ORDER
DONOVAN W. FRANK, District Judge.
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 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 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.)
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 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 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 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.)
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 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 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.
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, 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 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.)
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 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 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.
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 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 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, 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 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 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.
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 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 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.
EXHIBIT A. DEFENDANTS' VERIFICATION OBLIGATIONS IN RESPONSE TO JENSEN GAP REPORT (See March 18, 2016 Court Order.)
Topic Governing Evaluation Criteria Reported State of Compliance Proposed Verification Actions
Restraint Reporting • "Form 31032 (or its successor) was fully • The current form relevant to these ECs is • DHS shall investigate and report to the
completed whenever use was made of DHS-3654 which is used "for reporting Court on whether any of the reported 911
manual restraint." (EC 28.) restraint use, 911 calls, and client requests calls at the facilities involved the use of
• "For each use, Form 31032 (or its for PRN medications." (Gap Report at prohibited restraints such as handcuffs or
successor) was timely completed by the 25.) chemical restraint.
end of the shift." (EC 29.) • For all of these ECs, DHS reports that • The Court recommends that the JIO
• "Each Form 31032 (or its successor) "There were no instances of manual appoint an Independent SME to
indicates that no prohibited restraint was restraint use at Minnesota Life Bridge investigate the 911 calls reported on the
used." (EC 30.) during this reporting period." (Id. at 25-26.) 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.
Staff Training • "Facility treatment staff received training • DHS reports that it has "met the • DHS shall verify whether it is in
in positive behavioral supports, person-centered requirements" for all of these ECs, compliance with the Jensen Settlement
approaches, therapeutic excluding EC 57 which relates to incidents Agreement and the CPA with regard to
interventions, personal safety techniques, of manual restraints because there were no staff training. DHS shall report the
crisis intervention and post crisis uses of manual restraints this reporting results of this investigation and provide a
evaluation." (EC 54.) period. (Gap Report at 39-41.) summary report about its training to the
• "Facility staff training is consistent with • DHS reports that "the [JIO] has verified Court.
applicable best practices, including but that Facility staff have received all • The Court proposes that the JIO appoint
not limited to the Association of Positive required training." (Id. at 39.) an Independent SME to evaluate and
Behavior Supports, Standards of Practice • DHS states that Minnesota Life Bridge provide feedback to DHS on its staff
for Positive Behavior Supports will monitor attendance at training training curriculum. This proposed
(http://apbs.org). Staff training programs sessions and is organizing all of its evaluation would focus on the
will be competency-based with staff historical training records for data entry requirements in EC 55 providing that
demonstrating current competency in into a DHS learning management system training must be both "consistent with
both knowledge and skills." (EC 55.) database. (Id. at 39-40.) applicable best practices" and
• "Facility staff receive the specified • DHS also states that training for "competency-based." The Court also
number of hours of training: Therapeutic recommends that the SME assess
interventions (8 hours); Personal safety Minnesota Life Bridge staff is "consistent whether training is appropriately
techniques (8 hours); Medically with applicable best practices" and standardized across divisions throughout
monitoring restraint (1 hour)." (EC 56.) "competency-based." (Id. at 40.) DHS. The Court proposes that the SME
• "For each instance of restraint, all • DHS reports that the JIO "has verified that consult with the Quality Assurance
Facility staff involved in imposing all new hires for successor facilities have Committee as appropriate.
restraint received all the training in completed the required training." (Id.)
Therapeutic Interventions, Personal
Safety Techniques, Medically
Monitoring Restraint." (EC 57.)
Community Support • "The expansion of community services • DHS reports that it has met the • DHS shall report to the Court detailing
Services ("CSS") under this provision allows for the requirements of these ECs. (Gap Report outcomes related to these ECs.
provision of assessment, triage, and care at 45-49.) • The Court recommends that DHS utilize
coordination to assure persons with • DHS reports that CSS implemented a the Jensen Internal Reviewer and the
developmental disabilities receive the Statewide Referral Data Tracking system Quality Assurance Committee to
appropriate level of care at the right time, in April 2015. (Id. at 45.) accomplish this task.
in the right place, and in the most • DHS reports that it launched a Single • The Court suggests that the Jensen
integrated setting in accordance with the Point of Entry project to respond to Internal Reviewer conduct an internal
U.S. Supreme Court decision in Olmstead requests from individuals with disabilities investigation to verify the results reported
v. L.C., 572 U.S. 582 (1999)." (EC 67.) in crisis in February 2015. (Id. at 45-46, in the Gap Report.
