JENSEN V. MN DEPT. OF HUMAN SERVICES
On Halloween 1949, Minnesota Governor Luther Youngdahl celebrated the end of the use of physical restraints in Minnesota institutions by burning 359 straitjackets, 196 cuffs, 91 straps, and 25 canvas mittens at a ceremony on the campus of Anoka State Hospital.
At the time, Youngdahl declared, “We have liberated the patients from barbarous devices and the approach which those devices symbolized…. By this action, we say to the patient that we understand them—that they need have no fears—that those around them are friends.”1 Youngdahl’s optimism was premature. The use of physical restraints and other aversive techniques, such as seclusion, continued well into the new millennium, leading to another set of lawsuits involving an institution for people with developmental disabilities in Cambridge, Minnesota.
CONDITIONS LEADING TO THE METO LAWSUIT
In April 2007, the Minnesota Office of the Ombudsman for Mental Health and Developmental Disabilities was asked to investigate a telephoned complaint about the use of physical restraints on a resident of the Minnesota Extended Treatment Options (“METO”) facility, a residential program for persons with developmental disabilities that was established by the Minnesota legislature in 1995, on the grounds of Cambridge State Hospital after the hospital was closed. The caller alleged that 4-point restraints, including metal handcuffs and leg hobbles, were being used routinely on her 18-year-old son, who had been civilly committed to the METO facility. The caller described the bruises she discovered on her son shortly after he arrived at the METO facility, raising concerns about the “treatment and aversive programming” used by METO staff, as well as the staff’s lack of regard for her authority, as his legal guardian, to withdraw her consent for the use of aversive techniques. The caller also alleged that staff members had “expressed what [the caller] believed to be threats and coercion issued by certain METO staff” if the caller refused to sign the aversive program plan. As the initial complaint was being investigated, a second complaint was lodged that alleged similar abuse.
The Office of the Ombudsman responded by conducting a year-long investigation into the allegations that included interviews with METO residents, family members, METO staff and management, case managers, and experts in the field of developmental disability. In September 2008, the Office issued its report, titled “Just Plain Wrong.”
The report concluded that METO residents were routinely restrained in a prone, face-down position and placed in metal handcuffs and leg hobbles. Investigators also learned that, in at least one case, the resident was further immobilized when staff secured the metal restraints behind his back.
Investigators also discovered that, in many cases, METO staff had not attempted to use other alternatives before resorting to use of mechanical restraints. The review found that 63% of the residents had been restrained at some point, most of those multiple times; one resident had been restrained 299 times in 2006 and 230 times in 2007.
Resident’s records indicated that mechanical restraints were used in response to what the staff termed “aggressive behavior,” including such innocuous actions as touching a staff member’s shoulder, touching a pizza box held by staff and talking about running away. The report noted that these and other behaviors “do not appear to meet any definition of aggressive or dangerous behavior.” The investigation also uncovered that residents were placed in seclusion rooms for extended periods of time and deprived of visits from family members.
JENSEN ET. AL. V. MINNESOTA DEPARTMENT OF HUMAN SERVICES, ET. AL.
On July 10, 2009, the families of three METO residents—Bradley Jensen, Thomas Allbrink, and Jason Jacobs—filed a class action lawsuit on behalf of their sons against the State of Minnesota. The lawsuit alleged that each of the men had been subjected to restraint and seclusion while confined to METO and that this improper and inhumane use of mechanical restraints and seclusion violated their constitutional rights under the Eighth Amendment (to be free from cruel and unusual punishment) and the Fourteenth Amendment (under the Due Process Clause), as well as their rights under federal and state statutes, including The Americans with Disabilities Act, and Section 504 of the Federal Rehabilitation Act.
THE JENSEN SETTLEMENT
On September 14, 2011, the parties reached a $3 million Settlement that prohibits the use of a wide range of aversive discipline practices, including mechanical restraints such as metal handcuffs, leg hobbles, cable tie cuffs, plasticuffs, flexicuffs, soft cuffs, and posey cuffs; manual restraint; prone restraint; chemical restraint; seclusion; and the use of painful techniques to change behavior through punishment of residents with developmental disabilities. Medical/chemical restraints and psychotropic/neuroleptic medications are also prohibited for punishment. (Settlement Agreement Parts V–VII.)
Following a Fairness Hearing on December 1, 2011 before U.S. District Court Judge Donovan W. Frank, the Settlement Agreement was approved on December 5, 2011.
The Settlement Agreement also requires the State of Minnesota and Department of Human Services to work together with members of the community to develop new, more appropriate policies to be used in Minnesota’s state facilities, and to form a committee to review and identify ways to modernize Minnesota’s Rule 40 (the state rule governing the way people with developmental disabilities are treated) “to reflect current best practices, including but not limited to the use of positive and social behavioral supports, and the development of placement plans consistent with the principle of the ‘most integrated setting” and “person centered planning.” (Settlement Agreement Part X.C.) The agreement also provides for another committee to develop an “Olmstead Plan” consistent with the U.S. Supreme Court’s 1999 Olmstead decision, “that uses measurable goals to increase the number of people with disabilities receiving services that best meet their individual needs and in the “Most Integrated Setting”. (Settlement Agreement Part X.B.)
