Full opinion text
MEMORANDUM OPINION ELLEN SEGAL HUVELLE, District Judge. In 1976, residents of Forest Haven, then the District of Columbia’s institution for persons with developmental disabilities, filed this class action alleging that they were receiving constitutionally-deficient care, treatment, education, and training. In 1978, the Court entered a consent decree pursuant to which defendants agreed that plaintiffs’ constitutional rights had been violated and that they would take certain actions to remedy those violations. A series of consent orders and remedial plans followed in which defendants admitted that they were still violating class members’ constitutional rights and agreed to take additional actions to remedy those constitutional violations. The last such consent order and remedial plan was entered into in 2001, when the parties jointly agreed to a Plan for Compliance, pursuant to which defendants could demonstrate compliance with the Court’s orders and terminate the litigation. In 2006, plaintiffs filed a motion to find defendants in noncompliance and to appoint a receiver. On March 30, 2007, the Court granted that motion in part, concluding, based on extensive factual findings, that there had been “systemic, continuous, and serious noncompliance with many of the Court’s Orders.” Evans v. Fenty, 480 F.Supp.2d 280, 325 (D.D.C. 2007) (“March 2007 Liability Opinion”). With respect to remedy, the Court asked the Special Masters to assist by making findings and recommendations to the Court that address, inter alia, “the current status of defendants’ compliance, what are the available options for curing the identified deficiencies, and whether a receivership is the most effective and efficient remedy available to the Court.” Id. at 326. Now before the Court is the Special Masters’ Report and Recommendation, which concludes that, as of December 2008, defendants were still in noncompliance with the Court’s orders and recommends the appointment of an “Independent Compliance Administrator” to bring defendants into compliance and to end to this litigation. (Special Masters’ Report and Recommendation Regarding A Remedy For Defendants’ Noncompliance With Court Orders at 128, Aug. 14, 2009 [“2009 Special Masters’ Report”].) Defendants have filed limited objections to the report and oppose the imposition of the proposed remedy; plaintiffs have no objections to the report and ask that the Court adopt the findings of the Special Masters and their recommended remedy. Also before the Court is a motion the District filed, after the Special Masters concluded their proceedings in January 2009, to vacate all consent orders and to dismiss the entire case. For the reasons stated herein, defendants’ motion to vacate and dismiss will be denied. The Court will address, in a future memorandum opinion and order, defendants’ objections to the Special Masters’ Report and Recommendations. BACKGROUND The lengthy procedural history of this litigation prior to March 30, 2007, will not be repeated here, as it was fully summarized in the Memorandum Opinion filed on that date. See Evans, 480 F.Supp.2d at 281. Certain events, however, are relevant to defendants’ pending motions and will be briefly noted below, followed by a more detailed summary of the facts and procedural history that post-date that decision. I. KEY EVENTS PRIOR TO THE MARCH 30, 2007 LIABILITY OPINION A. 1978 Final Judgment and Order On June 14, 1978, the Court entered a “Final Judgment and Order” providing for permanent injunctive relief. Evans v. Washington, 459 F.Supp. 483 (D.D.C.1978) (“1978 Consent Order”). The 1978 Consent Order was premised on the recognition, which was consented to by the parties, that plaintiffs had federal constitutional rights under the due process clause of the Fifth Amendment “to be kept free from harm” and “to receive habilitative care and treatment in the alternative least restrictive of individual liberty” and that “violations of [those] federal constitutional rights ... have occurred.” Id. at 484. To remedy those violations, the 1978 Consent Order required defendants and their successors to take a number of specific actions, see id. at 484-90, that, loosely classified, fell into three categories: health care, safety, and welfare/habilitation. Defendants “consented to the entry of [the 1978 Consent Order] so as to assure protection of the rights of plaintiffs.” Id. at 484. B. 1981 Consent Order In 1981, plaintiffs and plaintiff-intervenor filed motions for contempt, based on defendants’ noncompliance with the 1978 Consent Order. Those motions led to the entry of a second Consent Order, which supplemented defendants’ obligations under the 1978 Consent Order with a list of agreed-upon “measures necessary to the implementation of this Court’s Order of June 14, 1978.” (Consent Order at 1, June 25, 1981 [“1981 Consent Order”].) The 1981 Consent Order did not revisit the legal conclusions of the 1978 Consent Order nor did it “release defendants from their obligations” thereunder. (Id. at 10.) Rather, the parties came to an agreement that defendants needed to take additional measures to assure protection of plaintiffs’ constitutional rights. The agreed-upon measures supplemented defendants’ obligations in each area addressed by the 1978 Consent Order — health, safety and welfare/habilitation. (Id. at 1-10.) C. 1982 Supreme Court Decision (Youngberg v. Romeo) In 1982, the Supreme Court decided Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), addressing for the first time the constitutional rights of an individual who had been involuntarily committed to a state institution for the mentally retarded. As discussed infra, defendants’ motion to vacate is based in part on the Youngberg decision and defendants’ contention, made for the first time in the 28 years since Youngberg was decided, that Youngberg changed the law and established that the 1978 Consent Order rested on “extraconstitutional” rights. D. 1983 Consent Order In 1982, plaintiffs and plaintiff-intervenor again filed motions for contempt, which led to the entry of a third Consent Order. (Consent Order, Feb. 8, 1983 [“1983 Consent Order”]). The 1983 Consent Order similarly did not revisit the legal conclusions of the 1978 Consent Order nor did it release defendants from their obligations under prior orders; it merely added to those obligations “to assist in the implementation of those orders.” (Id. at 14-15.) Again, the agreed-upon measures supplemented defendants’ obligations in each area addressed by the 1978 Consent Order — health, safety and welfare/habilitation. (Id. at 2-14.) E. 1990 Contempt Order In 1989, plaintiffs and plaintiff-intervenor again filed motions for contempt. In 1990, the Court issued an Order holding the District in civil contempt based on its “consistent and continuing violation of the three Consent Orders [of 1978, 1981 and 1983].” Evans, 480 F.Supp.2d at 284 (quoting Order, Jan. 30, 1990 [“Jan.1990 Contempt Order”].) After a sanctions hearing, the Court issued an Order that, inter alia, required defendants to complete the outplacement of the 233 plaintiffs remaining at Forest Haven by September 30, 1991. Id. (citing Order, Apr. 9, 1990 [“Apr.1990 Contempt Order”]). By October 1991, all