Full opinion text
MEMORANDUM OPINION HUVELLE, District Judge. This case was filed more than thirty years ago in an effort to remedy the constitutionally deficient level of care, treatment, education, and training being provided to residents of Forest Haven, the District of Columbia’s institution for persons with developmental disabilities, which was closed as a result of this litigation in 1991. Plaintiffs are a class of over 650 former residents of Forest Haven. Defendants are the District of Columbia (“the District”) and the Honorable Adrian Fenty, the City’s Mayor. The United States is also a party, having been permitted to intervene as a plaintiff in January 1977. As described in greater detail below, this litigation has resulted in a series of consent orders and remedial plans in which defendants have admitted that class members’ constitutional rights have been violated and have agreed to take actions necessary to remedy these constitutional violations. Because these measures have been unsuccessful in achieving desired outcomes for class members in many critical areas, the litigation has also resulted in a series of efforts by plaintiffs and plaintiff-intervenor to force compliance with the Court’s orders through motions for contempt and other relief. Before the Court is the latest such effort. Plaintiffs have moved for an order finding defendants in noncompliance with the prior Court orders and placing the District’s Mental Retardation and Developmental Disabilities Administration (“MRDDA”) into receivership. At a July 20, 2006, status conference, the Court bifurcated proceedings on the motion into a liability and a remedy phase and directed the parties to submit proposed findings of fact on the liability question, i.e., whether there has been substantial noncompliance with Court orders. (July 20, 2006 Hr’g Tr. at 6, 9-10.) This Memorandum Opinion sets forth the Court’s factual findings on that issue. BACKGROUND This case began in February 1976, when a group of individual plaintiffs filed suit alleging that they and other residents of Forest Haven were not receiving “a constitutionally minimal level of habilitation” (ComplV 1) and seeking declaratory and injunctive relief. The Honorable John H. Pratt, who presided over this case until his death in August 1995, certified a plaintiff class consisting of present, former, and future residents of Forest Haven in June 1976. Following a period of discovery, plaintiffs moved for partial summary judgment on the issue of liability in November 1977. Plaintiffs urged the Court to require defendants to “undertake a phased Court supervised planning process for remedying the statutory and constitutional violations.” (Mem. of Law in Support of Pls.’ Mot. for Partial S.J. at 52.) Although defendants objected to plaintiffs’ characterization of the conditions at Forest Haven, noting that changes had been implemented following the filing of plaintiffs’ lawsuit, defendants acknowledged that “the level of care and habilitation at Forest Haven has never been that which any of the parties to this action desire.” (Defs.’ Opp’n to Pls.’ Mot. for Partial S.J. at 2.) Defendants urged the Court to deny the motion and instead to direct counsel for the parties to enter into discussions as to “what further actions can and should be done ... to better provide for the mentally retarded at Forest Haven.” (Id. at 1, 4.) I. The 1978 Consent Order On June 14, 1978, Judge Pratt entered a “Final Judgment and Order” (the “1978 Consent Order” or the “1978 Order”), which was consented to by defendants. Evans v. Washington, 459 F.Supp. 483 (D.D.C.1978). The Court found that plaintiffs have a federal constitutional right to habilitative care and treatment, to be free from harm, and to receive habilitative care and treatment in the alternative least restrictive of individual liberty and to be kept free from harm. Id. at 484. The Court went on to find that violations of these constitutional rights had occurred and ordered extensive permanent injunc-tive relief, requiring defendants to deinsti-tutionalize class members and imposing a series of requirements governing virtually all aspects of the District’s interim operation of Forest Haven. Id. at 484-90. With respect to deinstitutionalization, the Court prohibited any further admissions to Forest Haven and ordered defendants to provide all class members with suitable community living arrangements and with the community-based day programs and services necessary to provide them with minimally adequate habilitation in the most integrated and least restrictive community settings. Id. at 484-85, 488. The Court also ordered defendants, inter alia, to provide each class member with a written individualized habilitation plan and an individualized habilitation program designed in accordance with the plan; to retain a full-time “Developmental Disabilities professional” (later referred to as the “Court Monitor”) to assist defendants and the Court in implementing the Consent Order, including reporting to the Court at ninety-day intervals regarding the status and progress of defendants’ efforts to do so; and, in conjunction with the Court Monitor, to develop and submit for court approval a detailed implementation plan for the provision of community living arrangements, programs, and services. Id. at 484-87. With respect to Forest Haven, the Court ordered defendants, again in conjunction with the Court Monitor, to prepare a plan for the interim operation of the facility pending the placement of class members in community living arrangements and set out a series of requirements for the facili-t/s continued operation. Id. at 488-89. Among other things, the Court prohibited all “[a]cts of physical or psychological abuse, neglect or mistreatment of any Forest Haven resident,” required the prompt investigation of all such incidents, and required “[a] program of medical, dental and health related services for class members which provides accessibility, quality and continuity of care for physical illness or injury.” Id. II. The 1981 and 1983 Consent Orders In January 1981, plaintiff and plaintiff-intervenor filed motions for contempt and for enforcement of the Court’s June 1978 Consent Order. The motions were ultimately withdrawn, and the Court entered a further Consent Order on June 25, 1981 (the “1981 Consent Order” or the “1981 Order”), setting forth a list of agreed-upon measures “necessary to the implementation of this Court’s Order of June 14, 1978.” Evans v. Barry, No. 76-293, Consent Order at 1 (D.D.C. June 25, 1981). The 1981 Consent Order reaffirmed defendants’ obligations under the 1978 Order and imposed a series of further requirements with respect to staffing and staff training at Forest Haven; the provision of individualized assessments and habilitation plans to all class members, including the identification of all services required by class members regardless of the current availability of those services; procurement of necessary supplies and performance of routine maintenance and repairs required for class members’ health, safety, and sanitation; outplacement of class members from Forest Haven with appropriate day programs and living arrangements and with adequate case management support; funding for class members; and the timely processing of contracts. See generally id. Plaintiff and plaintiff-intervenor again filed contempt motions in June 1982 that resulted in the entry of a further Consent Order on