequently modifies these activity plans based on the preference of the individual. Minnesota Life Bridge staff accommodate activities that residents spontaneously choose wherever logistically possible.
The information in residents’ Person-Centered Descriptions/Plans, in combination with staff’s daily experience and conversation with residents, inform how staff provide support to residents in selecting and planning their preferred activities. Staff offer ideas for activities based on a resident’s expressed preferences and goals and look for ways for residents to expand their horizons with community activities. It is always up to the individual, however, whether to engage in any suggested activity. For residents who have limited experience in trying new things, it can take some trial and error for the person to figure out, with the support of Minnesota Life Bridge staff, their preferences regarding activities. If this is the case, staff speak with the person prior to a new activity to discuss possible stressors or unknown factors that could arise during the activity. Minnesota Life Bridge staff give residents the opportunity to stop an activity if it becomes unenjoyable for any reason.
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The following are examples of how Minnesota Life Bridge provided residents with daily opportunities to express a choice regarding preferred activities during this reporting period. These examples were provided in response to JOQACO’s request for information regarding preferred activities for a random sample of clients from across the four treatment homes for a randomly selected week during the reporting period:
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Verification The Responsible Party verified information submitted to JOQACO by reviewing resident PersonCentered Description/Plans, minutes of monthly team meetings, daily or weekly resident schedules, and resident progress reports. The Responsible Party also spoke with Minnesota Life Bridge lead staff and site supervisors regarding the process by which treatment home residents make choices and engage in planning regarding preferred activities. JOQACO requested, for a sample of residents across the four treatment homes for a randomly selected week during this reporting period, client-specific information about resident choice regarding preferred activities. Specifically, JOQACO asked Minnesota Life Bridge to provide information for the following residents and time periods:
• C1, time period 10/3/2016-10/9/2016 • G3, time period 8/1/2016-8/7/2016 • G4, time period 7/11/2016-7/17/2016 and • M3, time period 11/7/2016-11/13/2016 JOQACO reviewed the information and supporting documentation submitted by Minnesota Life Bridge for these residents during the applicable time periods, including resident progress notes and written daily schedules. The information submitted to JOQACO by the Responsible Party was consistent with the supporting documentation. JOQACO and the Jensen Internal Reviewer’s on-site visits to Minnesota Life Bridge provided additional verification that Minnesota Life Bridge residents are given the opportunity to express choice regarding preferred activities that contribute to quality life. (Refer to the Verification section for EC 2, pages 12-14, for additional information regarding on-site visits.)
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The Jensen Internal Reviewer and JOQACO have observed that, while residents at Minnesota Life Bridge are given opportunities to express choice about preferred activities that contribute to a quality life, these activities do not include, on a systematic basis, vocational activities. As noted in previous sections of this report (e.g., pages 7-8), this identified area for performance improvement will be the subject of an Independent Subject Matter Expert review. Because vocational options for Minnesota Life Bridge residents relate to EC 90, this topic will be addressed in the update for EC 90 in the 2016 Annual Report, due to the Court on March 31, 2017.
Evaluation Criteria 52 It is the State's goal that all residents be served in integrated community settings and services with adequate protections, supports and other necessary resources which are identified as available by service coordination. If an existing setting or service is not identified or available, best efforts will be utilized to create the appropriate setting or service using an individualized service design process.
Responsible Party: Minnesota Life Bridge Manager
Current Status
EC 52 sets out the goal that all residents of Minnesota Life Bridge treatment homes “be served in integrated community settings and services with adequate protections, supports, and other necessary resources” and that “best efforts will be utilized to create the appropriate setting or service” through an individualized process if an existing setting or service is not identified or available. (Doc. No. 283 at EC 52.) This goal, and the Department’s best efforts to create the appropriate setting or service, are evident in Minnesota Life Bridge’s person-centered approach to transition planning; efforts to help residents to identify a future living situation that meets their needs and preferences; identification, through a continuous transition planning process, of how the person’s needs and preferences will be met by the services and setting to which the person will be transitioning; and supports provided during transition.
As explained in previous sections (e.g., status updates for EC 2, EC 50), Minnesota Life Bridge uses person-centered planning principles throughout the transition planning process to identify what is important to and for the person. During this reporting period, Minnesota Life Bridge updated each treatment home resident’s Person-Centered Description/Plan on a monthly basis to include continuously increasing clarity on what an ideal living situation would look like for the person and the “must haves” for any future living situation. The information from the Person-Centered Description/Plan directly informed residents’ Transition Plans, which highlight what is important to and for the person and explains how the future setting or service, as well as the supports provided during transition, can meet the person’s identified needs and preferences. The elements addressed by the Transition Plan include, but are not limited to, location; elements that contribute to a good day for the person; recreation; family, friends and relationships; characteristics of housemates; characteristics
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of people who support the person best; behavioral supports; medical and dietary supports; and transition/continuum of support needs.
With respect to the last of these categories, the Transition Plan format requires each of the considerations listed in Action27 52.5 to be addressed. As previously explained, an initial draft of the Transition Plan is to be created within 30 days of admission to a Minnesota Life Bridge treatment home.28 The Transition Plan is further developed and finalized after a new living situation is agreed upon.
The four residents discharged from Minnesota Life Bridge treatment homes during the reporting period selected existing services or living situations, obviating the need for an individualized service design process—although the specifics of the supports provided are individualized. Through the transition planning process, the resident, their support team, Minnesota Life Bridge, and the new service provider collaborated to identify the supports, service alterations, or enhancements needed to meet the person’s essential needs, as outlined in their Person-Centered Description/Plan. To facilitate a successful transition with appropriate and effective supports, Minnesota Life Bridge clinicians offered resident-specific training to the new providers. For additional context about these four discharges, see the status update for EC 48, pages 26-29.
For examples of how Minnesota Life Bridge assisted the other treatment home residents during this reporting period to identify a future living situation that meets their needs and preferences in the most integrated setting possible, and to plan for transition to these situations, see the status update for EC 48, pages 29-30.
Verification:
The Responsible Party verified information submitted to JOQACO for EC 52 by reviewing treatment home residents’ Transition Plans and Person-Centered Descriptions/Plans.
JOQACO verified the information submitted by the Responsible Party by reviewing treatment home residents’ Transition Plans and Person-Centered Descriptions/Plans. Additionally, the Jensen Internal Reviewer evaluated all discharges from Minnesota Life Bridge and reported on these reviews in the
27 The term “Actions” comes from the CPA. The CPA states that “[t]he ECs set forth the outcomes to be achieved and are enforceable” while “[t]he Actions under the ECs are not enforceable requirements.” (Doc. No. 283 at p. 1.)
28 As previously explained, four out of five persons admitted to Minnesota Life Bridge had their initial transition plan created within 30 days of admission. See the Verification section for EC 48, page 30 of this report, for more information.
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Reporting Period: July 1, 2016 to December 31, 2016 Jensen Internal Reviewer Monthly Reports. During this reporting period, the Jensen Internal Reviewer evaluated:
JOQACO also contacted the Minnesota Life Bridge site manager or supervisor, the case manager, the guardian, and the new residential provider for each of the four people who transitioned out of Minnesota Life Bridge treatment homes during this reporting period. This further verified that Minnesota Life Bridge pursued the appropriate discharge of residents through transition planning. JOQACO received responses from the Minnesota Life Bridge site manager or supervisor for each person who was discharged, as well as three case managers and one provider. None of the guardians responded to JOQACO’s request for follow up. For more information about JOQACO’s verification efforts, see the Verification section for EC 48, pages 32-33.
Evaluation Criteria 53 The provisions under this Transition Planning Section have been implemented in accord with the Olmstead decision.
Responsible Party: Minnesota Life Bridge Manager Current Status Consistent with EC 53, Minnesota Life Bridge continues to implement person-centered transition planning and provide treatment home residents with opportunities to receive services in integrated settings, in accord with the Olmstead decision, to the extent possible and according to the preferences of the person. Minnesota Life Bridge, by its overall design, is a temporary treatment program meant to help residents move into more integrated settings. Persons served at Minnesota Life Bridge treatment homes are highly involved in developing their Person-Centered Description/Plans and Transition Plans. If, after being provided with the information necessary to make an informed choice, a person chooses a segregated service, Minnesota Life Bridge documents this choice in the person’s record. Persons and their support teams are encouraged to make an informed choice for future providers and Minnesota Life Bridge encourages transition to integrated and more independent settings whenever possible. During this reporting period, no resident of a Minnesota Life Bridge treatment home transitioned to services in a more segregated setting.
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Minnesota Life Bridge works with treatment home residents and their teams to develop PersonCentered Plans and Transition Plans that address multiple areas of engagement, including community and civic life, relationships, career, home, and personal interests. As discussed in the status updates for EC 2 and ECs 48-52, the Person-Centered Description/Plan directly informs the services and supports Minnesota Life Bridge provides to residents while they are living in the treatment homes and directly informs the transition planning process. These services and supports are monitored in a variety of ways, including through residents’ monthly team meetings, resident progress reports, the transition planning process, the Jensen Internal Reviewer’s assessment of followup to incidents involving EUMR, 911 calls, or use of PRN medication at the request of the client, and the Jensen Internal Reviewer’s Rhythm of the Day Assessments.
Verification
See the Verification sections for ECs 2 and 48-52, pages 11-16, 30-33, 35, 36, 39-40, and 41-42.
Settlement Agreement Section IX.D. Other Practices at the Facility – No Inconsistent Publicity (EC 64) Evaluation Criteria 64
The Facility has a mission consistent with the Settlement Agreement and this Comprehensive Plan of Action.
Responsible Party: Minnesota Life Bridge Manager
Current Status
The mission of Minnesota Life Bridge can be described by the phrase “Successful Transition to a Successful Life,” consistent with the JSA and CPA. Consistent with EC 3, Minnesota Life Bridge serves Minnesotans who have a developmental disability and exhibit severe behavior that presents a risk to public safety. Minnesota Life Bridge treatment homes are intended to provide short-term residential services, lasting no longer than necessary to stabilize the person’s behavioral crises and facilitate successful transition to a living situation of their choosing. Consistent with the JSA and CPA, Minnesota Life Bridge also requires the use of positive behavioral supports and person-centered planning approaches and prohibits the use of mechanical restraint, prone restraint, chemical restraint, seclusion and time out, and all other aversive or deprivation practices. The Department describes these principles in its Minnesota Life Bridge Bulletin (Bulletin 16-76-02). This Bulletin was revised
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and updated during this reporting period and was published on November 18, 2016. The Bulletin is publicly available on the Department’s web site.29
For more detail about admissions to Minnesota Life Bridge treatment homes, use of person-centered principles and positive behavioral supports at Minnesota Life Bridge treatment homes, and Minnesota Life Bridge’s pursuit of the appropriate discharge of treatment home residents, see the status updates in this report for ECs 2-3, pages 9-18, and 48-53, pages 25-43.
Verification
JOQACO reviewed and provided input on the updated Minnesota Life Bridge Bulletin. See also the Verification sections for ECs 2-3 and 48-53, pages 11-16, 17-18, 30-33, 35, 36, 39-40, 41-42, and 43.
Settlement Agreement Section X.A. System Wide Improvements – Expansion of Community Support Services (EC 67-78) Evaluation Criteria 67
The expansion of community services under this provision allows for the provision of assessment, triage, and care coordination to assure persons with developmental disabilities receive the appropriate level of care at the right time, in the right place, and in the most integrated setting in accordance with the U.S. Supreme Court decision in Olmstead v. L.C. , 527 U.S. 582 (1999).
Responsible Party: Community Supports Services Director
Current Status
EC 67 requires the expansion of community services to allow for the provision of assessment, triage, and care coordination to assure persons with developmental disabilities receive the appropriate level of care at the right time, in the right place, and in the most integrated setting. (Doc. No. 283 at EC 67.) With nine mobile teams and 24 office locations around the state, Community Support Services (CSS) provides assessment, triage, and care coordination to persons with developmental disabilities on a statewide basis. This allowed persons and their teams to receive support from CSS where the person is, in the most integrated setting possible.
29 The following is the URL for the Minnesota Life Bridge Bulletin, DHS Bulletin No.16-76-02: http://www.dhs.state.mn.us/main/groups/publications/documents/pub/dhs-291254.pdf
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During this reporting period, CSS mobile teams provided assessment, triage, and care coordination to 168 persons with developmental disabilities.30 Information on long-term monitoring services from CSS is addressed in the status updates for ECs 68 and 69 in this report.
To obtain additional information about how CSS mobile team supports are being used to assure that persons with developmental disabilities receive the appropriate level of care at the right time, in the right place, and in the most integrated setting possible, JOQACO reviewed case notes and contacted CSS lead workers for a random sample of the 168 people with developmental disabilities who received “standard” (meaning not long-term monitoring) supports from CSS mobile teams during this reporting period. Using Random.org, JOQACO selected a random sample of 20 people for these additional inquiries.31 When interviewing the CSS lead workers for the people in the random sample, JOQACO utilized a standardized interview protocol that asked: (1) why the person was referred to CSS for services; (2) what services and supports were provided by CSS to the person and their community support network; and (3) if and how the services provided supported the person to remain in and/or become more involved in the community.
As of the time of report preparation, CSS lead workers for nine people from the random sample had responded to JOQACO by phone or by e-mail. The following is a summary of the information that JOQACO obtained from CSS lead workers, supplemented by case notes, for these nine people:32
30 This number does not include persons who only received long-term monitoring services from CSS (see ECs 68 and 69) during the reporting period. This number does include persons who received “standard” (meaning not long-term monitoring) supports from CSS during the reporting period but moved to the long-term monitoring group during the reporting period.
The August 2016 Semi-Annual Report reported that 298 people received supports from CSS during that reporting period. It should be noted that the August 2016 Report covered a nine-month reporting period (October 1, 2015-June 30, 2016) while this Report covers only a six-month reporting period. Also, the figure in the August 2016 Report, unlike the figure here, included persons who received only long-term monitoring services during the reporting period.
31 JOQACO alphabetized and numbered the list of people who received standard supports from CSS during the reporting period. JOQACO used Random.org (https://www.random.org/) to generate 20 random numbers based on the total number of people who received supports from CSS during the reporting period. JOQACO then matched the numbers generated to the alphabetized list of names. JOQACO generated a larger random sample than desired, anticipating that not every person contacted through JOQACO’s information gathering and verification efforts would be available when contacted or able to respond to JOQACO prior to this report being finalized.
32 The following summaries include events and supports that occurred outside this reporting period.
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These are just some examples of how CSS supports persons with developmental disabilities and their community support networks to ensure that the person receives the appropriate level of care at the right time, in the right place, and in the most integrated setting possible. For additional information about the services provided by CSS to these nine people, refer to the Verification section below, which includes information from follow up with case managers, providers and/or guardians.
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Diversion Meetings
Consistent with Actions33 67.4, 67.5, and 67.7, the Department provides on-going efforts to divert persons from institutionalization or placement in more restrictive settings through weekly diversion meetings. Minnesota Life Bridge facilitates the weekly diversion meetings and meetings involve representation from multiple areas of the Department, including CSS, Community-Based Services, Direct Care and Treatment Central Pre-Admission, and Minnesota State Operated Community Services. These meetings consider all persons known to be at risk of losing their living situation, as well as residents of Minnesota Life Bridge treatment homes.34 Weekly diversion meetings include person-centered development strategies as well as consideration of existing vacancies and challenges. This involves reviewing any proposed admissions to more restrictive settings and considering all possible diversion strategies; reviewing status of transition planning for all individuals living at Minnesota Life Bridge treatment homes; and incorporating an active, individualized planning or development focus in these transition discussions. These efforts and discussions are summarized in the Diversion Meeting minutes, which include updates on the current status of diversion efforts and next steps for these efforts, with detail about what is to be addressed, who is assigned to follow through, when resolution is expected for the item, and escalation of the issue to upper management, if any.35 Minnesota Life Bridge sends the Diversion Meeting minutes to JOQACO, who distributes the minutes to the Consultants and others on a weekly basis.
Verification
JOQACO’s data analyst worked with the CSS data analyst to observe and refine how CSS pulled from its database a list of all persons with developmental disabilities who received standard supports from CSS during this reporting period (including persons who received standard supports at some point during this reporting period but then moved to the long-term monitoring group).
To obtain additional information about how CSS mobile team supports are being used to assure that persons with developmental disabilities receive the appropriate level of care at the right time, in the right place, and in the most integrated setting possible, JOQACO reviewed case notes and contacted
33 The term “Actions” comes from the CPA. The CPA states that “[t]he ECs set forth the outcomes to be achieved and are enforceable” while “[t]he Actions under the ECs are not enforceable requirements.” (Doc. No. 283 at p. 1.)
34 The Department’s Single Point of Entry system also supports diversion efforts for persons with developmental disabilities at risk of losing their current living situation.
35 No such escalation occurred during this reporting period. JOQACO monitors the diversion meeting minutes and escalates issues as necessary.
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CSS lead workers for a random sample of the 168 people with developmental disabilities who received “standard” (meaning not long-term monitoring) supports from CSS mobile teams during the reporting period. This information is summarized in the status update for EC 67, above.
To verify the information provided by CSS lead workers for people in the random sample, and to obtain additional detail about how the supports have impacted these people and their teams, JOQACO staff reached out to case managers, providers, and family members or guardians (where available). JOQACO utilized a standardized interview protocol that asked: (1) why the person was referred to CSS for services; (2) what services and supports were provided by CSS to the person and their community support network; and (3) if and how the services provided supported the person to remain in and/or become more involved in the community.
For the nine people in the random sample whose information is summarized in the status update for EC 67 in this report, JOQACO received responses from nine case managers, five providers, and four guardians/family members. The information received from the case managers, providers and guardians/family members was consistent with what CSS reported in interviews with JOQACO and in case notes. Two respondents emphasized how much they valued the training CSS provided on mental health and understanding what behaviors are symptoms of the person’s mental illness. Responses from case managers and providers also emphasized the important role that CSS supports played in helping the service recipient become more involved in the community, including pursuit of employment opportunities, and provision of training to provider staff. The following are quotes from the responses received by JOQACO:
• “CSS has assisted with staff training on 1:1 supports needed for [the Client] to be in the community. They got employment supports and services up and running for [the Client]. [The Client] would not be doing as well as [they are] without the supports provide[d] to [the Client] though CSS.”
• “They have been so great; I wish I had CSS for all my clients.” • “[The Client] continues to remain in the community and not in the hospital. [The Client]
gained employment and is making a decent wage, which makes [the Client] very happy. [The Client] also partakes in more community outing[s] as well as cooking classes from time to time. I believe CSS helped make that all possible.” • [The Client] has made a great transition to the community since living at ____. The [CSS] behavioral support has aided with this.” • “CSS has been a big help in maintaining [the Client’s] placement and locating providers.” • “[CSS] has done an excellent job in providing support and training to [the Client], [the Client’s] family and staff. [CSS] provides a calm and insightful perspective in the supports and services [the Client] needs to be successful in [the] community.”
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• “[CSS] has been taking [the Client] out a few times a week to visit [the Client’s] parents and get out into the community, working on coping skills and helping [the Client] identify questions to [ask] potential homes [the Client] could be moving into.”
Respondents also emphasized that team building and facilitating improved relationships between provider staff and guardians or family members are important parts of CSS supports. For example, two respondents stated the following:
• “CSS has helped reduce tension between group home staff and guardians. CSS helped [the] group home establish professional boundaries between group home staff and _____.”
• “The team is very good and [reports] no problems. [The Client] is doing great in [the] new placement and very thankful for CSS placing [them] in [the] new home.”
• “[CSS] remains a necessary and integral part of the IDT.”36
With respect to the information reported in the status update for EC 67 regarding diversion meetings, JOQACO received, reviewed, and distributed the Diversion Meeting minutes on a weekly basis.
Evaluation Criteria 68 The Department identifies, and provides long term monitoring of, individuals with clinical and situational complexities in order to help avert crisis reactions, provide strategies for service entry changing needs, and to prevent multiple transfers within the system.
Responsible Party: Community Supports Services Director
Current Status
EC 68 requires that the Department engage in best efforts37 to identify and provide long-term monitoring of individuals with clinical and situational complexities in order to help avert crisis reactions, provide strategies for service entry changing needs, and prevent multiple transfers within the system. (Doc. No. 283 at EC 68.)
During this reporting period, CSS provided long-term monitoring (CSS refers to this as “extended supports”) to 61 people with developmental disabilities and clinical and situational complexities.
36 “IDT” refers to “Interdisciplinary Team.”
37 The CPA states that ECs 68-75 are subject to a “best efforts” standard. (Doc. No. 283 at 2.) This is based on the statement in the JSA that its long-term monitoring, crisis management, and training provisions under “System Wide Improvements” represent the Department’s goals and objectives and do not constitute requirements. (Doc. No. 136-1 at X.A.1.)
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During this reporting period, CSS opened 26 new long-term monitoring cases and closed 10 long-term monitoring cases.
Through its long-term monitoring activities, CSS works to help avert crisis reactions, provides strategies for service entry changing needs, and prevents multiple transfers within the system by monitoring and promoting the implementation of support plans; collaborating with support networks to adjust support strategies; training the person’s support network to recognize changing needs; and facilitating access to the right supports in the right place at the right time. The following sections first provide an overview of CSS’ long-term monitoring process followed by additional information about the services provided to persons in the long-term monitoring group during this reporting period.
Overview of CSS’ Long-Term Monitoring Process
The following describes how CSS identifies persons who would benefit from long-term monitoring, provides services that are targeted to the person’s needs and the goals of long-term monitoring described in EC 68, monitors the progress of persons receiving long-term monitoring, and determines whether a person is no longer in need of long-term monitoring services.
All persons with developmental disabilities who are referred to CSS for services are reviewed for eligibility for long-term monitoring. To identify individuals who would benefit from long-term monitoring, CSS, in collaboration with lead agencies, looks at the following factors: behaviors dangerous to self or others; frequent interactions with the criminal justice system; sudden increase in the use of psychotropic medications; multiple hospitalizations or transfers within the system; serious reported incidents; repeated loss of housing or services; provisional discharge from a state-operated treatment facility; and other identified challenges.
CSS uses the following three categories to help assess the level of CSS involvement and activities necessary to address the needs of each person in the long-term monitoring group:
• Category Three: Persons assigned to this category are in situations that require extensive CSS support. The factors for which CSS looks in assigning persons to this category include the following: many case complexities with a variety of supports involved; if the historical length of stability in community living is less than 6 months; or significant instability, as indicated by medical hospitalization, recent or anticipated changes in team membership, or recent or anticipated changes in service providers. For persons in this category, CSS engages with the person and their team on at least a weekly basis—communicating with the person’s
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identified support network, meeting with and/or observing the person, and assessing the person’s current status against their wellness description.38
• Category Two: Persons assigned to this category have a support network that demonstrates the capacity to effectively address issues with moderate CSS support. Persons in this category may have some recent or anticipated changes in team membership, services providers, or medical hospitalization, but crisis situations are well-managed by the support system, which is able to independently make adjustments as needed. For persons in this category, CSS engages with the support network and/or the person and compares the person’s current status with their wellness description on at least a monthly basis.
• Category One: Persons assigned to this category have a support network that demonstrates effective implementation of strategies to address the person’s changing needs with little or no CSS support and the person’s status and related factors are reported as unchanged. For persons in this category, CSS does each of the following on at least a quarterly basis: communicates with the person’s support network, compares the person’s current status with their wellness description, and reviews the person’s crisis prevention and support plan.
As of November 2016, 51.9% of persons receiving long-term monitoring were assigned to Category One, 37.0%, to Category Two, and 11.1%, to Category Three. The number of persons assigned to each Category is fluid, however, as persons can and do move between these categories as their situations change. CSS assesses the status and progress of each person receiving long-term monitoring in quarterly reports, which are provided to the CSS Care Coordination Specialist and identified members of the person’s support team.
CSS may discontinue persons from long-term monitoring for a number of reasons. First, individuals will be discontinued from long-term monitoring if the person is no longer accessible by CSS; this happens, for example, if the person moves out of state or if the person or their legal representative rescind or refuse to renew the consents necessary for CSS to work on their case. Second, individuals will be discontinued from long-term monitoring when it is determined that their situation has sufficiently changed and this kind of support is no longer required. To evaluate if the person continues to need long-term monitoring, CSS considers the following:
38 A person’s wellness description provides a snapshot of what the person’s life is like when the person is doing well or is at his or her best. The wellness description should answer the questions “What does my life look like when I’m doing well?” and “What will people see me doing that shows them that I’m doing well?” The person develops this description with assistance from the assigned CSS lead consultant.
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• The effectiveness of the person and their support network to promote the person’s meaningful and integrated community living. Considerations here include limited support turnover and the flexibility of supports to address changing needs and goals.
• The person’s history and progress, such as two consecutive quarters (six months) at Category One.
• The balance of what is important for the person’s integrated community living with what is important to the person.
• Commitment or provisional discharge status. • Implementation of a Positive Support Transition Plan to fade use of a restrictive procedure or
implementation of rights restrictions. • Agreements made with the person and their support network regarding the length and
parameters of CSS long-term monitoring service.
CSS has a review committee to assure consistency of long-term monitoring services and to provide technical assistance as needed to CSS staff in relation to long-term monitoring. Specific functions of the committee include the following:
• Provide technical assistance to determine persons’ initial and on-going eligibility for long-term monitoring services, as well as for other long-term monitoring functions.
• Provide consultation to assign or confirm an individual’s initial service category. • Review select cases and/or Quarterly Reports. • Monitor the number of clients served and evaluate CSS capacity. • Gather input from staff and respond to questions about long-term monitoring. • Develop and initiate service changes, based on feedback. • Review data related to long-term monitoring. • Coordinate with other applicable CSS committees.
This committee consists of a CSS Psychologist, a Care Coordination Specialist, a Registered Nurse Principal, and representatives from CSS mobile teams and administration.
Long-term monitoring services provided during this reporting period
To obtain additional information about how CSS long-term monitoring is being used to help avert crisis reactions, provide strategies for service entry changing needs, and prevent multiple transfers within the system, JOQACO reviewed case notes and followed up via phone calls with CSS lead workers for a random sample of the 61 people who were in the long-term monitoring group during
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Reporting Period: July 1, 2016 to December 31, 2016 the reporting period. Using Random.org, JOQACO selected 15 people39 as the long-term monitoring random sample. For interviewing the CSS lead case workers, JOQACO used a standardized interview protocol that asked: (1) Why was the person referred to CSS for services; (2) What services and supports were provided to the person and their community support network; (3) If and how the services provided by CSS supported the person to remain in and/or become more involved in the community; (4) Why was the person identified as someone who would benefit from longer or more intensive monitoring; (5) How they feel the receipt of long-term monitoring has benefited the person; and (6) How CSS has coordinated support of the person with the Successful Life Project, if the person is a Jensen Class Member or was served at MSHS-Cambridge. As of the time of report preparation, CSS lead workers for seven people from the random sample had responded to JOQACO by phone or by e-mail. The following is a summary of the information that JOQACO obtained from CSS lead workers, supplemented by case notes, for these seven people:40
39 JOQACO alphabetized and numbered the list of people who received long-term monitoring from CSS during this reporting period. JOQACO used Random.org (https://www.random.org/) to generate 15 random numbers based on the total number of people who received long-term monitoring from CSS during this reporting period. JOQACO then matched the numbers generated to the alphabetized list of names. JOQACO generated a larger random sample than desired, anticipating that not every person contacted through JOQACO’s information gathering and verification efforts would be available when contacted or able to respond to JOQACO prior to this report being finalized. 40The following summaries include events and supports that occurred outside this reporting period.
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As this sample illustrates, CSS’ efforts under EC 68 have identified individuals with clinical and situational complexities and provided long-term monitoring of these individuals to help avert crisis reactions, provide strategies for changing needs, and prevent multiple transfers within the system. For additional information about the long-term monitoring services provided to these seven people,
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refer to the Verification section for this EC, which includes information gathered from follow up with case managers, providers and family members/guardians.
Verification
JOQACO’s data analyst worked with the CSS data analyst to observe and refine how CSS pulled from its database a list of all persons with developmental disabilities who received long-term monitoring services from CSS during the reporting period, as well as their assigned service level categories. JOQACO also reviewed the CSS “Extended Supports” Guide for Lead Consultants and Extended Supports Review Committee Members, which outlines the policies and procedures for CSS long-term monitoring.
To obtain additional information about how CSS long-term monitoring is being used to help avert crisis reactions, provide strategies for service entry changing needs, and prevent multiple transfers within the system, JOQACO reviewed case notes and followed up with CSS lead workers for a random sample of the 61 people who were in the long-term monitoring group during the reporting period.
To verify the information provided by CSS case workers for people in the long-term monitoring random sample (summarized on pages 54-55) and to obtain additional detail about how these supports have helped these people and their teams, JOQACO staff followed up with case managers, providers, and family members or guardians (where available). 41 JOQACO utilized a standardized interview protocol that asked: (1) Why the person was referred to CSS for services; (2) What services and supports were provided to the person and their community support network; (3) If and how the services provided by CSS supported the person to remain in and/or becoming more involved in the community; and (4) How they feel the receipt of long-term monitoring has benefited the person.
For the seven people in the random sample whose information is summarized in the status update for EC 68, JOQACO received responses from four case managers, two providers, and three guardians or family members. The information received from the case managers, providers, and guardians or family members was consistent with what CSS reported in interviews with JOQACO and in the case notes. Responses from case managers and providers also supported CSS’s decision that the persons would benefit from long-term monitoring and indicated that CSS’s involvement helped persons remain in their community placement.
41
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The following are quotes from the responses received by JOQACO.
• “If it were not for CSS and their support I don’t know where [the Client] would be today.” • “Having CSS has helped [the Client]’s family with support to help go in the direction [we]
hope for [the Client].” • “Just knowing that CSS is present at meetings and will be a phone call away if there are issues
is satisfying. These past three years have been very difficult and CSS has been very helpful in coming up with outcomes and positive support plans. [CSS] has always been encouraging of the team also.” • “Support has been very beneficial.”
Reponses indicated that CSS supports often involved helping the person’s team identify and access community service options. Responses also emphasized the importance of CSS supports for team building and facilitating effective team communication. For example, two of the respondents stated the following:
• “CSS has been able to serve as an outside neutral party to the team discussions.” • “They (CSS) maintain availability and work closely with staff and family.” • “CSS’s attendance at semiannual and annual meeting have also been very supportive for [the
Client]’s guardians and case manager.”
One guardian/family member contacted by JOQACO did not understand CSS’s role and perceived CSS as part of the home’s staff. The guardian/family member, however, was pleased overall with the services provided to the person.
Evaluation Criteria 69 Approximately seventy five (75) individuals are targeted for long term monitoring.
Responsible Party: Community Supports Services Director
Current Status
EC 69 requires the Department engage in best efforts42 to target “approximately seventy five (75) individuals” for long-term monitoring. (Doc. No. 283 at EC 69.) Action 69.1 indicates that these individuals are to be identified from the population of people “who have been served by CSS.”
42 The CPA states that ECs 68-75 are subject to a “best efforts” standard. (Doc. No. 283 at 2.) This is based on the statement in the JSA that its long-term monitoring, crisis management, and training provisions under “System
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In its Response to the Court Monitor’s Assessment, filed with the Court on December 12, 2016 (Doc. No. 606-2), the Department acknowledged that it could have provided more context in its previous update for EC 69 (Doc. No. 589 at 41) to allow the reader to better assess whether the Department is substantially complying43 with the “best efforts” standard for this EC. (Doc. No. 606-2 at 29.) In its January 17, 2017 Order, the Court directed the Department to incorporate in future reports the clarifications it identified for EC 69. (Doc. No. 612 at 3.) Accordingly, the Department includes additional context in its updates for EC 68 and 69 in this report about how and why persons are selected for long-term monitoring, how and why persons are discontinued from long-term monitoring, and how the status of persons receiving long-term monitoring is assessed.
As discussed in this report’s status update for EC 68, CSS provided long-term monitoring to 61 people with clinical and situational complexities during this reporting period. This number is fluid and impacted by how many people are identified by CSS as appropriate candidates for long-term monitoring, how many of these many people (or their legal representatives) consent to receive longterm monitoring services, and how many people are discontinued from long-term monitoring.
As explained in this report’s status update for EC 68, CSS reviews all persons with developmental disabilities referred to CSS to determine, based upon the factors listed in Action 69.3, whether they would benefit from long-term monitoring. This report’s status update for EC 68 also describes the reasons why people are discontinued from long-term monitoring—either the person is no longer accessible by CSS or the person’s situation and the effectiveness of their support network has changed to a degree that long-term monitoring is no longer needed or beneficial. The latter determination is based on consideration of the factors specified above, page 53.
To obtain additional information about how CSS long-term monitoring is being used to help avert crisis reactions, provide strategies for service entry changing needs, and prevent multiple transfers within the system, JOQACO reviewed case notes and followed up with CSS lead workers, case managers, and providers from a random sample of the 61 people who were in the long-term monitoring group during this reporting period. For a summary of the information that JOQACO obtained regarding the services provided to persons in this random sample, see this report’s status update for EC 68, pages 54-55.
Wide Improvements” represent the Department’s goals and objectives and do not constitute requirements. (Doc. No. 136-1 at X.A.1.)
43 The Department does not concede that “substantial compliance” is the appropriate standard in this case. To the contrary, the JSA establishes that the relevant inquiry is whether the Department engaged in a “pattern and practice of substantial noncompliance with Attachment A.” (Doc. No. 136-1 at 39.)
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Verification
See the Verification section for EC 68, pages 56-57.
Evaluation Criteria 70 CSS mobile wrap-around response teams are located across the state for proactive response to maintain living arrangements.
Responsible Party: Community Supports Services Director
Current Status
EC 70 requires the Department to engage in best efforts44 to have CSS mobile wrap-around response teams located across the state for “proactive response to maintain living arrangements.” Consistent with Action 70.1,45 CSS maintained nine mobile wrap-around response teams (“mobile teams”) and at least 23 office locations across the state during this reporting period. As of December 31, 2016, CSS had 24 office locations across the state.
CSS mobile teams promote positive supports and build collaborative support networks to help persons with complex behavioral health challenges maintain living arrangements. To prevent and resolve behavioral crises, CSS mobile teams provide outreach services, including the following:
• Augmentative staff supports, • Assessment, • Consultation, • Engagement and coordination with community resources, and • Training.
CSS staffs each mobile team with at least two people experienced and trained in behavior analysis, social work, psychology, nursing, and/or organization development and training. During this reporting period, the nine teams ranged in size from three to ten members. When CSS mobile supports are engaged, at least one member of the mobile team provides outreach services, in
44 The CPA states that ECs 68-75 are subject to a “best efforts” standard. (Doc. No. 283 at 2.) This is based on the statement in the JSA that its long-term monitoring, crisis management, and training provisions under “System Wide Improvements” represent the Department’s goals and objectives and do not constitute requirements. (Doc. No. 136-1 at X.A.1.)
45 The term “Actions” comes from the CPA. The CPA states that “[t]he ECs set forth the outcomes to be achieved and are enforceable” while “[t]he Actions under the ECs are not enforceable requirements.” (Doc. No. 283 at p. 1.)
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consultation with other mobile team members. To build collaborative support networks around persons supported, CSS mobile teams work in coordination with the person’s team and community resources to prevent or resolve behavioral crises. For more information about the supports provided by CSS mobile teams, see the status updates for ECs 67-69 in this report, pages 44-59.
CSS’ mobile teams receive administrative and managerial support from the CSS Director, the Southern and Northern Regional Managers, two Office Coordinators, Direct Care and Treatment Information Technology Specialists, and the Direct Care and Treatment Training and Development Specialist. Consistent with Action 70.2, the administrative and managerial supports provided by these individuals facilitate data collection and central data management related to CSS mobile team activities.
During this reporting period, CSS sent out consumer satisfaction surveys to persons who received mobile team supports from CSS, as well as their legal representatives, if applicable, and county case managers. During this reporting period, CSS received responses from 21 persons served or their legal representatives and 46 case managers. One of these survey respondents, who is a legal representative of a person who received CSS mobile team supports, identified a specific concern. Consistent with Action 70.3, CSS documented its response to this concern. The legal representative expressed concern that “Staff involved (nurse) in this case became overly involved to the point the relationship was negative for CSS and provider. Nursing staff made judgments of provider without knowing all information.” The CSS Southern Regional Manager called the legal representative to follow up on this concern. The legal representative explained that, while the CSS nurse consultant had the person’s best interest in mind, the nurse left the provider staff feeling like they were being attacked, which made the staff “shut down” and become less likely to provide input. The legal representative confirmed, however, that once the nurse consultant left the case, the lead CSS clinician was able to reestablish trust with provider staff and effectively implement support recommendations. The person has since had a decrease in the frequency of challenging behaviors and is reportedly stable.
One case manager who responded during the reporting period expressed concern about the availability of crisis placements. Because this issue was already the subject of ongoing conversations between CSS and the county, CSS did not document this as a concern that required separate followup. Another survey respondent raised a concern that is not addressed here because it did not relate to services provided by CSS to a person with a developmental disability.
Verification
The Responsible Party reviewed the list of CSS office locations and updated the list, where needed, to reflect changes during this reporting period. The Responsible Party also reviewed the CSS staff directory, which CSS updated during this reporting period, and crosschecked the directory against the CSS Contacts on the CSS SharePoint site, which is updated routinely as staff changes occur.
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CSS documents concerns identified in consumer surveys and CSS’ responses to these concerns in CSS’ Client and Customer Concern Response Log, which CSS provided to JOQACO.
JOQACO reviewed the following documents submitted by CSS to confirm that these documents supported the information provided by CSS and to obtain additional information, where needed: the CSS staff directory, which includes lists of the nine CSS mobile teams and their staff; the list of CSS office locations; the CSS Client and Customer Concern Response Log; and spreadsheets documenting responses to CSS Consumer Satisfaction Surveys during the reporting period. In reviewing the responses to satisfaction surveys received during the reporting period, JOQACO identified a concern expressed by a case manager about not receiving certain reports until after the client’s case was closed. CSS did not regard this as a concern that required documentation in the Customer Concern Response Log because it related to a case that was closed in 2014. JOQACO has requested that CSS follow up on this concern. JOQACO will confirm that the requested follow-up is made and appropriately documented.
Evaluation Criteria 71 CSS arranges a crisis intervention within three (3) hours from the time the parent or legal guardian authorizes CSS' involvement.
Responsible Party: Community Supports Services Director
Current Status
EC 71 requires that CSS engage in best efforts46 to arrange a crisis intervention within three hours from the time the parent or their legal guardian authorizes CSS’ involvement, which is the time that CSS receives written consent from the parent or legal guardian. A written consent, which includes a consent for release of information, is necessary for CSS to obtain protected health information about the person from the person’s providers.
During this reporting period, CSS had five cases involving crisis interventions. CSS arranged a crisis intervention within three hours from the time the parent or guardian authorized CSS’ involvement in four out of five of these cases. The fifth case involved a person who was originally referred to CSS as a non-crisis case. Signed consents were received for this person on September 7, 2016. On September 9, however, CSS learned that this person had just received a notice of service termination from the residential provider. At this point, the person’s situation was determined to be a crisis situation and
46 The CPA states that ECs 68-75 are subject to a “best efforts” standard. (Doc. No. 283 at 2.) This is based on the statement in the JSA that its long-term monitoring, crisis management, and training provisions under “System Wide Improvements” represent the Department’s goals and objectives and do not constitute requirements. (Doc. No. 136-1 at X.A.1.)
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CSS provided a crisis response within 25 minutes of making the crisis determination—well within the three-hour window required by EC 71. See Table 3 for the list of crisis interventions.

Table 3: CSS Crisis Interventions

Date & Time Consent Received

Date & Time of First Official Contact

Time Between Consent and Initial Contact

07/13/2016 3:53 PM

7/13/2016 6:41 PM

2 hours, 48 minutes

07/15/2016 11:19 AM

07/15/2016 1:04 PM

1 hour, 45 minutes

07/15/2016 4:00 PM47

07/15/2016 4:01 PM

1 minute

09/07/2016 12:00 PM

09/09/2016 12:25 PM

48 hours, 25 minutes (25 minutes from time CSS received information that this had become a crisis
situation)48

10/12/2016 12:35 PM

10/12/2016 1:00 PM

25 minutes

Verification
The responsible party created a spreadsheet listing CSS crisis responses during the reporting period by pulling data from CSS’ Service Inquiry Tracking database. The responsible party crosschecked this information against case notes for the persons identified as receiving crisis intervention from CSS during the reporting period. JOQACO reviewed the supporting documentation submitted by CSS.
In the August 2016 Semi-Annual Report, the Department reported a crisis response time that was significantly more than 3 hours. (Doc. No. 589 at 45.) Through follow-up with CSS, JOQACO learned that the delay in this response time occurred when the intake coordinator went home ill and CSS missed the receipt of the consent in the hand-off of responsibility for monitoring consents. (Id.) The Department stated JOQACO would be meeting with the CSS Director and staff in September 2016 about this issue. JOQACO and the CSS Director met in September 2016 to discuss the issue of timely crisis responses and confirmed CSS’ progress toward a central referral process that would prevent the

47 In this instance, it was determined that the Department’s Community Based Services division already had consents on file for this person that would allow CSS to start work. 48 This person was originally referred to CSS as a non-crisis case.
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kind of delay observed in the prior reporting period. There is no indication of a similar delay during this reporting period.
Evaluation Criteria 72 CSS partners with Community Crisis Intervention Services to maximize support, complement strengths, and avoid duplication.
Responsible Party: Community Supports Services Director
Current Status
EC 72 requires CSS to engage in best efforts49 to partner with Community Crisis Intervention Services to maximize support, complement strengths, and avoid duplication. CSS engages in ongoing collaboration with the Metro Crisis Coordination Program, meeting at least quarterly. During this reporting period, CSS participated in five meetings with the Metro Crisis Coordination Program to discuss issues relating to service coordination and collaboration. Additionally, in October 2016, the CSS Director met with staff from the Metro Crisis Coordination Program and a new private crisis respite provider agency from northeastern Minnesota to facilitate a tour, discuss lessons learned, and answer questions regarding provision of crisis respite services.
CSS continues to provide services to persons when lead agencies do not have funding available. During this reporting period, CSS did not receive any requests for unfunded services.
Verification
The Responsible Party reviewed supporting documentation, including agendas and minutes for meetings between CSS and the Metro Crisis Coordination Program (held August 12, 2016; October 6, 2016; October 14, 2016; November 18, 2016; and December 9, 2016). The Responsible Party personally participated in all but one of these meetings.
JOQACO reviewed the documentation submitted by the responsible party, including minutes, agendas, and/or sign-in sheets from the meetings between CSS and the Metro Crisis Coordination Program during this reporting period, and confirmed that the documentation supported the information reported.
49 The CPA states that ECs 68-75 are subject to a “best efforts” standard. (Doc. No. 283 at 2.) This is based on the statement in the JSA that its long-term monitoring, crisis management, and training provisions under “System Wide Improvements” represent the Department’s goals and objectives and do not constitute requirements. (Doc. No. 136-1 at X.A.1.)
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Evaluation Criteria 73 CSS provides augmentative training, mentoring and coaching.
Responsible Party: Community Supports Services Director
Current Status
EC 73 requires CSS to engage in best efforts50 to provide augmentative training, mentoring, and coaching. During this reporting period, CSS provided 22 augmentative training sessions to 222 members of individuals’ community support networks. These training sessions covered a variety of topics related to support of persons with developmental disabilities, including client-specific support strategies, provision of positive behavior supports, dialectical behavior therapy, sensory information, and interfering behaviors and aging clients. These training sessions were provided to persons from private community providers, persons providing support at community-based state-operated homes, and persons from lead agencies.
CSS also mentors and coaches support networks for persons with developmental disabilities by providing the services described in the status updates for ECs 67-69, pages 44-59.
CSS continues to review and update its training curricula to ensure consistency with best practices. For example, the CSS Training Committee reviewed the CSS Introduction to Positive Behavior Supports 2.0 and Annual Refresher training curricula in October 2016. The Training Committee includes the following CSS staff: a Registered Nurse Senior, two Behavior Analyst III Supervisors, two Behavior Analysts III, a Licensed Social Worker and the Direct Care and Treatment Training Coordinator. The committee determined that no changes to content were required for these curricula.
CSS mobile teams receive administrative and managerial support from the CSS Director, the Southern and Northern Regional Managers, two Office Coordinators, Direct Care and Treatment Information Technology Specialists, and the Direct Care and Treatment Training and Development Specialist. As noted above, CSS also has a training committee that reviews and updates training curricula, as necessary. The administrative and managerial support provided by these individuals is sufficient to allow CSS to track and analyze the training, coaching, and mentoring services provided by CSS.
50 The CPA states that ECs 68-75 are subject to a “best efforts” standard. (Doc. No. 283 at 2.) This is based on the statement in the JSA that its long-term monitoring, crisis management, and training provisions under “System Wide Improvements” represent the Department’s goals and objectives and do not constitute requirements. (Doc. No. 136-1 at X.A.1.)
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Verification
The Responsible Party generated the information reported in this status update for augmentative training sessions by reviewing the CSS Program Evaluation database, which contains data on all training sessions provided by CSS staff.
A CSS Office and Administrative Specialist maintains the CSS Program Evaluation database. The Responsible Party reviews training documentation after the Office and Administrative Specialist enters the information into the database. The Responsible Party also reviewed the manual containing the CSS curricula for training sessions on Positive Behavior Supports; the manual’s version history lists the dates of review, updates, and approvals by the CSS Training Committee.
JOQACO reviewed CSS spreadsheets of training completed during this reporting period, which identify lead trainer, date, location, audience, and number of people trained at each augmentative training session. JOQACO also reviewed the CSS manual containing the CSS curricula for training sessions on Positive Behavior Supports.
Evaluation Criteria 74 CSS provides staff at community based facilities and homes with state of the art training encompassing personcentered thinking, multi- modal assessment, positive behavior supports, consultation and facilitator skills, and creative thinking.
Responsible Party: Community Supports Services Director
Current Status
EC 74 requires that CSS engage in best efforts51 to provide staff at community-based facilities and homes with state of the art training encompassing specified skills. During this reporting period, CSS provided 22 augmentative training sessions to 222 members of community support networks, as explained in the status update for EC 73. These training sessions addressed the skills listed in EC 74, as indicated by the topics covered, including:
• “Reframing Perspective” on how to support a specific client; • General and client-specific positive behavior support strategies; • Diagnosis Strategies;
51 The CPA states that ECs 68-75 are subject to a “best efforts” standard. (Doc. No. 283 at 2.) This is based on the statement in the JSA that its long-term monitoring, crisis management, and training provisions under “System Wide Improvements” represent the Department’s goals and objectives and do not constitute requirements. (Doc. No. 136-1 at X.A.1.)
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• Sensory Information; • Wellness Plan, Diagnoses, and Programming; • Mentally Ill and Dangerous (MI&D) Training for Residential Providers; • Introduction to Dialectical Behavior Therapy; and • Interfering Behavior and Aging Clients.
As explained in the status update for EC 73, CSS has a training committee that reviews and updates training curricula to ensure consistency with best practices.
Verification
For an explanation of verification activities regarding the services provided under this EC and EC 73, refer to the Verification section for EC 73.
Evaluation Criteria 75 CSS’ mentoring and coaching as methodologies are targeted to prepare for increased community capacity to support individuals in their community.
Responsible Party: Community Supports Services Director
Current Status
EC 75 requires that CSS engage in best efforts52 to target its mentoring and coaching methodologies to increase community capacity to support individuals in their community. One way in which CSS targets its mentoring and coaching to increase community capacity to support individuals in their communities is by providing augmentative training sessions to members of community support networks. During this reporting period, CSS provided 22 augmentative training sessions to 222 members of community support networks, including private community providers, persons providing support at community-based state-operated homes, and persons from lead agencies. As illustrated by the example topics listed in the status updates for ECs 73 and 74, CSS targeted these sessions to increase community capacity by training people to provide more effective supports in community settings.
52 The CPA states that ECs 68-75 are subject to a “best efforts” standard. (Doc. No. 283 at 2.) This is based on the statement in the JSA that its long-term monitoring, crisis management, and training provisions under “System Wide Improvements” represent the Department’s goals and objectives and do not constitute requirements. (Doc. No. 136-1 at X.A.1.)
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CSS also mentors and coaches members of a person’s support network to increase their capacity for supporting the person in the community through the services described in the status updates for ECs 67-69.
In the August 2016 Semi-Annual Report, the Department stated that, by March 1, 2017, the Department would begin tracking the factors listed in Action 75.2 for all people with developmental disabilities receiving CSS services and that CSS anticipated adding a management analyst position to provide support for these efforts. (Doc. No. 589 at 48.) Due to Human Resource challenges and an unanticipated leave of absence, CSS has not yet been able to add a Management Analyst to lead this project and set up the technology infrastructure. CSS’s goal is to have the Management Analyst in place and the tracking efforts initiated by June 2017.
Verification
For an explanation of verification activities regarding services discussed in this report’s status updates for ECs 67-69, refer to the Verification sections for those ECs. For an explanation of verification activities relating to the augmentative training sessions discussed in this report’s status updates for ECs 73-74, refer to the Verification sections for those ECs.
Evaluation Criteria 76 An additional fourteen (14) full time equivalent positions were added between February 2011 and June 30, 2011, configured as follows: Two (2) Behavior Analyst 3 positions; One (1) Community Senior Specialist 3; (2) Behavior Analyst 1; Five (5) Social Worker Specialist positions; and Five (5) Behavior Management Assistants
Responsible Party: Community Supports Services Director
Current Status
CSS continues to maintain the positions specified in EC 76. In the August 2016 Semi-Annual Report, the Department reported that staff in one of the specified positions—a Social Worker Specialist— received a promotion, that the staff member was maintaining their caseload until the position was backfilled, and that the Department posted for this position and planned to hold interviews in August 2016. (Doc. No. 589 at 50.) This position was filled during this reporting period. The person hired in this position is a Licensed Social Worker and has several years’ experience supporting people with behavioral health challenges, including as an MSOCS Behavior Analyst/Designated Coordinator and as a Behavior Analyst and Intake and Referral Coordinator with CSS.
Verification
The Responsible Party reviewed documents relating to the hiring process and verified the qualifications of the newly hired Social Worker Specialist through review of the staff member’s resume and confirmation of the staff member’s professional licensure. JOQACO reviewed the
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supporting documentation submitted by the Responsible Party for EC 76 and confirmed that they support the information reported.
Evaluation Criteria 77 None of the identified positions are vacant.
Responsible Party: Community Supports Services Director
Current Status
As reported in the August 2016 Semi-Annual Report, during the previous reporting period, staff in one of the identified positions (Social Worker Specialist) received a promotion but was maintaining their caseload until the position was backfilled. (Doc. No. 589 at 50.) As previously reported, the Department posted for the position and held interviews in August 2016. (Id.) During this reporting period, CSS filled the position with a licensed social worker with several years’ experience supporting people with behavioral health challenges, including as an MSOCS Behavior Analyst/Designated Coordinator and as a Behavior Analyst and Intake and Referral Coordinator with CSS.
Verification
The Responsible Party verified this information by reviewing the CSS Mobile Teams Organization Chart and the new Social Worker Specialist’s resume, and by confirming the new Social Worker Specialist’s professional licensure. JOQACO reviewed the supporting documentation submitted by the Responsible Party for EC 77 and confirmed that they support the information reported.
Evaluation Criteria 78 Staff conducting the Functional Behavioral Assessment or writing or reviewing Behavior Plans shall do so under the supervision of a Behavior Analyst who has the requisite educational background, experience, and credentials recognized by national associations such as the Association of Professional Behavior Analysts. Any supervisor will co-sign the plan and will be responsible for the plan and its implementation.
Responsible Party: Community Supports Services Director
Current Status
CSS has a team of four CSS behavior analysts each of whom have credentials recognized by national associations. The supervisor of this team has attained the NADD Clinical Certification credential, as reported in the August 2016 Semi-Annual Report. (Doc. No. 589 at 51.) The other three behavior analysts are Board Certified Behavior Analysts, which is a credential granted by the National Behavior Analyst Certification Board.
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Reporting Period: July 1, 2016 to December 31, 2016 CSS completed one Functional Behavior Assessment during this reporting period and had four Functional Behavior Assessments in development as of the end of the reporting period. The completed Functional Behavior Assessment was developed and signed by one of the four nationally credentialed behavior analysts. One of the four nationally credentialed behavior analysts was assigned as primary clinician or co-signer to each of the Functional Behavior Assessments under development during this reporting period. CSS did not create any written behavior plans during this reporting period. Verification JOQACO has reviewed the NADD Clinical Certification credential for the team’s supervisor and has a copy of this certification, as well as the supervisor’s resume, on file. This supervisor is also listed on the NADD-CC web page. The Responsible Party reviewed the resumes of the other three behavior analysts and verified their current status as Board-Certified Behavior Analysts through the Behavior Analyst Certification Board (BACB) Certificant Registry website.53 JOQACO reviewed the supporting documentation submitted by the Responsible Party and confirmed that these staff are listed as Board-Certified Behavior Analysts on the Behavior Analyst Certification Board (BACB) Certificant Registry website. JOQACO confirmed via phone interview with the team’s supervisor that the completed Functional Behavior Assessment was developed by one of the nationally credentialed behavior analysts and that a nationally credentialed behavior analyst was assigned to each of the four Functional Behavior Assessments under development either as primary clinician or co-signer.
53 http://info.bacb.com/o.php?page=100155.
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Settlement Agreement Section X.B. System Wide Improvements – Olmstead Plan (EC 79) Evaluation Criteria 79
The State and the Department developed a proposed Olmstead Plan, and will implement the Plan in accordance with the Court's orders. The Plan will be comprehensive and will use measurable goals to increase the number of people with disabilities receiving services that best meet their individual needs and in the "Most Integrated Setting," and which is consistent and in accord with the U.S. Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999). The Olmstead Plan is addressed in Part 3 of this Comprehensive Plan of Action. Responsible Party: Director of Compliance, Olmstead Implementation Office Current Status During this reporting period, the following reports were completed, approved by the Subcabinet and filed with the Court within the specified timelines.
• August 2016 Quarterly Report on Olmstead Plan Measurable Goals • September 2016 Olmstead Plan Work Plans • November 2016 Quarterly Report on Olmstead Plan Measurable Goals • December 2016 Annual Report on Olmstead Plan Implementation In addition, the Subcabinet initiated the process for updating the Olmstead Plan in October 2016. This process is scheduled to be completed in February 2017. Verification The four reports referenced above were filed with the Court and can also be found on the Olmstead Plan website. The initiation of the process for updating the Olmstead Plan is documented in the October monthly Subcabinet meeting minutes.
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Closure of MSHS-Cambridge and Replacement with Community Homes and Services (EC 93) Evaluation Criteria 93
DHS will provide augmentative service supports, consultation, mobile teams, and training to those supporting the person. DHS will create stronger diversion supports through appropriate staffing and comprehensive data analysis.
Responsible Party: Community Supports Services Director
Current Status
EC 93 requires the Department to provide augmentative service supports, consultation, mobile teams and training to those supporting the person. EC 93 also requires that the Department create stronger diversion supports through appropriate staffing and comprehensive data analysis. The first section of this status update addresses the augmentative service supports, consultation, mobile teams, and training requirements of EC 93.
In its Response to the Court Monitor’s Assessment, filed with the Court on December 12, 2016 (Doc. No. 606-2), the Department acknowledged that, in focusing on the Court’s questions relating to EC 93 (see Doc. No. 578 at 5 & n.2), the Department did not address the comprehensive data analysis requirement of EC 93 in the August 2016 Semi-Annual Report (Doc. No. 589). (Doc. No. 606-2 at 34.) In its January 17, 2017 Order, the Court directed the Department to incorporate in future reports the clarifications it identified for EC 93. (Doc. No. 612 at 3.) Accordingly, the second section of this status update addresses the comprehensive data analysis requirement of EC 93.
Augmentative Service Supports, Consultation, Mobile Teams and Training
Consistent with EC 93, CSS mobile teams provide augmentative services supports, consultation, mobile teams, and training to those supporting the person. As described in the status update for EC 70 in this report and in the current Minnesota Life Bridge Bulletin,54 CSS mobile teams promote positive supports and build collaborative support networks to strengthen the integrated community living of persons with complex behavioral challenges. To prevent and resolve behavioral crises, which can interfere with a person’s ability to maintain the most integrated setting possible, CSS mobile teams provide outreach services including:
• Augmentative staffing supports,
54 The following is the URL for Minnesota Life Bridge Bulletin, DHS Bulletin No.16-76-02: http://www.dhs.state.mn.us/main/groups/publications/documents/pub/dhs-291254.pdf
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• Assessment, • Consultation, • Engagement and coordination with community resources, and • Training.

CSS mobile teams are located across the state to promote regional responsiveness. Each mobile team includes at least two staff with experience and training in behavior analysis, social work, psychology, nursing and/or organization development and training. When CSS mobile supports are engaged, at least one member of the mobile team provides outreach services, in consultation with other mobile team members.

During this reporting period, CSS mobile teams provided “standard supports” (meaning services other than long-term monitoring) to 168 people and their support networks, and long-term monitoring to 61 people with situational and behavioral complexities and their support networks. Additionally, CSS provided 22 training sessions to 222 members of community support networks during this reporting period. For more information about these services, refer to the status updates for ECs 67-69 and 73-75.

In effort to avoid redundancy, and in recognition that EC 93 comes under a section of the CPA about closing the Cambridge facility and replacing it with community homes and services, the discussion in this section is focused on the mobile supports provided to persons who have a connection to the Facilities, such as persons referred to Minnesota Life Bridge during the reporting period and persons admitted to or transitioning out of Minnesota Life Bridge during the reporting period.

During this reporting period, CSS provided mobile team supports to 16 people referred to, admitted to, and/or transitioning out of Minnesota Life Bridge.

Seven of these individuals were admitted to Minnesota Life Bridge either prior to this reporting

period

or during this reporting period

. CSS provided

consultation, training, long-term monitoring, or augmentative staffing supports to these individuals

and their support networks during their placement with Minnesota Life Bridge. In three of these

cases, this episode of CSS mobile team supports was initiated during the reporting period

or was initiated at the very end of the prior reporting period

. 55

The other nine persons were referred to Minnesota Life Bridge for services during this reporting period but were not admitted. Instead, CSS provided consultation, training, engagement and coordination with community resources, and/or long-term monitoring services to these persons and

55 CSS previously worked with G3 in 2015, in a different setting.

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Reporting Period: July 1, 2016 to December 31, 2016 their support teams as they navigated the challenges that led to a referral to Minnesota Life Bridge. For one of these individuals, CSS standard supports were initiated during the reporting period and two of these individuals were added to CSS’ long-term monitoring group during this reporting period. To obtain additional information about how CSS services were being used to provide augmentative service supports, consultation, mobile teams, and training to those supporting the person during this reporting period, JOQACO reviewed case notes and followed up with CSS lead workers for a random sample of the 16 people who were referred to or at Minnesota Life Bridge and received CSS supports during this reporting period. Using Random.org, JOQACO selected eight people as the random sample. 56 To interview CSS lead case workers, JOQACO utilized a standardized interview protocol that asked the following: (1) Why was the person referred to CSS for services; (2) What services and supports were provided by CSS to the person and to the people who support the person; (3) If and how the services provided to the person helped the person remain in or become more involved in the community. As of the time of report preparation, CSS lead workers for six people from the random sample had responded to JOQACO by phone or e-mail. The following is a summary of the information that JOQACO obtained from CSS lead workers for these six people:57
56 The list of people referred to or at Minnesota Life Bridge during this reporting period who received supports from CSS was alphabetized and numbered. Random.org (https://www.random.org/) was used to generate eight random numbers based on the total number of people who received supports from CSS during this reporting period. The numbers generated were then matched to the alphabetized list of names. JOQACO generated a larger random sample than desired, anticipating that not every person contacted through JOQACO’s information gathering and verification efforts would be available when contacted or able to respond to JOQACO prior to this report being finalized. 57 The following summaries include events and supports that occurred outside this reporting period.
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JOQACO further verified information about the services provided to these six people by contacting case managers, providers, and/or guardians. See the Verification section for this EC, pages 76-78, for the information obtained through these efforts.
58
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Appropriate Staffing and Comprehensive Data Analysis for Diversion Supports
As explained in the status updates for ECs 76-78 in this report, CSS maintains appropriate staffing through continued efforts to ensure that the additional positions specified in EC 76 are filled. Additionally, CSS is not the only entity in the Department providing diversion supports. For example, the Successful Life Project provides therapeutic follow-up to Jensen Class Members and people who received services at MSHS-Cambridge to prevent re-institutionalization and transfers to more restrictive settings, and to maintain the most integrated setting.59 When their purview overlaps, CSS and the Successful Life Project coordinate efforts and determine which entity is the best suited to provide the person and their team with the supports that are needed.
Both CSS and the Successful Life Project are connected with the Department’s Single Point of Entry, which is a system that coordinates crisis resolution responses for individuals with developmental disabilities. More specifically, the Single Point of Entry coordinates responses to individuals’ case managers across the Department, including Disability Services, Chemical and Mental Health, and Direct Care and Treatment Divisions, which includes CSS. The Department’s Single Point of Entry Triage Team is staffed by representatives from each of these divisions as well as the Successful Life Project. Triage Team members have complementary expertise in resolving clinical and systems barriers to successful, integrated community living for individuals with disabilities.
After reviewing the initial referral, the Department’s Single Point of Entry Triage Team may recommend one or more of the following actions:
• Engaging CSS mobile supports to assist in resolving the behavioral crisis in the individual’s current home;
• Referring person to a crisis home for short-term crisis respite and support; • Engaging other community supports to assist with resolving the behavioral crisis; • Consulting with Department policy division staff to help address service system-related
barriers to effectively support the individual in their current home; or • Proceeding with a full referral for admission to Minnesota Life Bridge.
The Department also strengthened diversion supports through comprehensive data analysis. During this reporting period, CSS engaged in multiple data analysis projects to strengthen the efficiency and effectiveness of its services. For example, CSS sends out and analyzes customer satisfaction surveys to persons served, their legal representatives, and their case managers to (1) identify areas of improvement and potential services development, and (2) assess outcomes of and satisfaction with
59 Refer to the status update for EC 98 for additional detail about the services and supports provided by the Successful Life Project.
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services. During this reporting period, CSS also conducted an analysis of its capacity, as measured by waiting lists for services, in order to develop a legislative proposal to request additional staffing for mobile teams and for additional crisis homes. CSS also conducted an analysis on the overlap of individuals served by CSS mobile teams, the Single Point of Entry, crisis homes, individuals referred to Minnesota Life Bridge, and/or the Department’s receipt of notice of service termination for an individual. This data analysis was used to identify opportunities for streamlining access to the right supports, in the right time, and in the right place for the person. Additionally, CSS conducted an analysis of service gaps for persons served in crisis homes, as identified in surveys, discussions with stakeholders, and internal analyses. This analysis is being used to develop plans to enhance clinical supports to crisis homes, including a multidisciplinary review process of admissions and availability of multidisciplinary consultation.
Verification
JOQACO’s data analyst worked with the CSS data analyst to observe and refine how CSS pulled from its database a list of all persons with developmental disabilities who received supports from CSS mobile teams during this reporting period (including long-term monitoring) and who were also served at or referred to Minnesota Life Bridge during this reporting period.
To obtain additional information about how CSS mobile teams provided augmentative service supports, consultation, mobile teams, and training to those supporting the person during the reporting period, JOQACO reviewed case notes and followed up with CSS lead workers for a random sample of the 16 people who were referred to or at Minnesota Life Bridge during this reporting period and received CSS supports. This information is summarized above in the status update for EC 93.
JOQACO further verified information provided by CSS lead workers for people in the random sample by contacting case managers, providers and/or guardians. In conducting these interviews, JOQACO utilized a standardized interview protocol that asked: (1) Why was the person referred to CSS for services; (2) What services and supports were provided by CSS to the person and to the people who support the person; (3) If and how the services provided to the person helped the person remain in or become more involved in the community. For the six people in the random sample whose information is summarized above in the status update for EC 93, JOQACO received responses from four case managers, six providers, and three family members or guardians.
The information received by JOQACO from case managers, providers and guardians was generally consistent with what CSS reported during the interview with JOQACO and in case notes, although comments on the experience of working with CSS were mixed. Responses included the following:
• “Overall this is the best service I had for difficult clients especially when placement is at risk and possible legal charges are in the wind.”
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• In response to the question if and how the services CSS provided helped the person to remain in or become more involved in the community, one case manager stated, “Between July and December [2016], no except for the BA checking in on [the Client] and did attend meeting and discharge planning.” The case manager stated that the Client is “doing well” in their current placement. In response to the same question, the Client’s provider stated that CSS “has helped [the Client] to remain in a very structured and stable environment” and that “CSS is very accessible and easy to work with.”
• For a client who was referred to CSS for assistance with a transition from a crisis home to a new community-based home, the discharging provider stated, “The CSS services did not impact” in response to the question if and how the services CSS provided helped the person to remain in or become more involved in the community. The discharging provider clarified that this person was referred to CSS for transition assistance due to previous failed placements, not due to of current behavior concerns and also stated that this client “is one of the few people we have worked with who has a good solid team and we were confident in the [new] provider’s abilities to meet [the Client’s] needs.” The guardian for the same Client stated that CSS “has been very helpful [with] coming up with ideas”—especially with respect to moving to different regions.
Because the focus of CSS services for the third response above was to assist with the Client’s impending transition60 to a new provider, JOQACO will follow up with the new provider in March or April 2017 to see how the Client is doing and how CSS assisted with the transition.
For the three cases involving shared support or a transfer of support between CSS and the Successful Life Project, continuity of services was an important concern raised by case managers. In two of these situations, the transition between CSS and the Successful Life Project was reportedly “OK” but in one situation, it was unclear to the case manager who was taking the lead—CSS or the Successful Life Project. JOQACO has been working with CSS to improve coordination between CSS and the Successful Life Project and is following up with CSS about the concerns raised here to determine what additional steps need to be taken to ensure smoother transitions and greater clarity regarding the roles of CSS versus the Successful Life Project.
60 The Client transitioned to the new provider in February 2017.
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One county case manager expressed concern about changes that had occurred over the years and the need to submit a new referral for someone who had been supported by CSS for a long time. JOQACO will follow up with CSS to understand what changes had taken place.61
With respect to the information reported for EC 93 regarding comprehensive data analysis, the Responsible Party provided information based on personal knowledge of CSS data analysis activities as well as review of supporting documentation, including the draft budget page for the mobile teams and crisis homes budget proposal. JOQACO reviewed the documentation submitted by the Responsible Party to determine whether the documentation supported the information reported.
Therapeutic Follow-Up of Class Members and Clients Discharged from METO/MSHS-Cambridge (EC 98) Evaluation Criteria 98
DHS will maintain therapeutic follow-up of Class Members, and clients discharged from METO/MSHSCambridge since May 1, 2011, by professional staff to provide a safety network, as needed, to help prevent reinstitutionalization and other transfers to more restrictive settings, and to maintain the most integrated setting for those individuals.
Responsible Party: JOQACO Director
Current Status
Successful Life Project Purpose and Structure
EC 98 requires therapeutic follow-up of Jensen Class Members and people previously served at MSHS-Cambridge (collectively referred to here as the “therapeutic follow-up group”) by professional staff to prevent re-institutionalization and other transfers to more restrictive settings, and to maintain the most integrated setting for those individuals.
The Department created the Successful Life Project to help prevent re-institutionalization and other transfers to settings that are more restrictive and to maintain the most integrated setting for persons in the therapeutic follow-up group by providing consultation, services and supports to the person and their team. The services that the Successful Life Project provides to help prevent reinstitutionalization and maintain the most integrated setting—which include helping the person’s
61 JOQACO followed up with CSS on February 10, 2017 and learned that although the person was known to CSS, their case had been closed for more than a year. Due to the length of time since the last contact, CSS requested a new referral, which is consistent with CSS procedures.
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care providers to use person-centered positive behavior supports and to address health or medication needs—are services that can, by extension, improve overall quality of life.
In April 2016, the Successful Life Project became part of JOQACO. Staffing for the Successful Life Project includes Board Certified Behavior Analysts, a Registered Nurse and the Successful Life Project Supervisor.62 The Jensen Internal Reviewer provides clinical oversight of the Board Certified Behavior Analysts.
In its August 2016 Semi-Annual Report, the Department noted that the Successful Life Project had two vacancies, one for the Successful Life Project Supervisor position and one for a Board Certified Behavior Analyst position. (Doc. No. 589 at 58.) During this reporting period, the Successful Life Project filled the Successful Life Project Supervisor position. The staff hired in this position has a Bachelor of Arts Degree in Organizational Behavior/Psychology, a Master’s Degree in Psychology, and over seven years of supervisory and advanced professional experience working with regulations governing health care facilities and providers in mental health settings. The new Successful Life Project Supervisor started on December 14, 2016. JOQACO is in the process of filling the Board Certified Behavior Analyst vacancy, which was created when the previous incumbent resigned in September 2016.63
Successful Life Project Supports and Services
The Successful Life Project helps support teams and providers build capacity to deliver personcentered positive behavior supports in order to help prevent transfers to more restrictive settings. Based on the needs of the person and their team, supports can include the following:
1. Assessments, including: presence of any significant risk factors; health needs, including review of medication regimens; comprehensive medical reviews; and Functional Behavior Assessments;
2. Data collection and analysis support; 3. Person-centered plan facilitation support; 4. Positive behavior support plan development; 5. Training; 6. Transition planning support; and
62 In the August 2016 Semi-Annual Report, the Department identified this position as the Successful Life Project Coordinator. (Doc. No. 589 at 58.) The Department changed the position classification to a supervisor to recruit a larger pool of qualified candidates.
63 After the end of the reporting period, the Jensen/Olmstead Quality Assurance and Compliance Office completed the hiring process for the new Board Certified Behavior Analyst, who started on February 14, 2017.
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7. Assessment of the degree to which a person’s environment matches their unique preferences and support needs.
When challenging behaviors interfere with life activities and community inclusion, Successful Life Project staff work with teams to identify circumstances that may lead to or maintain those behaviors, which could result in re-institutionalization or transfer to a more restrictive setting, and help develop strategies to decrease them. When challenging behaviors are not interfering with life activities, Successful Life Project staff assist teams by focusing on the next steps necessary to help maintain the individual in the most integrated setting and, by extension, improve the person’s quality of life.
To provide people and their teams with the appropriate level of support, the Successful Life Project groups people based on the level of support needed. Group assignments are fluid and people can and do move between support levels. The different support levels include Priority, Secondary and Proactive.
• Priority - Persons in this group have a potential loss of their placement/home. The Successful Life Project bases Priority status on the challenges presented by the person’s behaviors and the capacity of the person’s team. Persons in the Priority group may also exhibit the presence of significant risk factors. The Successful Life Project defines “Risk Factors” as conditions or circumstances that could create a behavioral or medical crisis, as determined by the Risk Assessment, see page 86.
• Secondary - Persons in this group present challenging behaviors, but their placement is not threatened.
• Proactive - Persons in this group include other therapeutic follow-up group members NOT receiving Priority or Secondary levels of support.
The Successful Life Project identifies therapeutic follow-up group members who are in need of a priority or secondary level of supports in a number of ways, including the following:
• Calls by the Successful Life Project to case managers following submission of a Behavior Intervention Reporting Form to see if any assistance is needed;
• A residential provider, case manager, or guardian refers the person and their team to the Successful Life Project;
• Assignment for follow-up by the Successful Life Project is made through the Department’s Single Point of Entry (see pages 75-76); and
• The person exhibits significant risk factors, as identified through the Risk Assessment. See page 86 for more information about the Risk Assessment project.
Services offered for persons in the Priority and Secondary groups include the following:
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016
• Mentoring for providers • Person-centered planning assistance • Plan reviews • Regional workshops targeting local needs • Stress management instructional workshops • Other person/diagnosis-specific technical assistance
The Successful Life Project offers additional supports to persons in the Priority group, including: • Functional Behavior Assessments to better understand the purpose or reason for interfering behaviors; • Support in developing a Positive Behavior Support Plan. A Positive Behavior Support Plan is a formal plan to help everyone do the same thing on a consistent basis. The plan is based on the Functional Behavior Assessment of the interfering behavior and includes person-centered practices; and • Assessment using the Positive Behavior Support – System Evaluation Tool (PBS-SET)64 to provide a brief snapshot of a person’s health, safety, quality of life, and person-centered positive behavior supports.
Services for persons in the Proactive group are currently under development and will focus on increasing the flexibility of supports the Successful Life Project offers to include training, information sharing on best practices, and distance technical assistance. The Successful Life Project staff will use information gathered through the Risk Assessment, see page 86, to assist in developing proactive supports, which include providing general information about conditions affecting members of the therapeutic follow-up group or about suggested types of interventions relevant to this population.
Supports Provided During the Reporting Period
During this reporting period, the Successful Life Project provided Priority or Secondary supports to 70 members of the therapeutic follow-up group living in the following situations (persons who moved to different living situations during the reporting period are counted in more than one category):
• Corporate Foster Care (50) • State-Operated Facility (i.e., Minnesota Security Hospital, Minnesota Sex Offender Program,
Minnesota Life Bridge) (7) • Family/Friends homes (4)
64 The PBS-SET is an assessment tool used by Successful Life Project staff that provides a brief snapshot of a person’s health, safety, quality of life, and person-centered positive behavior supports.
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016 • Own home (3) • Crisis Home (3) • ICF/DD (3) • Individualized Housing Option (1) • Hospital (1) • Jail/Detention Center (3) and • Unknown (2)
The supports and services provided by the Successful Life Project Behavior Analyst Staff during this reporting period included the following:
• 48 instances of technical assistance/consultation • 23 Person-Centered Plans • 14 PBS-SET assessments • 14 Positive Behavior Support Plans • 9 Functional Behavior Assessments • 4 trainings designed to strengthen support teams • 18 other (includes follow-up on Behavior Intervention Report Forms)
The supports and services provided by the Successful Life Project Nurse during this reporting period included the following:
• 11 instances of technical assistance/consultation • 9 Medication Reviews • 8 Health Assessments • 2 follow-up calls
Preventing Re-institutionalization and Transfers to More Restrictive Settings
During this reporting period, six of the 70 people who received Priority or Secondary supports moved from less integrated settings to more integrated settings:
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CASE 0:09-cv-01775-DWF-BRT Document 614-1 Filed 02/24/17 Page 84 of 94 Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report Reporting Period: July 1, 2016 to December 31, 2016
68 Because this case did not meet the criteria for Priority supports, another Successful Life Project staff was not assigned to fill in for the Behavior Analyst on leave.
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CASE 0:09-cv-01775-DWF-BRT Document 614-1 Filed 02/24/17 Page 85 of 94 Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report Reporting Period: July 1, 2016 to December 31, 2016
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016
JOQACO obtained additional information about the services provided to the persons in the random sample and the impact of those services by contacting case managers, providers, and guardians. This information is summarized in the Verification section for this EC. Process Improvement Efforts—Risk Assessment and Consumer Satisfaction Survey In an effort to target supports to members of the therapeutic follow-up group in advance of crisis situations, the Successful Life Project developed a Risk Assessment during this reporting period. This assessment will assist in identifying which members of the therapeutic follow-up group could be at behavioral, psychiatric or medical risk and in need of more intensive supports. Successful Life Project staff will also use information gathered through the Risk Assessment to assist in developing proactive supports, including provision of general information about conditions affecting members of the therapeutic follow-up group or about suggested types of interventions relevant to this population. The Successful Life Project will send the Risk Assessment to the county case manager or other identified case manager for all therapeutic follow-up group members twice a year starting in January 2017.69 Before sending out the assessment, the Successful Life Project will notify case managers and explain how the Risk Assessment will be used by the Successful Life Project to enhance the services it provides to the persons in the therapeutic follow-up group. During this reporting period, JOQACO also sent consumer satisfaction surveys to persons who received Successful Life Project supports and services over the past year to help the Successful Life
69 The Jensen/Olmstead Quality Assurance and Compliance Office sent out the Risk Assessment to case managers on January 23, 2017.
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016 Project identify strengths and areas for improvement.70 JOQACO e-mailed or mailed via US mail71 consumer satisfaction surveys to the following people in October 2016:
• 60 Jensen Therapeutic Follow-up Group members • 50 Case Managers • 53 Guardians/Legal Representatives and • 51 Providers. JOQACO received completed surveys from the following people: • 4 members of the Jensen Therapeutic Follow-up Group • 14 Case Managers • 17 Guardians/Legal Representatives and • 8 Providers. The following is a summary of responses to key survey questions:
70 Due to the nature of some of the questions in the survey, Department policy required JOQACO to seek approval from the Department’s Institutional Review Board before sending the survey to members of the therapeutic follow-up group. JOQACO submitted a proposal to the Institutional Review Board in September 2016 and met with the Institutional Review Board on September 14, 2016. Following some minor adjustments to the survey and cover letter, JOQACO received approval from the Institutional Review Board to send out the surveys. 71 Surveys send by US Mail to members of the therapeutic follow-up and guardians or legal representatives included a self-addressed stamped envelope for return of the completed survey to JOQACO.
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016
Figure 2: Successful Life Project Survey Responses No. 2

Percentage of Therapeutic Follow-Up Group Members (n = 4) who responded either "Yes" or "Somewhat" to the following statements:

My life is better since Successful Life Project helped me

100%

I have made a lot of progress during this time
When working with me and my team, Sucessful Life Project did what they said they would do
Sucessful Life Project's help has made my team better for me

100% 100% 100%

I am happy with the help Sucessful Life Project gave me

75%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

In response to the survey question that asked, “Would you like to be contacted about concerns you raised,” three providers left their contact information. JOQACO contacted all three providers via email to ask if they would like a call about their concerns. Only one provider requested a follow-up call. The Successful Life Project Supervisor spoke with the provider about the provider’s request for additional information and training on fetal alcohol spectrum disorders. The Successful Life Project Supervisor followed up with the assigned Successful Life Project Behavior Analyst about providing the requested information and training to this provider.
To increase the percentage of completed and returned consumer satisfaction surveys, JOQACO will send out surveys on a rolling basis at key points during Successful Life Project involvement with a person (e.g., when a therapeutic follow-up group member moves between different levels of support) beginning in early 2017. JOQACO is also working with the Department’s IT division to develop a web-based version of the survey as an option for providers and case managers. JOQACO will pay particular attention to whether providers continue to report the lowest satisfaction scores of the four groups surveyed and will follow up on this issue if there is a trend.
Verification
Because the Successful Life Project is a part of JOQACO and receives clinical supervision from the Jensen Internal Reviewer, the JOQACO Director and Jensen Internal Reviewer have personal
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016
knowledge about the structure of the Successful Life Project, the way the Successful Life Project provides services, and the Successful Life Project’s process improvement efforts.
To obtain additional information about the supports provided by the Successful Life Project during the reporting period, JOQACO reviewed case notes and contacted CSS lead workers for a random sample of the 70 people who received Priority or Secondary supports from the Successful Life Project during the reporting period. This information is summarized in the status update for EC 98, above.
To verify the information provided by Successful Life Project staff about the supports summarized above, and to obtain additional detail about how these supports have helped people and their teams, JOQACO followed up with case managers, providers, and family members or guardians (where available). JOQACO utilized a standardized interview protocol that asked the following: (1) Why the Successful Life Project became involved in providing supports to the person; (2) What services and supports were provided by the Successful Life Project; and (3) If and how the services provided supported the person to remain in and/or become more involved in the community. For the ten people in the random sample whose information is summarized above in the status update for EC 98, JOQACO received responses from seven case managers, eight providers, and four family members or guardians.
The information JOQACO received from case managers, providers and guardians was generally consistent with what the Successful Life Project behavior analysts and/or nurse reported to JOQACO and what JOQACO obtained from case notes.
Although the specific reasons persons were receiving supports from the Successful Life Project varied72, case managers, providers and guardians generally reported positive experiences. The following are positive responses received from case managers, providers and guardians/family members regarding the experience of working with the Successful Life Project:
• “Experience has been great; SLP staff were very consistent, professional, kind and extremely helpful.”
• “My experience with SLP staff have been great, but would like to see SLP be more bold and not afraid in communicating their ideas to the team even if it’s something that seems outlandish.”
• “SLP has been excellent resource for [the] team and for [Client].”
72 Reasons for Successful Life supports included history of failed placements, transition-planning assistance, assistance with person-centered planning and decreasing aggressive/assaultive behaviors.
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016
• “SLP has and is doing a great job with [Client] and the entire team, SLP bring great ideas and is always in communication with the team.”
• “SLP really ‘rolls up their sleeves’ and gets involved and helps us be accountable as well and as a provider this is very helpful. I really value the SLP staff.”
When asked if and how the services provided by the Successful Life Project helped support the person to remain and/or become more involved in the community, responders had the following comments:
• “The services have been a great jump start to helping [Client] become more independent. They have also helped [Client] to engage and own [their] goals and will have helped [Client] move into a more independent living [situation] soon.”
• “[Client] was already involved in the community doing dance, but SLP staff provided [Client] with the tools necessary to remain stable and to become more confident. SLP staff also decreased the intensity of anxiety regarding the relationship between [Client] and [the Client’s] housemate.”
• “Anytime a person (i.e. SLP staff) can make a person enjoy their life better than it has been in the past is a big deal.”
• “SLP staff is working very close[ly] with [Client] and [Client’s] team to [address Client’s] restrictions [and help Client] make better decisions and have alone time and future planning for community employment.”
• “[Client] was already involved with the community, but SLP assisted in how to provide help for any behavior concerns outside of the home.”
One case manager reported that their experience with Successful Life Project was not positive: “The BCBA didn’t follow through and expected more from the state and Successful Life Project. There seems to be no advantage of getting services just because of the settlement. [Client] has lost too many placements. We thought SLP and CSS would do a better job of working together. The SLP role is not what we thought it would be; we thought it would be more hands on.” The Successful Life Project Supervisor and assigned Behavior Analyst have been in contact with this provider to identify how the Successful Life Project can address these concerns and more clearly define roles and responsibilities. More generally, JOQACO and the Successful Life Project are following up with CSS about cases for which CSS and the Successful Life Project share support to ensure that roles and responsibilities are sufficiently well-defined. See also the Verification section for EC 93, page 77.
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016
Modernization of Rule 40 (EC 103) Evaluation Criteria 103
Within thirty (30) days of the promulgation of the Adopted Rule, Plaintiffs' Class Counsel, the Court Monitor, the Ombudsman for Mental Health and Developmental Disabilities, or the Executive Director of the Governor's Council on Developmental Disabilities may suggest to the Department of Human Services and/or to the Olmstead Implementation Office that there are elements in the Rule 40 Advisory Committee Recommendations on Best Practices and Modernization of Rule 40 (Final Version - July 2013) which have not been addressed, or have not adequately or properly been addressed in the Adopted Rule. In that event, those elements shall be considered within the process for modifications of the Olmstead Plan. The State shall address these suggestions through Olmstead Plan sub-cabinet and the Olmstead Implementation Office. Unresolved issues may be presented to the Court for resolution by any of the above, and will be resolved by the Court. Responsible Party: DHS Deputy Senior Counsel Current Status The Department continues to meet with the Office of Ombudsman for Mental Health and Developmental Disabilities and the Governor’s Council on Developmental Disabilities to discuss elements of the Rule 40 Advisory Committee recommendations that may not be adequately or properly addressed by the Positive Supports Rule or other Department efforts. The group has determined that none of the elements which remain under discussion would be the subject of a proposed amendment to the measurable goals of the Minnesota Olmstead Plan. The group continues to make progress on the elements which remain under discussion and will continue to work together to determine how to address them. Verification The Responsible Party was personally involved in the events reported in the status update for this EC.
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016
Exception Reporting
Evaluation Criteria 25 All allegations were fully investigated and conclusions were reached. Individuals conducting investigations will not have a direct or indirect line of supervision over the alleged perpetrators; the DHS Office of the Inspector General satisfies this requirement. Individuals conducting investigations, interviews, and/or writing investigative reports will receive competency-based training in best practices for conducting abuse/neglect investigations involving individuals with cognitive and/or mental health disabilities and interviewing.
Current Status Under the Court’s February 2016 Order for Reporting on the Settlement Agreement (Doc. Nos. 545, 545-1), EC 25 is subject to exception reporting only. As there have been no exceptions to report, the most recent report to provide an update on EC 25 is the Gap Report (Doc. No. 531 at 23). Here, the Department provides an exception report on EC 25 in order to inform the Court of updates the Department made during the reporting period to the process by which it meets the requirements of EC 25.
EC 25 applies to allegations of abuse or neglect of Minnesota Life Bridge residents, requiring that such allegations be fully investigated, that individuals conducting such investigations do not have a direct or indirect line of supervision over the alleged perpetrators, and that individuals conducting investigations receive competency-based training in specified areas. Until July 2016, the Department met these requirements by contracting with an outside attorney, Greg Wiley, to conduct independent investigations of allegations of abuse or neglect at the Facilities. Chief Compliance Officer Gregory Gray, who also received the required competency-based training, provided peer review of these investigations. At the same time, the Department’s Office of the Inspector General (OIG) conducted its own investigations into allegations of abuse or neglect at Minnesota Life Bridge, as required by state law.73
With the departure of Chief Compliance Officer Gregory Gray in July 2016, the Department took the opportunity to make changes to the EC 25 process to minimize duplication of efforts. Under this new process, the OIG is responsible for investigating allegations of abuse and neglect at Minnesota Life Bridge for purposes of EC 25. Consistent with the requirements of EC 25, all OIG maltreatment
73 Under state law, mandated reporters are required to refer allegations of abuse or neglect of a vulnerable adult to the Common Entry Point, known as the Minnesota Adult Abuse Reporting Center (MAARC). Minn. Stat. § 626.557. Additionally, the OIG is obligated to investigate allegations of maltreatment in DHS-licensed settings, which include Minnesota Life Bridge. See id. Collectively, this means that allegations of abuse or neglect at Minnesota Life Bridge are referred to the MAARC system and subject to investigation by the OIG.
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Jensen Settlement Agreement Comprehensive Plan of Action February 2017 Semi-Annual Compliance Report
Reporting Period: July 1, 2016 to December 31, 2016 assessors, investigators, and supervisors of maltreatment assessors or investigators have completed the required training, utilizing an updated competency-based training curriculum developed by JOQACO and the Jensen Internal Reviewer to address best practices for conducting abuse and neglect investigations involving individuals with cognitive and/or mental health disabilities, and for interviewing such individuals.74 All investigation reports or decisions not to assign an allegation for an out-of-office investigation are quality-reviewed by a supervisor or peer (all of whom have received the required training). Verification The JOQACO Director was personally involved in the updates to the EC 25 process—meeting with OIG leadership and staff to work out the logistics of the process and developing the updated training curriculum in collaboration with the Jensen Internal Reviewer. After all 24 OIG maltreatment investigators, assessors, and supervisors completed the required training, OIG provided JOQACO with the competency assessments and signed training completion forms to review and maintain on file. Minnesota Life Bridge is required to notify JOQACO when staff report to MAARC an allegation of abuse or neglect involving a Minnesota Life Bridge resident and provide JOQACO with the MAARC report confirmation number. JOQACO notifies OIG to ensure receipt of the report. OIG maltreatment investigators notify JOQACO each time OIG receives an allegation of abuse or neglect involving a Minnesota Life Bridge resident and provide JOQACO with all investigation decisions and reports relating to allegations of abuse or neglect at Minnesota Life Bridge.
74 On January 18, 2017, the Department provided the Consultants with a copy of the updated training curriculum.
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 CASE 0:09-cv-01775-DWF-BRT Document 638 Filed 06/28/17 Page 1 of 24

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians, and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians, and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian, and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
v.
Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and the State of Minnesota,
Defendants.

