Wyatt ex rel. Rawlins v. Sawyer (105 F. Supp. 2d 1234, 2000)

United States District Court for the Middle District of Alabama 2000-07-13

Citations

Full opinion text

MEMORANDUM OPINION

MYRON H. THOMPSON, District Judge.

In October 1999, as this case challenging conditions in the Alabama Mental Health and Mental Retardation System approached its 30th birthday, this court wrote with some optimism:

“[I]t is apparent that this litigation is steadily progressing toward its final resolution. Contributing to these efforts, newly appointed Commissioner of Mental Health and Mental Retardation Kathy E. Sawyer has, as this court recently observed, directly addressed one of the primary concerns of the court: the past unwillingness of the Mental Health and Mental Retardation Department to address rather than hide serious problems. As this court stated in its order of October 7, 1999: ‘Commissioner Sawyer has made clear that all problems will be “aired” and that all will be directly and forcefully addressed. Therefore, it appears now within sight that, under the leadership of Commissioner Sawyer, this litigation will come to an end in the near future, and certainly within her stint as Commissioner.’ ”

Wyatt v. Sawyer, 190 F.R.D. 685, 689 (M.D.Ala.1999) (Thompson, J.) (quoting Wyatt v. Sawyer, 67 F.Supp.2d 1331, 1358 (M.D.Ala.1999) (Thompson, J.)). Just a few months later, on January 20, 2000, the parties reached a settlement agreement, and, on January 27, filed a joint motion for judicial approval of the agreement. On May 4, 2000, the court conducted a fairness hearing, and, based on a close examination of the agreement, the objections and other responses filed by plaintiff-class members and other interested persons, and the testimony offered at the fairness hearing, the court entered an order the next day approving the agreement, and promised that a memorandum opinion would follow later. This is the promised opinion.

I. BACKGROUND

This litigation has traveled a long, winding, and often quite bumpy course, which the court has described at length in prior opinions and need not recount here. See, e.g., Wyatt v. Rogers, 985 F.Supp. 1356 (M.D.Ala.1997) (Thompson, J.). However, a brief overview of the case’s general trajectory and major turning points will serve as a useful foundation for consideration of the matter currently before the court.

1970-197Í: The first phase of this litigation featured “expansive and landmark opinions,” Wyatt, 985 F.Supp. at 1361, of Judge Frank M. Johnson, Jr., finding “that conditions in the facilities operated by the Alabama Department of Mental Health and Mental Retardation violated patients’ constitutional rights,” id., and enjoining the defendants “to bring the facilities into compliance with certain minimum constitutional standards.” Id. More specifically, in 1972, the court entered injunctions requiring the defendants to bring state facilities into compliance with certain minimum constitutional standards, now commonly referred to as the Wyatt standards,’ see Wyatt v. Stickney, 344 F.Supp. 373 (M.D.Ala.1972) (standards for mentally ill) (Johnson, J.), aff'd in relevant part, 503 F.2d 1305 (5th Cir.1974); Wyatt v. Stickney, 344 F.Supp. 387 (M.D.Ala.1972) (standards for mentally retarded) (Johnson, J.), aff'd in relevant part, 503 F.2d 1305 (5th Cir.1974).

1975-1980: In the second phase, the parties focused on the defendants’ noncompliance with these minimum constitutional standards. The plaintiffs and ami-cus curiae United States of America petitioned the court to appoint a special master or receiver to assure compliance, and both opposed a petition by the Governor of Alabama to be appointed as receiver of the State Mental Health and Mental Retardation System. Ultimately, following extensive hearings and appeals on the issue, the court appointed the Governor as receiver.

1981-1990: The plaintiffs triggered the third phase with their motion for sufficient state funding to ensure implementation of the Governor’s plan of compliance with the Wyatt standards; in response, the Governor moved for termination of the receivership while the defendants moved to eliminate all of the Wyatt standards and to substitute in their place a requirement that the defendants achieve accreditation of the State’s mental-illness facilities by the Joint Commission on the Accreditation of Healthcare Organizations (JCAHO) and certification of the mental-retardation facilities through Title XIX of the Social Security Act, 42 U.S.C.A. § 1396, et seq. The parties settled these conflicts, and, on September 22, 1986, this court approved a five-page consent decree which reflected a resolution of three issues, among others: (1) the defendants’ desire to terminate court supervision of the state system; (2) the plaintiffs’ concern about the continued viability of the Wyatt standards; and (3) the plaintiffs’ efforts to focus the litigation on the provision of community facilities and programs and the placement of qualified patients in those facilities and programs. See Wyatt v. Wallis, 1986 WL 69194 (M.D.Ala. Sept.22, 1986) (Thompson, J.).

1991-1997: The next round of litigation focused on the defendants’ attempts to terminate this lawsuit upon a judicial finding that they had met their obligations under the 1986 consent decree. At the conclusion of a 35-day trial spanning several months in 1995, the court found that the defendants had acted in good faith with regard to some but not the whole 1986 consent decree, and it concluded that they should be released from the decree to the extent of their compliance with 17 of the mental-illness standards and 35 of the mental-retardation standards, as well as the requirement of JCAHO accreditation at all mental-illness facilities and Title XIX certification at all mental-retardation facilities. At this time the court also directed the parties to shift their focus to a standard-by-standard approach. See Wyatt v. Rogers, 985 F.Supp. 1356 (M.D.Ala.1997) (Thompson, J.).

1998-present: The parties devoted much of 1998 and 1999 to discovery, including facility inspections by the plaintiffs’ experts, on disputed compliance issues, several of which were either resolved or narrowed for the trial that had been scheduled for May and June 2000. See, e.g., Wyatt v. Rogers, 1998 WL 213779 (M.D.Ala. Apr. 21, 1998); Wyatt v. Rogers, 1998 WL 264783 (M.D.Ala. May 14, 1998); Wyatt v. Rogers, 1998 WL 862920 (M.D.Ala. Dec.9, 1998); Wyatt v. Sawyer, 1999 WL 805285 (M.D.Ala. Oct.4, 1999). Regularly scheduled status conferences with the court kept the parties focused. Negotiations intensified in 1999 when both parties retained settlement counsel independent of litigation counsel, which culminated in the settlement agreement now submitted for judicial approval.

