Rolland v. Patrick, Civil Action No. 98-30208-KPN.

Decision Date10 April 2007
Docket NumberCivil Action No. 98-30208-KPN.
PartiesLoretta ROLLAND, et al., Plaintiffs v. Deval PATRICK, et al., Defendants.
CourtU.S. District Court — District of Massachusetts
483 F.Supp.2d 107
Loretta ROLLAND, et al., Plaintiffs
v.
Deval PATRICK, et al., Defendants.
Civil Action No. 98-30208-KPN.
United States District Court, D. Massachusetts.
April 10, 2007.

Page 108

Cathy E. Costanzo, Steven J. Schwartz, Center for Public Representation, Matthew Engel, Disability Law Center, Inc., Northampton, MA, Frank J. Laski, Mental Health Legal Advisors Committee, Richard D. Belin, Catherine H. Wicker, Jeffrey S. Follett, Foley Hoag LLP, Boston, MA, for Plaintiffs.

William W. Porter, David A. Guberman, Deirdre Roney, Kenneth W. Salinger, Office of the Attorney General, Boston, MA, for Defendants.

MEMORANDUM AND ORDER WITH REGARD TO PLAINTIFFS' MOTION FOR NONCOMPLIANCE AND FURTHER RELIEF (Document No. 396)

NEIMAN, Chief United States Magistrate Judge.


Presently before the court is Plaintiffs' motion for noncompliance and further relief based on Defendants' alleged failure to provide "active treatment" to a class of mentally retarded and developmentally disabled individuals residing in nursing facilities. Defendants' obligation to provide active treatment to these class members has been the subject of several disputes, the last culminating in the court's order of July 23, 2003, that, no later than December 30, 2003, "Defendants must provide service plans and active treatment to each and every class member for whom specialized services is appropriate." Rolland v. Romney, 273 F.Supp.2d 140, 141 (D.Mass.2003).

In particular, Plaintiffs' motion asks that the court do the following: (1) find that Defendants have not complied with their obligations pursuant to the court's previous order; (2) require Defendants to revise the active treatment measuring device, their active treatment guidelines and the active treatment evaluation process; (3) appoint a court monitor to review each class member's service plan; (4) require Defendants to submit a quarterly report to

Page 109

the court monitor; (5) require Defendants to certify that no class member is to be admitted to a nursing facility if there is an alternative program for that individual; (6) require Defendants to certify that no class member who needs specialized services is admitted to a nursing facility which cannot provide all recommended specialized services and active treatment upon admission; and (7) require Defendants to create an appropriate community placement for each class member for whom Defendants fail to provide active treatment. In response, Defendants maintain that they are in full compliance with the court's previous order. Moreover, Defendants argue, the present dispute is not about any refusal to provide active treatment but, rather, Plaintiffs' persistent dissatisfaction with nursing facilities as a residential setting for class members with mental retardation.

After some initial skirmishing, the court established a fact cut-off date of December 31, 2005, and heard oral argument on October 4, 2006. Now, having provided Defendants the opportunity to supplement their opposition, the court has before it sufficient evidence to rule on Plaintiffs' motion. For the reasons which follow, the court will allow the motion, but not grant all the relief Plaintiffs seek.

I. BACKGROUND

In light of the importance of the issue and the extensive relief sought, the court sets forth in some detail the procedural background to the current dispute. It then turns to the particular legal and factual matters at issue.

A. Procedural Background

The court entered its first order relevant to the instant matter on March 11, 1999, when it approved the parties' interim settlement agreement. (See Document No. 71.) That agreement required Defendants to provide "specialized services" to all class members who had been determined by a Preadmission Screening and Resident Review ("PASARR") process to need such services. The interim agreement also established the following compliance schedule: by December 31, 1999, Defendants had to provide specialized services for the 858 class members who had previously been determined to need, but were not receiving, such services; by April 30, 2000, Defendants had to provide specialized services for all persons found to need these services through PASARRs conducted between July of 1998 and January of 2000; and Defendants had to offer specialized services within ninety days of admission to all persons determined to need these services after February 1, 2000.