Civil No. 09-1775 (DWF/BRT) ORDER

Shamus P. O’Meara, Esq., and Mark R. Azman, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

CASE 0:09-cv-01775-DWF-BRT Document 638 Filed 06/28/17 Page 2 of 24
Scott H. Ikeda, Aaron Winter, and Anthony R. Noss, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants.
INTRODUCTION This matter is before the Court on Defendants’ objection to the Court’s continuing jurisdiction over this matter. On April 5, 2017, the Court directed the parties to brief this issue and to submit a proposed briefing schedule for the Court’s approval. (Doc. No. 626.) On April 18, 2017, the Court imposed a briefing schedule. (Doc. No. 630.) The parties have fully briefed the issue. (See Doc. Nos. 631, 634, 635, 637.) For the reasons set forth below, the Court overrules Defendants’ objection.
BACKGROUND This case began nearly eight years ago, on July 10, 2009, when Plaintiffs filed a Complaint against Defendants asserting multiple violations of federal and state law arising out of allegations of “abusive, inhumane, cruel and improper use of seclusion and mechanical restraints routinely imposed upon patients of the Minnesota Extended Treatment Options program (METO).”1 (Doc. No. 1 at 2.) Following extensive negotiations, the parties entered into a Stipulated Class Action Settlement Agreement (“Agreement”) which was approved by the Court on December 5, 2011. (See Doc. Nos. 104, 136.) The Agreement provides for the closure of the METO facility, establishes requirements regarding restraint and seclusion at successor facilities, and establishes 1 On July 30, 2009, Plaintiffs filed an Amended Complaint arising out of these same allegations. (See Doc. No. 3 at 3.)
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requirements for the Department of Human Services (“DHS”) to internally and externally monitor restraint use. (See Doc. No. 136-1 (“Agreement”) at 6-13.) The Agreement also provides that the State shall exercise “best efforts” for appropriate discharge of residents to the most integrated setting through transition planning. (Id. at 13-14.) In addition, the Agreement imposes requirements relating to other practices at METO and its successor facilities such as staff training. (Id. at 14-16.)
Beyond the provisions applicable to METO and its successors, the Agreement also includes a section entitled “System Wide Improvements.” (See id. at 16-21.) This section identifies goals and objectives in the areas of long-term monitoring, crisis management, and training. (Id. at 16-17.) In addition, this section imposes requirements related to the creation of an Olmstead Plan which was agreed to be developed and implemented within eighteen months of the Agreement’s approval. (Id. at 18.) The Agreement also establishes requirements relating to two other state facilities, the modernization of state administrative rules relating to positive behavioral supports (“Rule 40”), and the substitution of offensive terminology in DHS publications. (Id. at 19-21.)
In its December 1, 2011 Fairness Hearing regarding the Agreement, the Court stated:
I find it to be fair, reasonable and adequate and will also serve the public interest, as well as the interests of the Class Members. Of course that carries with it . . . a responsibility on the parties and the public has a right to hold the Court to its responsibility to follow its oath and to make this Agreement mean something with the jurisdiction of the Court.
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And obviously, enough people have spoken today, so it is not surprising that, obviously, many of you will have a watchful eye and careful scrutiny to see to it that this does what it says it is going to do, and what it is intended to do, and just isn’t words on a legal document. And of course, by the agreement, the Court, by an agreement of all of the parties, the Court does reserve continuing jurisdiction for a minimum of a two-year period to enforce compliance with the provisions of the Agreement and the Judgment . . . . (Doc. No. 146 at 75.) On March 24, 2017, the Court held a status conference relating to Defendants’ implementation of the Olmstead Plan which was developed by Defendants and approved by the Court in the intervening years following the Court’s approval of the Agreement. (See Doc. No. 620.) At this status conference, Defendants’ Counsel raised an objection to the Court’s continuing jurisdiction over this case. Specifically, Defendants’ Counsel argued that the Court has been without jurisdiction since December 2014. Counsel for Plaintiffs argued that the Court presently has jurisdiction. In light of Defendants’ objection, the Court ordered briefing and now issues this order to resolve the dispute.
DISCUSSION I. Legal Standard
“Subject-matter jurisdiction is a threshold requirement which must be assured in every federal case.” Kronholm v. Fed. Deposit Ins. Corp., 915 F.2d 1171, 1174 (8th Cir. 1990). A court is required to dismiss an action if “at any time” it concludes it has no subject-matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). “Jurisdictional issues, whether they involve questions of law or of fact, are for the court to decide.” Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990). “Because jurisdiction is a threshold
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issue for the court, the district court has ‘broader power to decide its own right to hear the
case than it has when the merits of the case are reached.’” Wessels, Arnold & Henderson
v. Nat’l Med. Waste, Inc., 65 F.3d 1427, 1431 (8th Cir. 1995) (quoting Bellecourt v.
United States, 994 F.2d 427, 430 (8th Cir. 1993), cert. denied, 510 U.S. 1109 (1994)). In
particular, a court may “weigh the evidence and satisfy itself as to the existence of its
power to hear the case.” Osborn, 918 F.2d at 730 (quoting Mortenson v. First Fed. Sav.
& Loan Ass’n, 549 F.2d 884, 891 (3d. Cir. 1977)). To evaluate whether it has
jurisdiction, “a district court may make findings of fact.” Appley Bros. v. United States,
164 F.3d 1164, 1170 (8th Cir. 1999). “As no statute or rule prescribes a format for
evidentiary hearings on jurisdiction, ‘any rational mode of inquiry will do.’” Osborn,
918 F.2d at 730 (quoting Crawford v. United States, 796 F.2d 924, 929 (7th Cir. 1986)). The burden of establishing subject-matter jurisdiction rests with the plaintiff.2 V S Ltd.
P’ship v. Dep’t of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000).
II. Federal Court Jurisdiction to Enforce Settlement Agreements “Federal courts do not have automatic ancillary jurisdiction to enforce a settlement
agreement arising from federal litigation.” Gilbert v. Monsanto Co., 216 F.3d 695, 699
2 The Eighth Circuit has explained that “[i]f the defendant thinks the court lacks jurisdiction, the proper course is to request an evidentiary hearing on the issue.” Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990). In the typical circumstance, this would be accomplished through the filing of a motion which “may be supported with affidavits or other documents.” See id. A testimonial hearing involving witnesses may also be conducted if needed. Id.; see also Fed. R. Civ. P. 43(c) (“When a motion relies on facts outside the record, the court may hear the matter on affidavits or may hear it wholly or partly on oral testimony or on depositions.”). Although no motion has been filed on this issue, the Court reviews Defendants’ argument under the standard that would apply had a motion to dismiss been formally filed.
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(8th Cir. 2000). Rather, a federal court has jurisdiction to enforce a settlement agreement only where “the parties’ obligation to comply with the terms of the settlement ha[s] been made part of the order of dismissal—either by separate provision (such as a provision ‘retaining jurisdiction’ over the settlement agreement) or by incorporating the terms of the settlement agreement in the order.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994). The Eighth Circuit has consistently acknowledged this “well-established rule.” See W. Thrift & Loan Corp. v. Rucci, 812 F.3d 722, 724 (8th Cir. 2016); see also Roberts v. Ocwen Loan Servicing, LLC, 617 F. App’x 613, 614 (8th Cir. 2015); Jenkins v. Kan. City Mo. Sch. Dist., 516 F.3d 1074, 1080-82 (8th Cir. 2008). As the Supreme Court’s opinion in Kokkonen suggests, courts applying this rule must look at the terms of the court’s dismissal order to evaluate the scope of the court’s ancillary jurisdiction. See 4:20 Commc’ns, Inc. v. Paradigm Co., 336 F.3d 775, 778 (8th Cir. 2003) (“The issue of subject matter jurisdiction under Kokkonen turns on the language of the dismissal order, not on events prior to the dismissal.”).
Where a court retains jurisdiction for a specified period of time, the court no longer has ancillary jurisdiction after that period ends. Id. During a period of retained jurisdiction, however, “the parties [are] at liberty . . . to request the [c]ourt for assistance in effecting the settlement, or in further extending its retention of jurisdiction.” Buettner v. Kunard, Barnett, Kakeldey & Gates, Ltd., Civ. No. 4-95-720, 1998 WL 668035, at *1 n.1 (D. Minn. Aug. 10, 1998); see also Stewart v. O’Neill, 225 F. Supp. 2d 6, 8-9 (D.D.C. 2002). Even where the parties agree to the court’s retention of jurisdiction, a court is not
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obligated to exercise continuing jurisdiction and may terminate its jurisdiction in its discretion. See Arata v. Nu Skin Int’l., Inc., 96 F.3d 1265, 1269 (9th Cir. 1996).
Here, the Court’s December 5, 2011 Final Approval Order for Stipulated Class Action Settlement Agreement, (Doc. No. 136), governs the scope of the Court’s ancillary jurisdiction to enforce the settlement agreement. In this order, the Court granted Plaintiffs’ Petition for Final Approval of Stipulated Class Action Settlement Agreement and dismissed the action with prejudice. (Id. at 2-3.) The Court also retained jurisdiction to enforce the Agreement in two ways. First, the Court provided that the Agreement was “expressly incorporated herein” and attached the Agreement to the order. (Id. at 2.) Second, the Court expressly retained jurisdiction over the Agreement as follows:
[I]t is hereby ordered that the parties are directed to consummate the Agreement in accordance with its terms, and this Court hereby reserves continuing jurisdiction for the time period set forth in the Agreement to enforce compliance with the provisions of the Agreement and the Judgment, as well as ensuring proper distribution of Settlement payments. (Id.) Under Kokkonen and relevant Eighth Circuit caselaw, the Court plainly retained ancillary jurisdiction to enforce the Agreement through this order. See Kokkonen, 511 U.S. at 381; W. Thrift & Loan Corp., 812 F.3d at 724. The parties do not appear to dispute this conclusion. However, the parties dispute the scope of the Court’s retained jurisdiction. Because the Court’s order both incorporated the Agreement by reference and specifically reserved jurisdiction “for the time period set forth in the Agreement,” (Doc. No. 136 at 2), the scope and duration of the Court’s jurisdiction in this case depends upon the proper construction of the Agreement itself.
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III. The Agreement’s Jurisdictional Provision The Agreement provides that it “shall be construed and enforced in accordance
with applicable federal and Minnesota laws.” (Agreement § XXI.) Settlement agreements are contracts to which ordinary principles of contract interpretation apply. See Sheng v. Starkey Labs., Inc., 53 F.3d 192, 194 (8th Cir. 1995); Dykes v. Sukup Mfg. Co., 781 N.W.2d 578, 581-82 (Minn. 2010). Federal courts evaluating settlement agreements apply the forum state’s law. See Am. Prairie Const. Co. v. Hoich, 594 F.3d 1015, 1023 (8th Cir. 2010). Neither party disputes that Minnesota law applies.
“Under Minnesota law, ‘the primary goal of contract interpretation is to determine and enforce the intent of the parties.’” Loftness Specialized Farm Equip., Inc. v. Twiestmeyer, 818 F.3d 356, 361 (8th Cir. 2016) (citation omitted). “Where the parties express their intent in unambiguous words, those words are to be given their plain and ordinary meaning.” Id. (citation omitted). Therefore, a court “must first make a legal determination whether the contract is ambiguous—i.e., ‘whether the language used is reasonably susceptible of more than one meaning.’” Swift & Co. v. Elias Farms, Inc., 539 F.3d 849, 851 (8th Cir. 2008) (quoting Blattner v. Forster, 322 N.W.2d 319, 321 (Minn. 1982)). A court should “construe a contract as a whole and attempt to harmonize all of its clauses.” Storms, Inc. v. Mathy Const. Co., 883 N.W.2d 772, 776 (Minn. 2016). In addition, unambiguous provisions should not be given “a strained construction.” Id. (quoting Valspar Refinish, Inc. v. Gaylord’s, Inc., 764 N.W.2d 359, 364-65 (Minn. 2009)). The presence or absence of ambiguity in a contract “depends, not upon words or phrases read in isolation, but rather upon the meaning assigned to the words or phrases in
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accordance with the apparent purpose of the contract as a whole.” Art Goebel, Inc. v. N.
Suburban Agencies, Inc., 567 N.W.2d 511, 515 (Minn. 1997).
The Agreement provides the following regarding the Court’s jurisdiction:
The Court shall retain jurisdiction over this matter for two (2) years from its approval of this Agreement for the purposes of receiving reports and information required by this Agreement, or resolving disputes between the parties to this Agreement, or as the Court deems just and equitable.
(Agreement § XVIII.B.) This section continues with the following provision regarding
Plaintiffs’ right to extend reporting requirements:
Should Plaintiffs believe a pattern and practice of substantial non-compliance with Attachment A exists, the State and Plaintiffs shall meet and confer in an effort to resolve any such concerns. The meet and confer shall be held no later than sixty (60) days prior to the two year anniversary of the Court’s approval. Should Plaintiffs continue to believe a pattern and practice of substantial non-compliance with Attachment A exists, Plaintiffs may, within thirty (30) days thereafter, file a motion with the Court to extend the reporting requirements to the Court under this Agreement for an additional one (1) year.
(Id.) The Agreement also provides that “This Agreement shall terminate at the same time
as the court’s jurisdiction ends under paragraph B above . . . .”3 (Id. § XVIII.E.) The
parties offer competing interpretations of the Agreement’s jurisdictional provisions.
Defendants argue that the Agreement provides for court jurisdiction no later than
December 4, 2014—two years following the Agreement’s approval plus a one-year
3 This sentence states in full: “This Agreement shall terminate at the same time as the court’s jurisdiction ends under paragraph B above, provided that the Department shall continue to fund the fifteen (15) Community Support Services positions, the External (OHFC) Reviewer and the Third Party Experts through Fiscal Year 2015 (ending June 30, 2015) and provided further that the releases contained herein shall remain in effect, except to the extent any party’s participation is voided by the court pursuant to a defendant’s Motion to Void Participation under either Section XVII. F. 2 or XVII. G., or a plaintiff’s Motion to render null and void all provisions of the Settlement Agreement under Section XVII. G.” (Doc. No. 136-1 (“Agreement”) § XVIII.E.)
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potential extension of reporting requirements following a motion by Plaintiffs. Specifically, Defendants argue that the first sentence of § XVIII.B clearly and unambiguously provides for a two-year period of retained jurisdiction. In Defendants’ view, “[a]fter authorizing the initial two-year retention of jurisdiction, this sentence sets forth three categories of ‘purposes’ of the Court’s jurisdiction retention: (1) receiving reports; (2) resolving disputes; and (3) purposes the Court deems ‘just and equitable.’” (Doc. No. 631 at 18.)
Plaintiffs, on the other hand, argue that the Agreement authorizes continuing court jurisdiction beyond a two-year period. Construing the first sentence of § XVIII.B, Plaintiffs argue that “[t]he parties’ intentional use of a comma followed by the disjunctive ‘or’ in the clause: ‘, or as the court deems just and equitable’ clearly authorizes the Court’s retention of jurisdiction over the settlement ‘as it deems just and equitable,’ not just for a [sic] two years.” (Doc. No. 634 at 27.) Plaintiffs also note that the Court has previously construed this term consistent with Plaintiffs’ interpretation and argue that the law of the case thus applies to this issue.4
Defendants argue that Plaintiffs’ (and the Court’s) interpretation of the “just and equitable” clause is contrary to the Agreement’s plain language and renders the Agreement’s specific jurisdiction retention provisions meaningless. Defendants assert that “[i]f the parties wanted jurisdiction to continue indefinitely at the Court’s discretion, it does not make sense that they would have provided for a definite initial jurisdiction
4 The Court declines to apply law of the case principles to this issue as it has not been squarely addressed by the parties until this point in the litigation.
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period of two years, or outlined a detailed motion procedure upon which Plaintiffs might receive another definite period of an additional year.” (Doc. No. 631 at 19.) Defendants also point out that the possible third year of jurisdiction was limited to reporting requirements. Construed as a whole, Defendants argue, the Agreement must be interpreted as they propose. Any other reading, they suggest, would not harmonize the clauses of the contract and would improperly dissect the contract’s terms. Finally, Defendants’ argue that Plaintiffs’ reliance on the word “or” does not contradict Defendants’ view that “the pertinent language is part of a list of three ‘purposes.’” (Doc. No. 637 at 6.) Instead, Defendants contend, Plaintiffs’ reading is an attempt to rewrite the Agreement’s terms.
The Court concludes that the Agreement is ambiguous because the provision governing jurisdiction is “reasonably susceptible of more than one meaning.” Swift & Co., 539 F.3d at 851 (quoting Blattner, 322 N.W.2d at 321). Specifically, the Court determines that the Agreement can reasonably be read as Defendant proposes:
The Court shall retain jurisdiction over this matter for two (2) years from its approval of this Agreement for the purposes of
• receiving reports and information required by this Agreement, • or resolving disputes between the parties to this Agreement, • or as the Court deems just and equitable. (Agreement § XVIII.B.) However, the Court also concludes that Plaintiffs’ suggested reading is a reasonable one: The Court shall retain jurisdiction over this matter • for two (2) years from its approval of this Agreement for the purposes of
receiving reports and information required by this Agreement, or resolving disputes between the parties to this Agreement, • or as the Court deems just and equitable.
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(Id.) The plain language of this provision could reasonably be interpreted according to either meaning.
At the same time, however, the Court acknowledges that neither party’s interpretation makes complete grammatical sense. Specifically, Defendants’ proposed interpretation results in the following construction of the “just and equitable” language: “The Court shall retain jurisdiction over this matter for two (2) years from its approval of this Agreement for the purposes of . . . as the Court deems just and equitable.” To sensibly construe this language as Defendants suggest, the Court must ignore the words “of” and “as” or instead read in additional language to clarify that this clause refers to “purposes the Court deems just and equitable.” Plaintiffs’ proposed reading also requires the Court to conclude that the parties used a comma before the “just and equitable” clause where a semicolon would have more clearly conveyed the meaning Plaintiffs suggest. See The Chicago Manual of Style Online § 6.58 (16th ed. 2010) (“When items in a series themselves contain internal punctuation, separating the items with semicolons can aid clarity. If ambiguity seems unlikely, commas may be used instead.” (internal cross-references omitted)).
Further, the Court finds that the Agreement as a whole does not foreclose either party’s interpretation. In particular, the Court disagrees with Defendants that Plaintiffs’ interpretation renders other portions of the Agreement meaningless. In light of the “apparent purpose of the contract as a whole,” the Court finds it reasonable that the parties would have adopted Plaintiffs’ proposed interpretation. See Art Goebel, Inc., 567
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N.W.2d at 515. Specifically, the Agreement had the apparent purposes of not only eliminating the usage of restraints at the METO facility but also implementing multiple system-wide remedies to improve the lives of individuals with disabilities statewide. As a result, the Court concludes that the Agreement’s provisions providing for a two-year retention of jurisdiction and the possibility of a third year of reporting requirements can coexist alongside a broader grant of jurisdiction “as the Court deems just and equitable.” The more specific provisions are not rendered meaningless as they dictated the parties’ expectations regarding the scope of jurisdiction at the time the Agreement was adopted. However, the “just and equitable” clause can reasonably be construed as a fallback provision intended to apply as the circumstances warranted going forward.
In short, “[e]ach argument tends to support the interpretation favored by the party that advances it, but neither is conclusive.” Swift & Co., 539 F.3d at 852. In other words, “[t]he parties simply have signed an agreement that is not clear on its face.” Id. Thus, the Court concludes it is proper to consider extrinsic evidence to interpret the Agreement and determine the parties’ intent. IV. Extrinsic Evidence to Discern the Parties’ Intent
Once a court has concluded that a contract is ambiguous, it may then attempt to discern the parties’ intent by considering extrinsic evidence. See Winthrop Res. Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 470 (8th Cir. 2004). Specifically, a court may “look[] at surrounding circumstances and the parties’ own subsequent conduct.” Loftness, 818 F.3d at 362 (quoting Fredrich v. Indep. Sch. Dist. No. 720, 465 N.W.2d 692, 695 (Minn. Ct. App. 1991)). The parties’ subsequent conduct is highly probative in
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conducting this inquiry. See id. (“The most probative evidence is the actions of the parties afterwards.”) (quoting Fredrich, 465 N.W.2d at 695)); see also Fredrich, 465 N.W.2d at 696 (“[T]he interpretation the parties themselves place on the contract is entitled to great, perhaps controlling, weight in ascertaining the terms of the contract.”). “The terms of an ambiguous contract, which is not a contract of adhesion, are construed against the drafter only after the evidence fails to reveal the mutual intent of the parties.” Staffing Specifix, Inc. v. TempWorks Mgmt. Servs., Inc., No. A16-1146, 2017 WL 1316142, --- N.W.2d ---, at *10 (Minn. Ct. App. Apr. 10, 2017).
To aid the Court’s interpretation of the “just and equitable” clause, Plaintiffs provide evidence in the form of a declaration by Plaintiffs’ counsel and attached exhibits. Plaintiffs also direct the Court to the procedural history in this matter to support their view that the Court presently has jurisdiction. Citing numerous examples in the record, Plaintiffs point out that Defendants have repeatedly “asked the Court to exercise its authority over the settlement for their benefit.” (Doc. No. 634 at 3 n.5.) Plaintiffs also reference Defendants’ routine failure to appeal or challenge the Court’s orders, including those extending jurisdiction. In light of the long history of settlement implementation between the parties, Plaintiffs argue that “[D]efendants’ new claim that the Court lacks authority over the settlement is incredulous, misleading, and meritless.”5 (Id.)
5 Plaintiffs also focus much of their briefing on the history of Defendants’ non-compliance, and the Court’s extension of jurisdiction as a sanction against Defendants. The Court will not recount this procedural history here as it does not materially impact the Court’s analysis of Defendants’ jurisdictional objection.
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Defendants primarily argue that the Agreement unambiguously favors their
interpretation and put forward no specific extrinsic evidence to aid in resolving any
ambiguity. However, Defendants ask the Court to adopt an interpretive canon to resolve
any ambiguity that exists: “To the extent the Court concludes the [Agreement] is
ambiguous and considers Plaintiffs’ counsel’s affidavit, . . . the meaning of the ‘just and
equitable’ language must be construed against Plaintiffs because Plaintiffs’ counsel
asserts that Plaintiffs included that language in the [Agreement].” (Doc. No. 637 at 8
n.5.) Defendants do not otherwise rebut or question the veracity of Plaintiffs’ counsel’s
affidavit and associated exhibits.
The Court concludes that the extrinsic evidence, including the evidence regarding
the purpose of the “just and equitable” clause and the parties’ post-agreement conduct,
establishes that the parties agreed that “[t]he Court shall retain jurisdiction over this
matter . . . as the Court deems just and equitable.” (Agreement § XVIII.B.)
First, Plaintiffs’ counsel offers an unchallenged declaration regarding the inclusion
of the language at issue in the Agreement. According to Plaintiffs’ counsel:
I negotiated the Settlement Agreement on behalf of the Settlement Class. I included the retention of jurisdiction language in the agreement, at section XVIII.B, which states ‘, or as the Court deems just and equitable’ because I was concerned that the Court retain authority to address potential non-compliance and delay beyond the implementation dates in the settlement, mindful of the complexities involved in the coordination of multiple state agencies and counties for the development and implementation of a statewide Olmstead Plan and the modification of Rule 40 and related administrative rulemaking needed for these settlement areas. The parties agreed to the settlement with this language and defendants never raised any concern about it.
(Doc. No. 635 (“O’Meara Decl.”) ¶ 1.) Absent contrary evidence regarding the meaning 15

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of this language, the Court is persuaded that this evidence supports Plaintiffs’
interpretation of the Court’s retention of jurisdiction under the Agreement.
Second, the parties’ conduct throughout this litigation in implementing the
Agreement provides strong evidence of the parties’ mutual intent regarding the scope of the Court’s jurisdiction and the meaning of § XVIII.B’s “just and equitable” clause.6 As
Plaintiffs’ counsel indicates in his declaration, Defendants repeatedly invoked Court
authority and were actively engaged in reporting, mediation, planning, and dialog “for
many years following the settlement’s approval, never indicating they believed the Court
had no jurisdiction,” except for one limited circumstance. (Id. ¶ 2.)
Plaintiffs also identify specific instances in which Defendants acknowledged or
agreed to the Court’s jurisdiction. On August 6, 2013, for example, Plaintiffs’ counsel
e-mailed Defendants’ counsel and the Court Monitor to support the position that the
Court should extend its jurisdiction “no less than one year.” (Id. ¶ 8, Ex. D.) In this
same e-mail, Plaintiffs’ counsel wrote, “We believe the Court should determine the
length of the extension based upon its review of the ongoing issues regarding settlement
implementation, non-compliance and any other information the Court believes is
6 Importantly, the Court does not rely upon the parties’ conduct to support that Defendants have waived an objection to subject-matter jurisdiction or that Defendants consented to the Court’s jurisdiction where it did not otherwise exist. See 4:20 Commc’ns, Inc. v. Paradigm Co., 336 F.3d 775, 778 (8th Cir. 2003) (“[P]arties may not expand the limited jurisdiction of the federal courts by waiver or consent.”). Rather, the Court relies on the parties’ conduct as extrinsic evidence to aid in clarifying the ambiguity in the Agreement regarding the meaning of § XVIII.B. See Fredrich v. Indep. Sch. Dist. No. 720, 465 N.W.2d 692, 696 (Minn. Ct. App.1991) (“[T]he interpretation the parties themselves place on the contract is entitled to great, perhaps controlling, weight in ascertaining the terms of the contract.”).
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important to consider in making its determination.” (Id.) Two days later, on August 8, 2013, Defendants’ counsel wrote to the Court Monitor and Plaintiffs’ counsel that “The Department will agree that the Court’s jurisdiction over the settlement agreement may be extended from December 31, 2013 to December 31, 2014.” (O’Meara Decl. ¶ 7, Ex. C.) In addition, Plaintiffs provided a copy of a proposed order submitted on behalf of the Court Monitor and DHS on January 26, 2015 which states that “The Court has jurisdiction over the subject matter of this action, the parties, and the class.” (O’Meara Decl. ¶ 6, Ex. B.)
The Court’s own review of the record and the history of the parties’ actions in this matter also reveals probative evidence of the parties’ intent regarding the Court’s retention of jurisdiction under the Agreement. On July 17, 2012, the Court issued an order appointing the Court Monitor in response to concerns over Defendants’ noncompliance with the Agreement and explained that “[t]he Approval Order provides that the ‘Court shall retain jurisdiction over this matter for two (2) years from approval of this Agreement’ both to receive reports and information and also ‘as the Court deems just and equitable.’”7 (Doc. No. 159 at 4 (quoting Agreement § XVIII.B).)
On August 27, 2013, the Court extended its jurisdiction to December 4, 2014, consistent with the parties’ agreement described above. (See Doc. No. 223 at 3; see also Doc. No. 224 at 3.) The Court specifically stated that it did so “pursuant to 7 The Court notes that its explanation of the Agreement’s jurisdictional provision in this order could be read to support Defendants’ proposed interpretation of § XVIII.B. However, in subsequent orders, the Court clearly adopted the interpretation Plaintiffs propose. The Court finds that this only further supports that § XVIII.B is reasonably susceptible to multiple interpretations and is therefore ambiguous.
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Section XVIII.B. of the Settlement Agreement.” (Id.) Notably, the Court also stated that it “expressly reserves the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of compliance by the Defendants with the specific provisions of the Settlement Agreement, absent stipulation of the parties.” (Id.) On January 22, 2014, in an order addressing the development of an Implementation Plan, the Court again “reserve[d] the right to extend the jurisdiction of this Court beyond December 2014.” (Doc. No. 266 at 6.)
On July 24, 2014, Plaintiffs submitted a letter to the Court in response to the Court Monitor’s June 20, 2014 Community Compliance Review and Defendants’ proposed Olmstead Plan. (Doc. No. 332; see also Doc. No. 313.) In this letter, Plaintiffs’ counsel stated “[w]e respectfully suggest that the Court consider extending its jurisdiction over the Settlement by a sufficient time period to ensure sufficient compliance.” (Id. at 8.) On August 22, 2014, Defendants responded to Plaintiffs’ letter, stating: “Given the Department’s substantial compliance efforts on the JSA/CPA and the impending closure of the Cambridge facility, the Department respectfully suggests that further discussion takes place before any decisions are made to extend the Court’s jurisdiction in this matter.” (Doc. No. 338 at 4.)
On September 3, 2014, the Court issued an order addressing these letters, among other submissions. (See Doc. No. 340.) The Court determined that it was “obligated to take some action with the objective of increasing the Court Monitor’s responsibilities to: (1) oversee Defendants and ensure their accountability; and (2) expedite prompt and meaningful compliance.” (Id. at 9.) As a result, the Court explained that it would
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“extend its jurisdiction for a period of at least two additional years.” (Id.) The Court
went on to explain that “[t]he Settlement Agreement provides that the Court’s jurisdiction
would be determined ‘as the Court deems just and equitable.’” (Id. (quoting Doc.
No. 104 at 39).) The Court referenced its previous extension of jurisdiction to
December 4, 2014 and its reservation of authority to further extend jurisdiction absent the
parties’ agreement. (Id.) The Court explained:
Extending the term of the Court’s jurisdiction is clearly necessary based on the significant delays in implementation as well as the non-compliance with the Settlement Agreement. The Court concludes that at least a two-year extension is necessary in order for the Court to oversee and direct DHS to accelerate its efforts to comply with the Settlement Agreement and to fulfill the promises and proclamations made by DHS at the time of the fairness hearing when the Settlement Agreement was approved by the Court.
(Id. at 9-10.) Thus, the Court ordered the following:
The Court Monitor shall serve for as long as necessary for Defendants to achieve substantial compliance. However, it is expected that Defendants will substantially comply with the Court’s Orders by December 4, 2016. Pursuant to the Settlement Agreement § XVIII.B and § XVIII.E, and the Court’s August 28, 2013 Order, the Court’s jurisdiction is extended to December 4, 2016, and the Court expressly reserves the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of the Defendants’ compliance and absent stipulation of the parties.
(Id. at 14.)
Between February 10, 2016 and February 18, 2016, the parties filed proposals
regarding a revised reporting schedule to facilitate Defendants’ reporting to the Court on
the Olmstead Plan and the implementation of the Agreement. (See Doc. Nos. 537-43.)
Defendants’ proposal for reporting on the Agreement provided for semi-annual reporting
to be due on August 31 and February 28. (See Doc. No. 539 at 4.) In addition, this 19

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proposal provided for annual reports to cover the period of January 1 to December 31
which would be due on March 31. (Id.) With respect to Olmstead Plan reporting,
Defendants proposed quarterly status reports to be due on May 31, August 31,
November 30, and February 28, with the first such report to be due on February 29, 2016.
(Doc. No. 540-1 at 6-7.) Defendants also proposed submitting annual reports covering an
October 1 through September 30 period due each year on December 31. (Id. at 7; see
also Doc. No. 543.) On February 22, 2016, the Court issued orders establishing a
reporting schedule for both the Olmstead Plan and the Agreement. (Doc. Nos. 544, 545.)
Both orders included the following provision extending the Court’s jurisdiction:
Based on all of the above and the current status of this matter, and pursuant to the Settlement Agreement § XVIII.B and the Court’s September 3, 2014 Order (Doc. No. 340), the Court’s jurisdiction is extended to December 4, 2019. The Court expressly reserves the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of Defendants’ compliance and absent stipulation of the parties.
(Doc. No. 544 at 8; Doc. No. 545 at 6.)
On March 18, 2016, the Court imposed verification and reporting requirements
upon Defendants and identified specific verification duties for the Court Monitor. (Doc.
No. 551.) In this order, the Court stated the following regarding its jurisdiction:
On December 5, 2011, the Court approved the parties’ Stipulated Class Action Settlement Agreement . . . and reserved jurisdiction over this matter ‘to enforce compliance with the provisions of the Agreement.’ The Jensen Settlement Agreement provided that the Court would retain jurisdiction for two years ‘or as the Court deems just and equitable.’ The Court has since extended its jurisdiction on three occasions, most recently extending its jurisdiction to December 4, 2019. The Court is hopeful that substantial compliance with the Jensen Settlement Agreement will be achieved by this date.
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(Id. at 2 (citations omitted).) In light of this procedural history and the parties’ actions throughout this litigation,
the Court finds that the parties intended the Court to retain authority to exercise jurisdiction as it deems just and equitable. In particular, neither Plaintiffs nor Defendants objected to the Court’s continuing jurisdiction after the Court issued orders extending its jurisdiction pursuant to § XVIII.B. Similarly, neither party objected when the Court repeatedly “reserve[d] the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of Defendants’ compliance and absent stipulation of the parties.” (See, e.g., Doc. No. 544 at 8.) No objections were raised concerning the Court’s orders that indicated an interpretation of the “just and equitable clause” consistent with Plaintiffs’ proposed interpretation. Further, notwithstanding Defendants’ current argument that § XVIII.B plainly contemplates jurisdiction ending no later than December 4, 2014, the parties have acted for many months—in fact, years—since this date as if the Court had jurisdiction. Indeed, in February 2016, Plaintiffs and Defendants each proposed detailed reporting schedules contemplating periodic and annual reporting obligations into the future when jurisdiction had at that time been extended to only December 4, 2016.
In short, the parties’ actions demonstrate their mutual intent regarding the Court’s continuing jurisdiction over this case. The parties’ consistent recognition of the Court’s jurisdiction throughout the extensive and complex procedural history of this matter since December 4, 2014 cannot be reconciled with the narrow interpretation of § XVIII.B Defendants now propose. As the Court previously concluded, the Agreement’s
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jurisdictional provision is reasonably susceptible to both meanings proposed by the parties. In light of the extrinsic evidence, and particularly the parties’ post-agreement conduct, however, the Court finds that Plaintiffs’ proposed interpretation reflects the parties’ intent.8
CONCLUSION On December 5, 2011, the Court approved the Agreement and dismissed the claims against Defendants, “reserv[ing] continuing jurisdiction for the time period set forth in the Agreement.” (Doc. No. 136 at 2.) Because § XVIII.B. of the Agreement contemplated the Court’s retention of jurisdiction for a two-year period or “as the Court deems just and equitable,” the Court concludes that its previous extensions of jurisdiction in this matter were proper exercises of the Court’s authority. Thus, the Court presently retains jurisdiction over this matter, and Defendants’ objection to the Court’s jurisdiction is overruled. Although the Court concludes that it presently has jurisdiction, it acknowledges that the protracted nature of this litigation and the long history of settlement implementation has resulted in continued judicial oversight well beyond the initial minimum two-year period contemplated by the parties. The Court must also observe, however, that the extensions of jurisdiction in this matter have largely been attributable to Defendants’ own admitted non-compliance and delays in implementing the Agreement. 8 Because the evidence and the record reveals the parties’ intent, the Court need not apply the interpretive canon that requires construing ambiguity against the drafting party. See Swift & Co. v. Elias Farms, Inc., 539 F.3d 849, 854 (8th Cir. 2008) (“[T]his rule applies only as a last resort, after all other evidence fails to demonstrate the intent of the parties.”).
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Without revisiting such non-compliance and focusing instead on the significant progress that has been achieved in recent years, the Court believes that the time has come to see this litigation to its end.
As the Court explained in its March 18, 2016 order, Defendants have implemented numerous internal mechanisms to oversee the implementation of the Agreement and improve the lives of individuals with disabilities in this state. (See Doc. No. 551 at 4-6.) The Court noted its hope that such measures could ultimately serve as a replacement for continuing Court oversight, stating “[w]hen the Court no longer exercises jurisdiction over the Jensen Settlement Agreement, quality oversight measures such as these will ensure that Jensen’s legacy is not left an empty promise.” (Id. at 6.) With this aim in mind, the Court urges the parties to come together to evaluate what essential steps remain in the implementation of the Agreement before the Court terminates its jurisdiction over this matter.
ORDER Based upon the foregoing, IT IS HEREBY ORDERED that: 1. Defendants’ objection to the Court’s continuing jurisdiction is OVERRULED. 2. Absent further order of the Court, all reporting obligations previously imposed shall remain in place. 3. The Court will convene a bi-annual status conference in this matter in December 2017. Prior to this status conference, the parties shall meet and confer to
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discuss the essential steps that remain in Defendants’ implementation of the Agreement

before the Court can equitably terminate its jurisdiction over this matter.

Dated: June 28, 2017

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

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 CASE 0:09-cv-01775-DWF-BRT Document 673-1 Filed 12/21/17 Page 1 of 102
Minnesota Olmstead Subcabinet Annual Report on Olmstead Plan Implementation

REPORTING PERIOD Data acquired through October 31, 2017
DATE REPORT APPROVED BY SUBCABINET December 18, 2017

Annual Report on Olmstead Plan Implementation

1

Report Date: December 18, 2017

CASE 0:09-cv-01775-DWF-BRT Document 673-1 Filed 12/21/17 Page 2 of 102

Contents
I. PURPOSE OF REPORT..................................................................................................................4 EXECUTIVE SUMMARY ......................................................................................................................... 4
II. MOVEMENT FROM SEGREGATED TO INTEGRATED SETTINGS .......................................................7 ANNUAL SUMMARY OF MOVEMENT FROM SEGREGATED TO INTEGRATED .................................... 7 TRANSITION SERVICES GOAL ONE ....................................................................................................... 8 TRANSITION SERVICES GOAL TWO .................................................................................................... 14 TRANSITION SERVICES GOAL THREE.................................................................................................. 16 TRANSITION SERVICES GOAL FOUR................................................................................................... 20
III. MOVEMENT OF INDIVIDUALS FROM WAITING LISTS .................................................................23 WAITING LIST GOAL ONE ................................................................................................................... 23 WAITING LIST GOAL TWO .................................................................................................................. 24 WAITING LIST GOAL THREE................................................................................................................ 26 WAITING LIST GOAL FOUR ................................................................................................................. 28 WAITING LIST GOAL FIVE ................................................................................................................... 28
IV. QUALITY OF LIFE MEASUREMENT RESULTS................................................................................29 V. INCREASING SYSTEM CAPACITY AND OPTIONS FOR INTEGRATION.............................................31
PERSON CENTERED PLANNING GOAL ONE........................................................................................ 31 PERSON CENTERED PLANNING GOAL TWO....................................................................................... 34 HOUSING AND SERVICES GOAL ONE ................................................................................................. 36 EMPLOYMENT GOAL ONE.................................................................................................................. 37 EMPLOYMENT GOAL TWO................................................................................................................. 38 EMPLOYMENT GOAL THREE .............................................................................................................. 41 EMPLOYMENT GOAL FOUR................................................................................................................ 42 EDUCATION GOAL ONE ...................................................................................................................... 42 EDUCATION GOAL TWO ..................................................................................................................... 43 EDUCATION GOAL THREE................................................................................................................... 44 TRANSPORTATION GOAL ONE ........................................................................................................... 45 TRANSPORTATION GOAL TWO .......................................................................................................... 47 TRANSPORTATION GOAL THREE........................................................................................................ 47 TRANSPORTATION GOAL FOUR......................................................................................................... 48 HEALTH CARE GOAL ONE ................................................................................................................... 49 HEALTH CARE GOAL TWO .................................................................................................................. 50

Annual Report on Olmstead Plan Measurable Goals

2

Report Date: December 18, 2017

CASE 0:09-cv-01775-DWF-BRT Document 673-1 Filed 12/21/17 Page 3 of 102
POSITIVE SUPPORTS GOAL ONE ........................................................................................................ 52 POSITIVE SUPPORTS GOAL TWO ....................................................................................................... 53 POSITIVE SUPPORTS GOAL THREE ..................................................................................................... 54 POSITIVE SUPPORTS GOAL FOUR ...................................................................................................... 55 POSITIVE SUPPORTS GOAL FIVE ........................................................................................................ 57 CRISIS SERVICES GOAL ONE ............................................................................................................... 59 CRISIS SERVICES GOAL TWO .............................................................................................................. 60 CRISIS SERVICES GOAL THREE ............................................................................................................ 61 CRISIS SERVICES GOAL FOUR ............................................................................................................. 62 CRISIS SERVICES GOAL FIVE ............................................................................................................... 64 COMMUNITY ENGAGEMENT GOAL ONE........................................................................................... 65 PREVENTING ABUSE AND NEGLECT GOAL ONE ................................................................................ 66 PREVENTING ABUSE AND NEGLECT GOAL TWO ............................................................................... 66 PREVENTING ABUSE AND NEGLECT GOAL THREE ............................................................................. 67 PREVENTING ABUSE AND NEGLECT GOAL FOUR .............................................................................. 68 VI. COMPLIANCE REPORT ON WORKPLANS AND MID-YEAR REVIEWS .............................................69 VII. ANALYSIS OF TRENDS AND RISK AREAS .....................................................................................71 VIII. POTENTIAL AMENDMENTS TO THE PLAN ..................................................................................71 ENDNOTES.......................................................................................................................................73 ADDENDUM…………………………………………………………………………………………………………………………………….. 75

Annual Report on Olmstead Plan Measurable Goals

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I. PURPOSE OF REPORT
This Annual Report provides the status of work being done by State agencies to implement the Olmstead Plan. The Annual Report summarizes measurable goal results and analysis of data as reported in the previous four quarterly reports (February, May, August and November 2017).1
For the purpose of reporting, the measurable goals are grouped in four categories: 1. Movement of people with disabilities from segregated to integrated settings 2. Movement of individuals from waiting lists 3. Quality of life measurement results 4. Increasing system capacity and options for integration
This Annual Report dated December 18, 2017 includes data acquired through October 31, 2017. Progress on each measurable goal is reported when data is reliable and valid in order to ensure the overall report is complete, accurate, timely and verifiable. More details on the progress of the goals can be found in the quarterly reports.

This Annual Report includes Olmstead Implementation Office (OIO) compliance summary reports on status of workplans, and an analysis of trends and risk areas. The report also includes potential Plan amendments that are being considered as part of the ongoing Olmstead Plan amendment process.

EXECUTIVE SUMMARY
This Annual Report covers the fifty measurable goalsi in the Olmstead Plan. As shown in the chart below, twenty-three of the annual goals were either met or are on track to meet the annual goal.ii Seventeen of the annual goals were not met or not on track to meet the annual goals. For those seventeen goals, the report documents how the agencies will work to improve performance on each goal. Ten goals are in process.

Status of Goals - 2017 Annual Report Met annual goal On track to meet annual goal Not on track to meet annual goal Did not meet annual goal In Process Goals Reported

Number of Goals 20 3 1 16 10 50

*The status for each goal is based on the most recent annual goal reported. Each goal is counted once in the table.

1 Quarterly Reports and other related documents are available on the Olmstead Plan website [www.Mn.gov/Olmstead].

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There are a number of major activities that have been completed or are in process designed to make improvements in Olmstead Plan implementation this year.
• In October 2017, the Olmstead Subcabinet completed the second comprehensive review of the Olmstead Plan workplans. The annual results of the review of workplans can be found on page 70 of this report. Of the 294 workplan activities reviewed this year, only 7 were reported as exceptions.
• The Subcabinet has initiated the second annual Olmstead Plan amendment process. This review will include multiple opportunities for people with disabilities and the public to review and offer suggestions. The process will be completed in March 2018.
• During 2017, the Quality of Life Survey was initiated. This survey will establish a baseline. Subsequent surveys will use the baseline to measure progress on the Plan’s impact on improving quality of life for people with disabilities. A preliminary report is due to be presented to the Subcabinet in December 2017.
The following is a more detailed list of Plan accomplishments as well as goals needing more attention.
Progress on Movement of People with Disabilities from Segregated Settings to Integrated Settings
During this reporting period, people with disabilities continued to move from segregated to integrated settings. These movements are tracked in the following areas:
• More individuals are leaving Intermediate Care Facilities for Individuals with Developmental Disabilities (ICF/DD) programs to more integrated settings. In the first three quarters of the 2017 goal, 143 individuals left ICF/DD programs to more integrated settings. This exceeds the 2017 annual goal of 84.
• More individuals are leaving nursing facilities for more integrated settings. In the first three quarters of the 2017 goal, 590 individuals moved from nursing facilities. This is 80% of the 2017 annual goal.
• More individuals are leaving other segregated settings to more integrated settings. In the first three quarters of the 2017 goal, 780 individuals moved from other segregated settings to more integrated settings. This exceeds the 2017 annual goal of 400.
• There is an increase in the number of individuals exiting the Anoka Metro Regional Treatment Center (AMRTC) in a timely fashion. The percent of individuals at the AMRTC who do not need a hospital level of care has trended down over the past three quarters.
• There is an increase in the number of individuals leaving the Minnesota Security Hospital (MSH) to a more integrated setting. Over the past two quarters, the average number of individuals leaving to a more integrated setting has increased.
More People are Accessing Waiver Services Timely
The Department of Human Services adopted reasonable pace goals and began measuring performance in 2015. Since then, data shows fewer people are waiting to access waiver services.
• Successful efforts to provide individuals access to the CADI waiver have prevented the need for a waiting list since October 2016.
• There are fewer individuals waiting for access to a DD waiver. At the end of the most recently reported quarter there were 152 individuals waiting to access waiver services, compared to 237 the previous quarter.

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Increasing System Capacity and Options for Integration
There continues to be increased capacity and options for integration in housing and employment. During this reporting period:
• More people gained access to integrated housing. There was an increase of 998 individuals accessing housing or 98% of the annual goal.
• There was an increase in the number of individuals obtaining competitive integrated employment. Over 2,066 individuals found employment exceeding the annual goal of 1,500.
The emergency use of manual restraint continues to decrease.
• Fewer people are experiencing emergency use of manual restraint. There was a reduction of 69 individuals or 9% from the previous year.
The following measurable goals have been targeted for improvement:
Goals below have been identified as not meeting projected targets. The agencies, OIO compliance staff, and the Subcabinet are providing increased oversight until projected targets are met.
• Transition Services Goal Four to increase the percent of individual’s transition plans that meet the required person centered practices protocols.
• Waiting List Goal Three to eliminate the waiting list for persons in the Institutional Exit and Defined Need categories.
• Person-Centered Planning Goal One to increase the percent of individual’s plans that meet the required protocols.
• Positive Supports Goal Three A to reduce the number of reports of emergency use of mechanical restraints with approved individuals.
• Housing and Services Goal One to increase the number of individuals living in integrated housing. • Lifelong Learning and Education Goal Two to increase the number of students with disabilities
enrolling in an integrated postsecondary education setting. • Crisis Services Goal Four A to increase the percent of people housed five months after being
discharged from the hospital.
The Olmstead Plan is not intended to be a static document that establishes a one-time set of goals for State agencies. Rather, it is intended to serve as a vital, dynamic roadmap that will help realize the Subcabinet’s vision of people with disabilities living, learning, working, and enjoying life in the most integrated settings. The dynamic nature of the Plan means that the Olmstead Subcabinet regularly examines the goals, strategies, and workplan activities to ensure that they are the most effective means to achieve meaningful change.
The ultimate success of the Olmstead Plan will be measured by an increase in the number of people with disabilities who, based upon their choices, live close to their friends and family as independently as possible, work in competitive, integrated employment, are educated in integrated school settings, and fully participate in community life. While there is much work to be done to achieve the goals of the Olmstead Plan, significant strides have been made in the last year. It is anticipated that future reports will include additional indicators of important progress towards these larger goals.

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II. MOVEMENT FROM SEGREGATED TO INTEGRATED SETTINGS
This section reports on the progress of six separate Olmstead Plan goals that assess movement of individuals from segregated to integrated settings.

ANNUAL SUMMARY OF MOVEMENT FROM SEGREGATED TO INTEGRATED The table below indicates the number of individuals who moved from various segregated settings to integrated settings for the goals included in this section. The reporting period for each goal is based on the reporting period of the annual goal.

Net number of individuals who moved from segregated to integrated settings as reported for the

annual goal:

Annual Reporting Number

Setting

period

moved

• Intermediate Care Facilities for Individuals with

July 2015 –

81

Developmental Disabilities (ICFs/DD)

June 2016

• Nursing Facilities

July 2015 –

729

June 2016

• Other segregated settings

July 2015 –

1,051

June 2016

• Anoka Metro Regional Treatment Center (AMRTC)

July 2016 –

110

June 2017

• Minnesota Security Hospital (MSH)

January –

84

December 2016

Net number who moved from segregated to integrated settings

2,055

More detailed information for each specific goal is included below. The information includes the overall goal, the annual goal, baseline, results for the reporting period, analysis of the data and a comment on performance.

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ANALYSIS OF DATA: The 2016 goal of 84 was not met. From July 2015 – June 2016, the number of people moving from an ICF/DD to a more integrated setting was 81.
For the 2017 goal, during the first three quarters, 143 people moved from an ICF/DD to a more integrated setting which exceeds the annual goal of 84.
COMMENT ON PERFORMANCE: DHS provides reports to counties about persons in ICFs/DD who are not opposed to moving with community services, as based on their last assessment. As part of the current reassessment process, individuals are being asked whether they would like to explore alternative community services in the next 12 months. Some individuals who expressed an interest in moving changed their minds, or they would like a longer planning period before they move.
For those leaving an institutional setting, such as an ICF/DD, the Olmstead Plan reasonable pace goal is to ensure access to waiver services funding within 45 days of requesting community services. DHS monitors and provides technical assistance to counties in providing timely access to the funding and planning necessary to facilitate a transition to community services.
A Person-Centered Planning, Informed Choice and Transition Protocol was approved by the Olmstead Executive Committee in February 2016. A revision including minor edits was approved by the Olmstead Subcabinet in March 2017. Trainings and presentations are being provided to increase education and technical assistance on housing subsidies, methods of working with landlords, and services available to do so, as well as different services that are available to support people as they move from an ICF/DD to an integrated setting.
DHS continues to work with private providers and Minnesota State Operated Community Services (MSOCS) that have expressed an interest in voluntary closures of ICFs/DD. A total of 11 out of 15 MSOCS ICFs/DD converted since January 2017, for a reduction of 66 state-operated ICF/DD beds. One additional ICF/DD facility, serving two people is scheduled to convert in November 2017. DHS is working with one county to determine whether the state or another provider will serve individuals in three more state-operated ICFs. No timeline for conversion of these homes has been confirmed.
TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported six months after the end of the reporting period.

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ANALYSIS OF DATA: The 2015 goal of 50 was met. From July 2014 – June 2015, of the 5,703 individuals moving from segregated housing, 1,137 individuals (19.9%) moved to a more integrated setting.
The 2016 goal of 250 was met. From July 2015 – June 2016, of the 5,603 individuals moving from segregated housing, 1,051 individuals (18.7%) moved to a more integrated setting.
For the 2017 goal, during the first three quarters, 780 individuals moved to a more integrated setting which exceeds the annual goal of 400.
COMMENT ON PERFORMANCE: There were significantly more individuals who moved to more integrated settings in the last 3 quarters (19.3%) than who moved to congregate settings (8.9%). This analysis also illustrates the number of individuals who are no longer on MA and who are not receiving residential services as defined below.
The data indicates that a large percentage (63.1%) of individuals who moved from segregated housing are not receiving publicly funded residential services. Based on trends identified in data development for Crisis Services Goal Four, it is assumed the majority of those people are housed in their own or their family’s home and are not in a congregate setting.
COMMENT ON TABLE HEADINGS: The language below provides context and data definitions for the headings in the table above.
Total Moves: Total number of people in one of the following settings for 90 days or more and had a change in status during the reporting period: • Adult corporate foster care • Supervised living facilities • Supported living services (DD waiver foster care or in own home) • Board and Care or Board and Lodge facilities
Moves are counted when someone moves to one of the following: • More Integrated Setting (DHS paid) • Congregate Setting (DHS paid) • No longer on Medical Assistance (MA) • Not receiving residential services (DHS paid) • Deaths are not counted in the total moved column
Moved to More Integrated Setting: Total number of people that moved from a congregate setting to one of the following DHS paid settings for at least 90 days: • Adult family foster care • Adult corporate foster care (when moving from Board and Care or Board and Lodge facilities) • Child foster care waiver • Housing with services • Supportive housing • Waiver non-residential • Supervised living facilities (when moving from Board and Care or Board and Lodge facilities)

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Moved to Congregate Setting: Total number of people that moved from one DHS paid congregate setting to another for at least 90 days. DHS paid congregate settings include: • Board and Care or Board and Lodge facilities • Intermediate Care Facilities (ICFs/DD) • Nursing facilities (NF)
No Longer on MA: People who currently do not have an open file on public programs in MAXIS or MMIS data systems.
Not Receiving Residential Services: People in this group are on Medical Assistance to pay for basic care, drugs, mental health treatment, etc. This group does not use other DHS paid services such as waivers, home care or institutional services. The data used to identify moves comes from two different data systems: Medicaid Management Information System (MMIS) and MAXIS. People may have addresses or living situations identified in either or both systems. DHS is unable to use the address data to determine if the person moved to a more integrated setting or a congregate setting; or if a person’s new setting was obtained less than 90 days after leaving a congregate setting.
Based on trends identified in data development for Crisis Services Goal Four, it is assumed the majority of these people are housed in their own or their family’s home and are not in a congregate setting.
TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported six months after the end of the reporting period.

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Community providers often lack capacity to serve individuals who exhibit these behaviors: • Violent or aggressive behavior (i.e. hitting others, property destruction, past criminal acts); • Predatory or sexually inappropriate behavior; • High risk for self-injury (i.e. swallowing objects, suicide attempts); and • Unwillingness to take medication in the community.
Ongoing efforts are facilitated to improve the discharge planning process for those served at AMRTC: • Improvements in the treatment planning process to better facilitate collaboration with county partners. AMRTC has increased collaboration efforts to foster participation with county partners to aid in identifying more applicable community placements and resources for individuals awaiting discharge. • Improvements in AMRTC’s notification process for individuals who no longer meet hospital criteria of care to county partners and other key stakeholders to ensure that all parties involved are informed of changes in the individual’s status and resources are allocated towards discharge planning.

In order to meet timely discharge, individual treatment planning is necessary for individuals under mental health commitment who no longer need hospital level of care. This can involve the development of living situations tailored to meet their individualized needs which can be a very lengthy process. AMRTC continues to collaborate with county partners to identify, expand, and develop integrated community settings.

DHS is convening a cross-division, cross-administration working group to improve the timely discharge of individuals at MSH and AMRTC to identify: barriers, current and future strategies, and any needed efficiencies that could be developed between AMRTC and MSH to support movement to community. Counties and community providers will be consulted and engaged in this effort as well. DHS will report back to the Olmstead Subcabinet on these efforts annually starting December 31, 2018.

TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported one month after the end of the reporting period.

TRANSITION SERVICES GOAL THREE: By December 31, 2019, the average monthly number of

individuals leaving Minnesota Security Hospital to a more integrated setting will increase to 10

individuals per month.

[Revised in February 2017]

This goal was established in 2015 based on all discharges from Minnesota Security Hospital. The baseline, overall goal and annual goals were amended in the February 2017 Plan. Progress on the 2016 Goal was reported in the February 2017 Quarterly Report. In light of the revisions, the 2016 goal is being reported again utilizing the new annual goal. The 2017 goal is also being reported.

Annual Goals • 2016 Goal: By December 31, 2016 the average monthly number of individuals leaving to a more
integrated setting will increase to ≥ 7 • 2017 goal: By December 31, 2017 the average monthly number of individuals leaving to a more
integrated setting will increase to ≥ 8

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commitments include Mentally Ill (MI), Mentally Ill and Chemically Dependent (MI/CD), Mentally Ill and Developmentally Disabled (MI/DD).
One identified barrier is the limited number of providers with the capacity to serve: • Individuals with Level 3 predatory offender designation; • Individuals over the age of 65 who require either adult foster care, skilled nursing, or nursing home
level care; • Individuals with DD/ID with high behavioral acuity; and • Individuals who are undocumented.
Ongoing efforts are facilitated to enhance discharges for those served at Forensic Services, including: • Collaboration with county partners to identify those individuals who have reached maximum benefit
from treatment. • Collaboration with county partners to identify community providers and expand community
capacity (with specialized providers/utilization of Minnesota State Operated Community Services). • Utilization of the Forensic Review Panel, an internal administrative group, whose role is to review
individuals served for reductions in custody (under MI&D Commitment), and who may be served in a more integrated setting. o The Forensic Review Panel also serves to offer treatment recommendations that could assist the
individual’s growth/skill development, when necessary, to aid in preparing for community reintegration. • Collaboration with DHS/Direct Care and Treatment entities to expand community capacity and individualized services for a person’s transitioning (Whatever It Takes, Licensing Division, and Disability Services Division).
Restore to Competency Individuals under competency restoration treatment, Minn. R. Crim. R. 20.01, may be served in any program at Forensic Services. Primarily CRP serves this population, and the majority of individuals are placed under a concurrent civil commitment to the Commissioner, as Mentally Ill. The limited purpose of CRP services is to restore a person’s capacity to meaningfully participate in criminal proceedings, and his/her discharge is governed by the criminal court.
Competency restoration treatment may also be paired with a civil commitment of MI&D. These individuals would be served at MSH, and in rare circumstances Transition Services or the Forensic Nursing Home. For this report, the “Restore to Competency” category represents any individual who had been under court ordered competency restoration treatment, though not under commitment as MI&D (as transitions to more integrated settings for those under MI&D requires Special Review Board review and Commissioner’s Order).
• All individuals at CRP competency entered the program under “treat to competency” orders. • Forensic Services has expanded programming to individuals under “treat to competency”, by
opening a Community Competency Restoration Program in the St. Peter community. • While AMRTC continues to provide care to those who may be under this legal status, individuals
referred to CRP in St Peter are determined to no longer require hospital-level care.
DHS is convening a cross-division, cross-administration working group to improve the timely discharge of individuals at MSH and AMRTC to identify barriers, current and future strategies, and any needed

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efficiencies that could be developed between AMRTC and MSH to support movement to community. Counties and community providers will be consulted and engaged in this effort as well. DHS will report back to the Olmstead Subcabinet on these efforts annually starting December 31, 2018.
TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported one month after the end of the reporting period.

TRANSITION SERVICES GOAL FOUR: By June 30, 2018, 50% of people who transition from a segregated setting will engage in a person centered planning process that adheres to transition protocols that meet the principles of person centered planning and informed choice.
The Person-Centered Planning, Informed Choice and Transition Protocol was approved by the Subcabinet Executive Committee on February 10, 2016. A revision including minor edits was approved by the Olmstead Subcabinet in March 2017. When people express an interest and are making a transition, lead agency staff are required to apply the protocol. The first time data became available for this goal was July 2016. A new baseline was established and approved by the Subcabinet on February 27, 2017 and is included below.
Annual Goal • 2017 Goal7: By June 30, 2017, the percent of those choosing to move to a more integrated setting
who have a plan that adheres to transition protocols that meet the principles of person-centered planning and informed choice will increase to 30%.

Baseline: From July – September 2016, of the 31 transition cases reviewed, four cases (12.9%) adhered to transition protocols that meet the principles of person-centered planning and informed choice.

RESULTS: The 2017 goal of 30% was not met.

[Last reported in November 2017]

Time period
Quarter 1 July – Sept 2016 Quarter 2 Oct – Dec 2016 Quarter 3 Jan – March 2017 Quarter 4 April – July 2017 Annual July 2016 – June 2017

Total number of cases reviewed (disability waivers)
289

Number of transition cases reviewed
(disability waivers)
31

Number of cases meeting
protocols
4

% of cases meeting protocols
12.9%

311

23

6

26%

386

27

2

7%

213

34

2

6%

1,199

115

14

12.2%

7 Data was not available to measure progress on the 2016 goal.

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ANALYSIS OF DATA: The DHS Lead Agency Review implemented case file review protocols beginning July 2016 to monitor lead agencies implementation of the Person-Centered, Informed Choice and Transition Protocol. A sample of people who have been identified as having a transition in their living setting were added to the case file review.
During July 2016 – June 2017, DHS reviewed 1,199 case files through the lead agency review process to determine the percent of people choosing to move to a more integrated setting who have a plan that “adheres to transition protocols that meet the principles of person-centered planning and informed choice”. Of these case files, 115 indicated a transition had occurred. Fourteen (12.2%) of the 115 case files met the criteria of person-centered planning and informed choice. The 2017 annual goal to increase to 30 percent of plans that adhere to transition protocol standards was not met.
COMMENT ON PERFORMANCE: The Person-Centered, Informed Choice and Transition Protocols were initiated with lead agencies in July of 2016. Since the lead agency review looks at documentation completed up to 364 days prior to the site visit, reviews through the first three quarters of 2017 included plans that were written before the protocol was issued.
Since July 2016, the Lead Agency Review Team has made recommendations to each county visited on how to improve their person-centered practices. Counties are in varying stages on their person-centered journey. The recommendations encourage lead agencies to set expectations for the quality and content of support plans as well as to seek out and provide training for their staff on providing person-centered practices. This may involve changes in agency practices as well as changes to how agencies work with their community partners.
Beginning in January 2018, DHS will require individual remediation when lead agencies do not comply with the person-centered protocols. When findings from a case file review indicate that files do not contain all required documentation, the agency will be required to bring all cases into full compliance by obtaining or correcting the documentation. All corrections must be made within 60 days of the Lead Agency Review site visits. Corrective action plans will be required when patterns of non-compliance are evident.
DHS conducted regional day-long training and technical assistance sessions with counties and tribes during May through September 2017. Due to high demand, DHS has scheduled an additional five training sessions through December 2017. A supervisor tool kit is being developed to support counties, tribes and contracted case management providers in the oversight of plan development according to the protocol. The expectation is that the number of plans that adhere to the protocols will increase over time and during 2018.
Criteria used in case file reviews The plan is considered to meet the person-centered protocols if all eight items below are present: 1. The support plan describes goals or skills that are related to the person’s preferences. 2. The support plan includes a global statement about the person’s dreams and aspirations. 3. Opportunities for choice in the person’s current environment are described. 4. The person’s current rituals and routines are described. 5. Social, leisure, or religious activities the person wants to participate in are described.

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6. Action steps describing what needs to be done to assist the person in achieving his/her goals or skills are described.
7. The person’s preferred living setting is identified. 8. The person’s preferred work activities are identified.
The plan is considered to meet the transition protocols if all ten items below (from “My Move Plan” document) are present:
1. Where is the person moving? 2. Date and time the move will occur. 3. Who will help the person prepare for the move? 4. Who will help with adjustment during and after the move? 5. Who will take the person to new residence? 6. How the person will get his or her belongings. 7. Medications and medication schedule. 8. Upcoming appointments. 9. Who will provide support after the move; what they will provide and how to contact those people
(include informal and paid support), including supporting the person to adjust to the changes. 10. Back-up plans for what the person will do in emergencies, such as failure of service provider to show
up on schedule, unexpected loss of provider or mental health crisis.
TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported three months after the end of the reporting period.

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IMMEDIATE NEED CATEGORY

Time period
January – March 2016 April – June 2016 July – September 2016 October – December 2016 January – March 2017 April – June 2017

Number of people assessed Still on waiting list at end of period

93

10 (11%)

126

10 (8%)

100

14 (14%)

89

7 (8%)

90

12 (13%)

117

17 (14%)

ANALYSIS OF DATA: In the most recent quarter reported (April - June 2017), for persons in the Institutional Exit category, five individuals (14%) remained on the DD waiver waiting list at the end of the reporting period. For persons in the Immediate Need category, seventeen individuals (14%) remained on the DD waiver waiting list at the end of the reporting period. The goal to eliminate the waiting list for these two categories was not met.

COMMENT ON PERFORMANCE: DHS focuses its technical assistance on approving waiver funding for persons in the Institutional Exit and Immediate Need categories. DHS directly contacts lead agencies if people in these categories have been waiting longer than 45 days. If this goal is not met, DHS continues to provide technical assistance to the lead agency to approve funding for persons in these categories.
Lead agencies may encounter waiting list situations on an intermittent basis, requiring DHS to engage with each agency to resolve individual situations. When a waiting list issue arises, a lead agency may be unfamiliar with the reasonable pace funding requirement due to the infrequency of this issue at their particular agency. DHS continues to provide training and technical assistance to lead agencies as waiting list issues occur and has added staff resources to monitor compliance with reasonable pace goals.

The proportion of people in the Institutional Exit category who were still on the waiting list in this quarter remained relatively constant from previous quarters. The overall goal to eliminate the Institutional Exit and Immediate Need categories was not met. Demonstrating complete elimination of these categories is challenging as, because of the process used to screen new DD waiver recipients, most new recipients will appear on the waiting list prior to accessing the waiver. DHS plans to recommend updates to this goal during the Olmstead Plan amendment process to better define success as people in these two categories accessing waiver funding at a reasonable pace. Going forward, DHS will work with lead agencies to continue to approve funding according to the reasonable pace goals.
TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported four months after the end of the reporting period.

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WAITING LIST GOAL FOUR: By December 31, 2018, within available funding limits, waiver funding will be authorized for persons who are assessed and have a defined need on or after December 1, 2015, and have been on the waiting list for more than three years.
RESULTS: This goal is in process. DHS began collecting new DD waiting list data beginning December 1, 2015. As of the date of this report, three years have not passed since this implementation date. This data will be available in December 2018 and will be reported the next quarterly report following both the Annual Goal measurement date and a determination that the data is reliable and valid.

WAITING LIST GOAL FIVE: By June 30, 2020, the DD waiver waiting list will be eliminated, within available funding limits, for persons with a defined need.

RESULTS: This goal is in process.
DEFINED NEED CATEGORY Time period
January – March 2016 April – June 2016 July – September 2016 October – December 2016 January – March 2017 April – June 2017

[Last reported in November 2017]
Number of people assessed 217 323 285 257 288 353

Still on waiting list
74 (34%) 102 (32%)
88 (31%) 65 (25%) 81 (28%) 63 (18 %)

ANALYSIS OF DATA: In the most recent quarter reported (April – June 2017), for persons in the Defined Need category, 63 people (18%) out of 353 people remained on the DD waiver waiting list.
COMMENT ON PERFORMANCE: DHS encourages lead agencies to approve funding for persons in the Defined Need category following approval of persons in the Institutional Exit and Immediate Need categories and as waiver budget capacity allows. If a lead agency makes a determination that it does not have sufficient capacity to approve funding for persons in the Defined Need category, DHS expects the lead agency to maintain a budget reserve of 3% or less, pursuant to Minnesota statute.
In this quarter, the proportion of people who were still on the waiting list in the Defined Need category decreased from the previous quarter.
TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported four months after the end of the reporting period.

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IV. QUALITY OF LIFE MEASUREMENT RESULTS
The results for the 2016 National Core Indicator (NCI) survey for individuals with intellectual and developmental disabilities were published in June 2017. [Reported in August 2017] The national results of the NCI survey are available on their website at www.nationalcoreindicators.org. The Minnesota state reports are also available on the NCI website at www.nationalcoreindicators.org/states/MN. In Minnesota, 428 individuals were interviewed for the 2016 survey.

Summary of National Core Indicator Survey Results from Minnesota in 2015 - 2016 Each year, NCI asks people with intellectual and developmental disabilities and their families about the services they get and how they feel about them. NCI uses surveys so that the same questions can be asked to a large group. Each year people in many states take part in an NCI meeting. Every year a new group of people are asked to meet. During the meeting people are asked the NCI survey questions. The questions are asked of the person who gets services from the state. For some questions, a family member, friend, or staff member who knows the person well can answer. The summary below shows the answers that people gave to some of the NCI survey questions.

2015 - 2016

Question

Yes No

Do you have a paid job in your community?

41% 59%

Would you like a job in the community

52% 48%

Do you like where you work?

92% 8%

Do you want to work somewhere else?

34% 66%

Did you go out shopping in the past month?*

92% 8%

Did you go out on errands in the past month?*

91% 9%

Did you go out for entertainment in the past month?*

83% 17%

Did you go out to eat in the past month?*

86% 14%

Did you go out for a religious or spiritual service in the past month?*

46% 54%

Did you participate in community groups or other activities in community in past month?

37% 63%

Did you go on vacation in the past year?

58% 42%

Did you have input in choosing your home?

56% 44%

Did you have input in choosing your roommates?

34% 66%

Do you have friends other than staff and family?

83% 17%

Can you see your friends when you want to?

77% 23%

Can you see and/or communicate with family whenever you want?

94% 6%

Do you often feel lonely?

11% 89%

Do you like your home?

89% 11%

Do you want to live somewhere else?

29% 71%

Does your case manager ask what you want?

89% 11%

Are you able to contact case manager when you want?

87% 13%

Is there at least one place you feel afraid or scared?

30% 70%

Can you lock your bedroom?

42% 58%

Do you have a place to be alone at home?

99% 1%

Have you gone to a self-advocacy meeting?

30% 70%

*Asked the number of times an activity occurred in the past month. The “No” percentage indicates an

answer of 0 times.

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QUALITY OF LIFE SURVEY The Quality of Life Survey Administration Plan is currently being implemented by The Improve Group. The survey is expected to include data from 2,000 surveys.
The Improve Group: • Continues to obtain consent releases and schedule appointments • Maintains communications with lead agencies and service providers and coordinated
communications with OIO and the agencies • Continues to interview individuals for the Quality of Life Survey • Continues to strategically navigate through various barriers to obtain access and consents from
guardianship services, guardians and providers • Continues strategic outreach efforts in partnership with DHS and DEED to secure consents
Data as of October 25, 2017: • More than 1,600 interviews have been completed • 161 interviews have been scheduled
The OIO and the Improve Group are meeting weekly to provide support, troubleshoot problems, and monitor survey implementation.
December 2017 Update: As of November 30, 2017, 2005 surveys were completed.

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V. INCREASING SYSTEM CAPACITY AND OPTIONS FOR INTEGRATION
This section reports on the progress of measurable goals related to increasing capacity of the system and options for integration.

PERSON-CENTERED PLANNING GOAL ONE: By June 30, 2020, plans for people using disability home and community-based waiver services will meet required protocols. Protocols will be based on the principles of person centered planning and informed choice.

The Person-Centered Planning, Informed Choice and Transition Protocol was approved by the Subcabinet Executive Committee on February 10, 2016. A revision including minor edits was approved by the Olmstead Subcabinet in March 2017. When people express an interest and are making a transition, lead agency staff are required to apply the protocol.
The first time data became available for this goal was July 2016. A new baseline was established and approved by the Subcabinet on February 27, 2017 and is included below.

Baseline: During the period July 2014 – June 2015, 38,550 people were served by disability home and community based services. From July – September 2016, of the 31 transition cases reviewed, four cases (12.9%) adhered to transition protocols that meet the principles of person-centered planning and informed choice.
Annual Goal • 2017 Goal8: By June 30, 2017, the percent of those choosing to move to a more integrated setting
who have a plan that adheres to transition protocols that meet the principles of person-centered planning and informed choice will increase to 30%.

RESULTS: The 2017 goal of 50% was not met.

[Last updated in November 2017]

Time Period
Quarter 1 July – Sept 2016 Quarter 2 Oct – Dec 2016 Quarter 3 Jan – March 2017 Quarter 4 April – June 2017 Annual July 2016 – June 2017

Total number of cases
(disability waivers)

Sample of cases reviewed
(disability waivers)

Number of cases meeting
protocols

Percent of cases meeting
protocols

1,682

289

47

16.3%

2,030

311

57

18.3%

3,311

386

48

12.4%

1,357

213

15

7%

8,380

1,199

167

13.9%

8 Data was not available to measure progress on the 2016 goal.

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ANALYSIS OF DATA: From June 2016 - July 2017, 1,199 files were reviewed. Of those files, 167 (13.9%) were identified as having plans that were person-centered. The 2017 goal of 50% was not met. Because different counties are reviewed each quarter, the change in percent from one quarter to the next does not mean the counties from the previous quarter are doing better or worse.
In July 2016, the DHS Lead Agency Review began monitoring lead agency implementation of the PersonCentered, Informed Choice and Transition Protocol9. Though lead agencies are responsible to ensure each person has a support plan that includes all required person-centered elements, the Lead Agency Review is focusing on key areas of the protocol.
The Lead Agency Review team looks at twenty-five person-centered items for the disability waiver programs (Brain Injury (BI), Community Alternative Care (CAC), Community Alternatives for Disability Inclusion (CADI) and Developmental Disabilities (DD)). Of those twenty-five items, eight were identified as being cornerstones of a person-centered plan. If all eight items are present, the plan is considered to meet the person-centered protocols.
The eight key areas are listed below. 1. The support plan describes goals or skills that are related to the person’s preferences. 2. The support plan includes a global statement about the person’s dreams and aspirations. 3. Opportunities for choice in the person’s current environment are described. 4. The person’s current rituals and routines are described. 5. Social, leisure, or religious activities the person wants to participate in are described. 6. Action steps describing what needs to be done to assist the person in achieving his/her goals or skills
are described. 7. The person’s preferred living setting is identified. 8. The person’s preferred work activities are identified.
Current DHS standard requires that all eight items are present in the support plan (or in supporting documents, i.e. assessment or case notes) held by the lead agency. If one of the eight items is missing, the support plan is considered as not meeting the protocols of a person-centered plan. The item most commonly missing is item two, “The support plan includes a global statement about the person’s dreams and aspirations.”
If the requirement for item 2 were not included in the calculation and only seven items were counted, the compliance for Quarter 4 would increase from 7% to 33%. DHS is evaluating the method for reporting data collected via the lead agency review process and whether the current way of requiring all eight items is an accurate reflection of what is happening in lead agencies. DHS will make recommendations during the Olmstead Plan amendment process of any changes necessary.

9 A Person-Centered Planning, Informed Choice and Transition Protocol was approved by the Olmstead Executive Committee in February 2016. A revision including minor edits was approved by the Olmstead Subcabinet in March 2017.

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Counties Participating in Audits*

July – September 2015
1. Koochiching 2. Itasca 3. Wadena 4. Red Lake 5. Mahnomen 6. Norman

October – December 2015
7. Mille Lacs 8. Faribault 9. Martin 10. St. Louis 11. Isanti 12. Olmsted

January – March 2016
13. Hennepin 14. Carver 15. Wright 16. Goodhue 17. Wabasha 18. Crow Wing

April – June 2016
19. Renville 20. Traverse 21. Douglas 22. Pope 23. Stevens 24. Grant 25. Freeborn 26. Mower 27. Lac Qui Parle 28. Chippewa 29. Ottertail

July – September 2016 30. Hubbard 31. Cass 32. Nobles 33. Becker 34. Clearwater

October – December 2016
38. Cook 39. Fillmore 40. Houston 41. Lake 42. SW Alliance11

January – March 2017 44. Chisago 45. Anoka 46. Sherburne

April – June 2017
47. MN Prairie Alliance10 48. Morrison 49. Yellow Medicine 50. Todd
51. Beltrami

*Agencies visited are sequenced in a specific order approved by Centers for Medicare and Medicaid Services (CMS)

COMMENT ON PERFORMANCE: The Person-Centered, Informed Choice and Transition Protocols were initiated with lead agencies in July of 2016. Since the lead agency review looks at documentation completed up to 364 days prior to the site visit, reviews through the first three quarters of 2017 included plans that were written before the protocol was issued.