II. SUMMARY OF THE SETTLEMENT AGREEMENT

The settlement agreement executed on January 20, 2000, proposes to dissolve the 1986 consent decree, settle the compliance disputes which have persisted since 1986, and finally bring to an end the federal court’s long-term monitoring and control of the Alabama Department of Mental Health and Mental Retardation. Included in the settlement agreement are important provisions which guarantee that the State of Alabama will maintain its commitment to minimum constitutional standards for treatment and habilitation and significantly enhance and expand its services to the mentally ill and mentally retarded. Following is a summary of the settlement agreement’s most significant provisions.

Accreditation: All of the State’s mental-illness facilities are accredited by the JCA-HO and all of the developmental centers are certified by the Health Care Financing Administration. These accreditations and certifications will be maintained.

Advocacy Program: The State Mental Health and Mental Retardation Department will maintain a trained staff of at least 26 full-time equivalent advocates for the effective operation of its internal advocacy program, which is designed to educate persons about client rights, to review or investigate complaints of rights violations, and to monitor conditions in mental-illness and mental-retardation facilities and in certified community programs.

Census Reduction: During the three-year period between October 1, 2000, and September 30, 2003, the department shall reduce by a total of 300 the number of extended-care mental-illness beds at Bryce Hospital, Searcy Hospital, and Thomasville Mental Health Rehabilitation Center and by a total of 300 the number of extended-care mental-retardation beds at Partlow Developmental Center, Albert P. Brewer Developmental Center, J.S. Tarwater Developmental Center, and Lurleen B. Wallace Developmental Center. The settlement agreement does not require closure of any state facilities.

Community Placement: By September 1, 2000, the department shall develop a plan, to be implemented between October 1, 2000, and September 30, 2003, to identify consumers to be out-placed from mental-illness facilities and to increase community-based placements and community-based services for them. By the same deadlines, the department shall also develop and implement a plan to identify consumers to be out-placed from mental-retardation facilities and to increase community-based placements and community-based services for them.

Public Education: The Department of Mental Health and Mental Retardation and the Alabama Disabilities Advocacy Program (“ADAP”) have agreed to develop and implement a comprehensive, statewide plan to enhance the public’s appreciation for the abilities, rights, and needs of the persons with mental- illness and the persons with mental retardation who are served by the department.

Quality Improvement: The department has incorporated into its Policy and Procedures Manual compliance mechanisms and structures related to client treatment, care, rights, and services required by the 1986 consent decree and the Wyatt standards for adequate treatment of persons with mental illness and for adequate habil-itation of persons with mental retardation. The settlement agreement requires the department to maintain its system-wide policy commitment to these minimum constitutional standards, to require that all facilities utilize the Policy Manual and expressly adhere to and implement all of these policies. Additionally, the settlement agreement requires that the department continue operating its Continuous Quality Improvement (“CQI”) systems in order to monitor the quality of mental-health and mental-retardation services provided to persons served in state-operated psychiatric facilities and developmental centers. The department must maintain at least one full-time, trained CQI employee in the mental-illness divisional office, in the mental-retardation divisional office, and at each facility.

Safety and Protection: When there are allegations of abuse and neglect in mental-health and mental-retardation facilities, the department must conduct timely investigations, using standard operating procedures and trained employees. ADAP shall have a representative on each facility’s investigation committee, and the department must provide specified notice and reports to ADAP concerning deaths, major personal injuries, suspected neglect, mistreatment, sexual assault, exploitation or abuse involving a departmental consumer.

Treatment and Habilitation: The department must develop, review, and permit ADAP to have input concerning individualized treatment plans for each resident at Bryce, Searcy, and Thomasville facilities. The department agrees to hire qualified professional consultants to study, and to recommend policies and procedures regarding treatment and discharge plans for all juveniles and for adults who have special needs relating to these diagnoses: a dual diagnosis of mental illness and mental retardation; traumatic or organic brain injury; self-injurious behavior; HIV/AIDS/ ARC; deafness, blindness, or serious physical impairments. The department also agrees to hire qualified professional consultants to study and to make recommendations concerning the use of seclusion and restraint for consumers with self-injurious behavior at Bryce and Searcy Hospitals and the use and administration of psychiatric medications.

For residents at Wallace, Partlow, Brewer, and Tarwater facilities, the department must develop, implement, and permit ADAP to have input concerning individualized habilitation plans. The department also agrees to secure professional assessments and recommendations regarding both systemic and clinical matters relevant to the habilitation of persons with mental retardation.

Term of the Settlement Agreement: The settlement agreement became effective immediately upon entry of the court’s May 5, 2000, order. The projected ending date for the agreement is not later than September 30, 2003, which is the final deadline for the State to complete certain obligations undertaken in the agreement. The court retains jurisdiction over this case for the limited purpose of enforcing the settlement agreement, and the agreement outlines procedures to resolve any compliance dispute.

III. DISCUSSION

Judicial policy favors voluntary settlement as the means of resolving class-action cases. See Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir.1977). However, “the settlement process is more susceptible than the adversarial process to certain types of abuse and, as a result, a court has a heavy, independent duty to ensure that the settlement is ‘fair, adequate, and reasonable.’ ” Paradise v. Wells, 686 F.Supp. 1442, 1444 (M.D.Ala.1988) (Thompson, J.) (quoting Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1214 (5th Cir. 1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979)). This abuse can occur when, for example, “the interests of the class lawyer and the class may diverge, or a majority of the class may wrongfully compromise, betray or ‘sell-out’ the interests of the minority.” Id. Besides evaluating the fairness of the settlement agreement, the court has the duty to make sure that the settlement is not illegal or against public policy. See Piambino v. Bailey, 757 F.2d 1112, 1119 (11th Cir.1985), cert. denied, 476 U.S. 1169, 106 S.Ct. 2889, 90 L.Ed.2d 976 (1986).

A. Class Notice

As a preliminary matter, Rule 23(e) of the Federal Rules of Civil Procedure requires that the court ensure that all interested parties were informed of the settlement and had the opportunity to voice their objections. This issue is particularly salient in the instant litigation because so many members of the plaintiff class lack the capacity to advocate effectively on their own behalf. The court must therefore take special care to ensure not only that the class members themselves, but also their guardians, advocates, and other interested persons were notified of the proposed settlement agreement and given adequate opportunities to voice their opinions on the class members’ behalf.

