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EVANS v. WILLIAMS

March 30, 2001

JOY EVANS, ET AL., PLAINTIFFS, UNITED STATES OF AMERICA, PLAINTIFF-INTERVENOR,
V.
ANTHONY A. WILLIAMS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Harris, District Judge.

OPINION AND ORDER

On February 10, 1999, the Court issued an Opinion and Order by which it granted the motions of plaintiffs and the United States to find defendants in contempt for their failure to comply with certain earlier Orders in this case. The Court imposed contempt fines of $5,096,340.00 against defendants. In addition, the Court ordered the Special Master, in cooperation and conjunction with the parties, if possible, to develop a plan for the conclusion of this action which would address the disposition of the fines to have been paid by defendants and make suggestions for post-litigation mechanisms to ensure the protection of the plaintiff class' continuing interests in adequate habilitation. Evans v. Williams, 35 F. Supp.2d 88, 97 (D.C. 1999).

Among other things, the plan was to address:

(1) A summary and articulation of the goals of this lawsuit;

(2) The status of compliance with various Court Orders;

(3) The quality assurance methods to be developed and implemented by defendants to monitor the performance of public and private providers of service;

(4) The standards, including outcomes standards to be developed and implemented by defendants, that should be used to determine defendants' continuing compliance with Court-ordered requirements, and the way in which compliance with such standards should be measured;

(5) The degree of compliance that should be required with respect to each of the standards recommended;

(6) The steps necessary to establish permanent, objective, efficient, and effective post-termination monitoring of the programs serving consumers by independent entities; and

(7) The steps necessary to coordinate existing mechanisms and to develop needed mechanisms for the advocacy of the interests of consumers on an individual and community-wide basis.

Defendants appealed the Court's imposition of contempt fines. On March 31, 2000, the Court of Appeals reversed this Court's decision on the majority of the contempt fines. Evans v. Williams, 206 F.3d 1292 (D.C.Cir. 2000).

Pursuant to the Court's February 1999 Order, under the direction of the Special Master, Margaret G. Farrell, with the assistance of her then-consultant, Clarence J. Sundram, the parties engaged in lengthy negotiations that resulted in a series of agreements that have been presented for acceptance and approval. The documents now before the Court include:

(1) The 2001 Plan for Compliance and Conclusion of Evans v. Williams (hereinafter the Plan);

(2) A Consent Order and accompanying Settlement Agreement, filed on February 2, 2001; and

(3) The Parties' Joint Stipulated Findings of Fact, filed on December 22, 2000.

Taken together, these documents, fashioned collaboratively by the parties who are represented by able and experienced counsel, set forth a careful and detailed blueprint for achieving compliance with the Court's Orders, for the development of permanent and independent mechanisms to safeguard the rights of class members, and for the phased withdrawal of judicial oversight of the District of Columbia's mental retardation system as compliance with the Court's Orders is achieved.

The Stipulated Findings of Fact and the Consent Order — with the Settlement Agreement — will be sent for publication with this Opinion and Order. The Plan, however, is a 73-page, single-spaced document. It is summarized herein, but shall not be sent for publication.

The 2001 Plan for Compliance and Conclusion of Evans v. Williams

Responding to this Court's Order of February 10, 1999, the Plan identifies the eight goals of the existing Court Orders as follows:

(1) Appropriate individual habilitation in the community in the least separate, most integrated, and least restrictive environment;

(2) Protection from harm;

(3) Safeguarding consumers' personal possessions;

(4) Monitoring the service system;

(5) Advocacy for consumers;

(6) Adequate budget;

(7) Timely payment of vendors; and

(8) Essential systemic conditions.

For each of these broad goals of the prior Court Orders, the Plan identifies clear and measurable expectations of performance by providers of service and by the District of Columbia government. It identifies the relevant Court Orders, the specific tasks that must be performed to implement those Orders, and time frames within which the tasks must be performed. For each set of Court Orders, the Plan identifies specific outcome criteria for measuring compliance therewith. This agreement by the parties on the yardsticks to be utilized in making determinations of compliance provides clear guidance to providers as well as to the District of Columbia government in implementing the Plan. Moreover, the Plan also identifies a specific standard of compliance for each set of Court Orders, and sets forth the methods by which evidence will be collected and evaluated to assess compliance.

The Plan details a process for identifying individualized needs for services and supports, with input from class members, their families or guardians, case managers, clinical professionals and direct care staff, and advocates. It requires the aggregation of information regarding the needs for services and supports to enable its use in planning and budgeting for the overall mental retardation service system. It provides for an explicit opportunity for plaintiffs to review and comment upon the adequacy of proposed budgets to meet the needs of individuals who rely upon the mental retardation system for services and supports. Furthermore, it creates a process for external and independent monitors to have input into the budget-making process based upon their findings during monitoring of the services and supports available to individuals with mental retardation and developmental disabilities.