February 8,1983 (the “1983 Consent Order” or the “1983 Order”). See Evans, Consent Order at 14 (Feb. 8, 1983). The 1983 Order again affirmed defendants’ obligations under the earlier Consent Orders and required defendants to take certain additional steps to implement those Orders. See generally id. The 1983 Order required defendants to ensure that periodic assessments were conducted and that individual habilitation plans were developed for all class members; to prepare an assessment of services required by class members; to address certain budget and staffing issues, including maintenance of the appropriate case manager to class member ratio; and to properly maintain the facilities at Forest Haven. Id. at 2-9. The Order also imposed requirements with respect to the reporting of “unusual incidents” involving class members; safekeeping of class members’ funds; programming; and outplacement of class members, including the requirement that all residents of Forest Haven be placed in community settings by the end of Fiscal Year 1988. Id. at 8-14. III. Closure of Forest Haven When defendants failed to meet the 1983 Consent Order’s September 30, 1988 deadline for the outplacement of all class members, plaintiffs and plaintiff-intervenor again initiated contempt proceedings in July 1989. The Court did not immediately grant the motion to show cause but instead continued the matter for 120 days to give the parties time to agree to a further consent decree. (Sept. 29, 1989 Hr’g Tr. at 2.) The parties did not agree, however, and after a January 1990 hearing, the Court issued an Order holding the District in civil contempt, observing that it had “no alternative except to find that the District of Columbia has been in consistent and continuing violation of the three Consent Orders [of 1978, 1981 and 1983].” Evans, Order (Jan. 30, 1990). The Court held a sanctions hearing in March 1990 and issued a further Order imposing a schedule for outplacement of the remaining 233 residents of Forest Haven that required all residents to be outplaced by September 30, 1991, and providing for the imposition of fines in the event that defendants failed to meet quarterly outplacement quotas. Evans, Order (Apr. 9,1990). In July 1990, while outplacement of the remaining Forest Haven residents pursuant to the Court’s April 1990 Order was underway, plaintiffs and plaintiff-interve-nor again moved for civil contempt sanctions and damages based on the conditions at Forest Haven. The Court denied the motion in May 1991, finding that the level of medical care at Forest Haven, while imperfect, was adequate to meet the needs of the declining population there, Evans, Mem. Op. & Order at 6 (May 15, 1991), and the D.C. Circuit affirmed. Evans v. Kelly, No. 91-5237, 1992 WL 337321, at *1 (D.C.Cir. Nov.1992). Outplacement of all remaining residents was completed in October 1991. IV. Appointment of Special Master Plaintiffs and plaintiff-intervenor next initiated contempt proceedings in March 1995, filing motions for contempt, contempt sanctions, appointment of a special master, and emergency injunctive relief based on defendants’ nonpayment of providers of residential and day programming services, failure to maintain the required case manager to class member ratio of one to sixty, mismanagement of class members’ personal funds, and nonpayment of the Court Monitor. The Court issued an Order to Show Cause in April 1995, finding the District to be in violation of the three previously-issued Consent Orders, particularly with respect to the payment of care providers, but suspended further contempt proceedings and consideration of the requests for emergency relief to afford the parties an opportunity to devise a viable plan to bring the District into compliance. Evans, Order to Show Cause at 4 (Apr. 21, 1995). Negotiations between the parties proved unsuccessful, and at a May 1995 hearing, the Court found the District to be in contempt. See Evans, Findings of Fact & Conclusions of Law at 2 (Oct. 11, 1995). In October 1995, the Honorable Stanley S. Harris, to whom the case was reassigned upon Judge Pratt’s death, issued formal Findings of Fact and Conclusions of Law and an Order of Reference. The Court found the District to be in contempt of the prior Consent Orders in three material respects: (1) by being substantially in arrears on undisputed payments to care providers; (2) by failing to maintain the required case manager to class member ratio; and (3) by failing to provide all class members with “community living arrangements suitable to each, in the least separate, most integrated and least restrictive community settings, and to provide all class members with such community-based day programs and services as are necessary to provide them with minimally adequate habilitation.” Id. at 7-8. Based on the defendants’ long history of noncompliance, the Court determined that the appointment of a Special Master was necessary. Evans, Order of Reference at 1-2 (Oct. 11,1995). The Court appointed Margaret G. Farrell to serve in that capacity and ordered the Special Master to work with the parties to develop and submit a remedial plan through which defendants could purge themselves of the Court’s contempt findings. Id. at 2-3. The Special Master submitted a remedial plan in January 1996, and in August of that year, the Court issued an Order adopting the plan and the Special Master’s proposed findings of fact that accompanied it. Evans v. Barry, No. 76-293, 1996 WL 451054, at *1-2 (D.D.C. Aug.2, 1996) (the “1996 Plan”). The Court-ordered 1996 Plan imposed a series of further requirements with respect to the timely payment of care providers, negotiation of long-term provider contracts, maintenance of the required case management ratio, and implementation of class members’ individual ha-bilitation plans. Id. at *3-8. The 1996 Plan also provided for imposition of coercive civil fines in the event that defendants failed to meet the Plan’s requirements' — ■ fines that the Court determined were necessary in light of defendants’ “unrelenting contempt” of the Court’s prior Consent Orders and “seeming inability to bring themselves into compliance therewith.” Id. at *2-8. V. The 2001 Plan In February 1999, as part of its decision imposing contempt fines, Judge Harris also amended the 1996 Plan to order the Special Master to work with the parties to develop and recommend to the Court a plan for the conclusion of the litigation and the termination of the Court’s jurisdiction in a manner that would ensure that plaintiffs’ interests would continue to be protected. Evans, Op. at 18-20 (Feb. 10, 1999). Pursuant to the Court’s Order, under the direction of Special Master Farrell, and with the assistance of her then-consultant Clarence L. Sundram, the parties engaged in lengthy negotiations that resulted in a series of agreements intended to achieve compliance with the prior Court Orders, to provide for permanent and independent mechanisms to safeguard the rights of class members, and to permit the phased withdrawal of judicial oversight as compliance with the Court Orders was achieved. See Evans v. Williams, 139 F.Supp.2d 79, 81 (D.D.C.2001). In particular, the parties agreed to and submitted for Court approval: (1) a set of joint stipulated findings of fact regarding the status of defendants’ compliance with the outstanding Court Orders; (2) the “2001 Plan for Compliance and Conclusion of Evans v. Williams ” (the “2001 Plan” or the “Plan”); and (3) a Consent Order and accompanying settlement agreement regarding the creation of an external monitoring body to protect the interests of class members and other MRDDA consumers after the end of the case. In March 2001, Judge Harris issued an Opinion and Order approving these agreements. Id at 85. The parties’ stipulated findings of fact, which the Court adopted, painted a bleak picture as to defendants’ record of noncompliance. The findings acknowledged that there had been a “serious breakdown” in the District’s system of support for individuals with developmental disabilities and that the system, which had suffered from years of neglect and mismanagement, “urgently need[ed] to be fixed.” Evans, 139 F.Supp.2d at 96-97; see also, e.g., id. at 98 (noting that District’s mental retardation and developmental delivery system was “broken” and needed to be “redefined and rebuilt”). The findings noted that defendants’ compliance with the prior Court Orders had deteriorated following the closure of Forest Haven in 1991 and that defendants were not complying with many of the requirements of those Orders. Id. at 98. The findings also identified numerous “fundamental problems,” including problems with respect to staffing, staff training, and monitoring; management; reporting of and response to unusual incidents; safeguarding of class members’ funds; the budgeting process; and the District’s Medicaid Home and Community-Based Services waiver. See id. at 98-107. Intended to remedy these deficiencies and to provide a means for defendants to come into compliance with the outstanding Court Orders, the 2001 Plan was organized thematically around the broad goals of those Orders. The Plan identified the major goals (and sub-goals) of the Orders as follows: (1) appropriate individualized habilitation and treatment in the community in the least separate, most integrated and least restrictive settings, including (a) individualized habilitation plans, (b) the provision of residential, vocational, and day services, (c) staff training, and (d) restricted control procedures (including use of medication, restraints, and time out); (2) protection from harm; (3) safeguarding consumers’ personal possessions; (4) monitoring, including (a) case management, (b) quality assurance and fiscal audits, and (c) external monitoring; (5) advocacy for consumers; (6) adequate budget; and (7) timely payment of vendors. For each of these goals (and sub-goals), the Plan went on to (a) identify the specific provisions of the existing Court Orders that must be complied with; (b) identify the tasks necessary for defendants to meet the requirements of the relevant Court Orders; (c) establish a time frame for implementation of the identified tasks; (d) identify specific outcome criteria for determining defendants’ compliance with the relevant Court Orders; (e) establish a threshold standard of compliance that defendants must meet for the particular Court Orders; and (f) establish a method for assessing compliance. Although the Plan was developed in the context of the Evans case, it referred throughout to “consumers” rather than “class members.” This choice of words was intentional and reflected defendants’ “express[ ] agree[ment] not to create a bifurcated system of services for its citizens with developmental disabilities” but to “provide the same level of services to class and non-class members.” (2001 Plan at 5 n. 2.) The Plan made clear that the measure of defendants’ compliance with each group of underlying Court Orders would be whether they had satisfied the specific outcome criteria relating to those Orders. {Id. at 7 (“[WJhile it is the intent of the parties to monitor the timely implementation of the specific tasks that have been identified as necessary for implementation of the Court Orders in each section, the ultimate test of compliance will be in satisfying all of the related outcome criteria") (emphasis in Plan); see also id. (“[T]he Plan identifies specific outcome criteria for determining compliance with the related group of Court Orders.”).) The parties agreed that if the Court finds that defendants have satisfied the outcome criteria, the defendants will also be in compliance with the related Court Orders pursuant to this Plan, and the Court may vacate the related Court Orders. (Id. at 7.) Although compliance with the Court Orders depended on defendants’ satisfaction of the outcome criteria rather than their completion of the tasks identified therein (see id.) (“In the final analysis, it is compliance with the specific outcome criteria that is required ..., and the tasks identified are a means to this end.”), the parties also agreed that “[t]he failure of the defendants to implement the actions identified in the Plan as necessary to meet the requirements of the related Court Orders is also evidence of noncompliance with those Court Orders.” (Id.) The Plan contemplated that as defendants satisfied the outcome criteria for particular groups of Court Orders, they would move the Court to have those Orders vacated and dismissed with the ultimate goal that, over time, defendants would implement all of the required actions and meet the specified outcome criteria in order to successfully move the Court to vacate and dismiss the related Court Orders, except the declaratory judgment on the constitutional rights of the consumers to receive individualized habilitation in the least separate, most integrated and least restrictive environment and to be protected from harm. (Id. at 9-10.) Although the Plan itself was “not intended to be an enforceable document,” the underlying Court Orders, until vacated and dismissed as provided for in the Plan, would “continue to remain enforceable in federal court.” (Id. at 10.) In particular, plaintiffs and plaintiff-interve-nor “retain[ed] the right to seek appropriate judicial relief, based on this evidence of noncompliance with the Court Orders, including Orders requiring specific performance of the Plan.” (Id.) The final section of the Plan, captioned “Essential Systemic Conditions,” addressed certain other actions to be taken by defendants to assist the District in “developing additional options for the cost-effective implementation of the goals of this action” — namely, “individualized services in the least restrictive environment to the persons served by the mental retardation and developmental disabilities service delivery system.” (Id. at 62.) In particular, the Plan addressed the need to amend the District’s Medicaid waiver to expand the number of MRDDA consumers served by the waiver and outlined a series of actions to be taken by District in order to achieve this goal. (Id. at 62-64.) The Plan also set forth certain steps to be taken by the parties and the Special Master to develop and propose legislation to revise and update the existing statutes governing services and supports for persons with developmental disabilities to reflect contemporary approaches. (Id. at 64-65.) The third component of the series of agreements approved by the Court in March 2001 concerned the creation of the Quality Trust for Individuals with Disabilities, Inc. (the “Quality Trust”), a durable, independent, nonprofit organization to “monitor and advance the individual and collective interests of people with developmental disabilities in the District of Columbia’s service delivery system.” Evans, 139 F.Supp.2d at 86. In the Consent Order, defendants agreed to endow and annually