The court-approved notice was directed to “patients, residents, clients, and consumers served by the Alabama Department of Mental Health and Mental Retardation, their families, and legal guardians; individuals, groups, and organizations involved in advocacy or support for the rights of Alabama’s citizens with mental illness and mental retardation; and interested members of the general public.” The notice advised that the settlement agreement proposed “to dissolve the 1986 consent decree, settle the compliance disputes which have persisted since 1986, and finally bring to an end the federal court’s long-term monitoring and control of the Alabama Department of Mental Health and Mental Retardation.” In plain and simple language, the notice highlighted substantive terms and requirements, stated the projected effective date and ending date for the settlement agreement, and outlined the federal court’s role. Most importantly, the notice detailed alternative means for reviewing and securing copies of the complete agreement, identified official representatives for questions, specified the process for making objections, stated the date, time, and place for the fairness hearing, and authorized discretionary attendance or participation in the fairness hearing.

As shown by the joint evidentiary submission regarding notice of settlement agreement and timely filed responses, the parties disseminated the notices as stipulated in the court-approved plan. Notices were posted prominently in the living areas of all facilities covered by this agreement, and notices were hand-delivered to approximately 1,083 patients and residents while departmental advocates consulted with another 450 for whom hand-delivery was deemed clinically inappropriate. Mail-delivery notice was given to 695 persons identified as legal guardians or responsible parties for patients and residents while 17 notices were mailed to consumer and advocacy organizations with statewide constituencies.

The evidence also reflects newspaper publication of the notice in each of the cities housing a mental-health facility. Additionally, Commissioner Sawyer and counsel for the plaintiff class maximized the interested public’s understanding of the settlement agreement with their joint presentations to advocacy groups in these same cities along with several individual presentations across the State as well as news releases and written communications.

The adequacy of the notice is reflected, in part, by the substantial number of written responses timely filed before the fairness hearing and by the attendance and participation at the fairness hearing. Forty-five comments were timely received, nine of which are in the nature of objections. The court also conducted a fairness hearing on May 4, 2000, which many class members and their advocates attended, and at which many took the opportunity to voice objections to the proposed settlement. The court concludes that these measures, taken together, were sufficient to satisfy the notice requirements of Rule 23(e).

B. Plaintiffs’ Objections and Comments

“In determining whether a settlement is fair, adequate, and reasonable, the obvious first place a court should look is to the views of the class itself.” Paradise, 686 F.Supp. at 1444. Determining those views and quantifying them in a manner that enables the court to determine whether the settlement is fair is, however, not always easy. The court should be careful “not [to] allow a majority, no matter how large, to impose its decision on the minority,” Pettway, 576 F.2d at 1217; the court should be certain “that the burden of the settlement is not shifted arbitrarily to a small group of class members.” Id. However, where the settlement provides for structural changes, with each class member having a virtually equivalent stake in the changes, and where there are no conflicts of interest among class members or among definable groups within the class, then the decision to approve the settlement “may appropriately be described as an intrinsically ‘class’ decision in which majority sentiments should be given great weight.” Id.

As noted above with respect to the notice issue, the court must take special care in this case to consider carefully the opinions of those who filed objections or otherwise responded to the notice of settlement agreement. This is because many of the class members, as consumers of mental-health services, are not well-equipped to advocate on their own behalf in this litigation. The court must therefore rely on family, friends, other advocates, and those class members who are capable of voicing their opinions to communicate the interests of those who cannot. For this reason, the court takes the opinions of these advocates very seriously.

The timely-ffled comments in response to notice of the parties’ settlement agreement reflect a substantial sentiment in favor of the settlement. As stated, of the 45 submissions, only nine are in the nature of objections, 10 are statements of support from consumer and advocacy organizations, 23 are letters of support from mental-health consumers and relatives, and three are too vague and generalized to categorize.

The objectors fall into three categories. First, three relatives of mental-illness or mental-retardation patients express alarm at the prospect of having their loved ones transferred from institutional facilities to community placements, fearing a reduced quality of care in the latter. A second category consists of three objectors whose concerns either lack specificity or relate only generally to the issues in controversy. The last category of objectors consists of three advocacy groups, and the court deems it appropriate to address their thoughtful concerns.

On behalf of the Patrons of Partlow, a support organization for 214 parents or guardians of Partlow residents, President William Haas first expresses a viewpoint with which the court and the parties cannot disagree: that the settlement should “promot[e] the best possible care and quality of life for the Partlow [and other plaintiff class] residents.” His organization’s chief objection is to the provision of the agreement that requires that “a specific number [300]” of “persons with mental retardation receiving services at the four state institutions will be transferred to community facilities” over the term of the agreement. His organization proposes that the number, 300, be replaced with this: “those individuals who would benefit from community placement in terms of receiving care, services, and security that are better than that which they are currently receiving in an institution.”

Vandy J. Copeland, the second objector, is parent of a resident at Tarwater as well as president of two support groups, Friends of Tarwater and Advocates for the Retarded. His objection, which he characterized at the fairness hearing as a “concern” rather than a true “objection,” echoes those of Mr. Haas. Believing that many residents of Tarwater receive excellent and appropriate services in that institution, Copeland is concerned - about the push toward outplacement, and seeks “guidelines and protection” to ensure the safety of mental-health consumers and the appropriate use of the projected census reduction in state facilities.

In contrast to Haas and Copeland, who worry about the over-use of community placement, the Arc of Morgan County — an 180-member advocacy organization for persons with mental retardation and developmental disabilities — complains that the settlement should address community placement for all 650 mental-retardation residents rather than only the 300 targeted. An additional concern, shared by all three objectors, relates to the possibility that insufficient funding will doom the projected census reduction in facilities and community placements, and transitional services.'

C. Judgment of Counsel

“In addressing whether a settlement is fair, adequate, and reasonable, a court should also consider the judgment of experienced counsel for the parties.” Paradise, 686 F.Supp. at 1446. Here, counsel for the plaintiffs argue strongly in favor of approval of the settlement agreement, and their views carry great weight with the court. The plaintiffs’ attorneys have a significant background in disability law, and especially in mental-health law. Each of the two attorneys who have been the plaintiffs’ liaison counsel in the last 15 years has extensive experience in litigating, negotiating, and implementing structural reforms on behalf of individuals with disabilities in institutional settings. The parties’ settlement counsel are also experienced counsel with reputable records in federal class-action litigation. No one has questioned in any manner these attorneys’ dedication to the plaintiff class. Counsel for amicus curiae United States also supports the settlement agreement, and the court takes their views, supported by many years of experience in this type of litigation, very strongly into consideration.

