Rolland v. Cellucci

• Decision Date: 27 March 2001
• Docket Number: No. CIV. A. 98-30208-KPN.,CIV. A. 98-30208-KPN.
• Citation: 138 F.Supp.2d 110
• Parties: Loretta ROLLAND, et al., Plaintiffs v. Argeo Paul CELLUCCI, et al., Defendants
• Court: U.S. District Court — District of Massachusetts

138 F.Supp.2d 110

Loretta ROLLAND, et al., Plaintiffs v. Argeo Paul CELLUCCI, et al., Defendants

No. CIV. A. 98-30208-KPN.

United States District Court, D. Massachusetts.

March 27, 2001.

Richard D. Belin, Nima R. Eshghi, Foley, Hoag & Eliot, Boston, MA, Steven J. Schwartz, Cathy E. Costanzo, Northampton, MA, Stacie B. Siebrecht, Matthew Engel, Frank J. Laski, Christine M. Griffin, Boston, MA, for Plaintiffs.

Peter T. Wechsler, Attorney General's Office, Judith S. Yogman, Attorney General's Office, Government Bureau, Boston, MA, H. Gregory Williams, Attorney General's Office, Springfield, MA, Ginny Sinkel, Office of the Attorney General, Government Bureau, Boston, MA, for Defendants.

MEMORANDUM AND ORDER WITH REGARD TO PLAINTIFFS' MOTION FOR FURTHER RELIEF CONCERNING SPECIALIZED SERVICES (Docket No. 159)

NEIMAN, United States Magistrate Judge.

Presently before the court is Plaintiffs' motion for further relief concerning specialized services. The motion asks the court to do three things: (1) find that Defendants have not been substantially complying with portions of the parties' settlement agreement which governs specialized services, (2) lift the stay imposed by the settlement agreement with respect to specialized services, and (3) order Defendants to take certain remedial actions. When scheduling oral argument, the court indicated that it would hold a nonevidentiary hearing on the first two parts of the motion and reserve the third question for another day. Having heard argument and having considered the parties' submissions, the court, as described below, will allow the motion insofar as it seeks a finding of substantial noncompliance and will lift the stay. Plaintiffs are now free to seek appropriate relief.

I. BACKGROUND

The court will not describe the factual and procedural background of this matter, it having done so in prior memoranda. See Rolland v. Cellucci, 106 F.Supp.2d 128 (D.Mass.2000); Rolland v. Cellucci, 191 F.R.D. 3 (D.Mass.2000); Rolland v. Cellucci, 52 F.Supp.2d 231 (D.Mass.1999). Suffice it to say for purposes here that on January 10, 2000, the court approved a Settlement Agreement (Docket No. 115) brought by a class of mentally retarded and developmentally disabled individuals against certain government actors. The implementation of certain aspects of the agreement, over which the court has retained jurisdiction, is currently at issue.

By its own terms, the Settlement Agreement, although approved by the court, is "not ... enforceable by contempt or by a breach of contract action in state or federal court." (Settlement Agreement ¶ 27.) Rather, the agreement obligates Plaintiffs to first "notify Defendants of any alleged noncompliance" and to "request a meeting for the purpose of attempting to resolve the problems identified." (Id. ¶ 30.) If the meeting fails to resolve the issue, the parties are obligated to engage in at least two days of mediation. (Id. ¶ 31.) Only if mediation fails may Plaintiffs "file a motion with the Court seeking a judicial determination that Defendants are not substantially complying with the Agreement." (Id. ¶ 32.) The motion cannot be filed until at least thirty days have passed from Plaintiffs' initial notification to Defendants. (See id. ¶ 30.) If the court thereafter finds "that Defendants are not substantially complying with the Agreement[,]... it may lift the stay otherwise imposed under paragraph [twenty-eight] and the Plaintiffs may seek injunctive and other relief based upon the then existing facts and law." (Id. ¶ 32.)¹

The present issue concerns Defendants' compliance with paragraphs fifteen and sixteen of the Settlement Agreement. Taken together, these two paragraphs obligate Defendants to provide class members specialized services identified through a process known as preadmission screening and annual resident review ("PASARR"). In their entirety, the paragraphs provide as follows:

15. Of the 858 nursing facility residents, according to the PASARR evaluators, who were not receiving all specialized services recommended in their PASARR evaluations as of July 1, 1998, the Defendants shall provide or arrange for those specialized services to all such residents by December 31, 1999.

16. For all other Massachusetts residents who are class members whose PASARRs recommend specialized services, Defendants shall provide or arrange for the provision of those specialized services by April 30, 2000, or within 90 days of the individual's admission to a nursing facility, whichever is later.