In accordance with the terms of the Settlement Agreement, METO closed on June 30, 2011. However, its successor, Specialty Health—Cambridge, is obligated to comply with the terms of the Settlement Agreement, and Judge Frank retains jurisdiction over the implementation of the Settlement Agreement.
WHAT HAPPENED NEXT?
The struggle for full implementation of the Settlement Agreement continues. On July 17, 2012, Judge Frank appointed David Ferleger as independent advisor and monitor to ensure compliance with the Settlement Agreement. In doing so, he cited his concern about the progress of the implementation of the Settlement Agreement. Ferleger, an experienced court monitor and civil rights attorney, has participated in several high-profile federal disability rights case, including presenting the plaintiffs’ case to the U.S. Supreme Court in the landmark Pennhurst case. Shortly after being appointed, Mr. Ferleger discovered that METO was operating without a license. In December 2013, Judge Frank issued sanctions against the Minnesota Department of Human Services for this deficiency, again expressing his concern about the slow pace of compliance with the Settlement Agreement. [Frank Memorandum & Order, Civil. NO. 90-1775, Dec. 17, 2013.]
In September 2014, Judge Frank cited “continued delay in implementation of the Settlement Agreement” in an order expanding the authority of the Court Monitor, and extending the Court’s jurisdiction over the case to December 4, 2016. [Frank Memorandum & Order, Civil. NO. 90-1775, Sep 3, 2014.]
On October 17, 2014, Mr. Ferleger submitted a report entitled Behavioral Intervention Devices and Practices: Achieving Compliance in Community Programs, documenting continued use of restraints in violation of the settlement agreement with respect to two people: a man in a state-run home who was essentially isolated in his room 90% of the day, leaving his residence only a handful of times a year, and a woman in a state-licensed group home was repeatedly confined to a restraint chair for up to nine hours a day without food or bathroom breaks. The latter violation was also documented in an investigation by the Minnesota Department of Human Services. [Investigation Memorandum, September 9, 2014] Mr. Ferleger also offered data that “verified extensive state-wide use in the community of mechanical and other restraints, including life-threatening prone restraint.” [Frank Amended Memorandum & Order, Civil. NO. 90-1775, October 20, 2014.]
See Judge Frank’s Dec. 5, 2014 Order with respect to these two individuals. [Frank Order, Civil. NO. 09-1775, Dec. 5, 2014]
IN THE MEDIA
From The Baltimore Sun, October 17, 2013
Family Sues Over Movie Theater Death Of Man With Down Syndrome
The parents of a developmentally disabled man who died after being handcuffed at a Frederick County movie theater have sued Regal Cinemas and the county in federal court.
The lawsuit filed Thursday also names the county sheriff’s office, three deputies, and the movie theater as defendants.
Robert “Ethan” Saylor, 26, died in January after the incident at the Westview Regal Cinemas at Westview Promenade in Frederick.
In the lawsuit, Patricia and Ronald Saylor accuse the defendants of negligence, violating Ethan Saylor’s civil rights and violating the Americans with Disabilities Act.
“If any of the defendants had heeded Mr. Saylor’s aide as to how to deal with Mr. Saylor, his tragic and unnecessary death would have been avoided,” they say. Saylor had Down syndrome and an IQ of about 40, they say, and it was easy to recognize his developmental disability.
The family is seeking an undetermined amount in compensatory and punitive damages, and is requesting a jury trial.
Saylor attended a screening of the movie “Zero Dark Thirty” on Jan. 12 with an aide. He became agitated after the movie and refused to leave. Three off-duty sheriff’s deputies working as security officers handcuffed Saylor. The lawsuit says he “ended up on the floor.”
According to the sheriff’s office, Saylor suffered a “medical emergency.” The deputies removed the handcuffs, attempted CPR and called for emergency workers, the sheriff’s office said. Saylor died soon after.
A medical examiner ruled the death a homicide and found that Saylor died of positional asphyxia and excited delirium, complicated by his disability and weight. A grand jury later declined to indict the sheriff’s deputies, and an internal investigation cleared them of wrongdoing.
Saylor’s death drew national attention. In September, Gov. Martin O’Malley met with the Saylor family and said he would seek better training for law enforcement in how to respond when they encounter people with disabilities.
“That’s a welcome step, but it does not look backward and say who’s responsible and who should be accountable for what happened,” said Joseph Espo, an attorney for the Saylors. “No one’s been held accountable for Ethan’s death.”
The Saylors accuse the deputies—Richard Rochford, Scott Jewell and James Harris—of gross negligence and malice.
Daniel Karp, an attorney representing Frederick County, the sheriff’s office, and the three deputies, said the “extreme allegations” in the lawsuit were “disappointing.”
“The allegations of deliberate wrongdoing are absolutely unwarranted,” Karp said, referring to an internal sheriff’s office investigation that the office declined to release. “The officers have been exonerated. An accident occurred, and the officers were not at fault.”
Karp said many claims in the lawsuit are “exaggerated” or untrue, including an allegation that the deputies broke Saylor’s larynx.
