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June 13, 1997

WILLIAM DIXON, et al., Plaintiffs,
MARION BARRY, JR., et al., Defendants.

The opinion of the court was delivered by: ROBINSON

 This matter is before the Court on Plaintiffs' Motion for Appointment of a Receiver. This case involves the obligation of the District of Columbia (the "District") to create an integrated community based mental health system for the treatment of the mentally ill. This case has been pending for over twenty two years. Unfortunately, during that time period, the District has been unable or unwilling to comply with the Court's orders. Accordingly, as a final, drastic attempt to effectuate the Court's orders, Plaintiffs seek the appointment of a receiver to take charge of the District's Commission on Mental Health Services ("CMHS"). The District vehemently oppose the receivership, claiming that there is neither a legal nor factual basis for its imposition. Upon consideration of the pleadings filed by the parties, the testimony given at a hearing held in this matter from April 14-18, 1997, and the entire record herein, the Court makes the following findings of fact and conclusions of law.


 A. The Initial Dixon Decrees

 The Court's involvement in the District's mental health system began in 1974, when the Plaintiff class filed this lawsuit. Plaintiffs are individuals who are or may be hospitalized in a public hospital under the District of Columbia's 1964 Hospitalization of the Mentally Ill Act, D.C. Code Section 21-501 et. seq., and who need out placement from the public hospital to alternative care facilities. In summary, Plaintiffs have mental illnesses that are not severe enough to require institutionalization. Rather, Plaintiffs require treatment and other associated services, like housing, in the community. There are approximately eight to ten thousand members of the Plaintiff class.

 When Plaintiffs filed this lawsuit, Defendants included both local and federal government officials with authority over the District's mental health system. At that time, Defendants' mental health system was focused on St. Elizabeth's Hospital (the "Hospital"). As such, the great majority of the District's mental health patients were treated in the Hospital. Plaintiffs' lawsuit sought to determine whether this practice violated statutory or constitutional rights of individuals to appropriate treatment in alternative care facilities. At the time of the Court's initial decision in this case, Defendants' clinical staff members estimated that 43% of individuals confined in the Hospital required treatment outside of the Hospital.

 In 1975, this Court granted partial summary judgment in favor of Plaintiffs. See generally Dixon v. Weinberger, 405 F. Supp. 974 (D.D.C. 1975). The Court first determined that Plaintiffs had a statutory right to community based treatment in the least restrictive means. As the Court noted, "the fundamental goal of the 1964 Act was to return the mentally ill through care and treatment to a full and productive life in the community as soon as possible, given the patients' conditions." Id. at 976 (footnote omitted). Moreover, Plaintiffs' right to "medical and psychiatric care and treatment" pursuant to D.C. Code Section 21-562 included a right to adequate, individualized treatment based upon each patient's specific needs. Id. at 977. The Court then concluded that adequate treatment included treatment in alternative facilities when the Hospital determined that such treatment was appropriate. Id. at 978.

 After determining that Plaintiffs had a statutory right to alternative care treatment, the Court next determined whether the responsibility to care for patients in alternative facilities was that of the federal or local government. Id. at 976. The Court found, given the funding structure of the Hospital and the requirements and legislative history of the 1964 Act, "that the duty to effect placement in alternative facilities where appropriate is a joint one." Id. at 979.

 Once the Court had determined that there was a statutory right to community based treatment in the least restrictive means, *fn1" the parties began the process of determining how to effectuate that right. Thus began the process during which the parties worked together to craft methods of implementing the Dixon Decree. On February 1, 1979, Defendants submitted to the Court a proposed implementation plan. PX 28, at 1. Subsequent to Defendants' filing, the parties began to negotiate and resolve various details regarding the plan. As a result of the negotiation process, and, for the first of many times during the course of the litigation, the parties--Plaintiffs and Defendants--asked the Court to enter a consent decree upon which they had agreed. This led to the 1980 Consent Order and Final Implementation Plan ("1980 Order"). See generally id.