Since July 2016, the Lead Agency Review Team has made recommendations to each county visited on how to improve their person-centered practices. Counties are in varying stages on their person-centered journey. The recommendations encourage lead agencies to set expectations for the quality and content of support plans as well as to seek out and provide training for their staff on providing person-centered practices. This may involve changes in agency practices as well as changes to how agencies work with their community partners.
Beginning in January 2018, DHS will require individual remediation when lead agencies do not comply with the person-centered review protocols. When findings from case file review indicate files did not contain all required documentation, the agency is required to bring all cases into full compliance by obtaining or correcting the documentation. All corrections must be made within 60 days of the Lead

10 The MN Prairie Alliance includes Dodge, Steele, and Waseca counties. 11 The SW Alliance includes Lincoln, Lyon, Murray, Pipestone, Redwood, and Rock counties.

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Agency Review site visits. Corrective action plans will be required when patterns of non-compliance are evident.
DHS conducted regional day-long training and technical assistance sessions with counties and tribes during May through September 2017. Due to high demand, DHS has scheduled an additional five training sessions through December 2017. A supervisor tool kit is being developed to support counties, tribes and contracted case management providers in the oversight of plan development according to the protocol. The expectation is that the number of plans that adhere to the protocols will increase over time and during 2018.
TIMELINESS OF DATA: In order for this data to be reliable and valid, it will be reported three months after the end of the reporting period.

PERSON CENTERED PLANNING GOAL TWO: By 2017, increase the percent of individuals with disabilities who report that they exercised informed choice, using each individual’s experience regarding their ability: to make or have input into major life decisions and everyday decisions, and to be always in charge of their services and supports, as measured by the National Core Indicators (NCI) survey.

A) INPUT INTO MAJOR LIFE DECISIONS
2016 Goal • By 2016, increase the percent of people with intellectual and developmental disabilities (I/DD)
who report they have input into major life decisions to 50% or higher

Baseline: In the 2014 NCI Survey, 40% reported they had input into major life decisions.
RESULTS: The 2016 goal was met. [Reported in May 2017]

Time Period
2015 survey 2016 survey

Number Surveyed
400 427

Percent reporting they have input into major life decisions
44.3% 64%

ANALYSIS OF DATA: The 2016 goal to increase to 50% or greater was met. The 2016 NCI survey results indicated that 64% of people reported they have input into major life decisions.

The 2017 goal will be reported after the 2017 NCI survey results become available.

COMMENT ON PERFORMANCE: Significant gains were made regardless of what setting people live in (ICF/DD, community group residential setting, own home or parent/family home). That said, people living in ICFs/DD (61%) or community group residential setting (50%) were significantly less likely than those in their own (80%) or parent/family home (77%) to report having input into major life decisions.

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The population surveyed in the 2016 survey included adults with Intellectual or Developmental Disabilities (I/DD) who get case management services and at least one other service.
TIMELINESS OF DATA: The NCI survey is completed annually. Survey results are available from the national vendor once the results are determined to be reliable and valid.

B) INPUT IN EVERYDAY DECISIONS

2016 Goal • By 2016, increase the percent of people with intellectual and developmental disabilities who report
they make or have input in everyday decisions to 85% or higher

Baseline: In the 2014 NCI Survey, 79% reported they had input into everyday decisions
RESULTS: The 2016 goal was met. [Reported in May 2017]

Time Period
2015 survey 2016 survey

Number Surveyed
400 427

Percent reporting they have input in everyday decisions
84.9% 87%

ANALYSIS OF DATA: The 2016 goal to increase to 85% or greater was met. The 2016 NCI survey results indicated that 87% of people reported they have input in everyday decisions.
The 2017 goal will be reported after the 2017 NCI survey results become available.

COMMENT ON PERFORMANCE: The 2016 goal of 85% or greater was achieved regardless of living arrangement. People living with parents/family were the least likely to report control over everyday decisions (86%) compared with 92% of people who live in their own home or apartment. Eighty-eight percent of the people living in ICFs/DD and 89% of those living in community-based group residential settings report having input into everyday decisions. The population surveyed in the 2016 survey included adults with Intellectual or Developmental Disabilities (I/DD) who get case management services and at least one other service.
TIMELINESS OF DATA: The NCI survey is completed annually. Survey results are available from the national vendor once the results are determined to be reliable and valid.

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C) ALWAYS IN CHARGE OF THEIR SERVICES AND SUPPORTS

2016 Goal • By 2016, increase the percent of people with disabilities other than I/DD who report they are always in charge of their services and supports to 75% or higher

Baseline: In the 2014 NCI Survey, 65% reported they were always in charge of their services and supports.

RESULTS: The 2016 goal was not met.

[Reported in May 2017]

Time Period Number Surveyed

Percent reporting they are always in

charge of their services and supports

2016 survey

1,962

72%

ANALYSIS OF DATA: The 2016 NCI survey results indicated that 72% of people reported they are always in charge of their services and supports. The 2016 goal of 75% or greater was not met.

The 2017 goal will be reported after the 2017 NCI survey results become available.

COMMENT ON PERFORMANCE: The population surveyed in the 2016 survey included adults with a physical disability as identified on a long-term services and supports assessment for Community Alternative Care (CAC), Community Access for Disability Inclusion (CADI), Brain Injury (BI) waivers, Home Care services or Developmental Disability screening document and who receive case management and at least one other service.

TIMELINESS OF DATA: The NCI survey is completed annually. Survey results are available from the national vendor once the results are determined to be reliable and valid.

HOUSING AND SERVICES GOAL ONE: By June 30, 2019, the number of people with disabilities who live in the most integrated housing of their choice where they have a signed lease and receive financial support to pay for the cost of their housing will increase by 5,547 (from 6,017 to 11,564 or about a 92% increase).

2017 Goal • By June 30, 2017 the number of people with disabilities who live in the most integrated housing of
their choice where they have a signed lease with a signed lease and receive financial support to pay for the cost of their housing will increase by 2,638 over baseline to 8,655 (about 44% increase)
Baseline: From July 2013 – June 2014, there were an estimated 38,079 people living in segregated settings. Over the 10 year period ending June 30, 2014, 6,017 individuals with disabilities moved from segregated settings into integrated housing of their choice where they have a signed lease and receive financial support to pay for the cost of their housing. Therefore, 6,017 is the baseline for this measure.

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ANALYSIS OF DATA: The 2016 goal of 2,911 people with disabilities working in competitive integrated employment was met. From October 2015 – September 2016, 3,248 people with disabilities secured competitive integrated employment. This number represents an increase of 510 over the baseline.

COMMENT ON PERFORMANCE: During October 2015 – September 2016, Minnesota’s economy was strong. The health of the state’s economy and the demand for qualified workers was a positive factor affecting the number of people with disabilities successfully achieving competitive integrated employment.
TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported two months after the end of the reporting period.

EMPLOYMENT GOAL TWO: By June 30, 2020, of the 50,157 people receiving services from certain Medicaid funded programs, there will be an increase of 5,015 or 10% in competitive, integrated employment.
A new baseline was established and approved by the Subcabinet on November 27, 2017 and is included below. This is the first quarterly report using the baseline.

2017 Goal • By June 30, 2017, a data system will be developed to measure the following: the number of
individuals who are working in competitive integrated employment; the number of individuals not working in competitive integrated employment; and the number of individuals not working in competitive integrated employment who would choose or not oppose competitive integrated employment. • By June 30, 2017, the number of individuals in competitive integrated employment will increase by 1,500 individuals

Baseline: In 2014, there were 50,157 people age 18-64 who received services from one of the following programs: Home and Community-Based Waiver Services, Mental Health Targeted Case Management, Adult Mental Health Rehabilitative Services, Assertive Community Treatment and Medical Assistance for Employed Persons with Disabilities (MA-EPD). Of the 50,157 total MA recipients, there were 6,137 in competitive integrated employment.

RESULTS:

• The 2017 goal to develop a data system is in process.

[Reported in November 2017]

• The 2017 annual goal to increase by 1,500 over baseline was met. [Reported in November 2017]

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MA Recipients (18 -64) in Competitive Integrated Employment (CIE)

Time period
July 2013 – June 2014 (Baseline) July 2014 – June 2015 July 2015 – June 2016

Total MA Number in CIE

recipients ($600+/month)

50,157

6,137

49,922

6,596

52,383

8,203

Percent of MA recipients in CIE
12.2%
13.2%
15.7%

Change from previous year
--
459
1,607

Increase over baseline --
459
2,066

ANALYSIS OF DATA: The 2014 baseline was established as 6,137. As of June 2016 an additional 2,066 people in certain Medicaid programs are earning at least $600 a month as compared to baseline data. Most notably, the increase between June 2015 and June 2016 is more than three times greater than the increase between June 2014 and June 2015. The results from the first three reporting periods show strong progress towards an increase of 5,015 (10%) in the number people in competitive integrated employment by June 30, 2020.
The data reported is a proxy measure to track the number of individuals in competitive integrated employment from certain Medicaid programs and includes the number of people who have monthly earnings of over $600 a month. This is calculated by dividing the annual earnings of an individual (as reported by financial eligibility workers during re-qualification for Medicaid) by the number of months they have worked in a given fiscal year. The Olmstead Plan amendment process will incorporate that number into the baseline for this goal.
During development of the employment data dashboard in 2015, DHS tested the use of $600 a month as a proxy measure for competitive integrated employment. This was done by reviewing a random sample of files across the state. DHS staff verified that information from the data system matched county files and determined that when people were working and making $600 or more, the likelihood was they were in competitive integrated employment.
COMMENT ON PERFORMANCE: Possible contributing factors to explain the increase in the number of people in certain Medicaid programs in competitive integrated employment include:
• Improving economy: During the same time period of this data, the overall unemployment rate in Minnesota fell from 4.2% in June of 2014 to 3.4% in June of 2016.12
• Increased awareness and interest: Providers and lead agencies are paying attention to the goals of people to work in competitive integrated employment.
• Implementation of the Workforce Innovation and Opportunities Act (WIOA): Signed into law in July 2014, this act amended Section 511 of the Rehabilitation Act and placed additional requirements on employers who hold special wage certificates to pay people with disabilities subminimum wages. In response to WIOA requirements, some employers may have increased wages to above minimum wage or some service providers may have put greater emphasis on services leading to competitive

12 Minnesota Unemployment Statistics. Labor Market Information - Minnesota Department of Employment and Economic Development. Accessed September 27, 2017 https://mn.gov/deed/data/

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integrated employment. During this time period, however, there was not a similar growth in employment among people with disabilities at the national level.13 • Interagency efforts to increase competitive integrated employment: During the time period of this data, DHS, DEED, and MDE have all made efforts to meet Minnesota’s Employment First Policy and Olmstead Plan goals. This included interagency coordination and projects contained as part of the employment section of Minnesota’s Olmstead Plan.
Moving Forward Moving forward, DHS continues to work to ensure that all Minnesotans with disabilities have the option of competitive integrated employment. DHS seeks to meet its Olmstead Plan measurable goal and continuously improve efforts around employment. Part of these efforts include:
• Providing three new employment services in the Medicaid Home and Community Based Services (HCBS) waivers: Minnesota has submitted HCBS waiver amendments to CMS that would allow the state to offer three new employment services: Exploration, Development, and Support. These services will provide new options and resources behind competitive integrated employment.
• Improving communication to people with disabilities and training for service professionals: DHS will be undertaking several efforts in the coming year to improve its communication, training, and guidance around employment. These efforts include mailings to people receiving HCBS services, improvements in employment data dashboards, trainings for service professionals, and website updates.
• Releasing and implementing employment innovation grants: DHS is currently implementing innovation grants totaling $1.8 million to promote innovative ideas to improve outcomes for people with disabilities in the areas of work, living, and connecting with others in their communities. Additionally, over the next year, DHS will be selecting grant recipients for $2 million of grant money to provide innovation solutions for youth with disabilities to achieve competitive integrated employment.
Data Improvement DHS seeks to continuously improve its data and measures around competitive integrated employment. These efforts will allow DHS to refine its proxy measure for competitive integrated employment to more completely capture the definition of competitive, integrated employment found in Minnesota’s Employment First Policy.14 Some of these efforts include:
• Informed Choice Data: DHS added Informed Choice Employment questions to both the MnCHOICES and Mental Health Information Systems (MHIS) to determine those working in competitive integrated employment, those not working, and those interested in Competitive Integrated Employment (CIE). DHS is in the process of analyzing and validating the data from both sources in order to integrate the information to get an unduplicated count of the number of individuals in CIE or wanting CIE. This new data is important because it will allow DHS to look at the provision of services and employment outcomes according to a person’s informed choice decision about employment.

13 nTide Jobs Report: Steady Job Numbers May Signal Start of Turnaround for People with Disabilities. Accessed September 27, 2017 http://researchondisability.org/home/ntide/ntide-news-item/2016/04/01/ntide-jobs-reportsteady-job-numbers-may-signal-start-of-turnaround-for-people-with-disabilities 14 Minnesota’s Employment First Policy is available at: http://www.dhs.state.mn.us/main/groups/olmstead/documents/pub/dhs16 190416.pdf

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• Employment Data Dashboards: DHS is refining dashboards to display employment outcome information for people in certain Medicaid programs. As part of these efforts, DHS is looking at the “employer of record” for people earning wages to help greater clarify who is employed through competitive employers and who is employed through special, subminimum wage certificate holders. Currently this is a manual process for validating the “employer of record”.
• Interagency Data Sharing and Coordination: DHS is working with MDE and DEED to share and create consistency across the employment data in each agency. These efforts are included in the Olmstead Plan workplans.

EMPLOYMENT GOAL THREE: By June 30, 2020, the number of students with developmental cognitive disabilities, ages 19-21 that enter into competitive, integrated employment will be 763.

2017 Goal • By June 30, 2017, the number of additional students with Developmental Cognitive Disabilities
(DCD) in competitive integrated employment will be 188.
Baseline: 2014 group total in competitive, integrated employment = 313 (35%) (N=894)
RESULTS: The 2017 goal of 188 was met. [Reported in August 2017]

Time Period
October 2015 to June 2016 October 2016 to June 2017

Number of students with DCD, ages 19-21 that enter into competitive integrated employment
137 192

ANALYSIS OF DATA: The 2017 goal of 188 students in competitive integrated employment was met. During the 2016 - 2017 school year, 192 students (105 males and 87 females) ranging in ages from 19-21 with developmental cognitive disabilities, participated in competitive integrated employment. All students worked part-time because their primary job is that of being a secondary student. Students were employed in a variety of businesses with wages ranging from $9.50 to $14.00 an hour. Students received a variety of supports including: employment skills training, job coaching, interviewing skill development, assistive technology, job placement and the provision of bus cards.
COMMENT ON PERFORMANCE: In the fall of 2016, sixteen local education agencies continued to be a part of the Employment Capacity Building Cohort (ECBC). Three additional local education agencies joined in October due to interest from their local Special Education Director. ECBC teams participated in multiple capacity building trainings.
Local ECBC Teams met and exceeded the competitive, integrated 2017 employment goal. Teams used multiple evidence-based strategies learned from the capacity building sessions. Strategies included: Career Planning using the Minnesota Career Information System, Pre-Employment Transition Services and Limitations on the use of Subminimum Wages under WIOA, using resources within DB101 such as estimator sessions, Informed Choice Conversation and Informed Choice Toolkit materials and learned about essential job development strategies. The local ECBC teams are ensuring that students with DCD, ages 19-21 have choices and opportunities for competitive, meaningful, and sustained employment in

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the most integrated setting before exiting from secondary education. Many of the 2015-2017 ECBC teams have expressed interest in continuing in the cohort model. Three additional district teams will be invited to the ECBC for the 2017-2019 school years.
TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported two months after the end of the reporting period.
EMPLOYMENT GOAL FOUR: By December 31, 2019, the number of Peer Support Specialists who are employed by mental health service providers will increase by 82. [New in February 2017]
2017 Goal • By December 31, 2017, the number of employed peer support specialists will increase by 14
RESULTS: This goal is in process. The first report on progress for this goal will be reported in the next quarterly report following both the Annual Goal measurement date and a determination that the data is reliable and valid.

EDUCATION GOAL ONE: By December 1, 2019 the number of students with disabilitiesvi, receiving instruction in the most integrated settingvii, will increase by 1,500 (from 67,917 to 69,417)
2015 Goal • By December 1, 2015 the number of students receiving instruction in the most integrated
settings will increase by 300 over baseline to 68,217

Baseline: In 2013, of the 109,332 students with disabilities, 67,917 (62.11%) received instruction in the most integrated setting.

RESULTS: The 2015 goal was met.

[Reported in February 2017]

Time Period January – December 2014 January – December 2015

Students with disabilities in most integrated setting 68,434 (62.1%) (517 over baseline) 69,749 (62.1%) (1,832 over baseline)

Total number of students with disabilities (ages 6 – 21)
110,141
112,375

ANALYSIS OF DATA: The 2015 goal of an increase of 300 to 68,217 was met. During 2015, the number of students with disabilities receiving instruction in the most integrated setting increased by 1,832 over baseline to 69,749. Although the number of students in the most integrated setting increased, the percentage of students in the most integrated setting when compared to all students with disabilities ages 6 – 21 remains unchanged from the previous year due to an increase in the total number of students with disabilities.

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COMMENT ON PERFORMANCE: MDE will continue the expansion of Positive Behavioral Interventions and Supports (PBIS) and implementation of Regional Low Incidence Disability Projects (RLIP) using a combination of access to qualified educators, technical assistance and professional development to increase the number of students with disabilities, ages 6 – 21, who receive instruction in the most integrated setting.

TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported one year after the end of the reporting period.

EDUCATION GOAL TWO: By June 30, 2020, the number of students who have enrolled in an

integrated postsecondary education setting within one year of leaving high school will increase by 425

(39%) (from 2,174 to 2,599).

[Revised in February 201715]

2017 Goal • By June 30, 2017 there will be an increase of 100 (34%) over baseline to 2,274.

Baseline: Using the 2014 Minnesota’s Statewide Longitudinal Education Data System (SLEDS), of the 6,749 students with disabilities who graduated statewide in 2014, a total of 2,174 (32.2%) attended an integrated postsecondary institution from August 2014 to July 2015.

RESULTS: The 2017 goal was not met. [Reported in November 2017]

Time Period
2014 SLEDS Data [Baseline] (August 2014 – July 2015) 2015 SLEDS Data (August 2015 – July 2016)

Students graduating
6,749

Students entering an accredited institution of
higher education 2,174 (32.2%)

Change from baseline
--

6,747

2,154 (31.9%)

<20>

ANALYSIS OF DATA: Of the 6,747 student with disabilities who graduated in 2015, there were 2,154 students (31.9%) who enrolled in an accredited institution of higher education in fall 2015, spring 2016, or both. This was a decrease of 20 students from the 2014 baseline.
COMMENT ON PERFORMANCE: The SLEDS data that was available and used for this report did not include data provided by the Minnesota Office of Higher Education, and is not publicly accessible at the SLEDS website. In addition, MDE defines ideal performance as immediate enrollment in an accredited institution of higher education in the fall after graduation in the spring (as opposed to delayed enrollment) and the data used for this report includes spring enrollment data by students who delayed enrollment. MDE will propose

15 This goal was amended in the Olmstead Plan February 2017 Revision and was first reported in the November 2017 Quarterly Report.

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changes to this goal through the Olmstead Plan amendment process to use SLEDS data to be consistent in publicly reporting results.
TIMELINESS OF DATA: In order for this data to be reliable and valid, it will be reported sixteen months after the end of the reporting period.

EDUCATION GOAL THREE: By June 30, 2020, 80% of students in 31 target school districts will meet required protocols for effective consideration of assistive technology (AT) in the student’s individualized education program (IEP). Protocols will be based upon the “Special factors” requirement as described in Individuals with Disabilities Education Act (IDEA) of 2004.
2016 Goal • By December 31, 2016, pilot teams will establish a baseline and annual goals of the number of
students for whom there is effective consideration of Assistive Technology.
RESULTS: The 2016 goal to establish a baseline and annual goals was met. The proposed baseline and annual goals were approved by the Subcabinet on August 28, 2017. [Reported in August 2017]

Baseline: • From October – December 2016, of the 28 students with IEPs, 26 (92.8%) had active consideration16
of assistive technology in their IEP.

Time Period October 1, 2016 – December 31, 2016

IEP meetings held with AT team
member present
28

Number of IEPs with Percent active consideration of
assistive technology
26 92.8%

Annual Goals to increase the number of students in 31 target school districts whose IEP meet the required protocols for active consideration of AT: • By June 30, 2018, increase to 94% of students whose IEP meet required protocols for active
consideration of AT. • By June 30, 2019, increase to 95% of students whose IEP meet required protocols for active
consideration of AT. • By June 30, 2020, increase to 96% of students whose IEP meet required protocols for active
consideration of AT.
COMMENT ON PERFORMANCE: Schools from around the state nominate teams of educators to engage in MDE’s AT Teams Project. The AT Teams Project is a three-year cohort design that includes professional development. The AT Teams range in membership from four to six members, and include school administrators, general education

16 The term “active consideration” more accurately reflects how the agency measures performance on this goal. An update will be made to the goal language “effective consideration” during the Plan amendment process.

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teachers, special education teachers, and special education related services providers. Participants go on to serve as AT mentors and coaches in their districts.
AT Teams participate in annual face-to-face professional development and quarterly webinars to engage in coaching and to report on outcomes for their district specific action plans. Ongoing professional development includes self-analysis of current performance in eight areas of assistive technology, as defined by the Quality Indicators for AT (QIAT). View the QIAT community for AT professional’s website (http://qiat.org/).
For the 2016-17 school year, 31 AT Teams participated in MDE’s AT Teams Project. Seven of those teams were additional for setting the baseline data as they were funded under a fourth year of the project. Throughout the 2016-17 school year, individual AT Team members reported data from a sample of IEP team meetings in which they participated.

AT Teams will meet again in October 2017 in order to evaluate performance. For the 2017-18 school year, 16 AT Teams will continue into the second and third year training cohorts, and 8 new AT Teams will begin the first year cohort. MDE will provide additional data under the new annual goal set for June 30, 2018.

TRANSPORTATION GOAL ONE: By December 31, 2020 accessibility improvements will be made to

(A) 4,200 curb ramps (increase from base of 19% to 38%); (B) 250 Accessible Pedestrian Signals

(increase from base of 10% to 50%); and (C) by October 31, 2021, improvements will be made to 30

miles of sidewalks.

[Revised in February 2017]

A) Curb Ramps • By December 31, 2020 accessibility improvements will be made to 4,200 curb ramps bringing the percentage of compliant ramps to approximately 38%.

Baseline: In 2012: 19% of curb ramps on MnDOT right of way met the Access Board’s Public Right of Way (PROW) Guidance.

RESULTS: The goal is on track to meet the 2020 goal. [Reported in February 2017]

Time Period Calendar Year 2014 Calendar Year 2015

Curb Ramp Improvements

PROW Compliance Rate

1,139

24.5%

1,594

28.5%

ANALYSIS OF DATA: In 2015, the total number of curb ramps improved was 1,594, bringing the system to 28.5% compliance under PROW.

COMMENT ON PERFORMANCE: In 2015, MnDOT constructed more curb ramps than in any other previous construction season, but the implementation of the plan remains consistent with required ADA improvements. Based on variations within the pavement program, it is anticipated that there will be seasons when the number of curb ramps installed will be lower.

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B) Accessible Pedestrian Signals • By December 31, 2019, an additional 250 Accessible Pedestrian Signals (APS) installations will be provided on MnDOT owned and operated signals bringing the percentage to 50%.
2016 Goal • By December 31, 2016 an additional 50 APS installations will be provided.
Baseline: In 2009: 10% of 1,179 eligible state highway intersections with accessible pedestrian signals (APS) were installed. The number of APS signals was 118.
RESULTS: The 2016 goal was met (using Calendar Year 2015 data). [Reported in February 2017]

Time Period Calendar Year 2014 Calendar Year 2015

Total APS in place
523 of 1,179 APS (44%) of system 592 of 1,179 APS (50%) of system

Increase over

Increase over 2009

previous year

baseline

--

405

69

474

ANALYSIS OF DATA: In Calendar Year 2015, an additional 69 APS installations were provided. Based on the 2015 data, the 2016 goal to increase by 50 was met.
COMMENT ON PERFORMANCE: MnDOT has already met its goal of 50% system compliance. MnDOT will propose measurable goal adjustments to the Subcabinet for provisional approval.

C) Sidewalks • By October 31, 2021, improvements will be made to an additional 30 miles of sidewalks.
2017 Goal: • By October 31, 2017, improvements will be made to an additional 6 miles of sidewalks.
Baseline: In 2012: 46% of sidewalks on MnDOT right of way met 2010 ADA Standards and Public Right of Way (PROW) guidance. Total sidewalk mileage is 613.8.

RESULTS: This goal is in process.

[Reported in February 2017]

Time Period Calendar Year 2014 Calendar Year 2015

Sidewalk Improvements

PROW Compliance Rate

N/A

46%

12.41 miles

47.3%

TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported one year after the end of the reporting period.

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TRANSPORTATION GOAL TWO: By 2025, the annual number of service hours will increase to 1.71

million in Greater Minnesota (approximately 50% increase).

[Revised in February 2017]

2017 Goal • By December 31, 2017, the annual number of service hours will increase to 1,257,000

Baseline: In 2014 the annual number of service hours was 1,200,000.

RESULTS: This goal is in process. The first report on progress for this goal will be reported in the next quarterly report following both the Annual Goal measurement date and a determination that the baseline data is reliable and valid.

TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported ten months after the end of the reporting period.
TRANSPORTATION GOAL THREE: By 2025, expand transit coverage so that 90% of the public transportation service areas in Minnesota will meet minimum service guidelines for access. [Revised in February 2017]
Transit access is measured against industry recognized standards for the minimal level of transit availability needed by population size. Availability is tracked as span of service, which is the number of hours during the day when transit service is available in a particular area. The measure is based on industry recognized standards and is incorporated into both the Metropolitan Council Transportation Policy Plan and the MnDOT “Greater Minnesota Transit Investment Plan.”17

2017 Goal A baseline for access will be established by April 30, 2017.

RESULTS:

The 2017 goal to establish a baseline was met. A new baseline was established using MnDOT data for

access to transportation in Greater Minnesota. The baseline was approved by the Subcabinet on

November 27, 2017. After consulting with the Olmstead Implementation Office (OIO) Met Council staff

determined that the existing measurable goal does not adequately apply to transportation issues in the

metropolitan area. The Met Council will be proposing a new goal related to transportation in the

metropolitan area in the Olmstead Plan amendment process.

[Reported in November 2017]

BASELINE: In December 2016, the percentage of public transportation in Greater Minnesota meeting minimum service guidelines for access was 47% on weekdays, 12% on Saturdays and 3% on Sundays.

Percentage of public transportation meeting minimum service guidelines for access

Weekday

47%

Saturday

12%

Sunday

3%

17 Greater Minnesota Transit Investment Plan is available at www.dot.state.mn.us/transitinvestment.

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ADDITIONAL INFORMATION Minimum service guidelines for Greater Minnesota are established based on service population (see table below). In Greater Minnesota the larger communities are attaining the weekday span of service. Smaller communities (less than 7,500) are not yet meeting the weekday level of access in all instances. Very few transit systems in Greater Minnesota operate Saturday or Sunday Service. This is mainly due to limited demand for service.

Minimum Service Guidelines for Greater Minnesota18

Service Population

Number of Hours in Day that Service is Available

Weekday

Saturday

Sunday

Cities over 50,000

20

12

9

Cities 49,999 – 7,000

12

9

9

Cities 6,999 – 2,500

9

9

N/A

County Seat Town

8 (3 days per week)*

N/A

N/A

*As systems performance standards warrant

COMMENT ON PERFORMANCE: Each year in January the transit systems will be analyzed for the level of service they have implemented. Transit systems apply for funding on an annual basis. The applications take unmet needs into account. However, the actual service implemented can vary based on various factors including; lack of drivers and limited local funding share. The performance should increase as the span of service is established and the priority service expansion for transit systems is considered.

TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported two months after the end of the reporting period.

TRANSPORTATION GOAL FOUR: By 2025, transit systems’ on time performance will be 90% or

greater statewide.

[Revised in February 2017]

2016 Goal • In 2016, establish baseline and goals for on time performance for Greater Minnesota.

RESULTS:

The 2016 goal to establish baseline and goals was met. Baseline and goals for on time performance for

Greater Minnesota were approved by the Subcabinet on February 22, 2017. They are included below in

bold text.

[Reported in February 2017]

Reliability will be tracked at the service level, because as reliability increases, the attractiveness of public transit for persons needing transportation may increase.

Baseline for on time performance in 2014 was:

 Transit Link

– 97% within a half hour

 Metro Mobility

– 96.3% within a half hour timeframe

 Metro Transit

– 86% within one minute early – four minutes late

 Greater Minnesota – 76% within a 45 minute timeframe

18 Source: MnDOT Greater Minnesota Transit Investment Plan, 2017

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POSITIVE SUPPORTS GOAL ONE: By June 30, 2018 the number of individuals receiving services licensed under Minn. Statute 245D, or within the scope of Minn. Rule, Part 9544, (for example, home and community based services) who experience a restrictive procedure, such as the emergency use of manual restraint when the person poses an imminent risk of physical harm to themselves or others and it is the least restrictive intervention that would achieve safety, will decrease by 5% or 200.
Annual Goal • 2017 Goal: By June 30, 2017, the number of people experiencing a restrictive procedure will be
reduced by 5% from the previous year or 49 individuals

Baseline: In 2014 the number of individuals who experienced a restrictive procedure was 1,076.

RESULTS: The 2017 goal was met.

[Reported in November 2017]

Time period
2015 Annual (July 2014 – June 2015) 2016 Annual (July 2015 – June 2016) 2017 Annual (July 2016 - June 2017)

Individuals who experienced restrictive procedure 867 (unduplicated)
761 (unduplicated)
692 (unduplicated)

Reduction from previous year 209
106
69

ANALYSIS OF DATA: The 2017 goal to reduce the number of people experiencing a restrictive procedure by 5% from the previous year or 49 individuals was met. From July 2016 to June 2017, the number of individuals who experienced a restrictive procedure decreased from 761 to 692. This was a 9% reduction of 69 from the previous year. It's important to note that the June 30, 2018 overall goal to reduce the number of people experiencing restrictive procedures by 200 has already been reached.
COMMENT ON PERFORMANCE: DHS conducts further analysis regarding the number of individuals who experienced a restrictive procedure during the quarter. Each Quarterly Report includes the following information:
• The number of individuals who were subjected to Emergency Use of Manual Restraint (EUMR) only. Such EUMRs are permitted and not subject to phase out requirements like all other “restrictive” procedures. These reports are monitored and technical assistance is available when necessary.
• The number of individuals who experienced restrictive procedures other than EUMRs (i.e., mechanical restraint, time out, seclusion, and other restrictive procedures). DHS staff and the Interim Review Panel provide follow up and technical assistance for all reports involving restrictive procedures other than EUMR. It is anticipated that focusing technical assistance with this subgroup will reduce the number of individuals experiencing restrictive procedures and the number of reports (see Positive Supports Goal Three).
Under the Positive Supports Rule, the External Program Review Committee convened in February 2017 has the duty to review and respond to Behavior Intervention Reporting Form (BIRF) reports involving EUMRs. Beginning in May 2017, the External Program Review Committee conducted outreach to providers in response to EUMR reports. It is anticipated the Committee’s work will help to reduce the

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number of people who experience EUMRs through the guidance they provide to license holders regarding specific uses of EUMR. The impact of this work toward reducing the number of EUMR reports will be tracked and monitored over the next several quarterly reports.

TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported three months after the end of the reporting period.

POSITIVE SUPPORTS GOAL TWO: By June 30, 2018, the number of Behavior Intervention Reporting Form (BIRF) reports of restrictive procedures for people receiving services licensed under Minn. Statute 245D, or within the scope of Minn. Rule, Part 9544, (for example, home and community based services) will decrease by 1,596.

Annual Goal • 2017 Goal: By June 30, 2017 the number of reports of restrictive procedures will be reduced by 388.

Annual Baseline: From July 2013 – June 2014 of the 35,668 people receiving services in licensed disability services, e.g., home and community based services, there were 8,602 BIRF reports of restrictive procedures, involving 1,076 unique individuals.

RESULTS: The 2017 goal was met.

[Reported in November 2017]

Time period 2015 Annual (July 2014 – June 2015) 2016 Annual (July 2015 – June 2016) 2017 Annual (July 2016 - June 2017)

Number of BIRF reports 5,124 4,008 3,583*

Reduction from previous year 3,478 1,116 425

*The annual total of 3,583 is greater than the sum of the four quarters or 3,521. This is due to late submissions of 62 BIRF reports of restrictive procedures throughout the four quarters.

ANALYSIS OF DATA: The 2017 goal to reduce the number of reports of restrictive procedures by 388 was met. From July 2016 to June 2017, the number of restrictive procedure reports decreased from 4,008 to 3,583 or 425. It's important to note that the June 30, 2018 overall goal to reduce the number of reports people by 1,596 has already been reached.
COMMENT ON PERFORMANCE: DHS conducts further analysis regarding the reports of restrictive procedures during the quarter. Each Quarterly Report includes the following information:
• The number of reports for emergency use of manual restraint (EUMR). Such EUMRs are permitted and not subject to phase out requirements like all other “restrictive” procedures. These reports are monitored and technical assistance is available when necessary. o Under the Positive Supports Rule, the External Program Review Committee has the duty to review and respond to BIRF reports involving EUMRs. Convened in February 2017, the Committee’s work will help to reduce the number of people who experience EUMRs through the guidance they provide to license holders regarding specific uses of EUMR.

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o Beginning in May 2017, the External Program Review Committee conducted outreach to providers in response to EUMR reports. The impact of this work toward reducing the number of EUMR reports will be tracked and monitored over the next several quarterly reports.
• The number of reports that involved restrictive procedures other than EUMR (i.e., mechanical restraint, time out, seclusion, and other restrictive procedures). DHS staff provide follow up and technical assistance for all reports involving restrictive procedures that are not implemented according to requirements under 245D or the Positive Supports Rule. The External Program Review Committee provides ongoing monitoring over restrictive procedures being used by providers with persons under the committee’s purview. Focusing existing capacity for technical assistance primarily on reports involving these restrictive procedures is expected to reduce the number of people experiencing these procedures, as well as reduce the number of reports seen here and under Positive Supports Goal Three.
• The number of uses of seclusion and the number of individuals involved.
TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported three months after the end of the reporting period.

POSITIVE SUPPORTS GOAL THREE: Use of mechanical restraint is prohibited in services licensed under Minn. Statute 245D, or within the scope of Minn. Rule, Part 9544viii, with limited exceptions to protect the person from imminent risk of serious injury. (Examples of a limited exception include the use of a helmet for protection of self-injurious behavior and safety clips for safe vehicle transport). • By December 31, 2019 the emergency use of mechanical restraints will be reduced to < 93 reports
and < 7 individuals.

2017 Goal: By June 30, 2017, reduce mechanical restraints to no more than: A) 277 reports of mechanical restraint B) 19 individuals approved for emergency use of mechanical restraint

Baseline: From July 2013 - June 2014, there were 2,038 (Behavior Intervention Reporting Form) BIRF reports of mechanical restraints involving 85 unique individuals.

RESULTS: (A) The 2017 goal for number of reports was not met. [Reported in November 2017] (B) The 2017 goal for number of individuals was met. [Reported in November 2017]

Time period
2015 Annual (July 2014 – June 2015) 2016 Annual (July 2015 – June 2016) 2017 Annual (July 2016 – June 2017)

(A) Number of reports during the time period
912 691
664*

(B) Number of individuals at end of time period 21 13
16

*The annual total of 664 is greater than the sum of the four quarters or 648. This is due to late submissions of 16 BIRF reports of mechanical restraints throughout the four quarters.

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ANALYSIS OF DATA: This goal has two measures. One of the measures met the 2017 goal, and the second did not.
From July 2016 to June 2017, the number of reports of mechanical restraints was 664. Although the number of reports decreased by 27 from 2016, the 2017 goal to reduce the number of reports to 277 was not met.
At the end of the reporting period (July 2016 – June 2017), there were 16 individuals for whom the emergency use of mechanical restraints was approved. The 2017 goal to reduce the number of individuals approved to 19 was met.
COMMENT ON PERFORMANCE: Under the requirements of the Positive Supports Rule, in situations where mechanical restraints have been part of an approved Positive Support Transition Plan to protect a person from imminent risk of serious injury due to self-injurious behavior and the use of mechanical restraints has not been successfully phased out within 11 months, a provider must submit a request for the emergency use of these procedures to continue their use.
These requests are reviewed by the External Program Review Committee (EPRC) to determine whether or not they meet the stringent criteria for continued use of mechanical restraints. The EPRC consists of members with knowledge and expertise in the use of positive supports strategies. The EPRC sends its recommendations to the DHS Commissioner’s delegate for final review and either time-limited approval or rejection of the request. With all approvals by the Commissioner, the EPRC includes a written list of person-specific recommendations to assist the provider to reduce the need for use of mechanical restraints. In situations where the EPRC believes a license holder needs more intensive technical assistance, phone and/or in-person consultation is provided by panel members. Prior to February 2017, the duties of the ERPC were conducted by the Interim Review Panel.
DHS conducts further analysis regarding the number of reports of mechanical restraint and the number of individuals approved for the use of mechanical restraints and is included in each Quarterly Report.
TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported three months after the end of the reporting period.

POSITIVE SUPPORTS GOAL FOUR: By June 30, 2020, the number of students receiving special

education services who experience an emergency use of restrictive procedures at school will decrease

by 318 students or decrease to 1.98% of the total number of students receiving special education

services.

[Revised in February 2017]

2016 Goal • By June 30, 2016, the number of students experiencing emergency use of restrictive procedures will
be reduced by 105.

Baseline: Use of restrictive procedures in schools is prohibited, except in the case of an emergency. In 2014 the number of students who experienced at least one restrictive procedure in a school setting was 2,740.

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RESULTS: The 2016 goal was not met. [Reported in February 2017]

Time period
2014-15 school year 2015-16 school year

Students who experienced restrictive procedure 2,779
3,034

Change from previous year
+39
+255

ANALYSIS OF DATA: The 2016 goal to reduce by 105 students was not met. Instead there was an increase of 255 students over baseline. Although the goal was not met, the average number of restrictive procedure per restricted student decreased. The full Minnesota Department of Education (MDE) report, “A Report on District’s Progress in Reducing the Use of Restrictive Procedures in Minnesota Schools” is available at: http://education.state.mn.us/MDE/about/rule/leg/rpt/rep17/
The restrictive procedure summary data is self-reported to MDE by July 15 for the prior school year. The data included for 2015-16 has been reviewed and clarified as needed. The data included all public schools, including intermediate districts, charter schools and special education cooperatives.
2015-16 school year: • Physical holding was used with 2,743 students and seclusion was used with 848 students. These
numbers differ from the data reported in the 2016 legislative report, which reported 2,541 physical holds and 840 seclusions. • Compared to the 2014-15 school year, the average number of physical holds per physically held student was 5.7, down from 6.1; the average number of uses of seclusion per secluded student was 7.6, down from 7.8; and the average number of restrictive procedures per restricted student was 7.3, down from 8.0. • School districts reported 147,360 students receiving special education services. Restrictive procedures were used with 3,034 of those students. The actual number of reported special education students increased by 7,375 from the 2014-15 school year. The percentage of students who experienced the use of a restrictive procedures slightly increased to 2.06 percent of the special education population for the 2015-16 school year.
While the number of students who have experienced the use of restrictive procedures has increased over the last two years, the percentage of students remained the same in 2014-15 and went up very slightly in 2015-16. This is due in part to better and more consistent data reporting by districts, and the increase in the number of students receiving special education services.
COMMENT ON PERFORMANCE: • Prone restraint is now a prohibited procedure. It is believed that this caused an increase in the use
of other restrictive procedures. • The Restrictive Procedures stakeholder’s work group (2016 Work Group) is focusing its attention on
reducing the use of restrictive procedures, and specifically to eliminate the use of seclusion. Districts are in need of capacity building and the 2016 Work Group requested funding for the upcoming legislative session so students can remain in more inclusive settings. District staff need more tools to avoid the need for restrictive procedures.

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• The requested funding in the 2017 legislative report would be used to provide resources so school districts can have experts observe and consult with students with behavioral needs to ensure effective and consistent programming is in place, and professional development of administrators and special education and general education direct providers on trauma informed practices. This will enable districts to reduce the number of students experiencing, and/or the frequency of use of, restrictive procedures. The 2017 legislature did not approve the funding request.
• The 2016 Work Group is moving forward to implement the 2016 statewide plan contained in the 2017 legislative report. The focus for the upcoming year is on problem solving with focus areas in data analysis, training, developing a framework for a Teacher Exchange program, and making resources available to school district administrators, staff, parent advocacy groups, and parents. The 2016 Work Group will also review the quarterly seclusion data as it works on the focus areas.
• In the 2016-17 school year, 43 new schools entered PBIS cohort training. This increases the active number of PBIS schools in the state to 576 (28% of MN schools). MDE staff will be reviewing the list of trained PBIS schools and cross referencing it with the list of schools that have reported use of restrictive procedures and will include this in future reports.
• An amendment to this goal was approved by the Subcabinet on February 22, 2017. The amended goal adjusted the annual goals to include a secondary measure to adjust for fluctuations in the number of students. Reporting on the amended goal will begin when the data is considered to be valid and reliable.
TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported seven months after the end of the reporting period.

POSITIVE SUPPORTS GOAL FIVE: By June 30, 2020, the number of incidents of emergency use of restrictive procedures occurring in schools will decrease by 2,251 or by 0.8 incidents of restrictive procedures per student who experienced the use of restrictive procedures in the school setting. [Revised February 2017]
2016 Goal • By June 30, 2016, the number of incidents of emergency use of restrictive procedures will be
reduced by 750.

Baseline: In 2014, school districts (which include charter schools) reported to MDE that there were a total of 19,537 incidents which involved the emergency use of restrictive procedures occurring in schools.
RESULTS: The 2016 goal was not met. [Reported in February 2017]

Time period 2014 – 15 school year
2015 – 16 school year

Number of Reports 22,119
22,028

Change from previous year +2,582
-91

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ANALYSIS OF DATA: The 2016 goal to reduce by 750 incidents was not met. Instead there was a decrease of 91 emergency incidents of restrictive procedures from the previous year. The full MDE report, “A Report on District’s Progress in Reducing the Use of Restrictive Procedures in Minnesota Schools” is available at: http://education.state.mn.us/MDE/about/rule/leg/rpt/rep17/
The restrictive procedure summary data is self-reported to MDE by July 15 for the prior school year. The data included for 2015-16 has been reviewed and clarified as needed. The data included all public schools, including intermediate districts, charter schools and special education cooperatives.
2015-16 school year:
• Across the state, during the 2015-16 school year, school districts reported 15,584 physical holds and 6,425 uses of seclusion for a total of 22,028 restrictive procedures incidents.
• This was a decrease of approximately 0.4 percent from the 2014-15 school year reporting. • The decrease occurred even though the total number of reported students with disabilities
increased by 7,375 for the 2015-16 year. • When comparing the data from the last two reporting periods, there has been a decrease in the use
of restrictive procedures during the 2015-16 school year, and specifically, a reduction in the use of seclusion and an increase in the use of physical holds. This may be due in part to MDE’s discussions with school districts to ensure that districts report a physical hold if one is used to escort a student (with more than minimal resistance) to seclusion.
COMMENT ON PERFORMANCE: • Prone restraint is now a prohibited procedure. It is believed that this caused an increase on the use
of other restrictive procedures. • The Restrictive Procedures stakeholder’s work group (2016 Work Group) is focusing its attention on
reducing the use of restrictive procedures, and specifically to eliminate the use of seclusion. Districts are in need of capacity building and the 2016 Work Group requested funding for the upcoming legislative session so students can remain in more inclusive settings. District staff need more tools to avoid the need for restrictive procedures. • The requested funding would be used to provide resources so school districts can have experts observe and consult with students with behavioral needs to ensure effective and consistent programming is in place, and professional development of administrators and special education and general education direct providers on trauma informed practices. This will enable districts to reduce the number of students experiencing and/or the frequency of use of restrictive procedures. The 2017 legislature did not approve the funding request. • The 2016 Work Group is implementing the 2016 statewide plan contained in the 2017 legislative report. The focus for the upcoming year is on problem solving with focus areas in data analysis, training, developing a framework for a Teacher Exchange program, and making resources available to school districts administrators and staff and parent advocacy groups and parents. The 2016 Work Group will also review the quarterly seclusion data as it works on the focus areas. • In the 2016-2017 school year, 43 new schools entered PBIS cohort training. This increases the active number of PBIS schools in the state to 576 (28% of MN schools). MDE staff will be reviewing the list

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o “Housed” is defined as a setting in the community where DHS pays for services including ICFs/DD, Single Family homes, town homes, apartments, or mobile homes. [NOTE: For this measure, settings were not considered as integrated or segregated.]
o “Not housed” is defined as homeless, correction facilities, halfway house or shelter. o “Treatment facility” is defined as institutions, hospitals, mental and chemical health
treatment facilities, except for ICFs/DD.
ANALYSIS OF DATA: From July 2015 – 2016, of the 15,027 individuals hospitalized due to a crisis, 11,809 (78.6%) were housed within five months of discharge. This was a 3.3% decrease from the previous year. In the same time period there was a 2.9% increase of individuals in a treatment facility within five months of discharge. The 2017 goal to increase to 83% was not met.
COMMENT ON PERFORMANCE: There has been an overall increase in the number of individuals receiving services. In June 2016, the number of people receiving services in a treatment facility was nearly double the number of people receiving treatment in a treatment facility at baseline. This indicates more people are receiving a higher level of care after discharge. This includes Intensive Residential Treatment Services (IRTS) and chemical dependency treatment programs that focus on rehabilitation and the maintenance of skills needed to live in a more independent setting.
Additionally, a contributing factor to missing the goal may be the tight housing market. When there is a tight housing market, access to housing is reduced and landlords may be unwilling to rent to individuals with limited rental history or other similar factors. DHS is expanding the number of grantees for the Housing with Supports for Adults with Serious Mental Illness grants. These grants support people living with a serious mental illness and residing in a segregated setting, experiencing homelessness or at risk of homelessness, to find and maintain permanent supportive housing. The first round of grants began in June of 2016, with additional rounds occurring every six months. DHS expects to see the impact of this work in later data.
TIMELINESS OF DATA: In order for this data to be reliable and valid, it is reported 16 months after the end of the reporting period.
(B) Community Services
Baseline: From July 2014 – June 2015, 89.2% people received follow-up services within 30-days after discharge from the hospital compared to 88.6% in the previous year.
2017 Goal • By June 30, 2017, the percent of people who receive appropriate community services within 30-
days from a hospital discharge will increase to 90%.
RESULTS: The 2017 goal was met. [Reported in November 2017]

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COMMUNITY ENGAGEMENT GOAL ONE: By June 30, 2019, the number of individuals involved in

their community in ways that are meaningful to them will increase to 1,992.

A) By June 30, 2019 the number of self-advocates or people with disabilities involved in leadership

opportunities (such as governor-appointed boards and councils) will increase to 1,575.

B) By June 30, 2019, the number of people with disabilities involved in planning publicly funded

projects (such as stadium plans, sidewalk improvements, public infrastructure, etc.) at the

subcabinet agency level will increase to 417.

[Revised in February 2017]

A) SELF ADVOCATES

2017 Goal • By June 30, 2017, the number of self-advocates will increase by 50 for a total of 1,325.

RESULTS: The goal was not met as there was no reliable and valid data to report for the 2017 goal. [Reported in August 2017]

B) PUBLICLY FUNDED PROJECTS
2017 Goal • By June 30, 2017, the number people with disabilities involved in a publicly funded project will
increase by 75 for a total of 167.

RESULTS: The goal was not met as there was no reliable and valid data to report for the 2017 goal.

COMMENT ON PERFORMANCE (Goals 1(A) and 1(B)): During the implementation of the goal’s strategies, it was learned that the data used to measure progress could not be confirmed valid and reliable over time. A primary issue was the difficulty in obtaining data in a form that would allow for a determination of whether the number of self-advocates and the number of people with disabilities involved in publicly funded projects were unduplicated numbers.

To address this issue and improve future performance under the goal, the workplan items supporting this goal were amended in June 2017. The amended workplan includes the following: • OIO will develop a census survey for all known self-advocacy programs and other leadership
programs. The census will be completed annually. It is anticipated that the survey will help to track self-advocates and other advocates with disabilities. • OIO, in collaboration with Minnesota Department of Human Rights Civic Engagement team, will develop a plan to train people with disabilities who are interested in participating as a member in governor-appointed boards and councils. • Review bonding proposals approved in the 2017 legislative session to identify select projects that would be enhanced with consultation from the State Council on Disability and other governor appointed disability councils. • As required by the workplan, a Community Engagement workgroup has been established.

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PREVENTING ABUSE AND NEGLECT GOAL ONE: By September 30, 2016, the Olmstead Subcabinet will approve a comprehensive abuse and neglect prevention plan, designed to educate people with disabilities and their families and guardians, all mandated reporters, and the general public on how to identify, report and prevent abuse of people with disabilities, and which includes at least the following elements:
RESULTS: The goal was met in 2016 and reported as met in the 2016 Annual Report. The Abuse and Prevention Plan was approved by the Olmstead Subcabinet on September 28, 2016. One of the recommendations in the Plan was the appointment of a Preventing Abuse & Neglect Specialty Committee to oversee the Abuse and Prevention Plan. A charter for the Specialty Committee was reviewed and conceptually approved by the Olmstead Subcabinet on October 24, 2016.
The Specialty Committee began its work in June of 2017 and continues to be in process. The Specialty Committee is preparing a final report to the Subcabinet that will include specific recommendations on preventing abuse and neglect in Minnesota. The Subcabinet and state agencies will review the recommendations and determine how they can best be incorporated into the Plan, strategies, and workplans.

PREVENTING ABUSE AND NEGLECT GOAL TWO: By January 31, 2020, the number of emergency room (ER) visits and hospitalizations of vulnerable individuals due to abuse and neglect will decrease by 50% compared to baseline.
2017 Goal • By January 31, 2017, a baseline and annual goals will be established. At that time, and on an annual
basis, the goals will be reviewed and revised as needed based on the most current data.
RESULTS: The 2017 goal to establish a baseline was met. [Reported in May 2017]
Baseline: From 2010-2014, there were a total of 199 hospital treatments that reflect abuse and/or neglect to a vulnerable individual. The calculated annual baseline is 40 (199/5 =40).
Annual Goals: The annual goals that were previously established for 2018, 2019, and 2020 can remain as they are with no revisions.
ANALYSIS OF DATA: Hospital data was divided into the 11 different Economic Development Regions (EDR) to conduct a regional analysis. While over half of Minnesota’s population lives in the 7 county metro area, the most cases were located in the South Central region. The South Central EDR contains the following counties: Blue Earth, Brown, Faribault, Le Sueur, Martin, Nicollet, Sibley, Waseca and Watonwan, for a total population of 231,683. Though the population of the 7 county metro is over 23 times larger that of the South Central EDR, 114 of the total 199 (57%) hospital visits were located in the South Central EDR. The next two highest regions included the 7 county metro area with a total of 45 (23%), and the Arrowhead

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EDR, with a total of 17 (9%). Information about Minnesota’s EDR’s can be found here: https://apps.deed.state.mn.us/assets/lmi/areamap/edr.shtml
This data is provided annually from the Minnesota Hospital Association (MHA) to the Division of Health Promotion and Chronic Disease (HPCD) at Minnesota Department of Health (MDH). HPCD then provides only the data relevant to this Preventing Abuse and Neglect goal to the Health Regulation Division at MDH in an aggregate level, as to not allow any providers or individuals to be identified. However, this data is self-reported information from the hospitals and so it relies on hospital staff coding information consistently across the state. MDH has no reason to believe the data is not reliable and valid, but acknowledges the limitations of self-reported data.
Since the South Central EDR is comprised of nine different counties, it is not possible that this outlier is the result of one staff person or even one hospital coding more completely or consistently than staff at other hospitals across the state; although it could be evidence of more robust reporting from one hospital system. It is also possible that the reporting in other areas of the state is not as robust is it is in the South Central EDR. Based on this analysis of the baseline data, the South Central EDR will be an area to concentrate the public campaign efforts on, but will also be mindful that there may be other discrepancies at play that could be causing the higher incidence of reporting in this area.
Therefore, while it currently appears that this outlier is reflecting a region where abuse and neglect of individuals with disabilities is occurring at a higher rate than the rest of the state, MDH intends to monitor this outlier over time. Collateral data, such as licensing and/or certification survey data, will also be reviewed to help validate or refute the results of the MHA baseline data.
COMMENT ON PERFORMANCE: Progress toward the goal is determined to be on track for meeting the goal. The public education campaign targeted to providers who serve individuals with disabilities, individuals with disabilities, families, and advocates was initiated on July 1, 2017. Targeted prevention efforts will also be conducted in areas with higher rates of hospitalizations and ER visits due to abuse and neglect of vulnerable individuals.
TIMELINESS OF DATA: In order for the data to be reliable and valid, it will be reported nine months after the end of the reporting period.
PREVENTING ABUSE AND NEGLECT GOAL THREE: By December 31, 2021, the number of vulnerable adults who experience more than one episode of the same type of abuse or neglect within six months will be reduced by 20% compared to the baseline.
2017 Goal • By December 31, 2017, a baseline will be established. At that time, and on an annual basis, the
goals will be reviewed and revised as needed based on the most current data.
RESULTS: This goal is in process. The first report on progress for this goal will be reported in the next quarterly report following both the Annual Goal measurement date and a determination that the data is reliable and valid.

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PREVENTING ABUSE AND NEGLECT GOAL FOUR: By July 31, 2020, the number of identified schools that have had three or more investigations of alleged maltreatment of a student with a disability within the three preceding years will decrease by 50% compared to baseline. The number of students with a disability who are identified as alleged victims of maltreatment within those schools will also decrease by 50% by July 31, 2020.
2017 Goal • By July 31, 2017, a baseline and annual goals will be established.
RESULTS: This goal is in process. The first report on progress for this goal will be reported in the next quarterly report following both the Annual Goal measurement date and a determination that the data is reliable and valid.

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VI. COMPLIANCE REPORT ON WORKPLANS AND MID-YEAR REVIEWS
This section summarizes the monthly review of workplan activities and the mid-year reviews completed by OIO Compliance staff.
WORKPLAN ACTIVITIES
OIO Compliance staff reviews workplan activities on a monthly basis to determine if items are completed, on track or delayed. Any delayed items are reported to the Subcabinet as exceptions. The Olmstead Subcabinet reviews and approves workplan implementation, including workplan adjustments proposed by the agencies on an ongoing basis.ix In the event proposed agency actions are insufficient, the Subcabinet may take remedial action to modify the workplans.

The first review of workplan activities occurred in December 2015 and included activities with deadlines through November 30, 2015. Ongoing monthly reviews began in January 2016 and include activities with deadlines through the month prior and any activities previously reported as an exception.

The summary of those reviews are below.

Number of Workplan Activities

Reporting period
December 2015 January 2016 February 2016 March 2016 April 2016 May 2016 June 2016 July 2016 August 2016 September 2016 October 2016 November 2016 December 2016 January 2017 February 2017 March 2017 April 2017 May 2017 June 2017 July 2017 August 2017 September 2017 October 2017

Reviewed during Completed On Track Reporting

time period

Exceptions

67

41

19

7

49

18

25

6

42

24

10

8

34

19

10

5

30

13

15

2

28

15

13

0

25

19

5

1

53

47

4

2

30

23

6

1

15

8

6

1

16

10

5

1

25

21

4

0

14

11

3

0

40

35

2

3

24

18

6

0

15

10

4

1

15

12

3

0

11

9

2

0

20

19

1

0

57

54

3

0

26

22

1

3

18

16

2

0

29

28

8

0

Exceptions requiring remedial Subcabinet action
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0

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MID-YEAR REVIEW OF MEASURABLE GOALS REPORTED ON ANNUALLY
OIO Compliance staff engages in regular and ongoing monitoring of measurable goals to track progress, verify accuracy, completeness and timeliness of data, and identify risk areas. These reviews were previously contained within a prescribed mid-year review process. OIO Compliance staff found it to be more accurate and timely to combine the review of the measurable goals with the monthly monitoring process related to action items contained in the workplans. Workplan items are the action steps that the agencies agree to take to support the Olmstead Plan strategies and measurable goals.
OIO Compliance staff regularly monitors agency progress under the workplans and uses that review as an opportunity to identify any concerns related to progress on the measurable goals. OIO Compliance staff report on any concerns identified through the reviews to the Subcabinet. The Subcabinet approves any corrective action as needed. If a measurable goal is reflecting insufficient progress, the quarterly report identifies the concerns and how the agency intends to rectify the issues. This process has evolved and mid-year reviews are utilized when necessary, but the current review process is a more efficient mechanism for OIO Compliance staff to monitor ongoing progress under the measurable goals.

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VII. ANALYSIS OF TRENDS AND RISK AREAS
The purpose of this section is to summarize areas of the Plan that are at risk of underperforming against the measurable goals. The topic areas are grouped by categories used in the Quarterly Reports.
MOVEMENT FROM SEGREGATED TO INTEGRATED SETTINGS
For the second year, progress continues on people with disabilities moving from segregated settings into more integrated settings. Annual goals on movement from ICF/DD, nursing facilities, and other segregated settings were achieved. Goals for the timely movement from the AMRTC and MSH were not met, however, data shows consistent movement in the right direction.
People with disabilities are achieving competitive and integrated employment in greater numbers. The number of people with disabilities in vocational rehabilitation programs and vocational programs funded the medical assistance both exceeded their annual goals to get people into competitive integrated employment.
These trends are being supported by changes in state processes such as annual review of services by Lead agencies. This process is now informed by person centered principles that are sensitive to the expressed desires of the individual about where they live and work and how services are provided.
At the federal level, changes to the home and community based services regulations and the Workforce Innovation and Opportunities Act have adopted person centered principles requiring individual choice for where people live and work. These changes will continue to positively influence people with disabilities opportunity to choose a more integrated life.
INCREASING SYSTEM CAPACITY AND OPTIONS FOR INTEGRATION
Progress continued this year on people with disabilities accessing authorization to waiver services. People accessing the CADI waiver continued resulting in no need for a waiting list. The number of individuals with developmental disabilities authorized for waiver services continues to show improvement.
The ability of people with disabilities to access housing continues to improve. This year 998 individuals obtained housing or 98% of the annual goal.
Fewer people with disabilities are experiencing the use of emergency manual restraint. There was a reduction of 69 individuals which exceeded the annual goal of 49 individuals
These positive achievements are important but more work is to be done. The following measurable goals have been targeted for improvement:
• Transition Services Goal Four to increase the percent of individual’s transition plans that meet the required protocols.
• Waiting List Goal Three to eliminate the waiting list for persons in the Institutional Exit and Defined Need categories.
• Person-Centered Planning Goal One to increase the percent of individual plans that meet the required protocols.

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• Positive Supports Goal Three A to reduce the number of reports of emergency use of mechanical restraints with approved individuals.
• Housing and Services Goal One to increase the number of individuals living in integrated housing. • Lifelong Learning and Education Goal Two to increase the number of students with disabilities
enrolling in an integrated postsecondary education setting. • Crisis Services Goal Four A to increase the percent of people housed five months after being
discharged from the hospital
These areas have been highlighted for the agencies and the Subcabinet as areas in need of increased monitoring. Each agency has identified plans bring each goal into the specified performance criteria.
VIII. POTENTIAL AMENDMENTS TO THE PLAN
The Olmstead Subcabinet is engaged in the Plan review and amendment process. Agencies have developed a number of potential amendments to the measurable goals. Initial draft potential plan amendments are attached hereto as an Addendum in accordance with the Court’s February 22, 2016 Order (Doc. 544). The Olmstead Subcabinet will begin obtaining public comment on the draft amendments on December 20, 2017 and the attached drafts are subject to change. In addition to the measurable goal amendments attached hereto, there will be additional proposed changes to the Introduction and Background Information and Plan Management and Oversight sections, and supporting descriptions of the measurable goals. Public comment to the full proposed Plan will be sought throughout March. After the proposed amendments are finalized and approved by the Subcabinet, final amendments will be reported to the Court on or before March 31, 2017.

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ENDNOTES
i Some Olmstead Plan goals have multiple subparts or components that are measured and evaluated separately. Each subpart or component is treated as a measurable goal in this report. ii Goals that are in process include goals that have not yet reached the annual goal date, and goals that have not been reported on to date. On track and not on track designations are not included in the table as they indicate progress on annual goals to be reported on in 2017. iii This goal measures the number of people exiting institutional and other segregated settings. Some of these individuals may be accessing integrated housing options also reported under Housing Goal One. iv Transfers refer to individuals exiting segregated settings who are not going to an integrated setting. Examples include transfers to chemical dependency programs, mental health treatment programs such as Intensive Residential Treatment Settings, nursing homes, ICFs/DD, hospitals, jails, or other similar settings. These settings are not the person’s home, but a temporary setting usually for the purpose of treatment. v As measured by monthly percentage of total bed days that are non-acute. Information about the percent of patients not needing hospital level of care is available upon request. vi “Students with disabilities” are defined as students with an Individualized Education Program age 6 to 21 years. vii “Most integrated setting” refers to receiving instruction in regular classes alongside peers without disabilities, for 80% or more of the school day. viii Minnesota Security Hospital is governed by the Positive Supports Rule when serving people with a developmental disability. ix All approved adjustments to workplans are reflected in the Subcabinet meeting minutes, posted on the website, and will be utilized in the annual workplan review and adjustment process.

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ADDENDUM
____________________________________________________________________________________

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians, and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians, and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian, and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
v.
Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and the State of Minnesota,
Defendants.

Civil No. 09-1775 (DWF/BRT) ORDER

Shamus P. O’Meara, Esq., and Mark R. Azman, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

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Scott H. Ikeda, Aaron Winter, Anthony R. Noss, and Michael N. Leonard, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants.
INTRODUCTION This matter is before the Court on State Defendants’ Motion to Stay Pending Appeal. (Doc. No. 655.) Plaintiffs oppose Defendants’ motion. (See Doc. No. 667.) For the reasons set forth below, Defendants’ motion is denied.
BACKGROUND On June 28, 2017, the Court issued an order in response to Defendants’ objection to the Court’s continued jurisdiction. (Doc. No. 638.) The Court concluded that it presently retains jurisdiction based on the parties’ Stipulated Class Action Settlement Agreement (“Agreement”) and directed that “all reporting obligations previously imposed shall remain in place.” (Id. at 23.) The Court also ordered the parties to “meet and confer to discuss the essential steps that remain in Defendants’ implementation of the Agreement before the Court can equitably terminate its jurisdiction over this matter.” (Id. at 23-24.) For brevity, the Court incorporates the more thorough discussion of the procedural background relevant to Defendant’s jurisdictional objection outlined in the Court’s June 28, 2017 Order. (See id. at 2-4.) On July 26, 2017, Defendants filed a Notice of Appeal of the Court’s June 28, 2017 Order. (Doc. No. 639.) On October 20, 2017, Defendants filed a Motion to Stay Pending Appeal. (Doc. No. 655.) In particular, Defendants seek “an order staying their obligations related to the parties’ Settlement Agreement and the Court’s subsequent
2

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orders” and also request that the Court “continue the current stay of the Court Monitor’s duties” while their appeal is pending with the Eighth Circuit Court of Appeals. (Id. at 1.) The parties submitted briefing on Defendants’ motion, and the Court has taken the matter under advisement without a hearing. (See Doc. Nos. 658, 667, 669.)
DISCUSSION I. Legal Standard
Pursuant to Federal Rule of Civil Procedure 62(c), a “court may suspend, modify, restore, or grant an injunction” pending the matter’s resolution on appeal. See Fed. R. Civ. P. 62(c). “A stay is not a matter of right, even if irreparable injury might otherwise result to the appellant. It is an exercise of judicial discretion. The propriety of its issue is dependent upon the circumstances of the particular case.” Scripps-Howard Radio, Inc. v. F.C.C., 316 U.S. 4, 10-11 (1942) (citations omitted); see also Nken v. Holder, 556 U.S. 418, 433 (2009). A court considers four factors in determining whether to grant a motion to stay: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see also Brady v. Nat’l Football League, 640 F.3d 785, 789 (8th Cir. 2011). The moving party bears the heavy burden to establish that a stay should be granted in light of these four factors, and “[t]he first two factors . . . are the most critical.” See Nken, 556 U.S. at 433-34; see also 11 Charles Alan Wright, et al., Federal Practice and Procedure § 2904 (3d ed. April 2017 Update) (“[B]ecause the burden of meeting the
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standard is a heavy one, more commonly stay requests will be found not to meet this standard and will be denied.” (footnotes omitted)). “Ultimately, [the court] must consider the relative strength of the four factors, balancing them all.” Brady, 640 F.3d at 789 (quotation marks and citation omitted).
Defendants argue that the four stay factors warrant the imposition of a stay with respect to their reporting obligations, the Court’s Biannual Status Conferences, and monitoring efforts by the Court Monitor. Plaintiffs, on the other hand, argue that Defendants have not met their burden to justify a stay and ask the Court to deny Defendants’ motion.1
A. Likelihood of Success on the Merits The Court first considers whether Defendants have “made a strong showing that [they are] likely to succeed on the merits.” Hilton, 481 U.S. at 776. “It is not enough that the chance of success on the merits be better than negligible. . . . [M]ore than a mere possibility of relief is required.” Nken, 556 U.S. at 434 (quotation marks and citations omitted). The Eighth Circuit has described this factor as “[t]he most important” for the
1 Plaintiffs also argue in a footnote that Rule 62(c) does not apply because the Court’s Order Approving Settlement is not an injunction. Rather, Plaintiffs contend, “the applicable court action involved approval of a voluntary settlement agreement.” (Doc. No. 667 at 18 n.10.) However, Defendants seek to stay their obligations under the Agreement as well as the Court’s subsequent orders. The Court’s orders adopting the Comprehensive Plan of Action and directing Defendants to follow specific reporting schedules, for example, are plainly injunctive in nature and direct Defendants to undertake specific actions to facilitate the Agreement’s implementation. (See Doc. Nos. 284, 544, 545.) Thus, the Court concludes that Rule 62(c) properly applies to Defendants’ Motion to Stay Pending Appeal.
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court’s consideration. Shrink Mo. Gov’t PAC v. Adams, 151 F.3d 763, 764 (8th Cir. 1998); see also Brady, 640 F.3d at 789.
Defendants contend that they have a likelihood of succeeding on the merits of their appeal to the Eighth Circuit because “the Settlement Agreement unambiguously provides that the Court’s jurisdiction ended, at the latest, on December 4, 2014.” (Doc. No. 658 at 14.) Defendants challenge the Court’s finding of ambiguity within the Agreement, suggesting that the Court “disregarded the clause’s most natural, straightforward reading.” (Id. at 15.) Defendants argue that the Court’s reading fails to account for a comma in the Agreement that indicates a list of three purposes for the Court’s retention of jurisdiction. Further, Defendants assert that the Court’s reading violates the series-qualifier canon and the canon against surplusage. Defendants also contend that the Court has already adopted Defendants’ proposed interpretation in a July 17, 2012 Order.
Even if the jurisdictional provision is ambiguous, Defendants argue, the Court erred in determining that the Agreement supports the Court’s continued jurisdiction “as it deem[s] just and equitable.” (Doc. No. 658 at 19.) Defendants suggest that the parties’ post-agreement conduct supports Defendants’ interpretation as expressed in the Court’s July 17, 2012 Order, and note that their subsequent failure to object to the Court’s extension of jurisdiction occurred nearly two years after the parties entered into the agreement. Finally, Defendants argue that the Court’s interpretation creates an absurd result and violates federalism and separation-of-powers principles.
Plaintiffs argue that Defendants have not demonstrated a strong likelihood of 5

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success on the merits. Specifically, Plaintiffs contend that the Court presently has jurisdiction pursuant to the Agreement and the Court’s Final Approval Order. Plaintiffs suggest that the parties’ punctuation usage within the jurisdictional clause “clearly authorizes the Court’s retention of jurisdiction over the settlement ‘as it deems just and equitable,’ not just for two years.” (Doc. No. 667 at 20.) According to Plaintiffs, this provision was negotiated in anticipation of possible delay in the settlement agreement’s implementation. Plaintiffs also point to the Court’s September 3, 2014 Order in which it construed the clause in accordance with Plaintiffs’ proposed interpretation.
The Court concludes that Defendants have failed to establish a strong likelihood of success on the merits on appeal. As the Court previously determined in its June 28, 2017 Order, the Agreement is ambiguous, and the parties’ subsequent conduct throughout this litigation demonstrates that the parties intended for the Court to retain jurisdiction as it deems just and equitable. (See generally Doc. No. 638.) The Court has thoroughly considered Defendants’ jurisdictional objection and reaffirms its conclusion that it presently retains continuing jurisdiction over the Agreement’s implementation. As the Court previously determined, “[t]he parties’ consistent recognition of the Court’s jurisdiction throughout the extensive and complex procedural history of this matter since December 4, 2014 cannot be reconciled with the narrow interpretation of § XVIII.B Defendants now propose.” (Id. at 21.)
The Court acknowledges that Defendants’ jurisdictional objection presented a close question for the Court because the Agreement’s “just and equitable” clause could reasonably be construed to support Defendants’ proposed interpretation. However, the
6

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Court also determined that it could reasonably be construed to support Plaintiffs’ reading. It was precisely this fact which led the Court to conclude that the provision was ambiguous and thus subject to interpretation based on extrinsic evidence. In light of this evidence, the Court ultimately determined that the Agreement supported the Court’s continuing jurisdiction. Although the Eighth Circuit may reach a different conclusion in resolving this close question, the Court concludes that Defendants have failed to establish a strong likelihood of success on the merits. See In re Wholesale Grocery Prods. Antitrust Litig., Civ. No. 09-MD-2090, 2016 WL 6246758, at *2 (D. Minn. Oct. 25, 2016) (“As with any appeal, the Eighth Circuit may choose to disagree with this Court’s conclusions . . . , but this possibility does not make it likely that Defendants will succeed on the merits of their appeal.”).
B. Irreparable Harm The Court also considers whether Defendants will be irreparably harmed absent a stay. Hilton, 481 U.S. at 776. As with each factor, the burden is on Defendants to establish that this factor weighs in favor of granting the motion. “[S]imply showing some ‘possibility of irreparable injury’ fails to satisfy the second factor.” Nken, 556 U.S. at 434-35 (citation omitted). To establish this factor, the party seeking a stay “must show that the harm is certain and great and of such imminence that there is a clear and present need for equitable relief.” Iowa Utils. Bd. v. F.C.C., 109 F.3d 418, 425 (8th Cir. 1996). Defendants assert that they would be irreparably harmed if the Court declines to grant a stay. Defendants emphasize that the effective deprivation of appellate rights constitutes significant irreparable harm. According to Defendants, they will be
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irreparably harmed by “incur[ring] significant unrecoverable monetary loss” before the Eighth Circuit can review the Court’s June 28, 2017 Order. (See Doc. No. 658 at 13.) The monetary loss Defendants identify arises from three primary sources: (1) reporting expenses, (2) expenses to attend Biannual Status Conferences, and (3) potential Court Monitor expenses.
In particular, Defendants detail the alleged harm resulting from “extensive and costly” reporting requirements. (See Doc. No. 658 at 8.) As set forth in an Affidavit by the Director of the Jensen/Olmstead Quality Assurance and Compliance Office (“JOQACO”) of the Minnesota Department of Human Services (“DHS”), Defendants submit annual and semi-annual compliance reports on February 28 or 29, March 31, and August 31. (Doc. No. 659 (“Booth Aff.”) ¶¶ 1, 2.) Six staff members spend approximately 3,300 hours (equal to 3.25 full-time employees) on developing reports every six months. (Id. ¶ 3.) This amounts to an approximate salary cost to DHS of $145,000 every six months. (Id.) Staff beyond JOQACO also participate in report development. (See id. ¶¶ 4, 5.) Defendants also reference reporting requirements in connection with the Olmstead Plan and assert that “[p]reparing for and attending Court-ordered status conferences further strains State resources.” (Doc. No. 658 at 10.) Finally, Defendants identify expenses previously paid for court monitoring from 2012 to 2016 totaling over one million dollars and state that such expenses could possibly be incurred going forward.
Plaintiffs dispute that Defendants have established irreparable harm. Plaintiffs suggest that Defendants have not lost their right to appeal as evidenced by their pending
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appeal at the Eighth Circuit. Plaintiffs also argue that Defendants are liable for the obligations in the Agreement under state law contract principles regardless of whether this Court retains jurisdiction. In addition, Plaintiffs note that Defendants have indicated they may continue reporting even if the Court lacks jurisdiction. Finally, Plaintiffs argue that the doctrine of unclean hands should apply to prevent a stay because “[Defendants’] own non-compliance has unnecessarily caused this matter to drag on.” (Doc. No. 667 at 24.)
First, the Court addresses the potential deprivation of Defendants’ appellate rights. Cases cited by Defendant to support this form of irreparable harm involved circumstances in which a failure to stay the case would have certainly or very likely mooted the pending appeal. Such circumstances included, for example, a foreclosure sale, transfer of assets pursuant to a bankruptcy reorganization plan, or the disclosure of confidential information. See, e.g., CWCapital Asset Mgmt., LLC v. Burcam Capital II, LLC, Civ. No. 5:13-278-F, 2013 WL 3288092, at *5-7 (E.D.N.C. June 28, 2013) (bankruptcy); Ctr. for Int’l Envtl. Law v. Office of the U.S. Trade Representative, 240 F. Supp. 2d 21, 22-23 (D.D.C. 2003) (document disclosure); In re Country Squire Assocs. of Carle Place, L.P., 203 B.R. 182, 183 (B.A.P. 2d Cir. 1996) (foreclosure). These cases are unlike the situation here. The only circumstance under which Defendants’ pending appeal would be rendered moot is if the Court terminates its jurisdiction over the Agreement’s implementation. Defendants have not established, and the Court does not perceive, that
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this outcome is either certain or imminent during the time period while Defendants’ appeal is pending. Thus, this possibility does not establish irreparable harm.2
Next, the Court evaluates the monetary harm Defendants allege they will face
absent a stay. The Eighth Circuit has recognized that “[t]he threat of unrecoverable
economic loss” constitutes irreparable harm. See Iowa Utils. Bd., 109 F.3d at 426. The
primary expense Defendants highlight and substantiate in detail is reporting on
compliance with the Agreement. Pursuant to the Court’s previous order on reporting, the
following compliance reports relating to the Agreement and the Comprehensive Plan of
Action are due to the Court in 2018: two semi-annual reports due on February 28, 2018 and August 31, 2018 and one annual report due on March 31, 2018.3 (See Doc. No. 545
at 3-4.) As Defendants explain, report development costs DHS an estimated $145,000
every six months. (See Booth Aff. ¶ 3.) Defendants do not articulate the estimated costs
incurred with respect to Olmstead Reporting obligations or attendance at Biannual Status
Conferences set by the Court. Defendants also provide only general speculation with
respect to future Court Monitoring costs that might be incurred going forward.
2 The Court also notes that even if there were a significant risk that Defendants’ appeal would be mooted in the absence of a stay, courts do not consistently find that such a result constitutes irreparable harm. See CWCapital Asset Mgmt., LLC v. Burcam Capital II, LLC, Civ. No. 5:13-278-F, 2013 WL 3288092, at *6 (E.D.N.C. June 28, 2013) (“The cases reveal a significant divide on the question of whether the loss of appellate rights is per se irreparable harm.”). 3 The semi-annual report due on February 28, 2018 covers the months of July through December 2017. The annual report due on March 31, 2018 covers the months of January through December 2017. (See Doc. No. 545 at 3-4.) Defendants do not detail how much, if any, data analysis or report drafting was completed by JOQACO with respect to these forthcoming reports prior to Defendants filing their Motion to Stay Pending Appeal on October 20, 2017.
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The Court concludes that Defendants have failed to establish irreparable harm to support the imposition of a stay. To be sure, Defendants have identified certain expenditures they will incur absent a stay in light of reporting and other obligations established by the Court. However, the Court declines to conclude that these expenses constitute irreparable harm. Notably, the reporting deadlines with respect to the Agreement were imposed by the Court in response to proposals by both parties to establish a reporting schedule, and these deadlines are consistent with Defendants’ own proposal. (See Doc. No. 545 at 2-4; see also Doc. No. 539 at 4.) In addition, Defendants waited nearly three months to move for a stay following their appeal of the Court’s June 28, 2017 Order and submitted a semi-annual report as well as an Olmstead quarterly report in late August 2017, undermining Defendants’ claims of irreparable harm. (See Doc. Nos. 639, 648, 649, 655.) The Court is also mindful of Defendants’ repeated delays in compliance throughout this litigation’s lengthy history that led the Court to extend its jurisdiction on multiple occasions. As this Court has previously noted, “[a] court may decline to grant a motion to stay based on claims of administrative and monetary harm where ‘the principal irreparable injury which defendants claim that they will suffer . . . is injury of their own making.’” Karsjens v. Jesson, Civ. No. 11-3659, 2015 WL 7432333, at *6 (D. Minn. Nov. 23, 2015) (quoting Long v. Robinson, 432 F.2d 977, 981 (4th Cir. 1970)).
Finally, a stay “is not a matter of right, even if irreparable injury might otherwise result to the appellant.” Nken, 556 U.S. at 427 (citation omitted). Even if the Court were to find that Defendants faced some degree of irreparable harm, the Court would decline
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to grant a stay in this case in light of the Court’s view of Defendant’s likelihood of success on the merits and the totality of the circumstances.
C. Injury to Interested Parties Next, the Court must consider whether issuance of the stay will substantially injure interested parties, including Plaintiffs. See Hilton, 481 U.S at 776. According to Defendants, Plaintiffs would not suffer harm if the Court imposes a stay. Defendants suggest that “the obligations imposed on Defendants do not directly accrue to Plaintiffs’ benefit,” and argue that “the temporary cessation of the Court’s order will likely have little impact on Plaintiffs whatsoever.” (Doc. No. 658 at 26.) Defendants also dispute Plaintiffs’ speculation regarding possible injury to the state’s vulnerable citizens if a stay is granted. Plaintiffs point out that this factor is not limited to potential injury to Plaintiffs alone but rather contemplates injury to other interested parties as well. According to Plaintiffs, such interested parties include “the vulnerable citizens of Minnesota protected by the Olmstead Plan and the terms of the Jensen settlement.” (Doc. No. 667 at 24 n.12.) Plaintiffs argue that if a stay is granted, Defendants may disregard their obligations under the Agreement, continue to delay in their compliance efforts, and “even perhaps continu[e] to roll back agreed upon protections.” (Id. at 24.) In light of the record of Defendants’ noncompliance, Plaintiffs urge the Court to continue exercising jurisdiction to oversee the Agreement’s implementation. The Court concludes that this factor weighs neither for nor against a stay. Plaintiffs have not established that they or other interested parties would be “substantially
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injure[d]” by the issuance of a stay. Hilton, 481 U.S. at 776. Although the Court
acknowledges the history of Defendants’ delay and noncompliance in implementing the
Agreement, the Court is also cognizant of the numerous recent positive developments in
implementation that have taken place in recent years such as the adoption and
implementation of the Olmstead Plan and the establishment of JOQACO. Without more
specific evidence of the threatened harms Plaintiffs allege on behalf of the Class and the
state’s vulnerable citizens with disabilities or a clear explanation of how those harms
would be amplified by a stay, the Court declines to conclude that this factor weighs against a stay.4 In light of Defendants’ failure to establish irreparable harm to warrant a
stay, however, the lack of demonstrated substantial injury to Plaintiffs or other interested
parties does not on its own favor the imposition of a stay.
D. Public Interest Finally, the Court considers the public interest. Hilton, 481 U.S. at 776.
Defendants contend that the Court’s continuing exercise of jurisdiction and
Defendants’ ongoing obligations to the Court “intrude on the State’s responsibility to set
public policy and administer its own law” along with raising concerns over the separation
of powers. (Doc. No. 658 at 27.) Defendants also note that the public interest supports
4 The Court acknowledges the evidence provided by Plaintiffs demonstrating multiple instances of substantiated abuse and neglect of Jensen Class Members reported in 2017. (See Doc. No. 668 (“O’Meara Decl.”) ¶¶ 2, 4-5, Exs. A, C-E.) The Court does not wish to discount the seriousness of these incidents. The Court is also mindful of Plaintiffs’ identified concerns regarding continued noncompliance as outlined in Plaintiffs’ October 22, 2017 letter to the Court. (See Doc. No. 661.) Nonetheless, the Court concludes that this evidence does not demonstrate a risk of substantial injury to Plaintiffs or other interested parties if the Court were to impose a stay of Defendants’ reporting and other obligations pending appeal.
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imposing a stay where it would prevent public expense and reemphasize the costs of continued compliance reporting and monitoring.
According to Plaintiffs, “[t]he public interest, in this case, lies in allowing this Court to continue its work in correcting Defendant’s noncompliance and implementing the settlement for the benefit of the vulnerable citizens of the State.” (Doc. No. 667 at 26.) Plaintiffs dispute Defendants’ invocation of federalism concerns because this case involves a settlement agreement entered into voluntarily by the State. Plaintiffs also characterize Defendants’ costs argument as “a stunning display of self-interest and ignorance of the record” and point to Defendants’ own stated commitment to protect individuals with disabilities. (Id. at 27.) Finally, Plaintiffs ask the Court to preclude a stay through the application of judicial estoppel and the doctrine of unclean hands.
As with the third factor, the Court concludes that the public interest factor is evenly balanced. Minimizing public expense is a relevant concern when considering this factor. See James River Flood Control Ass’n v. Watt, 680 F.2d 543, 544-45 (8th Cir. 1982). Declining to stay this matter will require Defendants to continue their ongoing compliance and reporting obligations pursuant to the Agreement and the Court’s orders, incurring public expense as outlined above. This fact weighs slightly in favor of a stay. At the same time, however, the Court has an obligation to ensure that the Agreement, entered into with an aim to improve the lives of individuals with disabilities throughout the state, is implemented fully and without delay. Considering this important public interest weighing against a stay, the Court finds that this factor is on balance neutral.
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CONCLUSION

In sum, upon considering the relevant factors, the Court declines to stay this

matter pending the resolution of Defendants’ appeal. Defendants have failed to persuade

the Court that the most important factors—likelihood of success on the merits and

irreparable harm—weigh in their favor. The remaining two factors are neutral. Thus, a

stay pending appeal is not warranted.