plaintiffs had been moved from Forest Haven and the institution was closed. F. 1995 Contempt Order, Appointment of Special Master, 1996 Remedial Plan In 1995, four years after the closure of Forest Haven, plaintiff and plaintiff-intervenor filed motions for contempt, for remedial sanctions and for appointment of a Special Master. After two hearings, the Court again found the District to be in contempt based on “clear and convincing evidence, including defendants’ conceded violations, that the District is not in compliance with the consent orders in this case----” (Findings of Fact & Conclusions of Law at 7, Oct. 11, 1995 [“1995 Contempt Order”].) In its decision, the Court observed that as of 1995, it had “entered numerous orders, including consent orders between the parties, to safeguard the rights of class members and ensure their adequate and appropriate habilitation.” (Id. at 1.) The Court further noted that “[defendants admit that the District has a continuing responsibility to provide the class members with habilitation in accordance with their needs” and “admit that they also are required to provide adequate medical care, psychological care, day programming, community residential placements and other support systems as set forth in the class members’ [individual habilitation plans].” (Id. at 5-6 (emphasis added).) The Court proceeded to find the District in contempt because it (1) was delinquent in ensuring timely payment of providers, in violation of the 1983 Consent Order; (2) permitted inadequate case manager ratios, in violation of the 1983 Consent Order; and (3) offered inadequate “community living arrangements” and “community-based day programs and services as are necessary to provide them with minimally adequate habilitation,” in violation of the 1978 Consent Order. (Id. at 7-8.) The Court further found that defendants’ “history of noncompliance, compounded by the complicated and factually elusive nature of the matters under consideration,” required the appointment of a “Special Master” pursuant to Federal Rule of Civil Procedure 53 to “evaluate and ensure defendants’ compliance with the Court’s Orders and Consent Decrees ... and to recommend remedies for any deficiencies in defendants’ compliance with the Orders.” (Order of Reference at 2, Oct. 11,1995 [“1995 Reference Order”].) In August 1996, the Court, based on a Report and Recommendation from the Special Master, adopted a “Remedial Plan,” designed “to enable defendants to come into compliance with the terms of this Court’s multiple Consent Orders” and to establish the conditions by which defendants could purge their civil contempt. Evans v. Barry, No. 76-CV-293, 1996 WL 451054, at *l-*2 (D.D.C. Aug. 2, 1996) (“1996 Order & Remedial Plan”). In adopting the Remedial Plan, the Court observed that [defendants have, for over two years, chronically and unapologetically violated the terms of nearly every aspect of this Court’s multiple Consent Orders. Defendants’ unrelenting contempt of this Court’s orders, and their seeming inability to bring themselves in compliance therewith, have created chaos for the care providers vested with day-to-day responsibility for the members of this plaintiff class. The plaintiffs comprising this class, as defendants well know, are ill-equipped to adjust to or defend against the city’s failure to assist their care providers in giving them the care and treatment they desperately need. Id. at *2. The Court also warned defendants that: the point has been reached beyond which this Court will not tolerate further and continuing incidences of contempt by defendants. Any further noncompliance with this Court’s longstanding Consent Orders, and noncompliance with the Remedial Plan issued this date, must be expected by defendants to result in serious consequences. Id. The remedial plan concerned defendants’ obligations in each area addressed by the 1978 Consent Order — health, safety and welfare/habilitation. Id. at *3-*8 G. 1999 Sanctions Order In April 1997, less than a year after the Court adopted the 1996 Remedial Plan, plaintiffs moved for sanctions based on the District’s admitted failure to pay providers within 30 days, as required under that Plan. In February 1999, the Court granted the motion and imposed a $5 million fine on defendants. Evans v. Williams, 35 F.Supp.2d 88 (D.D.C.1999). As part of that decision, the Court modified the 1996 Remedial 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. Id. at 97. As envisioned by the Court, the plan would include “recommended findings of fact and conclusions of law regarding the following topics”: a. Goals. A summary and articulation of the goals of this lawsuit as reflected in the 1978 and 1983 Consent Orders, the 1996 Remedial Plan, and all other Court-ordered obligations (hereafter collectively “Court-ordered requirements”). b. Current compliance. An evaluation of existing programs to determine the extent of defendants’ compliance with requirements for the protection of the health and safety of the plaintiff class and their effectiveness in meeting the goals described in subparagraph a, including but not limited to the provision of necessary medical and other health services and the compliance of private vendors with District of Columbia licensing and payment requirements governing community residence facilities, intermediate care facilities, foster care, day treatment programs, day programs, employment programs, representative payment and guardianship. c. Adequate habilitation. The extent of defendants’ compliance with Court-ordered requirements for the provision of adequate habilitation in the least restrictive setting and their effectiveness (strengths and weaknesses) in meeting the goals described in subparagraph a, including individual habilitation planning, individual financial planning, case management, appropriate residential services, adequate habilitation services, and the safeguarding of client funds. d. Payment of providers. The extent of defendants’ compliance with Court-ordered requirements for the timely payment of private providers who provide the plaintiff class with appropriate residential services, day treatment programs, vocational and supported employment services, day programs, medical, mental health, dental, and other services required by the Court. e. Quality assurance. The quality assurance methods to be developed and implemented by defendants to monitor continually the performance of public and private providers of service in meeting the goals of the suit. f. Standards and compliance measurement. The standards, including outcome standards to be developed and implemented by defendants, that should be used to determine defendants’ continued compliance with Court-ordered requirements, and the way in which compliance with such standards should be measured. g. Substantial compliance standards. The degree of compliance that should be required with each of the standards recommended. h. Permanent monitoring. The steps necessary to establish permanent, objective, efficient, and effective post-termination monitoring of the programs serving class members by independent entities (for example, private accreditation services and independent monitoring bodies). I. Individual and community