 The purpose of the 1980 Order was to "establish[] a comprehensive system for appropriate residential care and for the provision of the kind and amount of mental health, medical and support services needed by each member of the plaintiff class in the least restrictive setting." Id., at 2. The 1980 Order established the framework for reaching compliance by:

* Requiring Defendants to conduct a needs assessment of members of the class to evaluate what level of services each member required, and to submit to the court a plan describing in what method the Plaintiffs' needs would be met. Id at 3-4.
* Holding government administrators of the mental health system responsible to implement the plan, and requiring that the officials "give priority to implementation of the Plan . . . to achieve the goal of full compliance with the Court's mandate." Id. at 5.
* Requiring Defendants to submit periodic reports to the Court. Id. at 6-7.
* Creating the "Plaintiff's Implementation Monitoring Committee," *fn2" paid for by Defendants, to "act as [Plaintiffs'] agents to receive reports, conduct evaluations and investigations, and to assist plaintiff's attorneys in negotiations with defendants concerning implementation of the Plan." Id. at 7-8.
* Requiring the parties to negotiate among themselves any disagreements about the implementation plan before presenting any dispute to the Court. Id. at 9.
* Requiring that "Defendants shall take all actions necessary to secure full implementation of the Plan and this Consent Order including coordinating with other agencies and officials of the federal and District of Columbia governments." Id. at 10.

 The 1980 Order anticipated a completion date of December 31, 1985. While the Court saw the 1980 Order as the beginning of the end of the litigation, in hindsight, it is clear that the 1980 Order was only the beginning.

 B. The 1988 Transfer Act

 In 1984, the United States Congress transferred authority over the Hospital to the District of Columbia. Saint Elizabeths Hospital and District of Columbia Mental Health Services Act, Pub. L. No. 98-621, 98 Stat 3369 (codified at 24 U.S.C. §§ 225 et seq.). In so doing, Congress decided that the responsibility over the local mental health system should be borne by the District. 24 U.S.C. § 225b(a)(1) ("Effective October 1, 1987, the District shall be responsible for the provision of mental health services to residents of the District."). Thus, Congress overturned the Court's determination that the responsibility to implement the Dixon Decree was shared by the District and Federal governments.

 C. The 1992 Service Development Plan

 Notwithstanding the Court's view that five years would be sufficient to implement the Dixon Decree, the District of Columbia remained wholly unable to do so. Between the Final Plan and 1992, community based treatment for class members in the least restrictive means proved difficult, if not impossible, to achieve. However, the parties made substantial efforts to work together to implement the Final Plan. As a result, the Court approved additional consent orders in March 1997 and June 1989 in an effort to facilitate compliance. However, by 1992, it became clear that the approach of the Court's prior consent orders was unable to help the District achieve compliance with the Dixon Decree.

 Accordingly, the Court and the parties modified the method used to ensure the District's compliance with the Dixon Decree. In January 1992, the Court entered another Consent Order. However, this Consent Order was accompanied by a Service Development Plan ("SDP"). See generally PX 26 (Consent Order and SDP). The SDP was the product of "extended and detailed negotiations." PX 25, at 2. The SDP represented a different strategy: "Unlike previous implementation plans that have been negotiated by the parties in the Dixon litigation, the SDP set forth in detail the types and numbers of programs targeted for development and establishes a sequential timetable for implementation." PX 26, at 1. Thus, the SDP recognized "that prior orders of the court did not fully detail either the types or amounts of programs needed, nor a step-by-step time frame for development." Id. at 5. Conversely, the SDP "sets forth in detail the types and numbers of programs targeted for development." Id.

 The SDP's focus was on four "at risk" subgroups of the Dixon class: adult residents of the Hospital, elder resident of the Hospital, adults and elders who pose a risk of rehospitalization, and mentally ill and homeless individuals. Id. at 16. More specifically, the SDP required that, within five years, the District would:

* Develop and implement appropriate treatment for 164 elders who were currently at the Hospital;
* Develop and implement appropriate treatment for 447 adults who were currently at the Hospital;
* Develop and implement treatment by Mobile Community Outreach and Treatment Services ("MCOTT teams") for 20% of the class; and
* Develop and implement appropriate treatment for 2,500 homeless class members.

 Id. at 3. More specifically, the SDP included implementation tables that detailed the obligations of the District for Fiscal Year 1992 (Table 6) and 1993-1997 (Table 7). Id. at 27-28. Thus, the SDP outlined "a sequential process to phase in new service capacity." PX 25, at 2.

 The SDP continued the monitoring role of the DIMC. PX 26, order, at 18-19. In addition, the Court appointed a technical expert to "oversee" the implementation of the SDP. Id. at 14-18. Although very detailed, the SDP represented only a limited portion of the District's obligation to provide a community based mental health system for the mentally ill. See, e.g., PX 26, SDP, at 3 ("It is important to note that the Plan does not address the continuing need to restructure and improve services for other Dixon class members or other clients of the district's mental health care system."). However, the Court and the parties hoped that the SDP would provide a roadmap for the District's full compliance with the Dixon Decree.