The Plan requires a broad range of competency-based training to be provided to staff who deliver services and supports to individuals with metal retardation and developmental disabilities. It also requires that a wide range of policies and procedures be revised and updated to reflect the goals of the Court Orders, in a process that is open and accessible to plaintiffs, the United States, and other interested stakeholders.

The Plan requires audits of the class members' accounts going back for at least ten years and includes a commitment by the District of Columbia government to repay any sums of money that may be owed to them.

The Plan creates several new safeguards for individuals with mental retardation and developmental disabilities in the District of Columbia. First, it calls for a complete revision of the existing statutes to establish in law the rights that have been declared in the Court's Orders, while also updating the laws, consistent with a set of legislative principles agreed upon by the parties, to reflect contemporary standards and practices. Second, it requires the creation of a new quality assurance program, the implementation of a new procedure for the reporting and investigation of unusual incidents, the creation of a Fatality Review Board, and the adoption of new mechanisms to prevent the misuse or overuse of control procedures such as restraints, time-outs, and psychotropic medications. Third, it recognizes that the enforcement of rights that have been legally declared requires access to effective legal and lay advocacy. A cornerstone of the Plan is the creation of a new, independent, and durable nonprofit agency called the Quality Trust for Individuals with Disabilities (the Quality Trust) and the provision of a method of financing its operations so as eventually to provide for its financial independence from the annual District of Columbia budgeting process.

Until this case is terminated, the Court Monitor also will remain as a safeguard for class members. The Plan provides for a close working relationship between the Court Monitor and the Quality Trust to avoid unnecessary duplication of effort. As defendants achieve compliance with the outcome criteria in the Plan, and the related Court Orders are vacated, the jurisdiction for monitoring conditions will shift from the Court Monitor to the Quality Trust.

While the Plan is not intended to be an independently enforceable document, the parties do intend that there will be accountability for its implementation. The Plan requires periodic progress reports to the Special Master on its implementation and calls for status conferences with the Court to be scheduled at least bimonthly. The parties agree that if the Court finds that defendants have satisfied the outcome criteria set forth in the Plan, they also will be in compliance with the related Court Orders. Any failure of defendants to implement the tasks identified in the Plan so as to meet the requirements of the related Court Orders would be evidence of noncompliance with those Orders. The Plan provides that until the existing Court Orders are vacated, plaintiffs may seek appropriate judicial relief, including requesting orders requiring compliance with the Order(s) underlying the objectives of the Plan.

Finally, the Plan provides for a phased and orderly withdrawal of judicial oversight of the District of Columbia's management of its mental retardation service system. The mechanisms set forth in the Plan provide that defendants may move the Special Master for a finding of compliance with particular Orders when they believe that they have achieved compliance. Plaintiffs and the United States have the right to object to any such motion and to have an evidentiary hearing before the Special Master. The Special Master then is to submit to the Court proposed findings of fact and conclusions of law based upon the evidence introduced during the hearing. If the Court concludes that defendants have achieved compliance, it may vacate and dismiss the related Court Order(s). Once all of the Court Orders are vacated after defendants establish that they have achieved compliance, the declaratory judgment in this case will remain.

The Consent Order and the Settlement Agreement

The Consent Order and the Settlement Agreement (with the latter being Exhibit A to the former) create an external monitoring body to permanently protect the interests of the class members once this case ends.

Consent Order. In the Consent Order, defendants have agreed to fund the Quality Trust with a total of $31.5 million over the next eleven years. Initially, defendants shall endow the Quality Trust with $11 million in order to better ensure its financial independence in carrying out its duties. The $11 million endowment is to be deposited in an interest bearing account for the sole use of the Quality Trust. So that the endowment may grow, defendants have agreed to provide $2 million in annual funding for the exclusive use of the Quality Trust for the first five full years of its existence. During that time, the endowment will be allowed to grow earnings so as to increase the principal. For the next five years, defendants have agreed to fund the Quality Trust with gradually decreasing amounts of annual funding: in 2006, $1.9 million; in 2007, $1.8 million; in 2008, $1.7 million; in 2009, $1.6 million; and in 2010, $1.5 million. If needed during this time, the annual earnings of the endowment's principal may be used as supplementary money to fund the operations of the Quality Trust. Between now and the beginning of the first fiscal year, defendants have agreed to pay to the Quality Trust an additional $2 million, prorated for the period of time left before the start of the fiscal year. Defendants have agreed to provide the Quality Trust with the residual prorated amount in 2011. The Consent Order specifies that all of the monies to be paid are to be paid in Year 2000 dollars. The Consent Order also provides for access rights to facilities, persons, documents, and other materials for the Quality Trust.

