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

• Decision Date: 16 June 2008
• Docket Number: Civil Action No. 98-30208-KPN.
• Citation: 562 F.Supp.2d 176
• Parties: Loretta HOLLAND, et al., Plaintiffs v. Deval PATRICK, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

562 F.Supp.2d 176

Loretta HOLLAND, et al., Plaintiffs v. Deval PATRICK, et al., Defendants.

Civil Action No. 98-30208-KPN.

United States District Court, D. Massachusetts.

June 16, 2008.

Cathy E. Costanzo, Matthew Engel, Steven J. Schwartz, Northampton, MA, Frank

J. Laski, Mental Health Legal Advisors Committee, Catherine H. Wicker, Jeffrey S. Follett, Foley Hoag LLP, Boston, MA, for Plaintiffs.

William W. Porter, David A. Guberman, Deirdre Roney, Attorney General's Office, Kenneth W. Salinger, Massachusetts Attorney General's Office, Boston, MA, for Defendants.

MEMORANDUM AND ORDER WITH REGARD TO THE PARTIES' JOINT MOTION TO APPROVE SETTLEMENT AGREEMENT ON ACTIVE TREATMENT (Document No. 469)

NEIMAN, United States Chief Magistrate Judge.

The instant class consists of individuals with mental retardation or other developmental disabilities who reside in nursing facilities and whose care is paid for by the Commonwealth under its Medicaid program. When this case was filed in 1998, there were approximately 1600 class members in nursing facilities. As of November 1, 2007, that population had been reduced to approximately 758 as a result of Defendants meeting community placement targets and diverting potential new class members from nursing facilities, all in accord with the original settlement agreement approved in January of 2000.¹

Defendants, however, have had significantly less success ensuring "active treatment" to class members remaining in nursing facilities in accord with the original settlement. As a result, the parties, of late, have agreed that their efforts and resources would be better spent on achieving community placements for the majority of remaining class members, rather than continuing to struggle to meet the high standards of active treatment for nursing facility residents, scattered as they are among over 290 facilities statewide. Accordingly, on April 7, 2008, Plaintiffs and Defendants moved that the court approve their proposed Settlement Agreement on Active Treatment (Document No. 468, Ex. A, hereinafter "the Agreement"), with adjustments to several dates in paragraphs 23-24 thereof. The parties expect that by late 2012, in accord with the Agreement, there will remain a relatively small number of class members who will have stayed in nursing facilities for longer than ninety days and who will be receiving active treatment. The parties also assert that class members who remain in nursing facilities pending community placement will continue to receive current levels of specialized services.

Although the parties jointly urge the court to approve the Agreement, certain parents and guardians of class members at the Seven Hills Pediatric Center ("Seven Hills") (hereafter the "Groton parents"), have asked that the court reject it.² The Groton parents, it should be noted, have also moved to decertify the class, which motion is not yet ripe. Having considered the parties' and Groton parents' submissions and after hearing witnesses and arguments at the fairness hearing on May 22, 2008, the court, at the end of the hearing, approved the Agreement and hereby more fully memorializes its reasoning.

I. STANDARD OF REVIEW

According to Fed.R.Civ.P. 23(e)(2), a class action may be settled "only with the court's approval" and the court is required to determine whether a proposed settlement is "fair, reasonable and adequate." See Duhaime v. John Hancock Mut. Life Ins. Co., 183 F.3d 1, 2 (1st Cir.1999) (citing In re Gen. Motors Corp., 55 F.3d 768, 804-19 (3d Cir.1995)). The burden is on the proponents of a settlement to make this showing. See Sylvester v. CIGNA Corp., 369 F.Supp.2d 34, 44 (D.Me.2005) (citing 7B Wright, Miller & Kane, Federal Practice & Procedure: Civil 3d § 1797.1 (2005)). Moreover, "[w]hen sufficient discovery has been provided and the parties have bargained at arms length, there is a presumption in favor of the settlement." City Partnership Co. v. Atlantic Acquisition Ltd. Partnership, 100 F.3d 1041, 1043 (1 st Cir.1996) (citing cases). In turn, the court's special responsibility to protect class members includes an evaluation of "whether the proposal, taken as a whole, is fair, adequate, reasonable and in the best interests of all those who will be affected by it." Giusti-Bravo v. U.S. Veterans Admin., 853 F.Supp. 34, 36 (D.P.R.1993) (citations omitted). Finally, although the fairness process is most commonly invoked in lieu of a trial on the merits, see generally Greenspun v. Bogan, 492 F.2d 375, 381 (1st Cir.1974), the court believes it is equally relevant to a settlement reached, as is true here, after considerable time has been spent unsuccessfully implementing prior court-ordered remedies.