 As the Court has recognized many times in this litigation, the past is prologue to the future, and, the District failed to meet its obligations under the first year of the SDP. PX 25, at 3. These first year objectives were essential goals upon which future year's implementation targets could be based. Id. The Court determined that "the evidence is overwhelming that the District failed to meet its 1992 obligations under the 1992 Consent Order and Plan." Id. at 5. The Court so found notwithstanding the commitment made by the District, and the fact that there was sufficient funding. Id.

 As a result of this lack of compliance with the SDP, Plaintiffs moved for the appointment of a special master. In granting Plaintiff's motion, the Court stated, in what is particularly foreboding for today, the following:

The District's failure to fulfill its obligations under the 1992 consent Order and Plan stem from incapacity, not unwillingness, to do what it had agreed to do and when it was supposed to do it. This failure is consistent with its past failures. Its efforts have not been lacking, but they have been insufficient, ineffective and untimely. . . . However, [the Court declares] emphatically that twelve years is long enough for the District to perfect and effectuate a system which protects the legal rights and lives of the mentally ill in the community consistent with its statutory mandate and the Judgment of this Court.
Because the District's failure to meet its 1992 obligations under the 1992 Consent Order is not an aberration but a continuation of past practices, the appointment of a special master is appropriate. This is especially true where the District has demonstrated that it can work diligently to meet its obligations under consent agreements when it is threatened with the Court's contempt powers.

 PX 25, at 7-8. Accordingly, the Court appointed Dr. Danna Mauch, Ph.D., who had previously served as the expert technical advisor under the 1992 Order, as Special Master. Id. at 8.

 The Court designed the Office of the Special Master to facilitate and oversee the District's efforts to implement the 1992 Consent Order, SDP, and prior court orders. The Special Master's powers included the ability to require compliance reports, review and comment on implementation plans prior to implementation, make formal and informal recommendations to the parties, mediate disputes between the parties, and periodically report to the Court. PX 25.

 E. The Phase I and Phase II Agreements

 Despite the assistance of the Special Master, the District continued to fail to comply with its obligations under the SDP. As a result, in March 1995, Plaintiffs filed a Motion for the Expansion of the Powers of the Special Master. PX 23. Plaintiffs' Motion was based upon the Special Master's March 1995 report to the Court. According to Plaintiffs, that report "explains that for a variety of reasons--primarily because of a demonstrated inability to eliminate long-identified barriers to compliance--the District has again failed to achieve compliance with this Court's orders and accompanying SDP." PX 23, memorandum, at 1. Plaintiffs sought to increase the Special Master's powers to that of a receiver.

 After the District responded to Plaintiffs' motion, the parties negotiated a settlement of the motion, called the Phase I agreement (or 120 day agreement), which the Court entered on May 25, 1995. PX 22. The Phase I agreement outlined steps to achieve compliance on outstanding 1993, 1994, and 1995 SDP objectives on new service capacity for residential and support services. The District also agreed to increase the outpatient services budget by $ 12 million, and to hire consultants to review the MCOTT program and management of the CMHS. The District had 120 days to reach these objectives, and failure to do so would subject the District to a specific schedule of fines set forth in the agreement. Additionally, and most significantly, Mayor Barry became involved in the treatment of his city's mentally ill citizens, personally and publicly committing to comply with the SDP. PX 22.

 As a result of the progress made under the Phase I agreement, the parties negotiated and entered into a second agreement, known as the Phase II agreement. Id. Under that agreement, entered by the Court on February 7, 1996, Plaintiffs dismissed their motion for a receivership. The Phase II agreement, while significantly broader in scope, continued the strategy of the Phase I agreement. The Phase II agreement established a series of specific and identifiable objectives, including implementing the recommendations of the management audit, hiring personnel, establishing two new MCOTT teams, development of a Homeless Service Plan, and development of a Quality Improvement committee and plan.

 The success of the Phase I agreement was, as could be expected, short-lived. The District was unable to sustain and carry out its good intentions under the Phase II agreement. In early 1996, the Court was forced on several occasions to bring the parties into Court to ensure timely payments by the District to service providers. In addition, the Court heard testimony in April 1996 regarding the persistent failure of the District to correct its contract procedures. Moreover, many of the agreed upon deadlines passed, and many of the goals of the Phase II agreement passed without achievement.

 As a result, the parties met on August 16, 1996, in which the District admitted that it was substantially not in compliance with the Phase II agreement. PX 15. The District also promised to immediately correct the situation. They failed to do so to the Plaintiffs' satisfaction, and, as a result of the District's persistent noncompliance with the Dixon Decree, Plaintiffs again filed for receivership on December 17, 1996.

