Strides in Minn. Care of Disabled Hard to Verify

ST. PAUL, Minn. (CN) - Minnesota appears to be complying with a settlement agreement related to the state's care of disabled individuals, but the criteria for evaluating compliance leave a lot to be desired, a federal judge ruled.

U.S. District Judge Donovan Frank announced that conclusion after evaluating the ninth update of Minnesota's compliance with the settlement in Jensen. v. DHS, a 2009 class action focusing on the care of disabled individuals in state-run facilities.

Jensen accused Minnesota of improperly restraining and secluding as many as 300 patients with developmental disabilities in a residential facility.

Judge Frank approved the state's Olmstead plan, named for the landmark 1999 Supreme Court case, Olmstead v. L.C., on Sept. 29, 2015.

In Olmstead the Supreme Court found the unjustified segregation of people with disabilities is a form of unlawful discrimination under the Americans with Disabilities Act.

While the parties mediated aspects of the case last year, the state's reporting requirement on compliance with the terms of the settlement was stayed.

As a result, a 113-page report submitted Feb. 2 covered the period from May 1 - Sept. 30, 2015.

Judge Frank noted the state has developed a new "internal structure" to monitor compliance with the settlement.

The Jensen Implementation Office, within the Minnesota Department of Human Services, will develop a "Department Wide Quality Assurance Plan, a Jensen Implementation Office specific Quality Assurance Plan, expanded Jensen Internal Reviewer responsibilities, and start[] the process for contracting with Independent Subject Matter Experts," according to the report.

These experts will provide external evaluations of the state's compliance with the plan, Frank wrote.

But he also expressed concern, complaining the report does not go far enough to verify its current compliance - or set up a method to verify future compliance in its updates.

"Verification information should be included in the body of the report, in a separate table, or both, connecting the report information to the verification steps," the judge said. "Providing verification in the report itself will hopefully eliminate the need for the Court or the Court Monitor to independently evaluate the report content."

Frank's non-exhaustive list of examples included subject matter expert evaluation of staff training and restraint use following 911 calls, and internal evaluation of community support services.

The judge also expressed concern that while several of the "evaluation criteria" have been met, but there are no deadlines for actions to meet the remaining criteria.

Frank ended by tasking the state with clearing "public misconception" that the Olmstead plan and the Jensen settlement will limit choices for people with disabilities.

The judge cautioned against this critical view of the programs becoming a reality when he approved the Olmstead plan, advising the state in his September ruling that the plan "is not about and should not be construed as forcing the closure of certain facilities or forcing integration where it is neither appropriate nor desirable."

"Only when such misconceptions and fears are eliminated will the Class members and individuals affected by this landmark settlement agreement be able to say that their lives have truly improved," Frank wrote, noting that he has heard ongoing concerns from individuals and families.

The parties will next meet for a status update on June 6, 2016.

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