ORDER

Based upon the foregoing, and the files, records, and proceedings herein, IT IS

HEREBY ORDERED that:

1. State Defendants’ Motion to Stay Pending Appeal (Doc. No. [655]) is

DENIED.

Dated: February 1, 2018

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

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 CASE 0:09-cv-01775-DWF-BRT Document 695 Filed 07/26/18 Page 1 of 12
United States Court of Appeals
For the Eighth Circuit ___________________________
No. 17-2653 ___________________________
James Jensen; Lorie Jensen, as parents, guardians and next friends of Bradley J. Jensen and others similarly situated; James Brinker; Darren Allen, as parents, guardians and next friends of Thomas M. Allbrink and others similarly situated; Elizabeth Jacobs, as parent, guardian and next friend of Jason R. Jacobs and others
similarly situated
lllllllllllllllllllllPlaintiffs - Appellees
v.
Minnesota Department of Human Services, an agency of the State of Minnesota
lllllllllllllllllllllDefendant - Appellant
Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually, and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually, and as Clinical Director of
the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota
lllllllllllllllllllllDefendants
State of Minnesota
lllllllllllllllllllllDefendant - Appellant ____________
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Appeal from United States District Court for the District of Minnesota - Minneapolis
____________
Submitted: June 13, 2018 Filed: July 26, 2018 ____________
Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges. ____________
KELLY, Circuit Judge.
The Minnesota Department of Human Services (MDHS) appeals from a postjudgment order of the district court1 concluding that the court retained jurisdiction to enforce the stipulated class action settlement agreement (Agreement) MDHS entered into with plaintiffs (collectively, the Jensen class). The Jensen class defends the district court’s order but also asserts that we lack jurisdiction over the case because the order appealed is not final as required by 28 U.S.C. § 1291.
I.
On July 10, 2009, the Jensen class—civilly committed individuals, their next friends, and others similarly situated—filed suit in federal district court in Minnesota. Their claims were based on “the abusive, inhumane, cruel and improper use of seclusion and mechanical restraints routinely imposed upon patients of the Minnesota Extended Treatment Options program (METO).” METO was an in-patient facility designed to provide residential treatment and care for persons with developmental disabilities who posed a risk to public safety.
1The Honorable Donovan W. Frank, United States District Judge for the District of Minnesota.
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On December 5, 2011, the district court approved the Agreement proposed by the parties. Under the Agreement’s terms, METO closed and was replaced by successor facilities that were intended to provide the same services to the same population that METO had served. These facilities are also governed by the Agreement. Pursuant to the terms of the Agreement, a judgment of dismissal was entered and the district court retained jurisdiction to enforce the Agreement:
The Court shall retain jurisdiction over this matter for two (2) years from its approval of this Agreement for the purposes of receiving reports and information required by this Agreement, or resolving disputes between the parties to this Agreement, or as the Court deems just and equitable. Should Plaintiffs believe a pattern and practice of substantial noncompliance . . . exists, the State and Plaintiffs shall meet and confer in an effort to resolve any such concerns. The meet and confer shall be held no later than sixty (60) days prior to the two year anniversary of the Court’s approval. Should Plaintiffs continue to believe a pattern and practice of substantial non-compliance . . . exists, Plaintiffs may, within thirty (30) days thereafter, file a motion with the Court to extend the reporting requirements to the Court under this Agreement for an additional one (1) year.
The parties agreed that the Agreement would “terminate at the same time as the [district] court’s jurisdiction ends,” with some limited exceptions that are not at issue here.
On August 27, 2013, the district court, with the consent of the parties, entered an order extending its jurisdiction for an additional year beyond the original termination date (until December 4, 2014). The district court stated that it “expressly reserve[d] the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of compliance by the Defendants with the
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specific provisions of the Settlement Agreement, absent stipulation of the parties.”2 Neither party objected to the extension of jurisdiction or the court’s reservation of authority.
About a year later, on September 3, 2014, MDHS was still not in compliance. The district court determined that it could “no longer tolerate continued delay in the implementation of the Settlement Agreement” and that “[a]dherence to the Court’s Orders by the [M]DHS officials and staff at all levels [wa]s essential, not discretionary.” The court then extended jurisdiction for another two years (until December 4, 2016) “based on the significant delays in implementation as well as the noncompliance with the Settlement Agreement.” It further noted that “the extension of jurisdiction may be considered a sanction related to the circumstances described in [its] Order.” Neither party objected.
Litigation proceeded for another year and a half. On February 22, 2016—after mediation conducted by Magistrate Judge Becky R. Thorson was concluded—the district court established a “schedule for compliance reporting.” In its order, the court extended its jurisdiction for three more years (until December 4, 2019). The district court also “expressly reserve[d] the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of Defendants’ compliance and absent stipulation of the parties.” Again, neither party objected.
At a March 24, 2017, status conference, MDHS for the first time raised an objection to the district court’s continuing jurisdiction. According to MDHS, the
2In this order, the district court also noted that it was “extremely concerned with the lack of progress” in “carrying out” the intent of the Agreement, and expressed the view that individuals with developmental disabilities and their families would lose faith in the court and the government if the parties did not comply with the Agreement’s terms and provisions.
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court’s jurisdiction had ceased as of December 4, 2014.3 The parties briefed the issue, and, on June 28, 2017, the district court entered an order concluding it retained jurisdiction. The district court found that the jurisdictional provision in the Agreement was ambiguous, but looked to extrinsic evidence to conclude that the parties intended to grant the court jurisdiction for as long as it deemed “just and equitable.” MDHS timely appeals the district court’s ruling.
II.
Before addressing the merits of MDHS’s argument, we must first consider the Jensen class’s argument that this court lacks appellate jurisdiction. In general, courts of appeals “have jurisdiction of appeals from all final decisions of the district courts of the United States.” 28 U.S.C. § 1291; Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009). “A final decision is typically one by which a district court disassociates itself from a case.” Mohawk Indus., 558 U.S. at 106 (cleaned up); United States v. Haynes, 793 F.3d 901, 902 (8th Cir. 2015) (“A decision is not final, ordinarily, unless it ends the litigation on the merits and leaves nothing for the district court to do but execute the judgment.” (quotation omitted)). However, the Supreme Court and our own cases both instruct that this language is to be given “a ‘practical rather than a technical construction.’” Mohawk Indus., 558 U.S. at 106 (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)); Miller v. Alamo, 975 F.2d 547, 549 (8th Cir. 1992); see also Alpine Glass, Inc. v. Country Mut. Ins. Co., 686 F.3d 874, 877 (8th Cir. 2012). We have also noted that this “practical” application is particularly appropriate in cases involving post-judgment orders. This is because “there is little danger that prompt appeal of post-judgment matters will cause confusion, duplicative effort, or otherwise interfere with the trial court’s
3MDHS arrived at this date—three years (minus one day) from the date on which the district court initially approved the Agreement—by adding together the initial two-year time frame and the one-year extension that it concedes was permissible under the Agreement.
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disposition of the underlying merits,” and “further proceedings are not likely to produce an order that is any more final than the one at issue.” Miller, 975 F.2d at 550.
Under the collateral order doctrine—“[b]est understood as a practical construction of the final judgment rule,” Alpine Glass, 686 F.3d at 877 (cleaned up)—collateral orders that “do not end the litigation” may still be considered “final” if three conditions are met. These conditions are: (1) the decision is “conclusive”; (2) the decision “resolve[s] important questions separate from the merits”; and (3) the decision would otherwise be “effectively unreviewable.” Mohawk Indus., 558 U.S. at 106; Alpine Glass, 686 F.3d at 877. All three conditions are met in this case. The district court reached a firm conclusion regarding the meaning of the jurisdictional provision in the Agreement; this issue is entirely separate and apart from the merits of the underlying litigation; and there is likely to be no further occasion for this court to address the question. We conclude that jurisdiction in this court is proper under § 1291.
III.
The parties agree that interpretation of the Agreement is governed by Minnesota law regarding contract interpretation. See Loftness Specialized Farm Equip., Inc. v. Tweistmeyer, 818 F.3d 356, 360 (8th Cir. 2016). “Under Minnesota law, ‘the primary goal of contract interpretation is to determine and enforce the intent of the parties.’” Id. at 361 (quoting Motorsports Racing Plus, Inc. v. Arctic Cat Sales Inc., 666 N.W.2d 320, 323 (Minn. 2003)). “Where the parties express their intent in unambiguous words, those words are to be given their plain and ordinary meaning.” Id. (quoting Motorsports Racing, 66 N.W.2d at 323). However, if a contract is “reasonably susceptible to more than one construction” it is ambiguous, and “construction becomes a question of fact unless extrinsic evidence is conclusive.” Id. (quotations omitted).
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a. Contractual Ambiguity “Whether the terms of a contract are ambiguous is a question of law, to be determined by the court,” id. (quoting Blackburn, Nickels & Smith, Inc. v. Erickson, 366 N.W.2d 640, 643 (Minn. Ct. App. 1985)), and our review of the district court’s ruling is de novo, Swift & Co. v. Elias Farms, Inc., 539 F.3d 849, 851 (8th Cir. 2008). Under Minnesota law, a contract is ambiguous if “the language used is reasonably susceptible of more than one meaning.” Id. (quoting Blattner v. Forster, 322 N.W.2d 319, 321 (Minn. 1982)). We must therefore turn to the language of the Agreement. The relevant jurisdictional provision in the Agreement reads: “The Court shall retain jurisdiction over this matter for two (2) years from its approval of this Agreement for the purposes of receiving reports and information required by this Agreement, or resolving disputes between the parties to this Agreement, or as the Court deems just and equitable.” MDHS reads the provision to provide jurisdiction over the “matter” for two years for three distinct purposes that are separated by commas. The Jensen class, on the other hand, reads the provision to provide jurisdiction over the “matter” for two years for two explicit purposes, while also allowing the district court to retain jurisdiction “as [it] deems just and equitable.” For clarity, we display these two interpretations visually:
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CASE 0:09-cv-01775-DWF-BRT Document 695 Filed 07/26/18 Page 8 of 12

MDHS’s Interpretation

The Jensen class’s Interpretation

The Court shall retain jurisdiction over The Court shall retain jurisdiction over

this matter for two (2) years from its this matter

approval of this Agreement for the pur- ! for two (2) years from its approval of

poses of

this Agreement for the purposes of

! receiving reports and information " receiving reports and information

required by this Agreement, or

required by this Agreement, or

! resolving disputes between the par- " resolving disputed between the

ties to this agreement, or

parties to this Agreement, or

! as the Court deems just and equita- ! as the Court deems just and equita-

ble.

ble.

Both parties argue this provision unambiguously reflects their interpretation. MDHS relies largely on the placement of commas to conclude that the court “shall retain jurisdiction” for only two years. The word “or” is preceded by a comma in both uses. MDHS says this indicates that the commas separate items in a list, because commas are typically not used before the word “or” when separating only two items. Had the parties intended the interpretation the Jensen class advocates, they would have used a colon or semi-colon. MDHS also asserts that the subsequent language—which provides a specific method for extending the court’s jurisdiction for one year at the Jensen class’s request—supports its reading. Otherwise, MDHS claims, this language is superfluous.4
The Jensen class bases its interpretation on the use of the words “receiving” and “resolving” to link the two purposes for which the district court had jurisdiction

4MDHS argues that the “series-qualifier” canon which requires that a term be presumed to modify the entire series that it follows or precedes supports their position. However, this reasoning is circular, as this canon only applies if the sentence indeed includes a “series” of more than two elements in the first place.
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for the initial two-year period. The subsequent portion of the sentence—“or as the Court deems just and equitable”—in contrast, does not begin with a gerund and thus cannot be one of the “purposes” subject to the two-year limit. See O’Connor v. Oakhurst Dairy, 851 F.3d 69, 74 (1st Cir. 2017). To assert otherwise is to say that the court had jurisdiction “for the purpose[] of . . . as the Court deems just and equitable,” a nonsensical grammatical construction. Had the parties intended the interpretation that MDHS advocates, they would have used a third gerund, such as “acting,” before the phrase “as the Court deems just and equitable.” The Jensen class also asserts that given the complex nature of the parties’ obligations under the Agreement, inclusion of a specific procedure for extending jurisdiction for one additional year, as well as a fall-back clause for the court to retain jurisdiction as it deems “just and equitable,” was a logical choice.5
Both parties’ readings are reasonable—but imperfect—interpretations of the jurisdictional provision. And as the district court stated, “neither party’s interpretation makes complete grammatical sense.” In short, we agree with the district court that the jurisdictional provision in the Agreement is reasonably susceptible to more than one reading; it is ambiguous.
b. Extrinsic Evidence
Once a court concludes that a contract is ambiguous, “construction then becomes a question of fact . . . unless extrinsic evidence is conclusive” as to the intent of the parties. Loftness, 818 F.3d at 362 (brackets omitted) (quoting Blackburn, 366
5The Jensen class—citing various grammatical precedents—also argues that the use of the “disjunctive or” supports their reading, because a disjunctive list would normally only have one “or,” rather than an “or” preceding each item. However, it is not uncommon for a list to use conjunctions or disjunctions between each item (or no conjunctions at all), and it is therefore just as plausible that the disjunctive is used in parallel, as MDHS asserts. Cf. O’Connor, 851 F.3d at 73–76.
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N.W.2d at 643). “To determine the intent of the parties, the court looks at surrounding circumstances and the parties’ own subsequent conduct.” Id. (quoting Fredrich v. Indep. Sch. Dist. No. 720, 465 N.W.2d 692, 695 (Minn. Ct. App. 1991)). “The most probative evidence is the actions of the parties afterwards.” Id. (quoting Fredrich, 465 N.W.2d at 695). Indeed, under Minnesota law, “the interpretation the parties themselves place on the contract is entitled to great, perhaps controlling, weight in ascertaining the terms of the contract.” Fredrich, 465 N.W.2d at 696.
Both parties have proceeded—both before and after December 4, 2014—as though the district court has properly retained jurisdiction. The district court extended its jurisdiction three times, and neither party objected. Nor did either party object to the district court’s orders expressly reserving the authority to extend its jurisdiction again. Indeed, in 2015 and 2016—after the date that MDHS now asserts jurisdiction ceased—the parties filed reports and letters with the court, and responded to the reports filed by the Court Monitor. And, also during that time, MDHS filed a motion seeking “an order granting relief from a particular provision in the Stipulated Class Action Settlement.” The next day, the Jensen class filed a memorandum in opposition to that motion. In none of these filings did either party question the court’s jurisdiction to grant or deny the relief sought, or to monitor compliance with the terms of the Agreement. Not until more than two years after it now claims jurisdiction ceased did MDHS express any objection to the district court’s continued jurisdiction.
In addition, the attorney for the Jensen class—who originally negotiated the Agreement—submitted a sworn affidavit. He stated that, at the time of negotiation, he understood that the jurisdictional provision allowed the district court to retain jurisdiction in the event of non-compliance or delay on the part of MDHS. We recognize that this evidence only serves to show the understanding of one party at the time of contracting, but it supports the reasonable inference—drawn from the
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repeated conduct of the parties—that all sides understood the district court to have the authority to extend its jurisdiction as it deemed “just and equitable.”
MDHS presents no alternative extrinsic evidence to support its reading of the agreement. MDHS points only to the district court’s July 17, 2012, Order, arguing that there, the district court adopted its interpretation. But a fair reading of the district court’s language in this order is that it was merely reciting the language of the Agreement—language that is only now in dispute. To the extent this order is extrinsic evidence, it fails to support MDHS’s interpretation.
MDHS makes two other arguments unrelated to the principles of contract interpretation already discussed. First—observing that Minnesota law rejects constructions of ambiguous contract provisions that would lead to an “absurd result,” see Eng’g & Constr. Innovations, Inc. v. L.H. Bolduc Co., 825 N.W.2d 695, 705 (Minn. 2013) (quoting Emp’rs Mut. Liab. Ins. Co. of Wis. v. Eagles Lodge of Hallock, Minn., 165 N.W. 554, 556 (Minn. 1969))—MDHS asserts that it “would not have reasonably agreed to terms under which the district court could extend its jurisdiction . . . indefinitely” and that such an interpretation is therefore absurd. We see no reason why this is so. MDHS identifies no evidence indicating that it would not be reasonable for the parties to agree to a preliminary time frame for the court’s jurisdiction while, at the same time, including a fail-safe provision that allowed flexibility if compliance with the Agreement took longer than originally expected.6
Second, MDHS argues that the Jensen class’s interpretation of the contract violates separation of powers and presents significant federalism concerns because
6And, we note, MDHS’s interpretation would mean that the Jensen class entered a settlement agreement that dismissed their claims against MDHS with prejudice, yet placed no obligation on MDHS to comply with the terms of the Agreement beyond the initial two-year term—a result that the Jensen class might find absurd.
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the district court has “confer[red] upon itself and its court monitor a micro managerial role over a substantial portion of DHS.” However, these arguments—whatever their underlying merit—are misplaced because the question before us on appeal is purely jurisdictional. We are not asked to examine the role that the district court has played in the post-judgment enforcement of the Agreement, nor are we tasked with interpreting any provision of the Agreement other than the jurisdictional one. If MDHS believes that the district court is exercising authority in excess of what the Agreement grants, it remains free to raise such challenges during the ongoing litigation below. However, such concerns have no bearing on our interpretation of the provision articulating the duration for which the district court retains jurisdiction.
IV. We conclude that, while the jurisdictional provision of the Agreement is ambiguous on its face, the extrinsic evidence shows that this provision permits the district court to extend its jurisdiction as it “deems just and equitable.” We affirm.
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 CASE 0:09-cv-01775-DWF-BRT Document 737 Filed 06/17/19 Page 1 of 41

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians, and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians, and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian, and next friend of Jason R. Jacobs; and others similarly situated,

Civil No. 09-1775 (DWF/BRT)

Plaintiffs,

v.

ORDER

Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and the State of Minnesota,

Defendants.

Shamus P. O’Meara, Esq., and Mark R. Azman, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

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Scott H. Ikeda, Aaron Winter, Anthony R. Noss, and Michael N. Leonard Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants. ________________________________________________________________________
INTRODUCTION A Status Conference was held on April 16, 2019 to receive updates on the Jensen Stipulated Class Action Settlement Agreement (Doc. No. 136-1), the Second Amended Comprehensive Plan of Action (Doc. Nos. 283, 284), and the Olmstead Plan (Doc. Nos. 510, 521). (Doc. No.734.) As discussed below, the Court has determined that investigation and review is required on several compliance issues before the Court can equitably end its jurisdiction over this matter.
BACKGROUND Nearly ten years ago, on July 10, 2009, Plaintiffs filed a Complaint1 against Defendants asserting multiple violations of federal and state law arising out of allegations of “abusive, inhumane, cruel, and improper use of seclusion and mechanical restraints routinely imposed upon [residents]2 of the Minnesota Extended Treatment Options program (METO).” (Doc. No. 1 at 2.) Following extensive negotiations, the parties entered into a Stipulated Class Action Settlement Agreement, which was approved by the Court on December 5, 2011. (See Doc. Nos. 104, 136.)
1 On July 30, 2009, Plaintiffs filed an Amended Complaint arising out of these same allegations. (See Doc. No. 3 at 3.) 2 The Court encourages use of the term “resident” as an alternative to “patient.”
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The Stipulated Class Action Settlement Agreement provided for the closure of the METO facility, established requirements regarding restraint and seclusion at successor facilities, and established requirements for the Department of Human Services (“DHS”) to internally and externally monitor restraint use. (See Doc. No. 136-1 (“Settlement Agreement”) at 6-13.) The Settlement Agreement also provided that the State shall exercise “best efforts” for appropriate discharge of residents to the most integrated setting through transition planning. (Id. at 13-14.) In addition, the Settlement Agreement imposed requirements relating to other practices at METO and its successor facilities. (Id. at 14-16.)
The Settlement Agreement also included “System Wide Improvements” which identified goals and objectives in the areas of long-term monitoring, crisis management, and training. (Id. at 16-21.) The Settlement Agreement further required the development of an Olmstead Plan within eighteen months of the Settlement Agreement’s approval. (Id. at 18.) The Settlement Agreement also established requirements relating to other state facilities, the modernization of state administrative rules relating to positive behavioral supports (“Rule 40”), and the substitution of offensive terminology in DHS publications. (Id. at 19-21.)
When the Settlement Agreement was approved and adopted by this Court, the parties made promises and sweeping declarations that the settlement heralded widespread change for “hundreds of thousands of people in this state” and would “set the tone” nationally. (Doc. No. 146 at 13, 27.) The Plaintiffs stated that the Settlement Agreement’s “unprecedented comprehensive positive changes” would benefit “not only
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Class members, but all people with developmental disabilities in this state.” (Id. at 8.) Defendants concurred with the Plaintiffs, stating: “[The Settlement Agreement] will greatly improve the quality in care of the lives of a large number of persons with disabilities, not only in Minnesota, but [for] people that come through Minnesota . . . , [a]nd we think that this [A]greement will set the tone for other states, as well.” (Id. at 27.)
Almost immediately after the Court approved and adopted the Settlement Agreement, concerns about compliance—and assessing compliance—arose. For example, the Settlement Agreement expressly required Defendants to select and engage an External Reviewer. Once selected, the External Reviewer would “issue [written reports] informing the Department whether the Facility is in substantial compliance with [the] Agreement.” (Settlement Agreement § VII.B(4).) But several months after the Court’s December 5, 2011 approval and adoption of the Settlement Agreement, the External Reviewer position remained unfilled. The Court informed the parties on May 4, 2012, that it was contemplating appointing a monitor to assist and advise the parties with respect to the implementation process. (Doc. No. 147 at 2.) Concerns about Defendants’ failure to fill the External Reviewer position under the Settlement Agreement continued.
On July 17, 2012, the Court observed that there was “clearly a need for a process to investigate potentially conflicting information, provide a coherent and complete presentation, and make recommendations to the Court.” (Doc. No. 159 at 9-10.) David Ferleger was suggested as a possible consultant or monitor. The Court was informed that Defendants had previously consulted with Mr. Ferleger to obtain his advice on fund
4

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distribution. (Id. at 10.) The Court was also aware that Defendants had previously requested Mr. Ferleger’s consultation regarding the Olmstead Plan under the Settlement Agreement. (Id.) Accordingly, based on his expertise and familiarity with the matter, the court appointed Mr. Ferleger as an independent advisor and compliance monitor (“Court Monitor”) on July 17, 2012. (Id. at 13.) In assuming this role, Mr. Ferleger continued to work with the Defendants on the development of the Olmstead Plan. (Id. at 14 n.22.)
The External Reviewer function, required pursuant to the Settlement Agreement, was still not in place as of September 17, 2012. (Doc. No. 165 at 27.) The position remained unfilled throughout 2012 and into 2013. As a result, externally reviewed reports contemplated by the Settlement Agreement were not delivered. Finally, on April 25, 2013, the Court ordered that the role of the Court Monitor also subsume the External Reviewer function set forth in Section VII.B of the Settlement Agreement. (Doc. No. 212 at 6.) Importantly, Defendants’ own report, dated February 2, 2016, notes that “the Court appointed the Court Monitor as the External Reviewer, with the consent of Plaintiffs and Defendants. DHS funds the costs of the external reviewer.” (Doc. No. 531 at 32.)
Pursuant to its April 25, 2013 Order, the Court asked the Court Monitor to “independently investigate, verify, and report on compliance with the Settlement Agreement and the policies set forth therein on a quarterly basis.” (Doc. No. 212 at 6.) On June 11, 2013, the Court Monitor submitted an external review which identified several areas of noncompliance, including the operation of one of DHS’s facilities
5

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without a license in violation of Minn. Stat. § 144.50, subd. 1(a). (Doc. No. 217 at 44- 45.)
On August 28, 2013, the Court extended its jurisdiction for an additional year to December 4, 2014. (Doc. No. 224.) The Court expressed specific concern “with the sluggish pace of implementation of the specific terms of the [] Agreement and the resulting noncompliance.” (Id. at 10.) To facilitate compliance, the Court ordered Defendants to submit an implementation plan with specific actions, deadlines, and reporting requirements for the Court’s review. (Id. at 3-4.) The Court contemplated three distinct plans: (1) a plan for the Settlement Agreement’s then-existent provisions and the MSHS-Cambridge closure; (2) a plan for the Rule 40 modernization; and (3) the Olmstead Plan. (Id. at 4-6.) Defendants filed proposals on October 17 and October 30, 2013. (Doc. Nos. 235, 244.) The Court directed the Court Monitor to work in cooperation with the current DHS Commissioner to finalize the plans. (Doc. Nos. 237, 248.)
On October 7, 2013, Plaintiffs filed a motion for sanctions against Defendants for bad-faith conduct and lack of candor to the Court. (Doc. No. 230.) Plaintiffs argued that Defendants willfully and intentionally acted in substantial noncompliance with the Settlement Agreement. (Doc. No. 232 at 29.) On December 17, 2013, the Court found that Defendants violated the Settlement Agreement and granted Plaintiffs’ request for sanctions. (Doc. No. 259 at 5.) Specifically, the Court found that “DHS consciously concealed and misled the Plaintiffs and the Court with regard to the lack of licensure, or if not consciously concealed and misled, was indifferent to both the violation and the
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expectation of candor with all parties.” (Id.) The Court reserved ruling on what sanctions were appropriate, however, until the Court Monitor submitted his next report on Defendants’ current status of compliance and on Defendants’ cooperation with the implementation plan required pursuant to its Order on August 28, 2013. (Id. at 5-6.)
On January 22, 2014, the Court ordered the parties to meet with the Court Monitor to “communicate and negotiate in good faith to once and for all establish a final implementation plan.” (Doc. No. 266 at 5.) The parties met on February 3 and 4, 2014. (Doc. No. 271 at 3.) On February 13, 2014, the Court Monitor recommended adoption of a Comprehensive Plan of Action (“CPA”).3 (Id. at 2.) The CPA was designed to “serve as both a roadmap to compliance and as a measuring stick for compliance.” (Id. at 4.)
The Court formally adopted and approved the CPA (Doc. No. 283 (“CPA”)) on March 12, 2014.4 (Doc. No. 284.) The combination of the Settlement Agreement and CPA is hereinafter referred to as the “Agreement.” The Agreement includes 104 Evaluation Criteria (“EC”) and accompanying Actions:
The ECs set forth the outcomes to be achieved and are enforceable. The Actions under the ECs are not enforceable requirements. Compliance with an EC will be deemed to have been achieved if the EC’s Actions are taken.
3 The CPA covered only the first two parts of the Court’s August 28, 2013 Order. (See Doc. No. 283 at 1.) Specifically, Part I covered elements of the Settlement Agreement and the closure and replacement of MSHS-Cambridge facility with community services. (Id.) Part II covered the Rule 40 modernization plan. (Id.) Part III, the Olmstead Plan was still being finalized pursuant to the Court’s orders. (Id.) 4 The Court formally adopted the “Second Amended Comprehensive Plan of Action” on March 12, 2014. (Doc. No. 284.) An earlier version of the Comprehensive Plan of Action was inadvertently filed at Doc. No. 280 and subsequently marked as a filing error. (See Doc. No. 280.)
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However, the Departments of Human Services may undertake alternate actions to achieve satisfaction of the EC. The Actions may be modified pursuant to the modification process set forth in the Order of August 28, 2013.
ECs are indicated by whole Arabic numbers (e.g., 1, 2) and, in the original, by blue shading. Actions are indicated by Arabic numbers with consecutive decimals (e.g., 1.1, 1.2, 1.3, 2.1, 2.2, 2.3). (CPA at 1.) The Court ordered Defendants to file an initial update in thirty days regarding compliance with the Agreement, and to file subsequent updates (“Compliance Reports”) on a bi-monthly schedule (“Compliance Reports”). (Doc. No. 284 at 3.) Defendants submitted their first and second Compliance Reports on April 11, 2014 and May 12, 2014, respectively.5 (Doc. Nos. 289, 299.) They filed their third Compliance Report on July 15, 2014. (Doc. No. 328.) Each Compliance Report conceded areas of noncompliance. On June 20, 2014, the Court Monitor submitted a report with additional findings of noncompliance.6 (Doc. No. 327.) Defendants conceded the areas of noncompliance and stated that “DHS can and will do more.” (Doc. No. 324 at 2.) In light of Defendants’ ongoing noncompliance, Plaintiffs asked the Court to rule on the sanctions currently held in abeyance pursuant to the Court’s December 17, 2013 Order. (Doc. No. 332 at 2.) In lieu of issuing contempt or other punitive sanctions, the Court extended its jurisdiction an additional two years to December 4, 2016, and increased the Court
5 The first Compliance Report covered the time period of February 1 through March 31, 2014. (Doc. No. 289.) The second Compliance Report covered the time period of February 1 through April 30, 2014. (Doc. No. 299.) 6 A modified version of the report appears at Doc. No. 327.
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Monitor’s responsibilities to: (1) oversee Defendants and ensure their accountability; and (2) expedite prompt and meaningful compliance. (Doc. No. 340 at 8-9, 14.)
On October 20, 2014, the Court Monitor filed a report with findings of noncompliance related to the use of restraint and seclusion and asked the Court to adopt specific recommendations. (Doc. No. 347 at 54-57.) One of his recommendations was to obtain additional external expertise to assist with person centered planning and implementation of positive supports. (Doc. No. 347 at 54-55.) Defendants filed a response arguing that the Court Monitor’s report did not demonstrate lack of substantial compliance, and suggested that he assess overall progress in lieu of pointing out specific and particular problems. (Doc. No. 352 at 1-2.) Defendants also objected to the Court Monitor’s recommendations. (Id. at 4-10.) The Court adopted the Court Monitor’s recommendations on December 5, 2014, and reserved the right to impose monetary or other sanctions if Defendants failed to comply. (Doc. No. 368 at 10.) On January 5, 2015, the Court Monitor notified the Court that Defendants had complied with the December 5, 2014 Order by approving the appointment of external expert, Dr. Gary LaVigna. (Doc. No. 377.)
Defendants submitted their fourth and fifth Compliance Reports on September 15, 2014 and November 17, 2014, respectively. (Doc. Nos. 342, 360.) The Court Monitor submitted a report on November 25, 2014 indicating that certain items in the fourth and
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fifth Compliance Reports could not be verified.7 (Doc. No. 374.) Defendants objected to the Court Monitor’s findings on December 22, 2014. (Doc. No. 372.) Defendants filed their sixth Compliance Report on February 13, 2015. (Doc. No. 387.) On February 18, 2015, the Court Monitor notified the Court that certain items in the sixth Compliance Report appeared to be inaccurate. (Doc. No. 388 at 1.) Defendants objected to the Court Monitor’s findings on March 4, 2015. (Doc. No. 393.) Defendants filed their seventh Compliance Report on March 16, 2015. (Doc. No. 396.) On April 14, 2015, the Court Monitor submitted a report detailing multiple instances of inaccurate and unverified information in Defendants’ Compliance Reports. (Doc. No. 414.) Defendants agreed that there were areas where they could improve their reporting; however, they disagreed with the Court Monitor’s assertion that they knowingly filed inaccurate or non-verifiable information. (Doc. No. 429 at 1.) Defendants argued that the Court Monitor was holding them to expectations beyond those imposed by the Agreement, and cited challenges with reporting on a bi-monthly basis. (Id. at 7.) Plaintiffs once again asked the Court to impose sanctions or other relief for Defendants’ lack of compliance with the Agreement. (Doc. No. 430 at 1.) The Court held a Status Conference on May 28, 2015 to address the issues impeding compliance with the Agreement.8 (Doc. No. 456.)
7 Although the Court Monitor’s report was submitted on November 25, 2014, it was not filed until December 24, 2014. 8 Prior to the Status Conference, Defendants filed their eighth Compliance Report on May 15, 2015. (Doc. No. 440.)
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Following the Status Conference, the parties participated in mediation to address remaining issues.9 On June 18, 2015, the Court stayed the parties’ and the Court Monitor’s reporting obligations to the Court to allow the parties to focus on mediation. (Doc. No. 462 at 2.) On July 9, 2015, the Court extended the stay of the reporting requirements to August 10, 2015 due to continued mediation. (Doc. No. 472 at 2.) Following mediation on the identified issues, the Court directed the Defendants to submit a “Gap Report” to report on Defendants’ compliance with the Agreement for the period between May and September 2015.
Defendants submitted the Gap Report on February 2, 2016.10 (Doc. No. 531 (“Gap Report”).) The Gap Report discussed new organizational structures that Defendants had put in place to improve compliance and quality oversight of the Settlement Agreement. (Id. at 5-7.) One of the organizational improvements touted was the development of “Independent Subjects Matter Experts” with expertise “in a variety of areas, to provide independent and objective assurance, advisory, and investigative services to the Department in relation to the Jensen Settlement Agreement.” (Id. at 6.) The Gap Report further specified that the “highly qualified and experienced subject matter experts, with specialized skills, [would] assist the Department in bringing
9 The parties participated in mediation meetings with Magistrate Judge Becky R. Thorson between June 2015 and October 2015. 10 The Gap Report was Defendants’ ninth Compliance Report. Due to the transition between DHS Commissioners Lucinda Jesson and Emily Johnson Piper while the Gap Report was being prepared, the Court granted Defendants extra time to submit it.
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significant improvements to the care and treatment of individuals with developmental
disabilities outlined in the Jensen Settlement Agreement.” (Id.)
Around this time, the parties also jointly proposed modified reporting
requirements with respect to the Agreement and the Olmstead Plan. (Doc. Nos. 537,
539.) On February 22, 2016, the Court issued orders establishing separate reporting schedules for the Agreement and the Olmstead Plan.11 (Doc. Nos. 544, 545.) Both
orders included the following provision extending the Court’s jurisdiction:
Based on all of the above and the current status of this matter, and pursuant to the Settlement Agreement § XVIII.B and the Court’s September 3, 2014 Order (Doc. No. 340), the Court’s jurisdiction is extended to December 4, 2019. The Court expressly reserves the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of Defendants’ compliance and absent stipulation of the parties.
(Doc. No. 544 at 8; Doc. No. 545 at 6.) The February 22, 2016 Order also invited each
party to submit a proposal regarding how the Independent Subject Matter Experts could
be utilized for external reporting. (Doc. No. 545 at 6 ¶ 16.) On March 14, 2016,
Defendants filed a proposal stating:
The [Subject Matter Experts] will be called upon by the Department to offer expert independent consultation services and problem-solving, and will be expected to provide written reports and documentation of recommendations related to individuals and systemic issues. An assignment may be generated from the Jensen/Olmstead Quality Assurance and Compliance Office (formerly the Jensen Implementation Office), the Jensen Internal Reviewer, the Department-wide Quality Assurance Team for People with Disabilities, or the Department’s Compliance Office.
11 The Court also established bi-annual status conferences to facilitate the Court’s continued oversight of the Defendants compliance with the Agreement and the Olmstead Plan. (See Doc. Nos. 544, 545.)
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(Doc. No. 549 at 1.) Defendants filed a supplement to their original proposal explaining how the Subject Matter Experts could also be used to fulfill the External Reviewer function:
With respect to the External Reviewer Function, it is the proposal of the Department that the Department will identify from the pool of [Subject Matter Experts] a proposed External Reviewer to perform the duties as set forth in the JSA and the Comprehensive Plan of Action (CPA). (Doc. No. 550 at 2.) On March 18, 2016, the Court issued an Order on its review of the Gap Report. (Doc. No. 551 (“Gap Report Order”).) Recognizing Defendants’ commitment to new internal structures, including the pool of Independent Subject Matter Experts to provide independent and objective assurance, advisory, and investigative services, the Court stayed the bulk of the Court Monitor’s duties, including his periodic reporting requirements.12 (Gap Report Order at 3, 24.) The Court stated, “[g]iven DHS’s important updated organizational structure created to address, supervise, and sustain compliance and the Court’s desire to ensure that these measures will be successfully utilized to achieve their stated purposes, the Court finds that it is appropriate to propose specific follow-up by DHS (utilizing their new verification mechanisms) regarding certain items discussed in the Gap Report, rather than assign this follow-up to the Court Monitor.” (Id. at 7.) The Court further observed that “[i]f the follow-up by DHS does not sufficiently clarify and support DHS’s compliance,
12 The Court Monitor’s duties were limited to gathering information and verifying representations in the Gap Report with respect to Mobile Teams and the Successful Life Project (ECs 93 and 98). (Gap Report Order at 18-24.)
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the Court may request that the Court Monitor follow up on these items.” (Id.) In this order, the Court also stated the following regarding its jurisdiction:
On December 5, 2011, the Court approved the parties’ Stipulated Class Action Settlement Agreement . . . and reserved jurisdiction over this matter ‘to enforce compliance with the provisions of the Agreement.’ The Jensen Settlement Agreement provided that the Court would retain jurisdiction for two years ‘or as the Court deems just and equitable.’ The Court has since extended its jurisdiction on three occasions, most recently extending its jurisdiction to December 4, 2019. The Court is hopeful that substantial compliance with the Jensen Settlement Agreement will be achieved by this date. (Id. at 2 (citations omitted).) Defendants filed their first Compliance Report pursuant to the updated reporting schedule on March 31, 2016. (Doc. No. 553-1.) Defendants indicated compliance with all ECs reported on. (Id.) The report reiterated Defendants’ commitment to developing the “pool of experts in a variety of areas, to provide independent and objective assurance, advisory, and investigative services of the Department in relation to the Jensen Settlement Agreement.” (Id. at 6.) On May 31, Defendants submitted additional verification with respect to its Gap Report pursuant to the Court’s March 18, 2016 Order. (Doc. No. 572.) The Court held a Status Conference on June 6, 2016. (Doc. No. 576.) During the Status Conference, the Court asked DHS to provide an overview of its organizational structure, including its process for ensuring accuracy and completeness of reporting, and
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the External Reviewer Function.13 (Doc. No. 568 at 3-4.) Plaintiffs and Consultants were also invited to comment. (Id.) Prior to the conference, Defendants explained that the Subject Matter Experts could “perform internal reviews for the Department of Human Services (the “Department”), as well as the External Reviewer function contemplated by the Jensen Settlement Agreement.” (Doc. No. 550 at 1.)14
After the Status Conference, it was clear that the parties were unable to agree on whether or how to amend the External Reviewer function set forth in the Agreement; therefore, the Court concluded that it was appropriate to continue the External Reviewer function pursuant to the Agreement and prior orders of the Court. (Doc. No. 578 (“June 21, 2016 Order”) at 3.) Accordingly, the Court ordered that the Court Monitor would continue to fill the External Reviewer role. (Id.) Observing that the Court Monitor’s duties, including his role as External Reviewer, were currently stayed, the Court reserved the right to order that the Court Monitor’s duties resume or to make further modifications to the Court Monitor’s duties at any time consistent with the Court’s discretion. (Id. at 3-4.) The Court encouraged the parties to collaborate with
13 Prior to the Status Conference, each party was directed to submit a proposal to amend the External Reviewer Function. (Doc. No. 568 at 3.) 14 Defendants subsequently explained that a review “[could] be triggered internally by request of the Commissioner, Compliance Office, Department-wide Quality Assurance Leadership Team, Jensen Internal Reviewer, or QADC Services; and externally, by request of parties, including Plaintiff’s Class Counsel and the Consultants.” (See, e.g., Doc. No. 589 at 10; 614-1 at 7; Summary Report at 13.)
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each other and the Consultants to submit additional proposals or stipulations on the External Reviewer Function. (Id. at 4.)
The June 21, 2016 Order also addressed Defendants’ state of compliance with respect to its submission of verification updates on the Gap Report (Doc. No. 572). (June 21, 2016 Order at 4-7.) The Court recommended that DHS establish a protocol to govern its compliance evaluation and verification efforts, including efforts involving Independent Subject Matter Experts or the Jensen Internal reviewer. (Id. at 6-7.)
On August 25, 2016, the Court held an informal meeting with the parties to discuss the possibility of transitioning to a local Court Monitor. (Doc. No. 593 at 3.) The Court invited the parties to submit letters addressing their positions on a possible appointment. The parties submitted letters on September 7, 2016, and September 12, 2016, respectively. (Doc. Nos. 590, 591.) In the interim, Defendants submitted their second Compliance Report pursuant to the updated reporting schedule.15 (Doc No. 589.) The parties did not agree on appointing a local Court Monitor. (Doc No. 593 at 3.) On September 21, 2016, the Court observed a need for continued monitoring of Defendants’ compliance and reaffirmed David Ferleger’s appointment as Court Monitor. (Doc.
15 The Compliance Report was submitted on August 31, 2016. (Doc. No. 589.) Defendants reported that they had secured contracts with eight Independent Subject Matter Experts with expertise in one or more of the following areas: (1) persons with Intellectual and Developmental Disabilities (“IDD”), complex needs, or challenging behaviors; (2) pharmacological reviews of medication regimens of persons with IDD with complex medical needs or challenging behaviors; (3) positive behavior practices; and (4) qualitative and quantitative research design. (Id. at 10.) Defendants also stated that the process to engage the Independent Subject Matter Experts could be initiated internally or externally, discussed infra. (Id.)
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No. 593 at 4.) The Court advised that a subsequent Order would indicate the Court Monitor’s next steps regarding investigation of Defendants’ compliance with the Agreement. (Id.)
On September 29, 2016, the Court lifted the stay on the Court Monitor’s duties and directed him to conduct a review of Defendants’ recent reports to assess substantial compliance with regard to all components of the Agreement. (Doc. No. 595 at 2-3.) The Court Monitor submitted his findings to the Court on November 29, 2016. (Doc. No. 604.) The Court Monitor found several areas of noncompliance16 and multiple others that were inconclusive.17 Defendants objected to the Court Monitor’s findings on December 12, 2016 and argued that continued court monitoring was inappropriate. (Doc. No. 606-2 at 6-8.) Defendants’ response also included several clarifications and areas identified for improvement with respect to a number of ECs. (See Doc. No. 606-2.)
On January 5, 2017, the Court held a Status Conference to discuss the Court Monitor’s findings and to follow up on Defendants’ verification protocols. (See Doc. Nos. 608, 611.) After the Status Conference, the Court ordered Defendants to incorporate the improvements and clarifications it identified in its response to the Court Monitor’s findings and stayed the Court Monitor’s duties pending Defendants’ submission of their next two Compliance Reports. (Doc. No. 612 at 3.) The Court
16 EC Nos.: 25, 26, 58, 69, and 93 were not in compliance. (Doc. No. 604 at 10-12.) 17 EC Nos. 1-4, 6, 8-9, 27, 38-39, 47-57, 59-61, 63-68, 70-72, 75, 78, 81-85, 89-92, 94, 96, 98-99, and 104 were inconclusive. (Doc. No. 604 at 10-12.)
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reserved the right to reengage the Court Monitor to investigate or verify other issues that may arise. (Id.)
Defendants submitted their third and fourth Compliance Reports pursuant to the updated reporting schedule on February 24, 2017 and March 31, 2017 respectively. (Doc. Nos. 614-1, 621-1.) These reports removed conclusions as to whether each EC was met. (See Doc. Nos. 614-1, 621-1.) The February 24, 2017 Compliance Report indicated that Defendants had executed Independent Subject Matter Expert Master Contracts with eight individuals. (Doc. No. 614-1 at 6.) Defendants also explained the process to generate the need for an Independent Subject Matter Expert review:
[I]dentification of the need for an Independent Subject Matter Expert Review can generate from internal or external sources: [1] Internally, by request of the Commissioner, Compliance Office, Department-wide Quality Assurance Leadership Team, Jensen Internal Reviewer, or JOQACO; and [2] Externally, by request of parties, including Plaintiffs’ Class Counsel and the Consultants. (Id. at 7.) On April 28, 2017, Defendants filed an objection to the Court’s ongoing jurisdiction over this matter and asked the Court to vacate orders that required them to act whether by reports or otherwise. (Doc. No. 631 at 1.) The Court overruled Defendants’ objection on June 28, 2017. (Doc. No. 638.) Defendants appealed the Court’s decision to the Eighth Circuit on July 26, 2017. (Doc. No. 639.) The Eighth Circuit subsequently affirmed this Court’s jurisdiction on July 26, 2018. (Doc. No. 695.)
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Before and after this Court’s jurisdiction was affirmed, Defendants continued to submit the required Compliance Reports; however, these reports no longer drew conclusions as to whether each EC was satisfied. (See Doc. Nos. 643, 676, 68318, 700.) The Court has repeatedly encouraged the parties to identify and develop a plan to address all remaining steps essential to successful implementation of the Agreement before the Court could terminate its jurisdiction. (See e.g., Doc. Nos. 638, 652, 691,733.) However, to date, no such plan has been submitted to the Court.
On January 4, 2019, the Court issued an Order requesting a comprehensive Summary Report to evaluate Defendants’ overall compliance with the Agreement in lieu of the scheduled reporting requirements.19 (Doc. No. 707.) The Court explained, “the Court must evaluate Defendants’ compliance to assess the impact of the Jensen lawsuit on the well-being of its class members and to determine whether the Court’s jurisdiction may equitably end.” (Id. at 6.) In order to accomplish this, the Court requested reporting in three areas: Internal Compliance Oversight Structure; Class Members’ Update; and assessment of all Evaluation Criteria. (Id. at 7-11.) In light of the previous Compliance Reports that removed conclusions about whether each EC was met, the
18 In their March 31, 2018 Compliance Report, Defendants reported they had initiated the procedure for an Independent Subject Matter Expert review related to EC 90 and that they had successfully implemented the Subject Matter Expert’s recommendations. (Doc. No. 683 at 48-49.) 19 In this Order, the Court referred to DHS’s new internal structures, including Subject Matter Excerpts, to ensure that systems were in place to ensure that Jensen’s legacy was not left an empty promise. (Doc. No. 707 at n.8.)
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Court specifically asked Defendants to state whether each EC was met and to provide specific data supporting each conclusion. (Id. at 9-13.) It was the Court’s intent that the Summary Report would serve as a tool to facilitate a thorough review of compliance that would help establish a road map for an equitable end to the Court’s jurisdiction. The January 4, 2019 Order advised the parties to review the Summary Report to assess compliance and identify next steps at a Status Conference in April 2019. (Id. at 13.) Defendants timely submitted the Summary Report on March 19, 2019 and self-assessed all ECs as in compliance. (Doc. No. 710 (“Summary Report”).)
The Court held the Status Conference on April 16, 2019. (Doc. No. 734.) While the Court reviewed a number of Defendants’ Compliance Reports, a special focus was placed on the Summary Report.20 (See Doc. No. 733.). In advance of the Status Conference, the Parties and the Consultants were invited to comment on Defendants’ status of compliance.21 The parties addressed the comments during the Status Conference; however, they failed to agree on the status of compliance or a plan to move forward. They disagreed over whether Defendants have complied with the Agreement. While Defendants contend that they have met the requirements for each EC and that the
20 The Status Conference addressed overall compliance with the Agreement, progress towards Olmstead Plan goals, and the March 2019 Revision to the Olmstead Plan. (Doc. No. 733.) 21 Each party also sent a letter to the Court with specific requests. (Doc. Nos. 730, 731.) Defendants requested the Court “to address the applicable legal standard the Court is using to determine the circumstances under which it will end its involvement in this matter, including what specific actions remain outstanding.” (Doc. No. 731.) Plaintiffs cited several potential areas of noncompliance and asked the Court to re-involve the Court Monitor and hold an evidentiary hearing. (Doc. No. 730.)
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Court should end its jurisdiction immediately, Plaintiffs strongly contest compliance and ask the Court to reengage the Court Monitor to investigate multiple violations of abusive conduct in state operated and licensed facilities. Plaintiffs also request an evidentiary hearing. The Consultants also have concerns with respect to Defendants’ assessment of compliance. They found that Defendants’ limited analysis and lack of external verification in their Summary Report make it difficult to conclude whether Defendants are truly in compliance.
The discussion below will first address compliance issues, taking into account Defendants’ Summary Report and the Plaintiffs’ and Consultants’ responses to the Summary Report. The Court will then identify specific required actions. Next, the Court will address the Olmstead Plan, including the March 2019 proposed Revision. Finally, the Court will discuss next steps necessary to address remaining disputes.
DISCUSSION I. The Jensen Agreement22
A. Defendants’ Summary Report and Responses Defendants’ Summary Report addressed each of the three areas required by the Court’s January 4, 2019 Order on reporting (Doc. No. 707). First, Defendants discussed
22 The Court addresses the Agreement separately from the Olmstead Plan as not to confuse or conflate the separate and distinct requirements and remaining disputes.
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DHS’s Internal Compliance Oversight structure.23 (Summary Report at 8-13.) The Summary Report also included updates on individual class members. Finally, it provided an internal self-assessment of all ECs. (Doc. No. 710.) Defendants concluded that they are in full compliance with the Agreement. (Id.) They request an immediate end to the Court’s jurisdiction.
Plaintiffs filed a letter response to Defendants’ Summary Report on April 10, 2019. (Doc. No. 730.) Plaintiffs vehemently contest Defendants’ compliance with the Agreement, citing multiple violations including allegations of abusive conduct in state operated and licensed facilities. (Doc. No. 730.) Plaintiffs’ counsel have consistently highlighted the need for the elimination of restraints as fundamental to the settlement. In a letter filed prior to the April 16, 2019 Status Conference, Plaintiffs stated:
The terms of the Jensen Settlement Agreement require the Department to “immediately and permanently discontinue” the use of mechanical restraints, medical restraints, and medications as a method of punishment, or in lieu of adequate staff training or behavior support plans, convenience, or as a form of behavior modification in the program that was the subject of the lawsuit. As noted, the Department also agreed more broadly in the Comprehensive Plan of Action to prohibit restraint and seclusion in all licensed facilities and settings, consistent with the above-noted legislative directive in Minnesota Statutes, section 245.8251. (Id. at 13.) Plaintiffs ground their noncompliance arguments in the Agreement, the Positive Supports Rule, and previous Court Orders. Focused on the lack of meaningful
23 Defendants cited their March 31, 2018 Compliance Report to reiterate that they had initiated the procedure for an Independent Subject Matter Expert review related to EC 90, and had successfully implemented the Subject Matter Expert’s recommendations. (Summary Report at 13.)
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external review, Plaintiffs request that “the Court actively involve the Independent Court Monitor” and hold an evidentiary hearing on the use of prohibited restraints. (Id. at 3- 4.)24
The Consultants25 also expressed concern with Defendants’ compliance assessment, particularly with respect to: (1) continued use of prohibited techniques, including restraints; (2) the number of treatment homes; (3) class member status; (4) person centered planning; (5) the Positive Support Rule; and (6) staff training. (Doc. Nos. 726, 727.) The Consultants also observed that Defendants’ limited analysis and lack of external verification in their Summary Report made it difficult to conclude whether Defendants have complied. With respect to restraints, the Consultants noted that more information is needed about the use of mechanical restraints, emergency use of manual restraints, 911 calls, and PRN.26 (Doc. Nos. 726, 727.) Dr. Colleen Wieck wrote, “Both EC5 and 6 are clear, ‘[t]he State/DHS immediately and permanently discontinues all the
24 As an example of prohibited restraints, Plaintiffs point to use of a mechanical restraint chair on a person with a developmental disability at Minnesota Security Hospital (“MSH”). (Doc. No. 730 at 6.) Plaintiffs argue that this example demonstrates failure to comply with at least Section V of the Settlement Agreement. (Id.) Plaintiffs also refer to provisions of the Settlement Agreement pertaining to the modernization of the Positive Supports Rule, previously known as Rule 40, to argue noncompliance with respect to Anoka Regional Treatment Center (“ARTC”) and MSH. (Id. at 9-11.) Plaintiffs cite specifically to Section X of the Settlement Agreement and corresponding CPA ECs 99-104 with particular emphasis on EC 103. (Id. at 11.) 25 Dr. Colleen Wieck is the Executive Director of the Minnesota Governor’s Council on Developmental Disabilities. Ms. Roberta Opheim is the Ombudsman for the Minnesota Office of Ombudsman for Mental Health and Developmental Disabilities. 26 PRN is the use of psychotropic medication on an as-needed basis.
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prohibited restraints and techniques; and the State/DHS has not used any of the prohibited restraints and techniques.’” (Doc. No. 726 at 5.) Among their concerns, the Consultants raised questions about the lack of detail surrounding staff training. (Id. at 9.) Regarding treatment homes, the Consultants called attention to the length of stay and long waitlists, and encouraged use of a comprehensive needs analysis. (Doc. Nos. 726, 727.) Finally, the Consultants encouraged Defendants to create a public document summarizing the information in the 1,200 pages of reporting on class members. (Id.)
B. Issues Requiring Further Investigation and Review The Court has reviewed the Summary Report, letters, presentations offered at the April 16, 2019 Status Conference, and relevant historical materials of records and identifies several issues in need of further investigation and review as set forth below.
1. Use of Prohibited Techniques Defendants state repeatedly in their Summary Report that “the Jensen Internal Reviewer has monitored the use of restraints at Minnesota Life Bridge . . . and has found that Minnesota Life Bridge has used no prohibited restraints or techniques” or “has used restraints only on an emergency basis.” (Doc. No. 710 at 179-82.) Defendants, however, appear to be verifying this information via “sampling ” and without more comprehensive verification. Defendants provide little detail regarding the total number of reports, the basis of any emergency, an assessment of any trends, or an explanation on how Defendants quantify known use of prohibited restraint or techniques by a third party. Thus, the Court cannot conclude whether Defendants have complied with the obligations set forth in the Agreement.
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The Court finds that external review is required. As discussed above, David Ferleger, who was initially appointed as Court Monitor, assumed the role of External Reviewer pursuant to the consent of both sides. Thus, the Court could direct the Court Monitor to perform this work, as requested by Plaintiffs. However, Defendants have objected to the ongoing involvement of Mr. Ferleger. While the Court does not concede that Defendants’ objection has any merit,27 the Court will allow Defendants the option to demonstrate that they have indeed developed the external review mechanisms “to provide independent and objective assurance, advisory, and investigative services to the Department in relation to the Jensen Settlement Agreement.”28 (Gap Report at 6.)
The Independent Subject Matter Experts were developed by DHS to bring “significant improvements to the care and treatment of persons with developmental disabilities, as outlined in the Settlement Agreement” through a master contract program. (See, e.g., Doc. Nos. 589 at 10; 614-1 at 6; 683 at 48-49; Summary Report at 13.) The Independent Subject Matter Experts have a minimum of five years’ experience in one or more specified Specialty Services Areas. (Doc. Nos. 589 at 10; 614-1 at 6.) One of the four specific areas identified includes positive behavior practices. (Doc. Nos. 589 at 10;
27 As noted above, David Ferleger was initially appointed as Court Monitor, at least in part, because Defendants failed to engage an External Reviewer to meet reporting requirements. 28 This approach also avoids any potential litigation regarding the role and deployment of David Ferleger at this time for the external investigation and review required by this Order. However, the Court reserves the right to deploy Mr. Ferleger in the future.
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614-1 at 6.) Accordingly, the Court will require Defendants to engage Subject Matter Expert(s) to conduct an external review of Defendants’ compliance regarding prohibited restraints.29
The Court will continue to stay the Court Monitor’s duties for a limited time, provided that Defendants timely engage a qualified Subject Matter Expert “to provide independent and objective assurance, advisory, and investigative services to the Department in relation to the Jensen Settlement Agreement” regarding the use of restraints no later than August 1, 2019. (See Gap Report at 6.) Specifically, Defendants must identify and assign a Subject Matter Expert to review and report on ECs 5-40. The Subject Matter Expert must complete an initial report prior to October 15, 2019, unless a different date is adopted by the Court. Defendants will have ten days to respond to the initial Subject Matter Expert report. The Subject Matter Expert will submit a final report within ten days after receipt of Defendants’ response, or within ten days of submission of the initial report, if Defendants do not make a response. Defendants will share the final reports with Plaintiffs’ Class Counsel, the Consultants, and the Court. (Doc. 589 at 11 (describing Subject Matter Expert review process).) To begin, the Subject Matter Expert
29 The Court understands that Dr. Gary LaVigna has the requisite expertise to assume this role. Dr. LaVigna co-founded and is the Clinical Director for the Institute for Applied Behavior Analysis which provides behavior management services, supported employment, supported living, and supported educational services to individuals with developmental disabilities. The Court understands that Dr. LaVigna was designated as a Subject Matter Expert. Accordingly, the Court requires Defendants to reach out to Dr. LaVigna first to serve as the Subject Matter Expert.
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will limit their review and report to the Stratton Lake, Donnelly, and Bromberg’s Lake
Facilities.30
2. Scope of the Settlement Agreement and CPA Relating to Prohibited Restraints
Plaintiffs have raised ongoing concerns surrounding the treatment of persons with
developmental disabilities at Minnesota Security Hospital and Anoka Metro Regional
Treatment Center. As one example, Plaintiffs claim ongoing “use of mechanical
restraints on people with developmental disabilities at Minnesota Security Hospital,
including use of restraint chairs on vulnerable citizens with disabilities” as violations of
the Settlement Agreement and CPA. (Doc. No. 730 at 3.) Plaintiffs point to Part V of the
Settlement Agreement, which states:
V. PROHIBITED TECHNIQUES
A. Except as provided in subpart V.B., below, the State and DHS shall immediately and permanently discontinue the use of mechanical restraint (including metal law enforcement-type handcuffs and leg hobbles, cable tie cuffs, PlastiCuffs, FlexiCuffs, soft cuffs, posey cuffs, and any other mechanical means to restrain), manual restraint, prone restraint, chemical restraint, seclusion, and the use of painful techniques to induce changes in behavior through punishment of residents with developmental disabilities. Medical restraint, and psychotropic and/or neuroleptic medications shall not be administered to residents for punishment, in lieu of adequate and appropriate habilitation, skills training and behavior supports plans, for the convenience of staff and/or as a form of behavior modification.
(Settlement Agreement § V.A.) Plaintiffs argue that Defendants agreed that the
30 The Court reserves the right to expand the review pursuant to briefing and subsequent determination on the scope of the Agreement’s provisions with respect to which Facilities are subject to ECs 5-40 as discussed in Section I(B)(2) of this Order.
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Settlement Agreement precludes the use of prohibited restraints at the Minnesota Security Hospital and elsewhere. (Doc. No. 730 at 9.)31 Citing the Court’s directive letter to the Court Monitor (Doc. No. 220), Plaintiffs argue that “Anoka Regional Treatment Center and Minnesota Security Hospital are within the scope of the changes in restraint and seclusion policy and practice” contemplated by the Settlement Agreement. (Doc. Nos. 730 at 10, 220 at 1.) Plaintiffs further argue that the Positive Supports Rule provisions at CPA ECs 99-104 bar prohibitive techniques beyond Stratton Lake, Donnelly, and Bromberg’s Lake. The Consultants also raised multiple concerns about obligations in the Settlement Agreement and CPA regarding the Positive Supports Rule. (Doc. Nos. 726 at 7; 727 at 4-5.)
Defendants appear to disagree that the ECs pertaining to prohibited techniques obligate the Defendants beyond the Facility or Facilities defined in the CPA. Consistent with this position, Defendants have limited their reporting on Facilities to Stratton Lake, Donnelly, and Bromberg’s Lake. (Summary Report at 178.) In a footnote, Defendants state, “[t]he CPA defines ‘Facility’ as MSHS-Cambridge, the MSOCS East Central home, and the treatment homes established under the CPA. MSHS-Cambridge was
31 Plaintiffs cite a 2013 Court Monitor report to argue that “[t]he Settlement Agreement did more than forbid non-emergency restraints and seclusion at Cambridge. Referencing the 1987 rule which permitted aversive treatment such as restraints and seclusion, the State of Minnesota declared that ‘its goal is to utilize the Rule 40 Committee’ process to ‘extend the application of the provisions in this Agreement to all state operated locations serving people with developmental disabilities with severe behavioral problems or other conditions that would qualify for admission to METO, its Cambridge, Minnesota successor, or the two new adult foster care transitional homes.” (Doc. No. 236 at 4.)
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closed on August 29, 2014 . . . Since approximately 2014, MSOCS East Central has been
and remains an adult foster care home. Minnesota Life Bridge homes are the successor
treatment homes established under the CPA and are the current ‘Facility.’” (Id. at n.190.)
Based on this position, Defendants have not included the use of prohibited restraints at
the Minnesota Security Hospital and Anoka Regional Treatment Center or any other locations in their Summary Report.32
Defendants also assert full compliance with the Agreement’s provisions regarding
the Positive Supports Rule (sometimes referred to as Rule 40), to “prohibit procedures
that cause pain, whether physical, emotional or psychological, and establish a plan to
prohibit use of seclusion and restraints for programs and services licensed or certified by
32 Defendants also appear to disagree that the Agreement’s term regarding the development of the Positive Supports Rule (Rule 40) raises any compliance issue beyond “Facilities,” as they define them:
In accordance with Recital 7 of the JSA, it is a goal (sic) of the Department to ‘utilize the Rule 40 Committee . . . process . . . to extend the provisions of the JSA to all state operated locations,’ which include operations such as the Minnesota Security Hospital (MSH), Minnesota Sex Offender Program (MSOP), and Minnesota State Operated Community Services (MSOCS). Some members of the Rule 40 Advisory Committee, however, acknowledged that ‘sometimes, albeit rarely, situations arise where temporary use of mechanical restraints for self-injurious behavior should be permitted,’ and the Committee was unable to reach consensus on any recommendation regarding the temporary use of mechanical restraint for self-injurious behavior. These statements notwithstanding, and as noted above, the obligations of [EC 5] apply only to the [CPA definition of] ‘Facility’.
(Summary Report at n.191 (internal citations omitted).)
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the department.” (Rule 40 Advisory Committee Recommendations on Best Practices and Modernization of Rule 40 (Final Version- July 2013) at 1; see also CPA at 31 (referencing same quote) at 31.) In sum, Defendants claim that ECs 99-104 relating to the Positive Supports Rules have been met. (Summary Report at 123, 175-176, 222-225.) Defendants state that “[t]he Positive Supports Rule is consistent with and incorporates, to the extent possible, the Rule 40 Advisory Committee’s recommendations.” (Id. at 224.) They reference their ongoing work regarding the development of updated goals to the Olmstead Plan and claim that “no unresolved issues have been presented to the court for resolution,” concluding that “[f]rom the Department’s perspective, the Rule 40 Advisory Committee recommendations have been addressed and nothing further is required under this EC.” (Summary Report at 123-24.)
The dispute about scope on the use of prohibited restraints must be resolved before the Court can confirm whether compliance must be further investigated and reviewed by a Subject Matter Expert or the Court Monitor. Accordingly, the parties must meet and confer no later than August 1, 2019, to discuss their positions on whether provisions of the Agreement on prohibited techniques include the Minnesota Security Hospital and Anoka Regional Treatment Center (or beyond). The parties must also meet and confer to determine whether there are disputes relating to the ECs regarding the Positive Supports Rule for the Court to decide.33 If the parties are unable to enter into a Stipulation, they must inform the Court no later than August 15, 2019 of their separate views and propose
33 The Court notes that issues were still pending as of February 2, 2016. (Doc. No. 531 at 68-69.)
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a process for the Court to consider the dispute consistent with the applicable enforcement proceedings set forth in the Settlement Agreement or other procedures permitted pursuant to the Agreement. Following the parties’ submission, the Court will set a hearing and issue a briefing schedule. Once any disputes regarding scope are resolved, the need for further external investigation and review will be determined.
3. The Staff Training The Court also concludes that external investigation and review is necessary to ensure that Defendants have complied with certain ECs relating to staff training. Accordingly, the Court requires Defendants to assign an Independent Subject Matter Expert to review: EC 54: The CPA states, “Facility treatment staff received training in positive behavioral supports, person-centered approaches, therapeutic interventions, personal safety techniques, crisis intervention and post crisis evaluation.” (CPA 19.) While the Summary Report indicates that training is offered, it fails to show that all Facility treatment staff actually received the training. EC 55: The CPA states, “Facility staff training is consistent with applicable best practices, including but not limited to the Association of Positive Behavior Supports, Standards of Practice for Positive Behavior Supports (http://apbs.org). Staff training programs will be competency-based with staff demonstrating current competency in both knowledge and skills.” (CPA at 20.) Although the Summary Report provides a detailed description of the training curriculum provided to staff and the process to determine staff competency, it provides
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no documentation or verification that staff has actually achieved competency. (Summary Report at 143-146.)
EC 56: The CPA states, “Facility staff receive the specified number of hours of training: Therapeutic interventions (8 hours); Personal safety techniques (8 hours); Medically monitoring restraint (1 hour).” (Id. at 20.)
Again, the Summary Report indicates that training is offered; however, the Summary Report fails to provide actual documentation that each Facility treatment staff member completed the required hours in the required areas.34 (Summary Report at 146- 147.)
The Subject Matter Expert must assess overall compliance with ECs 54-56, including but not limited to verifying that each staff member has actually received and achieved competency in all areas of required training.35 The Subject Matter Expert must complete an initial report prior to October 15, 2019, unless a different date is adopted by the Court. Defendants will have ten days to respond to the initial Subject Matter Expert report. The Subject Matter Expert will submit a final report within ten days after receipt
34 The Summary Report indicates less than 100% of staff completed the required number of hours in each training area. (Summary Report at 147.) It could be that less than 100% completion relates to the reporting period, however, the Court requires additional verification to properly conclude whether this EC has been met. 35 This is not the first time the Court has encouraged Defendants to appoint an Independent Subject Matter Expert to address this issue. (See Gap Report Order at 11.) After insufficient verification in the Gap Report, the Court recommended that an Independent Subject Matter Expert “provide feedback to DHS on its staff training curriculum,” and to assess whether training is appropriately standardized across divisions throughout DHS.” (Id.) While Defendants did not appoint a Subject Matter at that time, the Court now directs them to do so.
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of Defendants’ response, or within ten days of submission of the initial report, if Defendants do not make a response. Defendants will share the final reports with Plaintiffs’ Class Counsel, the Consultants, and the Court. (See Doc. 589 at 11 (describing Subject Matter Expert review process).)
4. Treatment Homes The Court also finds that additional verification and review is necessary regarding the number of treatment homes needed to satisfy the Agreement. The Consultants have repeatedly raised concerns that the current number of homes may be insufficient. (Doc. Nos. 726 at 6; 727 at 4.) They cite Diversion Minutes and referral lists which illustrate lengthy wait lists. (Doc. Nos. 726 at 6, 727 at 4.) The Court notes that EC 88 specifically discusses an assessment of need.36 (CPA at 29.) Further, EC 93 states that “DHS will create stronger diversion supports through appropriate staffing and comprehensive data analysis.” (Id. at 30.) Accordingly, the Court requires Defendants to supplement their Summary Report to present their assessment and analysis on the treatment homes no later than October 15, 2019. The Court encourages, but does not
36 EC 88 states, “MSHS-Cambridge will be closed. There will be community treatment homes dispersed geographically. Any need for additional community treatment homes beyond four will be determined based on a specific assessment of the need based on client needs with regard to such criteria as those at risk for institutionalization or re-institutionalization, behavioral or other challenges, multiple hospitalizations or other transfers within the system, serious reported injuries, repeated failed placements, or other challenges identified in previous monitoring or interventions.” (CPA at 29 (emphasis added).)
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require, the Defendants to engage a Subject Matter Expert to assist with the assessment and analysis. II. Olmstead Plan
The Court approved the Olmstead Plan on September 29, 2015. (Doc. No. 510.) The Court declined to approve several previous versions, finding that they failed to comply with the standards and requirements set forth in the Agreement or Olmstead v. L.C., 527 U.S. 581 (1999).37 The Olmstead Plan includes significant and strategic goals, as well as specific and realistic strategies for achieving each goal and clear indication of the agencies responsible for ensuring that the goals are met.38 (Doc. No. 510.)
On February 22, 2016, the Court ordered Defendants to submit quarterly and annual status reports on Olmstead Plan implementation and progress towards measurable goals. (Doc. No. 544 at 4.) The Court further directed that all potential amendments to the Olmstead Plan should be identified and included in each annual report on or before December 31, and that adopted amendments must be reported to the Court on or before February 28, or in the case of a leap year, February 29.39 (Id. at 6.) The Court also
37 For a complete procedural history, see the Court’s May 6, 2015 Order. (Doc. No. 435 at 2-4.) 38 The evolving implementation of the Olmstead Plan does not moot Defendants’ requirements under the Agreement or any future claim. Guggenberger v. Minnesota, 198 F. Supp. 3d 973, 994 (D. Minn. 2016.) “A defendant’s ‘announcement of an intention to change or adoption of a plan to work toward lawful behavior’ is generally insufficient” to moot a case.” Id. (citing See Rosemere Neighborhood Ass’n v. U.S. Envtl. Prot. Agency, 581 F.3d 1169, 1173 n.3 (9th Cir. 2009).) 39 On April 5, 2017, the Court adjusted the deadline to report adopted amendments to March 31. (Doc. No. 626.)
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reserved the right to request further or other information upon receipt of each report. (Id.
at 7.)
Defendants have timely submitted multiple reports and proposed revisions. (See,
e.g., Doc. Nos. 547, 569, 571, 588, 602, 609, 616, 636, 649, 671, 673, 680, 681, 688, 698,
705, 706, 708, 725.)
A. Olmstead Plan March 2019 Proposed Revision
The Court requires additional information before it can determine whether the
goals set forth in the March 2019 Revision to the Olmstead Plan (Doc. No. 725), are
acceptable under the Agreement’s requirements. Plaintiffs and the Consultants have
raised concerns about the adoption and implementation of the Positive Supports Rule
(formally called Rule 40) as set forth in the Agreement. Accordingly, the Court must
determine whether the Agreement provisions relating to Olmstead require incorporation
of additional or modified goals relating to prohibited restraints.
As set forth in the Agreement, EC 103 states:
Within thirty (30) days of the promulgation of the Adopted Rule, Plaintiffs' Class Counsel, the Court Monitor, the Ombudsman for Mental Health and Developmental Disabilities, or the Executive Director of the Governor's Council on Developmental Disabilities may suggest to the Department of Human Services and/or to the Olmstead Implementation Office that there are elements in the Rule 40 Advisory Committee Recommendations on Best Practices and Modernization of Rule 40 (Final Version July 2013) which have not been addressed, or have not adequately or properly been addressed in the Adopted Rule. In that event, those elements shall be considered within the process for modifications of the Olmstead Plan. The State shall address these suggestions through Olmstead Plan sub-cabinet and the Olmstead Implementation Office. Unresolved issues may be presented to the Court for resolution by any of the above, and will be resolved by the Court.
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(CPA at 33 (emphasis added).) Thus, EC 103 is interwoven with the goal-setting process under the Olmstead Plan to require that certain “elements shall be considered within the process for modification of the Olmstead Plan.” (Id.) EC 103 also provides that “[u]nresolved issues may be presented to the Court for resolution by any of the above.” (Id.) Therefore, the Court must determine whether there are issues to be resolved by the Court with respect to unaddressed elements in the Adopted Rule. The parties must meet and confer no later than August 1, 2019 to determine whether there are issues to be resolved before the Court considers the Olmstead Plan March 2019 Revision. If the parties are unable to enter into a Stipulation, they must file a Joint Statement no later than August 15, 2019 to inform the Court of their separate views and propose a briefing schedule. The Court will set a hearing and issue a briefing schedule. III. Extended Jurisdiction and Next Steps
A. Extended Jurisdiction The Court’s jurisdiction over this matter was scheduled to end on December 4, 2019. However, as set forth above, the Court requires additional information to determine whether issues of noncompliance remain. Pursuant to the Settlement Agreement § XVII.B, and the Eighth Circuit’s ruling that this Court may extend its jurisdiction as it deems “just and equitable,” the Court’s jurisdiction is extended to September 15, 2020.40 (Settlement Agreement § XVII.B; Doc. No. 695 at 12.) The Court expressly reserves the authority and jurisdiction to order an additional extension of
40 Pursuant to ongoing reporting requirements, this date will allow the Court to review Defendants’ August 31 Compliance Report and Olmstead Quarterly Report.
36

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jurisdiction, depending upon the status of Defendants’ compliance and absent stipulation of the parties. Until the Court’s jurisdiction ends, all reporting requirements remain unchanged.
B. Additional Requests Denied Plaintiffs’ request for an evidentiary hearing is denied pending receipt of the Independent Subject Expert’s initial report and final report above. If Plaintiffs believe the Defendants have not complied with other terms of the Agreement that are not identified for follow-up pursuant to this Order, they must initiate an enforcement proceeding under the terms of the Settlement Agreement. Until an enforcement proceeding is initiated, it is premature for this Court to address the meaning of “substantial compliance.” Accordingly, Defendants’ request that the Court “address the applicable legal standard the Court is using to determine the circumstances under which it will end its involvement in this matter, including what specific actions remain outstanding” (Doc. No. 731 at 2) is denied. Defendants’ request to end reporting requirements is also denied. C. Leadership Conference As discussed above, this Court has extended its jurisdiction over this matter until September 15, 2020. Absent stipulation of the parties, it reserves the authority and jurisdiction to order an additional extension of jurisdiction if necessary. The Court has repeatedly encouraged the parties to identify and develop a plan to address all remaining steps essential to successful implementation of the Agreement before the Court terminates its jurisdiction over this matter. (See e.g., Doc. Nos. 638, 652, 691,733.) The parties have not engaged on their own. Accordingly, the Court will hold a Leadership
37

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Conference for a round-table discussion to attempt to bring the parties and their leadership together to discuss and develop a plan for a just and equitable way to end this Court’s jurisdiction.
CONCLUSION After years of litigation, the time is now for those invested in the equitable treatment of persons with developmental disabilities to work together and develop a plan to ensure that the Jensen lawsuit is not left an empty promise.41
ORDER Based upon the presentations and submissions before the Court, and the Court being otherwise duly advised in the premises, IT IS HEREBY ORDERED that: 1. Jurisdiction: The Court’s jurisdiction is extended to September 15, 2020. The Court expressly reserves the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of Defendants’ compliance and absence stipulation of the parties. 2. Use of Prohibited Techniques: Defendants must identify and assign a Subject Matter Expert to review and report on ECs 5-40 by August 1, 2019. Defendants must first reach out to Dr. Gary LaVigna. The Subject Matter Expert must complete an initial report prior to October 15, 2019, unless a different date is adopted by the Court. Defendants will have ten days to respond to the initial Subject Matter Expert report. The
41 Unfortunately, the equitable treatment of persons with developmental disabilities in the State of Minnesota is not confined to the Jensen lawsuit. The Court hopes that State leadership may develop a comprehensive solution to the global issues that exist.
38

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Subject Matter Expert will submit a final report within ten days after receipt of Defendants’ response, or within ten days of submission of the initial report, if Defendants do not make a response. Defendants will share the final reports with Plaintiffs’ Class Counsel, the Consultants, and the Court.
3. Scope of the Settlement Agreement and CPA Relating to Prohibited Restraints: The parties must meet and confer no later than August 1, 2019 to discuss their positions on whether provisions of the Agreement on prohibited techniques include the Minnesota Security Hospital and Anoka Regional Treatment Center (or beyond). The parties must also meet and confer to determine whether there are disputes relating to the ECs regarding the Positive Supports Rule for the Court to decide. If the parties are unable to enter into a Stipulation, they must file a Joint Statement to inform the Court of their respective positions no later than August 15, 2019 and propose a process for the Court to resolve the dispute consistent with the enforcement proceedings set forth in the Settlement Agreement or other procedure permitted pursuant to the Agreement. The Court will set a hearing and issue a briefing schedule. Following the Stipulation or the Court’s determination on scope, the external review of prohibited restraints may be amended.
4. Staff Training: Defendants must identify and assign a Subject Matter Expert to review and report on ECs 54-56 no later than August 1, 2019. The Subject Matter Expert must assess overall compliance with ECs 54-56, included but not limited to verifying that each staff member has actually received and achieved competency in all areas of required training. The Subject Matter Expert must complete an initial report
39

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prior to October 15, 2019, unless a different date is adopted by the Court. Defendants will have ten days to respond to the initial Subject Matter Expert report. The Subject Matter Expert must submit a final report within ten days after receipt of Defendants’ response, or within ten days of submission of the initial report, if Defendants do not make a response. Defendants must share the final reports with Plaintiffs’ Class Counsel, the Consultants, and the Court.
5. Treatment Homes: As set forth above, Defendants must supplement their Summary Report no later than October 15, 2019 to present their assessment and analysis on the need for and current availability of treatment homes.
6. Positive Support Rule: The parties must meet and confer no later than August 1, 2019 to determine whether there are issues related to the Positive Support Rule that must be resolved before the Court considers the Olmstead Plan March 2019 Revision. If the parties are unable to enter into a Stipulation, they must inform the Court no later than August 15, 2019 of their separate positions and propose a process for the Court to resolve the dispute consistent with the enforcement proceedings set forth in the Settlement Agreement or other procedure permitted pursuant to the Agreement. The Court will set a hearing and issue a briefing schedule.
7. Reporting Requirements: All reporting requirements remain unchanged. 8. Requests: Plaintiffs’ request for an evidentiary hearing is DENIED pending receipt of the Independent Subject Expert’s initial report and final report. Defendants’ request that the Court “address the applicable legal standard the Court is
40

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using to determine the circumstances under which it will end its involvement in this matter, including what specific actions remain outstanding is also DENIED as premature.
9. Leadership Conference: As set forth above, the Court will require the parties to participate in a roundtable meeting to develop a plan to address all remaining steps essential to successful implementation of the Agreement before the Court terminates its jurisdiction over this matter. In addition to counsel of record for the parties and the Consultants, the Court urges the following individuals to be present and to participate in the conference: Commissioner Tony Lourey; Deputy Commissioner for Policy Claire Wilson, Minnesota Housing Commissioner Jennifer Ho; Minnesota Attorney General Keith Ellison; and DHS Attorney Ricardo Figueroa. The Court also invites Governor Walz to attend. The conference will take place in the 7th Floor Conference Room, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota on a date to be determined.

Date: June 17, 2019

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

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 CASE 0:09-cv-01775-DWF-BRT Document 757 Filed 08/28/19 Page 1 of 11

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians, and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians, and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian, and next friend of Jason R. Jacobs; and others similarly situated,
Plaintiffs,
v.
Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and the State of Minnesota,
Defendants.

Civil No. 09-1775 (DWF/BRT)
MEMORANDUM OPINION AND ORDER

Shamus P. O’Meara, Esq., and Mark R. Azman, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.