advocacy. The steps necessary to coordinate existing mechanisms and to develop needed mechanisms for the advocacy of the interests of class members, on a[n] individual and community-wide basis, in compliance with Court-ordered requirements, including but not limited to the use of court-appointed attorneys, guardianships, and medical decision-making procedures for class members. Id. at 97-98. H. Appointment of Independent Court Monitor In November 2000, the Court entered an Order granting the parties’ joint motion for the appointment of an independent Court Monitor. (Order Regarding the Appointment of an Independent Court Monitor, Nov. 21, 2000.) The Order specified that the duties of the Court Monitor were to include observing, monitoring, reporting findings, and making recommendations to the parties, the Special Master, and the Court regarding implementation of the Court’s Orders, and to submit quarterly reports on defendants’ “compliance” with the Court’s Orders. (Id. at 2-5.) The Order also provided that the “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.) In order to perform these duties, the Monitor was granted broad access “to the persons, residences, facilities, buildings, programs, services, documents, records, personnel and materials the Monitor deems necessary or appropriate in performing [her duties].” (Id. at 4.) I. 2001 Opinion and Order: Joint Stipulated Findings of Fact; Plan for Compliance; Consent Order and Settlement Agreement In 2001, after “lengthy negotiations”— almost two years of work by the Special Master, the parties, and an expert to the Special Master — the parties came to a series of agreements that “set forth a careful and detailed blueprint for achieving compliance with the Court’s Orders, for the development of permanent and independent mechanisms to safeguard the rights of class members, and for the phased withdrawal of judicial oversight of the District of Columbia’s mental retardation system as compliance with the Court Orders [wa]s achieved.” Evans v. Williams, 139 F.Supp.2d 79, 81 (D.D.C.2001) (“2001 Consent Order”). Upon consideration of these agreements, the Court, on March 30, 2001, (1) adopted the Parties’ Joint Stipulated Findings of Fact, id. at 96-107; (2) approved the 2001 Plan for Compliance and Conclusion of Evans v. Williams, id. at 85 (“2001 Plan”); and (3) entered a Consent Order, with a Settlement Agreement attached thereto. Id. at 85-96. Two aspects of these agreements remain critically important today: the 2001 Plan to achieve compliance and the creation of the Quality Trust in exchange for plaintiffs’ waiver of claims on noncompliance. 1. 2001 Compliance Plan The 2001 Plan started from the premise “that there is already in place a declaratory judgment and permanent injunction recognizing a federal constitutional right to receive individualized habilitative care and treatment in the least separate, most integrated, and least restrictive settings, and to be kept free from harm.” (2001 Plan at 6.) The Plan then identified (as the Court’s 1999 Order had requested) the agreed-upon “goals” of the existing Court orders. According to the Plan, the parties agreed that existing Court Orders embodied eight goals: (1) Appropriate individual habilitation in the community in the least separate, most integrated, and least restrictive environment; (2) Protection from harm; (3) Safeguarding consumers’ personal possessions; (4) Monitoring the service system; (5) Advocacy for consumers; (6) Adequate budget; (7) Timely payment of vendors; and (8) Essential systemic conditions. Evans, 139 F.Supp.2d at 81. For each goal (or subgoal), the Plan identified the “relevant Court Orders,” the “specific tasks that must be performed to implement those Orders,” the “time frames within which the tasks must be performed,” the “specific outcome criteria for measuring compliance,” the “standard of compliance,” and the “methods by which evidence will be collected and evaluated to assess compliance.” Id. at 81-82. The Court approved the 2001 Plan “as, in effect, a statement of the conditions for the expected vacating of the Court’s relevant prior Orders.” Id. at 85. It was anticipated that [wjhile the Plan is not intended to be an independently enforceable document, the parties do intend that there will be accountability for its implementation. The Plan requires periodic progress reports to the Special Master on its implementation and calls for status conferences with the Court to be scheduled at least bimonthly. The parties agree that if the Court finds that defendants have satisfied the outcome criteria set forth in the Plan, they also will be in compliance with the related Court Orders. Any failure of defendants to implement the tasks identified in the Plan so as to meet the requirements of the related Court Orders would be evidence of noncompliance with those Orders. The Plan provides that until the existing Court Orders are vacated, plaintiffs may seek appropriate judicial relief, including requesting orders requiring compliance with the Order(s) underlying the objectives of the Plan. Id. at 83. 2. Creation of the Quality Trust The Consent Order and attached Settlement Agreement provided that, in exchange for the plaintiffs waiving “any and all claims for past violations of the Court’s Orders,” the District would “endow and annually fund ... a durable, independent, nonprofit organization that will monitor and advance the individual and collective interests of people with developmental disabilities in the District of Columbia’s service delivery system.” Id. at 86. Defendants agreed to fund the organization, denominated the Quality Trust, with a total of $31.5 million over eleven years. Ultimately, the goal was for the Quality Trust to be “an external monitoring body to permanently protect the interests of the class members once this ease ends.” Id. at 83. The 2001 agreements, which the Court accepted and adopted, contemplated that as defendants satisfied the outcome criteria in the 2001 Plan 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. (2001 Plan at 9-10 (emphasis added).) Once the Court orders were vacated and dismissed, the plaintiffs agreed that they would not “seek recourse to the federal court to litigate individual violations of rights in this case pursuant to the declaratory judgment which will remain unless: (1) there are systemic violations of the declaratory judgment; or (2) legal remedies are unavailable in Superior Court (e.g., due to repeal of the statutes); or (3) there is a failure to adequately fund the Quality Trust pursuant to the Consent Order dated January 19, 2001.” (Id.) Since 2001, however, defendants have not invoked the procedures set forth in the 2001 Plan, to which they agreed, to vacate any Court Orders based on their implementation of the necessary tasks and satisfaction of the specified outcome criteria. Accordingly, the Court Orders “continue to remain enforceable in federal court.” (Id.) Moreover, even though the 2001 Plan itself was “not intended to be an enforceable document,” the parties agreed that plaintiffs “have a great interest in ensuring that the agreed upon actions identified in this Plan are in fact implemented effectively and in a timely manner by defendants to secure