fund the Quality Trust with a total of $31.5 million over eleven years in exchange for a waiver of all claims for past violations of Court’s Orders, subject to certain exceptions. See id. at 85-90. The settlement agreement set forth in detail the structure of the Quality Trust, the control and use of the funds to be provided by defendants, and the Trust’s right of access to information. See id. at 90-96. The settlement agreement also described the purpose and obligations of the Quality Trust, which was to be charged with advancing the individual and collective interests of consumers with developmental disabilities and, in particular, Evans class members; monitoring the health, safety, and welfare of consumers and the protections, services, and supports provided to these consumers; and providing for individual and collective legal services and lay advocacy services for consumers. Id. at 92-95. VI. Post-2001 Plan Developments Shortly after the 2001 Plan was approved, this case was reassigned to the undersigned upon the retirement of Judge Harris. Since that time, the Court has monitored defendants’ progress in implementing the Plan through periodic status hearings and through the Court Monitor’s written quarterly reports. Although it quickly became apparent that compliance would not be achieved within the time frames set forth in the Plan itself (see, e.g., April-June 2001 Monitor’s Report at 1 (noting defendants’ failure to comply with Plan’s completion dates)), in the six years since the Plan’s adoption, defendants have made progress in some respects. The Quality Trust has been established, and defendants have endowed and funded the Trust, as required by both the Plan (2001 Plan at 48) and the Consent Order that accompanied it. Evans, 139 F.Supp.2d at 87. An independent financial review of the District’s treatment of funds held in custody for class and non-class members served by MRDDA for the years 1992 to 2001 was completed, and in June 2004, defendants paid approximately $1.2 million to reimburse class members and other MRDDA consumers for amounts found to be owed to them as a result of that review. (See Special Master’s Report, Recommended Findings of Fact and Conclusions of Law and Proposed Order Regarding the Independent Financial Review of Consumers’ Funds at 6-7; Evans, Order (Feb. 25, 2004); Defs.’ Proposed Findings of Fact [“Defs.’ Findings”] at 26.) Defendants have consistently maintained the required ratio of at least one case manager for every thirty class members. (See 2001 Plan ¶¶ D.1.b.2., D.1.div.) Defendants have also developed policies and procedures required by the 2001 Plan and have created systems and structures intended to assist them in achieving the Plan’s goals. For example, defendants have established an Incident Management and Investigation Unit (“IMIU”), a quality assurance unit, a training unit, a Fatality Review Committee (“FRC”), and an intake process for the reporting of serious incidents. Notwithstanding these efforts, problems have persisted with respect to the implementation of defendants’ policies and procedures and the effectiveness of defendants’ systems and structures. Concerns have repeatedly been raised, for example, with respect to the performance of case managers and providers; the monitoring of health needs and the delivery of health care services; investigations of class member deaths and other serious incidents and the implementation of recommended corrective and preventive actions; and the lack of progress in implementing the Medicaid waiver. Significantly, not one of the underlying Court Orders has been vacated based on a showing by defendants that they have satisfied the standard for compliance with the related outcome criteria under the 2001 Plan. In January 2004, recognizing that a lack of coordination among the District of Columbia agencies with responsibility for actions necessary to achieve compliance with the 2001 Plan had impeded the timely completion of those actions, the Court ordered the Mayor to assign a Deputy May- or or other senior official who reported directly to the Mayor to be responsible for the day-to-day efforts of District agencies to achieve compliance with the Plan. Evans, Order at 1-2 (Jan. 21, 2004). The Court further ordered that the Deputy Mayor or other senior official be required to coordinate the efforts of all District agencies “as necessary to secure the timely delivery of appropriate services to class members in compliance with the 2001 Plan and previous [Court Orders],” and that the official be required to report periodically to the Special Masters, the Court Monitor, and the Court. Id. at 2-3. Since January 2004, several different individuals have served in this capacity, but as explained herein, bureaucratic bottlenecks still plague the defendants’ ability to achieve results. In the fall of 2005, the parties agreed to a time-limited initiative (the “ninety-day plan”) to address some of the more persistent concerns for a subset of class members in need of specialized attention. The ninety-day plan was intended to produce specified improvements, over a period of ninety days, for a limited number of class members and, in the process, to identify and correct some of the systemic barriers that had impeded progress in the past. {See Nov. 28, 2005 Hr’g Tr. at 6; Feb. 22, 2006 Monitor’s Report at 4.) In particular, defendants agreed: (1) to review, revise, and implement health care plans for forty-eight “at-risk” class members; (2) to move forty-six consumers, including thirty class members, from unsafe and inappropriate residential programs into smaller, community-based housing; and (3) to move forty-two class members out of segregated day programs and into supported employment opportunities. {See Nov. 28, 2005 Hr’g Tr. at 6-8; Feb. 22, 2006 Monitor’s Report at 1, 4; U.S. Ex. 6.) When defendants failed to make significant progress towards achieving these goals by the end of January 2006, shortly before the ninety-day period was to expire, the Court directed the parties to negotiate a further Consent Order that would formalize defendants’ obligations to address the short-term needs of the identified at-risk class members. {See United States’ Notice of the Parties’ Failure to Agree at 1, 7-8.) The parties were unable to reach agreement on such an order and so informed the Court in mid-February. {See id.; Pis.’ Endorsement of United States’ Notice; Def. Anthony Williams’s Notice of Filing.) At the conclusion of the ninety-day period, defendants had made only three out of forty-six promised residential placements and only five out of forty-two promised supported employment placements, two of which did not even meet the agreed-upon criteria. (Feb. 22, 2006 Monitor’s Report at 1.) Moreover, although defendants made progress in identifying class members’ health care needs, health interventions were not implemented for the forty-eight at-risk class members as promised. (Id.) VII. Current Procedural Posture Discouraged by the failure of the ninety-day plan, as well as by the lack of progress under the 2001 Plan, plaintiffs filed the instant motion in May 2006, seeking an order finding defendants in noncompliance with the outstanding Court Orders and placing MRDDA into receivership. The United States, as plaintiff-intervenor, also filed a motion for a finding of contempt. At a status conference on June 29, 2006, the Court ordered the parties to engage in settlement discussions with the goal of agreeing to structural changes that would survive the change in administration at the end of the calendar year. (June 29, 2006 Hr’g Tr. at 27, 31.) See also Evans, Order at 1 (June 29, 2006). The Court also directed the parties to establish a discovery schedule and ordered further briefing in response to plaintiffs’ argument that the Court need not decide the issue of contempt as a threshold manner. Id. at 1-2. The Court held a further status conference on July 20, 2006. Although settlement discussions during the preceding weeks had been unsuccessful, the Court encouraged the parties to continue their efforts to reach a settlement. (July 20, 2006 Hr’g Tr. at 4.) With respect to the pending motions, the Court indicated that it would not proceed on plaintiff-interve-nor’s contempt motion, noting that contempt remedies would be ineffective in addressing the kinds of problems that had been identified by the parties (see id. at 29), and bifurcated proceedings on plaintiffs’ receivership motion into a “liability” and a “remedy” phase. (Id. at 9.) In the “liability” phase, plaintiffs would be required to show that there had been “systemic, continuous, serious noncompliance” with Court Orders. (Id. at 6-7, 9, 12.) Only upon a finding of liability would the Court reach the issue of what remedy or remedies should be imposed. (Id. at 9-10, 12.) The Court directed plaintiffs and plaintiff-intervenor to submit proposed findings of fact and supporting evidence on the issue of liability by August 7, 2006, and directed defendants to file any evidentiary objections to plaintiffs’ and plaintiff-inter-venor’s evidence by August 14, 2006. Evans, Order at 1 (July 20, 2006). The parties agreed that all evidentiary objections would be resolved by Magistrate Judge John M. Facciola, and that Judge Faccio-la’s rulings would be final. Id. (See also July 20, 2006 Hr’g Tr. at 22, 29, 34.) Defendants were directed to submit their proposed findings of fact by September 8, 2006, with evidentiary objections by plaintiffs and plaintiff-intervenor to be filed by September 15, 2006, and with plaintiffs’ and plaintiff-intervenor’s reply to be filed by September 22, 2006. Evans, Order at 1-2 (July 20, 2006). The Court informed the parties that they would be afforded an opportunity to take discovery, if they so desired, permitting each side a maximum of ten document requests and/or requests for admission, and indicating that additional discovery would be permitted, if necessary, upon agreement of the parties and Magistrate Judge Facciola, following receipt of the opposing party’s proposed findings of fact. Id. at 2. {See also July 20, 2006 Hr’g Tr. 11, 16, 27-28, 38-40.) The Court set an evidentiary hearing on the liability phase of plaintiffs’ receivership motion for October 2, 2006, and directed the parties to file a joint status report in advance of the hearing to indicate what evidence, if any, each side intended to present. Evans, Order at 2 (July 20, 2006). After plaintiffs and plaintiff-intervenor submitted their proposed findings of fact on liability, defendants objected that given the volume of exhibits submitted and the short time-frame in which to make objections, it was impossible for them to do anything more than object to categories of exhibits. (Defs.’ Evidentiary Objections to Ps.’ and Pl.-Intervenor’s Exs. in Support of Their Respective Proposed Findings of Fact [“Defs.’ Objections”] at 2.) Defendants presented their specific evidentiary objections to plaintiffs’ and plaintiff-inter-venor’s exhibits in chart form, listing each exhibit separately, indicating whether defendants objected to the exhibit and, if so, citing the particular rule of evidence on which the objection was based. Defendants objected to the vast majority of the exhibits based on Rules 802, 402, 805, and 701-705. {See id. at 4-23.) Defendants also made a general hearsay objection, particularly with respect to reports of investigations of class member deaths and serious incidents involving class members and certain quality assurance reports. {See id. at 3.) Analogizing such reports to reports generated in the medical peer review process, which are inadmissible in judicial and administrative proceedings pursuant to D.C.Code § 44-805(a)(l), defendants argued that these reports should likewise be inadmissible in order to avoid chilling the self-improvement process. {See id. at 4.) On August 30, 2006, Judge Facciola issued a Memorandum Order overruling defendants’ objections. With respect to defendants’ relevance objections pursuant to Rule 402, Judge Facciola found that the exhibits were “legitimately tendered in support of the proposed findings” and were, therefore, “unquestionably relevant.” Evans, 238 F.R.D. 1, 2 (2006). Judge Facciola also overruled defendants’ objections based on Rules 701-705 (concerning opinion testimony by lay witnesses and experts), noting that defendants had failed to identify the particular portion or portions of the exhibit that they found objectionable. Id. at 2. As to defendants’ hearsay objections, Judge Facciola rejected defendants’ argument based on D.C.Code § 44-805, finding the statute to be inapplicable and noting that defendants had not identified any applicable common law privilege. Id. at 2-3. Judge Facciola also found that the reports cited by plaintiffs and plaintiff-intervenor would be admissible as admissions of a party opponent to the extent that they were created by the District or its agents and that, even if not admissions, they might be admissible under Rule 803(8)(B) and (C). Id. at 2-3. Finally, Judge Facciola observed that given the Court’s years of reliance upon the reports, without objection by defendants, to assess defendants’ compliance with the Court Orders, defendants could not now argue that the reports should not be used in determining liability. Id. at 3. Although Judge Facciola overruled defendants’ “broad brush” objections, which failed to specify which sections of particular reports were objectionable, he gave defendants five days in which to correct this deficiency in a supplemental filing. Id. Defendants did not submit anything further with respect to their evidentiary objections. When defendants thereafter filed their proposed findings of fact on liability, neither plaintiffs nor plaintiff-intervenor submitted any evidentiary objections. Despite the opportunity to do so, no party chose to engage in discovery, and no party presented any testimony at the hearing on October 4, 2006. See Evans, Minute Order (D.D.C. Sept. 20, 2006). Instead, the Court heard oral argument from the parties. The Court also held a status conference the following day, at which the Court heard from the Court Monitor and Kathy E. Sawyer, MRDDA’s Interim Administrator, as well as from counsel. At the Court’s request, the Court Monitor filed a supplemental report on November 29, 2006, addressing the distribution of serious reportable incidents among providers. As is the practice in connection with the Court Monitor’s regular quarterly reports, all parties had an opportunity to review and comment on the Monitor’s supplemental report before the report was filed with the Court. (See Oct. 4, 2006 Hr’g Tr. at 31.) The Court held a further status hearing on February 6, 2007. The day before that hearing, defendants submitted a notice of filing to inform the Court of their disagreement with certain of the observations in the Court Monitor’s January 2007 quarterly report and to apprise the Court of progress they had made since the October 2006 status hearing. (Defs.’ Notice of Filing of Supplemental Information in Response to the Court Monitor’s Quarterly Report [“Defs.’ Notice of Filing”] at 2.) The notice of filing, which was accompanied by affidavits from Ms. Sawyer and from Robert Maruca, the Senior Deputy Director for the Medical Assistance Administration (“MAA”) of the District’s Department of Health, urged the Court to hold the motions in abeyance in light of the positive developments and the Fenty administration’s commitment to the District’s newly-created Department of Disability Services (“DDS”) and its consumers. (Id. at 10-11.) At the February 6th hearing, the Court rejected this request and indicated that it intended to issue a ruling based on the record as of November 29, 2006, when the Court Monitor filed the supplemental report requested by the Court. (Feb. 6, 2007 Hr’g Tr. at 23-24.) But, as explained more fully herein, the extent of defendants’ recent progress in remedying its prior deficiencies will be a critical consideration at the remedy phase. LEGAL ANALYSIS I. Legal Standard The issue before the Court at this stage is liability: whether defendants have failed to comply with the Court’s prior Orders in this case. The Court advised the parties at the July 20, 2006 status conference of the standard by which defendants’ liability would be assessed. Plaintiffs, as the moving party, must demonstrate that there has been systemic, continuous, and serious noncompliance with Court Orders. (July 20, 2006 Hr’g Tr. at 6-7, 9-10, 12.) See also Dixon v. Barry, 967 F.Supp. 535, 541, 552-53 (D.D.C.1997) (imposing receivership based on findings that District was “substantially noncompliant with [prior Court Orders]”); Gary W. v. Louisiana, No. 74-2412, 1990 WL 17537, at *32-33 (E.D.La. Feb.26,1990) (noting state’s “per-sistente ]” inability to “comply substantially” with Court Orders and imposing receivership with respect to demonstrated areas of “protracted non-compliance”); Newman v. Alabama, 466 F.Supp. 628, 630 (M.D.Ala.1979) (imposing receivership based on findings that, in critical areas, state had not achieved substantial compliance with Court Orders). II. Violations of 2001 Plan as Evidence of Noncompliance With Court Orders The 2001 Plan incorporates the relevant portions of the existing Court Orders and sets forth an agreed-upon means by which defendants can come into compliance with those Orders. The Plan provides that defendants’ failure “to implement the actions identified in the Plan as necessary to meet the requirements of the related Court Orders is ... evidence of noncompliance with those Court Orders.” (2001 Plan at 7.) See also Evans, 139 F.Supp.2d at 83. The Court is therefore required, as agreed to by the parties, to consider evidence that defendants have failed to perform the “tasks” identified for each set of Court Orders as evidence that defendants have not complied with those Orders. Defendants argue, however, that plaintiffs and plaintiff-intervenor cannot rely on defendants’ failure to meet the associated “outcome criteria” as further evidence of defendants’ noncompliance. (Defs.’ Findings at 2-3.) Defendants contend that the 2001 Plan and the Court Order approving it limit the manner in which the Plan may be used as evidence of noncompliance with the related Orders, restricting plaintiffs to evidence regarding defendants’ failure to implement the “tasks.” (Id. at 2.) The “outcome criteria,” according to defendants, are relevant only to the extent that defendants are seeking to exit from and terminate the related Court Orders. (Id. at 3.) The Court disagrees. Nothing in either the 2001 Plan or the Order approving it limits the evidence plaintiffs may rely on to show that defendants have failed to comply with the underlying Court Orders. As noted, the Plan specifies that defendants’ failure “to implement the actions identified in the Plan as necessary to meet the requirements of the related Court Orders is also evidence of noncompliance with those Court Orders.” (2001 Plan at 7 (emphasis added).) But this in no way suggests that only defendants’ performance with respect to tasks may be used as evidence of noncompliance. To the contrary, the use of the word “also” indicates that tasks are not the only aspect of the Plan that may be used in this manner. In the 2001 Plan, the parties agreed that the measure of defendants’ compliance with a particular group of Court Orders would be whether defendants had satisfied the associated outcome criteria. (Id.) The Plan itself thus makes defendants’ performance with respect to the outcome criteria relevant to a determination as to whether defendants have complied with the underlying Court Orders. See Evans, 139 F.Supp.2d at 82 (commenting that in the 2001 Plan, the parties agreed “on the yardsticks to be utilized in making determinations of compliance”). Defendants note that the Plan “is ‘not intended to be an independently enforceable document.’ ” (Defs.’ Findings at 2 (quoting Evans, 139 F.Supp.2d at 83); see also 2001 Plan at 10.) Until they are vacated, however, the underlying Court Orders are enforceable. (Id.) See also Evans, 139 F.Supp.2d at 83. The outcome criteria reflect the parties’ agreement as to what the underlying Court Orders require, and the Court may therefore consider defendants’ performance with respect to the outcome criteria as evidence regarding defendants’ compliance with the underlying Orders. (See 2001 Plan at 10 (“[I]n the event that the defendants do not implement the provisions of the Plan effectively and on a timely basis, plaintiffs and plaintiff-intervenor retain the right to seek appropriate judicial relief, based on this evidence of noncompliance with the Court Orders.”).) It is also appropriate to consider defendants’ performance with respect to the Plan’s outcome criteria for purposes of the present motion because the outcome criteria are generally independently relevant to the associated Court Orders. For example, the 2001 Plan incorporates the requirement of the 1978 Consent Order that defendants “provide a program of medical, dental and health related services for class members which provides accessibility, quality and continuity of care for physical illness or injury.” (2001 Plan at 12 (citing 1978 Consent Order).) The outcome criteria associated with this Court Order, in turn, include the requirement that “[m]edical and dental services are being provided within professionally acceptable time-frames.” (Id. ¶ A.1.d.iii.) Whether and to what extent class members are actually receiving needed medical and dental services within professionally acceptable time-frames is unquestionably relevant to whether defendants are, in fact, providing a program of medical, dental, and health-related services that provides accessibility, quality and continuity of care. Likewise, whether case managers ensure that class members receive all of the supports and services referenced in their Individual Service Plans, another outcome criterion (id. ¶ D.1.d.ii.), bears directly on whether defendants are providing “all necessary and proper monitoring mechanisms to assure that community living arrangements, programs, and supportive community services of the necessary quantity and quality are provided and maintained,” as required by the 1978 Consent Order. Evans, 459 F.Supp. at 485. For these reasons, the Court will consider defendants’ performance with respect to