D. Assessment of the Settlement Agreement

“Finally, with the above considerations in mind, the court should itself assess whether the consent decree is fair, adequate, and reasonable,” Paradise, 686 F.Supp. at 1446, as well as legal. See id. at 1448. The court finds that the proposed settlement meets these standards. The agreement imposes requirements and provides avenues for the outplacement of Alabama’s mental-health consumers into the community, while ensuring that such decisions are made on an individualized basis and with adequate safeguards of each consumer’s health and safety. The agreement is supported by commitments from Governor Don Siegelman and Commissioner Sawyer to put the agreement in place and to secure the funding necessary to do so. The court is also reassured of the agreement’s fairness by the role it affords both to the plaintiffs’ families,and guardians to participate in placement decisions for each patient, and to the plaintiffs’ counsel to remain active in monitoring implementation efforts over the course of the next three years. Thus, while the court appreciates the concerns voiced by Mr. Haas and Mr. Copeland, the court is convinced by Commissioner Sawyer’s representation that the figures of “300” in the settlement reflect a reasonable assessment of the number of patients that should be eligible for community placement and that the actual placement of a patient in a community facility will not be driven by numbers but rather will be based on an individual assessment and approved only when it is in the best interest of the patient. Finally, the court also finds that the settlement agreement complies with state and federal law.

IV. CONCLUSION

For the foregoing reasons, the court concluded that the proposed settlement agreement is fair, adequate, and reasonable, and the joint motion for judicial approval of this agreement and termination of the litigation was granted. An appropriate judgment approving the settlement and granting the motion was, therefore, entered on May 5, 2000.

APPENDIX A

ORDER

Based upon the record in this case, including the representations made at the fairness hearing held on May 4, 2000, it is the ORDER, JUDGMENT, and DECREE of the court that:

(1) The objections to the proposed settlement agreement, entered by the parties on January 20, 2000 and submitted to the court on January 27, 2000, are OVERRULED.

(2) The proposed settlement agreement, entered by the parties on January 20, 2000 and submitted to the court on January 27, 2000, is APPROVED and, in accordance with Section V-A of the settlement agreement, its effective date shall be deemed the date of this order.

(3) With the exception of the following matters over which the court shall retain jurisdiction, this lawsuit is DISMISSED, the September 22, 1986 consent decree is DISSOLVED with prejudice, including all of the Wyatt standards, and all prior orders and injunctions are also DISSOLVED with prejudice:

(a) The settlement agreement, which is approved by the court today, pursuant to which the court retains jurisdiction for the limited purpose of enforcement in accordance with the process specified in Section II of the agreement.

(b) The order and injunction entered on April 21, 1998 (Doc. no. 1695), pursuant to which the defendants “are enjoined and restrained from treating more than 74 individuals at the North Alabama Regional Hospital, more than 66 individuals at the Greil Memorial Psychiatric Hospital, and more than 122 individuals at Thomasville Mental Health Rehabilitation Center at any given time, with the defendants to retain the right to use additional beds in the respective facilities in the event of an emergency or crisis situation.” Although the parties inadvertently failed to reference Thomasville in footnote one of the settlement agreement, they did reference it at page 29, and they have reaffirmed their intent and agreement that the April 21, 1998 order should remain in effect as to Thomasville as well.

(c)The order and injunction entered on December 9, 1998 (Doc. no. 1790), pursuant to which the defendants are “enjoined and restrained from expanding” S.D. Allen Intermediate Care Facility in Northport, Alice M. Kidd Intermediate Care Facility in Tuscaloosa, Claudette Box Nursing Facility in Mt. Vernon, and Mary Starke Harper Geriatric Psychiatry Center in Tuscaloosa, in order to accomplish any current or future long-term bed reductions at any mental illness facility.

A memorandum opinion will follow later.

APPENDIX B

SETTLEMENT AGREEMENT

INDEX

I.SCOPE OF SETTLEMENT AGREEMENT.1245

A PARTIES.1245

B. PLAINTIFF CLASS.1245

C. FACILITIES.1246

D. INTENT AND EFFECT.'.1246

1. Final Resolution of all Controversies in Pending Litigation.1246

2. No New Claims Created.1247

3. Cooperative Process to Govern .1247

4. New Framework for Evaluating Services to DMH/MR Consumers.1247

II. OBLIGATIONS AND COMMITMENTS TO ENSURE MAINTENANCE OF MINIMUM CONSTITUTIONAL STANDARDS FOR ADEQUATE TREATMENT OF PERSONS WITH MENTAL ILLNESS AND ADEQUATE HABILITATION OF PERSONS WITH MENTAL RETARDATION.1248

FUNDING COMMITMENTS. JOINT DEVELOPMENT OF PUBLIC EDUCATION PLAN MAINTENANCE OF ACCREDITATION AND CERTIFICATION COMMITMENT TO CONTINUOUS QUALITY IMPROVEMENT OOOOOO ^ ^ CM 04 Ol OQWi>

1. Policy Commitment to Wyatt standards.1248 OC ^ 04

2. Maintenance of Continuous Quality Improvement Systems .1249

a. System Components for DMH7MR Facilities..1249

b. System Components for Certified Community Providers.1249

c. Staffing and Training.1249

d. Participation in Development and Review of CQI Systems.1249

E. COMMITMENT TO ADVOCACY PROGRAM.■.1250

1. Policy Commitment to Advocacy Program.1250

2. Staffing and Training.1250

3. Participation in Development and Review of Advocac y Program.1250 F. SAFETY AND PROTECTION .!.1250

1. Investigations ..1250

a. Standard Operating Procedures.1250

b. Timely Investigations.1250

c. Participation by Alabama Disabilities Advocacy Program (“ADAP”).... 1251

2. Employee training..'.1251

3. Safety Reviews.1251

4. Notice and Reporting to ADAP of Special Incidents.1251

5. Notice to Guardians of Consumers .1252

G. TREATMENT AND HABILITATION ..■.1252

1. Treatment of Persons with Mental Illness.1252

a. Interdisciplinary Treatment Plans.1252

b. ’’Special Needs” Persons.1252

c. ’’Special Treatment” Needs.1253

2. Habilitation of Persons with Mental Retardation.1253

a. Individualized Habilitation Plans.1253

b. Behavior Analysis Consultants.1254

H. COMMUNITY PLACEMENTS.1254

1. Persons with Mental Illness.1254

a. Identification, Development, and Certification of Community Placements, Providers, and Service Needs.1254

b. Census Reduction for extended-care beds in Mental Illness Facilities.... 1255

c. Discharge Plans.1256

d. Notice to ADAP of Community Referrals and Placements.1256

e. Notice by ADAP of potential risk of serious harm .1256

f. Permission for ADAP Review.1257

2. Persons with Mental Retardation .1257

a. Identification, Development, and Certification of Community Residential facilities, Providers, and Service Needs.1257