CASE 0:09-cv-01775-DWF-BRT Document 757 Filed 08/28/19 Page 2 of 11
Scott H. Ikeda, Aaron Winter, Anthony R. Noss, and Michael N. Leonard Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants. ________________________________________________________________________
INTRODUCTION This matter is before the Court on Defendants’ Motion to Alter or Amend (Doc. No. 741 (“Motion”)) the Court’s June 17, 2019 Order (Doc. No. 737 (“June 2019 Order”). Plaintiffs oppose Defendants’ Motion. (Doc. No. 751 (“Opp.”).) For the reasons set forth below, the Court respectfully denies Defendants’ Motion.
BACKGROUND The factual background for the above-entitled matter is clearly and precisely set forth in the Court’s June 2019 Order and is incorporated by reference here. (See June 2019 Order.) The Court notes particular facts relevant to this Order below.1 The Court approved the parties’ Stipulated Class Action Settlement Agreement (Doc. No. 136-1 (“Settlement Agreement”)) on December 5, 2011, and has maintained jurisdiction over the Settlement Agreement ever since.2 (Doc. No. 136.) The Court’s jurisdiction was originally scheduled to end on December 4, 2013. (Settlement Agreement at Section XVIII.B.) On August 28, 2013, the Court extended its jurisdiction to December 4, 2014 because of ongoing concern with Defendants’ noncompliance with
1 The Court also supplements the facts as needed. 2 On March 12, 2014, the Court formally adopted and approved a Comprehensive Plan of Action (“CPA”) consisting of 104 evaluation criteria and accompanying actions designed to help direct and measure compliance. (See generally Doc. No. 284.) The combination of the Settlement Agreement and CPA is hereinafter referred to as the “Agreement.”
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the Settlement Agreement. (Doc. No. 224 at 3.) At that time, the Court stated that it “expressly reserve[d] the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of compliance by the Defendants with the specific provisions of the Settlement Agreement, absent stipulation of the parties.” (Id.)
On September 3, 2014, the Court extended its jurisdiction again until December 4, 2016 because of continued concern with Defendants’ noncompliance. (Doc. No. 340 at 14.) The Court expressly stated again that it “reserve[d] the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of Defendants’ compliance and absent stipulation of the parties.” (Id.)
On February 22, 2016, the Court extended its jurisdiction a third time until December 4, 2019. (Doc. No. 545 at 6.) The Court reiterated that it “reserve[d] the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of Defendants’ compliance and absent stipulation of the parties.” (Id.)
Defendants filed an objection to the Court’s ongoing jurisdiction over this matter on April 28, 2017. (Doc. No. 631.) The Court overruled Defendants’ objection on June 28, 2017. (Doc. No. 638.) Defendants appealed the Court’s decision to the Eighth Circuit on July 26, 2017. (Doc. No. 639.) The Eighth Circuit affirmed this Court’s jurisdiction on July 26, 2018, holding that that this Court may extend its jurisdiction as it deems “just and equitable.” (Doc. No. 695 at 12.)
On January 4, 2019, the Court amended Defendants’ scheduled reporting requirements and required them to submit a comprehensive summary report (“Summary Report”) to assess Defendants’ overall compliance with the Agreement. (See generally
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Doc. No. 707.) The Court stated, “[a]s the December 4, 2019 date approaches, the Court must evaluate Defendants’ compliance to assess the impact of the Jensen lawsuit on the well-being of its class members and to determine whether the Court’s jurisdiction may equitably end.” (Id. at 6 (emphasis added).) The Court advised that it would discuss the Summary Report at a Biannual Reporting Conference on April 16, 2019 (“Status Conference”). (Id. at 13.) Defendants timely submitted the Summary Report on March 19, 2019 and self-assessed as fully compliant with the Agreement. (Doc. No. 710.)
Prior to the Status Conference, both Plaintiffs and Consultants submitted letters detailing specific concerns with Defendants’ reporting and potential areas of non- compliance with the Agreement. (See Doc. Nos. 726, 727, 730.) Defendants also submitted a letter, asking the Court to address the applicable legal standard the Court is using to determine the circumstances under which it will end its involvement in this matter, including what specific actions remain outstanding. (Doc. No. 731 (“Letter”).) The day before the Status Conference, Plaintiffs filed a response to Defendants’ Letter, specifically asking the Court to consider extending its jurisdiction. (Doc. No. 732 at 5.) The Court filed an agenda (Doc. No. 733 (“Agenda”) for the Status Conference that identified specific areas of concern and directed Defendants to respond to these concerns during the Status Conference.3 (Agenda at 5-6.)
3 The Court directed Defendants to address the very concerns that formed the basis of its June 2019 Order. (See Agenda at 5-6 (“Defendants shall specifically address the following concerns and describe actions that will be taken to improve performance before
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During the Status Conference, the Court specifically stated that the objective of the Status Conference was to assess Defendants’ compliance with the Agreement, to identify next steps, and to determine whether “there was a way for the parties and the Court, as [ ]each deem[s] it just and equitable, to bring . . . the Court’ s jurisdiction [over] this matter, to an end.” (Doc. No. 740 (“Transcript”) at 8-9.) The parties disagreed over the state of Defendants’ compliance with the Agreement. While Defendants claimed that they were in full compliance with the Agreement and asked the Court to end its jurisdiction immediately (Transcript at 10, 11, 154), Plaintiffs argued that there were remaining areas of concern and that the Court needed additional information to determine whether its jurisdiction should be extended.4 (Id. at 13, 14, 119, 123-126, 157.)
At the conclusion of the Status Conference, the Court advised that an Order identifying next steps would be forthcoming. (Transcript at 17-158.) The Court filed the Order on June 17, 2019. (June 2019 Order.) The June 2019 Order readdressed the Court’s concerns and detailed specific actions necessary to alleviate those concerns. (See June 2019 Order.) The June 2019 Order also extended the Court’s jurisdiction to
December 2019: (1) external verification of compliance; (2) documentation of use of data to inform policy decisions, and documentation of any such policy decisions, specifically with respect to: (a) wait times for admission to MLB housing; (b) wait times for movement to community placements after placement criteria have been met; and (c) under EC 88, the needs assessment(s) regarding the number of treatment homes; (3) continued use of restraint and seclusion, and documentation supporting compliance with EC 104; (4) the use of person-centered planning; and (5) the electronic data management system to track all information relevant to abuse/neglect investigations.).) 4 The Consultants also raised several areas of concern. (Id. at 103-115.)
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September 15, 2020, pending receipt of the additional information necessary to determine whether issues of noncompliance remain. (Id. at 36.)
Defendants now move to amend or alter the June 2019 Order pursuant to Rule 59(e) of the Federal Rules of Civil Procedure with respect to the Court’s extension of its jurisdiction.
DISCUSSION “Rule 59(e) motions serve a limited function of correcting ‘manifest errors of law or fact or to present newly discovered evidence.’ Such motions cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to entry of judgment.” United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006) (internal quotations omitted); see also Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998).5 Relief under Rule 59(e) is granted only in “extraordinary” circumstances. United States v. Young, 806 F.2d 805, 806 (8th Cir. 1986). “A ‘manifest error’ is not demonstrated by the disappointment of the losing party. It is the ‘wholesale disregard, misapplication, or failure to recognize controlling precedent.’” Oto v. Metro. Life. Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (quoting Sedrak v. Callahan, 987 F. Supp. 1063, 1069 (N.D.Ill.1997)).) The Court has considered the parties’ arguments and concludes that there has been no manifest error of law or fact that would warrant altering or amending its June 2019 Order.
5 A party may also move the Court to amend its findings or make additional findings. Fed. R. Civ. P. 52(b).
6

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Defendants argue that the Court manifestly erred when the Court extended its jurisdiction because the Court did not give Defendants prior notice that it contemplated an extension, and the Court did not grant Defendants an opportunity to be heard regarding the Court’s concerns underlying the extension. (Doc. No. 743 (“Def. Memo.”) at 17.) In support of this argument, Defendants contend that: (1) the Court did not indicate in its written orders prior to the April 16 status conference that it contemplated extending its jurisdiction; (2) the Court did not specifically state during the Status Conference that it contemplated extending its jurisdiction; and (3) the Court did not identify noncompliance with the Settlement Agreement as a basis for the extension. (Id.at 18-19.) Defendants further contend if they had received notice that the Court contemplated extending its jurisdiction, they would have been able to address the Court’s concerns without having to appoint an outside expert or participating in an additional meet and confer.6 (Id. at 26-27.) Accordingly, Defendants ask that the Court vacate its June 2019 Order and terminate its jurisdiction over this matter. (Id. at 28.)
Plaintiffs argue that there is no basis under Rule 59 to amend or alter the June 2019 Order, and that Defendants’ “simply want the Court to reconsider its decision extending jurisdiction.”7 (Opp. at 4.) They argue that pursuant to the Settlement
6 Defendants attempt to address the Court’s concerns in their Motion, in part relying on information subject to the same internal flaws that prompted the Court to require an external review. (Def. Memo. at 25-26.) As discussed below, this information does not alleviate the Court’s concerns. 7 Accordingly, Plaintiffs argue that Defendants should have filed a motion to reconsider pursuant to Local Rule 7.1(j).
7

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Agreement, and as affirmed by the Eighth Circuit, the Court may extend its jurisdiction as it deems just and equitable. (Id. at 6.) Plaintiffs therefore contend that Defendants’ motion is an improperly filed request for reconsideration on an issue already litigated and decided. (Id. at 12.) Plaintiffs also argue that Defendants’ Motion fails on the merits because Defendants had ample notice and opportunities to be heard with respect to the Court extending its jurisdiction.8 (Id. at 1, 8.)
The Court acknowledges that litigants are entitled to notice and an opportunity to be heard “at a meaningful time and in a meaningful manner.” Post v. Harper, 980 F.2d 491, 493 (8th Cir. 1992). Here, the Court finds that Defendants had ample notice that the Court contemplated extending its jurisdiction. (See, e.g., Doc. Nos. 224, 340, 545.) The Court also finds that Defendants had sufficient opportunity to be heard regarding the contemplated extension. Indeed, a primary objective of the Summary Report and the Status Conference was to provide Defendants an opportunity to convey to the Court that its jurisdiction over this matter could come to a just and equitable end.
While Defendants now contend that they did not know or understand that the Court contemplated extending its jurisdiction, the record reflects that Defendants argued against that very thing during the Status Conference. (Transcript at 16 (“And so this suggestion . . . for the court to [ ] continue its jurisdiction indefinitely is nonsense”).) Moreover, the Court has been clear that it will continue its jurisdiction over this matter until it determines that its jurisdiction may come to a just and equitable end.
8 The parties also dispute the appealability of the June 2019 Order; however, the Court will address Defendants’ Motion on the merits without engaging in the argument.
8

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The Court specifically advised in its January 4, 2019 Order that it required a comprehensive Summary Report to assess the status of Defendants’ compliance with the Agreement and to determine whether its jurisdiction could equitably end. (Doc. No. 707 at 6.) Prior to the Status Conference, the Court flagged specific areas of concern and directed Defendants to respond to its concerns during the Status Conference. Defendants responded to these concerns during the Status Conference, and argued that the Court had enough information to conclude that Defendants were in full compliance with the Agreement. At the conclusion of the Status Conference, the Court stated that it would issue an Order identifying next steps. The June 2019 Order readdressed the Court’s concerns and provided specific actions necessary to alleviate those concerns.
It appears to the Court that Defendants’ Motion is an attempt to reargue their position that they are in full compliance with the Agreement and that anything else they could do is beyond the scope of the Agreement. The Court has already considered these arguments and rejected them. As clearly set forth in its June 2019 Order, the Court requires additional information to properly conclude that its jurisdiction may come to a just and equitable end; accordingly, the Court has extended its jurisdiction pending verification. The Court’s requirement that Defendants submit additional information is an opportunity for Defendants to show the Court that they have satisfied their obligations under the Agreement. Until the Court has sufficient information to draw such a conclusion, its jurisdiction simply cannot come to a just and equitable end.
As requested by Defendants in their Letter, the June 2019 Order identified specific actions that Defendants must take for the Court to conclude whether its jurisdiction may
9

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end. One of those steps was to employ subject matter experts to conduct an external review of Defendants’ compliance with respect to some areas of the Agreement. The Court explained that it could not conclude whether Defendants have complied with the obligations set forth in the Agreement because of concerns over lack of external verification. Because the “new” evidence Defendants submit in support of their Motion is subject to the same lack of external verification, it does nothing to alleviate the Court’s concerns. The Court also explained that it requires additional information with respect to the scope of the Agreement. While Defendants again argue that the Court should rely on their interpretation, the Court already considered this argument and rejected it—finding instead that it requires additional information from each party to properly determine the scope of the Agreement.
As soon as the Court receives sufficient evidence that Defendants are in compliance with the Agreement, and that its jurisdiction may come to a just and equitable end, the Court will end its jurisdiction. While Defendants may not like the Court’s decision to extend its jurisdiction, a manifest error of law is created by disregard, misapplication, or failure to recognize controlling precedent—not disappointment by an unhappy party. See Oto, 224 F.3d at 606 (internal citation omitted). In lieu of further delay, the Court encourages Defendants to take the steps necessary to verify its compliance with the Agreement, or to satisfy any unmet requirements.
The Court finds that Defendants have identified no “extraordinary” circumstances that warrant the relief requested. Specifically, Defendants offer no newly discovered evidence or law that merit reversal of its June 2019 Order. The Court concludes that
10

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Defendants have failed to establish any manifest error of law or fact requiring amendment of its June 2019 Order. Accordingly, the Court respectfully denies Defendants’ Motion.9
ORDER Based on the foregoing, and the files, records, and proceedings herein, IT IS HEREBY ORDERED that Defendants’ Motion to Alter or Amend the Court’s June 17, 2019 Order (Doc. No. [741]) is DENIED.

Dated: August 28, 2019

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

9 Alternatively, to the extent Defendants’ brief may be construed as a request for reconsideration of the June 2019 Order, Defendants have failed to show compelling circumstances sufficient to permit such a motion. See L.R. 7.1(j).
11

 
 CASE 0:09-cv-01775-DWF-BRT Document 798 Filed 02/13/20 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians, and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians, and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian, and next friend of Jason R. Jacobs; and others similarly situated,

Civil No. 09-1775 (DWF/BRT)

Plaintiffs,

v.

ORDER

Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and the State of Minnesota,

Defendants.

Shamus P. O’Meara, Esq., and Mark R. Azman, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.
Scott H. Ikeda, Aaron Winter, Anthony R. Noss, and Michael N. Leonard Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants. ________________________________________________________________________

CASE 0:09-cv-01775-DWF-BRT Document 798 Filed 02/13/20 Page 2 of 3
On December 18, 2019, the Court ordered the parties to meet and confer to select an individual to conduct an external review of the Forensic Mental Health Program (“FMHP”) (formerly, the Minnesota Security Hospital) and Anoka Metro Regional Treatment Center (“AMRTC”) to address the extent to which Defendants’ use of mechanical restraint reflects current best practices. (Doc. No. 779 (“December Order”) at 16-17.) In the event that the parties were unable to agree, the Court directed each party to nominate two individuals they would like to conduct the external review and advised that the Court would then select an external reviewer and notify the parties. (Id. at 16.)
The parties were unable to agree on an external reviewer. Per the Court’s direction, each party nominated two individuals via email. The Court reviewed the nominations and directed Defendants to select between Dr. Gary LaVigna (“LaVigna”) and David Ferleger (“Ferleger”).1 (Doc. No. 795.) On February 7, 2020, Defendants notified the Court via email that while they objected to both LaVigna and Ferleger as unqualified, they selected LaVigna to conduct the external review.2
In accordance with its December 18, 2019 Order (Doc. No. 779), the Court directs Defendants to engage LaVigna to conduct an external review at the FMHP and AMRTC
1 The Court found that it was economically prudent and in the interest of efficiency to engage an external reviewer already familiar with this matter. 2 While the Court acknowledges Defendants’ objection to LaVigna, the Court finds that LaVigna has the requisite experience and education to properly determine whether Defendants’ use of mechanical restraint at FMHP and AMRTC. LaVigna co-founded and is the Clinical Director for the Institute of Applied Behavior Analysis which provides behavior management services, supported employment, supported living, and supported educational services to individuals with developmental disabilities. In October, LaVigna conducted an external review on the use of Prohibited Techniques in Facilities (Doc. No. 775) and advised on another matter in 2015 (Doc. No. 464).
2

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to determine whether Defendants’ use of mechanical restraint reflects current best

practices, specifically quantifying type, frequency, and duration of mechanical restraint at

those locations, and identifying whether Positive Supports were attempted prior to use.

Prior to conducting the review, LaVigna shall meet with one or both of the Court

Consultants, Colleen Wieck and Roberta Opheim, for additional context and background.

The Court Consultants shall also serve as a resource throughout the review.

ORDER

Based upon the presentations and submissions before the Court, and the Court

being otherwise duly advised in the premises, IT IS HEREBY ORDERED that:

1. Defendants must engage Dr. Gary LaVigna to conduct an external review

of the Forensic Mental Health Program and Anoka Metro Regional Treatment Center.

a. The external review must address the extent to which Defendants’

use of mechanical restraint at the Forensic Mental Health Program and Anoka

Metro Regional Treatment Center reflects current best practices, specifically

quantifying the type, frequency, and duration of mechanical restraint at each

location, and identifying whether Positive Supports were attempted prior to use.

b. Prior to the review, Dr. Gary LaVigna shall meet with the one or

both of the Court Consultants, Colleen Wieck and Roberta Opheim, for additional

context and background. The Court Consultants shall also serve as a resource

throughout the review.

Dated: February 13, 2020

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

3

 
 CASE 0:09-cv-01775-DWF-BRT Document 823 Filed 03/09/20 Page 1 of 10

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

James and Lorie Jensen, as parents, guardians, and next friends of Bradley J. Jensen; James Brinker and Darren Allen, as parents, guardians, and next friends of Thomas M. Allbrink; Elizabeth Jacobs, as parent, guardian, and next friend of Jason R. Jacobs; and others similarly situated,

Civil No. 09-1775 (DWF/BRT)

Plaintiffs,

v.

ORDER

Minnesota Department of Human Services, an agency of the State of Minnesota; Director, Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Clinical Director, the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Douglas Bratvold, individually and as Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; Scott TenNapel, individually and as Clinical Director of the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota; and the State of Minnesota,

Defendants.

Shamus P. O’Meara, Esq., and Mark R. Azman, Esq., O’Meara Leer Wagner & Kohl, PA, counsel for Plaintiffs.
Scott H. Ikeda, Aaron Winter, Anthony R. Noss, and Michael N. Leonard Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants. ________________________________________________________________________

CASE 0:09-cv-01775-DWF-BRT Document 823 Filed 03/09/20 Page 2 of 10
INTRODUCTION This matter is before the Court on Defendants’ Motion to Stay. (Doc. No. 806.) Plaintiffs oppose Defendants’ motion. (Doc. No. 821.) For the reasons set forth below, the Court denies Defendants’ motion.
BACKGROUND The factual background for the above-entitled matter is clearly and precisely set forth in the Court’s June 17, 2019 Order and is incorporated by reference here. (See Doc. No. 737 (“June 2019 Order”).) The Court notes particular facts relevant to this Order below.1 On December 18, 2019, the Court issued an order in response to the parties’ positions regarding the scope of their Stipulated Class Action Settlement Agreement (Doc. No. 136-1 (“Settlement Agreement”)) with respect to prohibited restraints and compliance with the Positive Supports Rule.2 (December 2019 Order.) The Court found that because the Agreement’s definition of Facilities does not include the Forensic Mental Health Program (“FMHP”) (formerly the Minnesota Security Hospital), or Anoka Metro Regional Treatment Center (“AMRTC”), those locations are not subject to the Agreement’s strict prohibition on the use of restraint in all but extreme emergency
1 The Court also supplements the facts as needed. 2 On March 12, 2014, the Court formally adopted and approved a Comprehensive Plan of Action (“CPA”) consisting of 104 evaluation criteria and accompanying actions designed to help direct and measure compliance. (Doc. Nos. 283, 284 (“CPA”).) The combination of the Settlement Agreement and CPA is hereinafter referred to as the “Agreement.”
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situations. (Id. at 11-12.) Notwithstanding, the Court found that a separate provision of the Agreement requires Defendants to ensure that their use of restraint at FMHP and AMRTC reflects current best practices. (Id. at 12-14.) Recognizing the very real danger that inappropriate use of restraint poses to some of society’s most vulnerable citizens, the Court ordered Defendants to conduct an external review of their use of restraint at FMHP and AMRTC to properly determine whether such use reflects current best practices and satisfies Defendants’ obligations under the Agreement. (Id. at 15-16.)
On January 10, 2020, Defendants filed a Notice of Appeal of the Court’s December 2019 Order. (Doc. No. 783.) On the same day, Defendants filed a Motion to Stay pending appeal. (Doc. No. 784.) The Court denied Defendants’ motion on February 4, 2020. (Doc. No. 794 (“February 2020 Denial”).) On February 13, 2020, the Court specifically directed Defendants to engage Dr. Gary LaVigna to conduct the external review. (Doc. No. 798 (“February 2020 Order”).) Defendants filed a Notice of Appeal of the Court’s February 2020 Order on February 25, 2020. (Doc. No. 804.) The next day, Defendants filed a motion to stay their obligation to engage Dr. Gary LaVigna pending their appeal. (Doc. No. 806.) Plaintiffs contend that Defendants’ motion for a stay is an improper motion for reconsideration of the Court’s February 2020 Denial. (Doc. No. 821 at 1.) The Court agrees that many of Defendants’ arguments parrot those which the Court already considered and rejected.
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DISCUSSION I. Legal Standard
Pursuant to Federal Rule of Civil Procedure 62(c), a “court may suspend, modify, restore, or grant an injunction” pending the matter’s resolution on appeal. See Fed. R. Civ. P. 62(c). “A stay is not a matter of right, even if irreparable injury might otherwise result to the appellant. It is an exercise of judicial discretion. The propriety of its issue is dependent upon the circumstances of the particular case.” Scripps-Howard Radio, Inc. v. F.C.C., 316 U.S. 4, 10-11 (1942) (citations omitted); see also Nken v. Holder, 556 U.S. 418, 433 (2009). A court considers four factors in determining whether to grant a motion to stay: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see also Brady v. Nat’l Football League, 640 F.3d 785, 789 (8th Cir. 2011). The moving party bears the heavy burden to establish that a stay should be granted in light of these four factors, and “[t]he first two factors . . . are the most critical.” See Nken, 556 U.S. at 433-34; see also 11 Charles Alan Wright, et al., Federal Practice and Procedure § 2904 (3d ed. April 2017 Update) (“[B]ecause the burden of meeting the standard is a heavy one, more commonly stay requests will be found not to meet this standard and will be denied.” (footnotes omitted)). “Ultimately, [the court] must consider the relative strength of the four factors, balancing them all.” Brady, 640 F.3d at 789 (quotation marks and citation omitted).
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A. Likelihood of Success on the Merits The Court first considers whether Defendants have “made a strong showing that [they are] likely to succeed on the merits.” Hilton, 481 U.S. at 776. “It is not enough that the chance of success on the merits be better than negligible. . . . [M]ore than a mere possibility of relief is required.” Nken, 556 U.S. at 434 (quotation marks and citations omitted). The Eighth Circuit has described this factor as “[t]he most important” for the court’s consideration. Shrink Mo. Gov’t PAC v. Adams, 151 F.3d 763, 764 (8th Cir. 1998); see also Brady, 640 F.3d at 789. Defendants contend that they are likely to succeed on the merits because: (1) the Agreement contains no authority to require Defendants to pay for the required external review outside of Facilities; and (2) the Court lacks authority to order Defendants to pay for the review. (Doc. No. 808 (“Def. Memo.”) at 3-6.) The Court finds that Defendants have failed to establish a strong likelihood of success on the merits on appeal. As the Court explained in its February 2020 Denial, external review is not a new concept, nor has it been limited to Facilities. The Court declines to re-engage in this argument which it has already considered and rejected.3 (See February 2020 Denial at 6-10.) The Court also notes that the Agreement created a $3,000,000 fund to cover distributions to Class Members, fees and expenses, and established requirements for systems improvements and changes which were intended to benefit present, future, and potential members of the class. (Settlement Agreement
3 The Court incorporates by reference its analysis in the February 2020 Denial. (See February 2020 Denial at 6-10.)
5

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Section XIV; see also Settlement Agreement ¶ 7 (a State goal is to “extend the
application in this Agreement to all state operated locations serving people with
developmental disabilities with severe behavioral problems or other conditions that
would qualify for admission to METO” or its institutional or community successor.).)
As the Court explained in its March 4, 2020 Order:
Some of this money was used to pay the Court Appointed Monitor, David Ferleger. (See e.g., Doc. Nos. 159 (appointing Court Monitor and authorizing payment); 160 (establishing process for compensation); 214215 (invoices).) Citing continued areas of noncompliance, the Court periodically directed Defendants to deposit additional funds in the Court’s registry (“Registry”) to accommodate expansion of the Court Monitor’s role and to fulfill Defendants’ obligations under the Agreement. (Doc. Nos. 224, 286.) The Court stated that upon “determining that the Court Monitor’s work under its orders has concluded, any balance remaining in the Registry account shall promptly be returned to the Minnesota Department of Human Services.” (Doc. No. 224.)
While the Court stayed the Court Monitor’s duties in January 2017; it has not yet determined that the Court Monitor’s works has concluded. (Doc. No. 612 (reserving the right to re-engage the Court Monitor to investigate or verify other issues that may arise).) In the spring of 2019, the Court found that additional external verification of Defendants’ reporting was necessary to verify compliance. (Doc. No. 737 at 24.) The Court observed that while it had the authority to re-engage the Court Monitor to conduct the review, it was mindful of Defendants’ objection to the Court Monitor and allowed Defendants to select a different individual to conduct the external review.4 (Id. at 25.)
(Doc. No. 820.) To reiterate, the Court requires additional external verification of
Defendants’ reporting to verify compliance; the fact that the Court permitted Defendants
4 The initial external review was limited to Minnesota Life Bridge homes; however, the Court expressly reserved the right to expand the review pursuant to briefing related to the scope of the Agreement. (Doc. No. 737 at 27 n.30.) After briefing, the Court found that an expanded external review was required. (Doc. No. 779.)
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to select someone other than David Ferleger to conduct the external review does not negate its authority to require the external review or Defendants obligation to pay for it.
In short, the Court finds that Defendants have failed to establish a strong likelihood of success on the merits.
B. Irreparable Harm The Court also considers whether Defendants will be irreparably harmed absent a stay. Hilton, 481 U.S. at 776. As with each factor, the burden is on Defendants to establish that this factor weighs in favor of granting the motion. “[S]imply showing some ‘possibility of irreparable injury’ fails to satisfy the second factor.” Nken, 556 U.S. at 434-35 (citation omitted). To establish this factor, the party seeking a stay “must show that the harm is certain and great and of such imminence that there is a clear and present need for equitable relief.” Iowa Utils. Bd. v. F.C.C., 109 F.3d 418, 425 (8th Cir. 1996). Defendants assert that they will suffer irreparable harm if the Court declines to grant a stay. (Def. Memo. at 6-8.) In a nearly identical argument to that which the Court considered and rejected in its February 2020 Denial, Defendants contend that effective denial of appellate rights and financial burden constitute significant irreparable harm. (Id.) The Court declines to re-engage in this argument which it has already considered and rejected.5 (See February 2020 Denial at 12-14.) The Court again concludes that Defendants have failed to show that they would be irreparably harmed if the Court declines to grant a stay.
5 The Court incorporates by reference its analysis in the February 2020 Denial. (See February 2020 Denial at 12-14.)
7

CASE 0:09-cv-01775-DWF-BRT Document 823 Filed 03/09/20 Page 8 of 10
C. Injury to Interested Parties Next, the Court must consider whether issuance of the stay will substantially injure interested parties, including Plaintiffs. See Hilton, 481 U.S at 776. In a somewhat mystifying argument with respect to whether issuance of a stay will substantially injure interested parties, Defendants assert that “[i]f the Court believes a review not contemplated by the Settlement Agreement or law is necessary, the Court can pay for that review itself.” (Def. Memo. at 8.) Defendants also assert that “the best argument for the lack of articulable harm” is found in the Court’s February 2020 Denial “where it acknowledged that it does not know whether State Defendants are actually engaging in the conduct about which it is concerned.”6 (Id. (citing February 2020 Denial at 15).) The Court finds this argument uncompelling. Unfortunately, Defendants’ internal reporting has not always been accurate; areas of noncompliance have repeatedly been discovered only upon external review. (See, e.g., Doc. Nos. 236, 327, 347, 374, 388, 414, 604.) Indeed, a 2013 external review of AMRTC and FMHP cited multiple violations related to restraint and seclusion at AMRTC and FMHP. (Doc. No. 236.) While the Court hopes that the 2020 external review of AMRTC and FMHP will verify Defendants’ compliance, the Court has no basis to assume that it will. Therefore, the Court “declines
6 The Court stated, “[w]hile it may ultimately prove correct that Defendants’ use of restraint at AMRTC and FMHP reflects current best practices, the Court cannot verify this without an external review, and declines to gamble on an issue with such immense possibility for harm.” (February 2020 Denial at 15.)
8

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to gamble on an issue with such immense possibility of harm.” (February 2020 Denial at 15.) Therefore, the Court once again finds that this factor also weighs against a stay.
D. Public Interest Finally, the Court considers the public interest. Hilton, 481 U.S. at 776. Defendants contend that staying their obligation to pay for the external review would further the public interest because it will be expensive, and they recently paid $60,000 for a separate external review. (Def. Memo. at 9.) The Court, having already considered a nearly identical argument in its February 2020 Denial, reiterates that while minimizing public expense is a relevant concern, “the Court continues to have an obligation to ensure that the Agreement, entered into with an aim to improve the lives of individuals with disabilities throughout the state, is implemented fully and without delay.” (February 2020 Denial at 17.) Therefore, the Court again finds that this factor is evenly balanced.
CONCLUSION In sum, upon considering the relevant factors, the Court declines to stay this matter pending the resolution of Defendants’ appeal. The Court finds that Defendants have failed to persuade the Court that three of the four factors, including the two most important—likelihood of success on the merits and irreparable harm—weigh in their favor. The remaining factor is neutral. Thus, a stay pending appeal is not warranted.
9

CASE 0:09-cv-01775-DWF-BRT Document 823 Filed 03/09/20 Page 10 of 10

ORDER Based upon the presentations and submissions before the Court, and the Court being otherwise duly advised in the premises, IT IS HEREBY ORDERED that Defendants’ Motion to Stay Pending Appeal (Doc. No. [806]) is DENIED.

Dated: March 9, 2020

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

10

 
 CV,PROTO
U.S. District Court U.S. District of Minnesota (DMN) CIVIL DOCKET FOR CASE #: 0:09−cv−01775−DWF−BRT

Jensen et al v. Minnesota Department of Human Services et al Assigned to: Judge Donovan W. Frank Referred to: Magistrate Judge Becky R. Thorson rel Cases: 0:15−cv−03439−DWF−BRT
0:16−cv−02623−DWF−BRT
Case in other court: USCA 8th Circuit, 17−02653
USCA 8th Circuit, 20−01126
US Court of Appeals, Eighth Circuit, 20−01399 Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 07/10/2009 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

James Jensen as parents, guardians and next friends of Bradley J. Jensen and others similarly situated

represented by Mark R Azman O'Meara Leer Wagner & Kohl, PA 7401 Metro Blvd Ste 600 Minneapolis, MN 55439−3034 952−806−0408 Fax: 952−893−8308 Email: mrazman@olwklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shamus P. O'Meara O'Meara Leer Wagner & Kohl, PA 7401 Metro Blvd Ste 600 Minneapolis, MN 55439−3034 952−831−6544 Fax: 952−831−1869 Email: spomeara@olwklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Ann Santos Hinshaw & Culbertson LLP 333 South Seventh Street Suite 2000 Minneapolis, MN 55402 612−334−2540 Fax: 612−334−8888 Email: asantos@hinshawlaw.com TERMINATED: 03/14/2014

Plaintiff
Lorie Jensen as parents, guardians and next friends of Bradley J. Jensen and others similarly situated

represented by Mark R Azman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shamus P. O'Meara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Ann Santos (See above for address) TERMINATED: 03/14/2014

Plaintiff James Brinker as parents, guardians and next friends of Thomas M. Allbrink and others similarly situated
Plaintiff Darren Allen as parents, guardians and next friends of Thomas M. Allbrink and others similarly situated
Plaintiff Elizabeth Jacobs as parent, guardian and next friend of Jason R. Jacobs and others similarly situated
V. Defendant Minnesota Department of Human Services an agency of the State of Minnesota

represented by Mark R Azman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shamus P. O'Meara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret Ann Santos (See above for address) TERMINATED: 03/14/2014
represented by Mark R Azman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shamus P. O'Meara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret Ann Santos (See above for address) TERMINATED: 03/14/2014
represented by Mark R Azman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shamus P. O'Meara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret Ann Santos (See above for address) TERMINATED: 03/14/2014
represented by Aaron Winter Minnesota Attorney General's Office − Ste 1100 445 Minnesota St Ste 1100 St Paul, MN 55101−2128 651−757−1453 Fax: 651−282−5832 Email: aaron.winter@ag.state.mn.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony R Noss Minnesota Attorney General's Office − Ste

1100 445 Minnesota St Ste 1100 St Paul, MN 55101−2128 651−757−1461 Fax: 651−282−5832 Email: anthony.noss@ag.state.mn.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael N Leonard Minnesota Attorney General's Office Bremer Tower, Suite 1100 445 Minnesota Street St. Paul, MN 55101−2128 651−757−1211 Fax: 651−282−5832 Email: michael.leonard@ag.state.mn.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott H Ikeda Minnesota Attorney General's Office 445 Minnesota Street Suite 1100 St. Paul, MN 55101 651−757−1385 Fax: 651−282−5832 Email: scott.ikeda@ag.state.mn.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marsha Eldot Devine 5801 Colfax Avenue South Suite 1100 55419 Minneapolis, MN 55419 612−850−8692 Email: MsMEDJD@cs.com TERMINATED: 10/01/2012
Nathan A Brennaman Faegre Drinker Biddle & Reath LLP 90 S. 7th St. Ste. 2200 Minneapolis, MN 55402 612−766−8727 Email: nate.brennaman@faegredrinker.com TERMINATED: 05/17/2016
P Kenneth Kohnstamm Minnesota Attorney General's Office − Ste 1100 445 Minnesota St. Ste 1100 INACTIVE St Paul, MN 55101−2128 651−757−1266 Fax: 651−282−5832 Email: kenneth.kohnstamm@ag.state.mn.us TERMINATED: 04/11/2013
Steven H Alpert Minnesota Attorney General's Office − Ste 1100 445 Minnesota St. Ste 1100 INACTIVE

Defendant Director Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota
Defendant Clinical Director the Minnesota Extended Treatment Options, a program of the Minnesota Department of Human Services, an agency of the State of Minnesota
Defendant Douglas Bratvold individually, and as Director of the Minnesota Extended Treatment Options, a program o f the Minnesota Department of Human Services, an agency of the State of Minnesota

St Paul, MN 55101−2128 651−757−1405 Fax: 612−282−5832 Email: steve.alpert@ag.state.mn.us TERMINATED: 08/11/2014
represented by Aaron Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott H Ikeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marsha Eldot Devine (See above for address) TERMINATED: 10/01/2012
P Kenneth Kohnstamm (See above for address) TERMINATED: 04/11/2013
Steven H Alpert (See above for address) TERMINATED: 08/11/2014
represented by Aaron Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott H Ikeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marsha Eldot Devine (See above for address) TERMINATED: 10/01/2012
P Kenneth Kohnstamm (See above for address) TERMINATED: 04/11/2013
Steven H Alpert (See above for address) TERMINATED: 08/11/2014
represented by Aaron Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott H Ikeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Scott TenNapel individually, and as Clinical Director of the Minnesota Extended Treatment Options, a program o f the Minnesota Department of Human Services, an agency of the State of Minnesota
Defendant Minnesota, State of

Marsha Eldot Devine (See above for address) TERMINATED: 10/01/2012
P Kenneth Kohnstamm (See above for address) TERMINATED: 04/11/2013
Steven H Alpert (See above for address) TERMINATED: 08/11/2014
represented by Aaron Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher A Stafford Fredrikson & Byron, PA 200 S 6th St. Ste 4000 INACTIVE Mpls, MN 55402−1425 612−492−7426 Fax: 612−492−7077 Email: cstafford@fredlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel D Orbovich Fredrikson & Byron, PA 200 S 6th St Ste 4000 Mpls, MN 55402−1425 612−492−7376 Fax: 612−492−7077 Email: sorbovich@fredlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott H Ikeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marsha Eldot Devine (See above for address) TERMINATED: 10/01/2012
P Kenneth Kohnstamm (See above for address) TERMINATED: 04/11/2013
Steven H Alpert (See above for address) TERMINATED: 08/11/2014
represented by Aaron Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony R Noss (See above for address)

Amicus Ivan M. Levy

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael N Leonard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan A Brennaman (See above for address) TERMINATED: 05/17/2016 LEAD ATTORNEY
Scott H Ikeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marsha Eldot Devine (See above for address) TERMINATED: 10/01/2012
P Kenneth Kohnstamm (See above for address) TERMINATED: 04/11/2013
Steven H Alpert (See above for address) TERMINATED: 08/11/2014
represented by John W. Ursu Faegre Drinker Biddle & Reath LLP 2200 Wells Fargo Center 90 S. Seventh Street Minneapolis, MN 55402 612−766−7000 Fax: 612−766−1600 Email: john.ursu@faegredrinker.com TERMINATED: 07/27/2017
Karl C Procaccini Office of Governor Tim Walz and Lt. Governor Peggy Flanagan 130 State Capitol St. Paul, MN 55155 617−388−4961 Email: karlprocaccini@gmail.com TERMINATED: 07/27/2017
Katherine M. Swenson Greene Espel PLLP 222 S 9th St Ste 2200 Mpls, MN 55402 (612) 373−8389 Fax: (612) 373−0929 Email: kswenson@greeneespel.com TERMINATED: 07/27/2017

Date Filed 07/10/2009

# Docket Text
1 COMPLAINT against all defendants ( Filing fee $ 350 receipt number 3−005937.) assigned to Judge Donovan W. Frank per Civil Rights referred to Magistrate Judge

07/10/2009 07/10/2009 07/30/2009
07/31/2009 08/11/2009 08/20/2009 08/20/2009 08/20/2009 08/24/2009
11/06/2009 11/20/2009 03/01/2010 03/02/2010

Franklin L. Noel, filed by James Jensen, Lorie Jensen. (Attachments: # 1 Exhibit 1 Part A, # 2 Exhibit 1 Part B, # 3 Exhibit 1 Part C.1, # 4 Exhibit 1 Part C.2, # 5 Exhibit 1 Part D) (VEM) (Additional attachment(s) added on 7/13/2009: # 6 Civil Cover Sheet) (vem). (Entered: 07/13/2009)
Summons Issued as to Director, Clinical Director, Douglas Bratvold, Scott TenNapel, Minnesota, State of, Minnesota Department of Human Services. (VEM) (Entered: 07/13/2009)
2 AFFIDAVIT of Shamus P. O'Meara re 1 Complaint, by James Jensen, Lorie Jensen. (VEM) (Entered: 07/13/2009)
3 AMENDED COMPLAINT against Douglas Bratvold, Clinical Director, Director, Minnesota Department of Human Services, Minnesota, State of, Scott TenNapel, filed by James Jensen, Lorie Jensen. (Attachments: # 1 Exhibit(s) 1−A, # 2 Exhibit(s) 1−B, # 3 Exhibit(s) 1−C.1, # 4 Exhibit(s) 1−C.2, # 5 Exhibit(s) 1−D, # 6 Exhibit(s) 2, # 7 Exhibit(s) 3, # 8 Exhibit(s) 4, # 9 Exhibit(s) 5) (Azman, Mark) (Entered: 07/30/2009)
Summons Issued as to Douglas Bratvold, Clinical Director, Director, Minnesota Department of Human Services, Minnesota, State of, Scott TenNapel. (VEM) (Entered: 07/31/2009)
4 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen through counsel. (Attachments: # 1 Certificate of Service)(Azman, Mark) (Entered: 08/11/2009)
5 NOTICE of Appearance by Paul Kenneth Kohnstamm on behalf of Douglas Bratvold, Clinical Director, Director, Minnesota Department of Human Services, Minnesota, State of, Scott TenNapel. (Attachments: # 1 Certificate of Service)(Kohnstamm, Paul) (Entered: 08/20/2009)
6 NOTICE of Appearance by Steven H Alpert on behalf of Douglas Bratvold, Clinical Director, Director, Minnesota Department of Human Services, Minnesota, State of, Scott TenNapel. (Attachments: # 1 Certificate of Service)(Alpert, Steven) (Entered: 08/20/2009)
7 ORDER the Court hereby extends the time for the Defendants to answer the Amended Complaint to October 23, 2009. Signed by Judge Donovan W. Frank on 8/20/09. (GMO) Modified text on 8/21/2009 (vem). (Entered: 08/20/2009)
8 SUMMONS Returned Executed by James Brinker, James Jensen, Elizabeth Jacobs, Darren Allen, Lorie Jensen. Douglas Bratvold served on 7/31/2009, answer due 10/23/2009; Clinical Director served on 7/31/2009, answer due 10/23/2009; Director served on 7/31/2009, answer due 10/23/2009; Minnesota Department of Human Services served on 7/31/2009, answer due 10/23/2009; Minnesota, State of served on 7/31/2009, answer due 10/23/2009; Scott TenNapel served on 8/10/2009, answer due 10/23/2009. (Attachments: # 1 Affidavit of Service Minnesota Department of Human Services, # 2 Affidavit of Service Director − METO, # 3 Affidavit of Service Clinical Director − METO, # 4 Affidavit of Service Douglas Bratvold (personally and as Director of METO), # 5 Affidavit of Service Scott TenNapel as Clinical Director of METO, # 6 Certificate of Service Scott TenNapel − individually, # 7 Affidavit of Service State of Minnesota)(Azman, Mark) (Entered: 08/24/2009)
9 NOTICE OF INTITAL PRETRIAL CONFERENCE: (Pretrial Conference set for 1/12/2010 09:15 AM in Judge's Chambers 9W (MPLS) before Magistrate Judge Franklin L. Noel). Signed by Magistrate Judge Franklin L. Noel on 11/6/09. (Attachments: # 1 Consent Form)(akl) (Entered: 11/06/2009)
10 NOTICE OF CANCELLATION OF PRETRIAL CONFERENCE. Signed by Magistrate Judge Franklin L. Noel on 11/20/09. (akl) (Entered: 11/20/2009)
13 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 3/1/2010. (BJS) (Entered: 03/02/2010)
11 DOCUMENT FILED IN ERROR PER COUNSEL: LETTER TO MAGISTRATE JUDGE by Douglas Bratvold, Clinical Director, Director, Minnesota Department of Human Services, Minnesota, State of, Scott TenNapel. (Kohnstamm, P) Modified text on 3/2/2010 (kt). (Entered: 03/02/2010)

03/02/2010 03/03/2010 03/08/2010 03/08/2010
03/26/2010 05/04/2010 05/10/2010 05/12/2010 06/25/2010
06/29/2010 07/01/2010 07/01/2010 07/01/2010 07/01/2010 07/01/2010 07/01/2010

12 LETTER TO JUDGE by Douglas Bratvold, Clinical Director, Director, Minnesota Department of Human Services, Minnesota, State of, Scott TenNapel. (Kohnstamm, P) Modified text on 3/3/2010 (vem). (Entered: 03/02/2010)
14 LETTER TO DISTRICT JUDGE by James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Mullin, Margaret) (Entered: 03/03/2010)
15 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 3/8/2010. (BJS) (Entered: 03/08/2010)
16 ORDER. 1. The Defendants shall submit a detailed draft settlement agreement to the Plaintiffs by April 2, 2010. 2. The Plaintiffs shall submit a detailed response to the Defendants' settlement documents no later than April 14, 2010. 3. The parties are respectfully directed to contact Magistrate Judge Franklin L.Noel's Calendar Clerk, Cathy Orlando, at 612−664−5110, for the purpose of setting up a settlement conference to discuss potential resolution of the case before the Court as well as the necessity, if any, of temporary injunctive relief, absent stipulation of the parties. 3. The settlement discussions shall include the development of a consent decree−settlement agreement to resolve some or all of the issues before the Court. Signed by Judge Donovan W. Frank on 3/8/2010. (BJS) (Entered: 03/08/2010)
17 NOTICE OF SETTLEMENT CONFERENCE: (Settlement Conference set for 5/10/2010 02:00 PM in Courtroom 9W (MPLS) before Magistrate Judge Franklin L. Noel). Signed by Magistrate Judge Franklin L. Noel on 3/26/10. (akl) (Entered: 03/26/2010)
18 Minute Entry for proceedings held before Magistrate Judge Franklin L. Noel: Telephone Conference held on 5/4/2010. (akl) (Entered: 05/04/2010)
19 Minute Entry for proceedings held before Magistrate Judge Franklin L. Noel: Initial Pretrial Conference held on 5/10/2010. (akl) (Entered: 05/11/2010)
20 PRETRIAL SCHEDULING ORDER: (Case Management Conference set for 9/14/2010 02:00 PM in Judge's Chambers 9W (MPLS) before Magistrate Judge Franklin L. Noel, Discovery due by 12/1/2010, Motions (disp) due by 9/1/2010). Signed by Magistrate Judge Franklin L. Noel on 5/12/10. (akl) (Entered: 05/12/2010)
21 STIPULATION re 3 Amended Complaint, Of The Parties For Extension Of Time To Respond To Amended Complaint by Darren Allen, Douglas Bratvold, James Brinker, Clinical Director, Director, Elizabeth Jacobs, James Jensen, Lorie Jensen, Minnesota Department of Human Services, Minnesota, State of, Scott TenNapel. (Kohnstamm, P) (Entered: 06/25/2010)
22 ORDER: If Defendant concedes that Plaintiffs' complaint has merit, it should settle. If not, it must answer, so that issues in dispute can be joined. The parties request to extend the deadline for the Defendants to answer the Complaint is DENIED. Signed by Magistrate Judge Franklin L. Noel on 6/29/10. (akl) (Entered: 06/30/2010)
23 NOTICE of Appearance by Samuel D Orbovich on behalf of Scott TenNapel. (Orbovich, Samuel) (Entered: 07/01/2010)
24 ANSWER to Amended Complaint by Douglas Bratvold, Director, Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Certificate of Service) (Kohnstamm, P) (Entered: 07/01/2010)
25 MOTION to Dismiss Scott Tennapel in his Individual and Official Capacities by Scott TenNapel. (Orbovich, Samuel) (Entered: 07/01/2010)
26 NOTICE OF HEARING ON MOTION 25 MOTION to Dismiss Scott Tennapel in his Individual and Official Capacities : Motion Hearing set for 8/30/2010 08:30 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Orbovich, Samuel) (Entered: 07/01/2010)
27 MEMORANDUM in Support re 25 MOTION to Dismiss Scott Tennapel in his Individual and Official Capacities filed by Scott TenNapel. (Orbovich, Samuel) (Entered: 07/01/2010)
28 CERTIFICATE OF SERVICE by Scott TenNapel re 25 MOTION to Dismiss Scott Tennapel in his Individual and Official Capacities, 27 Memorandum in Support of

07/12/2010 07/12/2010 07/12/2010 07/12/2010 07/12/2010 07/12/2010 07/12/2010
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07/19/2010 07/19/2010 07/19/2010

Motion, 26 Notice of Hearing on Motion, 23 Notice of Appearance (Orbovich, Samuel) (Entered: 07/01/2010)
29 MOTION to Compel Class Certification Discovery Responses, MOTION for Protective Order by James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Mullin, Margaret) (Entered: 07/12/2010)
30 NOTICE OF HEARING ON MOTION 29 MOTION to Compel Class Certification Discovery Responses MOTION for Protective Order : Motion Hearing set for 7/26/2010 09:30 AM in Courtroom 9W (MPLS) before Magistrate Judge Franklin L. Noel. (Mullin, Margaret) (Entered: 07/12/2010)
31 MEMORANDUM in Support re 29 MOTION to Compel Class Certification Discovery Responses MOTION for Protective Order filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Mullin, Margaret) (Entered: 07/12/2010)
32 AFFIDAVIT of M. Annie Mullin in SUPPORT OF 29 MOTION to Compel Class Certification Discovery Responses MOTION for Protective Order filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Mullin, Margaret) (Entered: 07/12/2010)
33 AFFIDAVIT of Mark R. Azman in SUPPORT OF 29 MOTION to Compel Class Certification Discovery Responses MOTION for Protective Order filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Mullin, Margaret) (Entered: 07/12/2010)
34 AFFIDAVIT of Shamus P. O'Meara in SUPPORT OF 29 MOTION to Compel Class Certification Discovery Responses MOTION for Protective Order filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s))(Mullin, Margaret) (Entered: 07/12/2010)
35 CERTIFICATE OF SERVICE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen re 34 Affidavit in Support of Motion, 29 MOTION to Compel Class Certification Discovery Responses MOTION for Protective Order, 31 Memorandum in Support of Motion, 30 Notice of Hearing on Motion, 32 Affidavit in Support of Motion, 33 Affidavit in Support of Motion (Mullin, Margaret) (Entered: 07/12/2010)
36 RESPONSE in Opposition re 29 MOTION to Compel Class Certification Discovery Responses MOTION for Protective Order filed by Douglas Bratvold, Director, Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Kohnstamm, P) (Entered: 07/19/2010)
37 AFFIDAVIT of Frances Bly in OPPOSITION TO 29 MOTION to Compel Class Certification Discovery Responses MOTION for Protective Order filed by Douglas Bratvold, Director, Minnesota Department of Human Services, Minnesota, State of. (Kohnstamm, P) (Entered: 07/19/2010)
38 AFFIDAVIT of Steven H. Alpert in OPPOSITION TO 29 MOTION to Compel Class Certification Discovery Responses MOTION for Protective Order filed by Douglas Bratvold, Director, Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Kohnstamm, P) Modified text on 7/19/2010 (vem). (Entered: 07/19/2010)
39 CERTIFICATE OF SERVICE by Douglas Bratvold, Director, Minnesota Department of Human Services, Minnesota, State of re 38 Affidavit in Opposition to Motion,, 36 Response in Opposition to Motion, 37 Affidavit in Opposition to Motion, (Kohnstamm, P) (Entered: 07/19/2010)
40 MOTION to Dismiss Various Claims Against State Defendants by Douglas Bratvold, Director, Minnesota Department of Human Services, Minnesota, State of. (Alpert, Steven) (Entered: 07/19/2010)
41 NOTICE OF HEARING ON MOTION 40 MOTION to Dismiss Various Claims Against State Defendants : Motion Hearing set for 8/30/2010 08:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Alpert, Steven) (Entered: 07/19/2010)

07/19/2010 07/19/2010 07/19/2010 07/19/2010 07/19/2010 07/19/2010 07/19/2010 07/19/2010 07/19/2010 07/19/2010 07/19/2010
07/19/2010
07/20/2010 07/21/2010

42 MEMORANDUM in Support re 40 MOTION to Dismiss Various Claims Against State Defendants filed by Douglas Bratvold, Director, Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Alpert, Steven) (Entered: 07/19/2010)
43 CERTIFICATE OF SERVICE by Douglas Bratvold, Director, Minnesota Department of Human Services, Minnesota, State of re 42 Memorandum in Support of Motion, 41 Notice of Hearing on Motion, 40 MOTION to Dismiss Various Claims Against State Defendants. (Alpert, Steven) (Entered: 07/19/2010)
44 CERTIFICATE OF SERVICE by Douglas Bratvold, Director, Minnesota Department of Human Services, Minnesota, State of re 42 Memorandum in Support of Motion, 41 Notice of Hearing on Motion, 40 MOTION to Dismiss Various Claims Against State Defendants (Alpert, Steven) (Entered: 07/19/2010)
45 MOTION to Certify Class by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Mullin, Margaret) (Entered: 07/19/2010)
46 NOTICE OF HEARING ON MOTION 45 MOTION to Certify Class : Motion Hearing set for 8/30/2010 08:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Mullin, Margaret) (Entered: 07/19/2010)
47 MOTION for Preliminary Injunction by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Mullin, Margaret) (Entered: 07/19/2010)
48 NOTICE OF HEARING ON MOTION 47 MOTION for Preliminary Injunction : Motion Hearing set for 8/30/2010 08:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Mullin, Margaret) (Entered: 07/19/2010)
49 MEMORANDUM in Support re 47 MOTION for Preliminary Injunction filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Mullin, Margaret) (Entered: 07/19/2010)
50 MEMORANDUM in Support re 45 MOTION to Certify Class filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Mullin, Margaret) (Entered: 07/19/2010)
51 AFFIDAVIT of Julie Kenney in SUPPORT OF 45 MOTION to Certify Class, 47 MOTION for Preliminary Injunction filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Mullin, Margaret) (Entered: 07/19/2010)
52 DOCUMENT FILED IN ERROR HAS BEEN REFILED SEE DOCKET #54 − AFFIDAVIT of Shamus P. O'Meara in SUPPORT OF 47 MOTION for Preliminary Injunction, 45 MOTION to Certify Class filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s), # 3 Exhibit(s) 2, # 4 Exhibit(s) 3, # 5 Exhibit(s) 4, # 6 Exhibit(s) 5, # 7 Exhibit(s) 6, # 8 Exhibit(s) 7, # 9 Exhibit(s) 8, # 10 Exhibit(s) 9, # 11 Exhibit(s) 10, # 12 Exhibit(s) 11, # 13 Exhibit(s) 12, # 14 Exhibit(s) 13, # 15 Exhibit(s) 14, # 16 Exhibit(s) 15, # 17 Exhibit(s) 16)(Mullin, Margaret) Modified on 7/20/2010 (kt). Modified on 7/21/2010 (VEM). (Entered: 07/19/2010)
53 CERTIFICATE OF SERVICE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen re 50 Memorandum in Support of Motion, 51 Affidavit in Support of Motion, 52 Affidavit in Support of Motion,, 45 MOTION to Certify Class, 46 Notice of Hearing on Motion, 49 Memorandum in Support of Motion, 47 MOTION for Preliminary Injunction, 48 Notice of Hearing on Motion. (Mullin, Margaret) (Entered: 07/19/2010)
54 Corrected AFFIDAVIT of Shamus P. O'Meara in SUPPORT OF 45 MOTION to Certify Class, 47 MOTION for Preliminary Injunction filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 Certificate of Service)(Mullin, Margaret) (Entered: 07/20/2010)
55 EXHIBIT 1 re 54 Affidavit in Support of Motion, Exhibits Supporting Revised Affidavit of Shamus P. O'Meara by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 Exhibit(s) 1−A, # 2 Exhibit(s) 2, # 3 Exhibit(s) 3, # 4 Exhibit(s) 4, # 5 Exhibit(s) 5, # 6 Exhibit(s) 6, # 7 Exhibit(s) 7, # 8

07/26/2010
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Exhibit(s) 8, # 9 Exhibit(s) 9, # 10 Exhibit(s) 10, # 11 Exhibit(s) 11, # 12 Exhibit(s) 12, # 13 Exhibit(s) 13, # 14 Exhibit(s) 14, # 15 Exhibit(s) 15, # 16 Exhibit(s) 16, # 17 Certificate of Service)(Mullin, Margaret) (Entered: 07/21/2010)
56 Minute Entry for proceedings held before Magistrate Judge Franklin L. Noel: Motion Hearing held on 7/26/2010 re 29 MOTION to Compel Class Certification Discovery Responses MOTION for Protective Order filed by James Brinker, James Jensen, Lorie Jensen, Elizabeth Jacobs. Motion taken under advisement. Order to be issued. (Court Reporter Dawn Hansen) (akl) (Entered: 07/26/2010)
57 PROTECTIVE ORDER. Signed by Magistrate Judge Franklin L. Noel on 8/2/10. (LPH) (Entered: 08/02/2010)
58 MOTION to Amend/Correct the amended complaint by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 Redlined Second Amended Complaint, # 2 Second Amended Complaint)(Mullin, Margaret) Modified text on 8/3/2010 (vem). (Entered: 08/02/2010)
59 NOTICE OF HEARING ON MOTION 58 MOTION to Amend/Correct : Motion Hearing set for 8/16/2010 09:00 AM in Courtroom 9W (MPLS) before Magistrate Judge Franklin L. Noel. (Mullin, Margaret) (Entered: 08/02/2010)
60 MEMORANDUM in Support re 58 MOTION to Amend/Correct filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Mullin, Margaret) (Entered: 08/02/2010)
61 AFFIDAVIT of Mark R. Azman in SUPPORT OF 58 MOTION to Amend/Correct filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 Exhibit 1)(Mullin, Margaret) Modified text on 8/3/2010 (vem). (Entered: 08/02/2010)
62 CERTIFICATE OF SERVICE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen re 59 Notice of Hearing on Motion, 60 Memorandum in Support of Motion, 61 Affidavit in Support of Motion, 58 MOTION to Amend/Correct (Mullin, Margaret) (Entered: 08/02/2010)
63 ORDER granting in part and denying in part 29 Defendants to Produce Class Certification Discovery and for a Protective Order. Signed by Magistrate Judge Franklin L. Noel on 8/2/10. (akl) (Entered: 08/03/2010)
64 MEMORANDUM in Opposition re 58 MOTION to Amend/Correct filed by Scott TenNapel. (Attachments: # 1 LR7.1 Word Count Compliance Certificate, # 2 Certificate of Service)(Stafford, Christopher) (Entered: 08/09/2010)
65 MEMORANDUM in Opposition re 45 MOTION to Certify Class filed by Douglas Bratvold, Director, Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 LR7.1 Word Count Compliance Certificate, # 2 Certificate of Service)(Alpert, Steven) (Entered: 08/09/2010)
66 RESPONSE in Opposition re 47 MOTION for Preliminary Injunction filed by Douglas Bratvold, Clinical Director, Director, Minnesota Department of Human Services, Minnesota, State of, Scott TenNapel. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Kohnstamm, P) (Entered: 08/09/2010)
67 AFFIDAVIT of Dr. Natalie Marr in OPPOSITION TO 47 MOTION for Preliminary Injunction filed by Douglas Bratvold, Clinical Director, Director, Minnesota Department of Human Services, Minnesota, State of, Scott TenNapel. (Kohnstamm, P) (Entered: 08/09/2010)
68 AFFIDAVIT of L. Read Sulick, M.D. in OPPOSITION TO 47 MOTION for Preliminary Injunction filed by Douglas Bratvold, Clinical Director, Director, Minnesota Department of Human Services, Minnesota, State of, Scott TenNapel. (Kohnstamm, P) (Entered: 08/09/2010)
69 AFFIDAVIT of Alan Radke, M.D. in OPPOSITION TO 47 MOTION for Preliminary Injunction filed by Douglas Bratvold, Clinical Director, Director, Minnesota Department of Human Services, Minnesota, State of, Scott TenNapel. (Kohnstamm, P) (Entered: 08/09/2010)

08/09/2010
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70 AFFIDAVIT of P. Kenneth Kohnstamm in OPPOSITION TO 47 MOTION for Preliminary Injunction filed by Douglas Bratvold, Clinical Director, Director, Minnesota Department of Human Services, Minnesota, State of, Scott TenNapel. (Attachments: # 1 Exhibit(s) e−mail correspondence, # 2 Exhibit(s) letter, # 3 Exhibit(s) letter, # 4 Exhibit(s) Oklahoma policies, # 5 Exhibit(s) Settlement Agreement, # 6 Exhibit(s) Settlement Agreement)(Kohnstamm, P) (Entered: 08/09/2010)
71 CERTIFICATE OF SERVICE by Douglas Bratvold, Clinical Director, Director, Minnesota Department of Human Services, Minnesota, State of, Scott TenNapel re 67 Affidavit in Opposition to Motion, 69 Affidavit in Opposition to Motion, 70 Affidavit in Opposition to Motion, 66 Response in Opposition to Motion, 68 Affidavit in Opposition to Motion (Kohnstamm, P) (Entered: 08/09/2010)
72 MEMORANDUM in Opposition re 58 MOTION to Amend/Correct filed by Douglas Bratvold, Director, Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 LR7.1 Word Count Compliance Certificate, # 2 Certificate of Service)(Alpert, Steven) (Entered: 08/09/2010)
73 MEMORANDUM in Opposition re 25 MOTION to Dismiss Scott Tennapel in his Individual and Official Capacities filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Mullin, Margaret) (Entered: 08/09/2010)
74 MEMORANDUM in Opposition re 40 MOTION to Dismiss Various Claims Against State Defendants filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Mullin, Margaret) (Entered: 08/09/2010)
75 LR7.1 WORD COUNT COMPLIANCE CERTIFICATE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen re 74 Memorandum in Opposition to Motion, 73 Memorandum in Opposition to Motion. (Mullin, Margaret) (Entered: 08/09/2010)
76 CERTIFICATE OF SERVICE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen re 74 Memorandum in Opposition to Motion, 75 LR7.1 Word Count Compliance Certificate, 73 Memorandum in Opposition to Motion (Mullin, Margaret) (Entered: 08/09/2010)
77 Minute Entry for proceedings held before Magistrate Judge Franklin L. Noel: Motion Hearing held on 8/16/2010 re 58 MOTION to Amend/Correct filed by James Brinker, James Jensen, Lorie Jensen, Elizabeth Jacobs, Darren Allen. Motion taken under advisement. Order to be issued. (Court Reporter Lorilee Fink) (akl) (Entered: 08/16/2010)
78 ORDER granting in part and denying in part 58 Motion to Amend the Complaint. Signed by Magistrate Judge Franklin L. Noel on 8/16/10. (akl) (Entered: 08/16/2010)
79 REPLY re 42 Memorandum in Support of Motion, Rule 12 Motion to Dismiss Various Claims Against State Defendants filed by Douglas Bratvold, Director, Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Alpert, Steven) (Entered: 08/16/2010)
80 AFFIDAVIT of Steven H. Alpert in SUPPORT OF 40 MOTION to Dismiss Various Claims Against State Defendants filed by Douglas Bratvold, Director, Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Alpert, Steven) Modified text on 8/17/2010 (vem). (Entered: 08/16/2010)
81 CERTIFICATE OF SERVICE by Douglas Bratvold, Director, Minnesota Department of Human Services, Minnesota, State of re 79 Reply, 80 Affidavit in Support of Motion, (Alpert, Steven) (Entered: 08/16/2010)
82 REPLY to Response to Motion re 25 MOTION to Dismiss Scott Tennapel in his Individual and Official Capacities filed by Scott TenNapel. (Attachments: # 1 LR7.1 Word Count Compliance Certificate, # 2 Certificate of Service)(Stafford, Christopher) (Entered: 08/16/2010)
83 REPLY to Response to Motion re 45 MOTION to Certify Class filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Mullin, Margaret)

08/16/2010 08/16/2010
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(Entered: 08/16/2010)
84 REPLY to Response to Motion re 47 MOTION for Preliminary Injunction filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Mullin, Margaret) (Entered: 08/16/2010)
85 AFFIDAVIT of Shamus P. O'Meara in SUPPORT OF 47 MOTION for Preliminary Injunction, 45 MOTION to Certify Class Reply filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Mullin, Margaret) Modified text on 8/17/2010 (vem). (Entered: 08/16/2010)
86 LR7.1 WORD COUNT COMPLIANCE CERTIFICATE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen re 83 Reply to Response to Motion, 84 Reply to Response to Motion. (Mullin, Margaret) (Entered: 08/16/2010)
87 CERTIFICATE OF SERVICE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen re 86 LR7.1 Word Count Compliance Certificate, 83 Reply to Response to Motion, 85 Affidavit in Support of Motion,, 84 Reply to Response to Motion (Mullin, Margaret) (Entered: 08/16/2010)
88 AMENDED NOTICE of Hearing on Motion: 47 MOTION for Preliminary Injunction, 45 MOTION to Certify Class : Motion Hearing set for 9/21/2010 02:00 PM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Attachments: # 1 Certificate of Service)(Mullin, Margaret) (Entered: 08/30/2010)
89 AMENDED NOTICE of Hearing on Motion: 40 MOTION to Dismiss Various Claims Against State Defendants : Motion Hearing set for 9/21/2010 02:00 PM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Attachments: # 1 Certificate of Service)(Alpert, Steven) (Entered: 09/02/2010)
90 AMENDED NOTICE of Hearing on Motion: 25 MOTION to Dismiss Scott Tennapel in his Individual and Official Capacities : Motion Hearing set for 9/21/2010 02:00 PM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Attachments: # 1 Certificate of Service)(Stafford, Christopher) (Entered: 09/03/2010)
91 Joint STATEMENT OF CASE as to all parties. (Mullin, Margaret) Modified filers and text on 9/9/2010 (akl). (Entered: 09/08/2010)
92 CERTIFICATE OF SERVICE by Darren Allen, Douglas Bratvold, James Brinker, Clinical Director, Director, Elizabeth Jacobs, James Jensen, Lorie Jensen, Minnesota Department of Human Services, Minnesota, State of, Scott TenNapel re 91 Statement of Case Joint (Mullin, Margaret) (Entered: 09/09/2010)
93 *TEXT ONLY ENTRY* NOTICE of Cancelation of Hearing: Case Management Conference set for 9/14/2010 02:00 PM in Judge's Chambers 9W (MPLS) before Magistrate Judge Franklin L. Noel is cancelled. (CAO) (Entered: 09/14/2010)
94 *TEXT ONLY ENTRY* NOTICE of Setting Hearing: Chambers Conference set for 12/13/2010 10:15 AM in Judge's Chambers, Suite 724 (STP) before Judge Donovan W. Frank. (BJS) (Entered: 12/07/2010)
95 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 12/13/2010. (Court Reporter NA) (BJS) (Entered: 12/14/2010)
96 *TEXT ONLY ENTRY* NOTICE of Setting Hearing: Status Conference set for 2/9/2011 10:00 AM in Chambers 724 (STP) before Judge Donovan W. Frank. (BJS) (Entered: 02/08/2011)
97 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 2/9/2011. (BJS) (Entered: 02/10/2011)
98 *TEXT ONLY ENTRY* NOTICE of Setting Hearing: Status Conference set for 5/3/2011 09:00 AM in Judge's Chambers, Suite 724 (STP) before Judge Donovan W. Frank. (BJS) (Entered: 04/21/2011)
99 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 5/3/2011. (Court Reporter NA) (BJS) (Entered: 05/09/2011)

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100 *TEXT ONLY ENTRY* NOTICE of Setting Hearing: Status Conference set for 6/23/2011 08:00 AM in Judge's Chambers, Suite 724 (STP) before Judge Donovan W. Frank. (BJS) (Entered: 06/16/2011)
101 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 6/23/2011. Written order to issue. (Court Reporter NA) (BJS) (Entered: 06/23/2011)
102 HEARING ORDER. See Order for details. Signed by Judge Donovan W. Frank on 6/23/2011. (BJS) (Entered: 06/23/2011)
103 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen Letter to The Honorable Donovan Frank. (O'Meara, Shamus) (Entered: 06/23/2011)
104 SETTLEMENT AGREEMENT Stipulated Class Action Settlement Agreement by James Brinker, James Jensen, Elizabeth Jacobs, Darren Allen, Lorie Jensen. (Attachments: # 1 Attachment A, # 2 Attachments B and D, # 3 Attachment C, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5)(O'Meara, Shamus) Modified text on 6/27/2011 (akl). (Entered: 06/23/2011)
107 Amended Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 6/23/2011. Written order to issue. (Court Reporter NA) (BJS) (Entered: 07/20/2011)
105 NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION signed by Judge Donovan W. Frank on 6/24/2011. (BJS) (Entered: 06/24/2011)
106 *TEXT ONLY ENTRY* NOTICE of Setting Hearing: Status Conference set for 7/20/2011 08:30 AM in Judge's Chambers, Suite 724 (STP) before Judge Donovan W. Frank. (BJS) (Entered: 07/14/2011)
108 *TEXT ONLY ENTRY* NOTICE of Setting Hearing: Status Conference set for 8/3/2011 08:30 AM in Judge's Chambers, Suite 724 (STP) before Judge Donovan W. Frank. (BJS) (Entered: 07/20/2011)
109 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 7/20/2011. Written order to issue. (Court Reporter NA) (BJS) (Entered: 07/20/2011)
110 *TEXT ONLY ENTRY* NOTICE of Resetting of Hearing: Status Conference now set for 8/2/2011 08:30 AM in Judge's Chambers, Suite 724 (STP) before Judge Donovan W. Frank. (BJS) (Entered: 07/21/2011)
111 ORDER. 1. Pursuant to Fed. R. Civ. P. 17(c) 2, the discretion provided this Court under the Class Action Settlement Agreement, and pursuant to the inherent equitable authority of this Court, the Court hereby orders that each guardian, conservator, or other individual with existing legal authority to act on behalf of any individual identified as a class member in this litigation, is hereby authorized and appointed by this Court to review with and explain to the class member and any other legal representative of the class member, the Notice and class action settlement agreement documents mailed to them by Settlement Class Counsel. That said person with legal authority is further authorized to execute and submit the Claim Form necessary for the class member to be included in the Court's determination of the apportionment of the settlement payment under the settlement agreement, or to execute and submit the Request for Exclusion (Opt Out) form in order to be excluded from the class action settlement and any portion of the settlement payment. See Order for additional information. Signed by Judge Donovan W. Frank on 7/22/2011. (BJS) (Entered: 07/22/2011)
112 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 8/2/2011. Next status conference set for August 17, 2011, at 10:00 a.m. in Chambers 724. A conference bridge will also be established for this conference call; additional details to follow. (Court Reporter Jeanne Anderson) (BJS) (Entered: 08/03/2011)
113 STIPULATION for Amended Protective Order by Darren Allen, Douglas Bratvold, James Brinker, Clinical Director, Director, Elizabeth Jacobs, James Jensen, Lorie

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11/03/2011

Jensen, Minnesota Department of Human Services, Minnesota, State of, Scott TenNapel. (Mullin, M) (Entered: 08/08/2011)
114 AMENDED PROTECTIVE ORDER. See Order for details. Signed by Judge Donovan W. Frank on 8/9/2011. (BJS) (Entered: 08/09/2011)
115 STIPULATION for Order and Order by Darren Allen, Douglas Bratvold, James Brinker, Clinical Director, Director, Elizabeth Jacobs, James Jensen, Lorie Jensen, Minnesota Department of Human Services, Minnesota, State of, Scott TenNapel. (Mullin, M) (Entered: 08/12/2011)
116 ORDER. 1. Counties in the State of Minnesota that have been delegated guardianship and/or conservatorship authority and/or are the county of financial responsibility of Class Members, are hereby authorized to release contact information, including the name, address and/or telephone number, of Class Members and/or their parents, guardians, conservators, or other authorized representatives, to the law firm of Johnson & Condon, P.A. upon written request. 2. Any such information released in accordance with Paragraph 1 shall bedesignated as Confidential and subject to the Protective Order (Doc. No. 57 ) and Amended Protective Order (Doc. No. 114 ) entered in this matter. Signed by Judge Donovan W. Frank on 8/15/2011. (BJS) (Entered: 08/15/2011)
117 Minute Entry for proceedings held before Judge Donovan W. Frank: Phone−in Status Conference held on 8/17/2011. Class members, guardians, and family members had the opportunity to call in and ask questions regarding this case and the settlement. (Court Reporter Jeanne Anderson) (BJS) (Entered: 08/17/2011)
118 *TEXT ONLY ENTRY* NOTICE of Setting Hearing: Status Conference set for 9/6/2011 03:00 PM in Judge's Chambers, Suite 724 (STP) before Judge Donovan W. Frank. (BJS) (Entered: 08/31/2011)
119 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 9/6/2011. A status conference was held and phone calls were made to some Opt−Out class members. (Court Reporter Jeanne Anderson) (BJS) Modified filed date and text on 9/8/2011 (akl). (Entered: 09/07/2011)
120 STIPULATION for Order by Darren Allen, Douglas Bratvold, James Brinker, Clinical Director, Director, Elizabeth Jacobs, James Jensen, Lorie Jensen, Minnesota Department of Human Services, Minnesota, State of, Scott TenNapel. (Mullin, M) (Entered: 09/08/2011)
121 ORDER. The deadline for submitting a Claim Form to share in any settlement payments shall be extended from September 15, 2011, to October 15, 2011. Signed by Judge Donovan W. Frank on 9/9/2011. (BJS) (Entered: 09/09/2011)
122 MOTION for Approval of Settlement , MOTION for Attorney Fees by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Mullin, M) (Entered: 11/01/2011)
123 NOTICE OF HEARING ON MOTION 122 MOTION for Approval of Settlement MOTION for Attorney Fees : Motion Hearing set for 12/1/2011 10:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Mullin, M) (Entered: 11/01/2011)
124 DOCUMENT FILED IN ERR0R (see 127 ): MEMORANDUM in Support re 122 filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Mullin, M) Modified text on 11/7/2011 (mmp). Modified on 11/9/2011 (TSS). (Entered: 11/01/2011)
125 AFFIDAVIT of Shamus P. O'Meara in SUPPORT OF 122 MOTION for Approval of Settlement MOTION for Attorney Fees FILED UNDER SEAL filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. 18 SEALED DOCUMENTS RECEIVED IN CLERKS OFFICE ON 11/1/11. SEALED DOCUMENT RECEIVED IN CLERKS OFFICE ON 11/29/11. (Mullin, M) Modified on 11/9/2011 (AKL). Modified on 11/30/2011 (akl). (Entered: 11/01/2011)
126 *TEXT ONLY ENTRY* NOTICE of Setting Hearing: Status Conference set for 11/7/2011 02:00 PM in Judge's Chambers, Suite 724 (STP) before Judge Donovan W.