(Id. ¶¶ 15, 16.)

The seeds of Plaintiffs' motion were planted on February 22, 2000, when Plaintiffs notified Defendants of their alleged noncompliance with paragraph fifteen. Mediation ensued in April. On June 1, 2000, Plaintiffs notified Defendants of their alleged noncompliance with paragraph sixteen. Further mediation took place during June of 2000. Mediation having failed, Plaintiffs now claim more formally with respect to paragraph fifteen that Defendants' own reports demonstrate that, as of December 31, 1999, a significant number of class members were not receiving all, and that some class members were not receiving any, of the specialized services they were determined to need. In addition, Plaintiffs assert that as of June 30, 2000, two months after the April 30, 2000 deadline established in paragraph sixteen for specialized services to be rendered all class members, the pattern of noncompliance continued.

II. DISCUSSION

The court will consider two issues with respect to the present motion. First, the court will determine whether Defendants were "not substantially complying with" paragraphs fifteen and sixteen of the Settlement Agreement.² If Defendants were not in such compliance, the court will consider whether it should lift the stay otherwise imposed by the agreement and allow Plaintiffs to seek further relief.

A. SUBSTANTIALLY COMPLYING

The principal issue of Defendants' substantial compliance has two subsidiary questions. The court must first determine the date on which substantial compliance must be measured. Second the court must define "substantially complying" vis a vis paragraphs fifteen and sixteen. Only then can the court resolve whether, by the date selected, Defendants were "substantially complying with" those paragraphs.

1. What is the Compliance Date?

Plaintiffs argue that Defendants' own reports demonstrate noncompliance as of both December 31, 1999, and April 30, 2000 — the dates established in paragraphs fifteen and sixteen — and that Defendants were still not in substantial compliance on June 30, 2000, as reflected in Defendants' first semi-annual report dated August 10, 2000. The latest date the court should consider for measuring non-compliance, Plaintiffs assert, is June 30, 2000.

In response, Defendants initially pointed to September 30, 2000, as of which time, they claim, later status reports show substantial compliance. (See Defendant's Opposition to Plaintiffs' Motion Alleging Noncompliance with the Settlement Agreement (Docket No. 172) at 14.)³ On December 4, 2000, however, at the commencement of oral argument, Defendants filed additional affidavits and asserted that all data prior to October 30, 2000, was stale. In reply, Plaintiffs decry the moving target with which they are faced, although they do not fault Defendants' efforts to improve the delivery of specialized services. For the reasons which follow, the court believes that June 30, 2000, is the appropriate point of measurement.

At first blush it would appear that compliance should be measured from the specific dates set forth in paragraphs fifteen and sixteen, December 31, 1999 and April 30, 2000, by which Defendants were to comply with certain obligations. Even though Defendants now argue that these deadlines were overly ambitious, it must be remembered that the Settlement Agreement was quite specific as to the numbers of class members for whom specialized services were to be provided by Defendants. Of course, were less measurable provisions of the Settlement Agreement at issue, the date of compliance may well be more fluid.

Nonetheless, the court believes that the Settlement Agreement itself, if not fairness alone, calls for some leeway. As indicated, the agreement affords the parties an opportunity to resolve any dispute through notice and mediation. (Settlement Agreement ¶¶ 30, 31.) If an identified problem is resolved through mediation, the court is no less the wiser. If mediation fails, however, the court must presume that the identified issues remain in contention at the moment of such failure and, therefore, must be resolved as of that time.

Here, Plaintiffs' notification of Defendants' alleged noncompliance with paragraphs fifteen and sixteen occurred, respectively, on February 22 and June 1, 2000. After informal meetings failed, the parties, pursuant to paragraph thirty-one of the Settlement Agreement, engaged in mediation for three days in April and June. Thus, a measuring date of June 30, 2000 follows comfortably after the agreement's notification and mediation directives. Choosing an earlier date would undermine the notification and mediation process.⁴

In addition, June 30, 2000, is the most appropriate benchmark given the issues presented. As framed, Plaintiffs' motion repeatedly refers to Defendants' semi-annual report which analyzed specialized services through June 30, 2000, (Plaintiffs' Motion for Further Relief Concerning Specialized Services (Docket No. 159) ¶¶ 8-10), despite the fact that paragraph sixteen established April 30, 2000 as the outside date of compliance. The affidavits filed in support of the motion similarly point to June 30th. (See id., Exhibits 1 (Affidavit of Elizabeth Jones) ¶ 9 (indicating that evaluation occurred "between late June and the end of July"), 2 (Affidavit of Barbara Pilarcik) ¶¶ 5 and 6 (noting that evaluation included reviewing "reports from January and July 2000" and visiting individuals "between late...