b. Census Reduction for Mental Retardation Facilities.1258

c. Discharge plans.1258

d. Notice to ADAP of Community Referrals and Placement.1259

e. Notice by ADAP of potential risk of serious harm .1259

f. Permission for ADAP review .1260

I. PARTICIPATION BY ADAP IN POLICY REVIEW.1260

III. COMPLIANCE AND RESOLUTION OF DISPUTES.1261

A. Role of ADAP.1261

B. Cooperation between Defendants and Plaintiffs’ Counsel.1261

C. Process for Resolving Disputes.1262

IV. ATTORNEYS’ FEES AND COSTS.1263

V.TERM OF SETTLEMENT AGREEMENT 1263

A. EFFECTIVE DATE .1263

B. JURISDICTION DURING TERM OF AGREEMENT.1263

C. END OF AGREEMENT.1263

VI. RELATION TO EXISTING CAUSES OF ACTION AND APPEALS.1264

A DISTRICT COURT .1264

B. COURT OF APPEALS .1265

APPENDIX

APPENDIX PAGE NO. DESCRIPTION

1 — 4 Incorporation of Wyatt Standards in Policy Manual for the Alabama Department of Mental Health and Mental Retardation

SETTLEMENT AGREEMENT

I.

In consideration of the mutual covenants contained in this Agreement, the Parties agree as follows:

SCOPE OF SETTLEMENT AGREEMENT

A. PARTIES

This Settlement Agreement is made and éntered into by and between the Plaintiff class, and the State of Alabama Defendants, each by authorized representatives, as follows:

1. For the Plaintiff Class, “Ricky Wyatt, by and through his aunt and legal guardian, Mrs. W.C. Rawlins, Jr., et al. ” (hereinafter referred to as “Plaintiffs” or “plaintiff class”):

Counsel'With the Alabama Disabilities Advocacy Program (hereinafter referred to as “ADAP” or “Plaintiffs’ Counsel”), by James A. Tucker, Associate Director.

2. For the Defendants, “Kathy Sawyer, as Commissioner of Mental Health and Mental Retardation, et al.,” their respective officers, agents, employees, assigns, and successors (hereinafter referred to as “Defendants”):

Kathy Sawyer, Commissioner of the Alabama Department of Mental Health and Mental Retardation; Courtney W. Tarver, Deputy Attorney General and General Counsel for the Alabama Department of Mental Health and Mental Retardation; Don Siegelman, Governor of the State of Alabama; and Bill Pryor, Attorney General for the State of Alabama.

B. PLAINTIFF CLASS

For the term of this Agreement, and for all purposes associated with the execution, implementation, and enforcement of this Settlement Agreement, Plaintiffs and Defendants (hereinafter referred to as “the Parties”) stipulate as follows concerning the scope of the plaintiff class:

1. The plaintiff class represented by “Ricky Wyatt, et al.” shall be defined in accordance with the District Court’s ruling which re-certified the plaintiff class, as follows:

“A plaintiff class consisting of all current and future mentally-retarded and mentally-ill residents of any facility, hospital, center, or home, public or private, to which they are assigned or transferred for residence by the Alabama Department of Mental Health and Mental Retardation, ... pursuant to Fed.R.Civ.P. 28(a) & (b)(2), Wyatt v. Rogers, 985 F.Supp. 1356, 1881 (M.D.Ala.1997), citing Wyatt v. Poundstone, 169 F.R.D. 155 (M.D.Ala.1995) (Thompson, J.).”

The Parties acknowledge that members of the plaintiff class include persons who are “current and future mentally-retarded and mentally-ill residents” of any state psychiatric facilities or state developmental centers. The Parties further acknowledge that the plaintiff class includes persons who have been transferred or assigned by the Alabama Department of Mental Health and Mental Retardation (“DMH/MR”) from a state psychiatric facility or a state developmental center to a DMH/MR-certified home — whether public, private, for profit, or nonprofit. The plaintiff class does not include persons in their private homes or in the private homes of their family members, next friends, or guardians.

Members of the plaintiff class — whether they are patients with mental illness, clients or residents with mental retardation — are referred to, throughout this settlement agreement, as “consumers” of the DMH/MR.

2. Members of the plaintiff class do not include persons assigned for evaluation, treatment, or residency at the Taylor Hardin Secure Medical Facility (“Taylor Hardin”), which is the state’s primary forensic evaluation, acute, and long-term care facility for persons either charged with or convicted of crimes. This Facility is not subject to the Wyatt Consent Decree and the Wyatt Standards. The Parties acknowledge, however, that persons at Taylor Hardin are members, of the plaintiff class if DMH/MR has transferred or assigned them for residence at Taylor Hardin from a state psychiatric hospital or a state developmental center which is covered by this Agreement.

C. FACILITIES

This Settlement Agreement is intended to apply to, and govern, the treatment and habilitation of all class members and the operations of all of the state-operated mental illness (“MI”) and mental retardation (“MR”) facilities which are still subject to this District Court’s jurisdiction, as follows:

1. Psychiatric Facilities for Persons with Mental Illness — (3)

Bryce Hospital (“Bryce”) — Tuscaloosa Searcy Hospital (“Searcy”) — Daphne and Mt. Vernon Thomasville Mental Health Rehabilitation Center (“Thomas-ville”) — Thomasville.

2. Developmental Centers for Persons with Mental Retardation (F)

Lurleen B. Wallace Developmental Center (“Wallace”) — Decatur

W.D. Partlow Developmental Center (“Partlow”) — Tuscaloosa

Albert P. Brewer Developmental Center (“Brewer”) — Mobile

J.S. Tarwater Developmental Center (“Tarwater”) — Wetumpka.

D. INTENT AND EFFECT

1. Final Resolution of all Controversies in Pending Litigation

The parties intend that this Settlement Agreement finally resolve all remaining issues in controversy between them. Such issues include, without limitation, the “mental illness” and “mental retardation” phases of this litigation in the U.S. District Court for the Middle District of Alabama (Civil Action No. 70-T-3195-N) and the litigation in the U.S. Court of Appeals for the Eleventh Circuit (Case Nos. 98-6038, 98-6441, 99-13457-A, and 99-14128-1).

