Jensen v. Minnesota Department of Human Services

Background

The plaintiffs filed this class action in 2009, alleging federal and state law violations arising from the abusive or improper use of seclusion and mechanical restraints on residents of the Minnesota Extended Treatment Options program. In 2011, the court approved a Stipulated Class Action Settlement Agreement. The settlement required, among other things, closure of the METO facility, limits on restraint and seclusion at successor facilities, monitoring of restraint use, transition planning for residents, system-wide improvements, and development of an Olmstead Plan.

The court retained authority to supervise compliance with the settlement. Over the following years, it appointed David Ferleger as an independent advisor and compliance monitor, required compliance reports, adopted a Comprehensive Plan of Action, extended its jurisdiction several times, and addressed repeated disputes about compliance and the accuracy or adequacy of the defendants’ reports.

In March 2019, the defendants submitted a Summary Report stating that they were in compliance with all Evaluation Criteria. The plaintiffs disputed that assessment and cited alleged continuing violations, including prohibited restraints. Consultants also said the report’s limited analysis and lack of outside verification made it difficult to determine whether the defendants were actually complying. The defendants asked the court to end its jurisdiction immediately. The plaintiffs asked the court to reengage the Court Monitor and hold an evidentiary hearing.

Issues Requiring Further Review

The court concluded that the Summary Report did not provide enough information to determine whether the defendants had complied with several parts of the settlement and Comprehensive Plan of Action.

Prohibited techniques. The defendants reported that certain facilities had not used prohibited restraints or had used restraints only in emergencies, but the court found that the reporting appeared to rely on sampling and lacked sufficient information about the number of reports, the basis for emergencies, trends, and use of prohibited techniques by third parties. The court therefore required an outside Subject Matter Expert to review and report on Evaluation Criteria 5 through 40. The defendants had to identify and assign the expert by August 1, 2019, first reaching out to Dr. Gary LaVigna. The expert’s initial report was due before October 15, 2019, unless the court changed the date. The defendants would have ten days to respond, after which the expert would submit a final report. The defendants had to share the final reports with plaintiffs’ class counsel, the Consultants, and the court.

Scope of the settlement. The plaintiffs argued that the settlement’s restrictions on prohibited restraints extended to the Minnesota Security Hospital and Anoka Regional Treatment Center, among other locations. The defendants appeared to take the position that the relevant Evaluation Criteria applied only to the facilities identified in the Comprehensive Plan of Action. The court did not resolve that dispute in this order. Instead, it required the parties to meet and confer by August 1, 2019. If they could not agree, they had to submit a joint statement by August 15, 2019 explaining their positions and proposing a process for resolving the issue. The court also required the parties to determine whether disputes remained about the Positive Supports Rule and the related Evaluation Criteria.

Staff training. The court found that the defendants’ report showed that training was offered but did not adequately verify that every facility treatment staff member received the required training, completed the required hours, and achieved competency. The court ordered a Subject Matter Expert to review Evaluation Criteria 54 through 56, including whether each staff member received and demonstrated competency in all required areas. The same initial-report, response, final-report, and sharing requirements applied.

Treatment homes. The Consultants had raised concerns that the number of treatment homes might be insufficient, citing waitlists and other information. The court ordered the defendants to supplement the Summary Report by October 15, 2019 with an assessment and analysis of the need for and current availability of treatment homes. The court encouraged, but did not require, the defendants to use a Subject Matter Expert for this assessment.

Olmstead Plan

The court had previously approved the Olmstead Plan and required regular reports about its implementation. The court found that it needed additional information before deciding whether the March 2019 proposed revision satisfied the settlement’s requirements. In particular, the court required the parties to meet and confer about whether unresolved issues concerning the Positive Supports Rule and prohibited restraints had to be addressed through the Olmstead Plan’s modification process. If they could not agree, they had to notify the court by August 15, 2019 and propose a briefing and hearing process.

Ruling and Disposition

The court extended its jurisdiction—its authority to continue supervising the matter—to September 15, 2020, while reserving the ability to extend it again depending on compliance. All reporting requirements remained unchanged.

The court denied the plaintiffs’ request for an evidentiary hearing pending receipt of the Subject Matter Expert’s initial and final reports. It also denied the defendants’ request to have the court state the legal standard for ending its involvement and identify all remaining required actions, finding that request premature. The court denied the defendants’ request to end the reporting requirements.

The court ordered a leadership conference for the parties and others involved in the case to discuss a plan for completing the settlement and ending the court’s jurisdiction. Judge Donovan W. Frank did not make a final determination that the defendants were or were not in compliance with the settlement; instead, the order required additional investigation, information, and discussion.