Lelsz v. Kavanagh

• Decision Date: 30 December 1991
• Docket Number: Civ. A. No. 3-85-2462-H.
• Citation: 783 F. Supp. 286
• Parties: John LELSZ, et al., Individually and on behalf of all others similarly situated, Plaintiffs, v. John J. KAVANAGH, M.D., et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

783 F. Supp. 286

John LELSZ, et al., Individually and on behalf of all others similarly situated, Plaintiffs, v. John J. KAVANAGH, M.D., et al., Defendants.

Civ. A. No. 3-85-2462-H.

United States District Court, N.D. Texas, Dallas Division.

December 30, 1991.

David Ferleger, Philadelphia, Pa., for plaintiffs.

Dona Hamilton, Asst. Atty. Gen., Austin, Tex., Paul Coggins, Meadows Owens Collier Reed & Coggins, Dallas, Tex., for defendants.

Garth Corbitt, Advocacy, Inc., Austin, Tex., Paul M. Smith (PART), Onek Klein & Farr, Washington, D.C., Rona Statmen, Austin, Tex., for intervenors.

MEMORANDUM OPINION AND ORDER

SANDERS, Chief Judge.

On November 25 and 26, 1991, the Court held hearings on whether to approve a proposed settlement ("Settlement Agreement") between the Plaintiff class, Defendant, and Intervenor Advocacy Inc., filed August 14, 1991. The Settlement Agreement is opposed by Intervenor Parents Association for the Retarded of Texas ("PART"), as well as by a number of class members. After careful consideration, the Court has determined that the Settlement Agreement is fair, adequate, reasonable, and in the best interests of the class. Accordingly, for the reasons set forth below, it is approved.

I. HISTORY OF THE CASE

Seventeen years ago, on November 27, 1974, the named plaintiffs filed this suit in the United States District Court for the Eastern District of Texas¹ challenging the adequacy of conditions, care, and habilitation at three of the thirteen large Texas institutions for the mentally retarded. In 1981 the case was certified under Federal Rule of Civil Procedure 23(b)(2) as a class action. The class, at that time, comprised approximately 2,400 residents of the Austin, Denton and Fort Worth state schools for the mentally retarded. Today, the class contains 5,683 members and the suit now involves a fourth state school at San Antonio.

In their "Second Amended Complaint," upon which certification was based, Plaintiffs alleged that the defendants had effectively forced them into large regimented institutions by failing to provide less restrictive alternatives. They alleged further that the care received in the large institutions was wholly inadequate and violative of the rights guaranteed them by the due process clause of the fourteenth amendment to the Constitution of the United States.²

Plaintiffs specifically alleged that they had been denied individualized, appropriate habilitative services; that they were treated and cared for by inadequate numbers of qualified staff; that they had been subjected to diseases, neglect, excessive medication, unnecessary restraint, unsafe buildings, inadequate medical and dental care, and physical abuse from other residents and staff. Finally, as part of their prayer for relief, Plaintiffs requested that the three named institutions be closed because, they argued, legally adequate care and habilitation could not possibly be dispensed in a large institutional setting.

In 1983, the parties reached a settlement. That settlement, termed the Resolution and Settlement ("R & S"), was a broadly-worded document designed to provide a "final resolution of the defendants' obligations towards the members of the plaintiff class and of the issues raised by this litigation." R & S at ¶ 5. Approved by the Court on July 19, 1983, the R & S imposed obligations on the State to reach minimally adequate goals in a wide range of areas pertaining to the care and treatment of the mentally retarded in Texas. Additionally, the R & S called for the appointment of an Expert Consultant to monitor the implementation of the R & S. R & S at ¶¶ 25, 36. The Plaintiffs and Defendants later agreed that Linda O'Neall should be appointed Expert Consultant; she has continuously served in that capacity since her appointment on March 19, 1984.

The R & S contained no provision for the closure of any schools. It did, however, impose an obligation on the State to use "best efforts to overcome all obstacles and barriers to the creation of facilities and programs for habilitation outside the institution ..." R & S at ¶ 9. More specifically, the R & S required the State to "provide each member of the plaintiff class with the least restrictive alternative living conditions possible consistent with the person's particular circumstances, including age, degree of retardation and handicapping condition." R & S at ¶ 8.