• "The Department identifies, and provides 71-73.) The Single Point of Entry pilot • The Court proposes that the Jensen
long term monitoring of, individuals with project "focuses on coordinating [DHS] Internal Reviewer develop a substantive
clinical and situational complexities in efforts for . . . persons with developmental performance report to elaborate on DHS's
order to help avert crisis reactions, provide or intellectual disabilities in crisis and at compliance with these ECs related to CSS
strategies for service entry changing risk of losing their current placement." and crisis interventions. Specifically, the
needs, and to prevent multiple transfers (Id. at 45-46.) Court seeks further information regarding
within the system." (EC 68.) • DHS explains that CSS will "document the services provided to the seventy-five
• "Approximately seventy five (75) their actions and efforts, and the impact on individuals targeted for long-term
individuals are targeted for long term people's' [sic] stability." (Id. at 46.) monitoring. The Court also seeks further
monitoring." (EC 69.) • DHS provides numeric data on the number information on the staffing and
• "CSS mobile wrap-around response teams of individuals who received services from administration of the Single Point of Entry
are located across the state for proactive CSS, including those receiving long-term project.
response to maintain living arrangements." monitoring. (Id. at 46-47) DHS reports • The Court suggests that the Quality
(EC 70.) that the JIO is working with CSS to Assurance Committee provide input on its
• "CSS arranges a crisis intervention within develop tracking systems to facilitate role in overseeing the Single Point of
three (3) hours from the time the parent or monthly reports on unduplicated counts of Entry, if any, offer recommendations on
legal guardian authorizes CSS' people being served through long-term system-wide challenges that may impede
involvement." (EC 71.) monitoring. (Id.) compliance with these ECs, and make
• "CSS partners with Community Crisis • DHS provides data on the average recommendations to address any
Intervention Services to maximize support, response times for crisis services. (Id. at impediments.
complement strengths, and avoid 48.) DHS explains that CSS and the JIO
duplication." (EC 72.) will continue to monitor crisis responses
through a new electronic tracking form.
(Id.)
Staff Qualifications • "Staff conducting the Functional • Under EC 78, DHS reports that the CSS • DHS shall investigate and report to the
Behavioral Assessment or writing or Supervisor responsible for reviewing Court on whether the staff qualifications
reviewing Behavior Plans shall do so behavior plans is currently in the process required by ECs 78 and 89 are being met.
under the supervision of a Behavior of obtaining appropriate certification. • The Court proposes that DHS utilize the
Analyst who has the requisite educational (Gap Report at 51-52.) Jensen Internal Reviewer to conduct this
background, experience, and credentials • Under EC 89, DHS reports that it has investigation.
recognized by national associations such "met criteria." (Id. at 59.) • To properly verify the representations
as the Association of Professional made in the Gap Report, the investigation
Behavior Analysts. Any supervisor will shall be based on more than DHS's own
co-sign the plan and will be responsible assertions that it is in compliance.
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 MSHS-Cambridge
will receive additional
orientation training and supervision to
meet these qualifications within 6 months
of reassignment." (EC 89.)
Evaluation Tools • See EC 98, 47, 48, 49, 50, 51, 52 • DHS reports that the Successful Life • DHS shall compile, verify, and report on
(discussed in Gap Report at 63-64, 70). Project utilizes the Positive Behavior the results of the assessments conducted
• "DHS will maintain therapeutic follow-up Support-System Evaluation Tool to with these evaluation tools. DHS shall
of Class Members, and clients evaluate the life situations of class also investigate whether a uniform
discharged from METO/MSHS-Cambridge members. (Gap Report at 64.) evaluation tool can be utilized to evaluate
since May 1, 2011, by • DHS reports that "[t]he [JIO] completed individual outcomes across DHS's
professional staff to provide a safety desk audits of the transition plans for the service spectrum and report to the Court
network, as needed, to help prevent re-institutionalization three people who transitioned from on its findings.