11/07/2011 11/07/2011 11/17/2011
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Frank. (BJS) (Entered: 11/03/2011)
127 MEMORANDUM in Support re 122 MOTION for Approval of Settlement MOTION for Attorney Fees REVISED filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Mullin, M) (Entered: 11/07/2011)
128 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 11/7/2011. Status conference was held. Next status conference is scheduled for November 29, 2011, at 10:30 a.m., Chambers 724, St. Paul, Minnesota. (Court Reporter Jeanne Anderson) (BJS) Modified on 11/9/2011 (akl). (Entered: 11/08/2011)
129 ORDER. The above referenced matter came before this Court for a status conference. All parties appeared through counsel of record. After reviewing this matter with counsel and considering all submissions, the Court hereby issues the following: The Stipulated Class Action Settlement Agreement [Doc. No. 104] at Section XVII(F) provides that "[a]fter the Court has an opportunity to discuss the Settlement with any individual who returns a Request for Exclusion ("Opt−Out"), the Court will ascertain the final list of Opt−Outs and provide the final list to the parties." The Court has discussed the Settlement with the guardians for several former METO residents who returned a Request for Exclusion form. The Court also has substantively discussed the Notice process with all counsel and has received regular updates concerning the Notice process from Settlement Class Counsel with copies to all counsel. Based on these discussions and all submissions herein, the Court determines and orders that the Final List of Opt−Outs are those individuals identified in Exhibit 1 to this Order. (See Order for additional details.) Signed by Judge Donovan W. Frank on 11/17/2011. (Attachment(s): # 1 Placeholder for Final List of Opt−Outs, # 2 Placeholder for Untimley Opt−Outs). (BJS) (Entered: 11/17/2011)
130 ORDER re 129 1. Exhibits 1 and 2 attached to the Court's November 17, 2011 Order shall be SEALED and remain sealed until further order of the Court. Signed by Judge Donovan W. Frank on 11/22/2011. (BJS) (Entered: 11/22/2011)
131 EXHIBIT re 125 Affidavit in Support of Motion, Amended Exhibit E by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Mullin, M) DOCUMENT RECEIVED IN CLERK'S OFFICE 11/28/11 Modified on 11/30/2011 (jam). (Entered: 11/28/2011)
132 EXHIBIT re 125 Affidavit in Support of Motion, Second Amended Exhibit E by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. SEALED DOCUMENT RECEIVED IN CLERKS OFFICE ON 11/29/11. (Mullin, M) Modified on 11/30/2011 (akl). (Entered: 11/29/2011)
134 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 11/29/2011. Fairness hearing set for 12/1/11. (Court Reporter NA) (BJS) (Entered: 12/02/2011)
133 EXHIBIT re 125 Affidavit in Support of Motion, Third Amended Exhibit E by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. SEALED DOCUMENT RECEIVED IN CLERKS OFFICE ON 12/1/11. (Mullin, M) Modified on 12/2/2011 (akl). (Entered: 11/30/2011)
135 Minute Entry for proceedings held before Judge Donovan W. Frank: Motion Hearing held on 12/1/2011 re 122 MOTION for Approval of Settlement MOTION for Attorney Fees filed by James Brinker, James Jensen, Lorie Jensen, Elizabeth Jacobs, Darren Allen. Final order to issue. (Court Reporter Jeanne Anderson) (BJS) (Entered: 12/05/2011)
136 FINAL APPROVAL ORDER FOR STIPULATED CLASS ACTION SETTLEMENT AGREEMENT granting 122 Motion for Approval of Settlement; granting 122 Motion for Attorney Fees. 1. Plaintiffs' Petition for Final Approval of Stipulated Class Action Settlement Agreement (Doc. No. 104 ), and Application for Attorneys' Fees and Costs (Doc. No. 122 ) is hereby GRANTED. Signed by Judge Donovan W. Frank on

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12/5/2011. (Attachments: # 1 Exhibit(s) A) (BJS) (Written Opinion) Modified on 3/7/2012 (TSS). (Entered: 12/05/2011)
137 JUDGMENT (Attachments: # 1 Civil Notice − appeal, # 2 Civil−8th Circuit Pre−Hearing Conference Notice)(akl) (Entered: 12/07/2011)
138 *TEXT ONLY ENTRY* NOTICE of Setting Hearing: Status Conference set for 1/5/2012 01:30 PM in Judge's Chambers, Suite 724 (STP) before Judge Donovan W. Frank. (BJS) (Entered: 12/28/2011)
139 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 1/5/2012. (Court Reporter NA) (BJS) (Entered: 01/06/2012)
140 ORDER. The settlement amounts pursuant to the Settlement Agreement shall be paid consistent with the amounts specified in the attached sealed schedule identified as Final Order Exhibit B. Final Order Exhibit B shall be sealed except to the extent each individual apportioned amount shall be disclosed to the Class Member being awarded that amount. (See Order for additional details.). Signed by Judge Donovan W. Frank on 1/30/2012. (Attachments: # 1 Exhibit(s) B)(BJS) (Written Opinion) UNREDACTED VERSION of Exhibit B FILED CONVENTIONALLY UNDER SEAL. RECIEVED IN CLERK'S OFFICE on 01/30/2012. (TSS) Modified on 3/7/2012 (TSS). (Entered: 01/30/2012)
141 ORDER AND MEMORANDUM. 1. Use of Funds. The Court respectfully directs that the legal guardians or conservators for the Class Members communicate to each Class Member his or her entitlement to settlement funds. This communication shall include a discussion with the Class Member of those recreational activities and items that would add to the quality of life of the Class Member in order to respect and honor the interests and preferences of each Class Member. As intended by the Settlement Agreement, the settlement funds shall not be used for any residential costs of care. If a portion of the settlement funds is to be utilized for a prepaid funeral or burial plot, an equivalent amount of the funds shall be utilized to improve the quality of life of the Class Member, given that the receipt of the funds will not in any manner jeopardize the eligibility of the Class Member for disability benefits or related services or grants. (See Doc. No. 136 7.) 2. Distribution. The Court respectfully directs the Department of Human Services to use all available communication methods and tools to provide information about the Settlement Agreement in this case, including this Order and Memorandum, to all county social services directors, case managers, providers, guardians, and advocacy groups. These communication tools shall include, but not be limited to, an information bulletin, the DHS monthly newsletter, several places on the DHS website, as well as the DHS listservs that reach anyone affected by the Settlement Agreement. 3. The attached Memorandum is made a part hereof. Signed by Judge Donovan W. Frank on 2/14/2012. (BJS) (Written Opinion) Modified on 3/7/2012 (TSS). (Entered: 02/14/2012)
142 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 2/21/2012. (Court Reporter NA) (BJS) (Entered: 02/21/2012)
143 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 4/20/2012. (Court Reporter Jeanne Anderson) (BJS) (Entered: 04/20/2012)
144 ORDER 1. Solely to the extent necessary to maintain Class Members' eligibility for governmental benefits, including but not limited to Social Security benefits, the apportioned settlement funds to each Class Member shall be considered a blocked account or conservatorship account consistent with applicable Social Security regulations, applicable Social Security Administration guidance, including Program Operating Manual System (POMS) SI 01140.215, the decision of Navarro by Navarro v. Sullivan, 751 F. Supp. 349 (E.D.N.Y. 1990), and other applicable law, including this Courts broad equitable powers to render complete justice, see Crawford, et al. v. Janklow, et al., 733 F.2d 541, 542 (8th Cir. 1984); see also White ex rel. Smith v. Apfel, 167 F.3d 369, 375 (7th Cir. 1999) (court's denial of petition to release conservatorship funds rebutted presumption that funds were available for care or maintenance); POMS SI CHI01140.215 (In Minnesota, it cannot be presumed that funds are considered accessible and a countable resource; and any presumption of availability of funds can be nullified if the court order establishing the conservatorship specifically blocks the account from use for food, clothing or shelter). This Court's

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prior Orders precluding the expenditure of Settlement Funds for costs of care, unpaid bills or rent, and noting that the settlement funds are not a resource, are consistent with the use of a conservatorship account or blocked account, and mean that the Settlement Funds shall not be available or used for support or maintenance, including expenditures for food, clothing or shelter. See Navarro, 750 F. Supp. at 350 (construing social security regulation defining resources as assets that can be liquidated for support and maintenance and determining settlement award does not constitute a resource, noting: However the items for which the Settlement Order permits use of the funds may be characterized, they are not fairly denominated support and maintenance.); 20 C.F.R. § 416.1121(h) and § 416.1130(b) (defining support and maintenance as food, or shelter furnished to you); 20 C.F.R. § 416.1157(b) (Support and maintenance assistance means cash provided for the purpose of meeting food or shelter needs....); cf. Brown ex. rel. Brown v. Day, 555 F.3d 882, 885−86 (10th Cir. 2009) (under Social Security regulations and guidance, if an individual has no authority to compel use of trust assets for her own support and maintenance, assets are not considered an available resource); Seidenberg v. Weil, No. Civ. A. 95−WY−2191−WD, 1996 WL 33665490, at *7 (D. Colo. Nov. 1, 1996) (counting trust as available resource where beneficiary cannot compel trustee to use assets for beneficiary's support and maintenance violates federal Medicaid statute). With this further clarification on the limitation of the use of the settlement funds, expressly precluding expenditure of the Settlement Funds for support or maintenance, Class Members may use their apportioned settlement amounts as a supplement to enhance the quality of their lives consistent with this Courts Orders in this matter without jeopardizing eligibility for ongoing benefits. This is based on the Courts review of all submissions and the status of the above matter to date, as well as discussions and communication with counsel, including counsel for the United States and the Social Security Administration. Nothing stated in this Order contradicts, or is any way inconsistent with, the Social Security Act and its regulations. (See Order for additional details.)(Written Opinion). Signed by Judge Donovan W. Frank on 4/23/2012. (BJS) (Entered: 04/23/2012)
145 NOTICE of Filing of Official Transcript. A total of 1 transcript is associated with this filing. (jma) (Entered: 04/27/2012)
146 TRANSCRIPT of Hearing on Final Approval of Settlement and Attorney Fees held on 12/01/2011 before Judge Donovan W. Frank. (84 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov. Telephone: (651) 848−1221). Redaction Request due 5/18/2012. Redacted Transcript Deadline set for 5/29/2012. Release of Transcript Restriction set for 7/26/2012. For information on redaction procedures, please review Local Rule 5.5. (jma) (Entered: 04/27/2012)
147 LETTER TO ATTORNEYS SHAMUS P. O'MEARA AND STEVEN H. ALPERT from Judge Donovan W. Frank. (BJS) (Entered: 05/04/2012)
148 *TEXT ONLY ENTRY* NOTICE of Setting Hearing: Chambers Status Conference set for 5/15/2012 03:00 PM in Judge's Chambers, Suite 724 (STP) before Judge Donovan W. Frank. (BJS) (Entered: 05/09/2012)
149 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 5/15/2012. (Court Reporter Jeanne Anderson) (BJS) (Entered: 05/15/2012)
150 ORDER. 1. The Minnesota Department of Human Services shall make available to the appropriate office(s) of the Social Security Administration, the list of Class Members authorized to receive payments in this matter, the amount of the payment, along with that Class Member's social security number. 2. The Social Security Administration shall use this information solely for the purposes it was requested: to effectuate the Court's Orders in this matter to assure that the funds awarded to each individual Class Member is not a resource for eligibility purposes and, consequently, an individual settlement amount will not affect, in any way, a Class Members eligibility for disability benefits or other related benefits, or otherwise jeopardize the Class Member's benefits or programming. 3. That all other Orders in this matter shall otherwise remain in full force and effect.(Written Opinion). Signed by Judge Donovan W. Frank on 5/21/2012. (BJS) (Entered: 05/22/2012)

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151 LETTER TO COUNSEL from Judge Donovan W. Frank. (BJS) (Entered: 05/31/2012)
152 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services . (Attachments: # 1 Affidavit of Service)(Alpert, Steven) (Entered: 06/06/2012)
153 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Mullin, Margaret) (Entered: 06/07/2012)
154 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services . (Attachments: # 1 Affidavit of Service)(Alpert, Steven) (Entered: 06/08/2012)
155 LETTER TO COUNSEL from Judge Donovan W. Frank. (BJS) (Entered: 06/26/2012)
156 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services . (Attachments: # 1 Public Quarterly Report)(Alpert, Steven) (Entered: 07/06/2012)
157 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services. (Attachments: # 1 Exhibit(s) 1 − 5). (Alpert, Steven) Modified text on 7/10/2012 (lmb). (Entered: 07/09/2012)
158 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Attachments: # 1 Exhibit(s) Advocate Concerns, # 2 Exhibit(s) e−Mails)(Mullin, Margaret) (Entered: 07/10/2012)
159 ORDER. 1. David Ferleger is hereby appointed as an independent advisor and monitor pursuant to this order. The parties shall cooperate fully with David Ferleger, and provide him with access to the facilities, services, programs, data, and documents relevant to the Settlement Agreement. He may convene meetings, meet relevant individuals and groups, attend case−related court proceedings and review pleadings, motions, and documents submitted to the court. The parties shall serve Mr. Ferleger with all such papers. He shall have ex parte access to the parties, their counsel and to the Court. However, in the event there is any information provided to the Court by David Ferleger which is utilized or otherwise relied upon by the Court for any reason relating to compliance with the Settlement Agreement, the Court will provide such information to counsel for the parties. 2. Defendants shall file within sixty (60) days a status report on implementation of the Settlement Agreement (apart from the fund distribution). The format and structure for the report shall be developed in cooperation with, and determined by, David Ferleger. 3. The format and structure for the reports of the External Reviewer shall also be developed in cooperation with, and determined by, David Ferleger. (Written Opinion). Signed by Judge Donovan W. Frank on 7/17/2012. (BJS) (Entered: 07/17/2012)
160 ORDER ON PAYMENT OF MONITOR. Signed by Judge Donovan W. Frank on 8/7/2012. (BJS) (Entered: 08/08/2012)
161 ORDER. The Clerk of Court is respectfully directed to deposit this check in the amount of $192,966.67, which has been made payable to the United States District Court Clerk of Court, in the interest bearing registry account. Pursuant to the Settlement Agreement, the Court will issue appropriate orders directing payment of specified amounts from the account, consistent with the prior orders of the Court and the Settlement Agreement of the parties. Signed by Judge Donovan W. Frank on 08/27/2012. (rlb) (Entered: 08/27/2012)
162 RECEIPT number 44641067375 in the amount of $192,966.67 issued to Johnson Condon. (jam) Document QC'd on 8/29/2012. (rms) (Entered: 08/27/2012)
163 FIRST REPORT TO THE COURT by Independent Consultant and Monitor David Ferleger. September 4, 2012. (BJS) (Entered: 09/04/2012)
164 ORDER. Pursuant to and under the terms of the Order of August 7, 2012, the Clerk shall forthwith issue a check to David Ferleger in the amount of $12,360.65 drawn on this litigations Registry account. Signed by Judge Donovan W. Frank on 9/17/2012. (Attachments: # 1 Invoice, July 17 to August 22, 2012)(BJS) (Entered: 09/17/2012)
165 STATUS REPORT by Douglas Bratvold, Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit(s) List, # 2 Exhibit(s) 1A, # 3 Exhibit(s) 2A, # 4 Exhibit(s) 2B, # 5 Exhibit(s) 3A, # 6 Placeholder for Exs. 9A−G (filed under seal), # 7 Exhibit(s) 26A, # 8 Placeholder for 26B−C (filed under seal), # 9 Exhibit(s) 40A, # 10 Exhibit(s) 47A, # 11 Placeholder for Exs.54A−N (filed under

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seal), # 12 Exhibit(s) 61A, # 13 Exhibit(s) 63A, # 14 Exhibit(s) 66A, # 15 Exhibit(s) 72A, # 16 Exhibit(s) 74A, # 17 Exhibit(s) 83A, # 18 Exhibit(s) 85A, # 19 Exhibit(s) 92A, # 20 Exhibit(s) 94A, # 21 Placeholder for Ex.94B (filed under seal), # 22 Placeholder for Exs. 97A−C (filed under seal))(Alpert, Steven). SEALED DOCUMENT RECEIVED IN CLERKS OFFICE ON 9/18/12. Modified on 10/3/2012 (RMS). (Entered: 09/17/2012)
166 CERTIFICATE OF SERVICE by Minnesota Department of Human Services re 165 Status Report, Certificate of Service for documents filed under seal). (Alpert, Steven) (Entered: 09/17/2012)
167 SECOND REPORT TO THE COURT: Procedural Requirements on Restraint by Independent Consultant and Monitor David Ferleger. September 24, 2012. (BJS) (Entered: 09/25/2012)
168 ORDER. 1. The First Report to the Court is hereby ACCEPTED. 2. The monitors Formal Recommendation No. 1 is hereby ADOPTED. 3. The parties shall file objections, if any, to future reports and recommendations by the Independent Consultant and Monitor within twenty−one days of their filing. Objections not timely filed shall be deemed waived. Signed by Judge Donovan W. Frank on 9/28/2012. (BJS) (Entered: 09/28/2012)
169 NOTICE of Withdrawal as Attorney (Devine, Marsha) (Entered: 09/28/2012)
170 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Attachments: # 1 Exhibit(s) Ombudsman Report, # 2 Exhibit(s) Email to Court Monitor)(Santos, Margaret) (Entered: 10/04/2012)
171 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen AMENDED. (Attachments: # 1 Exhibit(s) Ombudsman Report, # 2 Exhibit(s) Email to Court Monitor)(Santos, Margaret) (Entered: 10/04/2012)
172 RECEIPT: Received from Richard D. Sletten, Clerk of United States District Court, District of Minnesota, check number 1334 in the amount of $12,360.65. Said Check is issued pursuant to the Court's order in the above matter. (MMP) DOCUMENT QC'd by KT on 10/16/12. (KT) (Entered: 10/05/2012)
173 ORDER. Pursuant to and under the terms of the Order of August 7, 2012, the Clerk shall forthwith issue a check to David Ferleger in the amount of $10,646.50 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 10/15/2012. (Attachments: # 1 Invoice, August 27 to September 24, 2012)(BJS) (Entered: 10/15/2012)
174 ORDER. 1. The Clerk of United States District Court for the District of Minnesota is hereby authorized to remit to Twin Cities Public Television ("TPT"), Attention: Bill Hanley, Vice President, Public Engagement & Strategic Partnerships, Twin Cities Public Television, 172 East Fourth Street, St. Paul, MN 55101, the sum of $130,766.67. 2. Distribution. This Order shall be e−filed with additional courtesy copies provided to: (see Order for details). Signed by Judge Donovan W. Frank on 10/18/2012. (BJS) cc: Bill Hanley, Vice President, Public Engagement & Strategic Partnerships, Twin Cities Public Television, 172 East Fourth Street, St. Paul, MN 55101; and Colleen Wieck, Ph.D., Executive Director, The Minnesota Governors Council on Developmental Disabilities, 370 Centennial Office Building,658 Cedar Street, St. Paul, MN 55155. Modified on 10/18/2012 (lmb). (Entered: 10/18/2012)
175 FIRST QUARTERLY REPORT TO THE COURT by Independent Consultant and Monitor David Ferleger. (rlb) (Entered: 10/22/2012)
176 RECEIPT Received from Richard D. Sletten, Clerk of the United States District Court, District of Minnesota; check number 1338 in the amount of one hundred thirty thousand seven hundred sixty six dollars and sixty seven cents ($130,766.6)Said check is issued pursuant to the court's order in the above matter. (MMP) Document QCd on 11/16/2012. (rms) (Entered: 10/29/2012)
177 RECEIPT: Received from Richard D. Sletten, Clerk of the United States District Court, District of Minnesota; check number 1337 in the amount of ten thousand six hundred forty six dollars and fifty cents ($10,646.50). Said pursuant to the court's

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order in the above matter. (MMP) DOCUMENT QC'd by KT on 11/1/12. (KT) (Entered: 10/31/2012)
178 ORDER. 1. The Independent Consultant and Monitor's Second Report to the Court: Procedural Requirements on Restraint (Doc. No. 167 ), is hereby ADOPTED and ACCEPTED. 2. The Independent Consultant and Monitor shall proceed immediately to make recommendations to the Court on any issues discussed in the Report and not yet resolved, and to provide the parties with seven (7) calendar days notice before filing with the Court. Signed by Judge Donovan W. Frank on 11/5/2012. (BJS) (Entered: 11/05/2012)
179 ORDER ON EXTERNAL REVIEWER. 1. An in−person status conference is scheduled for December 11, 2012 at 9:00 a.m., in Courtroom 7C, 7th Floor, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, MN 55101. 2. Counsel for Plaintiffs and for the Department of Human Services (DHS), shall attend. In addition, Assistant Commissioner Anne Barry and Chief Compliance Officer Gregory Grey shall attend. The Court's Independent Consultant and Monitor will be present. The settlement consultants, Colleen Wieck and Roberta Opheim, are invited. 3. The parties shall be prepared to discuss: a. Defendants' readiness to be evaluated for compliance by the Independent Consultant and Monitor with regard to the Evaluation Criteria drawn from the Settlement Agreement, and Defendants proposed timetable for readiness for such evaluation, b. the status of the Olmstead Planning Committee recommendations and the Olmstead Plan, c. whether and how the staff training concerns identified by the Monitor have been rectified, d. the status and plans under Olmstead for class member clients with developmental disabilities who may be at state facilities other than MSHS−Cambridge, e. the nature of habilitation and developmental disabilities−specific services which are currently provided at MSHS−Cambridge, f. the status of the Rule 40 Committee's work and an estimated timeline for its completion, g. Defendants' plans for the future of MSHS−Cambridge, and h. any circumstances which may hinder Defendants' implementation with all deliberate speed. 4. No written material is required to be presented. Should a party desire to present any written material for the conference, it shall submit the material (but not file with the Clerk) at least fourteen (14) days prior to the conference. 5. Counsel for the parties may confer and, if they wish, they may submit suggested additional agenda items for the Court's consideration at least fourteen (14) days before the conference. Signed by Judge Donovan W. Frank on 11/5/2012. (BJS) (Entered: 11/05/2012)
180 STATUS REPORT of Defendants by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit(s) Index, # 2 Exhibit(s) 98, # 3 Exhibit(s) 99, # 4 Placeholder for Exhibit 100 (filed under seal), # 5 Exhibit(s) 101, # 6 Placeholder for Exhibit 102 (filed under seal), # 7 Exhibit(s) 103, # 8 Exhibit(s) 104, # 9 Exhibit(s) 105, # 10 Exhibit(s) 106, # 11 Exhibit(s) 107, # 12 Placeholder for Exhibit 108 (filed under seal), # 13 Exhibit(s) 109, # 14 Placeholder for Exhibits 110−111B (filed under seal)) SEALED DOCUMENTS RECEIVED IN CLERKS OFFICE ON 11/20/12. (Alpert, Steven) Modified on 11/20/2012 (akl). (Entered: 11/19/2012)
181 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 180 Status Report,, (for Exhibits 100, 102, 108, 110, and 111A−111B − filed under seal) (Alpert, Steven) (Entered: 11/19/2012)
182 ORDER. Pursuant to and under the terms of the Order of August 7, 2012, the Clerk shall forthwith issue a check to David Ferleger in the amount of $11,362.23 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 11/21/2012. (Attachments: # 1 Attachment)(BJS) (Entered: 11/21/2012)
183 THIRD REPORT TO THE COURT: Amendments to the Settlement Agreement. (BJS) (Entered: 11/21/2012)
184 LETTER from Judge Donovan W. Frank re Mr. Ferleger's Letter dated November 15, 2012. (BJS) Modified text on 11/21/2012 (lmb). (Entered: 11/21/2012)
185 RECEIPT: Received from Richard D. Sletten, Clerk of the United States District Court, District of Minnesota; check number 1339 in the amount of eleven thousand three hundred sixty two dollars and twenty three cents ($11,362.23). Said check is issued pursuant to the court's order in the above matter. (MMP) Modified TEXT on 12/4/2012 (MMP). DOCUMENT QC'd by KT on 12/4/12. (KT) (Entered: 12/04/2012)

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186 MEMORANDUM TO THE COURT REGARDING DECEMBER 11, 2012 STATUS CONFERENCE. (BJS) (Entered: 12/07/2012)
187 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 12/11/2012. Written order to issue. (Court Reporter NA) (BJS) (Entered: 12/17/2012)
188 ORDER AND MEMORANDUM. Consistent with its remarks at the December 11, 2012 Status Conference, the Court respectfully directs the parties to participate in a conference on January 14−15, 2013, to allow ample time, in consultation with David Ferleger, to address a number of issues relating to the status of Defendants' compliance with the Settlement Agreement including, but not limited, to the following: (see Order).(Written Opinion). Signed by Judge Donovan W. Frank on 12/20/2012. (Attachments: # 1 Attachment A)(BJS) (Entered: 12/20/2012)
189 STIPULATION for Second Amended Protective Order by Darren Allen, Douglas Bratvold, James Brinker, Clinical Director, Director, Elizabeth Jacobs, James Jensen, Lorie Jensen, Minnesota Department of Human Services, Minnesota, State of. (Santos, Margaret) (Entered: 12/20/2012)
190 SECOND AMENDED PROTECTIVE ORDER re 189 Stipulation, filed by James Brinker, James Jensen, Minnesota Department of Human Services, Minnesota, State of, Clinical Director, Darren Allen, Director, Douglas Bratvold, Lorie Jensen, Elizabeth Jacobs. Signed by Judge Donovan W. Frank on 12/21/2012. (rlb) (Entered: 12/21/2012)
191 ORDER. 1. Consistent with the Court's original order of August 7, 2012, the Clerk of District Court shall issue a check to David Ferleger in the amount of $15,630.62 drawn on this litigation's Registry account. 2. The Department of Human Services (DHS) shall issue a check to David Ferleger in the amount of $3,438.96 which represents the difference between the time and expense billed by Mr. Ferleger of $19,069.58 and the remainder of the $50,000−−$15,630.62.(Written Opinion). Signed by Judge Donovan W. Frank on 1/9/2013. (Attachments: # 1 Attachment A)(BJS) (Entered: 01/09/2013)
192 LETTER from Judge Donovan W. Frank to Counsel. (BJS) (Entered: 01/09/2013)
193 STATUS REPORT of Defendants by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit(s) Index, # 2 Exhibit(s) 112, # 3 Exhibit(s) 113, # 4 Placeholder for Exhibits 114−115 (filed under seal), # 5 Placeholder for 116A (filed under seal), # 6 Placeholder for 116B (filed under seal), # 7 Exhibit(s) 117, # 8 Placeholder for Exhibit 118 (filed under seal), # 9 Exhibit(s) 119, # 10 Placeholder for Exhibit 120 (filed under seal), # 11 Placeholder for Exhibit 121 (filed under seal))(Alpert, Steven) SEALED DOCUMENT RECEIVED IN CLERKS OFFICE ON 1/22/2013 (GMO). (Entered: 01/18/2013)
194 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 193 Status Report. (Alpert, Steven) (Entered: 01/18/2013)
195 ORDER. Pursuant to the Stipulated Class Action Settlement Agreement in the above−referenced matter, the Clerk of District Court shall issue a check to Joseph Marvin in the amount of $12,200, plus any interest remaining in the account, drawn on this litigations Registry account. The 14−day waiting period for disbursement of these funds is hereby waived. Signed by Judge Donovan W. Frank on 1/23/2013. (BJS) (Entered: 01/23/2013)
196 LETTER from Judge Donovan W. Frank to Counsel and Interested Parties. (BJS) (Entered: 01/23/2013)
200 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 1/24/2013. (Court Reporter NA) (BJS) (Entered: 02/11/2013)
197 RECEIPT check number 1343 in the amount of $15,630.62. (jam) DOCUMENT QC'd by KT on 2/1/13. (KT) (Entered: 01/30/2013)
198 MONITOR'S RESPONSE TO COURT'S JANUARY 23, 2013 LETTER (Dkt. 196 ). (Attachments: # 1 Plaintiffs' letter of January 29, 2013, # 2 Defendants' letter of January 30, 2013, # 3 Examples of Defendants' Self−Report of Incomplete or "In Process" Compliance)(BJS) (Entered: 02/04/2013)

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199 ADDITIONAL DOCUMENT TO MONITOR'S RESPONSE TO COURT'S JANUARY 23, 2013 LETTER (Dkt 196 ). (Attachments: # 1 DHS February 1, 2013 Correction Order, Cambridge)(BJS) (Entered: 02/05/2013)
201 Check number 1346 in the amount of $12,216.07. (jam) Document QC'd on 3/6/2013 (GMW). (Entered: 02/26/2013)
202 STATUS REPORT (of Defendants) by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit(s) Index, # 2 Exhibit(s) 122A, # 3 Exhibit(s) 122B, # 4 Placeholder for Exhibit 122C (filed under seal), # 5 Exhibit(s) 122D, # 6 Exhibit(s) 123, # 7 Exhibit(s) 124, # 8 Placeholder for Exhibits 125−129C (filed under seal), # 9 Exhibit(s) Exhibit 130, # 10 Placeholder for Exhibit 131, # 11 Exhibit(s) 132, # 12 Exhibit(s) 133, # 13 Placeholder for Exhibit 134, # 14 Certificate of Service)(Alpert, Steven) DOCUMENTS RECEIVED IN CLERKS OFFICE ON 3/19/13. Modified on 3/19/2013 (GMW). (Entered: 03/18/2013)
203 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 202 Status Report,, (Amended Cerificate of Service) (Alpert, Steven) (Entered: 03/19/2013)
204 ORDER AND MEMORANDUM. 1. The Minnesota Department of Human Services (MDHS) is respectfully ordered to issue a check to David Ferleger in the amount of $13,753.86. 2. Consistent with the memorandum attached hereto, the Court respectfully directs the parties to submit within 14 days a proposed budget for David Ferleger that also addresses his role. In the event that the parties are unable to agree to the scope of the role and responsibilities of Mr. Ferleger and/or a budget, the Court will enter an order upon receipt of the submissions of counsel and a response from David Ferleger.(Written Opinion). Signed by Judge Donovan W. Frank on 3/19/2013. (BJS) (Entered: 03/19/2013)
205 ORDER AND MEMORANDUM. 1. Status Conference: By this Order, the Court will respectfully direct Brenda Schaffer, the Court's Calendar Clerk, to set up a chambers conference for all counsel and to verify with respective counsel who should and will be in attendance at the conference. 2. In the context of the issue of noncompliance with the original Settlement Agreement (Doc. No. 104), the Court respectfully declines, absent further order of the Court, to modify the role of David Ferleger or to otherwise approve the stipulation of the parties at this time. However, once the Court has had an opportunity to meet with counsel for each party and has established the role of Mr. Ferleger (with or without agreement of the parties), the Court then expects Deputy Commissioner Ann Barry and David Ferleger to meet and to utilize their best efforts to agree on a budget for David Ferleger. Moreover, the Court intends to inform the parties at the status conference that given the status of the case, including the issues of noncompliance, the focus of David Ferleger will be to evaluate compliance and noncompliance issues vis−−vis a mediation approach. Consequently, with or without agreement of the parties, the Court will establish the role and function of David Ferleger, as well as establish the budget for his services, if the parties are unable to reach an agreement.3. The Court expressly reserves the right to request the assistance of the United States Department of Justice, Civil Rights Division, with respect to compliance issues with the Settlement Agreement and the Orders of this Court. (Written Opinion). Signed by Judge Donovan W. Frank on 3/19/2013. (BJS) (Entered: 03/19/2013)
206 *TEXT ONLY ENTRY* NOTICE of Setting Hearing: Chambers Status Conference set for 3/25/2013 08:00 AM in Chambers 724 (STP) before Judge Donovan W. Frank. (BJS) (Entered: 03/20/2013)
207 Minute Entry for proceedings held before Judge Donovan W. Frank: Chambers Status Conference held on 3/25/2013. (Court Reporter NA) (BJS) (Entered: 03/26/2013)
208 MONITOR RESPONSE TO ORDER OF MARCH 19, 2013. (Attachments: # 1 Attachment A, # 2 Attachment B)(BJS) (Entered: 04/08/2013)
209 ORDER. 1. The Joint Motion for Negotiated Attorneys' Fees to Class Counsel is hereby GRANTED. 2. This Motion resolves the claims for attorneys fees, costs, and disbursements made and incurred by Plaintiffs, on behalf of the Settlement Class, and represents the full and final settlement of attorneys fees, costs, and disbursements related to issues of concern and non−compliance raised by Plaintiffs, on behalf of the

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Settlement Class, with regard to the Settlement Agreement through disposition of the Settlement Agreement or the above−captioned matter, whichever comes later, except for requests or claims for reimbursement of attorneys fees, costs, and disbursements incurred from the date of this Order due to proven intentional or willful conduct in violation of the Settlement Agreement from the date of this Order and past proven intentional or willful conduct in violation of the Settlement Agreement of which Plaintiffs were not previously expressly made aware. 3. The notice requirements of Rule 23(h) of the Federal Rules of Civil procedure are not necessary and would be unduly burdensome in these circumstances where the negotiated attorneys' fees are sought in connection with post−settlement activities relating to non−monetary provisions of the Settlement Agreement and do not have any effect on the amounts awarded to Class Members by the Court. 4. Within ten (10) days of the date of this Order, the State Defendants shall pay Eighty−Five Thousand and 0/100 ($85,000) to the law firm of O'Meara, Leer, Wagner & Kohl, P.A. as Settlement Class Counsel in this matter. Signed by Judge Donovan W. Frank on 4/8/2013. (BJS) (Entered: 04/08/2013)
210 NOTICE OF ATTORNEY APPEARANCE/SUBSTITUTION for Minnesota Department of Human Services, Minnesota, State of. (Ikeda, Scott) (Entered: 04/11/2013)
211 ORDER AND MEMORANDUM. 1. Role of David Ferleger. The external reviewer function, as set forth in the Stipulated Class Action Settlement Agreement at paragraph VII.B (External Reviewer) will be subsumed within the Monitor's role as originally set forth in the Court's July 17, 2012 Order, at which time the Court appointed David Ferleger as the Court's independent consultant and monitor. 2. Monitor's Investigation and Reports. The Monitor will independently investigate, verify, and report on compliance with the Settlement Agreement and the policies set forth therein on a quarterly basis. Those quarterly reports shall inform the Court and the parties whether the Monitor believes, based upon his investigation, without relying on the conclusion of the DHS, that Defendants are in substantial compliance with the Settlement Agreement and the policies set forth therein. The Court expects the reports to set forth the factual basis for any recommendations and conclusions. Further, the reports shall set forth whether the DHS is operating consistent with the best practices pursuant to the Settlement Agreement. Consequently, the Court respectfully declines to accept the parties' stipulation to limit the role of the Monitor. (See Order for additional details.) Signed by Judge Donovan W. Frank on 4/23/2013. (BJS) (Entered: 04/23/2013)
212 AMENDED ORDER AND MEMORANDUM. (Please note there are no substantive changes to this amended order; only minor typographical errors have been corrected.) 1. Role of David Ferleger. The external reviewer function, as set forth in the Stipulated Class Action Settlement Agreement at paragraph VII.B (External Reviewer) will be subsumed within the Monitor's role as originally set forth in the Court's July 17, 2012 Order, at which time the Court appointed David Ferleger as the Court's independent consultant and monitor. 2. Monitor's Investigation and Reports. The Monitor will independently investigate, verify, and report on compliance with the Settlement Agreement and the policies set forth therein on a quarterly basis. Those quarterly reports shall inform the Court and the parties whether the Monitor believes, based upon his investigation, without relying on the conclusion of the DHS, that Defendants are in substantial compliance with the Settlement Agreement and the policies set forth therein. The Court expects the reports to set forth the factual basis for any recommendations and conclusions. Further, the reports shall set forth whether the DHS is operating consistent with the best practices pursuant to the Settlement Agreement. Consequently, the Court respectfully declines to accept the parties' stipulation to limit the role of the Monitor. (See Order for additional details.)(Written Opinion). Signed by Judge Donovan W. Frank on 4/25/2013. (BJS) Modified on 4/26/2013 (akl). (Entered: 04/25/2013)
213 ORDER (Re Court Monitor Budget). Signed by Judge Donovan W. Frank on 05/24/2013. (rlb) (Entered: 05/24/2013)
214 ORDER. The Department of Human Services ("DHS") shall forthwith issue a check to David Ferleger in the amount of $13,753.86 in payment of his Invoice for the period December 13, 2012 to February 7, 2013. (Written Opinion). Signed by Judge Donovan W. Frank on 5/29/2013. (Attachments: # 1 Attachment A)(BJS) (Entered: 05/29/2013)

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215 ORDER. The Department of Human Services ("DHS") shall forthwith issue a check to David Ferleger in the amount of $12,119.30 in payment of his Invoice for the period February 11 − April 22, 2013. (Written Opinion). Signed by Judge Donovan W. Frank on 5/29/2013. (Attachments: # 1 Attachment A)(BJS) Modified docket text on 5/30/2013 (TSS). (Entered: 05/29/2013)
216 RECEIPT number 44641073017 in the amount of $135,000.00 issued to State of Minnesota. (jam)DOCUMENT QC'D ON 6/11/13 LGL Modified on 6/11/2013 (LGL). (Entered: 06/07/2013)
217 STATUS REPORT ON COMPLIANCE by Independent Consultant and Monitor by David Ferleger. (Attachments: # 1 Exhibit(s) 1−7, # 2 Exhibit(s) 8−15)(BJS) (Entered: 06/11/2013)
218 ORDER. Pursuant to and under the terms of the Order of August 7, 2012, the Clerk shall forthwith issue a check to David Ferleger in the amount of $58,259.15 draw on this litigation's Registry account for the period April 23 May 30, 2013.Signed by Judge Donovan W. Frank on 6/25/2013. (Attachments: # 1 Attachment A)(BJS) (Entered: 06/26/2013)
219 MONITOR'S NOTICE OF FILING OF RULE 40 COMMITTEE RECOMMENDATIONS. (Attachments: # 1 Attachment A)(BJS) (Entered: 08/02/2013)
220 LETTER from Judge Donovan W. Frank dated August 5, 2013, to Court Monitor David Ferleger. (BJS) (Entered: 08/05/2013)
221 ORDER. Pursuant to and under the terms of the Order of August 7, 2012, the Clerk shall forthwith issue a check to David Ferleger in the amount of $20,456.71 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 8/6/2013. (Attachments: # 1 Attachment A)(BJS) (Entered: 08/06/2013)
222 LETTER to Parties from Independent Consultant and Monitor David Ferleger Regarding Rule 40, 245D and Waiver Amendments. (BJS) (Entered: 08/20/2013)
223 ORDER AND MEMORANDUM. The Court, having been advised by the Court Monitor that the parties have agreed that the Courts retention of jurisdiction over the above−entitled matter may be extended for an additional year to December 4, 2014, beyond the current December 4, 2013 date, pursuant to Section XVIII.B. of the Settlement Agreement, the Court hereby extends its jurisdiction over this matter to December 4, 2014. However, the Court expressly reserves the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of compliance by the Defendants with the specific provisions of the Settlement Agreement, absent stipulation of the parties. (See Order for additional details.) (Written Opinion) Signed by Judge Donovan W. Frank on 8/27/2013. (BJS) (Entered: 08/27/2013)
224 AMENDED ORDER AND MEMORANDUM. (Please note there are no substantive changes to this amended order; only minor typographical errors have been corrected.) The Court, having been advised by the Court Monitor that the parties have agreed that the Courts retention of jurisdiction over the above−entitled matter may be extended for an additional year to December 4, 2014, beyond the current December 4, 2013 date, pursuant to Section XVIII.B. of the Settlement Agreement, the Court hereby extends its jurisdiction over this matter to December 4, 2014. However, the Court expressly reserves the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of compliance by the Defendants with the specific provisions of the Settlement Agreement, absent stipulation of the parties. (See Order for additional details.) (Written Opinion.) Signed by Judge Donovan W. Frank on 08/28/2013. (RLB) (Entered: 08/28/2013)
225 RECEIPT number 00407366 in the amount of $20,456.71. (jam)DOCUMENT QC'D ON 9/4/13 LGL Modified on 9/4/2013 (LGL). (Entered: 09/03/2013)
226 RECOMMENDATION TO THE PARTIES: Transition Planning and the Re−Purposing of MSHS−Cambridge by David Ferleger, Court Monitor, September 23, 2013. (BJS) (Entered: 09/23/2013)

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227 ORDER ON MONITOR COST. 1. The Court has jurisdiction over the subject matter of this action, the parties, and the class. 2. All fees and costs incurred by the Court Monitor (including, but not limited to, expert and administrative staff fees and costs) in carrying out his responsibilities for the period September 1, 2013, through May 31, 2014, shall not exceed $477,870. 3. The budget cap for the period June 1, 2014, through December 4, 2014, shall be determined in the spring 2014 after discussion between the Court Monitor and the Deputy Commissioner. 4. The Court Monitor shall submit all costs and fees, and the parties shall reserve all rights to review and object to the same, in accordance with the process set forth in the Court's Order, dated August 7, 2012 (Doc. No. 160). 5. The Department shall deposit a lump sum of $477,870 ("Deposit") with the Court's registry within 10 business days of entry of this Order. Disbursements of funds from the same to the Court Monitor will be made pursuant to the process set forth in the Court's Order, dated August 7, 2012 (Doc. No. 160). 6. Within a reasonable time following December 4, 2014, the Court shall issue a check to the Department for any remaining Deposit funds held in the Court's registry. 7. The Court Monitor and Department recognize the possibility that the Court could change the Court Monitor's role and/or responsibilities in calendar year 2013 or 2014. The above terms are not meant to bind the Court, but rather reflect the Department's and Court Monitor's agreement on budget terms with respect to the Court Monitor's current role and responsibilities. Should the Court change the Court Monitor's role and/or responsibilities, the Court Monitor and Department expressly reserve and do not waive their legal rights. Signed by Judge Donovan W. Frank on 9/24/2013. (BJS) (Entered: 09/24/2013)
228 ORDER. 1. Each Class Member or their guardian shall, within two weeks of receipt of this Order, send a letter to the Court at the following address: Honorable Donovan W. Frank, United States District Judge, 724 Warren E. Burger Federal Building, And United States Courthouse, 316 North Robert Street, St. Paul, MN 55101, documenting specifically how their class action settlement money has been expended. Hopefully, the letters will document that the money was spent consistent with its intended purpose in the settlement, namely, "solely for the benefit of the Class Member" to ensure that the funds improved the quality of life of each respective Class Member. Signed by Judge Donovan W. Frank on 9/24/2013. (Attachments: # 1 Exhibit A)(BJS) (Entered: 09/24/2013)
229 RECEIPT number 4464107821 in the amount of $477,870.00 issued to State of Minnesota. (jam)DOCUMENT QC'D ON 9/27/13 LGL Modified on 9/27/2013 (LGL). (Entered: 09/26/2013)
230 MOTION for Sanctions by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Santos, Margaret) (Entered: 10/07/2013)
231 NOTICE OF HEARING ON MOTION 230 MOTION for Sanctions : Motion Hearing set for 11/18/2013 01:30 PM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Santos, Margaret) (Entered: 10/07/2013)
232 MEMORANDUM in Support re 230 MOTION for Sanctions filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Santos, Margaret) (Entered: 10/07/2013)
233 AFFIDAVIT of Shamus P. O'Meara in SUPPORT OF 230 MOTION for Sanctions filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2−6, # 3 Exhibit(s) 7−13, # 4 Exhibit(s) 14−21)(Santos, Margaret) (Entered: 10/07/2013)
234 ORDER. Pursuant to and under the terms of the Order of August 7, 2012, the Clerk shall forthwith issue a check to David Ferleger in the amount of $15,140.29 drawn on this litigation's Registry account for the period July 19−September 23, 2013. Signed by Judge Donovan W. Frank on 10/16/2013. (Attachments: # 1 Attachment A)(RLB) (Entered: 10/16/2013)
235 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services as requested by the Court. (Attachments: # 1 copy of 10/15/13 letter to the Court, # 2 Proposed Implementation Plan dated 10/15/13, # 3 Proposed Implementation Plan Chronological Timetable dated 10/15/13, # 4 Implementation Plan Narrative dated 10/15/13)(Alpert, Steven) (Entered: 10/17/2013)

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236 Restraint Chair and Seclusion Use at AMRTC and MSH: Phase 1 Review. Signed by David Ferleger, Court Monitor on 10/17/2013. (RLB) (Entered: 10/17/2013)
237 ORDER re finalization of the Department of Human Services Implementation Plan for the Settlement Agreement Evaluation Criteria and Cambridge Closure. (See Order for details.) Signed by Judge Donovan W. Frank on 10/17/2013. (RLB) (Entered: 10/17/2013)
238 TEXT ONLY NOTICE OF HEARING ON MOTION 230 MOTION for Sanctions : Motion Hearing now set for 11/25/2013 01:30 PM in Courtroom 7C (STP) before Judge Donovan W. Frank. (BJS) (Entered: 10/23/2013)
239 ORDER. The Court Monitor shall have access to, and shall be permitted access to, the patient/client records of individuals served by the Minnesota Department of Human Services and the programs and services which it operates, regulates, licenses or funds.6 This access includes, but is not limited to, records of substance abuse treatment. Signed by Judge Donovan W. Frank on 10/23/2013. (Attachments: # 1 Appendix A)(BJS) (Entered: 10/24/2013)
240 RECEIPT number 00410924 in the amount of $15140.29. (jam)DOCUMENT QC'D ON 10/29/13 LGL Modified on 10/29/2013 (LGL). (Entered: 10/28/2013)
241 MEMORANDUM in Opposition re 230 MOTION for Sanctions filed by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Ikeda, Scott) (Entered: 10/28/2013)
242 AFFIDAVIT of Scott H. Ikeda in OPPOSITION TO 230 MOTION for Sanctions filed by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit(s) A−B)(Ikeda, Scott) (Entered: 10/28/2013)
243 AFFIDAVIT of Christina Baltes in OPPOSITION TO 230 MOTION for Sanctions filed by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit(s) A−D)(Ikeda, Scott) (Entered: 10/28/2013)
244 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Attachments: # 1 Cover Letter from Deputy Commissioner Anne Barry, # 2 Rule 40 Implementation Plan (proposed), # 3 Rule 40 Implementation Plan Project Staff (proposed), # 4 Rule 40 Implementation Plan Acronyms (proposed), # 5 Rule 40 Implementation Plan Chronological Timetable (proposed))(Alpert, Steven) (Entered: 10/30/2013)
245 NOTICE OF HEARING ON MOTION 230 MOTION for Sanctions : Motion Hearing set for 11/25/2013 will now start at 02:00 PM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Please note this new start time.)(BJS) (Entered: 10/31/2013)
246 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Attachments: # 1 Minnesota Olmstead Plan)(Alpert, Steven) (Entered: 10/31/2013)
247 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Attachments: # 1 Minnesota's 2013 Olmstead Plan)(Alpert, Steven) (Entered: 10/31/2013)
248 ORDER. 1. The Court Monitor's request is GRANTED. He shall have the responsibility and authority to finalize the Department of Human Services Plan for the Settlement Agreement Evaluation Rule 40 Modernization ("Plan") which was timely submitted by DHS on October 30, 2013 (Doc. No. 244) pursuant to the Order of August 28, 2013. The Court Monitor may utilize the assistance of one or more consultants. 2. The Court Monitor shall implement this order in cooperation with Deputy Commissioner Anne Barry, who shall ensure the availability of appropriate DHS staff and the provision of documents and other resources requested by the Court Monitor or his consultants. The Court Monitor has also committed to permitting the participation in this process of Plaintiff Class Counsel, and the consultants to the parties, Ms. Roberta Opheim and Dr. Colleen Wieck. Signed by Judge Donovan W. Frank on 11/1/2013. (BJS) (Entered: 11/01/2013)
249 REPLY re 230 MOTION for Sanctions filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 LR7.1/LR72.2 Word

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Count Compliance Certificate)(Santos, Margaret) (Entered: 11/07/2013)
250 Supplemental Declaration of Shamus P. O'Meara in Support of 249 Reply filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) 22−26, # 2 Exhibit(s) 27−31). (Santos, Margaret) Modified text on 11/8/2013 (lmb). (Entered: 11/07/2013)
251 REPORT TO THE COURT, Client RW: AWOL v. Transitioned to the Community by Independent Consultant and Monitor by David Ferleger. (BJS) (Entered: 11/12/2013)
252 ORDER. Pursuant to and under the terms of the Order of August 7, 2012, the Clerk shall forthwith issue a check to David Ferleger in the amount of $51,341.13 drawn on this litigations Registry account. Signed by Judge Donovan W. Frank on 11/18/2013. (Attachments: # 1 Attachment A)(BJS) (Entered: 11/19/2013)
253 Minute Entry for proceedings held before Judge Donovan W. Frank: Motion Hearing held on 11/25/2013 re 230 MOTION for Sanctions filed by James Brinker, James Jensen, Lorie Jensen, Elizabeth Jacobs, Darren Allen. Matter under advisement; written order to issue.(Court Reporter Jeanne Anderson) (BJS) (Entered: 11/26/2013)
254 REPORT TO THE COURT: Comprehensive Plan of Action by Independent Consultant and Monitor by David Ferleger. (BJS) (Entered: 11/27/2013)
255 RECEIPT number 00412458 in the amount of $51,341.13. (jam)DOCUMENT QC'D ON 11/27/13 LGL Modified on 11/27/2013 (LGL). (Entered: 11/27/2013)
256 REPORT TO THE COURT: Recommended Revision To MSHS−Cambridge Restraint Policy by David Ferleger, Court Monitor. (BJS) (Entered: 12/06/2013)
257 ORDER. 1. The revision to Attachment A, set forth in the attachment to this Order, is hereby APPROVED and ADOPTED by the Court and shall be implemented by Defendants. 2. All current and future staff be specially trained in the revisions to Attachment A, including staff at MSHS−Cambridge and its successor programs. For current staff, the training shall be completed within thirty (30) days of this Order. Defendants shall provide the Court Monitor with an advance written summary of the training curriculum and methods, for his approval. For the current staff, sign−in sheets showing that all staff have been trained shall be provided to the Court Monitor. The training shall be in−person and didactic and shall not consist merely of a sign−off of receipt of the policy. Signed by Judge Donovan W. Frank on 12/11/2013. (Attachments: # 1 Attachment A)(BJS) (Entered: 12/11/2013)
258 ORDER. Before the Court is a memorandum from Court Montior David Ferleger (the Monitor) to Deputy Commissioner Anne Barry, Department of Human Services (the DHS), dated December 10, 2013, entitled, Injury and Hospitalization of Class Member SAB Request for Further Information. The memorandum was prompted by notice from the DHS that class member SAB was admitted to Anoka Metro Regional Treatment Center on September 2, 2013. He is currently hospitalized at Mercy Hospital after an emergency room visit with a diagnosis of [c]ontusion of ribs. The DHS also references SAB having post−operative complications in the form of bowel obstruction and acute kidney injury. The Monitor informed the DHS that SAB's stepmother believes that the extent of injury could well have been caused by a punch or assault and that she reported her concern to the police. The Monitor requests certain information from DHS on the above situation and on prior incidents regarding SAB involving reported falls, self−injury, aggression, and assaults. The Court expects the DHS to thoroughly consider this situation, including whether the individuals and institutions involved are mandatory reporters pursuant to Minn. Stat. § 626.557, with regard to possible abuse (causing the injury which led to SAB's hospitalization) and possible neglect (whether prior falls and self−injury were the result of lack of appropriate treatment and programs), and to report its findings to the Monitor promptly. The Court requests that the DHS provide SABs stepmother with a copy of this Order. Upon receipt of the DHS's findings, the Court requests that the Monitor advise the Court further. Signed by Judge Donovan W. Frank on 12/12/2013. (BJS) (Entered: 12/12/2013)
259 MEMORANDUM AND ORDER. 1. The Court finds and concludes that Plaintiffs' Motion for Sanctions (Doc. No. 230 ) is GRANTED. However, for the reasons stated off the bench at the time of the hearing and in this Memorandum and Order, the Court reserves ruling on what sanctions are appropriate, pending receipt of the status of

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compliance by Defendants and the status of the implementation plan required by this Court, noted in the Court's Memorandum and Order. (Written Opinion). Signed by Judge Donovan W. Frank on 12/17/2013. (BJS) (Entered: 12/17/2013)
260 ORDER. Pursuant to and under the terms of the Order of August 7, 2012, the Clerk shall forthwith issue a check to David Ferleger in the amount of $104,787.33 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 12/19/2013. (Attachments: # 1 Attachment A)(BJS) cc: KU/Finance. Modified on 12/19/2013 (lmb). (Entered: 12/19/2013)
261 PARTIES' RESPONSES TO COMPREHENSIVE PLAN OF ACTION submitted by Independent Consultant and Monitor David Ferleger. (BJS) (Entered: 12/20/2013)
262 LETTER TO COURT Regarding Comprehensive Plan of Action from David L. Ferleger. (BJS) (Entered: 12/20/2013)
264 RECEIPT re: check number 00414335 in the amount of $104,787.33. (las) DOCUMENT QC'D ON 1/14/14 LGL Modified on 1/14/2014 (LGL). (Entered: 01/07/2014)
263 REPORT TO THE COURT: Minnesota's 2013 Olmstead Plan by Independent Consultant and Monitor David Ferleger. (BJS) Modified on 1/3/2014 (akl). (Entered: 01/02/2014)
265 ORDER (see Order for details). (Written Opinion.) Signed by Judge Donovan W. Frank on 01/22/2014. (RLB) (Entered: 01/22/2014)
266 ORDER (see Order for details). (Written Opinion.) Signed by Judge Donovan W. Frank on 01/22/2014. (RLB) (Entered: 01/22/2014)
267 ORDER. The Clerk shall forthwith issue a check to David Ferleger in the amount of $16,110.50 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 1/28/2014. (Attachments: # 1 Attachment A)(BJS) (Entered: 01/28/2014)
268 NOTICE of Filing of Official Transcript. This filing has 1 transcript(s) associated with it. (JMA) (Entered: 01/28/2014)
269 TRANSCRIPT of Plaintiffs' Motion for Sanctions Hearing held on 11/25/2013 before Judge Donovan W. Frank. (64 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov. Telephone: (651) 848−1221). Redaction Request due 2/18/2014. Redacted Transcript Deadline set for 2/28/2014. Release of Transcript Restriction set for 4/28/2014. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 01/28/2014)
270 RECEIPT Re: Check Number 00416137 in the amount of $16,110.50. (las) DOCUMENT QC'D ON 2/20/14 LGL Modified on 2/20/2014 (LGL). (Entered: 02/10/2014)
271 REPORT TO THE COURT: Adoption of Comprehensive Plan of Action, submitted by Independent Consultant and Monitor David Ferleger. (Attachments: # 1 Attachment − Comprehensive Plan of Action)(BJS) (Entered: 02/13/2014)
272 RECOMMENDATIONS TO THE PARTIES: Staff Training on Federal Final Rule for Home and Community−Based Services (HCBS) Settings. Submitted by David Ferleger, Independent Consultant and Monitor. (BJS) (Entered: 02/18/2014)
273 MEMORANDUM TO THE COURT submitted by Independent Consultant and Monitor David Ferleger. (BJS) (Entered: 02/19/2014)
274 Cover Letter Re Comments Regarding Minnesota's Olmstead Plan signed by Colleen Wieck, Executive Director. (Attachments: # 1 Minnesota Governor's Council on Developmental Disabilities Executive Director Feedback on Minnesota's Olmstead PlanAttachment, # 2 Attachment #1 to Feedback)(BJS) Modified on 2/25/2014 (kt). (Entered: 02/24/2014)
275 Office of Ombudsman for Mental Health and Developmental Disabilities Comments on Minnesota's Olmstead Plan signed by Roberta C. Opheim, Ombudsman. (BJS) Modified on 2/25/2014 (kt). (Entered: 02/24/2014)

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276 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen Regarding Plaintiffs' Response to Proposed Olmstead Plan. (Attachments: # 1 Exhibit(s) (Plaintiff's 10−22−13 Letter to Court Monitor))(Azman, Mark) (Entered: 02/25/2014)
277 ORDER. Pursuant to and under the terms of the Order of August 7, 2012, the Clerk shall forthwith issue a check to David Ferleger in the amount of $34,570.08 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 3/3/2014. (Attachments: # 1 Attachment A)(BJS) cc: KU/Financial; TSS. Modified on 3/4/2014 (lmb). (Entered: 03/04/2014)
278 NOTICE of Withdrawal as Attorney Margaret Ann Santos (Azman, Mark) (Entered: 03/06/2014)
279 ORDER CONFIRMING REVISION TO ORDER OF DECEMBER 11, 2013. The Court issued its Order of December 11, 2013 (Doc. No. 257), accepting the parties' agreed revision to the MSHS−Cambridge restraint policy. See Court Monitor, Report to the Court: Recommended Revision to MSHS−Cambridge Restraint Policy (December 6, 2013), (Doc. No. 256). The order's Attachment A, the revised policy, is marked with a December 4, 2013 effective date. The Court Monitor's report noted that the Department of Human Service's response to the draft report provided that, "The time for exercise [while in manual restraint] would be changed to 5 minutes out of every 20 minutes." The Court Monitor stated, "The Monitor assumes that the 20 minutes is intended to mean 15 minutes and this will be corrected. (emphasis added in both sentences). MSHS−Cambridge did make that correction, and adopted a superseding policy effective December 20, 2013, marked in Attachment A to this filing at page 6. The Court Monitor recently received this corrected policy. For clarity in the docket, and to avoid confusion in implementation, the Court Monitor requested the Court to approve and adopt the revision to conform to the expectations in the Court Monitor's report. Upon consideration of the Court Monitor's suggested confirming revision of the Order of December 11, 2013 (Doc. No. 257 ), IT IS HEREBY ORDERED that ATTACHMENT A hereto is SUBSTITUTED for the ATTACHMENT A to the said order. Signed by Judge Donovan W. Frank on 3/7/2014. (Attachments: # 1 Attachment A)(BJS) (Entered: 03/10/2014)
280 DOCUMENT FILED IN ERROR: WILL REFILE. AMENDED COMPREHENSIVE PLAN OF ACTION (This amends the prior Plan filed as Attachment 1 to the Report filed at Doc. No. 271 ). (BJS) Modified on 3/11/2014 (kt). (Entered: 03/11/2014)
281 DOCUMENT FILED IN ERROR: WILL REFILE. ORDER. 1. The Court Monitor's Report to the Court: Adoption of Comprehensive Plan of Action (February 13, 2013) (Doc. No. 271) ("Report") and Amended Comprehensive Plan of Action ("CPA") (Doc. No. 280) are hereby ADOPTED and APPROVED. Defendants, their officials, staff, agents, and all of those acting in concert with them, shall comply with the CPA. (See Order for additional information.) Signed by Judge Donovan W. Frank on 03/11/2014. (BJS) Modified on 3/11/2014 (kt). (Entered: 03/11/2014)
282 RECEIPT for check number 00417846 in the amount of $34,570.08. (jz) DOCUMENT QC'D ON 3/11/14 LGLModified on 3/11/2014 (LGL). (Entered: 03/11/2014)
283 SECOND AMENDED COMPREHENSIVE PLAN OF ACTION (This amends the prior Plan filed as Attachment 1 to the Report filed at Doc. No. 271 .) (BJS) (Entered: 03/12/2014)
284 AMENDED ORDER. 1. The Court Monitor's Report to the Court: Adoption of Comprehensive Plan of Action (February 13, 2013) (Doc. No. 271 ) ("Report") and Second Amended Comprehensive Plan of Action ("CPA") (Doc. No. 283 ) are hereby ADOPTED and APPROVED. Defendants, their officials, staff, agents, and all of those acting in concert with them, shall comply with the CPA. (See Order for additional information.) Signed by Judge Donovan W. Frank on 3/12/2014. (BJS) (Entered: 03/12/2014)
285 REPORT TO THE COURT: Timeliness of Vulnerable Adult Maltreatment Investigations. Submitted by David Ferleger, Independent Consultant and Monitor. (BJS) (Entered: 03/18/2014)

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286 ORDER. 1. The Court Monitor shall submit to the Court on an approximately monthly basis an invoice for fees and expenses with copies to the parties. 2. A party may make an informal objection to an invoice for good cause shown, by providing written notice of the informal objection to the Court Monitor within five (5) days of the invoice, so that an effort may be made with him to resolve the objection. 3. The Court will review invoices and issue appropriate orders for payment from the Court's Registry. If no objection is filed by a party with the Court within ten (10) days of the date of the invoice, any objection to the invoice shall be considered permanently waived. 4. By agreement, the Minnesota Department of Human Services shall make a deposit to the Registry of this Court in the amount of $315,599 on account for the estimated fees and expenses pursuant to this Order. 5. Upon the Court's order determining that the Court Monitors work under its orders has concluded, any balance remaining in the Registry account shall promptly be returned to the Minnesota Department of Human Services. Signed by Judge Donovan W. Frank on 3/19/2014. (BJS) (Entered: 03/19/2014)
287 RECEIPT number 44641077566 in the amount of $315,599.00 issued to State of Minnesota per Order dated 03/19/2014. (las)DOCUMENT QC'D ON 3/25/14 LGL Modified on 3/25/2014 (LGL). (Entered: 03/24/2014)
288 REPORT TO THE COURT: Adoption of Format for Defendants' Compliance Reports. Submitted by David Ferleger, Independent Consultant and Monitor. (BJS) (Entered: 04/03/2014)
289 REPORT re 159 Order, (Defenants' First Compliance Update Report) by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit(s) List, # 2 Placeholder for Exhibits 1−7 (filed under seal))(Alpert, Steven) Sealed document received on 4/11/2014 (JGK). (Entered: 04/11/2014)
290 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 289 Report, (Alpert, Steven) (Entered: 04/11/2014)
291 ORDER. The Clerk shall forthwith issue a check to David Ferleger in the amount of $18,056.54 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 4/14/2014. (Attachments: # 1 Attachment A)(BJS) (Entered: 04/14/2014)
292 ORDER re 285 Report 1. The Minnesota Department of Human Services, within thirty (30) days of the date of this Order, shall advise the Court of actions it will take to improve timeliness of maltreatment investigation reports regarding beneficiaries of the orders of this Court, including, but not limited to, the Olmstead Plan. 2. The Court Monitor may thereafter comment or make recommendations regarding the Minnesota Department of Human Services' submission. Signed by Judge Donovan W. Frank on 4/14/2014. (BJS) (Entered: 04/14/2014)
293 LETTER TO DISTRICT JUDGE with REPORT re 266 Order (First Minnesota Olmstead Subcabinet Report, with Appendices and Exhibits) by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Certificate of Service). (Ikeda, Scott) Modified text on 4/23/2014 (lmb). (Entered: 04/22/2014)
294 MEMORANDUM TO THE COURT: Hazards and Possibilities During MSHS−Cambridge's Final Months. Submitted by David Ferleger, Independent Consultant and Monitor. (RLB) (Entered: 04/23/2014)
295 MEMORANDUM TO THE COURT: Person−Centered Planning Flowchart. Submitted by David Ferleger, Independent Consultant and Monitor. (RLB) (Entered: 04/24/2014)
296 RECEIPT re: check number 00419851 in the amount of $18,056.54. (LAS) (Qc'd on 5/1/14 by akl) (Entered: 04/24/2014)
297 ORDER. The Court has reviewed the Court Monitor's Memorandum to the Court: Hazards and Possibilities During MSHS−Cambridge's Final Months (Doc. No. 294) (Memorandum), and notes his concern that, in the closing months of MSHS−Cambridge's existence, the remaining clients not be 'orphaned' and denied the safety, protection and treatment to which they are entitled under the Court's orders. MSHS−Cambridge's current residents are to move to community homes by June 30, 2014. The Minnesota Department of Human Services has responded to the Court Monitor's inquiries which preceded the Memorandum. Recalling that this litigation was initiated after the 2009 public exposure of inappropriate and abusive force at

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MSHS−Cambridges predecessor METO, the Court is extremely disappointed that, more than two years after the approval of the Settlement Agreement, for some employees, safety is equated with a show of force, power and control in a legacy of the old institutional way and not the direction we [DHS] are headed. Also, DHS has found that, at least for the client highlighted in the Memorandum, staff were not competent and adequately trained in her program and that her program was not being implemented. This state of affairs is fraught with risk to the safety of clients and staff alike. The Court expects the Minnesota Department of Human Services to utilize this opportunity to reinvigorate protections and treatment at MSHS−Cambridge, to ensure settlement−compliant meaningful activity at the facility, and to seriously consider implementation of the Court Monitor's recommendations. Signed by Judge Donovan W. Frank on 4/29/2014. (BJS) Modified text on 4/30/2014 (lmb). (Entered: 04/30/2014)
298 ORDER. 1. Access to Individual and Records. Any county, agency, person or other entity, governmental or non−governmental, and any person working for, or in concert with, such an entity, which serves or has served any person whom the Court Monitor represents to be a review subject, shall permit the Court Monitor to have access to the individual, and to all his or her past and current records, whether paper, electronic, or in any other format. (Please see Order for additional information.) Signed by Judge Donovan W. Frank on 4/29/2014. (BJS) (Entered: 04/30/2014)
299 REPORT re 284 Order, (Defs' Second Compliance Report, filed May 12, 2014) by Minnesota Department of Human Services, Minnesota, State of. (Alpert, Steven) (Entered: 05/12/2014)
300 EXHIBIT re 299 Report (Part 1 − Exs. 8−32 to Defs' Second Compliance Update Report) by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit(s) Index, # 2 Exhibit(s) Placeholder for Exs. 8, 9 (filed under seal), # 3 Exhibit(s) 10, 11, # 4 Exhibit(s) 12, # 5 Exhibit(s) 13, # 6 Exhibit(s) Placeholder for Exs. 14, 15 (filed under seal), # 7 Exhibit(s) 16, # 8 Exhibit(s) 17, # 9 Exhibit(s) 18, 19, 20, 21, 22, 23, # 10 Exhibit(s) 24, # 11 Exhibit(s) 25, 26, 27, 28, 29, 30, # 12 Exhibit(s) Placeholder for Ex. 31 (filed under seal), # 13 Exhibit(s) 32)(Alpert, Steven) Sealed document received on 5/13/2014 (JGK). (Entered: 05/12/2014)
301 EXHIBIT re 299 Report (Part 2 − Exs. 33−72 to Defs' Second Compliance Update Report) by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit(s) Index, # 2 Exhibit(s) 33, # 3 Exhibit(s) Placeholder for Ex. 34 (filed under seal), # 4 Exhibit(s) 35, # 5 Exhibit(s) 36, # 6 Exhibit(s) Plceholder for Exs. 37, 38 (filed under seal), # 7 Exhibit(s) 39, # 8 Exhibit(s) 40, # 9 Exhibit(s) Placeholder for Exs. 40−42 (filed under seal), # 10 Exhibit(s) 43, # 11 Exhibit(s) 44, # 12 Exhibit(s) Placeholder for Exs. 45, 46, 47 (filed under seal), # 13 Exhibit(s) 48, 49, 50, 51, 52, 53, 54, # 14 Exhibit(s) Placeholder for Ex. 55 (filed under seal), # 15 Exhibit(s) 56, 57, 58, 59, 60, 61, 62, # 16 Exhibit(s) Placeholder for Ex. 63 (filed under seal), # 17 Exhibit(s) 64, # 18 Exhibit(s) 65, # 19 Exhibit(s) 66, # 20 Exhibit(s) Placeholder for Ex. 67 (filed under seal), # 21 Exhibit(s) 68, # 22 Exhibit(s) 69, # 23 Exhibit(s) 70, # 24 Exhibit(s) 71, # 25 Exhibit(s) 72)(Alpert, Steven) Sealed document received on 5/13/2014 (JGK). (Entered: 05/12/2014)
302 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 301 Exhibit,,,, 300 Exhibit,, 299 Report (Alpert, Steven) (Entered: 05/12/2014)
303 Olmstead Plan: Resolution of State's Requests for Modifications Nos. 2014−1 through 46 submitted by David Ferleger, Independent Consultant and Court Monitor. (BJS) (Entered: 05/14/2014)
304 ORDER. The Court has received the Court Monitor's report, Olmstead Plan: Resolution of State's Requests for Modifications Nos. 2014−1 through 46 (Doc. No. 303 ). Pursuant to the Court's Order of August 28, 2013 (Doc. No. 224), IT IS HEREBY ORDERED that any party seeking review of any item now resolved in the first instance by the Court Monitor, shall file any objection, with supporting arguments demonstrating good cause, within ten (10) days from the date of this Order. Signed by Judge Donovan W. Frank on 5/14/2014. (BJS) (Entered: 05/14/2014)

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305 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (in Response to Doc. 292). (Alpert, Steven) (Entered: 05/14/2014)
306 Observations Regarding the State of Minnesota's April 22, 2014 Olmstead Plan Update (Dkt. 293) submitted by David Ferleger, Court Monitor.(BJS) (Entered: 05/14/2014)
307 ORDER. Pursuant to and under the terms of the Order of March 19 2014, the Clerk shall forthwith issue a check to David Ferleger in the amount of $37,419.34 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 5/19/2014. (Attachments: # 1 Exhibit A)(BJS) (Entered: 05/19/2014)
308 ORDER. The Court Monitor shall follow up with the Lieutenant Governor, the Subcabinet, the Executive Director of the Olmstead Implementation Office, and other relevant officials from time to time on the issues discussed in this order. Signed by Judge Donovan W. Frank on 5/19/2014. (BJS) (Entered: 05/19/2014)
309 ORDER. 1. The Clerk shall file the Court Monitor's May 29, 2014 Memorandum to the Court. 2. The State and the MDHS shall immediately identify any obstacles which may be preventing D.P.s timely move to the permanent home to which he is entitled under the CPA.3. Pursuant to CPA, EC 48, the State and the MDHS which are obligated to actively pursue[] the appropriate discharge of D.P. and to provide him with adequate and appropriate transition plans, protections, supports and services consistent with [his] individualized needs in the most integrated setting, shall report to the Court Monitor on a weekly basis regarding its actions and progress with respect to D.P. 4. To the extent that there are administrative, funding, regulatory or similar challenges which are impeding D.P.'s timely move to the permanent home to which he is entitled under the CPA, the State and the MDHS shall report those challenges to the Court Monitor weekly, together with the Governments actions to overcome those challenges. 5. To the extent that any action or inaction by counties and provider agencies are impeding D.P.'s timely move to the permanent home to which he is entitled under the CPA, the State and the MDHS shall report such action or inaction to the Court Monitor weekly. This reporting shall be together with the MDHS's action to require compliance by counties and providers through all necessary means within the Department of Human Services authority, including but not limited to incentives, rule, regulation, contract, rate−setting, and withholding of funds. Signed by Judge Donovan W. Frank on 5/30/2014. (BJS) (Entered: 05/30/2014)
310 MEMORANDUM TO THE COURT from David Ferleger, Court Monitor, dated May 29, 2014. (BJS) (Entered: 05/30/2014)
311 Olmstead Plan: Resolution of State's Requests for Modifications Nos. 2014−26 (revised) and 2014−47 through 2014−50. Report filed by David Ferleger, Court Monitor. (BJS) (Entered: 06/18/2014)
312 ORDER. Any party seeking review of any item now resolved in the first instance by the Court Monitor, shall file any objection, with supporting arguments demonstrating good cause, within ten (10) days from the date of this Order. Signed by Judge Donovan W. Frank on 6/18/2014. (BJS) (Entered: 06/18/2014)
313 Report to the Court: Community Compliance Review. Filed by David Ferleger, Court Monitor. (BJS) Sealed Per Judge Donovan W. Frank. Redacted Version filed at Doc. No. 327 . Modified on 7/11/2014 (TSS). (Entered: 06/20/2014)
314 REPORT NO. 2, MINNESOTA OLMSTEAD SUB−CABINET REPORT TO THE COURT by Minnesota Department of Human Services. (Attachments: # 1 Certificate of Service)(Ikeda, Scott) Modified on 6/20/2014 (JAM). (Entered: 06/20/2014)
315 ORDER FOR ACCOUNTING. The Court respectfully directs and requires the guardian for Jason Jacobs, Elizabeth Jacobs, to provide an accounting of the expenditures with respect to the $75,000 received by Jason Jacobs as follows: (See Order for additional details.) Signed by Judge Donovan W. Frank on 6/23/2014. (BJS) (Entered: 06/23/2014)
316 ORDER. Pursuant to and under the terms of the Order of March 19 2014, the Clerk shall forthwith issue a check to David Ferleger in the amount of $70,632.25 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 6/23/2014. (Attachments: # 1 Exhibit(s) A)(BJS) (Entered: 06/24/2014)

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317 MOTION to Alter/Amend/Supplement Pleadings 285 Report STATE DEFENDANTS' MOTION TO AMEND THE COMPREHENSIVE PLAN OF ACTION by Minnesota Department of Human Services, Minnesota, State of. (Alpert, Steven) (Entered: 06/24/2014)
318 NOTICE OF HEARING ON MOTION 317 MOTION to Alter/Amend/Supplement Pleadings 285 Report STATE DEFENDANTS' MOTION TO AMEND THE COMPREHENSIVE PLAN OF ACTION : at date and time to be determined. (Alpert, Steven) (Entered: 06/24/2014)
319 MEMORANDUM in Support re 317 MOTION to Alter/Amend/Supplement Pleadings 285 Report STATE DEFENDANTS' MOTION TO AMEND THE COMPREHENSIVE PLAN OF ACTION filed by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Alpert, Steven) (Entered: 06/24/2014)
320 MEET and CONFER STATEMENT re 317 Motion to Alter/Amend/Supplement Pleadings filed by Minnesota Department of Human Services, Minnesota, State of. (Alpert, Steven) (Entered: 06/24/2014)
321 AFFIDAVIT of DR. TIMOTHY R. MOORE in SUPPORT OF 317 MOTION to Alter/Amend/Supplement Pleadings 285 Report STATE DEFENDANTS' MOTION TO AMEND THE COMPREHENSIVE PLAN OF ACTION filed by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit(s) 1)(Alpert, Steven) (Entered: 06/24/2014)
322 AFFIDAVIT of DR. MARGARET FLETCHER−BOOTH in SUPPORT OF 317 MOTION to Alter/Amend/Supplement Pleadings 285 Report STATE DEFENDANTS' MOTION TO AMEND THE COMPREHENSIVE PLAN OF ACTION filed by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit(s) 1)(Alpert, Steven) (Entered: 06/24/2014)
323 ORDER. The State Defendants' Motion to Amend the Comprehensive Plan of Action (June 24, 2014) (Doc. No. 317 ) is taken under advisement. 4 The Court Monitor shall continue to consult with Defendants on their efforts for D.P.'s move from MSHS−Cambridge. Defendants will continue to report to the Monitor at least weekly or, if he so requests, more often. Signed by Judge Donovan W. Frank on 6/27/2014. (BJS) (Entered: 06/27/2014)
324 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Alpert, Steven) (Entered: 07/03/2014)
325 RECEIPT number 00422942 dated 07/01/2014 in the amount of $70,632.25. (las) (QC'd by akl on 7/10/14) (Entered: 07/08/2014)
326 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Attachments: # 1 Olmstead Plan Proposed Modifications, # 2 Exhibit(s) Summary of Proposed Modifications)(Alpert, Steven) (Entered: 07/10/2014)
327 Report to the Court: Community Compliance Review. Filed by David Ferleger, Court Monitor. (Redacted Version; unredacted version filed at Doc. No. 313 .) (BJS) (Entered: 07/11/2014)
328 REPORT re 284 Order, Defs' Third Compliance Update Report by Minnesota Department of Human Services, Minnesota, State of. (Noss, Anthony) (Entered: 07/15/2014)
329 EXHIBIT re 328 Report by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit(s) 73, # 2 Exhibit(s) 74, # 3 Exhibit(s) 75, # 4 Exhibit(s) 76, # 5 Placeholder for Exs. 77, 78 filed under seal, # 6 Exhibit(s) 79, # 7 Exhibit(s) 80, # 8 Exhibit(s) 81, # 9 Placeholder for Ex. 82 filed under seal, # 10 Exhibit(s) 83, # 11 Placeholder for Ex. 84 filed under seal, # 12 Exhibit(s) 85, # 13 Placeholder for Exs. 86, 87, 88, 89, 90, 91, 92 filed under seal, # 14 Exhibit(s) 93, # 15 Exhibit(s) 94, # 16 Exhibit(s) 95, # 17 Exhibit(s) 96, # 18 Exhibit(s) 97, # 19 Placeholder for Exs. 98, 99 filed under seal, # 20 Exhibit(s) Ex. 100 (redacted), # 21 Placeholder for Ex. 100 (unredacted copy filed under seal), # 22 Exhibit(s) 101, # 23 Exhibit(s) 102, # 24 Exhibit(s) 103, # 25 Placeholder for Ex. 104 filed under seal, # 26

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Exhibit(s) 105, # 27 Exhibit(s) 106, # 28 Placeholder for Ex. 107 filed under seal, # 29 Exhibit(s) 108, # 30 Exhibit(s) 109, # 31 Placeholder for Exs. 110, 111, 112 filed under seal)(Noss, Anthony) Sealed documents received on 7/16/2014 (JGK). (Entered: 07/15/2014)
330 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 328 Report, 329 Exhibit,,,, (Noss, Anthony) (Entered: 07/16/2014)
331 ORDER. Pursuant to and under the terms of the Order of March 19 2014, the Clerk shall forthwith issue a check to David Ferleger in the amount of $60,871.53 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 7/18/2014. (Attachments: # 1 Exhibit(s) 1)(BJS) (Entered: 07/18/2014)
332 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Azman, Mark) (Entered: 07/24/2014)
333 REPORT TO THE COURT: Approval of Revised Olmstead Plan. Filed by David Ferleger, Court Monitor. (BJS) (Entered: 08/06/2014)
334 RECEIPT for number check number 0042407 in the amount of $60,871.53. (las)DOCUMENT QC'D ON 8/7/14 LGL Modified on 8/7/2014 (LGL). (Entered: 08/07/2014)
335 NOTICE OF ATTORNEY APPEARANCE/SUBSTITUTION for Minnesota Department of Human Services, Minnesota, State of. (Winter, Aaron) (Entered: 08/11/2014)
336 REPORT Minnesota Olmstead Subcabinet Report − Status Update Report No. 3 by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Certificate of Service)(Winter, Aaron) (Entered: 08/19/2014)
337 ORDER. The Court Monitor's Reports Olmstead Plan: Resolution of State's Requests for Modifications Nos. 2014−1 through 46 (Doc. No. 303 ) and Olmstead Plan: Resolution of State's Requests for Modifications Nos. 2014−26 (revised) and 2014−47 through 2014−50 (Doc. No. 311 ) are ADOPTED and incorporated by reference. The State shall modify the Olmstead Plan in compliance with the Court Monitor's Reports. Signed by Judge Donovan W. Frank on 8/20/2014. (BJS) (Entered: 08/20/2014)
338 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (response to 7−24−14 letter regarding 6−20−14 Community Compliance Review Report and Olmstead Plan). (Noss, Anthony) (Entered: 08/22/2014)
339 ORDER. The Clerk shall forthwith issue a check to David Ferleger in the amount of $9,446.26 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 08/26/2014. (Attachments: # 1 Exhibit(s) Attachment A)(RLB) (Entered: 08/27/2014)
340 ORDER. 1. The Court APPROVES the Court Monitor's Report to the Court: Community Compliance Review (Doc. No. 327 ). (See Order for additional information.) (Written Opinion). Signed by Judge Donovan W. Frank on 9/3/2014. (BJS) (Entered: 09/03/2014)
341 RECEIPT re: check number 0042577 in the amount of $9,446.26. (las) Modified text on 9/5/2014 (lmb).DOCUMENT QC'D ON 9/5/14 LGL Modified on 9/5/2014 (LGL). (Entered: 09/05/2014)
342 REPORT re 284 Order, (Defendants' Fourth Compliance Update Report) by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit(s) Index, # 2 Exhibit(s) Placeholder (Ex. 113 filed under seal), # 3 Exhibit(s) Placeholder (E x. 114 filed under seal), # 4 Exhibit(s) Placeholder (Ex. 115 filed under seal), # 5 Exhibit(s) Placeholder (Ex. 116 filed under seal), # 6 Exhibit(s) Placeholder (Ex. 117 filed under seal), # 7 Exhibit(s) Placeholder (Exs. 118, 119, 120 filed under seal), # 8 Exhibit(s) 121, # 9 Exhibit(s) 122, # 10 Exhibit(s) 123, # 11 Exhibit(s) 124)(Noss, Anthony) Sealed documents received on 9/15/2014 (JGK). (Entered: 09/15/2014)

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343 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 342 Report,, (Noss, Anthony) (Entered: 09/16/2014)
344 ORDER. 1. The Court DECLINES TO ADOPT the State's Proposed Olmstead Plan (Doc. No. [326−1]) at this time. 2. The parties shall submit a revised Olmstead Plan to the Court Monitor by November 10, 2014. (Written Opinion). Signed by Judge Donovan W. Frank on 9/18/2014. (BJS) (Entered: 09/18/2014)
345 ORDER. The Clerk shall forthwith issue a check to David Ferleger in the amount of $52,099.09 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 10/06/2014. (Attachments: # 1 Attachment A)(BJS) (Entered: 10/06/2014)
346 RECEIPT number 427566 in the amount of $52,099.09. (kt)DOCUMENT QC'D ON 10/21/14 LGL Modified on 10/21/2014 (LGL). (Entered: 10/20/2014)
347 Behavioral Intervention Devices & Practices: Achieving compliance in Community Programs. Report by Court Monitor David Ferleger. (Redacted) (Attachments: # 1 Appendix A − Redacted, # 2 Appendix B − Unredacted, # 3 Appendix C − Redacted)(BJS) (Entered: 10/20/2014)
348 ORDER. 1. The parties shall file responses to the October 17, 2014 report, and the recommendations contained therein, on or before October 30, 2014. 2. The Executive Director of the Governor's Council on Developmental Disabilities and the Ombudsman for Mental Health and Developmental Disabilities may respond by letter, with copies to the parties and the Court Monitor, on or before November 6, 2014. Signed by Judge Donovan W. Frank on 10/20/2014. (BJS) (Entered: 10/20/2014)
349 AMENDED ORDER. 1. The parties shall file responses to the October 17, 2014 report, and the recommendations contained therein, on or before October 30, 2014. 2. The Executive Director of the Governor's Council on Developmental Disabilities and the Ombudsman for Mental Health and Developmental Disabilities may respond by letter, with copies to the parties and the Court Monitor, on or before November 6, 2014. Signed by Judge Donovan W. Frank on 10/20/2014. (BJS) (Entered: 10/20/2014)
350 REPORT (Minnesota Olmstead Subcabinet Status Report to the Court − Report No. 4 (July 1 − August 31, 2014) by Minnesota Department of Human Services, Minnesota, State of. (Noss, Anthony) (Entered: 10/22/2014)
351 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 350 Report (Noss, Anthony) (Entered: 10/22/2014)
352 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Attachments: # 1 Attachment A (redacted), # 2 Placeholder for Attachment A (filed under seal))(Noss, Anthony) SEALED DOCUMENT RECEIVED IN CLERK'S OFFICE on 10/31/2014 (LPH). (Entered: 10/30/2014)
353 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Azman, Mark) (Entered: 10/30/2014)
354 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 352 Letter to District Judge (re DHS Response to Court Monitor's 10−17−14 Report) (Noss, Anthony) (Entered: 10/30/2014)
355 LETTER TO DISTRICT JUDGE by David Ferleger re DHS' "Statistics" (BJS) (Entered: 11/05/2014)
356 COMMENTS AND EXPECTATIONS: DHS Diversion from Institutionalization filed by David Ferleger, Court Monitor. (BJS) (Entered: 11/13/2014)
357 LETTER RESPONSE from Meridian Services (Redacted) to Behavioral Intervention Devices & Practices (Doc. No. 347 ). (BJS) (Entered: 11/13/2014)
358 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Attachments: # 1 Attachment A (redacted), # 2 Placeholder for Attachment A (filed under seal))(Noss, Anthony) SEALED DOCUMENT RECEIVED IN CLERK'S OFFICE on 11/14/2014 (LPH). (Entered: 11/13/2014)

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12/08/2014 12/17/2014 12/22/2014

359 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 358 Letter to District Judge (Noss, Anthony) (Entered: 11/13/2014)
360 REPORT Defendants' Fifth Compliance Update Report by Minnesota Department of Human Services, Minnesota, State of. (Noss, Anthony) (Entered: 11/17/2014)
361 EXHIBIT re 360 Report (Defs. Fifth Compliance Update Report) by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit(s) List, # 2 Placeholder for Ex. 125 filed under seal, # 3 Exhibit(s) (redacted Ex. 126), # 4 Placeholder for Ex. 126 filed under seal, # 5 Placeholder for Ex. 127 filed under seal, # 6 Placeholder for Ex. 128 filed under seal, # 7 Placeholder for Ex. 129 filed under seal, # 8 Exhibit(s) (redacted Ex. 130), # 9 Placeholder for Ex. 130 filed under seal, # 10 Placeholder for Exs. 131−134 filed under seal, # 11 Exhibit(s) 135, # 12 Exhibit(s) 136, # 13 Exhibit(s) 137, # 14 Exhibit(s) 138, # 15 Placeholder for Exs. 139−143 filed under seal, # 16 Exhibit(s) 144, # 17 Exhibit(s) 145 (redacted), # 18 Placeholder for Ex. 145 filed under seal, # 19 Exhibit(s) 146, # 20 Exhibit(s) 147, # 21 Exhibit(s) 148, # 22 Exhibit(s) 149, # 23 Exhibit(s) 150, # 24 Placeholder for Ex. 151 filed under seal)(Noss, Anthony) Sealed documents received on 11/17/2014 (JGK). (Entered: 11/17/2014)
362 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 Exhibit(s) 2011 Abuse and Neglect Document).(Azman, Mark) Modified text on 11/18/2014 (lmb). (Entered: 11/17/2014)
363 EXHIBIT re 328 Report (Placeholder for Exhibit 107 (filed under seal) to Defendants' Third Compliance Update Report) by Minnesota Department of Human Services, Minnesota, State of. (Noss, Anthony) Sealed document received on 11/20/2014 (JGK). (Entered: 11/20/2014)
364 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 363 Exhibit (Noss, Anthony) (Entered: 11/20/2014)
365 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of, re 361 Exhibit, 360 Report (5th Compliance Update Report and Exhibits). (Noss, Anthony) (Entered: 11/24/2014)
366 LETTER/RESPONSE re 356 Report Response to Comments and Expectations: DHS Diversion from Institutionalization filed by Court Monitor filed by Minnesota Department of Human Services, Minnesota, State of. (Winter, Aaron) Modified text on 11/26/2014 (lmb). (Entered: 11/26/2014)
367 ORDER. The Clerk shall forthwith issue a check to David Ferleger in the amount of $47,551.86 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 12/1/2014. (Attachments: # 1 Attachment A)(BJS) (Entered: 12/01/2014)
368 ORDER. 1. The Court approves the Court Monitor's Behavioral Intervention Devices and Practices: Achieving Compliance in Community Programs Report to the Court (Doc. No. 347 ) and adopts in part the recommendations therein as specified in this Order. 2. Should DHS fail to timely comply with the terms of this Order, the Court reserves the right to impose monetary or other sanctions. 3. The Court reserves the right to address other non−compliance issues by separate order. Signed by Judge Donovan W. Frank on 12/5/2014. (BJS) (Entered: 12/05/2014)
369 Memorandum to the Court: Docketing State's November 10, 2014 Revised Olmstead Plan and Related Documents by David Ferleger, Court Monitor. (Attachments: # 1 Appendix 1 (Part 1), # 2 Appendix 1 (Part 2), # 3 Appendix 2, # 4 Appendix 3)(BJS) (Entered: 12/10/2014)
370 RECEIPT re: Check Number 00430518 in the amount of $47,551.86. (las) DOCUMENT QC'D ON 12/18/14 LGLModified on 12/18/2014 (LGL). (Entered: 12/17/2014)
371 REPORT (Minnesota Olmstead Subcabinet Report − Status Update (Sept. 1 − Oct. 31, 2014) − Report No. 5) by Minnesota Department of Human Services, Minnesota, State of. (Noss, Anthony) (Entered: 12/22/2014)