The Fifth Circuit subsequently held that the provisions requiring habilitation in the least restrictive setting did not mandate community placements, as had been argued by the Plaintiffs and determined by this Court. Lelsz v. Kavanagh, 807 F.2d 1243, 1255 (5th Cir.1987). Instead, the Fifth Circuit held that the State's obligation under the R & S to provide habilitation in the least restrictive setting was no greater than its obligation under existing state law. For that reason, consistent with the Supreme Court's ruling in Pennhurst State School v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), the court held that the State had not waived its Eleventh Amendment defense and, therefore, a federal court lacked jurisdiction to compel the State to set up community facilities. Lelsz v. Kavanagh, 807 F.2d at 1254-55.

In the Summer of 1987, this Court held extensive hearings on the State's performance in complying with the R & S. The Court found that the State had violated numerous obligations under the R & S by failing to provide, inter alia, "required habilitation, required freedom from abuse and neglect, required individual treatment, and required safe conditions ..." Lelsz v. Kavanagh, 673 F.Supp. 828, 831 (N.D.Tex. 1987). Accordingly, the Court held the State in contempt of court.

Soon after the contempt hearings, the parties agreed to an Implementation Agreement, which was designed to provide the State with clear and concrete standards by which it could achieve compliance with the R & S. See Implementation Agreement, filed October 15, 1987. The Implementation Agreement contains 45 paragraphs that specifically outline the State's remaining obligations in the suit. Paragraphs 1 through 4 state the conditions for accreditation by the Accreditation Council on Developmental Disabilities ("ACDD"). ACDD is the generally accepted national authority on standards for the quality of services provided for persons with developmental disabilities. Paragraphs 5 through 10, referred to as the "Interim Measures," contain perhaps the most important of the State's obligations. The Interim Measures establish minimum standards for the delivery of professional services in the Texas state schools. Those services include medical, psychological, and educational services, as well as institutional protections against abuse, neglect, and injury. Paragraphs 11 through 24, often referred to as the "upper paragraphs," establish a variety of other requirements designed to improve the quality of care within the state schools. Paragraphs 25 through 40 address a different issue; they address the quality of placements and standards of care in the State's community programs for the mentally retarded. Finally, paragraphs 41 through 45 direct the State to provide the Expert Consultant and the Court with reports detailing various aspects of the treatment received by class members and the State's compliance with the Implementation Agreement.

Since Fall 1987, when the Implementation Agreement went into effect, the Expert Consultant has been monitoring the state's compliance with the Implementation Agreement. By design, once the State fully complies with the Implementation Agreement, all Court oversight ends and the lawsuit is dismissed. Regrettably, reaching such a conclusion to the suit has been a difficult process, both for the State to implement and for the Court to monitor.

The last four years have seen numerous battles between the parties over the meaning of "compliance" and the meaning of various paragraphs of the Implementation Agreement. These battles threatened to culminate in a contempt hearing originally set for Summer 1991. The prospect of such a hearing created added impetus, particularly on behalf of the State, to reach a new settlement, a settlement which truly represented a final end to this protracted litigation.

II. THE SETTLEMENT AGREEMENT

On August 14, 1991, three of the four existing parties to this suit presented to the Court for preliminary approval the Settlement Agreement now at issue. Joining in the Settlement Agreement were the State, the Plaintiffs (as represented by class counsel, David Ferleger), and one of the two intervenors, Advocacy, Incorporated. The other intervenor, PART did not join in the Settlement Agreement and now opposes its final approval by the Court.

On September 13, 1991 the Court preliminarily approved the Settlement Agreement and ordered distribution of notice to class members pursuant to Federal Rule of Civil Procedure 23(e). The notices were provided publicly through newspapers (of general circulation in four cities) and state school bulletin board announcements and personally through letter or verbal explanation as determined most appropriate for the individuals being provided notice.³ Notice, through all means, was effectuated no later than September 27, 1991. See Notice Stipulation, filed November 25, 1991. None of the four parties to the suit has challenged the adequacy of the notice or notice procedures in this case.

By the terms of the notice, objections were to be filed by November 4, 1991. A total of 522 letters were received in response to the notices. Of the 522 letters, approximately 370 were objections from persons on behalf of class members. Thus, approximately 6.5 percent of the 5,683 class members objected to some aspect of the settlement.

If approved by the Court, the Settlement Agreement would supersede the Implementation Agreement that now governs the lawsuit. Settlement Agreement ¶ 12. For that reason, the arguments over whether the...