the benefits and protections provided for by the Court Orders,” and provided, therefore, that “in the event that defendants do not implement the provisions of this 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, including Orders requiring specific performance of the Plan.” (Id.) J. 2004 Order In 2004, after several years of receiving discouraging monitor reports on the implementation of the 2001 Plan, this Court issued an order to address the “need for greater coordination among District of Columbia agencies which have responsibilities for actions that are necessary to achieve compliance with the 2001 Plan.” (Order at 1, Jan. 21, 2004 [“2004 Coordination Order”].) As described therein, the parties had met with the Court on December 12, 2003, and agreed that “the current lack of such coordination has impeded the timely completion of necessary tasks identified in the 2001 Plan.” (Id. at 1-2.) The 2004 Order reiterated that the District remained subject to the Court’s previous orders, which were issued “to effectuate the rights of class members to adequate habilitation in a manner least restrictive of their liberty” and that the purpose of the 2001 Plan was to require defendants to take certain actions to achieve compliance with those orders. (Id. at 1.) The Order required, inter alia, that the Mayor appoint a Deputy Mayor or other senior official “to be responsible for the day-to-day efforts of District of Columbia agencies to achieve compliance with this Court’s orders and the 2001 Plan.” (Id. at 2.) That individual was to “have the necessary authority to supervise and direct the activities of’ and “coordinate the efforts of all District of Columbia agencies” as necessary to “carry out their obligations under the 2001 Plan and previous orders of this Court,” and was to “cooperate with and report periodically to the Special Masters and Court Monitor on defendants’ progress,” and “appear before this Court at each status conference and report to the Court on behalf of defendants regarding the status of defendants’ compliance with the 2001 Plan and orders of this Court.” (Id. at 3.) II. MOTION FOR RECEIVERSHIP: LIABILITY PHASE In May 2006, plaintiffs filed a motion asking the Court to find defendants in noncompliance with the outstanding Court Orders and to place the District’s Mental Retardation and Developmental Disabilities Administration (“MRDDA”) into receivership. The Court bifurcated proceedings into a “liability” and a “remedy” phase. Evans, 480 F.Supp.2d at 291 (“March 2007 Liability Opinion”). While the liability phase was ongoing, several notable events occurred. On December 20, 2006, the “Developmental Disabilities Services Agency,” later renamed the “Department on Disability Services,” was established by emergency legislation as a separate Cabinet-level agency to serve consumers formerly served by the MRDDA, including the Evans class members. Developmental Disabilities Services Management Reform Emergency Amendment Act of 2006, §§ 103, 105(1), (2). In January 2007, Adrian Fenty took office as Mayor for the District of Columbia. On February 5, 2007, defendants asked the Court to delay its liability ruling in light of the new administration’s “commitment to DDS and its consumers” and its newly adopted “Systems Improvement Plan” in order “to allow sufficient time for the DDS to appropriately address the continuing concerns of the Court, the Monitor, the Department of Justice, and plaintiffs.” (Defs.’ Notice of Filing of Supplemental Information in Resp. to the Ct. Monitor’s Quarterly Report at 10, Feb. 5, 2007.) In making its request, the District indicated that it was “cognizant that much remains to be done to bring DDS into compliance with outstanding court orders and the 2001 Plan,” but promised the Court that the “Fenty Administration is fully committed to the success of the new agency, the delivery of improved services and care to the consumers served by the agency, and compliance with the 2001 Plan.” (Id. at 8.) At a status hearing the next day, the Court rejected this request and indicated that it intended to issue its liability ruling based on the record as of November 29, 2006, when the Court Monitor had filed her supplemental report as requested by the Court, but that information about improvements and accomplishments after that date would be considered in any remedy phase. (Hr’g Tr. at 23-24, Feb. 6, 2007. ) On March 30, 2007, the Court issued its liability ruling, concluding that plaintiffs had met their burden to show that there had been “systemic, continuous, and serious noncompliance” with the Court’s prior Orders. Evans, 480 F.Supp.2d at 325. A. Findings: Health, Safety and Welfare The Court organized its findings in terms of these three broad subject areas: health, safety and welfare. Based on a record that closed in November 2006, the Court found 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 noncompliance have persisted year after year. Id. at 298. A brief summary of the Court’s findings follows. In the category of “health,” the Court found that: defendants have failed in many significant respects to accomplish the tasks and to achieve the outcome criteria in the 2001 Plan that relate to the Court’s Orders regarding the provision of health care and to comply with the terms of the Orders themselves. Defendants’ deficient performance with respect to these measures provides ample evidence that defendants have failed to comply with the Court’s Order that “[a] program of medical, dental and health related services which provides accessibility, quality and continuity of care is required,” as well as with Court Orders requiring development of habilitation plans and programs that incorporate all services needed by class members and implementation of appropriate training programs for all staff. Id. at 305 (citations omitted). In the category of “safety,” the Court found that: defendants have failed in many significant respects to accomplish the tasks and outcome criteria associated with the Court’s Orders relating to class member safety and to comply with the terms of the Orders themselves. Defendants’ performance in the areas discussed above provides ample evidence that defendants have failed to comply with the Court’s Orders prohibiting all acts of “physical or psychological abuse, neglect or mistreatment” of class members, requiring the prompt reporting and investigation of all such incidents and the prompt dissemination of the reports of such investigations to the Court Monitor and other interested parties, requiring the development and implementation of appropriate training programs for all staff, including staff assigned to residential settings, and requiring defendants to provide necessary monitoring mechanisms. Id. at 313-314 (citations omitted). Finally, in the category of “welfare,” the Court found that defendants were not in compliance in several respects. First, in terms of the “least restrictive, most integrated setting requirement,” the Court found that: defendants have not complied with the Court’s 1978 Order that all class members be provided with “community living arrangements suitable to each, together with such community-based day programs and services as are necessary to provide them within minimally