the outcome criteria as evidence of defendants’ compliance with the related Court Orders. III. Court Monitor’s Reports Defendants have also argued that the Court should not rely on the Court Monitor’s reports, objecting that the data in those reports are unreliable as evidence of defendants’ noncompliance with Court Orders because the Court Monitor does not perform a proper statistical analysis. {See Oct. 4, 2006 Hr’g Tr. at 70-72.) This objection is unpersuasive. Prior to the submission of plaintiffs’ and plaintiff-intervenor’s proposed findings, the Court established a procedure and time frame for defendants to lodge their evidentiary objections. Evans, Order (July 20, 2006). At the same time, the Court also established a procedure and time frame for the parties to take additional discovery, if they desired to do so. Id. at 2. {See also July 20, 2006 Hr’g Tr. 11, 16, 27-28, 38-40.) Notwithstanding these rulings, defendants did not object to the use of the Court Monitor’s findings on grounds of statistical inaccuracy within the prescribed time period, nor did they seek to depose the Court Monitor or take discovery regarding her methodology. Moreover, since the first Consent Order was entered in this case in 1978, the parties have agreed that defendants’ implementation of the Court’s Orders would be monitored by an outside expert who would report to the Court on a regular basis. The 1978 Consent Order required defendants to hire a full-time Court Monitor whose responsibilities were to include “fil[ing] a verified report every ninety (90) days ... detailing the status and progress of the defendants in the implementation of this and any further Order of the Court.” Evans, 459 F.Supp. at 485. The provisions of the 1978 Order concerning the role of the Court Monitor were superceded in November 2000, when the Court granted the parties’ joint motion for the appointment of an independent Court Monitor, but that later Order, to which the parties agreed, again required the Court Monitor to “regularly monitor the class members’ community residential placements and day or other programs to determine Defendants’ implementation of this Court’s Orders.” Evans, Appointment Order at 3 (Nov. 21, 2000); see also id. at 4 (Court Monitor’s duties “shall be to observe, monitor, report findings, and make recommendations to the parties, Special Master and the Court concerning the implementation of this Court’s Orders”). The November 2000 Order also contemplated that the Court Monitor’s reports could be used as evidence, providing that “[t]he findings, recommendations and reports of the Court Monitor ... may be introduced as evidence when relevant and admissible in accordance with the Federal Rules of Evidence.” Id. at 5. Pursuant to the November 2000 Order, the Court Monitor has submitted regular quarterly reports that reflect the results of her reviews of defendants’ progress with respect to randomly selected samples of class members. Although the Court Monitor’s findings are subject to review by the parties before her reports are finalized and filed with the Court, see Evans, Appointment Order at 4 (Nov. 21, 2000) (directing Monitor to submit draft report to the parties for comment and directing Monitor to consider the parties’ comments before filing a final report with the Court), there is no indication that defendants have objected to her findings. Nor is there any indication that defendants have objected to the Court Monitor’s methodology. See id. at 3-4 (directing Monitor to “consult with the parties and the Special Master concerning the methodologies to be used by the Monitor to assess Defendants’ compliance with and implementation of Court Orders”). To the contrary, in their own proposed findings, defendants affirmatively rely on the Monitor’s findings to show the extent to which they have satisfied certain requirements — the same purpose for which they contend the findings may not be used by plaintiffs. (See, e.g., Defs.’ Findings at 3 (citing to Monitor’s findings that Individualized Service Plans for 90% of class members reviewed were current).) In these circumstances, defendants cannot complain that the Court Monitor has not conducted the appropriate statistical analysis. The Monitor has reviewed randomly-selected subsets of class members quarter after quarter, and her findings are remarkably consistent in many respects. These reviews provide significant data with respect to defendants’ overall performance under the 2001 Plan and the underlying Court Orders, and these findings will therefore be considered as evidence of whether defendants have complied with Court Orders. FACTUAL FINDINGS There is no question that defendants have made progress in some areas under the 2001 Plan. As previously noted, they have funded the Quality Trust’s $11 million endowment. They have repaid class members and other MRDDA consumers a total of $1.2 million owed to them for the years 1992 through 2001. They have consistently maintained the required case management ratios. And, as defendants note in their proposed findings, they have developed many policies and procedures required by the Plan and have created systems for implementing the Plan’s goals. Plaintiffs and plaintiff-intervenor do not dispute that policies and procedures have been adopted or that systems have been created. Rather, plaintiffs challenge the effectiveness of these systems and defendants’ failure to adequately implement their existing policies. Plaintiffs contend that in the core areas that have the most direct impact on the day-to-day welfare of class members — the provision of health care, the delivery of services and supports necessary for habilitation, the provision of case management services, and protection from abuse and neglect — defendants are not, and have never been, in compliance with the underlying Court Orders, not one of which has been vacated as contemplated by the 2001 Plan. Although the parties have submitted competing findings of fact, the underlying record, which consists principally of materials generated by the Court Monitor’s office or by defendants and their agents, is basically uncontested. Both parties rely on the Court Monitor’s quarterly reports and on various other data compilations prepared by defendants. Plaintiffs also rely on reports by the Court Monitor’s consultants and on reports of investigations of class member deaths or other serious incidents performed by defendants’ own IMIU or by their consultant, the Columbus Organization. Defendants also cite to numerous policies and procedures, manuals, and training materials. Based on a voluminous but basically uncontested record, the Court finds that plaintiffs have demonstrated, by clear and convincing evidence, that defendants have failed to comply with existing Court Orders in the core areas of health, safety, and welfare. These failures are systemic in that they affect many class members served by a cross-section of providers and occur throughout defendants’ service delivery system. They are serious in that they concern matters that are integral to class members’ health, safety, and well-being. And, they are continuous in that the same issues of noncomplianee have persisted year after year. Although the Court has organized its findings in terms of these three broad categories (health, safety, and welfare), there is substantial overlap among them. Noncompliance in the area of ease management, for example, impacts all three core areas. Notwithstanding