and other transfers to Minnesota Life Bridge during this • The Court recommends that the Jensen
more restrictive settings, and to maintain reporting period." (Id. at 70.) For these Internal Reviewer complete this
the most integrated setting for those audits, reviewers used a tool adapted investigation. The Court also suggests
individuals." (EC 98.) from the Person-Centered Positive that the Jensen Internal Reviewer appoint
• "The State undertakes best efforts to Behavior Support Plan Report Scoring an Independent SME for this task, if
ensure that each resident is served in the Criteria & Checklist developed by the necessary, and rely on DHS's Quality
most integrated setting appropriate to Kansas Institute for Positive Behavior Assurance Committee to the extent
meet such person's individualized needs, Support. (Id.) The transition plans were agency-wide consultation is needed.
including home or community settings. scored at 94%, 95% and 94% in these
Each individual currently living at the desk audits. (Id.)
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 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." (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.)
EXHIBIT B. COURT MONITOR'S VERIFICATION DUTIES IN RESPONSE TO JENSEN GAP REPORT (See March 18, 2016 Court Order.)
Topic Governing Evaluation Reported State of Verification Duties To Be Provided by DHS
Criteria Compliance to the Court Monitor
Mobile Teams • "DHS will provide augmentative • DHS states that it has "met • DHS shall identify a designated • As part of its disclosures,
service supports, consultation, criteria" for this EC but also point person (or persons if DHS shall provide the
mobile teams, and training to states that it is not providing necessary) for the Court Court Monitor with
those supporting the person. "separate, distinct mobile Monitor on this topic within Bulletin # 14-76-01,
DHS will create stronger teams," but rather is relying on seven (7) days of the Court's Transition of Minnesota
diversion supports through "current staff as needed." (Gap March 18, 2016 Order. Specialty Health System
appropriate staffing and Report at 61.) • The Court Monitor will request (MSHS)-Cambridge to
comprehensive data analysis." • DHS explains how mobile information from the designated Minnesota Life Bridge:
(EC 93.) supports have been provided to point person about the Admission and Discharge
individuals in a variety of deployment of mobile teams in Processes, Transition
settings, both individuals response to crisis situations at Planning and Community
receiving services at DHS DHS facilities and in Mobile Support Services
facilities and individuals community settings. DHS may issued April 29, 2014
residing in community settings. provide additional information within seven (7) days of
(Id.) it believes is relevant to the the Court's March 18,
evaluation. 2016 Order.
• 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.
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.)
• If the Court requires further
investigation, another Order
will issue.
Successful Life • "DHS will maintain therapeutic • DHS does not state that it has • DHS shall identify a designated • As part of its disclosures,
Project follow-up of Class Members, "met criteria" for this EC, but point person (or persons if DHS shall provide the
and clients discharged from reports on the "Successful Life necessary) for the Court Court Monitor with
METO/MSHS-Cambridge since Project," describing how this Monitor on this topic within Bulletin #15-76-01,
May 1, 2011, by professional project is utilized "to support seven (7) days of the Court's Successful Life Project and
staff to provide a safety network, members of the therapeutic March 18, 2016 Order. the Community-based
as needed, to help prevent re-institutionalization follow-up group." (Gap Report • The Court Monitor will request Services Manual
and other at 63.) information from the designated referenced in the Gap
transfers to more restrictive • DHS has completed 263 initial point person to verify the Report within seven (7)
settings, and to maintain the assessments through this project accuracy and completeness of days of the Court's
most integrated setting for those as part of Phase I and Phase II is DHS's representations with March 18, 2016 Order.
individuals." (EC 98.) underway. (Id. at 63-64.) DHS regard to the Successful Life (See Gap Report at 63.)
describes its process for Project and to evaluate the
assessment, including the use of results of the project to
the Positive Behavior Support-System determine whether the
Evaluation Tool. (Id.) Successful Life Project is
In addition, DHS discusses the achieving the goals of
Successful Life Project Priority "prevent[ing] re-institutionalization
Tracking lists which DHS uses and other
to determine the priority of transfers to more restrictive
individuals receiving Phase II settings, and . . . maintain[ing]
assessments. (Id. at 64.) the most integrated setting for
• DHS reports on one specific those individuals." (Doc. No.
individual who was reported to 283 at 30.) DHS may provide
the State as a perpetrator of additional information it
rape. (Id. at 65.) believes is relevant to the
• DHS describes the current evaluation.
staffing of the Successful Life • In particular, the Court Monitor
Project. (Id.) 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
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.