In exchange for defendants' endowment and annual funding of the Quality Trust, plaintiffs and the United States have agreed to waive all claims for past contumacious conduct of defendants as of the date of the entry of the Consent Order and approval of the Settlement Agreement. There are important exceptions to this waiver. For example, no matter what the time frame, plaintiffs and the United States have reserved the right to seek claims on class members' behalf related to: the safeguarding and/or management of the benefits, personal possessions, wages, bank accounts, and/or funds of class members; the failure to provide adequate legal representation and lay advocacy services to class members; and claims for damages based on other possible causes of action independent of the Court's Orders. To that end, defendants have agreed to push back the statutory limitation periods, thus enabling class members to bring suits for prior claims as of January 15, 1998. Plaintiffs and the United States retain the right to seek monetary or non-monetary contempt sanctions for defendants' acts after the date of the entry of the Consent Order.

Settlement Agreement. In addition to the Consent Order, the parties have negotiated a separate Settlement Agreement (Exhibit A to the Consent Order). This was necessary for a number of reasons. First, a designated member of the Quality Trust is to sign the Settlement Agreement, so that the Quality Trust will be bound by its terms. Second, the Quality Trust is to exist beyond the life of this class action. Once compliance with the existing Orders is achieved and the case is dismissed, there will be a surviving document that will enable interested parties to hold the Quality Trust accountable for advancing the interests of individuals with mental retardation and developmental disabilities.

The Settlement Agreement sets forth in detail the structure of the Quality Trust, the control and use of the funds to be provided by defendants, the obligations of the Quality Trust, and the Trust's access rights.

Approval of the Consent Order and the Settlement Agreement

The complaint in this case was filed on February 23, 1976, and it was assigned to Judge John H. Pratt. Judge Pratt granted plaintiffs' motion for class certification on June 3, 1976. On June 16, 1978, Judge Pratt issued a Final Judgment and Order, which unfortunately proved to be about as final as peace in the Balkans. Judge Pratt, long an exceptional jurist as a member of this court, died in 1995, and the case was reassigned to the undersigned on August 29 of that year. Margaret G. Farrell was appointed as Special Master on October 1, 1995; Clarence J. Sundram (who had contributed significantly to this case as a consultant) was appointed as co-Special Master on February 20, 2001.

The dispute seemed intractable until last year, towards the end of which there were commendable and extensive efforts by Mrs. Farrell, Mr. Sundram, and counsel for the parties seeking to resolve the problems faced by all. Those efforts led to the documents now before the Court. The first to have been filed was the Parties' Joint Stipulated Findings of Fact (December 22, 2000), which the Court hereby adopts. After the submission of the 2001 Plan for Compliance and Conclusion of Evans v. Williams (February 2, 2001), the Consent Order, of which Exhibit A thereto was the Settlement Agreement, was tendered. The Consent Order was approved conditionally by the undersigned on March 4, 2001, with what has been characterized as a fairness hearing having been scheduled for March 5. Prior to that hearing, proper notice duly having been given, plaintiffs' counsel met extensively with class members (and, where applicable, members of their families) and defendants' counsel met with providers of services to the class members. A hearing was held on March 5. The status of the case then was dealt with fully by the co-Special Masters and by counsel for all parties, and testimony was received from several class members and the president of The Arc of the District of Columbia. No opposition of any sort has been expressed to the very carefully designed proposals for the resolution of this case.

Under Rule 23(e) of the Federal Rules of Civil Procedure, a compromise of a class action may not be effectuated without approval of the court. This case is unusual, in that a "final judgment" in plaintiffs' favor was entered more than 20 years ago; the problem has lain in actually meeting the needs of the members of the plaintiff class. The Court commends the co-Special Masters and all counsel not only for resolving their differences, but for the exceptionally thorough manner in which they have agreed upon procedures for dealing with the problems that have persisted for so long. The Court readily concludes that the proposed compromise of the controversy, which will be of substantially greater benefit to the class than would continued litigation over how to deal with past conduct by defendants, is fair, reasonable, and adequate.

Accordingly, on consideration of all of the foregoing factors, it hereby is

ORDERED, that the Parties' Joint Stipulated Findings of Fact are adopted. It hereby further is

ORDERED, that the 2001 Plan for Compliance and Conclusion of Evans v. Williams is approved as, in effect, a statement of the conditions for the expected vacating of the Court's relevant prior Orders. It hereby further is

ORDERED, that the Consent Order formally is entered and the Settlement Agreement attached thereto is approved.

SO ORDERED.