defendants’ commitment to “provide the same level of service to class and non-class members” (2001 Plan at 5 n. 2), in evaluating defendants’ compliance with the Plan as it relates to defendants’ compliance with the underlying Court Orders, the Court has, unless otherwise noted, relied exclusively on evidence concerning class members. I. HEALTH 1. Under the existing Court Orders, defendants are required to provide “[a] program of medical, dental and health related services for class members which provides accessibility, quality and continuity of care for physical illness or injury.” Evans, 459 F.Supp. at 489. “Written policies and procedures governing the safe administration and handling of medications” must be established, and medications may be administered only by appropriately trained and qualified staff. Id. Class members’ medications must be monitored, with at least monthly review by a physician, and class members must be fed in the maximum upright position consistent with their capabilities and disabilities. Id. Defendants are also required to develop and provide for each class member “a written habilitation plan, based upon individualized assessments and formulated in accordance with professional standards.” Id. at 484-85. Individual Habilitation Plans, now known as Individual Support Plans or Individual Service Plans (“ISPs”), must be revised annually, Ev ans, Consent Order at 4 (June 25, 1981); Evans, 459 F.Supp. at 485, and must identify all services required by class members. Evans, Consent Order at 4 (June 25, 1981). Priority in implementing ISPs must be given to “class members who have been identified as assaultive, self-injurious, self-abusive, mentally ill, or who have acute medical needs or identified needs for physical rehabilitation services.” Id. at 6. Defendants must also ensure that appropriate training programs for all staff, including staff assigned to residential settings, are developed and implemented. See Evans, Consent Order at 13 (Feb. 8, 1983); Evans, Consent Order at 3 (June 25, 1981); Evans, 459 F.Supp. at 489. 2. Each of the foregoing Court Orders was incorporated into the 2001 Plan. (2001 Plan ¶¶ A.l.a.i., A.l.a.ii., A.l.a.iii., A.l.a.vii., A.2.a.vi., A.3.a.ii., A.4.a.i., A.4.a.iv., A.4.a.v.) The “tasks” identified in the Plan as necessary to implement these Court Orders require that ISPs identify each class member’s service, support and protection needs regardless of availability, that they be modified as the class member’s needs and circumstances change, and that they be implemented promptly (id. ¶A.l.b.iv.); that the District develop procedures for including in each ISP an assessment of the individual consumer’s need for medical and dental care and the means for securing such services within professionally acceptable time frames (id. ¶ Al.b.v.); and that the District develop and implement an ongoing training program for all staff working within the developmental disabilities services delivery system in order to develop the skills and competencies required to provide services meeting the standards applicable to the programs in which they work. (Id. ¶ A.3.b.ii.) 3. The parties agreed, as part of the 2001 Plan, that the measure of defendants’ compliance with the foregoing Court Orders (ie., the “outcome criteria” for these Orders) would include such factors as whether ISPs are developed or revised in accordance with professional standards at least annually and reviewed whenever there is a significant change in circumstances (2001 Plan ¶ A.l.d.i.); whether ISPs address class members’ need for medical, dental, and mental health services and provide for decision making by a guardian for class members with decision making incapacity (id. ¶ A.l.d.iii.); whether needed medical and dental services are provided within professionally acceptable time frames (id. ¶ A.l.d.iii.); whether class members are fed according to their individual needs by adequately trained staff (id. ¶ A.2.d.iv.); whether, in the event that private providers fail to comply with performance expectations, including the expectation that medical and dental services will be provided within professionally acceptable time frames, the District takes action to ensure compliance or imposes sanctions designed to ensure compliance, including terminating provider agreements, where necessary (id. ¶ A.l.d.viii.); whether staff employed by the District and provider agencies have attended required training programs and satisfactorily demonstrated competence in the skills required for the positions they hold (id. ¶A.3.d.ii.), and whether defendants have developed and implemented a policy governing the safe administration and handling of medications. (Id. ¶ A.4.d.ii.) 4. MRDDA has a policy setting forth the guidelines to be used in assessing consumers’ medical and dental needs and identifying the mechanism for securing treatment. (See Defs.’ Ex. 9.) Consistent with the requirement of the 2001 Plan that defendants develop procedures for including in class members’ ISPs an assessment of their need for medical and dental care, the policy requires that written evaluations from medical and dental professionals be part of MRDDA consumers’ ISPs and requires those assessments to address consumers’ comprehensive care needs, including primary and long-term needs. (See id. at 2.) The policy requires MRDDA to work with residential providers to ensure that consumers’ medical and dental needs are evaluated annually and integrated into ISPs; that residential records are monitored to track appointments, timeliness of service, follow-up visits, consistency, treatment delivery, and documentation of data that impact consumer habilitation (e.g., diet, vital signs, behaviors); that treatment plans are monitored to ensure that quality service is provided by medical and dental providers; and that residential providers actively communicate with physicians and dentists. (See id. at 5-6.) Defendants acknowledge that MRDDA case managers and nurse managers “are responsible for monitoring the medical care provided to class members.” (Defs.’ Findings at 5.) A separate MRDDA policy addresses the use of psychotropic medications for MRDDA consumers. (See Defs.’ Ex. 11.) 5. MRDDA has also developed a “Comprehensive Health Plan” aimed at establishing “effective and consistent health, clinical and behavioral supports for persons with mental retardation across the MRDDA system.” (Defs.’ Ex. 12 at 2.) As part of this Comprehensive Health Plan, ISPs are required to include a Health Management Care Plan, also known as a Health Risk Management Plan (hereinafter “Health Plan”). (See Defs.’ Ex. 12 at 4, 14, 24.) Health Plans also address the 2001 Plan’s requirement that ISPs include an assessment of the consumer’s medical needs and the means for securing such services within professionally acceptable time frames. The Health Plan is designed to be “a clear, comprehensive, and easily understood description of a consumer’s health and mental health risks, diagnoses, intervention(s), medical and behavioral history, medication(s), recommended screening(s), and scheduled medical or behavioral events for an MRDDA consumer.” (Id. at 24.) Health Plans are to include responses to any identified diagnoses or recommendations, are to be written in “clear basic English so that entries can be easily understood by lay persons,” and must identify an implementation procedure (including responsible parties and oversight staff) for ea