The Parties also intend that this Agreement shall be a full, final, and legally-binding settlement of all claims, demands, causes of actions, and matters which have been asserted or which might have been asserted in this litigation relating to the remaining disputed issues of compliance with the Wyatt Consent Decree, as follows:

1. Those Wyatt MI and MR Standards which remain in effect, through Paragraph 6 of the 1986 Consent Decree, at these facilities:

a. Bryce and Searcy Hospitals: MI Standards 1, 2, 6, 7, 19, 19A, 26, and 34;

b. Thomasville Mental Health Rehabilitation Center MI Standards 1, 2, and 34; and;

c. Brewer, Partlow, Tarwater, and Wallace Developmental Centers MR Standards 1, 2, 3, 10, 11, 12, 15, 16, 22(c), 22(d), 34(b), 35, 37, 41, 43, 47, 49.

2. Paragraphs 7, 9, and 11 of the 1986 Consent Decree.

2. No New Claims Created

a. It is not the intent of this Agreement, and the Parties expressly agree that this Agreement shall not be construed, to create any basis or authorization for Plaintiffs to assert, or litigate, in this case any claims arising from or relating to the quality, sufficiency, or constitutionality of community-based treatment, habilitation,' or care provided by DMH/MR to members of the Plaintiff Class during the term of this Agreement. It is further understood and agreed, however, that ADAP, or its successor as Counsel for the Plaintiff Class, may notify DMH/MR of potential risk of serious harm to any such member of the Plaintiff class, pursuant to the provisions of Section H-H-l-e and Section II-H-2-e, and ADAP may protect the interests of such class member at risk of serious harm in accordance with the specific requirements of those provisions and Section III— C-2.

b. Section II-D-1 of this Agreement acknowledges Defendants’ commitment to maintain, adhere to, and implement those policies in the DMH/MR Policy and Procedures Manual (such policies being specifically identified herein at Appendix 1 through Appendix-4) which have incorporated compliance mechanisms and structures related to client treatment, care, rights, and services required by Paragraph 6 of the 1986 Consent Decree and Wyatt’s minimum constitutional standards for adequate treatment of persons with mental illness and for adequate habilitation of persons with mental retardation. It is not the intent of Section II-D-1 or any other provision in this Agreement, and the Parties expressly agree that neither this Section nor any other provision in this Agreement shall be construed, to create any basis or authorization for Plaintiffs to assert, or litigate, in this case, any claims arising from or relating to policies or procedures included in the DMH/MR Policy and Procedures Manual other than those set forth at Appendix-1 through Appendix-4.

3. Cooperative Process to Govern

This Agreement contemplates a cooperative process between the Parties to assure the provision of appropriate treatment, ha-bilitation, and care for citizens with mental illness or mental retardation. The Parties intend that the implementation of this Agreement be accomplished in a spirit of cooperation rather than an adversarial process.

4. New Framework for Evaluating Services to DMH/MR Consumers

The purpose of this Agreement is to memorialize all obligations and commitments that the Parties agree to undertake as well as the duties, rights and remedies they mutually acknowledge; Upon judicial approval, this Agreement — instead of the Wyatt Standards and the Wyatt Consent Decree — shall provide the framework for evaluating the state’s treatment of, and delivery of services to, persons with mental illness and persons with mental retardation. It shall supersede all existing standards, consent decrees, and orders, except for the District Court’s April 21, 1998 Order and Injunction (Doc. No. 1695) imposing a limit on the number of individuals to be served at Thomasville, Greil, and North Alabama Regional Hospital [see Section II-H-l(b) of this Agreement] and the District Court’s December 9, 1998 Order and Injunction (Doc. No. 1790), enjoining the expansion of the four state-operated nursing homes in order to accomplish future long-term bed reductions at Defendants’ mental illness facilities.

II.

OBLIGATIONS AND COMMITMENTS TO ENSURE MAINTENANCE OF MINIMUM CONSTITUTIONAL STANDARDS FOR ADEQUATE TREATMENT OF PERSONS WITH MENTAL ILLNESS AND ADEQUATE HABILITATION OF PERSONS WITH MENTAL RETARDATION

A.FUNDING COMMITMENTS

The Commissioner and the Governor shall apply their diligent, determined, and best efforts to secure such legislative appropriations or other funding allocations as are reasonably necessary to implement, in a timely and adequate fashion, all of the obligations and commitments herein undertaken by Defendants and the Alabama Department of Mental Health and Mental Retardation. The Commissioner’s and Governor’s commitment to use their best efforts to secure reasonably necessary monies comprise a significant consideration for Plaintiffs’ consent to this Settlement Agreement; consequently, the Parties acknowledge Plaintiffs’ reasonable expectation that the Commissioner will seek funding commitments promptly after the effective date of this Agreement, and, in no event, later than the first regular session of the Alabama Legislature scheduled thereafter.

Notwithstanding the foregoing, the Parties stipulate that any failure by the Legislature to appropriate the necessary funding shall not alone be a sufficient basis for an action by Plaintiffs for breach of this settlement agreement; nor shall the failure to secure legislative appropriations alone excuse Defendants from any of the obligations of this Agreement.

B. JOINT DEVELOPMENT OF PUBLIC EDUCATION PLAN

Plaintiffs and Defendants shall cooperate to develop and implement a comprehensive, statewide Plan which is designed to enhance the public’s appreciation for the abilities, rights, and needs of persons with mental illness and persons with mental retardation who are served by Defendants. The Parties shall aim to educate not only the general public but also the DMH/MR consumers, their families, and guardians. The Plan shall be developed within six months after the effective date of this Agreement, and it shall be implemented in a timely fashion thereafter.

C. MAINTENANCE OF ACCREDITATION AND CERTIFICATION

All of the DMH/MR’s mental illness facilities are accredited by the Joint Commission on Accreditation of Healthcare Organizations (“JCAHO”), and all of the DMH/MR’s developmental centers are certified by the Health Care Financing Administration (“HCFA”)/Title XIX. Defendants shall maintain JCAHO accreditation and HCFA/Title XIX certification for all state facilities subject to this Agreement.

D. COMMITMENT TO CONTINUOUS QUALITY IMPROVEMENT (“COI”)

1. Policy Commitment to Wyatt Standards

As shown at Appendix-1 through Appendix-4, Defendants have incorporated into the DMH/MR Policy and Procedures Manual (hereinafter, “DMH/MR Policy Manual”) compliance mechanisms and structures related to client treatment, care, rights, and services required by Paragraph 6 of the 1986 Consent Decree and Wyatt’s minimum constitutional standards for adequate treatment of persons with mental illness and for adequate habilitation of persons with mental retardation.