II. BACKGROUND

As part of the parties' original settlement agreement in January of 2000, Defendants agreed to provide class members with specialized services. In May of 2002, however, the court found that Defendants had violated the settlement agreement by not ensuring that each class member receive active treatment, pursuant to federal law, in the provision of those services. As a result, through further orders in August and November of 2002, the court required Defendants to create a single plan for each class member (which Defendants call the "Rolland Integrated Service Plan" or "RISP") that described the individual's specialized services and provided for "carryover" of the services goals into the nursing facility.

Unfortunately, by April of 2007, the court found that Defendants still had not met their active treatment obligations, ordered the adoption of more particular standards and, in June, appointed a Court Monitor to review the care provided to each class member. With input from and with the agreement of the parties, the Court Monitor developed a detailed protocol for measuring active treatment. In her initial reviews, however, the Court Monitor found that Defendants' efforts did not come close to meeting active treatment standards. The proposed Agreement arose out of these developments.

Under the Agreement, Defendants will create and fill 640 new community placement slots for class members over the next four fiscal years (Agreement ¶¶ 4-21); continue current levels of specialized services, as well as provide individualized transition services, for class members awaiting community placement (id. ¶ 28); continue current diversion efforts and develop a corrective action plan if the number or rate of diversions falls off (id. ¶¶ 29-30); and provide "active treatment," as measured by the Court Monitor's protocol, for all class members who remain in nursing facilities at the end of the four years, as well as for class members who have been deemed unsuitable for community placement in the meantime (id. ¶¶ 24, 27). Nothing in the Agreement, the parties indicate, will require Defendants to force class members out of nursing facilities against their will.

The Agreement further provides that, in light of the increased emphasis on community placement, Defendants will not need to meet the active treatment standards presently reflected in the Court Monitor's protocol for class members who are on the community placement list and awaiting placement. (Id. ¶¶ 28, 61.) In addition, the role of the Court Monitor will be narrowed somewhat to a system of semi-annual reports and quarterly meetings. (Id. ¶¶ 31-37.) If, at the end of the four years, Defendants have in fact transitioned 640 class members from nursing facilities to the community and have implemented the recommendations of the Court Monitor to correct active treatment deficiencies for all remaining class members, the case will be dismissed. (Id. ¶¶ 33, 49-50.)

The court preliminarily approved the Agreement on April 14, 2008. Each class member was thereafter given notice of the proposed Agreement, in a form approved by the court, as well as the opportunity to submit written comments and to appear at a fairness hearing on May 22, 2008.

At the hearing, the court heard testimony from a number witnesses called by the parties, as well as from four of the Groton parents. The witnesses included Elin Howe (Commissioner of the Department of Mental Retardation (."DMR")), J.P. (a brother-in-law of a class member who had moved to a community residence), D.G. (a class member living in a community residence), Leo Sarkissian (Executive Director of the Association of Retarded Citizens ("ARC")), and four Groton parents (L.P., F.V., P.L. and T.R.). The court also considered the extensive memoranda filed by the parties, as well as the memorandum and letters submitted by the Groton parents. As indicated, the court approved the Agreement at the end of the hearing.

III. DISCUSSION

The parties assert that, by its terms, the Agreement, which they reached after arms-length negotiations, will enhance services to class members as well as significantly increase the number of community settings where the needs of many of them could be better served. The court agrees. The Agreement, in the court's view, offers substantial improvement for all class members and provides a fair, reasonable and adequate approach to problems previously identified by the parties, the court itself, and the Court Monitor. The following discussion describes the manifold advantages of the Agreement, addresses the Groton parents' concerns, and offers some concluding thoughts.

A. The Agreement's Advantages

First, the additional community placement opportunities and services for class members will likely exceed the services and incremental changes that would occur should individuals, for whom community placement is appropriate, remain in nursing facilities. As the parties articulate, staff at community-based programs operated or funded by DMR receive special training in the provision of services to individuals with mental retardation or developmental disabilities. Community based programs are also required to meet all the medical and nursing needs of residents and to have sufficient staff to...