adequate habilitation ... in the least separate, most integrated and least restrictive community settings.” Id. at 319 (quoting Evans, 459 F.Supp. at 484). The Court also found serious problems in the areas of implementing “individual support plans” (“ISPs”) and thus in “ensuring that class members actually receive the services and supports they require,” id. at 320, and a failure to comply with orders regarding “adaptive equipment.” Id. at 321. Finally, the Court found problems in the area of case management, concluding that: defendants “failfed] to ensure that case managers complete the required number of visits and that they take appropriate action when a class member has been the subject of a serious incident”; “[fjail[ed] to ensure that case managers are properly trained before receiving caseloads”; and that case managers “failfed] to ensure that ISPs are fully implemented.” Id. at 324. The Court summarized its findings as follows: As a result of these failings, class members continue to be placed in inappropriate and overly restrictive residential and day programs, rather than in the least restrictive, most integrated settings. Provider and MRDDA staff, including case managers, are not adequately trained, and case managers do not visit class members with the required frequency and do not adequately address deficiencies in class members’ care. In many instances, class members do not receive the needed services and supports that have been identified in their ISPs. Protocols necessary to protect class members’ health and safety, such as feeding, positioning, and behavioral plans, are routinely not followed. Health risks are not adequately assessed and monitored for many class members, and recommendations by health care providers are not implemented in a timely manner. While incidents of abuse and neglect of class members persist, defendants have failed to ensure that these and other serious incidents, including class member deaths, are investigated in a timely manner, that the results of such investigations are shared with providers, and that recommended corrective and preventive actions are implemented. Defendants have also compromised the monitoring process by altering death investigation reports. Id. at 324-25. These findings were the basis for the Court’s ultimate conclusion that defendants’ noncompliance with Court orders had been “systemic, continuous and serious.” Id. at 325. B. Remedy As for the remedy of receivership sought by the plaintiffs, the Court observed: Although it is clear based on the tortured history of this ease that there have been repeated failures to comply with the Court’s Orders, this determination is in no way determinative of the question whether plaintiffs are correct in their argument that a receivership should be imposed. Id. at 826. Rather, receivership is a “remedy of last resort,” that “should be undertaken only when absolutely necessary.” Id. (quoting District of Columbia v. Jerry M., 738 A.2d 1206, 1213 (D.C.1999)). In light of the complexity of this inquiry, and the fact that “recent developments ... are encouraging and will be highly relevant to the remedial phase of this action,” the Court determined that it would “enlist the assistance of the Special Masters, who have ably served in this capacity for many years, to make findings and recommendations to the Court that address, inter alia, the current status of defendants’ compliance, what are the available options for curing the identified deficiencies, and whether a receivership is the most effective and efficient remedy available to the Court.” Id. at 326. The Court instructed that the “determination whether other remedies are inadequate and whether receivership remains the only viable option to effectuate compliance with court orders is to be guided by a number of factors, including” (1) “whether there were repeated failures to comply with the Court’s orders”; (2) whether further efforts to secure compliance would only lead to “confrontation and delay”; (3) whether leadership is available which can “turn the tide within a reasonable time period”; (4) “whether there was bad faith”; (5) “whether resources are being wasted”; and, (6) “whether a receiver can provide a quick and efficient remedy.” Id. (quoting Jerry M., 738 A.2d at 1213 (quoting Dixon v. Barry, 967 F.Supp. 535, 550 (D.D.C.1997))). The Court’s final observation was that “the daunting task of finding ways to remedy the problems still remains. In this regard, the Court expects the parties to continue their prior efforts to resolve this matter so that the plight of the class members can be improved as expeditiously as possible, and they will not have to continue to await the outcome of this painfully lengthy and cumbersome litigation.” Id. at 327. III. MOTION FOR RECEIVERSHIP: REMEDY PHASE A. Supplemental Order of Reference to the Special Masters Following the issuance of the March 30, 2007 decision, the parties conferred and jointly agreed on a supplemental order of reference to the Special Masters. (Supp. Order of Reference, May 3, 2007 [“2007 Reference Order”].) The 2007 Reference Order provided, inter alia, as follows: Both Margaret G. Farrell and Clarence J. Sundram have served as Special Masters in this case for many years under prior Orders of Reference. The Court finds that it is justified and necessary to continue their appointment to assist the Court for as long as the Court deems necessary in this matter. (Id. at 1.) It further provided that: The Masters are authorized to conduct proceedings relating to the necessity for remedial relief, including, as needed, discovery, hearings, mediation and settlement negotiations. At the conclusion of such proceedings, the Masters will issue a report to the Court making recommended findings of fact, conclusions of law and recommendations regarding appropriate remedies. (Id. at 2.) Following the issuance of the Special Masters’ report and recommendations, the parties were to “file objections to (or file a motion to adopt or to modify) such order, report or recommendations.” (Id. at 4.) The parties were directed that all objections should “specifically identify the portions of the order, or report containing proposed findings of fact, conclusions of law and recommendations for remedial action, to which objection is made and the basis for the objection.” (Id.) Finally, the Order provided that this Court would review de novo “all objections to the Masters’ proposed findings of fact and recommendations regarding remedial relief’ and “all objections to conclusions of law made or recommended by the Masters.” (Id.) B. September 12, 2007 Consent Order (“90-Day Order”) After a quarterly status conference on August 9, 2007, the parties agreed to develop, and the Court ultimately entered, a consent order “setting forth a limited number of concrete, short-term goals related to retaining and increasing the number of qualified providers and improving the health and safety of class members” that the District agreed to achieve “during the three-month period from October 1, 2007, to December 31, 2007.” (Order at 1, Sept. 12, 2007 [“2007 90-Day Consent Order”] ). Pursuant to that Order, defendants agreed to take a number of specific actions that were focused on these two critical goals. (Id. at 2.) The Special Masters were tasked with determining defendants’ compliance with the 2007 90-Day Consent Order, beginning in January 2008. (Id. at 1.) On August 18, 2008, the Special Masters filed their Report and Recommendation regarding defendants’ compliance with the 2007 90-Day Order. (Special Masters’ Report & Recommendation Regarding Defs.’ Compliance with the Consent Order of Sept. 12, 2007, Aug. 18, 2008 [“2008 Special Masters’ Report”].) The 2008 Special Masters’ Report concluded that overall defendants “did not demonstrate substantial compliance with six out of the 13 provisions of the Consent Order that they recently agreed-upon, and whose obligations they concede they clearly understood.” Id. at 107. C. Monitoring Compliance At the same time it issued the 2007 90-Day Consent Order, the Court ordered the parties to “file with the Court the agreed-upon methodology to be used by the Court Monitor to monitor defendants’ compliance with the requirements of the 2001 Plan and the existing Court Orders by January 10, 2008.” (Minute Order, Sept. 12, 2007). Following the issuance of this Order, the Court Monitor circulated to the parties and the Special Masters a proposed monitoring protocol. On November 21, 2007, defendants filed a notice stating: By communication of November 16, 2007, faced with the expenditure of substantial resources and time to develop the above-referenced methodology, Defendants informed the Court Monitor that a meeting to develop a methodology would not be needed since Defendants would not assert that conditions have so fundamentally changed at this point that such comprehensive monitoring is appropriate. Accordingly, Defendants expressed the view that there was no need for the comprehensive monitoring proposed by the Court Monitor and the significant expense attendant thereto that would be incurred. (Defs.’ Notice Concerning Proposed Comprehensive Monitoring at 2, Nov. 21, 2007 (emphasis added).) By May 2008, a monitoring protocol had still not been agreed upon. Just prior to the status conference set for May 15, 2008, defendants filed a motion to stay discovery during the remedial phase of the case, which was denied by the Court. (Hr’g Tr. at 38, May 15, 2008.) On May 19, 2008, the Court issued a scheduling order to govern the remedy phase. On June 13, 2008, plaintiffs, in response to the Court’s request, filed a summary of the remedies they were seeking. That filing set forth a range of possible remedies, “running from no action by the Court up to court-appointed receivership over the entire Department on Disability Services, with oversight of all District agency functions pertaining to Evans class members and other individuals with developmental disabilities served by the defendants.” (Pis.’ Filing on Remedies at 1, June 13, 2008.) Among these alternatives, plaintiffs endorsed the remedy of appointing a “Special Administrator,” who would “oversee[ ] government agencies and functions pertaining to class members until the District achieves substantial compliance with the Court’s Orders,” but who would not have all the powers of a receiver. (Id. at 3.) D. Proceedings Before the Special Masters Following additional discovery and pretrial proceedings, the Special Masters conducted a three-day trial on December 10-12, 2008. Direct testimony from both fact and expert witnesses was presented by declaration or excerpts from depositions. (Special Masters’ Final Pretrial Order at 6, Nov. 28, 2008.) All witnesses were subject to live cross-examination. (Trial Tr., Dec. 10, 2008; Trial Tr., Dec. 11, 2008.) Plaintiffs presented the testimony of two fact witnesses and two expert witnesses. Defendants presented the testimony of six fact witnesses and three expert witnesses. In addition, more than 200 exhibits were introduced into evidence. Subsequently, both parties submitted Proposed Findings of Fact and Conclusions of Law, as well as post-trial briefs. The Quality Trust for Individuals with Disabilities filed an amicus brief in support of plaintiffs’ motion and for the appointment of a Special Administrator. On February 9, 2009, closing arguments were heard by the Special Masters. E. Districts’ Motions to Vacate: April 20, 2009 On April 20, 2009, shortly before the Special Masters issued a draft of their Report and Recommendation, defendants filed a motion pursuant to Federal Rule of Civil Procedure 60(b)(5) to vacate all consent orders and dismiss the case. Defendants asserted that “[cjontinued federal-court oversight is no longer equitable, as there is no question that the District has remedied the alleged constitutional and statutory violations that gave rise to the 1978 Consent Order and its progeny” and “there is no reasonable basis for asserting that the District will revert to violating the law if the Court’s orders are lifted.” (Defs.’ Mot. to Vacate Consent Orders and Dismiss Action at 1, Apr. 20, 2009.) For the first time, in a litigation that has been ongoing for more than 30 years and despite repeated promises to comply with the existing Court orders, defendants took the position that their noneompliance was irrelevant to the question of whether the Court should continue enforcing its orders because those orders went “beyond minimum standards necessary to satisfy constitutional requirements.” {Id. at 3.) In a minute order filed on May 1, 2009, the Court advised the parties that no opposition to defendants’ motion should be filed because it intended to hold it in abeyance until it received the Special Masters’ final Report and Recommendation. F. Special Masters’ Report and Recommendations On May 22, 2009, the Special Masters circulated, as required by the 2007 Supplemental Order of Reference, a draft of their proposed findings of fact and conclusions of law for comment. In that draft, the Special Masters “recommended that the Court’s 2004 Order be amended to provide for a Special Compliance Officer to be jointly appointed by the Court and the Mayor with enhanced authority to coordinate and direct the activities of the various District agencies urgently needed to deliver constitutionally acceptable services to the plaintiff class.” (2009 Special Masters’ Report at 4.) The draft recommended “that the Court appoint the Deputy Director of DDS/DDA, Laura Nuss, as the Special Compliance Officer merging in one person the legal responsibility under local law with the responsibilities and authority to be conferred by the Court, to lead defendants’ efforts to achieve compliance with the court orders.” {Id. at 135.) The Special Masters believed that “this least intrusive, and least expensive, remedy was most likely ... to achieve compliance with Court Orders.” {Id. at 4.) However, this remedy “required the Mayor’s agreement.” {Id.) On July 6, 2009, the parties filed their comments on and objections to the draft report. Defendants’ comments indicated that the Mayor would not agree to the proposal to appoint a Special Compliance Officer, making that remedy “no longer a viable one.” {Id. at 135.) On August 14, 2009, the Special Masters filed their final Report and Recommendations, based on the record from November 29, 2006, the close of the record for the liability phase, through December 2008, when they closed the record before them. {Id. at 3.) As described herein, the Special Masters found that “plaintiffs had proved by clear and convincing evidence that defendants continue to be in serious noncompliance with critical provisions of outstanding court orders” in the areas of health, safety, and welfare. {Id.) They recommended as a remedy the appointment of an “Independent Compliance Administrator accountable only to the Court to supervise and coordinate defendants’ serial compliance with individual court ordered obligations so that the suit may be dismissed in three years time or less.” (Id. at 4-5). 