During the term of this Agreement, Defendants shall maintain said system-wide policy commitment to these minimum constitutional standards; farther, Defendants shall continue to require that all DMH/MR facilities utilize the DMH/MR Policy Manual and expressly adhere to and implement all of these policies,' as referenced in Appendix-1 through Appendix-4.

2. Maintenance of Continuous Quality Improvement Systems

Defendants shall continue to operate their DMH/MR Continuous Quality (“CQI”)Improvement Systems in order to monitor the quality of mental health and mental retardation services provided to persons served in state-operated psychiatric facilities and developmental centers. The systems shall include consumer-oriented and person-centered outcome standards.

a.System Components for DMHIMR facilities

Defendants’ CQI systems currently include the following components:

(i) Quality Assurance: activities to maintain .compliance with applicable standards for accreditation and certification.

(ii) Quality Indicators: data necessary to measure each facility’s performance in achieving specified outcomes for consumers.

(iii) Incident Prevention and Management System: requirements for reporting, investigating, reviewing, and correcting special incidents involving consumers.

(iv) Consumer/Family Satisfaction Survey: tools for input from consumers and their families regarding factors which impact the care and treatment of consumers.

(v) Utilization Review: reviews of individual records necessary to maintain accreditation and certifications.

b. System Components for certifíed community providers

Defendants shall continue to require that DMH/MR-certified community providers operate and maintain their Quality Improvement Systems. DMH/MR shall review and monitor such systems periodically to ensure that each is functional and that each includes components of Quality Assurance, Quality Indicators, Incident Prevention and Management, Consumer/Family Satisfaction Survey, and Utilization Review, as these components are described in the above-stated requirements for DMH/MR facilities.

c. Staffing and Training

Defendants shall maintain at least one full-time CQI employee in the MI divisional office, in the MR divisional office, and at each facility. Defendants shall ensure that all CQI staff complete training necessary to implement and maintain the CQI system.

d. Participation in Development and Review of CQI Systems

Defendants shall provide meaningful opportunities for input concerning the operation and improvement of the DMH/MR CQI systems from consumers, family members, community providers, consumer groups, advocacy organizations, and advocates.

To ensure meaningful participation by-representatives of the plaintiff class in the CQI systems, Defendants shall allow ADAP’s designated representative to serve in an ex-officio, non-voting capacity on the CQI committees at the state/divisional levels and on each facility’s CQI committee; in such capacity, the ADAP representative shall be bound by all Committee rules and procedures, including, but not limited to, the requirement of confidentiality for Committee proceedings.

E. COMMITMENT TO ADVOCACY PROGRAM

1. Policy Commitment to Advocacy Proyram

Defendants have developed and operated an internal Advocacy Program, and the DMH/MR Policy Manual fully incorporates this Program’s missions and services. The Advocacy Program is designed to educate persons about client rights, to review and/or investigate complaints of rights violations, and to monitor conditions in state mental health and mental retardation facilities and in certified community programs. During the term of this Agreement Defendants shall continue to maintain this system-wide Advocacy Program and to review the Program periodically to ensure its effective operation.

2. Staffing and Traininy

During the term of this Agreement, Defendants shall maintain a staff of at least 26 full-time equivalent advocates. Defendants shall ensure that the Advocacy staff, including all of the full time equivalent advocates, complete training necessary to implement and maintain an effective Advocacy Program.

3. Participation in Development and Review of Advocacy Proyram

Defendants shall provide meaningful opportunities for input concerning the operation and improvement of the Advocacy Program from consumers and family members, community providers, consumer groups, and advocacy organizations.

To ensure meaningful participation by representatives of the plaintiff class in the Advocacy Program, Defendants shall allow ADAP’s designated representative to serve in an ex-officio, non-voting capacity on the state’s Advocacy Advisory Board and on each facility’s Advocacy Advisory Committee; in such capacity, the ADAP representative shall be bound by all Advisory Board and Advisory Committee rules and procedures, including, but not limited to, the requirement of confidentiality for Committee proceedings.

F. SAFETY AND PROTECTION

1. Investiyations

a. Standard Operatiny Procedures

Defendants shall continue to implement standard operating procedures for investigating and responding to allegations of abuse and neglect in mental health and mental retardation facilities. During the term of this Agreement the current procedures and policies, including those in DMH/MR Policy No. 19-10, shall be adhered to and periodically reviewed. These policies and procedures shall be modified as warranted, pursuant to Departmental policy and pursuant to this Agreement. Defendants shall also continue, during the term of this Agreement, to adhere to, review, and modify as warranted, the current procedures and policies for timely and adequate investigations of and responses to abuse and neglect in DMH/MR-certified community placements.

b. Timely Investiyations

Defendants shall initiate investigations of abuse and neglect immediately after their reported occurrence in a mental health or a mental retardation facility, and they shall complete such investigations within 30 days after the report. All investigations involving consumers which have been pending for more than 30 days shall be reported to ADAP on a monthly basis.

c. Participation by Alabama Disabilities Advocacy Proyram

DMH/MR shall allow ADAP’s designated representative to serve in an ex-offi-cio, non-voting capacity on each facility’s Investigation Review Committee; in such capacity, the ADAP representative shall be bound by all Committee rules and procedures, including, but not limited to, the requirement of confidentiality for Committee proceedings.

2. Employee Training

Defendants agree to continue training its employees regarding departmental policies which require the timely reporting of allegations of abuse and neglect. ADAP and the Commissioner’s designated representative agree to cooperate in jointly developing and presenting training regarding the requirements, rights, and remedies in federal and state “whistle blower” statutes to all merit and contract employees at the four mental retardation and the three mental health facilities. Defendants pledge their good-faith efforts to facilitate employees’ attendance at scheduled training programs.

3. Safety Reviews

During the term of this Agreement Defendants shall continue their consultation with Labor Relations Alternatives, Inc. (“LRA”), or with other qualified professionals as necessary within Defendants’ discretion, regarding safety review for residents of mental retardation facilities. Consultation on these matters may include: evaluation of new procedures regarding staffing needs, including the deployment and adequacy of staff; staff training, supervision, ratios, and additional procedures. Defendants shall provide to ADAP quarterly status reports describing the substance of the consultants’ recommendations, responses by DMH/MR, and any DMH/MR implementation of those recommendations.