12/22/2014
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372 DHS Response to Court Monitor's "Report to Court Verification Items: DHS 4th and 5th Compliance Update Report from Anne M. Barry. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Placeholder for Attachments 4 and 5A−5E (sealed), # 5 Attachment 6 (Redacted), # 6 Placeholder for Attachment 6 (sealed))(Noss, Anthony) SEALED DOCUMENTS RECEIVED IN CLERK'S OFFICE on 12/22/2014 (LPH). Modified docket text on 12/24/2014 (TSS). (Entered: 12/22/2014)
373 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 372 Letter to Clerk's Office, (DHS Response to Court Monitor's "Report to Court Verification Items: DHS 4th and 5th Compliance Update Report" (Noss, Anthony) (Entered: 12/22/2014)
374 REPORT TO THE COURT. Verification Items: DHS 4th and 5th Compliance Update Report (David Ferleger, Court Monitor). (BJS) (Entered: 12/24/2014)
375 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 371 Report (Olmstead Subcabinet Status Report − Report No. 5) (Noss, Anthony) (Entered: 12/26/2014)
376 Report to the Court − Olmstead Plan: Completion of Deliverables. Signed by David Ferleger, Court Monitor on 12/31/2014. (Attachments: # 1 Appendix A, # 2 Appendix B)(RLB) (Entered: 12/31/2014)
377 LETTER TO DISTRICT JUDGE DONOVAN W. FRANK from Court Monitor David Ferleger dated January 5, 2015 (received January 8, 2015) in re Order of December 5, 2014 (Doc. No. 368 ). (BJS) (Entered: 01/09/2015)
378 ORDER. 1. The Court provisionally approves the State of Minnesota's proposed revisions to the Olmstead Plan (Doc. No. 369 ), subject to the Court's review of the State's modifications and any submissions by Plaintiffs' Counsel. 2. Plaintiffs' Counsel may file any comments or objections to the Olmstead Plan as currently submitted by February 6, 2015. 3. The State shall file a revised Olmstead Plan by March 20, 2015. Signed by Judge Donovan W. Frank on 01/09/2015. (BJS) (Entered: 01/09/2015)
379 ORDER. 1. Defendants' Motion to Amend the Comprehensive Plan of Action (Doc. No. 317 ) is DENIED AS MOOT. 2. Defendants shall continue to report to the Court Monitor on a regular basis regarding D.P.'s living situation. (Written Opinion). Signed by Judge Donovan W. Frank on 1/13/2015. (BJS) (Entered: 01/13/2015)
380 ORDER The Clerk shall forthwith issue a check to David Ferleger in the amount of $39,189.43 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 1/16/2015. (Attachments: # 1 Attachment A)(BJS) cc: KU/USDC Financial Unit. Modified on 1/20/2015 (lmb). (Entered: 01/16/2015)
381 REPORT TO THE COURT − COMMUNITY COMPLIANCE REVIEW: DHS Follow−up by David Ferleger, Court Monitor. (BJS) (Entered: 01/28/2015)
382 LETTER TO DISTRICT JUDGE filed by Minnesota Olmstead Sub−Cabinet. (Attachments: # 1 Exhibit A, # 2 Envelope)(TSS) Document QC'd on 2/12/2015 (JGK). (Entered: 01/29/2015)
383 ORDER ON MONITOR COSTS. 1. The Court has jurisdiction over the subject matter of this action, the parties, and the class. 2. All fees and costs incurred by the Court Monitor in carrying out his responsibilities for the period January 1, 2015, through June 30, 2015, shall not exceed $250,000 and for the period July 1, 2015, through June 30, 2016, shall not exceed $463,671. 3. The Court Monitor shall submit all costs and fees, and the parties shall reserve all rights to review and object to the same, in accordance with the process set forth in the Court's Order, dated August 7, 2012 (Doc. No. 160).4. The Department shall deposit a lump sum of $250,000 ("Deposit") with the Court's Registry within 10 business days of entry of this Order and a subsequent lump sum deposit of $463,671 by July 30, 2015. Disbursements of funds from the same to the Court Monitor will be made pursuant to the process set forth in the Court's Order, dated August 7, 2012 (Doc. No. 160). 5. Within a reasonable time following June 30, 2016, the Court shall issue a check to the Department for any remaining Deposit funds held in the Court's Registry. 6. The Court Monitor and Department recognize the possibility that the Court could change the Court Monitor's role and/or responsibilities in calendar year 2015 or 2016. The above terms are not meant to bind

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the Court, but rather reflect the Department's and Court Monitor's agreement on budget terms with respect to the Court Monitor's current role and responsibilities. Should the Court change the Court Monitor's role and/or responsibilities, the Court Monitor and Department expressly reserve and do not waive their legal rights. Signed by Judge Donovan W. Frank on 1/30/2015. (BJS) (Entered: 02/02/2015)
384 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Azman, Mark) (Entered: 02/03/2015)
385 RECEIPT number 34641012531 in the amount of $250,000.00 issued to State of Minnesota. (las) Document QC'd on 2/12/2015 (JGK). (Entered: 02/05/2015)
386 RECEIPT re: Check #00433284 in the amount of $39,189.43. (las) DOCUMENT QC'd by KT on 2/11/15. (kt) (Entered: 02/11/2015)
387 REPORT (Defendants' Sixth Compliance Update Report) by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit(s) List, # 2 Placeholder for for Exhibits152−169 (filed under seal), # 3 Exhibit(s) 170−Redacted version, # 4 Placeholder for Exhibit 170 (filed under seal), # 5 Placeholder for Exhibit 171, # 6 Exhibit(s) 172, # 7 Exhibit(s) 173, # 8 Exhibit(s) 174)(Noss, Anthony) Sealed documents received on 2/13/2015 (JGK). (Entered: 02/13/2015)
388 REPORT TO THE COURT: COMMUNITY SUPPORT SERVICES STAFFING (David Ferleger, Court Monitor), 02/18/2015. (RLB) (Entered: 02/18/2015)
389 REPORT (MN Olmstead Subcabinet Rep. No. 6, Status Update Nov. 1, 2014−Dec. 31, 2014 (Part 1 of 3)) by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Part 2 of 3 − MN Olmstead Subcabinet Report No. 6, # 2 Part 3 of 3 − MN Olmstead Subcabinet Report No. 6, # 3 Verification)(Noss, Anthony) (Entered: 02/20/2015)
390 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 389 Report, (Noss, Anthony) (Entered: 02/23/2015)
391 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 387 Report, for (6th Compliance Update Report) (Noss, Anthony) (Entered: 02/24/2015)
392 REPORT TO THE COURT: ACTIONS ON OLMSTEAD PLAN UPDATE (David Ferleger, Court Monitor), 02/27/2015. (RLB) (Entered: 02/27/2015)
393 LETTER RESPONSE by Minnesota Department of Human Services, Minnesota, State of to Court Monitor's Feb. 18, 2015 Report to the Court [Doc. 388 , Filed Feb. 18, 2015] "Community Support Services Staffing". (Noss, Anthony) Modified text on 3/4/2015 (lmb). (Entered: 03/04/2015)
394 ORDER. Pursuant to and under the terms of the Order of March 19, 2014, the Clerk shall forthwith issue a check to David Ferleger in the amount of $43,664.51 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 3/9/2015. (Attachments: # 1 Attachment A)(BJS) (Entered: 03/09/2015)
395 Olmstead Plan − Public Information Memo to Darlene Zangra and Michael Tessneer from Court Monitor David Ferleger. Dated 3/11/2015. (BJS) (Entered: 03/12/2015)
396 REPORT (Defendants' Seventh Compliance Update Report (Jan. 1−Feb. 28, 2015)) by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit(s) List, # 2 Exhibit(s) 175 (Redacted), # 3 Placeholder for Exhibit 175 (filed under seal), # 4 Placeholder for Exhibits 176−182 (filed under seal), # 5 Exhibit(s) 183, # 6 Exhibit(s) 184, # 7 Exhibit(s) 185)(Noss, Anthony) Sealed document received on 3/16/2015 (JGK). (Entered: 03/16/2015)
397 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 396 Report, (7th Compliance Update Report and Exhibits) (Noss, Anthony) (Entered: 03/18/2015)
398 LETTER TO DISTRICT JUDGE DONOVAN W. FRANK from Mary Tingerthal and Lucinda Jesson re Response to the Court's January 9, 2015 Order. (BJS) (Entered: 03/19/2015)

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399 LETTER TO DISTRICT JUDGE by James Jensen, Lorie Jensen . (Attachments: # 1 Exhibit(s) Examples of Required Changes). (Azman, Mark) Modified text on 3/19/2015 (lmb). (Entered: 03/19/2015)
400 ORDER. Defendants' request for clarification of the Court's January 9, 2015 Order and an extension of time (Doc. No. 398 ) is DENIED. (Written Opinion). Signed by Judge Donovan W. Frank on 3/19/2015. (BJS) (Entered: 03/19/2015)
401 LETTER TO DISTRICT JUDGE DONOVAN W. FRANK AND DAVID FERLEGER, ESQ. Re: Response to Court's January 9, 2015 Order. (Attachments: # 1 Enclosure − Revised Olmstead Plan)(BJS) (Entered: 03/23/2015)
402 TEXT ONLY NOTICE to Attorneys: On March 20, 2015, the State of Minnesota submitted a Revised Olmstead Plan to the Court and the Court Monitor. (See Doc. No. 401 .) Advocating Change Together ("ACT"), an interested non−party to this litigation, has requested the Court's permission to submit a response to the Revised Olmstead Plan by April 6, 2015. The Court hereby approves ACT's request. Additionally, Plaintiffs' counsel shall file any comments or objections to the Revised Olmstead Plan, as well as any response to ACT's submission, by April 13, 2015. (BJS) (Entered: 03/23/2015)
403 RECEIPT re: check number 00434766 in the amount of $12,389.38. (las) Qc'd on 3/25/2015 (AKL). (Entered: 03/23/2015)
404 REPORT (MN Olmstead Subcabinet Report to the Court − Status Update for Nov. 1−Dec. 31, 2014 − Report No. 6 Addendum) by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Verification)(Noss, Anthony) (Entered: 03/27/2015)
405 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 404 Report MN Olmstead Subcabinet Status Report No. 6 Addendum) (Noss, Anthony) (Entered: 03/31/2015)
406 ORDER. Pursuant to and under the terms of the Order of March 19, 2014, the Clerk shall forthwith issue a check to David Ferleger in the amount of $46,593.11 drawn on this litigations Registry account. Signed by Judge Donovan W. Frank on 4/6/2015. (Attachments: # 1 Exhibit(s) A)(BJS) (Entered: 04/06/2015)
407 Court Monitor Report to the Court Regarding Class Member E.G. dated April 8, 2015. (Attachments: # 1 Attachment A − State Court Order)(BJS) (Entered: 04/09/2015)
408 LETTER TO DISTRICT JUDGE DONOVAN W. FRANK from Advocating Change Together dated April 6, 2015 Commenting on the Olmstead Plan. (BJS) (Entered: 04/09/2015)
409 LETTER from Mid−Minnesota Legal Aid dated April 6, 2015 Commenting on the Olmstead Plan. (BJS) (Entered: 04/09/2015)
410 AMENDED ORDER. Pursuant to and under the terms of the Order of March 19, 2014, the Clerk shall forthwith issue a check to David Ferleger in the amount of $43,593.11 drawn on this litigations Registry account. Signed by Judge Donovan W. Frank on 4/10/2015. (Attachments: # 1 Attachment A)(BJS) (Entered: 04/10/2015)
411 LETTER TO DISTRICT JUDGE by Minnesota Disability Law Center Amicus Request. (Hoopes, Pamela) (Entered: 04/13/2015)
412 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Azman, Mark) (Entered: 04/13/2015)
413 TEXT ONLY ORDER : The Minnesota Disability Law Center of Mid−Minnesota Legal Aid has filed a letter to the Court (Doc. No. 411 ) requesting the Court's permission to submit an amicus brief addressing the "policy and civil rights issues implicated in the Olmstead Plan." The parties shall file any objections to the letter request by 4:30 p.m. on April 20, 2015. Signed by Judge Donovan W. Frank on 4/14/2015. (BJS) (Entered: 04/14/2015)
414 REPORT to the Court: Verification of Representations by the State (by Court Monitor David Ferleger). (Attachments: # 1 Attachment A − Olmstead Office Response, # 2 Attachment B − Training Tracker)(BJS) (Entered: 04/14/2015)

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415 ORDER. 1. The parties shall file responses to the April 14, 2015 report, and the recommendations contained therein, on or before April 28, 2015. 2. The Executive Director of the Governor's Council on Developmental Disabilities and the Ombudsman for Mental Health and Developmental Disabilities may respond by letter, with copies to the parties and the Court Monitor, on or before May 5, 2015. Signed by Judge Donovan W. Frank on 04/14/2015. (BJS) (Entered: 04/14/2015)
416 TEXT ONLY ENTRY: CLERK'S NOTICE OF REASSIGNMENT. This case is reassigned to Magistrate Judge Becky R. Thorson. Magistrate Judge Franklin L. Noel no longer assigned to the case. NOTE: the new case number is 09−cv−1775 DWF/BRT. Please use this case number for all subsequent pleadings. (LJG) (Entered: 04/16/2015)
417 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services (re MN Disability Law Center request to file amicus brief). (Noss, Anthony) (Entered: 04/20/2015)
418 RECEIPT re: check number 00437720 in the amount of $43,593.11. (las) DOCUMENT QC'd by KT on 4/28/15. (kt) (Entered: 04/21/2015)
419 DOCUMENT FILED IN ERROR//FILED IN WRONG CASE//ORDER. 1. The Minnesota Disability Law Center of Mid−Minnesota Legal Aid shall file its amicus brief on or before April 27, 2015. 2. Plaintiffs and Defendants may each file a written response to the amicus brief on or before May 4, 2015. Signed by Judge Donovan W. Frank on 4/21/2015. (BJS) Modified text on 4/21/2015 (JDF). (Entered: 04/21/2015)
420 ORDER. 1. The Minnesota Disability Law Center of Mid−Minnesota Legal Aid shall file its amicus brief on or before April 27, 2015. 2. Plaintiffs and Defendants may each file a written response to the amicus brief on or before May 4, 2015. Signed by Judge Donovan W. Frank on 4/21/2015. (BJS) (Entered: 04/21/2015)
421 ORDER FOR STATUS CONFERENCE. 1. The parties shall participate in a status conference on May 28, 2015 at 9:00 a.m. to discuss the status of this case and to address a number of issues impeding the implementation of the Settlement Agreement, including, but not limited to: (a) compliance with federal rules and procedures regarding formal and informal submissions to the Court; (b) communication barriers between the parties, the Court Monitor, and the Court; and (c) compliance with the provisions of the Settlement Agreement and the Court's Orders. 2. The Court assumes and expects that counsel for Plaintiffs and Defendants, appropriate officials from the State of Minnesota and the Department of Human Services, including Commissioner Lucinda Jesson, Commissioner Mary Tingerthal, Gregory Gray, Ricardo Figueroa, Amy Kaldor Akbay, Solicitor General Alan I. Gilbert, consultants to the parties, Roberta Opheim and Dr. Colleen Wieck, and the Court Monitor will be present at the conference. The conference participants shall be limited to the above−named individuals. 3. The status conference will be presided over by the undersigned, along with United States Magistrate Judge Becky R. Thorson. 4. The status conference will take place in the 7th Floor Conference Room (accessible by buzzing Judge Franks chambers on the 7th Floor), Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota. 5. The Court reserves the right to schedule an additional status conference as necessary. Signed by Judge Donovan W. Frank on 4/21/2015. (BJS) (Entered: 04/21/2015)
422 NOTICE of Appearance by Nathan A Brennaman on behalf of Minnesota Department of Human Services, Minnesota, State of. (Brennaman, Nathan) (Entered: 04/22/2015)
423 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 422 Notice of Appearance (Brennaman, Nathan) (Entered: 04/22/2015)
424 REPORT (Minnesota Olmstead Subcabinet Report to Court − Status Update Jan. 1−Feb. 28, 2015 − Report No. 7 by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Affidavit Concerning MN Olmstead Subcabinet Report to Court, Report No. 7)(Brennaman, Nathan) (Entered: 04/22/2015)
425 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 417 Letter to District Judge (Noss, Anthony) (Entered: 04/22/2015)

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426 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 424 Report, (Brennaman, Nathan) (Entered: 04/24/2015)
427 MEMORANDUM by Minnesota Disability Law Center Memorandum of Amicus Curiae Minnesota Disablity Law Center in Support of Plaintiffs' Objections to State's Proposed Olmstead Plan filed by Minnesota Disability Law Center. DOCUMENT/EXHIBIT A FILED IN ERROR−WILL REFILE AS SEPARATE EVENT. (Attachments: # 1 Exhibit A)(Hoopes, Pamela) Modified text on 4/27/2015 (MMP). Modified text on 4/27/2015 (lmb). (Entered: 04/27/2015)
428 EXHIBIT re 427 Memorandum, Exhibit A by Minnesota Disability Law Center. (Hoopes, Pamela) (Entered: 04/28/2015)
429 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services Letter re: Response to Court Monitor's April 14, 2015 Report to the Court: Verification of Representations by the State. (Doc. No. 414.). (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B−D, # 3 Affidavit of Michael Tessneer, # 4 Affidavit of Margaret Fletcher−Booth)(Noss, Anthony) (Entered: 04/28/2015)
430 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Azman, Mark) (Entered: 04/28/2015)
431 REPORT TO THE COURT: Response to Parties' Comments on Verification Report signed by David Ferleger, Court Monitor. (BJS) (Entered: 04/29/2015)
432 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter re Response to "Memorandum of Amicus Curiae Minnesota Disability Law Center in Support of Plaintiffs' Objections to State's Proposed Olmstead Plan" (Dkt 427)). (Noss, Anthony) (Entered: 05/04/2015)
433 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Azman, Mark) (Entered: 05/04/2015)
434 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 432 Letter to District Judge, (Noss, Anthony) (Entered: 05/04/2015)
435 ORDER. 1. The Court DECLINES TO ADOPT the States Proposed Olmstead Plan (Doc. No. [401−1]). 2. The parties shall submit a revised Olmstead Plan to the Court by July 10, 2015. The revised Olmstead Plan shall encompass the requirements of the Settlement Agreement and prior orders of this Court and shall respond to previously identified gaps and deficiencies in the States proposed Olmstead Plan. 3. In lieu of contempt and other sanctions at this time, the Court requires Defendants to fulfill their obligations in a timely manner for the Courts review and approval; attend any status conferences that may be scheduled by the undersigned or Magistrate Judge Becky R. Thorson regarding the Olmstead Plan; and actively seek input from the consultants to the parties, Dr. Colleen Wieck and Roberta Opheim, in this process. 4. The Court expressly reserves the right to issue an order to show cause or impose sanctions, depending upon the status of compliance with the specific provisions of the Settlement Agreement and the Courts orders, as noted above. (Written Opinion). Signed by Judge Donovan W. Frank on 5/6/2015. (BJS) (Entered: 05/06/2015)
436 ORDER. Pursuant to and under the terms of the Order of March 19, 2014, the Clerk shall forthwith issue a check to David Ferleger in the amount of $60,129.64 drawn on this litigations Registry account. Signed by Judge Donovan W. Frank on 5/11/2015. (Attachments: # 1 Exhibit(s) A)(BJS) (Entered: 05/11/2015)
437 LETTER TO DISTRICT JUDGE DONOVAN W. FRANK dated May 5, 2015, from Colleen Wieck, Ph.D, Executive Director, The Minnesota Governor's Council on Developmental Disabilities in re the Court's Order at 415 . (BJS) (Entered: 05/13/2015)
438 LETTER TO DISTRICT JUDGE DONOVAN W. FRANK dated May 5, 2015, from Roberta C. Opheim, Ombudsman, Office of the Ombudsman for Mental Health and Developmental Disabilities in Re the Court's Order at 415 . (BJS) (Entered: 05/13/2015)

05/13/2015 05/15/2015
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05/27/2015 05/27/2015 05/27/2015 05/28/2015

439 REPORT TO THE COURT: Setback Regarding Modernization of Rule 40 by David Ferleger, Court Monitor. (Attachments: # 1 Attachment A − The April 22, 2015 ALJ Decision)(BJS) Modified text on 5/14/2015 (LPH). (Entered: 05/13/2015)
440 REPORT (Defendants' Eighth Compliance Update Report, Affidavits, and Exhibits) by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Affidavits Concerning Verification of Defendants Eighth Compliance Update Report and Exhibits, # 2 Exhibit(s) Index, # 3 Exhibit(s) 186 (redacted), # 4 Placeholder for Exhibit 186 (filed under seal), # 5 Placeholder for Exhibits 187 and 188 (filed under seal), # 6 Exhibit(s) 189, # 7 Exhibit(s) 190, # 8 Exhibit(s) 191, # 9 Exhibit(s) 192)(Noss, Anthony) Sealed documents received on 5/15/2015 (JGK). (Entered: 05/15/2015)
441 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 440 Report,, (Noss, Anthony) (Entered: 05/18/2015)
442 RECEIPT re: check number # 00439471 in the amount of $60,129.64. (las) Qc'd on 5/19/2015 (AKL). (Entered: 05/19/2015)
443 LETTER TO COUNSEL from Judge Donovan W. Frank. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3)(BJS) (Entered: 05/20/2015)
444 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Noss, Anthony) (Entered: 05/20/2015)
445 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Azman, Mark) (Entered: 05/21/2015)
446 MOTION for Relief from Judgment by Minnesota Department of Human Services. (Ikeda, Scott) (Entered: 05/27/2015)
447 NOTICE OF HEARING ON MOTION 446 MOTION for Relief from Judgment : at date and time to be determined. (Ikeda, Scott) (Entered: 05/27/2015)
448 MEMORANDUM in Support re 446 MOTION for Relief from Judgment (Placeholder for Memorandum filed under seal) filed by Minnesota Department of Human Services. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate (for Memorandum in Support of Motion for Relief from Judgment filed under seal))(Ikeda, Scott) Sealed document received on 5/28/2015 (JGK). (Entered: 05/27/2015)
449 MEET and CONFER STATEMENT re 446 Motion for Relief from Judgment filed by Minnesota Department of Human Services. (Ikeda, Scott) (Entered: 05/27/2015)
450 AFFIDAVIT of Margaret Fletcher−Booth in SUPPORT OF 446 MOTION for Relief from Judgment (Placeholder for Fletcher−Booth Affidavit filed under seal) filed by Minnesota Department of Human Services. (Attachments: # 1 Placeholder for for Exhibits 1−6 filed under seal to Fletcher−Booth Affidavit filed under seal)(Ikeda, Scott) Sealed document received on 5/27/2015 (JGK). (Entered: 05/27/2015)
451 AFFIDAVIT of Gerald Nord in SUPPORT OF 446 MOTION for Relief from Judgment (Placeholder for Affidavit of Gerald Nord filed under seal) filed by Minnesota Department of Human Services. (Ikeda, Scott) Sealed document received on 5/27/2015 (JGK). (Entered: 05/27/2015)
452 AFFIDAVIT of Peter S. Miller in SUPPORT OF 446 MOTION for Relief from Judgment (Placeholder for Affidavit of Peter S. Miller filed under seal) filed by Minnesota Department of Human Services. (Ikeda, Scott) Sealed document received on 5/27/2015 (JGK). (Entered: 05/27/2015)
453 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Minnesota Department of Human Services re 446 MOTION for Relief from Judgment (Ikeda, Scott) (Entered: 05/27/2015)
454 MEMORANDUM in Opposition re 446 MOTION for Relief from Judgment filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Azman, Mark) (Entered: 05/28/2015)

05/28/2015 05/28/2015 05/29/2015 06/02/2015
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455 AFFIDAVIT of Shamus P. O'Meara in OPPOSITION TO 446 MOTION for Relief from Judgment filed by All Plaintiffs. (Azman, Mark) Sealed document received on 5/29/2015 (JGK). (Entered: 05/28/2015)
456 Minute Entry for proceedings held before Judge Donovan W. Frank and Magistrate Judge Becky R. Thorson: Status Conference held on 5/28/2015. See attached minutes for upcoming dates before Magistrate Judge Becky R. Thorson. (Court Reporter NA) (BJS) (Entered: 05/29/2015)
457 ORDER. 1. The State of Minnesota shall be temporarily excused from filing status reports, including the bi−monthly Compliance Update Report and the Minnesota Olmstead Subcabinet Report to the Court, for the months of June and July 2015. 2. The Court reserves the right to address the resumption of status reports at a later date. Signed by Judge Donovan W. Frank on 5/29/2015. (BJS) (Entered: 05/29/2015)
458 ORDER. 1. The Court has set a hearing on State Defendants' motion (Doc. No. 446 ) for June 23, 2015, at 2:00 p.m., in Courtroom 7C, 7th Floor, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota 55101. 2. The Court anticipates that, absent transitional planning that would move W.O. from the Minnesota Security Hospital by agreement of DHS and all involved parties, W.O. will remain at the Minnesota Security Hospital. 3. Absent a substantial change in circumstances, the Court will request a report on W.O. from the Ombudsman for Mental Health and Developmental Disabilities, DHS, and any involved mental health professionals at the June 23, 2015 hearing. This report shall include information regarding W.O.'s housing conditions; protections from abuse, seclusion, and restraint; treatment; and any recreational, educational, and social services or programming. Signed by Judge Donovan W. Frank on 6/2/2015. (BJS) (Entered: 06/02/2015)
459 Minute Entry for proceedings held before Magistrate Judge Becky R. Thorson: Telephone Conference held on 6/5/2015. Status held. Agenda will be circulated for the June 10, 2015 meeting. (JDF) (Entered: 06/08/2015)
460 NOTICE OF SETTLEMENT MEETING Telephone conference set for 6/10/2015 09:00 AM in Courtroom 3A (STP) before Magistrate Judge Becky R. Thorson. Signed by Magistrate Judge Becky R. Thorson on 6/5/15. (JDF) (Entered: 06/09/2015)
461 Minute Entry for proceedings held before Magistrate Judge Becky R. Thorson: Settlement Conference held on 6/10/2015. (LPH) (Entered: 06/11/2015)
462 ORDER. 1. The parties are currently in mediation. During this mediation period, the parties' obligations under the Settlement Agreement (Doc. No. 104 ) and other court orders relating to compliance remain in place; however, the parties' reporting obligations to the Court are STAYED. The Court Monitor's reporting is also STAYED. 2. The Court Monitor will remain available to the Court during the mediation period. Further, by request, the parties, Roberta Opheim, and/or Dr. Colleen Wieck may seek the assistance or consultation of Mr. Ferleger during the mediation period. Such requests shall be submitted to the Chambers of U.S. Magistrate Judge Becky R. Thorson by e−mail. Signed by Judge Donovan W. Frank on 6/18/2015. (BJS) (Entered: 06/18/2015)
463 Minute Entry for proceedings held before Judge Donovan W. Frank: Motion Hearing held on 6/23/2015 re 446 MOTION for Relief from Judgment filed by Minnesota Department of Human Services. Matter under advisement; written order to issue. (Court Reporter Jeanne Anderson) (BJS) (Entered: 06/24/2015)
464 ORDER 1. Defendants' motion (Doc. No. 446 ) is DENIED WITHOUT PREJUDICE. 2. The Department of Human Services, in consultation with the Ombudsman for Mental Health and Developmental Disabilities, shall create a provisional discharge plan for W.O. for his transfer from the Minnesota Security Hospital. This plan shall be submitted to the Court, with a copy to Plaintiffs' counsel, by July 31, 2015. 3. The Department of Human Services shall submit Dr. Gary LaVigna's report on W.O. to the Court as soon as the report becomes available. 4. The parties shall attend a status conference on August 4, 2015, at 9:00 a.m., to provide the Court with an update regarding the status of W.O., including, but not limited to, the following issues: (1) whether W.O. has been moved from the Minnesota Security Hospital; and (2) if W.O. has not been moved from the Minnesota Security Hospital, what placement options

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have been identified and pursued and what transition plans have been made with respect to W.O. In addition to the parties, the Court invites the Ombudsman for Mental Health and Developmental Disabilities, the county officials involved in the state proceeding, including the Dakota County attorney and defense counsel, as well as W.O.s social workers and any involved mental health professionals, to the August 4, 2015 status conference. The conference will take place in the 7th Floor Conference Room of the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota 55101.5. As the Court indicated at the hearing, it is the expectation of the Court that there will be collaboration between the parties, the Ombudsman for Mental Health and Developmental Disabilities, and the involved county officials with respect to W.O.'s situation. Separately, it is the expectation of the Court that the Department of Human Services will provide an analysis of the names of individuals who are high or frequent users of crisis services, hospitalizations, and inpatient psychiatric units to Plaintiffs and to the Ombudsman for Mental Health and Developmental Disabilities by July 22, 2015. Finally, as the Court has stated in previous Orders, it is the expectation of the Court that the Department of Human Services will seek the input of the Ombudsman for Mental Health and Developmental Disabilities and the Executive Director of the Minnesota Governor's Council on Developmental Disabilities in this process. (See, e.g., Doc. No. 435 ("May 6, 2015 Order") at 9; Doc. No. 340 ("September 3, 2014 Order") at 4.)(Written Opinion). Signed by Judge Donovan W. Frank on 6/24/2015. (BJS) (Entered: 06/24/2015)
465 Minute Entry for proceedings held before Magistrate Judge Becky R. Thorson: Telephone Status Conference held on 6/25/2015. (las) (Entered: 06/26/2015)
466 ORDER/NOTICE OF SETTLEMENT MEETING − Settlement Conference set for 7/6/2015 and 07/07/2015 09:00 AM in Courtroom 3A (STP) before Magistrate Judge Becky R. Thorson. Signed by Magistrate Judge Becky R. Thorson on 6/26/2015. (las) (Entered: 06/26/2015)
467 TEXT ONLY ORDER: The Court has been informed that DHS has made statements suggesting that there is no longer a Court Monitor in this matter. The Court's June 18, 2015 Order (Doc. No. 462 ) expressly stated that during this mediation period, reporting by the parties and the Court Monitor is stayed, but the parties' obligations under the Settlement Agreement and subsequent Court Orders relating to compliance remain in place. In staying the reporting requirements, the Court released DHS from cumbersome reporting, but did not release DHS from complying with the Settlement Agreement and this Court's Orders. Please be advised that this topic will be discussed during the mediation meeting with Magistrate Judge Becky R. Thorson on July 6, 2015. Signed by Judge Donovan W. Frank on 7/1/2015. (BJS) (Entered: 07/01/2015)
468 NOTICE of Filing of Official Transcript. This filing has 1 transcript(s) associated with it. (JMA) (Entered: 07/02/2015)
469 TRANSCRIPT of Motions Hearing held on 06/23/2015 before Judge Donovan W. Frank. (89 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 7/23/2015. Redacted Transcript Deadline set for 8/3/2015. Release of Transcript Restriction set for 9/30/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 07/02/2015)
470 Minute Entry for proceedings held before Magistrate Judge Becky R. Thorson: Settlement Conference held on 7/6/2015. (AKL) (Entered: 07/07/2015)
471 Minute Entry for proceedings held before Magistrate Judge Becky R. Thorson: Settlement Conference held on 7/7/2015. (las) (Entered: 07/09/2015)
472 ORDER. The July 10, 2015 deadline for the State of Minnesota to submit a revised Olmstead Plan (see Doc. No. 435 at 9) is EXTENDED to August 10, 2015. The STAY of the reporting requirements of the parties and the Court Monitor during the pendency of the mediation period (see Doc. No. 462 at 2) is EXTENDED to August 10, 2015. The specific reporting requirements of the parties that are stayed include the bi−monthly Defendants Compliance Update Report and the bi−monthly Olmstead Subcabinet Report (see Doc. No. 457 at 2). In extending the stay of the parties reporting requirements, the Court is not releasing the parties from obligations to comply with the Settlement Agreement (Doc. No. 104 ) or other Court Orders. The

07/10/2015 07/13/2015
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08/10/2015
08/10/2015
08/10/2015

Court reserves the right to address the resumption of status reports or any modified reporting obligations by separate Order. Signed by Judge Donovan W. Frank on 07/09/2015. (RLB) (Entered: 07/09/2015)
473 NOTICE/ORDER: Settlement Conference in the Fifth Floor Conference Room (STP) set for 7/20/2015 09:30 AM before Magistrate Judge Becky R. Thorson. Signed by Magistrate Judge Becky R. Thorson on 7/10/15. (JAM) (Entered: 07/10/2015)
474 ORDER. Pursuant to the terms of the Order of March 19, 2014, the Clerk shall issue a check to David Ferleger in the amount of $151,655.29 drawn on this litigation's registry account. Signed by Judge Donovan W. Frank on 7/13/2015. (Attachments: # 1 Exhibit(s) A)(BJS) (Entered: 07/13/2015)
475 RECEIPT re: check number 00442576 in the amount of $151,655.29. (las) DOCUMENT QC'd by KT on 7/21/15. (kt) (Entered: 07/21/2015)
476 Minute Entry for proceedings held before Magistrate Judge Becky R. Thorson: Settlement Meeting held on 7/20/2015. (las) (Entered: 07/23/2015)
477 NOTICE/ORDER: Settlement Conference set for 8/4/2015 in third floor conference room 01:30 PM before Magistrate Judge Becky R. Thorson. Signed by Magistrate Judge Becky R. Thorson on 7/27/15. (JAM) (Entered: 07/27/2015)
478 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Noss, Anthony) (Entered: 07/28/2015)
479 RECEIPT number 44641084594 in the amount of $463,671.00 issued to State of Minnesota. (las) Qc'd on 7/30/2015 (AKL). (Entered: 07/29/2015)
480 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Noss, Anthony) (Entered: 07/30/2015)
481 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter filed pursuant to Order dated 3−19−14 (Doc. 286)). (Noss, Anthony) (Entered: 08/03/2015)
482 Minute Entry for proceedings held before Magistrate Judge Becky R. Thorson: Settlement meeting held on 8/4/2015. (las) (Entered: 08/05/2015)
483 AMENDED Minute Entry for proceedings held before Magistrate Judge Becky R. Thorson: Settlement meeting held on 8/4/2015. (las) (Entered: 08/06/2015)
492 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 8/4/2015. (Court Reporter NA) (BJS) (Entered: 08/17/2015)
484 ORDER/NOTICE OF SETTLEMENT MEETING − Settlement Conference set for 8/24/2015 in third floor conference room 09:30 a.m. before Magistrate Judge Becky R. Thorson. Signed by Magistrate Judge Becky R. Thorson on 8/6/2015. (las) (Entered: 08/06/2015)
485 ORDER. 1. Defendant DHS' formal objections to Invoice Number 377 regarding the charges in the amounts of $270, $406.25, and $125 for billing−related administrative review are GRANTED. 1 Accordingly, the Court strikes those three line item entries from the Invoice. 2. The Court Monitor's Invoice Number 377 is APPROVED IN PART, consistent with the above provision. 3. The Clerk shall forthwith issue a check to David Ferleger in the amount of $4,873.75 drawn on this litigation's registry account, pursuant to the terms of the Court's March 19, 2014 Order. Signed by Judge Donovan W. Frank on 8/10/2015. (Attachments: # 1 Exhibit(s) A)(BJS) (Entered: 08/10/2015)
486 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Part 1 of 2). (Attachments: # 1 Minnesota Olmstead Plan, # 2 Appendix C (pp.1−236), # 3 Appendix C (pp.237−314), # 4 Appendix C (pp.315−465))(Noss, Anthony) (Entered: 08/10/2015)
487 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Part 2 of 2). (Attachments: # 1 Appendix C (pp.466−710), # 2 Appendix C (pp. 711−831), # 3 Appendix C (pp. 832−927), # 4 Appendix C (pp. 928−1002))(Noss, Anthony) (Entered: 08/10/2015)

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488 DOCUMENT FILED IN ERROR − REFILED − LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Olmstead Plan Action Items Crosswalk with August Plan Attachment to Letter). (Noss, Anthony) Modified on 8/11/2015 (JAM). (Entered: 08/10/2015)
489 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of Olmstead Plan Action Items Crosswalk with August Plan Attachment to Letter. (Attachments: # 1 Olmstead Plan Action Items Crosswalk with August Plan Attachment to Letter)(Noss, Anthony) (Entered: 08/10/2015)
490 TEXT ONLY ORDER: On August 10, 2015, the State of Minnesota submitted a revised Olmstead Plan to the Court. (See Doc. No. 486−1.) Plaintiffs' Counsel shall submit any comments or objections to the revised Olmstead Plan by August 28, 2015. Signed by Judge Donovan W. Frank on 8/11/2015. (BJS) (Entered: 08/11/2015)
491 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Amended Version of Letter Filed on August 10, 2015). (Noss, Anthony) (Entered: 08/12/2015)
493 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Azman, Mark) (Entered: 08/19/2015)
494 ORDER. Defendant Department of Human Services' recommendation that W.O. be discharged from his current placement at the Minnesota Security Hospital and be transitioned to one of the four twelve−bed buildings on the Cambridge campus until an appropriate community placement can be developed (see Doc. No. 480 ) is ADOPTED IN PART as follows: a. The Court ADOPTS the recommendation that W.O. be discharged from the Minnesota Security Hospital. However, W.O.'s discharge is STAYED pending Defendant Department of Human Services presenting a suitable short−term placement option for W.O. to the Court. b. The Court DENIES the recommendation that W.O. be transitioned from the Minnesota Security Hospital to one of the four twelve−bed buildings on the Cambridge campus until an appropriate community placement can be developed. c. Defendant Department of Human Services should be prepared to discuss the topic of W.O.'s transition and short−term placement options at the August 24, 2015 meeting with Magistrate Judge Becky R. Thorson. Defendant Department of Human Services should be aware that the Court finds that the Cambridge campus is not a suitable placement option for W.O. Accordingly, Defendant Department of Human Services should research, identify, and present other short−term placement options for W.O. at that meeting. (See Order for additional information and details.) Signed by Judge Donovan W. Frank on 8/19/2015. (BJS) (Entered: 08/19/2015)
495 TEXT ONLY ORDER: On August 10, 2015, the State of Minnesota submitted a revised Olmstead Plan to the Court. (See Doc. No. 486−1.) On August 19, 2015, Plaintiffs' Counsel submitted its responses and objections to the revised Olmstead Plan. (See Doc. No. 493.) The Court invites Defendant Department of Human Services to submit a response to the objections raised by Plaintiffs' Counsel no later than August 27, 2015. Signed by Judge Donovan W. Frank on 8/20/2015. (BJS) (Entered: 08/20/2015)
496 RECEIPT re: check number 00443934 in the amount of $4,873.75. (las) Qc'd on 8/26/2015 (AKL). (Entered: 08/21/2015)
497 Minute Entry for proceedings held before Magistrate Judge Becky R. Thorson: Settlement Conference held on 8/24/2015. (lmb) (Entered: 08/25/2015)
503 LETTER TO DISTRICT JUDGE. (las) (Entered: 08/28/2015)
498 MOTION to Appear as Amicus Curiae by Ivan M. Levy. (Ursu, John) (Entered: 08/28/2015)
499 MEMORANDUM in Support re 498 MOTION to Appear as Amicus Curiae filed by Ivan M. Levy. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Ursu, John) (Entered: 08/28/2015)
500 MEET and CONFER STATEMENT re 498 Motion to Appear as Amicus Curiae filed by Ivan M. Levy. (Ursu, John) (Entered: 08/28/2015)

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501 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Ivan M. Levy re 498 MOTION to Appear as Amicus Curiae (Ursu, John) (Entered: 08/28/2015)
502 ORDER GRANTING MOTION OF IVAN M. LEVY FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE. 1. Ivan M. Levy's Motion for Leave to Participate as Amicus Curiae (Doc. No. 498 ) is GRANTED. 2. Ivan M. Levy is granted leave to file an amicus brief not to exceed 2,500 words by September 14, 2015. Signed by Judge Donovan W. Frank on 8/28/2015. (BJS) (Entered: 08/28/2015)
504 ORDER OF REASSIGNMENT OF RELATED CASES that 15−cv−3439 (RHK/FLN) has been reassigned to Judge Donovan W. Frank and Magistrate Judge Becky R. Thorson. Signed by Judge Donovan W. Frank and Judge Richard H. Kyle on 8/31/2015. (lmb) (Entered: 09/01/2015)
505 ORDER/NOTICE OF SETTLEMENT MEETING: Settlement meeting set for 9/23/2015 09:30 AM in a Third Floor Conference Room, U.S. Courthouse, 316 North Robert Street, St. Paul, Minnesota, before Magistrate Judge Becky R. Thorson. Signed by Magistrate Judge Becky R. Thorson on 9/11/2015. (ALM) (Entered: 09/11/2015)
506 BRIEF OF AMICUS CURIAE IVAN M. LEVY filed by Ivan M. Levy. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Ursu, John) (Entered: 09/14/2015)
507 TEXT ONLY ORDER: Should the parties wish to respond to the Brief of Amicus Curiae Ivan M. Levy (Doc. No. 506), the Court grants leave to file responses not to exceed 1,250 words by 5:00 p.m. on September 18, 2015. Signed by Judge Donovan W. Frank on 9/16/2015. (BJS) (Entered: 09/16/2015)
508 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter response to Brief of Amicus Curiae Ivan M. Levy (Doc. 506)). (Noss, Anthony) (Entered: 09/18/2015)
509 Minute Entry for proceedings held before Magistrate Judge Becky R. Thorson: Settlement Conference held on 9/23/2015. (ALM) (Entered: 09/24/2015)
510 ORDER. 1. The Court APPROVES the State's Olmstead Plan (Doc. No. 486 −1). 2. The Court reserves ruling on the approval of the Olmstead Plan's implementation plan because corresponding workplans are not yet submitted to the Court. (See Doc. No. 486 −1 at 16.) Once these workplans are submitted, the Court will review and approve the implementation plan based on the recommendations and input of Magistrate Judge Becky R. Thorson. 3. The Court reserves the right to exercise its continuing jurisdiction with respect to the revised Olmstead Plan to ensure that compliance with the Settlement Agreement is verified going forward. This paragraph contemplates that the Court will continue to carry out its oversight responsibility to oversee the State's efforts in following through on the significant commitments it has made. (Written Opinion). Signed by Judge Donovan W. Frank on 9/29/2015. (BJS) Modified text on 9/30/2015 (lmb). (Entered: 09/29/2015)
511 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Attachments: # 1 Exhibit(s), # 2 Exhibit(s))(Azman, Mark) (Entered: 09/30/2015)
512 ORDER/NOTICE OF SETTLEMENT MEETING: Settlement meeting set for 10/14/2015 09:30 AM in Third Floor Conference Room, U.S. Courthouse, 316 North Robert Street, St. Paul, Minnesota, before Magistrate Judge Becky R. Thorson. Signed by Magistrate Judge Becky R. Thorson on 10/5/2015. (ALM) (Entered: 10/05/2015)
513 REVIEW OF INVOICES SUBMITTED BY THE JENSEN SETTLEMENT AGREEMENT COURT MONITOR AND KARSJENS LITIGATION TECHNICAL ADVISOR dated September 29, 2015. (BJS) (Entered: 10/07/2015)
514 LETTER from David Ferleger dated October 7, 2015, in Re: Review of Invoices Submitted by the Jensen Settlement Agreement Court Monitor and Karsjens Litigation Technical Advisor. (BJS) (Entered: 10/07/2015)
515 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Cover letter from Commissioner Jesson regarding Olmstead Plan's Workplans). (Attachments: # 1 Cover Letter to Olmstead Plan Workplans, # 2

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Olmstead Plan Workplans)(Noss, Anthony) (Entered: 10/09/2015)
516 Minute Entry for proceedings held before Magistrate Judge Becky R. Thorson: Settlement meeting held on 10/14/2015. (ALM) (Entered: 10/15/2015)
517 ORDER/NOTICE OF SETTLEMENT MEETING: Settlement meeting set for 10/26/2015 09:30 AM in the Fifth Floor Conference Room, U.S. Courthouse, 316 North Robert Street, St. Paul, Minnesota, before Magistrate Judge Becky R. Thorson. Signed by Magistrate Judge Becky R. Thorson on 10/15/2015. (ALM) (Entered: 10/15/2015)
518 ORDER. Pursuant to and under the terms of the Order of March 19, 2014, the Clerk shall forthwith issue a check to David Ferleger in the amount of $8,212.50 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 10/23/2015. (Attachments: # 1 Attachment A)(BJS) (Entered: 10/23/2015)
519 Minute Entry for proceedings held before Magistrate Judge Becky R. Thorson: Settlement Conference held on 10/26/2015. (lmb) (Entered: 10/27/2015)
520 RECEIPT re: check number 00448068 in the amount of $8,212.50. (ALM) Document QC'd on 12/17/2015 (ALM). (Entered: 11/02/2015)
521 ORDER re 515 . The Court APPROVES the States Olmstead Plan Workplans. (Doc. No. [515−2].) See Order for details. Signed by Judge Donovan W. Frank on 11/06/2015. (RLB) (Entered: 11/06/2015)
522 LETTER TO MAGISTRATE JUDGE by Minnesota Department of Human Services, Minnesota, State of Letter from Mary Tingerthal, Chair, Olmstead Subcabinet, with attachments. (Noss, Anthony) (Entered: 11/09/2015)
523 LETTER TO MAGISTRATE JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Mary Tingerthal, Chair, Olmstead Subcabinet with attachments). (Noss, Anthony) (Entered: 11/12/2015)
524 DOCUMENT FILED IN ERROR−WILL REFILE. STIPULATION for Joint Motion for Negotiated Attorneys' Fees by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. Jointly Signed by Minnesota Department of Human Services. (O'Meara, Shamus) Modified text on 11/18/2015 (lmb). (Entered: 11/18/2015)
525 Joint MOTION for Attorney Fees by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (O'Meara, Shamus) (Entered: 11/18/2015)
526 ORDER.1. The Joint Motion for Negotiated Attorneys' Fees to Class Counsel (Doc. No. 525 ) is hereby GRANTED. 2. This Motion resolves the claims for attorneys' fees, costs, and disbursements made and incurred by Plaintiffs, on behalf of the Settlement Class, and represents the full and final settlement of attorneys' fees, costs, and disbursements related to issues of concern and non−compliance raised by Plaintiffs, on behalf of the Settlement Class, with regard to the Settlement Agreement through final disposition of the Settlement Agreement or the above−captioned matter, whichever comes later, except for requests or claims for reimbursement of attorneys' fees, costs, and disbursements incurred from the date of this Order due to proven intentional and willful misconduct which constitutes substantial non−compliance with the Settlement Agreement after the date of this Order. 3. Plaintiffs and the Settlement Class are not permitted to make any further request or claim for reimbursement of attorneys fees, costs, and disbursements, through the final disposition of the Settlement Agreement or the above−captioned matter, whichever comes later, except for requests or claims for reimbursement of attorneys' fees, costs, and disbursements incurred from the date of this Order due to proven intentional and willful conduct which constitutes substantial non−compliance with the Settlement Agreement after the date of this Order. 4. The notice requirements of Rule 23(h) of the Federal Rules of Civil procedure are not necessary and would be unduly burdensome in these circumstances where the negotiated attorneys' fees are sought in connection with post−settlement activities relating to non−monetary provisions of the Settlement Agreement and do not have any effect on the amounts awarded to Class Members by the Court. 5. Within ten (10) days of the date of this Order, the Department shall pay Fifty Thousand Dollars ($50,000) to the law firm of O'Meara, Leer, Wagner & Kohl, P.A. as Settlement Class Counsel in

11/25/2015 12/21/2015 01/05/2016 02/01/2016 02/02/2016
02/03/2016
02/03/2016 02/10/2016 02/10/2016 02/10/2016 02/12/2016 02/12/2016

this matter. Signed by Judge Donovan W. Frank on 11/20/2015. (BJS) (Entered: 11/20/2015)
527 ORDER. Pursuant to and under the terms of the Order of March 19, 2014, the Clerk shall forthwith issue a check to David Ferleger in the amount of $3,667.50 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 11/25/2015. (Attachments: # 1 Exhibit(s) A)(BJS) (Entered: 11/25/2015)
528 RECEIPT re check number 00450238 in the amount of $3,667.50, issued to Richard D. Sletten, Clerk. (ALM) QC'd on 1/20/2016 (JAM). (Entered: 12/21/2015)
529 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (letter from Charles E. Johnson, Deputy Commissioner). (Attachments: # 1 Minnesota Olmstead Subcabinet Report to the Court − Status Update March 1, 2015 − September 30, 2015, Gap Report)(Noss, Anthony) (Entered: 01/05/2016)
530 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner, to the Honorable Donovan W. Frank). (Noss, Anthony) (Entered: 02/01/2016)
531 REPORT Jensen Settlement Agreement Comprehensive Plan of Action (CPA) − Ninth Compliance Update Report, Reporting Period: May 1−September 30, 2015 by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Placeholder for Jensen Settlement Agreement Comprehensive Plan of Action (CPA) − Ninth Compliance Update Report, Reporting Period: May 1−September 30, 2015 (non−redacted version), # 2 Placeholder for Identifier Key to Jensen Settlement Agreement Comprehensive Plan of Action (CPA) − Ninth Compliance Update Report, Reporting Period: May 1−September 30, 2015, # 3 Affidavits for Jensen Settlement Agreement Comprehensive Plan of Action (CPA) − Ninth Compliance Update Report, Reporting Period: May 1−September 30, 2015)(Noss, Anthony) Sealed documents received on 2/2/2016 (JGK). (Entered: 02/02/2016)
532 ORDER/NOTICE OF SETTLEMENT MEETING: A settlement meeting with the attorneys on this case and those who have been invited separately by email will be held on February 23, 2016, starting at 9:30 a.m., in the Fifth Floor Conference Room, U.S. Courthouse, 316 North Robert Street, St. Paul, Minnesota, before United States Magistrate Judge Becky R. Thorson. Signed by Magistrate Judge Becky R. Thorson on 2/3/2016. (lmb) (Entered: 02/03/2016)
533 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 531 Report,,, (Noss, Anthony) (Entered: 02/03/2016)
536 LETTER TO DISTRICT JUDGE, LETTER TO MAGISTRATE JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner, DHS, regarding Court Monitor Invoice dated Feb.1, 2016). (Noss, Anthony) Modified text on 2/10/2016 (lmb). (Entered: 02/10/2016)
537 STATUS REPORT Regarding Plaintiffs' Proposal for Reporting on Jensen Agreement by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 Exhibit(s) A, # 2 Appendix A)(Azman, Mark) (Entered: 02/10/2016)
538 STATUS REPORT Regarding Plaintiffs' Proposal for Reporting on Olmstead Plan by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 Exhibit(s) A)(Azman, Mark) (Entered: 02/10/2016)
539 REQUEST (Defendants' Proposal on Compliance Reporting) by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Appendix A)(Noss, Anthony) (Entered: 02/12/2016)
540 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Commissioner Mary Tingerthal, Chair, Olmstead Subcabinet, with Attachments A−E). (Attachments: # 1 Defendants' Proposal for Olmstead Plan Compliance Reporting, # 2 Exhibit(s) A (Quality Reporting Schedule for Olmstead Plan Measurable Goals))(Noss, Anthony) (Entered: 02/12/2016)

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02/22/2016
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541 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Minnesota Department of Human Services, Minnesota, State of re 539 Request (Certificate of Service on [Propsed] Order Regarding Defendants' Proposal on Compliance Reporting) (Noss, Anthony) Modified text on 2/16/2016 (lmb). (Entered: 02/12/2016)
542 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Minnesota Department of Human Services, Minnesota, State of re 540 Letter to District Judge, (Certificate of Service on [Proposed] Order Regarding Defendants' Proposal for Olmstead Plan Compliance Reporting) (Noss, Anthony) Modified text on 2/16/2016 (lmb). (Entered: 02/12/2016)
543 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner). (Noss, Anthony) (Entered: 02/18/2016)
544 ORDER FOR REPORTING ON OLMSTEAD PLAN. 1. The Minnesota Department of Human Services ("DHS") shall submit to the Court, Plaintiffs' Class Counsel, the Ombudsman for Mental Health and Developmental Disabilities, and the Executive Director of the Minnesota Governor's Council on Developmental Disabilities ("Consultants") quarterly and annual status reports regarding Olmstead Plan implementation based on the schedule listed in the attached Exhibit A entitled "Quarterly Reporting Schedule for Olmstead Plan Measurable Goals." 2. The initial quarterly status report shall include data acquired by the Olmstead Implementation Office through the last day of January 2016, and shall be due on February 29, 2016. (See attached Exhibit A.) (See Order for additional information.) Signed by Judge Donovan W. Frank on 2/22/2016. (Attachments: # 1 Exhibit(s) A)(BJS) (Entered: 02/22/2016)
545 ORDER FOR REPORTING ON SETTLEMENT AGREEMENT. 1. The Minnesota Department of Human Services ("DHS") shall submit to the Court, Plaintiffs' Class Counsel, the Ombudsman for Mental Health and Developmental Disabilities, and the Executive Director of the Minnesota Governor's Council on Developmental Disabilities ("Consultants") exception, semi−annual, and annual Comprehensive Plan of Action ("CPA") reports based on the schedule listed in the attached Exhibit A entitled "Jensen Settlement Agreement Comprehensive Plan of Action Reporting Schedule. Appendix A." (See attached Exhibit A.) 2. Semi−annual reporting shall occur according to the following schedule: a. First semi−annual (January, February, March, April, May, June) CPA report due date August 31.2 b. Second semi−annual (July, August, September, October, November, December) CPA report due date February 28, or, in the case of a leap year, February 29. (See Order for additional information.)(Written Opinion). Signed by Judge Donovan W. Frank on 2/22/2016. (Attachments: # 1 Exhibit(s) A)(BJS) (Entered: 02/22/2016)
556 Minute Entry for proceedings held before Magistrate Judge Becky R. Thorson: Settlement meeting held on 2/23/2016. (JDF) Modified text on 4/4/2016 (JDF). (Entered: 04/01/2016)
546 ORDER. 1. Defendant DHS' formal objections to Invoice Number 384 (Doc. No. 536 ) are OVERRULED. 2. The Court Monitors attached Invoice Number 384 is APPROVED. 3. The Clerk shall forthwith issue a check to David Ferleger in the amount of $5,997.70 drawn on this litigation's registry account, pursuant to the terms of the Court's March 19, 2014 Order. Signed by Judge Donovan W. Frank on 2/24/2016. (Attachments: # 1 Exhibit(s) A)(BJS) (Entered: 02/24/2016)
547 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner regarding Minnesota Olmstead Subcabinet Quarterly Report on Measureable Goals, Feb. 22, 2016. (Attachments: # 1 Minnesota Olmstead Subcabinet Quarterly Report on Measureable Goals, Feb. 22, 2016, # 2 Verification of Michael Tessneer)(Noss, Anthony) (Entered: 02/29/2016)
548 RECEIPT check number 00454747 in the amount of $5,997.70. (las) Document QC'd on 3/2/2016 (JGK). Modified text on 3/3/2016 (las). (Entered: 03/01/2016)
549 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services. (las) Document QC'd by JGK on 3/23/2016 (JGK). (Entered: 03/15/2016)

03/14/2016 03/18/2016
03/18/2016
03/31/2016
03/31/2016 04/01/2016 04/07/2016 04/12/2016 04/18/2016 04/18/2016 04/19/2016 04/19/2016

550 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services. (Supplemental re: Letter 549 ) (las) Document QC'd by JGK on 3/23/2016 (JGK). (Entered: 03/15/2016)
551 ORDER. 1. Defendants' Verification Obligations. (See attached Exhibit A for a summary of the verification obligations discussed below.); 2. Changes to Subsequent Compliance Update Reports; 3. Court Monitoring. (See attached Exhibit B for a summary of the verification duties discussed below.) 4. Other Reporting Requirements (See Order for details on each ruling.) (Written Opinion). Signed by Judge Donovan W. Frank on 3/18/2106. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(BJS) (Entered: 03/18/2016)
552 TEXT ONLY NOTICE: The Court will hold a Status Conference in this matter on Monday, June 6, 2016 at 1:00 PM in Courtroom 7C (STP) before Judge Donovan W. Frank and Magistrate Judge Becky R. Thorson. The Status Conference will address the Olmstead Plan, the Jensen Settlement Agreement, and the Comprehensive Plan of Action. All counsel and the consultants shall appear. The Court may request the attendance of other participants separately by e−mail. The Court will issue a detailed order on the Status Conference Agenda at a later date. (BJS) (Entered: 03/18/2016)
553 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles Johnson, Deputy Commissioner enclosing Jensen Settlement Agreement Comprehensive Plan of Action (CPA) 2015 Compliance Annual Report). (Attachments: # 1 Jensen Settlement Agreement Comprehensive Plan of Action (CPA) 2015 Compliance Annual Report, Reporting Period: January 1 December 31, 2015, # 2 Placeholder for Identifer Key to Jensen Settlement Agreement Comprehensive Plan of Action (CPA) 2015 Compliance Annual Report, Reporting Period: January 1 December 31, 2015, # 3 Affidavits to Jensen Settlement Agreement Comprehensive Plan of Action (CPA) 2015 Compliance Annual Report, Reporting Period: January 1 December 31, 2015)(Noss, Anthony) Received Sealed Document 3/31/2016. Modified on 4/1/2016 (JLW). (Entered: 03/31/2016)
554 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 553 Letter to District Judge,,, (Noss, Anthony) (Entered: 03/31/2016)
555 TEXT ONLY ORDER: The deadline imposed in the Court's March 18, 2016 Order, (see Doc. No. 551 at 20, 23), for the Court Monitor, the designated DHS point person, the consultants, and Plaintiff's counsel to agree on the representative sampling for the Court Monitor's work is extended to Thursday, April 7, 2016, at 5:00 p.m. Signed by Judge Donovan W. Frank on 4/1/2016.(BJS) (Entered: 04/01/2016)
557 ORDER. Pursuant to and under the terms of the Order of March 19, 2014, the Clerk shall forthwith issue a check to David Ferleger in the amount of $5,107.50 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 4/7/2016. (Attachments: # 1 Exhibit(s) A)(BJS) (Entered: 04/07/2016)
558 ORDER. 1. Defendants will have until May 13, 2016 to submit an updated Olmstead Plan that incorporates their proposed goals for the remaining topic areas. 2. If the parties require further mediated discussions, they must contact Magistrate Judge Becky R. Thorson's Chambers before April 18, 2016 for scheduling. Signed by Judge Donovan W. Frank on 4/12/2016. (BJS) (Entered: 04/12/2016)
559 ORDER/NOTICE OF SETTLEMENT MEETING − Settlement Conference set for 5/6/2016 09:30 AM in the Fifth Floor Conference Room, U.S. Courthouse, 316 North Robert Street, St. Paul before Magistrate Judge Becky R. Thorson. Signed by Magistrate Judge Becky R. Thorson on 4/18/2016. (las) (Entered: 04/18/2016)
560 TEXT ENTRY ONLY NOTICE: The Court hereby sets a telephone status conference with counsel for the parties on Thursday, April 21, 2016, at 9:00 am. Call−in instructions will be provided. (MSK) (Entered: 04/18/2016)
561 RECEIPT re: check # 00457037 in the amount of $5,107.50. (las) Document QC'd on 4/19/2016 (las). (Entered: 04/19/2016)
562 TEXT ONLY ORDER: The deadline imposed in the Court's April 12, 2016 Order, (see Doc. No. 558 at 3), for the Defendants to submit an updated Olmstead Plan that incorporates their proposed goals for the two remaining topic areas is extended to June

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1, 2016. Signed by Judge Donovan W. Frank on 4/19/2016. (BJS) (Entered: 04/19/2016)
563 TEXT ONLY ORDER: The deadline imposed in the Courts March 18, 2016 Order, (see 551 at 23), for the Court Monitor to complete his verification efforts relating to Mobile Teams and the Successful Life Project is extended to May 13, 2016. By this date, the Court Monitor shall submit a summary report to the Court no more than fifteen pages in length. Signed by Judge Donovan W. Frank on 04/29/2016. (RLB) (Entered: 04/29/2016)
564 ORDER. 1. The parties shall attend a status conference on June 13, 2016, at 1:00 p.m., to provide the Court with an update on the status of W.O.'s transition from the Minnesota Security Hospital ("MSH"). This status conference will be held in the 7th Floor Conference Room of the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota 55101. The undersigned and Magistrate Judge Becky R. Thorson will be present at the status conference. In addition, the Court invites the Ombudsman for Mental Health and Developmental Disabilities, the Executive Director of the Minnesota Governor's Council on Developmental Disabilities, W.O.'s social workers and any involved mental health professionals, and the county officials involved in the state proceeding, including the Dakota County attorney and defense counsel, to the June 13, 2016 status conference. These listed individuals or the parties may also suggest additional invitees for the Court's consideration. 2. Any participant in the June 13, 2016 status conference may submit an update to the Court in writing regarding W.O.s provisional discharge plan and transition plan, Person Centered Plan, or Individual Education Program Plan no later than June 6, 2016. 3. Between March 25, 2016 and April 12, 2016, the Court received letter submissions from the Ombudsman for Mental Health and Developmental Disabilities, the Department of Human Services, and Plaintiffs' Counsel regarding incidents that have occurred during W.O.s placement at MSH. Although the Court acknowledges the importance of the issues raised in these letters, the Court will not be addressing these letter submissions or the incidents discussed therein at the June 13, 2016 status conference. Signed by Judge Donovan W. Frank on 5/11/2016. (BJS) (Entered: 05/11/2016)
565 REPORT TO THE COURT: Comprehensive Plan of Action − Evaluation Criteria 93 and 98 by Independent Consultant and Monitor David Ferleger. (BJS) (Entered: 05/11/2016)
566 TEXT ONLY ORDER: The Status Conference on W.O.s transition from the Minnesota Security Hospital, (see 564 ), is rescheduled to July 6, 2016 at 10:00 a.m. in the 7th Floor Conference Room of the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota 55101. The deadline for participants to optionally submit updates in writing to the Court, (see id. at 4), is moved to June 29, 2016. Signed by Judge Donovan W. Frank on 05/16/2016. (RLB) (Entered: 05/16/2016)
567 NOTICE of Withdrawal as Attorney (Brennaman, Nathan) (Entered: 05/17/2016)
568 ORDER (see Order for details). Signed by Judge Donovan W. Frank on 05/24/2016. (RLB) (Entered: 05/24/2016)
569 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Deputy Commissioner Charles E. Johnson Regarding Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measurable Goals, Reporting Period − data acquired through April 30, 2016. (Attachments: # 1 Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measurable Goals, Reporting Period − data acquired through April 30, 2016, # 2 Verification Regarding Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measurable Goals, Reporting Period − data acquired through April 30, 2016)(Noss, Anthony) (Entered: 05/27/2016)
570 ORDER. Pursuant to and under the terms of the Order of March 19, 2014, the Clerk shall forthwith issue a check to David Ferleger in the amount of $22,730.44 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 5/27/2016. (Attachments: # 1 Exhibit A)(BJS) (Entered: 05/27/2016)

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06/17/2016 06/21/2016

571 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Deputy Commissioner Charles E. Johnson dated May 31, 2016 regarding updated Olmstead Plan). (Attachments: # 1 Summary of Proposed June 2016 Updates to the Olmstead Plan, with Minnesotas Olmstead Plan, June 1, 2016 Update (black lined), # 2 Minnesotas Olmstead Plan, June 1, 2016 Update (clean version))(Noss, Anthony) (Entered: 05/31/2016)
572 REPORT (Jensen Settlement Agreement Comprehensive Plan of Action (CPA), Report to the Court In Response to March 18, 2016 Order (Doc. No. 551) Filed May 31, 2016 by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Affidavit of Daniel J. Baker, Ph.D., NAADD−CC, Concerning Jensen Settlement Agreement Comprehensive Plan of Action (CPA), Report to the Court In Response to March 18, 2016 Order (Doc. No. 551) Filed May 31, 2016, # 2 Affidavit of Margaret Fletcher Booth, Ph.D. Concerning Jensen Settlement Agreement Comprehensive Plan of Action (CPA), Report to the Court In Response to March 18, 2016 Order (Doc. No. 551) Filed May 31, 2016)(Noss, Anthony) (Entered: 05/31/2016)
573 EXHIBIT re 572 Report,, Exhibits A and B to Jensen Settlement Agreement Comprehensive Plan of Action (CPA), Report to the Court In Response to March 18, 2016 Order (Doc. No. 551) Filed May 31, 2016 by Minnesota Department of Human Services, Minnesota, State of. (Noss, Anthony) (Entered: 05/31/2016)
574 RECEIPT: Received from Richard D. Sletten, Clerk of the United States District Court, District of Minnesota; check number 00459934 in the amount of twenty two thousand seven hundred thirty dollars and forty four cents ($22,730.44). (AKL) QC'd on 6/28/2016 (SAE). (Entered: 06/06/2016)
576 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 6/6/2016. (Court Reporter Jeanne Anderson) (BJS) (Entered: 06/07/2016)
575 TEXT ONLY ORDER: Consistent with the Court's comments at the June 6, 2016 Status Conference in this matter, the parties shall submit letter submissions of no more than three pages summarizing their positions on the propriety of publicly filing letters submitted by the Ombudsman for Mental Health and Developmental Disabilities, the Department of Human Services, and Plaintiffs' Counsel. The parties shall articulate a legal rationale for whether the letters should be made public, kept private, or kept private in part. Any request for redactions must be specified in detail. Such letters shall be submitted to the Court no later than Monday, June 13th, 2016 at 5:00 p.m. Signed by Judge Donovan W. Frank on 6/7/2016. (BJS) (Entered: 06/07/2016)
577 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of Letter from Charles E. Johnson, Deputy Commissioner. (Attachments: # 1 Letter from Commissioner Mary Tingerthal, Chair, Olmstead Subcabinet)(Noss, Anthony) (Entered: 06/17/2016)
578 ORDER. 1. Jensen Settlement Agreement & Comprehensive Plan of Action a. External Reviewer Function i. The Court has received and reviewed the parties submissions and proposed orders regarding the External Reviewer function. Each party and the Consultants also had an opportunity to comment on these proposals during the June 6, 2016 Biannual Status Conference. The Court declines to adopt either proposed order. Absent agreement of the parties regarding whether or how to amend the External Reviewer function as set forth in the Jensen Settlement Agreement and the CPA, the Court concludes it is most appropriate to maintain the status quo. The External Reviewer function will continue to be governed by the provisions of the Jensen Settlement Agreement, the CPA, and prior orders of the Court. (See Doc. No. 136−1, Stipulated Class Action Settlement Agreement at 11−13; Doc. No. 212, April 25, 2013 Order at 6; Doc. No. 283, Second Amended Comprehensive Plan of Action at 13−14.) Thus, the Court Monitor will continue to fill the External Reviewer role for the purposes previously established by agreement of the parties. (See id.) ii. As directed under the Court's March 18, 2016 Order, the Court Monitor's duties in this regard, including reporting requirements, are currently stayed. (See Doc. No. 551 at 24.) The Court reserves the right to order that these duties resume or make further modifications to the Court Monitor's duties at any time consistent with the Court's exercise of its discretion. (See id.) iii. Nothing in this Order precludes the parties from further meeting and conferring or from submitting additional proposals or stipulations on the External Reviewer function. If the parties do so, the Court urges the parties to

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collaborate with the Consultants. (See Order for additional information.) Signed by Judge Donovan W. Frank on 6/21/2016. (BJS) (Entered: 06/21/2016)
579 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference on W.O. held on 7/6/2016. (Court Reporter NA) (BJS) (Entered: 07/13/2016)
580 ORDER. 1. The Court's August 19, 2015 Order 494 addressing W.O.'s discharge from the Minnesota Security Hospital ("MSH") is hereby superseded. 2. The Court APPROVES of W.O.'s discharge from MSH and APPROVES of W.O.'s current community placement. 3. The Department of Human Services ("DHS") shall immediately notify the Court; Plaintiffs' Counsel; the Ombudsman for Mental Health and Developmental Disabilities and the Executive Director of the Minnesota Governor's Council on Developmental Disabilities (together, "Consultants"); and the Court Monitor if it contemplates moving W.O. from his current placement at any point in the future or if it intends to issue any variances regarding the placement of individuals committed solely as a person with a developmental disability to MSH. 4. On October 11, 2016, DHS shall provide the Court, Plaintiffs' Counsel, and the Consultants with a Non−Appearance Review updating the Court on W.O.'s status. This Non−Appearance Review shall include a status update on what DHS has done to facilitate W.O.'s transition to his community home, school placement, and access to necessary clinical services. 5. DHS shall provide the Consultants with any information the Consultants request regarding W.O. (e.g., W.O.'s Individual Education Program ("IEP") Plan, Person Centered Plan, or transition plan). 6. Any concerns of the Consultants regarding W.O. should be raised directly with DHS, copying the Court and Plaintiffs' Counsel. If a party seeks relief from the Court, the party should file an appropriate motion. 7. As the Court has stated in prior orders, it is the Court's expectation that there will be collaboration between the parties, the Consultants, and the involved county officials with respect to W.O.'s situation. 8. The Court reserves the right to address W.O.'s status at a future status conference or by separate order. Signed by Judge Donovan W. Frank on 07/22/2016. (RLB) (Entered: 07/22/2016)
581 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner re: New Olmstead Plan Workplans). (Attachments: # 1 Olmstead Plan Workplans for the June 1, 2016 Update − July 29, 2016)(Noss, Anthony) (Entered: 08/01/2016)
582 ORDER OF REASSIGNMENT OF RELATED CASES that 16−cv−2623 (ADM/SER) has been reassigned to Judge Donovan W. Frank and Magistrate Judge Becky R. Thorson. Signed by Judge Donovan W. Frank on 8/8/2016 and Judge Ann D. Montgomery on 8/10/2016. (lmb) (Entered: 08/10/2016)
583 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Attachments: # 1 Exhibit(s) A)(Ikeda, Scott) (Entered: 08/16/2016)
584 TEXT ORDER: Any response by Plaintiffs to Defendants' August 16, 2016 letter requesting permission to file a motion to reconsider shall be filed by August 24, 2016. Defendant's request for permission to file their July 11, 2016 response to the Court's July 7, 2016 proposed order on ECF is GRANTED. The parties may file their July 11, 2016 responses on ECF on or before August 22, 2016. Signed by Judge Donovan W. Frank on 8/19/2016. (BJS) (Entered: 08/19/2016)
585 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Defs' 7−11−16 correspondence). (Ikeda, Scott) (Entered: 08/19/2016)
586 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen in opposition to 08/16/16 DHS Request to Reconsider Order of July 22, 2016 [No. 580]. (Azman, Mark) (Entered: 08/24/2016)
587 ORDER. 1. The Court APPROVES the State's additional Olmstead Plan Workplans. 2. The Court notes that these Workplans cover only a "one to two−year time span," (Doc. No. 581), and "are intended to be flexible blueprints capable of modification when necessary to better accomplish strategies." (Id.) The Court reserves the right to exercise its continuing jurisdiction to ensure that compliance with the Settlement Agreement is verified going forward. The Court will continue to carry out its oversight

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responsibility as the Workplans are updated to oversee the States efforts in following through on the commitments it has made. Signed by Judge Donovan W. Frank on 8/29/2016. (BJS) (Entered: 08/29/2016)
588 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Attachments: # 1 Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measurable Goals Reporting Period data acquired through July 31, 2016 Date Report Approved by Subcabinet August 22, 2016, # 2 Verification of Michael Tessneer)(Noss, Anthony) (Entered: 08/31/2016)
589 REPORT (Jensen Settlement Agreement Comprehensive Plan of Action (CPA) August 2016 Semi Annual Compliance Report Reporting Period: October 1, 2015 June 30, 2016) by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Placeholder for Identifier Key to Jensen Settlement Agreement Comprehensive Plan of Action (CPA) August 2016 Semi Annual Compliance Report Reporting Period: October 1, 2015 June 30, 2016, # 2 Affidavits regarding Jensen Settlement Agreement Comprehensive Plan of Action (CPA) August 2016 Semi Annual Compliance Report Reporting Period: October 1, 2015 June 30, 2016)(Noss, Anthony) Sealed document received on 8/31/2016. Modified on 9/19/2016 (JGK). (Entered: 08/31/2016)
590 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Ikeda, Scott) (Entered: 09/07/2016)
591 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Azman, Mark) (Entered: 09/12/2016)
592 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 589 Report,, (Noss, Anthony) (Entered: 09/14/2016)
593 ORDER. 1. David Ferleger remains appointed as the Court Monitor and External Reviewer in this case. Pursuant to the Court's March 18, 2016 Order, the Court Monitor's duties directed under prior Orders, including periodic reporting requirements, were stayed. (Doc. No. 551 at 24.) The Court, however, stated that it "reserve[d] the right to direct the Court Monitor to investigate and verify other issues that may arise in the future," and that it "may issue subsequent orders on the scope of the Court Monitor's role." (Id.) 2. A separate Order will follow indicating the next steps the Court Monitor will take regarding the investigation and monitoring of Defendants' compliance with the Jensen Settlement Agreement and the CPA. Signed by Judge Donovan W. Frank on 9/21/2016. (BJS) (Entered: 09/21/2016)
594 ORDER. 1. The State Defendants letter request for leave to file a motion for reconsideration of the Court's July 22, 2016 Order (Doc. No. 583 ) is DENIED. Signed by Judge Donovan W. Frank on 9/21/2016. (BJS) (Entered: 09/21/2016)
595 ORDER. 1. The Court's stay on the Court Monitor's duties is hereby lifted as follows. The Court Monitor shall review the Jensen Settlement Agreement Comprehensive Plan of Action (CPA) August 2016 Semi−Annual Compliance Report, Reporting Period: October 1, 2015 June 30, 2016 (Doc. No. 589), along with prior reports that addressed ECs not covered in the most recent report, review the JSA and CPA, and provide the Court with a report that assesses substantial compliance with regard to all components of the JSA and CPA based on his review of those documents. In addition, the Court Monitor shall identify in its report to the Court those areas where he needs more information and his recommendation for obtaining that information. The Court Monitor's report should be provided to the Court by October 21, 2016. Signed by Judge Donovan W. Frank on 9/29/2016. (BJS) (Entered: 09/29/2016)
596 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner of DHS, to Honorable Donovan W. Frank Regarding Olmstead Plan Refreshed Workplans). (Attachments: # 1 Letter from Mary Tingerthal, Chair, Olmstead Subcabinet, # 2 Olmstead Plan Workplans, September 28, 2016)(Noss, Anthony) (Entered: 09/30/2016)
597 TEXT ONLY ENTRY ORDER: The Court is in receipt of the refreshed Olmstead Plan Workplans, filed on September 30, 2016. (Doc. No. 596 .) The next status conference on the Olmstead Plan will be held before the Court in January 2017. The

10/26/2016 10/26/2016
11/10/2016 11/10/2016 11/28/2016 11/28/2016 11/29/2016

Court will invite proposals for agenda items at a later date. Any concerns about the Workplans can be brought to the Court's attention at that time. Signed by Judge Donovan W. Frank on 10/26/2016. (BJS) (Entered: 10/26/2016)
598 TEXT ONLY ENTRY ORDER: The Court has received the status report on W.O. as required pursuant to the Court's 7/22/16 Order (Doc. No. 580 ). The Court does not request anything further at this time, except notes the requirements in the 7/22/16 Order remain in effect. If Plaintiffs, or anyone else on W.O.'s behalf, seek any relief with respect to W.O., they must do so by bringing a motion before the Court. Signed by Judge Donovan W. Frank on 10/26/2016. (BJS) (Entered: 10/26/2016)
599 ORDER. 1. Absent further order of the Court, the Court Monitor shall meet about the substance of the Court Monitor's compliance assessment report with the parties or party representatives1 on or before November 14, 2016, to discuss the areas identified by the Court Monitor as being in non−compliance or inconclusive, and to discuss verification processes and concerns. 2. The Court Monitor may amend his compliance assessment report as he finds appropriate after the meet and confer and shall file his compliance assessment report (as amended) on or before November 28, 2016. 3. Defendants may thereafter file a response to the Court Monitor's compliance assessment report by December 12, 2016. 4. The next bi−annual Status Conference in this case will be held on December 22, 2016, at 1:00 p.m., in Courtroom 7C, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota, before Judge Donovan W. Frank and Magistrate Judge Becky R. Thorson. The Status Conference will include time for the parties, Court Monitor, and Court Consultants to present positions, comments, or recommendations regarding the current status of compliance or non−conpliance of the Jensen Settlement Agreement and Comprehensive Plan of Action ("CPA"). Signed by Judge Donovan W. Frank on 10/26/2016. (BJS) (Entered: 10/26/2016)
600 TEXT ONLY NOTICE of Resetting of Hearing: The bi−annual Status Conference previously scheduled for 12/22/2016, at 1:00 PM, Courtroom 7C, has been rescheduled to 1/05/2016 at 9:30 AM in Courtroom 7C, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota, before Judge Donovan W. Frank and Magistrate Judge Becky R. Thorson. The parties, Court Monitor, and Court Consultants may submit proposed agenda items to the Court no later than Thursday, December 15, 2016. Such proposals shall be submitted to the Chambers of Judge Donovan W. Frank by e−mail. Signed by Judge Donovan W. Frank on 11/10/16. (BJS) (Entered: 11/10/2016)
601 AMENDED TEXT ONLY NOTICE of Resetting of Hearing: The bi−annual Status Conference previously scheduled for 12/22/2016, at 1:00 PM, Courtroom 7C, has been rescheduled to 1/05/2017 at 9:30 AM in Courtroom 7C, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota, before Judge Donovan W. Frank and Magistrate Judge Becky R. Thorson. The parties, Court Monitor, and Court Consultants may submit proposed agenda items to the Court no later than Thursday, December 15, 2016. Such proposals shall be submitted to the Chambers of Judge Donovan W. Frank by e−mail. Signed by Judge Donovan W. Frank on 11/10/16. (BJS) (Entered: 11/10/2016)
602 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter filing Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measurable Goals, Reporting Period Data acquired through October 31, 2016, pursuant to Court's Orders at Doc. Nos. 544 and 578). (Attachments: # 1 Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measurable Goals, Reporting Period Data acquired through October 31, 2016, # 2 Verification of Michael Tessneer)(Noss, Anthony) (Entered: 11/28/2016)
603 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Formal objection to invoice dated November 9, 2016, filed pursuant to Court's Order at Doc. 286). (Attachments: # 1 Attachment A to formal objection to invoice dated Nov. 9, 2016, # 2 Attachment B to formal objection to invoice dated Nov. 9, 2016)(Noss, Anthony) (Entered: 11/28/2016)
604 REPORT TO THE COURT: Compliance Assessment Pursuant to Order of September 29, 2016 (Doc. No. 595) by Court Monitor David Ferleger. (BJS) (Entered: 11/29/2016)

12/12/2016 12/12/2016 12/22/2016
12/23/2016 01/05/2017 01/17/2017

605 ORDER. 1. Defendant DHS's formal objections to Invoice Number 397 (Doc. No. 603 ) are OVERRULED. 2. The Court Monitor's attached Invoice Number 397 is APPROVED with the exclusion of ten line items totaling $517.50 which the parties have informally agreed to exclude. (See Doc. No. 603−2.) 3. The Clerk shall forthwith issue a check to David Ferleger in the amount of $23,546.70 drawn on this litigation's registry account, pursuant to the terms of the Court's March 19, 2014 Order. Signed by Judge Donovan W. Frank on 12/12/2016. (Attachments: # 1 Exhibit A)(BJS) (Entered: 12/12/2016)
606 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter Filing Department of Human Services Response to Court Monitors Compliance Assessment (Doc. No. 604) Pursuant to October 26, 2016 Order (Doc. No. 599) Filed December 12, 2016). (Attachments: # 1 Letter from Commissioner Emily Piper Enclosing Department of Human Services Response to Court Monitors Compliance Assessment (Doc. No. 604) Pursuant to October 26, 2016 Order (Doc. No. 599) Filed December 12, 2016, # 2 Department of Human Services Response to Court Monitors Compliance Assessment (Doc. No. 604) Pursuant to October 26, 2016 Order (Doc. No. 599) Filed December 12, 2016)(Noss, Anthony) (Entered: 12/12/2016)
608 ORDER. The Court's agenda for the January 5, 2017 Status Conference is as follows: 1. Call to Order 2. Introductions 3. Overview by the Court 4. Discussion of Selected Evaluation Criteria (ECs) a. Defendants shall report on what actions they have completed or efforts they have undertaken with respect to the following ECs: i. EC 6. Restraint: Prohibited Restraint Not Used ii. EC 8. Restraint: Emergency Restraint Only iii. EC 9. Restraint Policy Followed iv. EC 25. Abuse/Neglect Investigations v. EC 26. Abuse/Neglect Staff Discipline vi. EC 27. Abuse/Neglect: Prosecution Referral vii. EC 89. MLB Staff Experience viii. EC 90. Integrated Vocational Options ix. EC 91. Person−Centered Planning Requirements Met x. EC 92. Transition Planning Requirements Met xi. EC 93. Diversion Supports and Data Analysis xii. EC 94. Licensure Required Under CPA xiii. EC 96. Staff Training Emphasizes Community xiv. EC 98. Successful Life Project b. To accomplish item 4a., above, Defendants shall identify individuals with knowledge to report on what actions they have completed or efforts they have undertaken with respect to each EC, along with presentations by counsel for Defendants, if any. c. Following Defendants' presentation for each EC, the Court Monitor, Plaintiffs' Class Counsel, and the Consultants may present or provide comments or observations regarding these ECs. 5. Follow−Up Items from June 6, 2016 Biannual Status Conference a. Defendants' Verification Protocols. (See Doc. No. 578 at 6−7.) b. Communications Plan Addressing Misconceptions. (See id. at 11.) 6. Opportunities for Clarification in Compliance Reporting a. DHS request for clarification in compliance reporting on ECs 1, 51, 65, 66, 69, 93, 96. 7. Next Steps. Signed by Judge Donovan W. Frank on 12/22/2016. (BJS) (Entered: 12/22/2016)
609 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Deputy Commissioner Charles E. Johnson to the Honorable Donovan W. Frank enclosing the Minnesota Olmstead Subcabinet Annual Report on Olmstead Plan Implementation, Reported Period data acquired through October 31, 2016, Date Report Approved by Subcabinet December 19, 2016). (Attachments: # 1 Minnesota Olmstead Subcabinet Annual Report on Olmstead Plan Implementation, Reported Period data acquired through October 31, 2016, Date Report Approved by Subcabinet December 19, 2016, # 2 Verification of Michael Tessneer dated Dec. 22, 2016)(Noss, Anthony) (Entered: 12/23/2016)
611 Minute Entry for proceedings held before Judge Donovan W. Frank: Biannual Status Conference held on 1/5/2017. (Court Reporter Jeanne Anderson) (RLB) (Entered: 01/05/2017)
612 ORDER. 1. DHS shall submit the following reports according to the schedule identified in the Court's Order for Reporting on Settlement Agreement (see Doc. No. 545):a. Semi−Annual Compliance Report covering the period of July 1, 2016 to December 31, 2016 (due February 28, 2017). b. Annual Report covering the period of January 1, 2016 to December 31, 2016 (due March 31, 2017). 2. In all future reports, DHS shall incorporate the improvements and clarifications it identified in its Response to the Court Monitor's Compliance Assessment with respect to ECs 1, 51, 65, 66, 69, 93, and 96. (See Doc. No. 606−2.) 3. The Court Monitor's duties shall remain stayed pending DHS's submission of the above reports. Once the reports are submitted, the

01/25/2017 02/24/2017
02/27/2017 02/28/2017 02/28/2017 03/08/2017

Court will determine the extent to which any follow−up monitoring or DHS verification is needed. The Court reserves the right to direct the Court Monitor to investigate or verify other issues that may arise. Signed by Judge Donovan W. Frank on 1/17/2017. (BJS) (Entered: 01/17/2017)
613 TEXT ONLY NOTICE: The next bi−annual Status Conference on the Olmstead Plan will take place on 03/24/2017 at 9:30 AM in Courtroom 7C, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota, before Judge Donovan W. Frank and Magistrate Judge Becky R. Thorson. Signed by Judge Donovan W. Frank on 01/25/2017. (BJS) (Entered: 01/25/2017)
614 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Deputy Commissioner Charles E. Johnson enclosing February 2017 Semi−Annual Compliance Report, Reporting Period July 1, 2016 − December 31, 2016). (Attachments: # 1 Jensen Settlement Agreement Comprehensive Plan of Action (CPA) February 2017 Semi Annual Compliance Report Reporting Period: July 1, 2016 − December 31, 2016, # 2 Placeholder for Unredacted Version of Jensen Settlement Agreement Comprehensive Plan of Action (CPA) February 2017 Semi Annual Compliance Report Reporting Period: July 1, 2016 − December 31, 2016, # 3 Placeholder for Identifier Key to Jensen Settlement Agreement Comprehensive Plan of Action, # 4 Affidavits concerning verification of February 2017 Semi−Annual Compliance Report)(Noss, Anthony) Sealed document received on 2/24/2017 (JGK). (Entered: 02/24/2017)
615 CERTIFICATE OF SERVICE by Minnesota Department of Human Services, Minnesota, State of re 614 Letter to District Judge,,, (Noss, Anthony) (Entered: 02/27/2017)
616 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner of DHS to Honorable Donovan W. Frank regarding the Olmstead Plan February 2017 Revision.). (Attachments: # 1 Putting the Promise of Olmstead into Practice: Minnesotas Olmstead Plan February 2017 Revision (tracked changes), # 2 Putting the Promise of Olmstead into Practice: Minnesotas Olmstead February 2017 Revision)(Winter, Aaron) (Entered: 02/28/2017)
617 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Deputy Commissioner Charles E. Johnson filing Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measurable Goals, Reporting Period data acquired through January 31, 2017). (Attachments: # 1 Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measurable Goals, Reporting Period data acquired through January 31, 2017, # 2 Verification of Michael Tessneer)(Noss, Anthony) (Entered: 02/28/2017)
618 ORDER (Filing Documents Under Seal). 1. The Court grants the parties leave to file documents under seal (other than in connection with a motion under LR 7.1) in the manner provided by this Order. 2. Filing Under Temporary Seal. A party seeking to file a document under seal must first file the document under temporary seal. That party must file the temporarily sealed document separately so that the document is assigned its own docket number. 3. Redacted Public Version. A party filing a document under temporary seal must contemporaneously and publicly file: a. a version of that document with the confidential information redacted; or b. a statement that the entire document is confidential or that redaction is impracticable. 4. Affidavit on Sealed Filing. A party filing a document under temporary seal must contemporaneously and publicly file an affidavit justifying the need to file the document under seal. The affidavit must explain why the need for confidentiality outweighs the publics right of access to the particular information being sealed. If multiple documents are contemporaneously filed under temporary seal, one affidavit may be used in connection with all of the documents. However, the affidavit should include a separate explanation for each separate sealed filing. 5. Expiration of Temporary Seal. Once all of the items above are filed consistent with this Order, a document filed under temporary seal will remain sealed until the Court orders otherwise. Signed by Judge Donovan W. Frank on 3/8/2017. (BJS) (Entered: 03/08/2017)

03/16/2017 03/24/2017 03/31/2017 03/31/2017 03/31/2017 03/31/2017 03/31/2017
04/05/2017
04/06/2017 04/14/2017 04/14/2017 04/18/2017

619 ORDER. The Court's agenda for the March 24, 2017 Status Conference is as follows: (See Order for details.) Signed by Judge Donovan W. Frank on 3/16/2017. (BJS) (Entered: 03/16/2017)
620 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 3/24/2017. (Court Reporter Jeanne Anderson, Carla Bebault) (BJS) (Entered: 03/28/2017)
621 SEALED Jensen Settlement Agreement Comprehensive Plan Of Action (CPA) March 2017 Annual Compliance Report Reporting Period: January 1, 2016 December 31, 2016 by Minnesota Department of Human Services, State of Minnesota. (Winter, Aaron) (Entered: 03/31/2017)
622 Redacted Document for 621 Sealed Jensen Settlement Agreement Comprehensive Plan Of Action (CPA) March 2017 Annual Compliance Report Reporting Period: January 1, 2016 December 31, 2016 . (Winter, Aaron) (Entered: 03/31/2017)
623 SEALED Identifier Key to Jensen Settlement Agreement Comprehensive Plan Of Action (CPA) March 2017 Annual Compliance Report Reporting Period: January 1, 2016 December 31, 2016 re 621 Sealed Document by Minnesota Department of Human Services, State of Minnesota. (Winter, Aaron) (Entered: 03/31/2017)
624 Redacted Document for 623 Sealed Identifier Key to Jensen Settlement Agreement Comprehensive Plan Of Action (CPA) March 2017 Annual Compliance Report Reporting Period: January 1, 2016 December 31, 2016 . (Winter, Aaron) (Entered: 03/31/2017)
625 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Deputy Commissioner E. Johnson dated March 24, 2017 regarding the Comprehensive Plan Of Action (CPA) March 2017 Annual Compliance Report Reporting Period: January 1, 2016 December 31, 2016. (Attachments: # 1 Affidavits to Jensen Settlement Agreement Comprehensive Plan Of Action (CPA) March 2017 Annual Compliance Report Reporting Period: January 1, 2016 December 31, 2016)(Winter, Aaron) (Entered: 03/31/2017)
626 ORDER. 1. At the March 24, 2017 Biannual Status Conference, Commissioner Mary Tingerthal, the Chair of the Olmstead Subcabinet, presented two administrative proposals for the Court's approval. First, Commissioner Tingerthal proposed an adjustment to the current reporting schedule to move the deadline for reporting Olmstead Plan amendments to March 31. Second, Commissioner Tingerthal proposed that Olmstead Plan Workplans no longer be submitted to the Court for review or approval. The Court appreciates Commissioner Tingerthal's attentiveness to ensuring the accuracy of Olmstead Plan reporting and the efficiency of the Olmstead Subcabinet's efforts. Consistent with these aims, the Court APPROVES Commissioner Tingerthal's proposals. To the extent prior Orders of the Court are inconsistent with these proposals, they are hereby superseded. 2. In light of Defendants' objection to the Court's jurisdiction, the Court directs the parties to submit briefing on this issue, addressing whether the Court presently has jurisdiction over this case. The parties shall meet and confer to establish a briefing schedule and submit a proposal to the Court for approval no later than Friday, April 14, 2017. If the parties cannot agree on a briefing schedule, the Court will impose a schedule. The Court reserves the right to hold a hearing on Defendants' jurisdictional objection or direct further briefing from the parties. Signed by Judge Donovan W. Frank on 4/5/2017. (BJS) (Entered: 04/05/2017)
627 TRANSCRIPT REQUEST by Minnesota Department of Human Services, Minnesota, State of for a 30−Day Transcript to Court Reporters Jeanne Anderson and Carla Bebault. (Noss, Anthony) (Entered: 04/06/2017)
628 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (regarding Doc 626). (Ikeda, Scott) (Entered: 04/14/2017)
629 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Azman, Mark) (Entered: 04/14/2017)
630 TEXT ONLY ORDER: The Court has reviewed the letters submitted by the parties addressing the briefing schedule on Defendants' objection to the Court's jurisdiction over this matter. (Doc. Nos. 628 , 629 .) The parties shall submit briefs on this issue consistent with this Order. First, Defendants shall file an opening brief no later than

04/28/2017 05/02/2017 05/02/2017

Friday, April 28, 2017. Second, Plaintiffs shall file a response no later than Friday, May 19, 2017. Third, Defendants shall file a reply no later than Friday, June 2, 2017. The Court concludes this schedule is appropriate in light of the Local Rules establishing time limits for briefing on dispositive motions. See LR 7.1(c)(2)−(3). The Court reserves the right to hold a hearing. Signed by Judge Donovan W. Frank on 4/18/2017. (BJS) (Entered: 04/18/2017)
631 STATE DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF DISMISSAL FOR LACK OF JURISDICTION re 630 Order (Text Only). (Ikeda, Scott) Modified text on 5/2/2017 (LEG). (Entered: 04/28/2017)
632 NOTICE of Filing of Official Transcript. This filing has 1 transcript(s) associated with it. (JMA) (Entered: 05/02/2017)
633 TRANSCRIPT of Biannual Status Conference held on 03/24/2017 before Judge Donovan W. Frank. (112 pages). Court Reporter: Jeanne Anderson/Carla Bebault. For a copy of the transcript, please file a Transcript Request under Other Filings/Other Documents.