 F. Activities Surrounding the Filing of Plaintiffs' Motion for Appointment of a Receiver

 When it became evident that Plaintiffs intended to pursue their Motion for Appointment of a Receiver, the District began to make what for it were lighting quick changes in the CMHS. These changes were an obvious effort to forestall the Court's use of its equitable powers. Most significantly, the Mayor issued two executive orders, Numbers 96-172 (December 9, 1996), DX 1, and 97-6 (January 9, 1997), DX 2, that reiterated the District's commitment to meeting the Dixon Decree. More specifically, the Orders attempted to resolve some of the procurement, contracting, and personnel problems by delegating to the Commissioner of Mental Health Services procurement authority over Dixon-related services, and personnel authority over Dixon-related employees. DX 1, at 1-3. Finally, the Mayor's Orders created the position of Dixon Administrator to provide a leadership position directly responsible for facilitating and overseeing compliance with the Court's Orders. DX 1, at 3. *fn3"


 The District is, in short, substantially noncompliant with the Dixon Decree, and, more specifically, the SDP, as modified by subsequent agreements. During the hearing, several witnesses testified that, in general, the District has fallen woefully short of its obligations. For example, the Court's Special Master, Dr. Danna Mauch, testified at great length and detail about the District's failure to implement the SDP and Phase I and II Agreements. Her report, Plaintiffs' Exhibit 300, is comprehensive and tracks developments in compliance from 1992 through April 1997. Her assessment is that

At the present time, significant gaps in compliance continue which are harmful to Dixon class members, particularly the most vulnerable individuals who are elderly, at high risk or homeless and seriously mentally ill. As this Report to the Court further details, there are gross deficiencies in treatment practice and therapeutic environment at St. Elizabeths Hospital, certain community mental health centers and certain provider contracted programs. Combined with the harmful gaps in service development and the deteriorated management in the District, urgent action by the Court is required to assure the safety and care of Dixon class members.

 PX 300, at 3. Similarly, DIMC Coordinator Robert Moon testified that the District has largely failed to comply with its SDP service expansion obligations. He indicated that where the District has met numerical targets, there are concerns about quality. The District has also done a poor job of maintaining existing services. Longstanding contracting and provider payment problems have resulted in service quality erosion and in some cases provider closures. Physical plant and staff hiring and retention problems have negatively impacted the performance of Commission-run services. Similarly, other witness testified that the District has substantially failed to meet the needs of the four targeted subgroups and to create a cohesive system of services.

 From a purely quantitative standpoint, the one lone bright spot for the District is with respect to placements of class members out of the Hospital into the community. Over the five years of SDP implementation (January 27, 1992 - January 27, 1997), the District agreed to transfer a total of 611 class members, comprised of 447 targeted adults and 164 elders from St. Elizabeths, into homes in the community and to provide them individualized treatment and support. The District has exceeded the target by 20 class member placements for a total of 631 placements in compliance with SDP requirements. However, as detailed below, the District accomplished this objective by placing fewer adults and more elders than required, and there are major concerns regarding the quality of the placements.

 The following is a discussion of the District's obligations with respect to the four groups targeted by the SDP, as amended by subsequent agreements. However, even if the District were in full compliance with these targets, compliance with the full mandate of the Dixon Decree would not necessarily follow. The SDP's obligations represent only a portion of what is required to create a truly integrated community based mental health system.

 A. Adults

 The record clearly indicates that adult class members' treatment needs are not being serviced by the District. Based on Plaintiffs' Exhibit 79, Mr. Moon testified that a substantial decrease in service volume at the Community Mental Health Centers (CMHCs) and in private provider services, a reduction of approximately 41,000 visits in Fiscal Year 1996, indicated that class members were probably not receiving adequate treatment services. Overall, Mr. Moon testified that he found significant noncompliance in the treatment services provided to targeted adults.

 Similarly, housing provided to targeted adults did not comply with SDP requirements. As of April 25, 1997, according to transfer summaries received from the CMHS by the DIMC, the District placed 418 adult class members in the community. Thirty-two of the 418 class members were placed out-of-state in implementation year 1993. However, because of concerns raised by the Dixon Committee about these out-of-state placements, the Special Master eliminated a number of placements from the compliance totals. As a result, the Court concludes that only 386 placements count towards SDP compliance. This leaves the District 61 placements short of the required 447 placements of targeted adults.

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