The second relevant order was the court's approval of the parties' Settlement Agreement (Document No. 116) on January 10, 2000. See Rolland v. Cellucci, 191 F.R.D. 3 (D.Mass.2000). In applicable part, the Settlement Agreement required as follows with regard to specialized services:

The Defendants shall provide or arrange for the provision of specialized services, as defined by 42 U.S.C. § 1396r(7)(G)(iii) and 42 C.F.R. §§ 483.120, 483.440(a), to all Massachusetts residents, as defined in 42 C.F.R. §§ 483.110 & 435.403, with mental retardation or developmental disabilities who currently reside in nursing homes in the Commonwealth and who have been determined, pursuant to 42 U.S.C. § 1396r(7)(B)(ii)(II), to need such services. Consistent with the Defendants' policies and regulations, the Defendants may satisfy their obligations under this Agreement by providing class members with appropriate community residential and other supports.

Page 110

(Settlement Agreement ¶ 14.) The Settlement Agreement also established a further implementation schedule. (Id. ¶¶ 15-18.)

In response to Plaintiffs' motion, a third order issued on March 27, 2001, in which the court found Defendants in noncompliance with paragraphs 15 and 16 of the Settlement Agreement with regard to specialized services. See Rolland v. Cellucci, 138 F.Supp.2d 110, 118-19 (D.Mass.2001). The court addressed the meaning of "active treatment" and stated as follows:

At bottom, Defendants must ensure that Plaintiffs do not fall into the cracks between state-offered services and private nursing facilities. "Active treatment" is not merely aspirational. It means the same thing for residents of nursing facilities as it does for residents of institutional or community programs. That is the intent of federal law and, by incorporation, the Settlement Agreement. That is particularly important given the fact that, by operation of the Agreement, many class members who are nursing home residents will not be placed into community residences for several years to come.

Id. at 117.

The court entered its fourth relevant order on May 3, 2002. See Rolland v. Cellucci, 198 F.Supp.2d 25 (D.Mass.2002). Although the court was "reluctant to redesign the entire structure of service delivery," it required Defendants to establish and promptly implement a program of active treatment to all nursing facility residents who needed specialized services. Id. at 46. The court also required that Defendants ensure a single case manager and single treatment plan for each class member in a nursing facility, develop a measuring device for evaluating compliance with the federal active treatment mandate, and train staff accordingly. Id. Defendants appealed but did not seek a stay of the court's order. The First Circuit affirmed the court's decision on January 28, 2003. Rolland v. Romney, 318 F.3d 42, 57-58 (1st Cir.2003).

Meanwhile, on August 14, 2002, the court entered its fifth order when it found that Defendants' active treatment policy — developed in response to the May 3, 2002 order — was deficient in a number of ways, particularly its multiplicity of treatment plans. (See Document No. 333.) Finding that Defendants' policy displayed "a continued resistance to the active treatment standard" by failing to provide "all class members [with] a program of active treatment irrespective of where they receive their services," the court ordered Defendants to revise the policy with a single integrated treatment plan. (Id. at 7-10.) Defendants thereafter revised the policy and developed a Rolland Integrated Service Plan or "RISP," but that, too, was the subject of additional objections, another hearing, and further court-ordered modifications. A revised policy was issued by Defendants on December 6, 2002.

The court entered yet another order with regard to specialized services on July 23, 2003, when it refused to hold Defendants in contempt, as sought by Plaintiffs, but made "clear that, to the extent there has been any ambiguity in its previous orders, Defendants must provide service plans and active treatment to each and every class member for whom specialized services is appropriate by December 30, 2003, lest contempt sanctions thereafter be imposed." Rolland, 273 F.Supp.2d at 141. The court then issued the following warning:

[I]n implementing the May 3, 2002 order — and having more than enough time to do so — Defendants should be well aware of the heightened scrutiny which the court will exercise should Plaintiffs' concerns about active treatment remain.

Page 111

In short, while the court will deny the instant motion, it will not countenance any further delay in providing service plans and, hence, active treatment. In the words of Defendants' counsel, each member of Plaintiffs' class shall be provided active treatment by December 30, 2003, "not one day later."

Id. at 144 (emphasis added).

Presently, Plaintiffs claim that, despite the passage of time, the majority of class members still are not receiving active treatment. "Absent an exceptional remedy," Plaintiffs assert," the tortuous history of the litigation' will continue, and there will be little reality to the promise of `specialized services to the class [that] have been a long time coming at levels mandated by federal law.'" (Document No. 397 ("Plaintiffs' Brief') at 6 (quoting Rolland, 273 F.Supp.2d at 143).)

B. Factual Background

It is undisputed that since the court's last order in July of 2003 — and prior to Plaintiffs filing the present motion — Defendants conducted six...

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