05/19/2017 05/19/2017 05/30/2017
06/02/2017 06/28/2017
07/26/2017 07/27/2017 07/31/2017 08/04/2017 08/30/2017

For information on redaction procedures, please review Local Rule 5.5. Redaction Request due 5/23/2017. Redacted Transcript Deadline set for 6/2/2017. Release of Transcript Restriction set for 7/31/2017. (JMA) (Entered: 05/02/2017)
634 MEMORANDUM re 630 Order (Text Only) 626 Order, filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Azman, Mark) (Entered: 05/19/2017)
635 DECLARATION of Shamus P. O'Meara re 626 Order, 630 Order (Text Only), by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C, # 4 Exhibit(s) D, # 5 Exhibit(s) E)(Azman, Mark) (Entered: 05/19/2017)
636 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner, to the Honorable Donovan W. Frank, regarding Minnesota Olmstead Subcabinet May 22, 2017 Quarterly Report on Measureable Goals). (Attachments: # 1 Minnesota Olmstead Subcabinet May 22, 2017 Quarterly Report on Measureable Goals, # 2 Verification of Michael Tessneer)(Noss, Anthony) (Entered: 05/30/2017)
637 BRIEF re 630 Order (Text Only),,, Defendants' Reply in Support of Dismissal for Lack of Jurisdiction). (Ikeda, Scott) (Entered: 06/02/2017)
638 ORDER. 1. Defendants' objection to the Court's continuing jurisdiction is OVERRULED. 2. Absent further order of the Court, all reporting obligations previously imposed shall remain in place. 3. The Court will convene a bi−annual status conference in this matter in December 2017. Prior to this status conference, the parties shall meet and confer to discuss the essential steps that remain in Defendants' implementation of the Agreement before the Court can equitably terminate its jurisdiction over this matter. (Written Opinion). Signed by Judge Donovan W. Frank on 6/28/2017. (BJS) (Entered: 06/28/2017)
639 NOTICE OF APPEAL TO 8TH CIRCUIT as to 638 Order,, by Minnesota Department of Human Services, Minnesota, State of. Filing fee $ 505, receipt number AMNDC−5633404. (Ikeda, Scott) (Entered: 07/26/2017)
640 TRANSMITTAL OF APPEAL LETTER TO U.S. COURT OF APPEALS, 8TH CIRCUIT, Re: Notice of Appeal to 8th Circuit 639 . (lmb) (Entered: 07/27/2017)
641 USCA Case Number 17−2653 for 639 Notice of Appeal to 8th Circuit filed by Minnesota Department of Human Services, Minnesota, State of. (AKL) (Entered: 08/01/2017)
642 Minute Entry for proceedings held before Magistrate Judge Becky R. Thorson: Telephone Status Conference held on 8/4/2017. (las) (Entered: 08/04/2017)
643 SEALED Jensen Settlement Agreement Comprehensive Plan of Action (CPA) August 2017 Semi−Annual Compliance Report, Reporting Period: Jan. 1, 2017 June 30, 2017

08/30/2017 08/30/2017 08/30/2017 08/30/2017 08/30/2017
08/31/2017
08/31/2017 09/13/2017 09/13/2017 09/13/2017 09/20/2017 10/04/2017
10/20/2017 10/20/2017 10/20/2017

by State Defendants. (Noss, Anthony) (Entered: 08/30/2017)
644 Redacted Document for 643 Sealed Jensen Settlement Agreement Comprehensive Plan of Action (CPA) August 2017 Semi−Annual Compliance Report, Reporting Period: Jan. 1, 2017 June 30, 2017 . (Noss, Anthony) (Entered: 08/30/2017)
645 SEALED Jensen Settlement Agreement Comprehensive Plan of Action (CPA) 2017 Semi−Annual Compliance Report Identifier Key, Reporting Period: Jan. 1, 2017 June 30, 2017 by State Defendants. (Noss, Anthony) (Entered: 08/30/2017)
646 Redacted Document for 645 Sealed Jensen Settlement Agreement Comprehensive Plan of Action (CPA) 2017 Semi−Annual Compliance Report Identifier Key, Reporting Period: Jan. 1, 2017 June 30, 2017 . (Noss, Anthony) (Entered: 08/30/2017)
647 AFFIDAVIT of Margaret Fletcher Booth re 644 Redacted Document, 646 Redacted Document, 643 Sealed Document, 645 Sealed Document byMinnesota Department of Human Services, Minnesota, State of. (Noss, Anthony) (Entered: 08/30/2017)
648 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter re: 643 , 644 , 645 , 646 , Jensen Settlement Agreement Comprehensive Plan of Action (CPA) August 2017 Semi−Annual Compliance Report, Reporting Period: Jan. 1, 2017 June 30, 2017 ). (Attachments: # 1 Affidavits of Daniel J. Baker, Margaret Fletcher Booth, Steven Dahl, Michael Tessneer, Karen Sullivan Hook, and Mark Brostrom)(Noss, Anthony) Modified links on 8/31/2017 (lmb). (Entered: 08/30/2017)
649 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner, DHS, to the Honorable Donovan W. Frank, re: August 2017 Olmstead Plan Quarterly Report). (Attachments: # 1 Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measureable Goals, Reporting Period Data Acquired Through July 31, 2017, # 2 Verification of Michael Tessneer)(Noss, Anthony) (Entered: 08/31/2017)
650 ORDER of USCA as to 639 Notice of Appeal to 8th Circuit filed by Minnesota Department of Human Services, Minnesota, State of (received electronically from COA) (AKL) (Entered: 08/31/2017)
651 DOCUMENT FILED IN ERROR − INCORRECT CASE JUDGMENT (Attachments: # 1 Civil Notice − appeal)(MMP) Modified TEXT on 9/13/2017 (MMP). (Entered: 09/13/2017)
NOTICE OF DOCKETING CORRECTION − DOCUMENT 651 FILED IN INCORRECT CASE. (MMP) (Entered: 09/13/2017)
652 NOTICE AND ORDER OF CASE MANAGEMENT CONFERENCE: Case Management Conference set for 10/30/2017 01:00 PM in Courtroom 6A (STP) before Magistrate Judge Becky R. Thorson. Signed by Magistrate Judge Becky R. Thorson on 9/13/2017. (MMP) (Entered: 09/13/2017)
653 ORDER of USCA as to 639 Notice of Appeal to 8th Circuit filed by Minnesota Department of Human Services, Minnesota, State of (received electronically from COA) (AKL) (Entered: 09/21/2017)
654 TEXT ONLY NOTICE: The next bi−annual Status Conference in this matter will take place on 12/08/2017 at 1:00 PM in Courtroom 7C, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota, before Judge Donovan W. Frank and Magistrate Judge Becky R. Thorson.(BJS) (Entered: 10/04/2017)
655 MOTION to Stay Pending Appeal filed by Minnesota Department of Human Services, Minnesota, State of. (Ikeda, Scott) (Entered: 10/20/2017)
656 NOTICE OF HEARING ON MOTION 655 MOTION to Stay Pending Appeal : at date and time to be determined. (Ikeda, Scott) (Entered: 10/20/2017)
657 MEET and CONFER STATEMENT re 655 Motion to Stay filed by Minnesota Department of Human Services, Minnesota, State of.(Ikeda, Scott) (Entered: 10/20/2017)

10/20/2017 10/20/2017 10/20/2017 10/22/2017 10/25/2017
10/25/2017 10/26/2017 10/26/2017 10/30/2017 11/06/2017 11/06/2017 11/09/2017 11/29/2017
11/29/2017

658 MEMORANDUM in Support re 655 MOTION to Stay Pending Appeal filed by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Ikeda, Scott) (Entered: 10/20/2017)
659 AFFIDAVIT of Margaret Fletcher Booth in SUPPORT OF 655 MOTION to Stay Pending Appeal filed by Minnesota Department of Human Services, Minnesota, State of.(Ikeda, Scott) (Entered: 10/20/2017)
660 PROPOSED ORDER TO JUDGE re 655 MOTION to Stay Pending Appeal filed by Minnesota Department of Human Services, Minnesota, State of.(Ikeda, Scott) (Entered: 10/20/2017)
661 LETTER TO MAGISTRATE JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Attachments: # 1 Exhibit(s), # 2 Exhibit(s))(Azman, Mark) (Entered: 10/22/2017)
662 TEXT ONLY ORDER: Pending the Court's ruling on Defendants Motion to Stay Pending Appeal, (Doc. No. 655 ), the parties are directed to attend the scheduled Case Management Conference on October 30, 2017 before Magistrate Judge Becky R. Thorson, (see Doc. No. 652 ). Signed by Judge Donovan W. Frank on 10/25/2017. (RLB) (Entered: 10/25/2017)
663 LETTER TO MAGISTRATE JUDGE by Minnesota Department of Human Services, Minnesota, State of pursuant to 9.13.2017 Order). (Ikeda, Scott) (Entered: 10/25/2017)
664 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Azman, Mark) (Entered: 10/26/2017)
665 LETTER TO MAGISTRATE JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Ikeda, Scott) (Entered: 10/26/2017)
666 Minute Entry for proceedings held before Magistrate Judge Becky R. Thorson: Scheduling Conference held on 10/30/2017. (AKL) (Entered: 10/31/2017)
667 MEMORANDUM in Opposition re 655 MOTION to Stay Pending Appeal filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Azman, Mark) (Entered: 11/06/2017)
668 DECLARATION of Shamus P. O'Meara in Opposition to 655 MOTION to Stay Pending Appeal filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C, # 4 Exhibit(s) D, # 5 Exhibit(s) E, # 6 Exhibit(s) F)(Azman, Mark) (Entered: 11/06/2017)
669 Reply to Response to Motion re 655 MOTION to Stay Pending Appeal filed by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Certificate of Service)(Ikeda, Scott) (Entered: 11/09/2017)
670 ORDER. The Court's agenda for the December 8, 2017 Status Conference is outlined below (see attached Order). No later than Wednesday, December 6, 2017, the parties or the Consultants may submit additional proposed agenda items for the Court's consideration. Signed by Judge Donovan W. Frank on 11/29/2017. (BJS) (Entered: 11/29/2017)
671 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner of the Minnesota Department of Human Services, to the Honorable Donovan W. Frank, dated Nov. 29, 2017, regarding the Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measureable Goals, Reporting Period Data Acquired Through Oct. 31, 2017, Date Approved by Subcabinet Nov. 27, 2017). (Attachments: # 1 Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measureable Goals, Reporting Period Data Acquired Through Oct. 31, 2017, Date Approved by Subcabinet Nov. 27, 2017, # 2 Verification of Michael Tessneer)(Noss, Anthony) (Entered: 11/29/2017)

12/08/2017 12/21/2017
02/01/2018 02/02/2018 02/28/2018 02/28/2018 02/28/2018 02/28/2018 02/28/2018 02/28/2018
02/28/2018 03/29/2018

672 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 12/8/2017. (Court Reporter Lori Simpson) (BJS) (Entered: 12/12/2017)
673 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner of DHS, to the Honorable Donovan W. Frank enclosing Minnesota Olmstead Subcabinet Annual Report on Olmstead Plan Implementation, Reporting Period Data Acquired Through Oct. 31, 2017, Date Report Approved by Subcabinet Dec. 18, 2017). (Attachments: # 1 Minnesota Olmstead Subcabinet Annual Report on Olmstead Plan Implementation, Reporting Period Data Acquired Through Oct. 31, 2017, Date Report Approved by Subcabinet Dec. 18, 2017, # 2 Verification of Michael Tessneer)(Noss, Anthony) (Entered: 12/21/2017)
674 ORDER: State Defendants' Motion to Stay Pending Appeal (Doc. No. 655 ) is DENIED. Signed by Judge Donovan W. Frank on 2/1/2018. (las) (Entered: 02/01/2018)
NOTICE to USCA of subsequent filing in a civil case, Re: Order on Motion to Stay 674 . (kt) (Entered: 02/02/2018)
675 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of Letter from Charles E. Johnson to the Honorable Donovan W. Frank re: Feb. 2018 Semi−Annual Compliance Report (reporting period July 1, 2017 through Dec. 31, 2017). (Attachments: # 1 Affidavits (re: Verification of Feb. 2018 Semi−Annual Compliance Report))(Noss, Anthony) (Entered: 02/28/2018)
676 SEALED Jensen Settlement Agreement Comprehensive Plan of Action (CPA) February 2018 Semi−Annual Compliance Report, Reporting Period: July 1, 2017 Dec. 31, 2017 (Unredacted, Under Seal Version) re 675 Letter to District Judge, by Minnesota Department of Human Services, State of Minnesota. (Noss, Anthony) (Entered: 02/28/2018)
677 Redacted Document for 676 Sealed Jensen Settlement Agreement Comprehensive Plan of Action (CPA) February 2018 Semi−Annual Compliance Report, Reporting Period: July 1, 2017 Dec. 31, 2017 (Unredacted, Under Seal Version) . (Noss, Anthony) (Entered: 02/28/2018)
678 SEALED Jensen Settlement Agreement Comprehensive Plan of Action (CPA) February 2018 Semi−Annual Compliance Report Identifier Key, Reporting Period: July 1, 2017 Dec. 31, 2017 (Unredacted, Under Seal Version) re 675 Letter to District Judge, by Minnesota Department of Human Services, State of Minnesota. (Noss, Anthony) (Entered: 02/28/2018)
679 Redacted Document for 678 Sealed Jensen Settlement Agreement Comprehensive Plan of Action (CPA) February 2018 Semi−Annual Compliance Report Identifier Key, Reporting Period: July 1, 2017 Dec. 31, 2017 (Unredacted, Under Seal Version) . (Noss, Anthony) (Entered: 02/28/2018)
680 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson to the Honorable Donovan W. Frank re: Olmstead Quarterly Report on Measureable Goals, data acquired through Jan. 31, 2018). (Attachments: # 1 Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measureable Goals, Reporting Period data acquired through Jan. 31, 2018, Date Approved By Subcabinet Feb. 26, 2018, # 2 Verification of Michael Tessneer)(Noss, Anthony) (Entered: 02/28/2018)
NOTICE to USCA of subsequent filing in a civil case, Re: Redacted Document, 679 , Sealed Document, 676 , Sealed Document, 678 , Letter to District Judge,, 680 , Letter to District Judge, 675 , Redacted Document 677 . (kt) (Entered: 02/28/2018)
681 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson to Honorable Donovan W. Frank filing Minnesotas Olmstead Plan, March 2018 Revision. (Attachments: # 1 Minnesotas Olmstead Plan, March 2018 Revision (blackline version), # 2 Minnesotas Olmstead Plan, March 2018 Revision (clean copy))(Noss, Anthony) (Entered: 03/29/2018)

03/30/2018 03/30/2018 03/30/2018 03/30/2018 03/30/2018 04/24/2018
05/23/2018
06/25/2018 07/02/2018 07/10/2018 07/12/2018 07/19/2018

682 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson to Honorable Donovan W. Frank filing March 2018 Annual Compliance Report ). (Attachments: # 1 Affidavits Concerning Verification of March 2018 Annual Compliance Report)(Noss, Anthony) (Entered: 03/30/2018)
683 SEALED Jensen Settlement Agreement Comprehensive Plan of Action (CPA) March 2018 Annual Compliance Report, Reporting Period: Jan. 1, 2017 Dec. 31, 2017 re 682 Letter to District Judge, by Minnesota Department of Human Services, State of Minnesota. (Noss, Anthony) (Entered: 03/30/2018)
684 Redacted Document for 683 Sealed Jensen Settlement Agreement Comprehensive Plan of Action (CPA) March 2018 Annual Compliance Report, Reporting Period: Jan. 1, 2017 Dec. 31, 2017 . (Noss, Anthony) (Entered: 03/30/2018)
685 SEALED Jensen Settlement Agreement Comprehensive Plan of Action (CPA) March 2018 Annual Compliance Report Identifier Key, Reporting Period: Jan. 1, 2017 Dec. 31, 2017 re 682 Letter to District Judge, by Minnesota Department of Human Services, State of Minnesota. (Noss, Anthony) (Entered: 03/30/2018)
686 Redacted Document for 685 Sealed Jensen Settlement Agreement Comprehensive Plan of Action (CPA) March 2018 Annual Compliance Report Identifier Key, Reporting Period: Jan. 1, 2017 Dec. 31, 2017 . (Noss, Anthony) (Entered: 03/30/2018)
687 TEXT ONLY NOTICE: The next bi−annual Status Conference in this matter will take place on 07/12/2018 at 1:30 PM in the 7th Floor Conference Room (accessible by buzzing Judge Franks Chambers on the 7th Floor), Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota, before Judge Donovan W. Frank and Magistrate Judge Becky R. Thorson. (las) (Entered: 04/24/2018)
688 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner of DHS, to the Honorable Donovan W. Frank, dated May 21, 2018). (Attachments: # 1 Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measurable Goals, Reporting Period data acquired through April 30, 2018, Date Approved by Subcabinet: May 21, 2018; with its Exhibit, Olmstead Plan Quality of Life Survey Baseline Report., # 2 Verification of Michael Tessneer)(Noss, Anthony) (Entered: 05/23/2018)
689 ORDER: The Court's agenda for the July 12, 2018 Status Conference is outlined below. No later than Monday, July 9, 2018, the parties or the Consultants may submit additional proposed agenda items for the Courts consideration. Signed by Judge Donovan W. Frank on 6/25/2018. (las) (Entered: 06/25/2018)
690 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Ikeda, Scott) (Entered: 07/02/2018)
691 ORDER: The Court's amended agenda for the July 12, 2018 Status Conference is outlined below. The Court reserves the right to request written submissions from the parties on the topics identified below following the July 12, 2018 Status Conference. Signed by Judge Donovan W. Frank on 7/10/2018. (las) (Entered: 07/10/2018)
692 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 7/12/2018. (Court Reporter Lynne Krenz) (las) (Entered: 07/16/2018)
693 ORDER re: July 12, 2018, the Court held a Biannual Status Conference. The Department of Human Services shall submit the following reports according to the schedules identified in the Court's Order for Reporting on Olmstead Plan and Order for Reporting on Settlement Agreement (Doc. Nos. 544, 545): a. Olmstead Subcabinet Quarterly Report on Olmstead Plan Measurable Goals covering the period of May 1, 2018 to July 31, 2018 (due August 31, 2018). b. Jensen Settlement Agreement Comprehensive Plan of Action Semi−Annual Compliance Report covering the period of January 1, 2018 to June 30, 2018 (due August 31, 2018). Following the Court's receipt of the reports identified above, the Court will issue an order establishing next steps. This order will also establish how the Court intends to address the applicable legal standard to determine the circumstances under which it will end its involvement

07/20/2018
07/26/2018 07/26/2018 08/20/2018 08/29/2018
08/31/2018 08/31/2018 08/31/2018 08/31/2018 08/31/2018 11/19/2018 11/27/2018

in this matter. Signed by Judge Donovan W. Frank on 7/19/2018. (las) (Entered: 07/19/2018)
694 NOTICE to USCA of subsequent filing in a civil case, Re: Notice of Hearing, 687 , Sealed Document, 685 , Redacted Document 686 , Order to Party File Document/Respond to Court,,, 693 , Letter to District Judge,, 688 , Status Conference 692 , Scheduling Order, 691 , Scheduling Order, 689 , Letter to District Judge 690 , Letter to District Judge, 681 , Letter to District Judge, 682 , Redacted Document 684 , Sealed Document, 683 . (MMG) (Entered: 07/20/2018)
695 Opinion of USCA (electronic copy) as to 639 Notice of Appeal to 8th Circuit filed by Minnesota Department of Human Services, Minnesota, State of. (AKL) (Entered: 07/31/2018)
696 USCA JUDGMENT (electronic copy) as to 639 Notice of Appeal to 8th Circuit filed by Minnesota Department of Human Services, Minnesota, State of. (AKL) (Entered: 07/31/2018)
697 MANDATE of USCA (electronic copy) as to 639 Notice of Appeal to 8th Circuit filed by Minnesota Department of Human Services, Minnesota, State of. (AKL) (Entered: 08/20/2018)
698 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner of DHS, to the Honorable Donovan W. Frank, dated Aug. 27, 2018, filing the Aug. 27, 2018 Quarterly Report on Olmstead Plan Measureable Goals ). (Attachments: # 1 Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measurable Goals, Reporting Period Data Acquired Through July 31, 2018, Date Approved By Subcabinet August 27, 2018, # 2 Verification of Michael Tessneer dated Aug. 28, 2018)(Noss, Anthony) (Entered: 08/29/2018)
699 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson to the Honorable Donovan W. Frank submitting Aug. 2018 Semi−Annual Compliance Report ). (Attachments: # 1 Affidavit on Sealed Filing, with Affidavits re: August 2018 Semi−Annual Compliance Report)(Noss, Anthony) (Entered: 08/31/2018)
700 SEALED Jensen Settlement Agreement Comprehensive Plan of Action (CPA) August 2018 Semi−Annual Compliance Report, Reporting Period Jan. 1, 2018 June 30, 2018 (UNREDACTED UNDER SEAL VERSION) by Minnesota Department of Human Services. (Noss, Anthony) (Entered: 08/31/2018)
701 Redacted Document for 700 Sealed Jensen Settlement Agreement Comprehensive Plan of Action (CPA) August 2018 Semi−Annual Compliance Report, Reporting Period Jan. 1, 2018 to June 30, 2018 . (Noss, Anthony) (Entered: 08/31/2018)
702 SEALED Jensen Settlement Agreement Comprehensive Plan of Action (CPA) August 2018 Semi−Annual Compliance Report Identifier Key, Reporting Period Jan. 1, 2018 to June 30, 2018 (UNREDACTED UNDER SEAL VERSION) by Minnesota Department of Human Services. (Noss, Anthony) (Entered: 08/31/2018)
703 Redacted Document for 702 Sealed Jensen Settlement Agreement Comprehensive Plan of Action (CPA) August 2018 Semi−Annual Compliance Report Identifier Key, Reporting Period Jan. 1, 2018 to June 30, 2018 . (Noss, Anthony) (Entered: 08/31/2018)
704 TEXT ONLY ORDER: The Biannual Status Conference scheduled for December 2018 is continued until April 2019. An order establishing the reporting requirements in advance of this meeting will be forthcoming. Ordered by Judge Donovan W. Frank on 11/19/2018. (RLB) (Entered: 11/19/2018)
705 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner, DHS, to the Honorable Donovan W. Frank, dated Nov. 26, 2018). (Attachments: # 1 Minnesota Olmstead Subcabinet, Quarterly Report on Olmstead Plan Measureable Goals, Reporting Period: Data Acquired Through Oct. 31, 2018, Date Approved by Subcabinet: Nov. 26, 2018, # 2 Verification of Michael Tessneer)(Noss, Anthony) (Entered: 11/27/2018)

12/24/2018
01/04/2019
02/27/2019
03/19/2019 03/19/2019 03/19/2019 03/19/2019 03/19/2019 03/19/2019 03/19/2019 03/19/2019 03/19/2019

706 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles Johnson, DHS Deputy Commissioner, to the Honorable Donovan W. Frank). (Attachments: # 1 Minnesota Olmstead Subcabinet Annual Report on Olmstead Plan Implementation, Reporting Period: Data acquired through Oct. 31, 2018; Date Approved by Subcabinet: Dec. 17, 2018, # 2 Verification of Michael Tessneer)(Noss, Anthony) (Entered: 12/24/2018)
707 ORDER: In lieu of the Jensen Settlement Agreement Comprehensive Plan of Action Semi−Annual and Annual Compliance Reports due on February 28, 2019 and March 31, 2019, respectively, Defendants shall submit one Summary Report adhering to the specifications described above. (See Order for Specific Deadlines) The Biannual Reporting Conference will be held on April 16, 2019, from 1:30 PM to 4:30 PM, in the 7th Floor Conference Room Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota, before Judge Donovan W. Frank and Magistrate Judge Becky R. Thorson. The Summary Report will be discussed at that time. The Status Conference will also address the Olmstead Amendments and the Olmstead Quarterly Reports and Annual Report submitted since the last status conference. Signed by Judge Donovan W. Frank on 1/4/2019. (las) (Entered: 01/04/2019)
708 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Claire Wilson, Minnesota Department of Human Services Deputy Commissioner for Policy to the Honorable Donovan W. Frank dated Feb. 26, 2019, filing the Minnesota Olmstead Subcabinet Quarterly Report on Measureable Goals, Reporting Period: Data Acquired Through Jan. 31, 2019 ). (Attachments: # 1 (Minnesota Olmstead Subcabinet Quarterly Report on Measureable Goals, Reporting Period: Data Acquired Through Jan. 31, 2019, Date Approved by Subcabinet: Feb. 25, 2019), # 2 (Verification of Michael Tessneer))(Noss, Anthony) (Entered: 02/27/2019)
709 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles Johnson, Deputy Commissioner, to the Honorable Donovan W. Frank). (Noss, Anthony) (Entered: 03/19/2019)
710 SEALED Jensen Settlement Agreement Comprehensive Plan of Action (CPA) March 2019 Summary Report (Under Seal Version/Not Redacted) re 709 Letter to District Judge by Department of Human Services, State of Minnesota. (Noss, Anthony) (Entered: 03/19/2019)
711 Redacted Document for 710 Sealed Jensen Settlement Agreement Comprehensive Plan of Action (CPA) March 2019 Summary Report . (Noss, Anthony) (Entered: 03/19/2019)
712 SEALED Jensen Settlement Agreement Comprehensive Plan of Action (CPA) March 2019 Summary Report Identifier Key (Under Seal/Not Redacted Version) re 710 Sealed Document by Department of Human Services, State of Minnesota. (Noss, Anthony) (Entered: 03/19/2019)
713 Redacted Document for 712 Sealed Jensen Settlement Agreement Comprehensive Plan of Action (CPA) March 2019 Summary Report Identifier Key . (Noss, Anthony) (Entered: 03/19/2019)
714 AFFIDAVIT in Support re 710 Sealed Document (Affidavits Regarding Jensen Settlement Agreement Comprehensive Plan of Action (CPA) March 2019 Summary Report). (Noss, Anthony) (Entered: 03/19/2019)
715 EXHIBIT Exhibit Index re 710 Sealed Document. (Noss, Anthony) (Entered: 03/19/2019)
716 SEALED EXHIBIT Attachment 1 (Attachment 1 to the March 2019 Summary Report) re 710 Sealed Document, 715 Exhibit by Department of Human Services, State of Minnesota. (Noss, Anthony) (Entered: 03/19/2019)
717 SEALED EXHIBIT Attachment 2 (Attachment 2 to the March 2019 Summary Report) re 710 Sealed Document, 715 Exhibit by Department of Human Services, State of Minnesota. (Noss, Anthony) (Entered: 03/19/2019)

03/19/2019 03/19/2019 03/19/2019 03/19/2019 03/19/2019 03/19/2019 03/19/2019 03/29/2019
04/01/2019 04/04/2019 04/08/2019 04/09/2019
04/10/2019 04/12/2019 04/15/2019 04/15/2019

718 SEALED EXHIBIT Attachment 3 (Attachment 3 to the March 2019 Summary Report ) re 710 Sealed Document, 715 Exhibit by Department of Human Services, State of Minnesota. (Noss, Anthony) (Entered: 03/19/2019)
719 SEALED EXHIBIT Attachment 4 (Attachment 4 to the March 2019 Summary Report) re 710 Sealed Document, 715 Exhibit by Department of Human Services, State of Minnesota. (Noss, Anthony) (Entered: 03/19/2019)
720 SEALED EXHIBIT Atachment 5, Part 1 (pgs. 1−540) (Attachment 5, Part 1 (pgs. 1−540) to the March 2019 Summary Report ) re 710 Sealed Document, 715 Exhibit by Department of Human Services, State of Minnesota. (Noss, Anthony) (Entered: 03/19/2019)
721 SEALED EXHIBIT Attachment 5, Part 2 (pgs. 541−1015) (Attachment 5, Part 2 (pgs. 541−1015) to the March 2019 Summary Report ) re 720 Exhibit, 710 Sealed Document, 715 Exhibit by Department of Human Services, State of Minnesota. (Noss, Anthony) (Entered: 03/19/2019)
722 SEALED EXHIBIT Attachment 5, Part 3 (pgs. 1016−1270) (Attachment 5, Part 3 (pgs. 1016−1270) to the March 2019 Summary Report ) re 720 Exhibit, 710 Sealed Document, 715 Exhibit, 721 Exhibit, by Department of Human Services, State of Minnesota. (Noss, Anthony) (Entered: 03/19/2019)
723 EXHIBIT Attachment 6 (Attachment 6 to the March 2019 Summary Report) re 710 Sealed Document, 715 Exhibit. (Noss, Anthony) (Entered: 03/19/2019)
724 STATEMENT INSTEAD OF REDACTED DOCUMENT: Entire Document Confidential for 720 , 717 , 722 , 719 , 716 , 721 , 718 Sealed, unredacted March 2019 Summary Report; Sealed Identifier Key; Sealed Attachments 1−5 . (Noss, Anthony) (Entered: 03/19/2019)
725 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Claire Wilson, DHS Deputy Commissioner of Policy, to the Honorable Donovan W. Frank re: Revised Olmstead Plan). (Attachments: # 1 Minnesotas Olmstead Plan March 2019 Revision, # 2 Minnesotas Olmstead Plan March 2019 Revision (blacklined version))(Noss, Anthony) (Entered: 03/29/2019)
726 LETTER to District Judge by Colleen Wieck, Ph.D., Executive Director, Minnesota Governor's Council on Developmental Disabilities. (Attachments: # 1 Attch 1, # 2 Attch 2, # 3 Attch 3). (lmb) Document QC'd on 8/5/2019 (CLK). (Entered: 04/01/2019)
727 SEALED Letter to District Judge by Roberta Opheim, Ombudsman, Office of Ombudsman for Mental Health and Development Disability. RESTRICTED PER JUDGE FRANK'S CHAMBERS. (kt) Document QC'd on 6/4/2019 (JGK). (Entered: 04/05/2019)
728 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Azman, Mark) (Entered: 04/08/2019)
729 ORDER: A Biannual Status Conference is scheduled for April 16, 2019 at 1:30 p.m., in Courtroom 7C, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota, before Judge Donovan W. Frank and Magistrate Judge Becky R. Thorson. (Doc. No. 707 .) The Status Conference will address the Jensen Settlement Agreement ("JSA"), the Comprehensive Plan of Action (CPA), and the Olmstead Plan. Signed by Judge Donovan W. Frank on 4/9/2019. (See Order for specific detail re: Court's Agenda)(las) (Entered: 04/09/2019)
730 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen Amended Letter. (Azman, Mark) (Entered: 04/10/2019)
731 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Ikeda, Scott) (Entered: 04/12/2019)
732 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Azman, Mark) (Entered: 04/15/2019)
733 ORDER − The Court's amended agenda for the April 16, 2019 Status Conference is outlined below. The Court reserves the right to request written submissions from the

04/16/2019 04/16/2019 05/29/2019
06/17/2019
07/03/2019 07/06/2019 07/06/2019

parties on the topics identified below following the April 16, 2019 Status Conference. Signed by Judge Donovan W. Frank on 4/15/2019. (las) (Entered: 04/15/2019)
734 Minute Entry for proceedings held before Judge Donovan W. Frank and Magistrate Judge Becky R. Thorson: Biannual Status Conference held on 4/16/2019. Written order forthcoming. (Court Reporter Lynne Krenz) (las) (Entered: 04/17/2019)
735 DOCUMENT FILED IN ERROR, DUPLICATE OF DOCUMENT NUMBER 734 . Minute Entry for proceedings held before Magistrate Judge Becky R. Thorson: Biannual Status Conference held on 4/16/2019. (MSK) Modified text on 4/18/2019 (LEG). (Entered: 04/17/2019)
736 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of Letter from Claire Wilson, Deputy Commissioner for Policy at DHS, to Honorable Donovan W. Frank. (Attachments: # 1 Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measureable Goals, Reporting Period: Data Acquired Through April 30, 2019, # 2 Verification of Michael Tessneer)(Noss, Anthony) (Entered: 05/29/2019)
737 ORDER RE: STATUS CONFERENCE. The Court's jurisdiction is extended to September 15, 2020. The Court expressly reserves the authority and jurisdiction to order an additional extension of jurisdiction, depending upon the status of Defendants' compliance and absence stipulation of the parties. Signed by Judge Donovan W. Frank on 6/17/2019. (See Order for Further Details, Requirements and Deadlines) (Written Opinion). Signed by Judge Donovan W. Frank on 6/17/2019. (las) (Entered: 06/17/2019)
738 TRANSCRIPT REQUEST for an Expedited 3−Day Transcript of 734 Status Conference, 735 Status Conference to Court Reporter Lynne Krenz. (Winter, Aaron) (Entered: 07/03/2019)
739 NOTICE of Filing of Official Transcript. This filing has 1 transcript(s) associated with it. (LMK) (Entered: 07/06/2019)
740 TRANSCRIPT of Status Conference held on 4.16.19 before Judge Donovan W. Frank. (160 pages). Court Reporter: Lynne Krenz. For a copy of the transcript, please file a Transcript Request under Other Filings/Other Documents.

07/15/2019 07/15/2019 07/15/2019 07/15/2019 07/15/2019 07/15/2019

For information on redaction procedures, please review Local Rule 5.5. Redaction Request due 7/29/2019. Redacted Transcript Deadline set for 8/6/2019. Release of Transcript Restriction set for 10/4/2019. (LMK) (Entered: 07/06/2019)
741 MOTION to Alter/Amend/Correct Other Orders 737 Memorandum & Opinion, filed by Minnesota Department of Human Services, Minnesota, State of. (Ikeda, Scott) (Entered: 07/15/2019)
742 NOTICE OF HEARING ON MOTION 741 MOTION to Alter/Amend/Correct Other Orders 737 Memorandum & Opinion, : Date and time to be determined. (Ikeda, Scott) (Entered: 07/15/2019)
743 MEMORANDUM in Support re 741 MOTION to Alter/Amend/Correct Other Orders 737 Memorandum & Opinion, filed by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Ikeda, Scott) (Entered: 07/15/2019)
744 Declaration of Margaret Fletcher−Booth, Ph.D in Support of 741 MOTION to Alter/Amend/Correct Other Orders 737 Memorandum & Opinion, filed by Minnesota Department of Human Services, Minnesota, State of.(Ikeda, Scott) (Entered: 07/15/2019)
745 Declaration of Karen Sullivan Hook in Support of 741 MOTION to Alter/Amend/Correct Other Orders 737 Memorandum & Opinion, filed by Minnesota Department of Human Services, Minnesota, State of.(Ikeda, Scott) (Entered: 07/15/2019)
746 Declaration of Daniel J. Baker, Ph.D. in Support of 741 MOTION to Alter/Amend/Correct Other Orders 737 Memorandum & Opinion, filed by Minnesota Department of Human Services, Minnesota, State of.(Ikeda, Scott) (Entered:

07/15/2019 07/16/2019 07/29/2019 08/01/2019 08/02/2019 08/15/2019 08/15/2019 08/15/2019 08/26/2019
08/28/2019 08/28/2019 08/28/2019
08/29/2019

07/15/2019)
747 PROPOSED ORDER TO JUDGE re 741 MOTION to Alter/Amend/Correct Other Orders 737 Memorandum & Opinion, filed by Minnesota Department of Human Services, Minnesota, State of.(Ikeda, Scott) (Entered: 07/15/2019)
748 Amended Declaration of Margaret Fletcher−Booth in Support of 741 MOTION to Alter/Amend/Correct Other Orders 737 Memorandum & Opinion, filed by Minnesota Department of Human Services, Minnesota, State of.(Ikeda, Scott) (Entered: 07/16/2019)
749 DOCUMENT FILED IN WRONG CASE − DOCUMENT RESTRICTED LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Ikeda, Scott) Modified text on 7/29/2019 (CLK). (Entered: 07/29/2019)
750 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Ikeda, Scott) (Entered: 08/01/2019)
751 MEMORANDUM in Opposition re 741 MOTION to Alter/Amend/Correct Other Orders 737 Memorandum & Opinion, filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Azman, Mark) (Entered: 08/02/2019)
752 Reply to Response to Motion re 741 MOTION to Alter/Amend/Correct Other Orders 737 Memorandum & Opinion, filed by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Certificate of Service)(Ikeda, Scott) (Entered: 08/15/2019)
753 MEMORANDUM re 737 Memorandum & Opinion, filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Azman, Mark) (Entered: 08/15/2019)
754 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (pursuant to June 17, 2019 Order). (Ikeda, Scott) (Entered: 08/15/2019)
755 TEXT−ONLY ORDER: The Court is in receipt of Defendants' request (Doc. No. 754 ) to file a response by August 29, 2019 to Plaintiffs' brief (Doc. No. 753 ) related to the scope of the Settlement Agreement and CPA. The Court GRANTS Defendants' request. Upon receipt of Defendants' response, the Court will determine whether a hearing is necessary or if the matter can be decided based on the parties' submissions. Ordered by Judge Donovan W. Frank on 8/26/2019. (las) (Entered: 08/26/2019)
756 MEMORANDUM re 737 Memorandum & Opinion, Amended filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Azman, Mark) (Entered: 08/28/2019)
757 MEMORANDUM OPINION AND ORDER denying 741 Defendants' Motion to Alter or Amend the Courts June 17,2019 Order (Doc. No. 741 ) is DENIED. (Written Opinion) Signed by Judge Donovan W. Frank on 8/28/2019. (las) (Entered: 08/28/2019)
758 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Claire Wilson, Deputy Commissioner for Policy, DHS, to Honorable Donovan W. Frank (enclosing Quarterly Report on Olmstead Plan Measureable Goals, Reporting Period: Data Acquired through July 31, 2019). (Attachments: # 1 (Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measureable Goals, Reporting Period: Data Acquired through July 31, 2019, Date Approved by Subcabinet: Aug. 26, 2019), # 2 (Verification of Michael Tessneer))(Noss, Anthony) (Entered: 08/28/2019)
759 BRIEF re 755 Order in Response to Letter/Request/E−mail,, (State Defendants' Brief Regarding Positive Supports Rule and Scope of Settlement Agreement and CPA on Restraints). (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Winter, Aaron) (Entered: 08/29/2019)

08/29/2019 08/30/2019
08/30/2019
08/30/2019 08/30/2019 08/30/2019 08/30/2019 08/30/2019
08/30/2019 09/03/2019 09/04/2019 09/05/2019 10/01/2019 10/01/2019 10/15/2019

760 DECLARATION of KyleeAnn Stevens re 759 Brief, by Minnesota Department of Human Services, Minnesota, State of . (Attachments: # 1 Exhibit(s) A−F)(Winter, Aaron) (Entered: 08/29/2019)
761 TEXT−ONLY ORDER: The Court is in receipt of Plaintiffs' Amended Settlement Class Position on Items 3 and 6 of the Court's Order. (Doc. No. 756 ("Amended Brief").) Plaintiffs filed their Amended Brief without explanation and without seeking prior permission from the Court. Before the Court rules on whether the Amended Brief should be stricken, the Court seeks an explanation as to why it was untimely filed. Plaintiffs shall file a letter not exceeding two pages by September 4, 2019 showing why their untimeliness should be excused. Defendants may file a letter response not exceeding two pages by September 6, 2019. Ordered by Judge Donovan W. Frank on 8/30/2019. (las) (Entered: 08/30/2019)
762 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles Johnson, Deputy Commissioner of DHS, to Honorable Donovan W. Frank re: August 2019 Semi−Annual Compliance Report, Reporting Period: Jan. 1, 2019 June 30, 2019, and Response to June 17, 2019 Order). (Noss, Anthony) (Entered: 08/30/2019)
763 SEALED (Jensen Settlement Agreement Comprehensive Plan of Action (CPA) August 2019 Semi−Annual Compliance Report, Reporting Period: Jan. 1, 2019 June 30, 2019) re 762 Letter to District Judge, by State of Minnesota, Minnesota Department of Human Services. (Noss, Anthony) (Entered: 08/30/2019)
764 Redacted Document for 763 (SEALED Jensen Settlement Agreement Comprehensive Plan of Action (CPA) August 2019 Semi−Annual Compliance Report, Reporting Period: Jan. 1, 2019 June 30, 2019) . (Noss, Anthony) (Entered: 08/30/2019)
765 SEALED (Jensen Settlement Agreement Comprehensive Plan of Action (CPA) August 2019 Semi−Annual Compliance Report − Identifier Key) re 763 Sealed Document, by State of Minnesota, Minnesota Department of Human Services. (Noss, Anthony) (Entered: 08/30/2019)
766 Redacted Document for 765 (SEALED Jensen Settlement Agreement Comprehensive Plan of Action (CPA) August 2019 Semi−Annual Compliance Report − Identifier Key) . (Noss, Anthony) (Entered: 08/30/2019)
767 AFFIDAVIT of (Affidavits of Daniel J. Baker, Ph.D., Margaret Fletcher Booth, Ph.D, Mark Brostrom, Steven Dahl, Noreen Koch−Myer, Karen Sullivan Hook, Michael Tessneer) re 763 Sealed Document, (Jensen Settlement Agreement Comprehensive Plan of Action (CPA) August 2019 Semi−Annual Compliance Report, Reporting Period: Jan. 1, 2019 June 30, 2019) byMinnesota Department of Human Services, Minnesota, State of. (Noss, Anthony) (Entered: 08/30/2019)
768 EXHIBIT (Jensen Settlement Agreement Comprehensive Plan of Action (CPA) August 2019 Semi−Annual Compliance Report Attachments Index) re 763 Sealed Document,. (Attachments: # 1 Attachments A through E)(Noss, Anthony) (Entered: 08/30/2019)
769 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Azman, Mark) (Entered: 09/03/2019)
770 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen (Date Corrected). (Azman, Mark) (Entered: 09/04/2019)
771 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (pursuant to Doc 761). (Winter, Aaron) (Entered: 09/05/2019)
772 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Winter, Aaron) (Entered: 10/01/2019)
773 SEALED Correspondence re 772 Letter to District Judge by Defendants. (Winter, Aaron) (Entered: 10/01/2019)
774 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson to Honorable Donovan W. Frank (re: October 2019 Supplemental Report). (Attachments: # 1 Jensen Settlement Agreement October 2019 Supplemental Report DHS Treatment Homes Report EC 88

10/25/2019
10/25/2019 11/21/2019 11/27/2019
12/18/2019 12/20/2019 12/30/2019 01/03/2020 01/10/2020 01/10/2020

and EC 93, # 2 October 2019 Supplemental Report Attachments Index, # 3 Attachments A−K to October 2019 Supplemental Report, # 4 Verification Affidavits (re: October 2019 Supplemental Report))(Noss, Anthony) (Entered: 10/15/2019)
775 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of Letter from Charles E. Johnson to Honorable Donovan W. Frank (re: Departments Subject Matter Experts Reports on Use of Prohibited Techniques and Staff Training). (Attachments: # 1 Report Number 1, Use of Prohibited Techniques, by Gary W. LaVigna, Ph.D., BCBA−D, # 2 Attachment A (to Report Number 1, Use of Prohibited Techniques, by Gary W. LaVigna, Ph.D., BCBA−D), # 3 Redacted Attachment B (to Report Number 1, Use of Prohibited Techniques, by Gary W. LaVigna, Ph.D., BCBA−D), # 4 Attachment C (to Report Number 1, Use of Prohibited Techniques, by Gary W. LaVigna, Ph.D., BCBA−D), # 5 Report Number 2, Staff Training, by Gary W. LaVigna, Ph.D., BCBA−D, # 6 Attachment A (to Report Number 2, Staff Training, by Gary W. LaVigna, Ph.D., BCBA−D), # 7 Affidavit of Margaret Fletcher Booth, Ph.D., Concerning Filing Under Seal)(Noss, Anthony) (Entered: 10/25/2019)
776 SEALED Attachment B (to Report Number 1, Use of Prohibited Techniques, by Gary W. LaVigna, Ph.D., BCBA−D) re 775 Letter to District Judge,,, by MN Department of Human Services, State of Minnesota. (Noss, Anthony) (Entered: 10/25/2019)
777 TEXT ONLY NOTICE: The next bi−annual Status Conference in this matter will take place on 01/13/2020 at 2:00 PM in Courtroom 7C, 7th Floor, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota, before Judge Donovan W. Frank and Magistrate Judge Becky R. Thorson.(las) (Entered: 11/21/2019)
778 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner, to the Honorable Donovan W. Frank enclosing the November 25, 2019 Quarterly Report on Olmstead Plan Measurable Goals: Data acquired through 10/31/19). (Attachments: # 1 (Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measurable Goals, Reporting Period: Data Acquired Through October 31, 2019, Date Reviewed by Subcabinet November 25, 2019), # 2 (Verification of Michael Tessneer))(Winter, Aaron) (Entered: 11/27/2019)
779 ORDER re: Supplemental Briefing re: Scope of Settlement Agreement. (See order for dates and details.). Signed by Judge Donovan W. Frank on 12/17/2019. (las) (Entered: 12/18/2019)
780 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner of DHS, to the Honorable Donovan W. Frank, dated Dec. 17, 2019). (Attachments: # 1 (Minnesota Olmstead Subcabinet Annual Report on Olmstead Plan Implementation, Reporting Period: Data Acquired through Oct. 31, 2019, Date Approved by Subcabinet: Dec. 16, 2019), # 2 (Verification of Michael Tessneer))(Noss, Anthony) (Entered: 12/20/2019)
781 TEXT ONLY ORDER − The bi−annual Status Conference scheduled for January 13, 2020, before Judge Donovan W. Frank and Magistrate Judge Becky R. Thorson has been CANCELLED and will be reset at a date and time to be determined. The Court apologizes for any inconvenience this may cause. Ordered by Judge Donovan W. Frank on 12/30/2019. (las) (Entered: 12/30/2019)
782 TEXT ONLY NOTICE OF RESCHEDULED CONFERENCE − The next bi−annual Status Conference in this matter will NOW take place on 04/02/2020 at 1:00 PM in Courtroom 7C, 7th Floor, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota, before Judge Donovan W. Frank and Magistrate Judge Becky R. Thorson. (las) (Entered: 01/03/2020)
783 NOTICE OF APPEAL TO 8TH CIRCUIT as to 779 Briefing Order by Minnesota Department of Human Services, Minnesota, State of. Filing fee $ 505, receipt number AMNDC−7392499. (Ikeda, Scott) (Entered: 01/10/2020)
784 MOTION to Stay re 779 Briefing Order (Pending Appeal) filed by Minnesota Department of Human Services, Minnesota, State of. (Ikeda, Scott) (Entered:

01/10/2020 01/10/2020 01/10/2020 01/10/2020 01/10/2020 01/13/2020 01/17/2020 01/17/2020 01/21/2020 02/04/2020 02/04/2020
02/06/2020 02/11/2020
02/11/2020 02/13/2020

01/10/2020)
785 NOTICE OF HEARING ON MOTION 784 MOTION to Stay re 779 Briefing Order (Pending Appeal) : Date and time to be determined. (Ikeda, Scott) (Entered: 01/10/2020)
786 MEET and CONFER STATEMENT re 784 Motion to Stay filed by Minnesota Department of Human Services, Minnesota, State of.(Ikeda, Scott) (Entered: 01/10/2020)
787 MEMORANDUM in Support re 784 MOTION to Stay re 779 Briefing Order (Pending Appeal) filed by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Ikeda, Scott) (Entered: 01/10/2020)
788 Declaration of Margaret Fletcher−Booth in Support of 784 MOTION to Stay re 779 Briefing Order (Pending Appeal) filed by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 Exhibit(s) 1)(Ikeda, Scott) (Entered: 01/10/2020)
789 PROPOSED ORDER TO JUDGE re 784 MOTION to Stay re 779 Briefing Order (Pending Appeal) filed by Minnesota Department of Human Services, Minnesota, State of.(Ikeda, Scott) (Entered: 01/10/2020)
790 TRANSMITTAL OF APPEAL LETTER TO U. S. COURT OF APPEALS, 8TH CIRCUIT, Re: Notice of Appeal to 8th Circuit 783 . (CLK) (Entered: 01/13/2020)
791 MEMORANDUM in Opposition re 784 MOTION to Stay re 779 Briefing Order (Pending Appeal) filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Azman, Mark) (Entered: 01/17/2020)
792 DECLARATION of Shamus P. O'Meara in Opposition to 784 MOTION to Stay re 779 Briefing Order (Pending Appeal) filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C, # 4 Exhibit(s) D)(Azman, Mark) (Entered: 01/17/2020)
793 USCA Case Number 20−1126 for 783 Notice of Appeal to 8th Circuit filed by Minnesota Department of Human Services, Minnesota, State of. (kt) (Entered: 01/21/2020)
794 ORDER denying 784 Defendants' Motion to Stay Pending Appeal. (Written Opinion) Signed by Judge Donovan W. Frank on 2/4/2020. (LJL) (Entered: 02/04/2020)
795 ORDER. (1) Defendants must select either Dr. Gary LaVigna or David Ferleger to conduct an external review of the Forensic Mental Health Program and Anoka MetroRegional Treatment Center pursuant to the Court's December 18, 2019 Order. (2) Defendants shall notify the Court of their selection via email no later than February 7, 2020. (3) The external reviewer shall conduct an external review and submit a report in accordance with the obligations set forth in the Court's December 18, 2019 Order (Doc. No. ( 779 ). Signed by Judge Donovan W. Frank on 2/4/2020. (LJL) (Entered: 02/04/2020)
796 NOTICE to USCA of subsequent filing in a civil case, Re: Order on Motion to Stay 794 , Order/Notice to Attorney,, 795 . (KDS) (Entered: 02/06/2020)
797 TEXT−ONLY ORDER: On February 7, 2020, Defendants emailed the Court pursuant to the Court's February 4, 2020 Order (Doc. No. 794). Defendants requested leave to file that email and a previous email on the docket. The Court GRANTS Defendants' request. Defendants may file their February 7, 2020 and January 3, 2020 emails to the Court on the docket. Ordered by Judge Donovan W. Frank on 2/11/2020. (las) (Entered: 02/11/2020)
NOTICE to USCA of subsequent filing in a civil case, Re: Order in Response to Letter/Request/E−mail, 797 . (KDS) (Entered: 02/11/2020)
798 ORDER. Signed by Judge Donovan W. Frank on 2/13/2020. (See order for specific detail re: external review.)(las) (Entered: 02/13/2020)

02/20/2020
02/20/2020 02/20/2020
02/20/2020 02/21/2020 02/24/2020 02/25/2020 02/26/2020 02/26/2020 02/26/2020 02/26/2020
02/26/2020 02/26/2020
02/27/2020 02/27/2020 02/28/2020
02/28/2020

799 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Correspondence to the Honorable Donovan W. Frank, dated Feb. 20, 2020). (Attachments: # 1 Exhibit(s) A (Redacted), # 2 Exhibit(s) B)(Winter, Aaron) (Entered: 02/20/2020)
800 SEALED EXHIBIT A re 799 Letter to District Judge by Defendants. (Winter, Aaron) (Entered: 02/20/2020)
801 AFFIDAVIT of Aaron Winter re 800 Exhibit (regarding sealed Ex. A to corrrespondence to the Hon. Donovan W. Frank, dated Feb. 20, 2020)) byMinnesota Department of Human Services, Minnesota, State of. (Winter, Aaron) (Entered: 02/20/2020)
802 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Ikeda, Scott) (Entered: 02/20/2020)
NOTICE to USCA of subsequent filing in a civil case, Re: Order/Notice to Attorney 798 , Letter to District Judge 802 , Letter to District Judge 799 , Affidavit 801 . (KDS) (Entered: 02/21/2020)
803 TRANSMITTAL OF RECORDS re: Documents sent to the USCA. (KDS) (Entered: 02/24/2020)
804 NOTICE OF APPEAL TO 8TH CIRCUIT as to 798 Order/Notice to Attorney by Minnesota Department of Human Services, Minnesota, State of. Filing fee $ 505, receipt number AMNDC−7509513. (Ikeda, Scott) (Entered: 02/25/2020)
805 TRANSMITTAL OF APPEAL LETTER TO U. S. COURT OF APPEALS, 8TH CIRCUIT, Re: Notice of Appeal to 8th Circuit 804 . (KDS) (Entered: 02/26/2020)
806 MOTION to Stay re 798 Order/Notice to Attorney filed by Minnesota Department of Human Services, Minnesota, State of. (Noss, Anthony) (Entered: 02/26/2020)
807 NOTICE OF HEARING ON MOTION 806 MOTION to Stay re 798 Order/Notice to Attorney : Date and time to be determined. (Noss, Anthony) (Entered: 02/26/2020)
808 MEMORANDUM in Support re 806 MOTION to Stay re 798 Order/Notice to Attorney filed by Minnesota Department of Human Services, Minnesota, State of. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Noss, Anthony) (Entered: 02/26/2020)
809 PROPOSED ORDER TO JUDGE re 806 MOTION to Stay re 798 Order/Notice to Attorney filed by Minnesota Department of Human Services, Minnesota, State of.(Noss, Anthony) (Entered: 02/26/2020)
810 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner of DHS, to the Honorable Donovan W. Frank (re: Quarterly Report on Olmstead Plan Measurable Goals). (Attachments: # 1 (Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measureable Goals − Reporting Period: Data acquired through Jan. 31, 2020 Date approved by Subcabinet: Feb. 24, 2020), # 2 (Verification of Michael Tessneer))(Noss, Anthony) (Entered: 02/26/2020)
811 USCA Case Number 20−1399 for 804 Notice of Appeal to 8th Circuit filed by Minnesota Department of Human Services, Minnesota, State of. (kt) (Entered: 02/27/2020)
812 LETTER TO DISTRICT JUDGE by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen . (Azman, Mark) (Entered: 02/27/2020)
813 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner of DHS, to the Honorable Donovan W. Frank (re: Feb. 2020 Semi−Annual Compliance Report filing)). (Noss, Anthony) (Entered: 02/28/2020)
814 SEALED February 2020 Semi−Annual CPA Compliance Report Reporting Period: July 1, 2019 Dec. 31, 2019 re 813 Letter to District Judge, by Defendants MN Department of Human Services and State of Minnesota. (Noss, Anthony) (Entered: 02/28/2020)

02/28/2020 02/28/2020 02/28/2020 02/28/2020 03/02/2020 03/04/2020
03/04/2020 03/09/2020 03/09/2020 03/26/2020
03/27/2020
03/31/2020 03/31/2020
03/31/2020

815 Redacted Document for 814 Sealed February 2020 Semi−Annual CPA Compliance Report Reporting Period: July 1, 2019 Dec. 31, 2019 . (Noss, Anthony) (Entered: 02/28/2020)
816 SEALED February 2020 Semi−Annual CPA Compliance Report Identifier Key re 813 Letter to District Judge, by Defendants MN Department of Human Services and State of Minnesota. (Noss, Anthony) (Entered: 02/28/2020)
817 Redacted Document for 816 Sealed February 2020 Semi−Annual CPA Compliance Report Identifier Key . (Noss, Anthony) (Entered: 02/28/2020)
818 AFFIDAVIT of Margaret Fletcher−Booth, et al. re 813 Letter to District Judge, (Affidavits of Margaret Fletcher−Booth, et al) byMinnesota Department of Human Services, Minnesota, State of. (Noss, Anthony) (Entered: 02/28/2020)
819 MEET and CONFER STATEMENT re 806 Motion to Stay filed by Minnesota Department of Human Services, Minnesota, State of.(Ikeda, Scott) (Entered: 03/02/2020)
820 ORDER re: External Review Report & Payment Process. Upon completion of the external review, the parties shall convene with Magistrate Judge Becky R. Thorson on June 18, 2020 to develop a plan for a just and equitable way to end this Court's jurisdiction. The Status Conference, scheduled for April 2, 2020, shall be postponed until after the parties convene with Judge Thorson. Signed by Judge Donovan W. Frank on 3/4/2020. (See Order for complete details) (las) (Entered: 03/04/2020)
821 MEMORANDUM in Opposition re 806 MOTION to Stay re 798 Order/Notice to Attorney filed by Darren Allen, James Brinker, Elizabeth Jacobs, James Jensen, Lorie Jensen. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Azman, Mark) (Entered: 03/04/2020)
822 (Text−Only) NOTICE of Cancellation of status conference: The Bi−Annual Status Conference for April 2, 2020 has been CANCELLED. See Court's Order 820 (las). (las) (Entered: 03/09/2020)
823 ORDER − Defendants' Motion to Stay Pending Appeal (Doc. No. 806 ) is DENIED.(Written Opinion) Signed by Judge Donovan W. Frank on 3/9/2020. (las) (Entered: 03/09/2020)
824 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner DHS, to the Honorable Donovan W. Frank (enclosing revised Olmstead Plan)). (Attachments: # 1 (Minnesotas Olmstead Plan March 2020 Revision (blackline version)), # 2 (Minnesotas Olmstead Plan March 2020 Revision (clean copy)))(Noss, Anthony) (Entered: 03/26/2020)
NOTICE to USCA of subsequent filing in a civil case, Re: Memorandum in Support of Motion, 808 , Affidavit 818 , Notice of Cancelation/Rescheduling of Hearing 822 , Letter to District Judge 812 , Order/Notice to Attorney, 820 , Memorandum in Opposition to Motion, 821 , Meet and Confer Statement 819 , Notice of Hearing on Motion 807 , Letter to District Judge, 813 , Letter to District Judge, 824 , Order on Motion to Stay 823 , Letter to District Judge,, 810 , Proposed Order to Judge 809 , Motion to Stay 806 . (KDS) (Entered: 03/27/2020)
825 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Chares E. Johnson to Honorable Donovan W. Frank (re March 2020 Annual Compliance Report)). (Noss, Anthony) (Entered: 03/31/2020)
826 SEALED Jensen Settlement Agreement Comprehensive Plan of Action (CPA) March 2020 Annual CPA Compliance Report, Reporting Period Jan. 1, 2019 to Dec. 31, 2019 re 825 Letter to District Judge by Defendants Minnesota Department of Human Services, an agency of the State of Minnesota, and the State of Minnesota. (Noss, Anthony) (Entered: 03/31/2020)
827 Redacted Document for 826 Sealed Jensen Settlement Agreement Comprehensive Plan of Action (CPA) March 2020 Annual CPA Compliance Report, Reporting Period Jan. 1, 2019 to Dec. 31, 2019 . (Noss, Anthony) (Entered: 03/31/2020)

03/31/2020 03/31/2020 03/31/2020 04/06/2020
04/07/2020 04/08/2020 05/08/2020 05/14/2020 05/14/2020 05/14/2020
05/15/2020
05/15/2020 05/18/2020

828 SEALED Jensen Settlement Agreement Comprehensive Plan of Action (CPA) March 2020 Annual CPA Compliance Report Identifier Key re 826 Sealed Document, by Defendants Minnesota Department of Human Services, an agency of the State of Minnesota, and the State of Minnesota. (Noss, Anthony) (Entered: 03/31/2020)
829 Redacted Document for 828 Sealed Jensen Settlement Agreement Comprehensive Plan of Action (CPA) March 2020 Annual CPA Compliance Report Identifier Key . (Noss, Anthony) (Entered: 03/31/2020)
830 DECLARATION of Margaret Fletcher−Booth, et al. re 826 Sealed Document, by Minnesota Department of Human Services, Minnesota, State of . (Noss, Anthony) (Entered: 03/31/2020)
831 ORDER: Defendants shall submit an addendum to the Olmstead Plan March 2020, Revision (Doc. No. 824 ) by May 15, 2020, that includes the following: a. A brief explanation for each goal summarizing how the goal may be impacted by the COVID−19 pandemic and whether further revision is necessary; and b. A response to each of the Courts questions posed above. Signed by Judge Donovan W. Frank on 4/6/2020. (See Order for Specific Details)(las) (Entered: 04/06/2020)
832 USCA JUDGMENT (electronic copy) as to 783 Notice of Appeal to 8th Circuit filed by Minnesota Department of Human Services, Minnesota, State of, 804 Notice of Appeal to 8th Circuit filed by Minnesota Department of Human Services, Minnesota, State of. (kt) (Entered: 04/08/2020)
NOTICE to USCA of subsequent filing in a civil case, Re: Sealed Document, 828 , Order to Party File Document/Respond to Court, 831 , Declaration 830 , Letter to District Judge 825 , Sealed Document, 826 . (KDS) (Entered: 04/08/2020)
833 MANDATE of USCA (electronic copy) as to 783 Notice of Appeal to 8th Circuit filed by Minnesota Department of Human Services, Minnesota, State of, 804 Notice of Appeal to 8th Circuit filed by Minnesota Department of Human Services, Minnesota, State of. (kt) (Entered: 05/11/2020)
834 LETTER TO DISTRICT JUDGE from Dr. Gary LaVigna re: invoice. (las) (Entered: 05/14/2020)
835 TEXT−ONLY ORDER: The Court is in receipt of Dr. Gary LaVigna's invoice. (Doc. No. 834 ) Pursuant to the Court's March 4, 2020 Order, the parties have ten (10) days to object to the invoice. (Doc. No. 820). Absent objection, the Court will review the invoice and issue an appropriate order for payment from the Courts registry. Ordered by Judge Donovan W. Frank on 5/14/2020.(las) (Entered: 05/14/2020)
836 TEXT−ONLY ORDER: In light of the COVID−19 pandemic and the additional barriers it poses to communicating and sharing documents, the Court extends the deadline for Dr. Gary LaVigna to submit his report regarding the use of mechanical restraint at the Forensic Mental Health Program and Anoka Regional Treatment Center to June 30, 2020. Ordered by Judge Donovan W. Frank on 5/14/2020.(las) (Entered: 05/14/2020)
837 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter from Charles E. Johnson, Deputy Commissioner of DHS, to the Honorable Donovan W. Frank (Re: Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measureable Goals, Reporting Period Data Acquired Through April 30, 2020, Date Approved by Subcabinet May 11, 2020)). (Attachments: # 1 (Minnesota Olmstead Subcabinet Quarterly Report on Olmstead Plan Measureable Goals, Reporting Period Data Acquired Through April 30, 2020, Date Approved by Subcabinet May 11, 2020), # 2 (Verification of Michael Tessneer))(Noss, Anthony) (Entered: 05/15/2020)
838 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of (Letter to the Honorable Donovan W. Frank). (Attachments: # 1 (Addendum to March 2020 Olmstead Plan in response to Doc. 831))(Ikeda, Scott) (Entered: 05/15/2020)
839 LETTER TO DISTRICT JUDGE from Dr. Gary LaVigna re: updated invoice. (las) (Entered: 05/18/2020)

05/18/2020 05/27/2020 05/28/2020
06/03/2020
06/04/2020 06/04/2020 06/04/2020
06/04/2020

840 TEXT−ONLY ORDER: The Court is in receipt of Dr. Gary LaVigna's updated invoice. (Doc. No. 839 ("Invoice").) This Invoice supersedes the invoice docketed at No. 834 . Accordingly, any objections pursuant to the Court's March 4, 2020 Order must now be directed at the Invoice within ten (10) days of the date the Invoice was filed. Absent objection, the Court will review the Invoice and issue an appropriate order for payment from the Court's registry. Ordered by Judge Donovan W. Frank on 5/18/2020.(las) (Entered: 05/18/2020)
841 LETTER TO DISTRICT JUDGE by Minnesota Department of Human Services, Minnesota, State of . (Ikeda, Scott) (Entered: 05/27/2020)
842 TEXT−ONLY ORDER: The Court is in receipt of Defendants' objection (Doc. No. 841 ("Objection")) to Dr. Gary LaVigna's invoice regarding his external review of the Forensic Mental Health Program and Anoka Metro Regional Treatment Center (Doc. No. 839). Defendants object to Dr. LaVigna's lack of specificity with respect to the date on which services were performed and the amount of time spent each day. (Objection at 2.) The Court agrees. To the extent he is able to do so retroactively, the Court respectfully requests that Dr. Gary LaVigna resubmit his invoice identifying specific services, the date on which those services were performed, and the amount of time spent on each service each day. Moreover, all subsequent invoices shall be required to include this information. Ordered by Judge Donovan W. Frank on 5/28/2020. (LJL) (Entered: 05/28/2020)
843 TEXT−ONLY ORDER: A status conference in this matter is currently scheduled for June 18, 2020. In light of the COVID−19 pandemic and the extension granted to Dr. Gary LaVigna to file his report regarding the external review of the Forensic Mental Health Program and Anoka Metro Regional Treatment Center, the Court finds it necessary to postpone the status conference. Accordingly, the status conference shall be held on July 13, 2020 at 1:30 PM in Courtroom 7C, Warren E. Burger Federal Building and United States Courthouse, 315 North Robert Street, St. Paul, Minnesota before Judge Donovan W. Frank and Magistrate Judge Becky R. Thorson. Ordered by Judge Donovan W. Frank on 6/3/2020.(las) (Entered: 06/03/2020)
844 LETTER TO DISTRICT JUDGE from Dr. Gary LaVigna re: revised March and April 2020 Invoice. (las) (Entered: 06/04/2020)
845 LETTER TO DISTRICT JUDGE from Dr. Gary LaVigna re: May 2020 Invoice. (las) (Entered: 06/04/2020)
846 TEXT−ONLY ORDER: The Court is in receipt of Dr. Gary LaVigna's second revised invoice for March and April 2020. (Doc. No. 844 ("Revised Invoice").) This Revised Invoice supersedes the invoice docketed at No. 839. Accordingly, any objections pursuant to the Court's March 4, 2020 Order must now be directed at the Revised Invoice within ten (10) days of the date the Revised Invoice was filed. Absent objection, the Court will review the Invoice and issue an appropriate order for payment from the Court's registry.Ordered by Judge Donovan W. Frank on 6/4/2020. (las) (Entered: 06/04/2020)
847 TEXT−ONLY ORDER: The Court is in receipt of Dr. Gary LaVigna's May invoice. (Doc. No. 845 .) Pursuant to the Court's March 4, 2020 Order, the parties have ten (10) days to object to the invoice. (Doc. No. 820). Absent objection, the Court will review the invoice and issue an appropriate order for payment from the Court's registry. Ordered by Judge Donovan W. Frank on 6/4/2020.(las) (Entered: 06/04/2020)

 
 Joint PRESS RELEASE
FOR IMMEDIATE RELEASE
SETTLEMENT REACHED IN FEDERAL CLASS ACTION LAWSUIT INVOLVING CLAIMS OF RESTRAINT AND SECLUSION OF RESIDENTS WITH DEVELOPMENTAL DISABILITIES AT STATE FACILITY, SUBJECT TO COURT APPROVAL
SAINT PAUL – September 14, 2010 – A $3 Million settlement has been reached in a federal class action lawsuit brought by three families against the State of Minnesota and other defendants for restraining and secluding residents with developmental disabilities, prior to September, 2008, at Minnesota Extended Treatment Options (METO), a state operated facility. The settlement, reached after a two day mediation ending Monday evening, requires approval by U.S. Federal District Court Judge Donovan Frank.
In the settlement, the State and Plaintiff families agree to work together over the next 60 days to develop appropriate policies and procedures for use at METO and the Minnesota Department of Human Services (DHS). The parties also agree to form a committee to include stakeholders within the developmental disabilities community to study, review and modernize the DHS rule (Rule 40), which governs and protects people with developmental disabilities, to reflect current best practices, including the use of positive and social behavioral supports, and the development of placement plans consistent with the principle of the “most integrated setting” and “person centered planning, and development of an “Olmstead Plan” consistent with the 1999 U.S. Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 582 (1999).
Shamus O’Meara, lead counsel for the families and partner with the law firm of Johnson & Condon, P.A., stated, “This settlement, if approved by the Federal Court, will establish lasting, positive change for the families who have been through so very much in this difficult, emotional situation. The State and the families have jointly agreed to develop effective policies and practices for the treatment and care of people with developmental disabilities, including those who are sent to state operated facilities. We recognize and appreciate the State of Minnesota’s commitment to partner with the families on this extremely important effort.”

He added, “This settlement is a defining moment for the families in this lawsuit, and for all families of people with developmental disabilities in Minnesota.”
The three Plaintiff families named in the lawsuit, who would serve as class representatives should the settlement be approved by the Federal Court, include Jim Brinker/Daren Allen, Elizabeth Jacobs, and Jim and Lorie Jensen, on behalf of their sons, Thomas, Jason, and Bradley, who were METO residents.
Jim Brinker stated, “Thomas was sent to METO for throwing paint at school. It took us a long time to get him out. We are thankful for a settlement with the State and DHS which promises to develop appropriate protections to ensure that the most vulnerable in our communities such as those with developmental disabilities receive the treatment and respect they deserve.”
Jim and Lorie Jensen stated, “Parents of children with developmental disabilities struggle every day to find answers and help. We believe the agreement allows DHS to work with the developmental disabilities community to create the necessary training and resources to help our family and other families who struggle with important decisions for their loved ones.”
Beth Jacobs stated, “My son has been through much over the past three years. I am hopeful that he can be happy and will now receive the appropriate treatment and care he needs for his condition.”
Dr. L. Read Sulik, M.D., assistant commissioner for Chemical and Mental Health Services at DHS, which oversees the METO program, said the department is pleased to reach a settlement and noted the practices described in the lawsuit had ended.
“The Department of Human Services recognizes the vulnerability of individuals with developmental disabilities who are in our care,” Sulik said. “We are fully committed to working with families and the disability community to provide the safest and highest quality care for our most vulnerable citizens and will work to reduce and eventually eliminate the reliance on seclusion and restraints in treatment settings.”
The lawsuit, originally filed in July 2009, contended METO staff routinely restrained residents in a prone face down position and placed them in metal handcuffs and leg hobbles, placed residents in seclusion and isolation rooms for extended time periods, and deprived them of visits from family members, among other claims. The lawsuit sought damages for violations of the federal civil and constitutional rights of residents with developmental disabilities, and asked the Court to enter an injunction against the State to prohibit its restraint and seclusion practices, and to declare them unconstitutional.

The defendants have denied liability for all of the claims.
For more information, please contact:
For Plaintiffs: Shamus P. O’Meara Johnson & Condon, P.A. 7401 Metro Boulevard, Suite 600 Minneapolis, MN 55439-3034
952.806.0438 SPO@Johnson-Condon.com
For State/DHS:
Terry Gunderson DHS Communications Director
(651) 431-2912 Terry.gunderson@state.mn.us