4.Notice and Reportiny to ADAP of Special Incidents

a. During the term of this Agreement Defendants shall provide to ADAP written notice of all “special incidents” involving DMH/MR consumers in any of the seven mental health and mental retardation facilities covered by this Agreement. Pursuant to DMH/MR Policy No. 19-70, “special incident” is defined for this purpose as “... death; major personal injury...; ■ suspected, .neglect, mistreatment, exploitation or abuse; suspected sexual assault.” Consistent with the classifications of severity of injuries utilized in the DMH/MR Incident Prevention and Management System, a “major personal injury” for purposes of this requirement is “a serious injury, including any fracture, head injury, or wound requiring suturing (more than five sutures).”

b. For all special incidents other than deaths, which involve DMH/MR consumers in any of the seven mental health and mental retardation facilities covered by this Agreement, Defendants shall provide to ADAP on a monthly basis a written report which shall include the following:

(i) an alphabetized listing of the affected DMH/MR consumers;

(ii) a description of the “special incidents”; and

(iii) a summary of DMH/MR action in response to each special incident.

c. For special incidents which result in the death of a DMH/MR consumer in any of the seven mental health and mental retardation facilities covered by this Agreement, when there is reason to believe that such death was due to causes other than natural, Defendants shall provide to ADAP not later than 14 days after the death occurs, a written report which shall include the following:

(i) the name, age, and cause of death, of the deceased;

(ii) the name, physical address, and mailing address of the parent, guardian, next-friend, or next-of-kin of the deceased;

(in) the date, time, and place of death; and

(iv) whether an internal investigation has been undertaken. Upon completion of any such DMH/MR internal investigation of the death of a consumer, Defendants shall also provide to ADAP, not later than 14 days after completion of the investigation, an investigative summary which shall include the following:

(i) a description of the incident which resulted in the death;

(ii) the name of the alleged perpetrator, if applicable;

(iii) the investigative findings;

(iv) the name of the DMH/MR investigator; and

(v) any DMH/MR plan of action in response to the incident resulting in the death.

5. Notice to Guardians of Consumers

During the term of this Agreement Defendants shall continue to notify Guardians of Consumers of special incidents pursuant to the policies and procedures in the DMH/MR Policy Manual.

G. TREATMENT AND HABILITATION

1. TREATMENT OF PERSONS WITH MENTAL ILLNESS

a. Interdisciplinary Treatment (“IDT”) Plans

DEVELOPMENT: Defendants shall continue to conduct interdisciplinary team meetings and to develop individualized treatment plans for each person residing at Bryce, Searcy, and Thomas-ville. Qualified Mental Health Professionals will continue to assess each person’s programs at least monthly and to revise the individual treatment plan as needed.

REVIEW: A review of the IDT process, also to include the implementation of treatment services, will be conducted by the facility’s CQI staff, and others as appointed by the facility Director, to assure adequacy and appropriateness of the process and of the treatment received by each individual.

ADAP INPUT: During the term of this Agreement, ADAP shall receive monthly notice of all scheduled IDT meetings at each of the MI facilities. ADAP shall be invited to attend all IDT meetings. ADAP may attend any IDT meetings absent an objection by the consumer, provided that the consumer has the requisite capacity to make an informed decision. If the consumer lacks such capacity, his parent or guardian may make the decision, and ADAP shall be supplied with the name and address of the parent or guardian. AJDAP shall be authorized to communicate with a consumer who has the requisite capacity or with the parent or guardian of a consumer who lacks the requisite capacity in order to verify the objection and to identify and address the basis for the objection. If a consumer lacks capacity and has no parent or guardian, then ADAP shall be allowed to attend the IDT meeting.

b. “Special Needs” Persons

Within nine months after the effective date of this Agreement Defendants shall retain one or more qualified professional consultants, who shall conduct a comprehensive study of, and provide written recommendations concerning, DMH/MR policies and procedures regarding treatment and discharge plans for:

(i) all consumers who are 18 years of age and younger;

(ii) all adult consumers in state mental health facilities who have any of the following diagnoses: a dual diagnosis of mental illness and mental retardation; traumatic brain injury; organic brain injury; self-injurious behavior; HIV/AIDS/ ARC; deafness, blindness, or serious physical impairments as defined by Defendants.

Defendants and their professional con-sultantes) shall confer with ADAP to identify its concerns about these policies and procedures. Each professional study shall be completed within six months of the consultant’s retainer. ADAP shall be provided copies of any reports and recommendations by the consultants. ADAP shall be provided an opportunity to confer with the Commissioner concerning DMH/MR implementation of consultants’ recommendations and any policy modifications in response to such recommendations. The parties acknowledge that the Commissioner shall retain discretion, pursuant to Departmental policy, concerning the adoption of any proposed recommendations or policy modifications.

c. “Special Treatment” Needs

Within nine months after the effective date of this Agreement Defendants shall retain one or more qualified professional consultants, who shall conduct a comprehensive study of, and provide written recommendations concerning, DMH/MR practices regarding:

(i) the use of seclusion and restraint for consumers with self-injurious behavior at Bryce and Searcy;

(ii) the use and administration of psychiatric medications to consumers, to include, but not be limited to, the following concerns: monitoring of patients on psychiatric medication for unnecessary, excessive, or inappropriate administrations; administration of psychiatric medication as punishment or as a substitute for treatment; proper documentation for the use of, and changes in, such psychiatric medication.

Defendants and their professional consultants) shall confer with ADAP to identify its concerns about these practices. Each professional study shall be completed within six months of the consultant’s retainer. ADAP shall be provided copies of any reports and recommendations by the consultants. ADAP shall be provided an opportunity to confer with the Commissioner concerning DMH/MR implementation of consultants’ recommendations and any policy modifications in response to such recommendations. The parties acknowledge that the Commissioner shall retain discretion, pursuant to Departmental policy, concerning the adoption of any proposed recommendations or policy modifications.

2. HABILITATION OF PERSONS WITH MENTAL RETARDATION

a. Individualized Habilitation Plans (IHP)

DEVELOPMENT: Defendants shall continue to conduct individualized habili-tation team meetings and to develop individualized habilitation plans for each person residing at Wallace, Partlow, Brewer, and Tarwater. Qualified Mental Retardation Professionals will continue to assess each person’s programs at least monthly and to revise the individualized habilitation plan as needed.

REVIEW: A review of the IHP process, also to include the implementation of habilitation services, will be conducted by the facility’s CQI staff, and others as appointed by the facility Director, to assure adequacy and appropriateness of the process and of the habilitation received by each individual