1. Findings of Fact and Conclusions of Law a. Health In the area of health, the Special Masters found that defendants were noncom-pliant in several significant respects. First, regarding medical care, they found that defendants had “failed to completely perform some or all of the following duties”: “documenting significant health problems in class members’ health management plans; monitoring implementation of health plans; implementing recommendations put forward by class members’ physicians and medical specialists and completing lab work and physician-ordered diagnostic tests.” (Id. at 26-27.) Thus, they concluded: The evidence in the record indicates that a significant portion of the plaintiff class have health care needs that are not identified in their health plans. Furthermore, too often needs identified in health plans are not met because health plans are not implemented — i.e. diagnostic tests, consultations and treatments and follow up appointments are not provided or documented in their health records. (Id. at 31.) The Special Masters also found “ongoing and significant problems with the delivery of timely and appropriate mental health and behavioral healthcare.” (Id. at 35.) These problems included: a) lack of access to sufficient psychiatric and psychological services; b) improper professional practices that are inconsistent with professional standards; c) recommended clinical therapies not being implemented; d) the failure to integrate the use of psychotropic medications into an overall treatment plan; e) the failure to obtain informed consent and approval from Human Rights Committees for use of these restrictive measures; and f) the lack of monitoring of the usage and side effects of psychotropic medications. (Id.) Finally, the Special Masters found that “delays in obtaining guardianship for the provision of informed consent for medical and dental treatment of class members ... have continued” (id. at 45), sometimes “for months, sometimes more than a year, after the need for a guardian is first identified.” (Id. at 50.) As a result, treatment is delayed and class members suffer harmful consequences. (Id. at 49-50.) Based on these findings, the Special Masters concluded that “plaintiffs have established by clear and convincing evidence” that defendants continue “to be in non-compliance with ... outstanding consent orders” with regard to (1) “class members’ health” (id. at 31); (2) “mental and behavioral health care” (id. at 41-42); and (3) timely appointment of guardians. (Id. at 49-50.) b. Safety and Protection from Harm The Special Masters found the following problems with respect to defendants’ obligations to ensure plaintiffs’ safety and protection from harm: (1) “a significant number of untimely investigations” into “serious reportable incidents” and deaths (id. at 52-53); (2) “some IMEU reports continue to fail to thoroughly investigate serious reportable incidents” (id. at 54); (3) except for Level I incidents, “the investigation report format does not inquire about potential causes and contributory factors leading to the incident under investigation” (id. at 56); (4) an inability to “identify] and address[ ] systemic issues arising in investigations” (id. at 57); (5) “numerous instances of providers filing late incident reports or no reports at all, conducting inadequate investigations, or failing to conduct required investigations with no recommendations for or evidence of enforcement actions being taken in response to these deficiencies” (id. at 60); (6) “[ijncidents of harm ..., including serious physical injury, physical abuse and neglect” (id. at 60); (7) harm resulting from “delays in treatment due to problems with getting informed consent” (id. at 61); (8) “harm due to inadequate health care management” (id.); and (9) harm resulting from problems with the District’s “transportation broker contract.” (Id. at 64). Based on these findings, the Special Masters concluded that “while there are some nascent signs of progress in a few areas,” there was “clear and convincing evidence that the problems being experienced by class members in the area of safety and protection from harm are continuing, serious and systemic.” (Id. at 67.) c. Welfare In terms of court orders concerning plaintiffs “welfare,” the Special Masters found the plaintiffs had “not sustained their burden of proving by clear and convincing evidence non-compliance with court orders requiring residential placements in less restrictive settings” (id. at 72); with court orders requiring that “all class members have written ISPs containing current habilitation plans, behavioral support plans and health plans” (id. at 78); or with court orders requiring a minimum of eight visits per year by a service coordinator/case manager. (Id. at 82). However, they did find continuing problems in the following areas: (1) segregated day programs with arts and crafts as the primary activity and a lack of opportunity for community experiences (id. at 73-74); (2) supported employment (id. at 74); (3) implementation of ISPs (id. at 77-79); and (4) service coordinators not ensuring that ISPs are fully implemented or following up when they are not. (Id. at 81-84.) Based on these findings, the Special Masters concluded that there is “clear and convincing evidence” that defendants have “not met their obligation ... to provide adequate habilitation in non-residential, least restrictive, community-integrated settings” (id. at 74), or to “[pjrovide 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.” (Id. at 83-84). d. Interagency Coordination As the Special Masters noted, [although the primary responsibility for providing timely and effective services and supports to class members rests with DDS/DDA, the success of this enterprise depends upon the coordinated efforts of several District agencies, including MAA/DHCF (formerly the Medical Assistance Administration (MAA) in the Department of Health (DOH) and now the Department of Health Care Finance (DHCF)), through which most of the funding is provided, the Health Regulation and Licensing Agency (HRLA) in the DOH, which is responsible for licensing and enforcement with respect to ICFs/MR, the Office of the Inspector General, which has investigative responsibilities for Medicaid fraud and abuse, the Office of Attorney General which files petitions for guardianships in court, and other agencies involved in the personnel, procurement, and budget process ... including] the Office of Contracts and Procurement, which has a significant role in the contracting process. (Id. at 84.) As described supra, the 2004 Coordination Order was aimed at