DONOVAN W. FRANK, District Judge.
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.
Nearly ten years ago, on July 10, 2009, Plaintiffs filed a Complaint
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 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 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 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 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").
The Court formally adopted and approved the CPA (Doc. No. 283 ("CPA")) on March 12, 2014.
(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.
On June 20, 2014, the Court Monitor submitted a report with additional findings of noncompliance.
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 fifth Compliance Reports could not be verified.
Following the Status Conference, the parties participated in mediation to address remaining issues.
Defendants submitted the Gap Report on February 2, 2016.
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.
(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:
(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:
(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.
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, 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:
(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 the External Reviewer Function.
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 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.
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 noncompliance
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 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:
(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.)
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, 683
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.
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.
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.
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 DHS's Internal Compliance Oversight structure.
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:
(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 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.)
The Consultants
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.
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.
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,
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; 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.
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 will limit their review and report to the Stratton Lake, Donnelly, and Bromberg's Lake Facilities.
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:
(Settlement Agreement § V.A.) Plaintiffs argue that Defendants agreed that the Settlement Agreement precludes the use of prohibited restraints at the Minnesota Security Hospital and elsewhere. (Doc. No. 730 at 9.)
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 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.
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 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.
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:
While the Summary Report indicates that training is offered, it fails to show that all Facility treatment staff actually received the training.
Although the Summary Report provides a detailed description of the training curriculum provided to staff and the process to determine staff competency, it provides no documentation or verification that staff has actually achieved competency. (Summary Report at 143-146.)
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.
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.
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.
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).
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.
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.)
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:
(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.
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.
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.
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 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.
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.
Based upon the presentations and submissions before the Court, and the Court being otherwise duly advised in the premises,
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(Summary Report at n.191 (internal citations omitted).)