improving interagency communication coordination. The Special Masters found that despite evidence of improvement, “[t]here has been little evidence submitted regarding specific compliance with [the 2004 Order].” (Id. at 90.) According to the Special Masters [w]hat is missing is evidence of leadership or coordination by the Mayor’s designee — the central point of the order — to give focus, direction and priority to interagency communication and coordination, to identify planned actions of one agency that may adversely affect the mission of another and to take proactive steps to prevent such a consequence. In the absence of evidence of such efforts, the interagency efforts at the staff level between agencies have not been consistently successful, and gaps in communication and coordination have resulted in harm to class members. (Id. at 90.) Indeed, the Special Masters found that “[t]he evidence is that leaders in the key agencies that have the most significant interagency relationship ... were unaware of the existing court order or of the responsibility of the Mayor’s designee in implementing it.” (Id. at 92.) These findings led the Special Masters to conclude that the current lack of awareness by key senior officials of the Order’s existence and its requirements, coupled with the absence of evidence of regular inter-agency meetings or communications with the Mayor’s designee regarding significant initiatives, and the evidence of breakdowns in interagency coordination leading to the problems discussed above, are all clear and convincing evidence of ongoing noncompliance with this court order which was that this Court Order has not been implemented as intended to remedy a long-standing problem of lack of interagency coordination. (Id. at 93.) 2. Remedy The Special Masters concluded “that the plaintiffs have demonstrated by clear and convincing evidence that there is a need for additional remedial measures ordered by the Court.” (Id. at 133.) Having been unsuccessful in their attempt to get defendants to agree to their first choice of remedy, and after many years of futile attempts to reach an agreement with the Fenty Administration as to a workable remedy, the Special Masters’ final report recommended the appointment of an “Independent Compliance Administrator” who “would be appointed by the Court, be accountable only to the Court and would not hold an executive appointment.” (Id. at 134.) As described by the Special Masters, the Independent Compliance Administrator would not have the same powers of a receiver but would serve as the focal point for the compliance efforts of the defendants and work in close collaboration with them, resulting in regular submissions of compliance reports as set forth in the 2001 Plan, and phased judicial disengagement from active supervision of the defendants’ developmental disabilities service system within three years. The Independent Compliance Administrator is not intended to have the powers of a receiver or to generally displace the power and authority of agency heads or subordinate officers. Rather, the authority and role of the Independent Compliance Administrator is limited to actions necessary to achieve compliance with the court orders within a three year period. All District agencies and personnel should be directed to cooperate with the Independent Compliance Administrator. If there is a lack of cooperation, or resistance or intransigence, the Independent Compliance Administrator should be required to report it immediately to the Special Masters or the Court. (Id. at 134-35.) IV. CURRENT PROCEDURAL POSTURE At a status conference on August 19, 2009, the Court set a briefing schedule for plaintiffs to respond to defendants’ motion for vacatur and dismissal, combined with a timetable for filing objections to the 2009 Special Masters’ Report. Pursuant to the Court’s order, defendants renewed their motion to vacate the consent orders and dismiss the action and combined it with their objections to the 2009 Special Masters’ Report. (Defs.’ Renewed Mot. to Vacate Consent Orders and To Dismiss Action, Oct. 7, 2009 [“Defs.’ Mot. to Vacate”].) On November 6, 2009, plaintiffs filed their opposition to that motion (combined with their endorsement of the Special Masters’ Report and Recommendations (Pis.’ Resp. to Defs.’ Objections to the Special Masters’ Report & Recommendation, and Opp’n to their Mot. to Vacate All Prior Orders and Dismiss the Case, Nov. 6, 2009 [“Pis.’ Opp’n”]). Plaintiffintervenor, the United States, and the Quality Trust, as amicus curiae, also filed oppositions to defendants’ motion. (PI. Intervenor’s Opp’n to Defs.’ Renewed Mot. to Vacate Consent Orders and To Dismiss Action, Nov. 6, 2009; Amicus Curiae Br. of Quality Trust for Individuals with Disabilities, Inc., Nov. 11, 2009 [“Quality Trust Opp’n”].) Defendants filed their reply on December 2, 2009. (Defs.’ Consolidated Reply in Support of Mot. to Vacate Consent Orders and To Dismiss Action, Dec. 2, 2009.) On December 17-18, 2009, the Court heard argument on defendants’ motions to vacate and to dismiss and on whether to adopt the 2009 Special Masters’ Report. The Court will address herein defendants’ motions and will address plaintiffs’ request that the Court adopt the 2009 Special Masters’ Report in a subsequent memorandum. ANALYSIS Defendants have moved under Federal Rule of Civil Procedure 60(b)(5), “at the conclusion of a period of monitoring not to exceed three months, to vacate the Consent Order entered on June 14, 1978 ... together with all subsequent remedial orders, and to dismiss the action.” (Defs.’ Mot. to Vacate at 1.) Rule 60(b)(5) provides that “the court may relieve a party or its legal representative from a final judgment, order, or proceeding” if “the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable .... ” Fed. R.Civ.P. 60(b)(5) (emphasis added). Defendants seek relief solely on the ground that enforcing the existing orders prospectively is “no longer equitable.” (Defs.’ Mot. to Vacate at 4.) Conceding they are not in compliance with existing court orders (see 12/17/09 Tr. at 14-16), defendants nonetheless contend that all court orders should be vacated because they have “remedied the alleged constitutional and statutory violations that gave rise to the 1978 Consent Order and its progeny, and continued federal-court oversight is therefore no longer either equitable or permissible.” (Mem. in Supp. of Defs.’ Mot. to Vacate at 3 [“Defs.’ Mem.”] (citing Horne v. Flores, — U.S. —, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009)). A party seeking modification of a judgment or order on the ground that applying it prospectively is no longer equitable “bears the burden of establishing that a significant change in circumstances warrants revision of the decree.” Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992); Horne, 129 S.Ct. at 2593. A party seeking relief “may meet its initial burden by showing ... a significant change in either factual conditions or in law.” Rufo, 502 U.S. at 384, 112 S.Ct. 748 (emphasis added); Home, 129 S.Ct. at 2593. Changed factual conditions may include when “ ‘the objects of the decree have been attained.’ ” Home, 129 S.Ct. at 2596 (quoting Frew v. Hawkins, 540 U.S. 431, 442, 124 S.Ct.