CONSENT ORDER

I. Background

On February 10, 1999, this Court imposed contempt fines of $5,096,340.00 for Defendants' failure to comply with certain Court Orders in this case. Evans v. Williams, 35 F. Supp.2d 88 (D.C. 1999). On March 31, 2000, the United States Court of Appeals for the District of Columbia Circuit reversed and remanded this matter for further proceedings. Evans v. Williams, 206 F.3d 1292 (D.C.Cir. 2000). The Court of Appeals determined that the contempt fines were criminal in nature and could not be imposed in the absence of appropriate procedural safeguards. Id. at 1297 n. 4.

In order to address the issues still before the Court on remand, the parties have agreed to the following Consent Order. In this Consent Order, the Defendants and/or the District of Columbia agree to endow and annually fund, pursuant to the provisions below, a durable, independent, nonprofit organization that will monitor and advance the individual and collective interests of people with developmental disabilities in the District of Columbia's service delivery system, including Evans class members, in exchange for the waiver of any and all claims for past violations of the Court's Orders in this case as specified in section II of this Consent Order. The specifics of the parties' agreement are set forth below.

II. Resolution of Past Non-Compliance with the Court Orders

The parties have agreed to this Consent Order which resolves all issues related to Defendants' past non-compliance with the Orders in this case, including those related to the Court's February 10, 1999 finding of contempt and the imposition of fines, subject to the following:

A. Except as otherwise stated in this section, the Plaintiffs and the Plaintiff-Intervenor agree to waive any and all claims for past violations of the Court's Orders in this case based on Defendants' past non-compliance with the existing Court Orders in this case during the period up to and including the date of the Court's entry of this Consent Order. The parties agree that this Consent Order does not affect the previously negotiated Settlement Agreement, dated September 22, 2000, as to the Symbral Foundation and the class members receiving services therefrom. In addition, Plaintiffs do not waive the claim for costs and reimbursement for the care of class member Beverly Sutton. Plaintiffs do not waive claims regarding University Legal Services, Inc., Protection and Advocacy Program's costs, expenses and attorneys' fees in this case that may have arisen prior to the date of this Order, subject to any available defenses or objections raised by the Defendants.
B. The Plaintiffs and Plaintiff-Intervenor agree to waive any claim for damages based on Defendants' past non-compliance with the existing Court Orders in this case during the period up to and including the date of the Court's entry of this Consent Order. However, the Plaintiffs and the Plaintiff-Intervenor specifically do not waive any claim they may have for damages or equitable relief due to Defendants' conduct prior the date of the Court's entry of this Consent Order, with regard to the following categories of claims only:
1. safeguarding and/or management of the benefits, personal possessions, wages, bank accounts and/or funds of class members;
2. the failure of the Superior Court of the District of Columbia to provide legal representation and lay advocacy services as required by the Orders of this Court in this case and by statute (see Title 6 D.C.Code Section 1901 et seq.); and
3. claims by class members for damages or other relief based on causes of action independent of the Court Orders in this case. In relation to such claims only, Defendants have agreed to waive the requirements of Title 12 D.C.Code Section 309 for class members who first suffered damages on or after January 15, 1998, through the date this Order is entered by the Court, except Defendants expressly do not waive the requirements of Title 12 D.C.Code Section 309 for claims brought under wrongful death or survival statutes.
C. Nothing in this Consent Order shall be construed to prevent the Plaintiffs or Plaintiff-Intervenor from seeking equitable relief to remediate current violations (that exist as of the date of the Court's entry of this Consent Order) or new violations of this Court's Orders. Evidence of Defendants' conduct prior to the date this Order is entered by the Court shall be admissible in such proceedings, subject to any available defenses or objections raised by Defendants.
D. Nothing in this Consent Order modifies the current Court-ordered fine schedule and process with respect to findings of contempt based on violations of this Court's Orders which may occur after the Court's entry of this Order.
E. The Quality Trust shall not provide direct legal representation to class members with regard to any claims based on violations of the Court Orders in this case which occurred prior to the date this Order is entered by the Court.

III. Creation and Funding of the Quality Trust

A. The parties agree to the creation of an independent, nonprofit organization to be named the Quality Trust for Individuals with Disabilities, Inc., (hereinafter "Quality Trust" or "QT").
B. Within 15 days of the Court's entry of this Consent Order, the Quality Trust shall be incorporated as a nonprofit, 501(c)(3) corporation under the District of Columbia Nonprofit Corporation Act, approved August 6, 1962 (76 Stat. 265; D.C.Code Section 29-501 et seq.). The Quality Trust is to be incorporated as an independent entity to insulate it from control by the parties.
C. The mission and purpose of the Quality Trust is set forth in a Settlement Agreement (attached as Exhibit A) which is to be signed by the parties and a designated representative of the Quality Trust, who is legally competent to bind the Quality Trust, and filed with this Court.*fn1 The Settlement Agreement specifies that the Quality Trust will provide, inter alia, monitoring, legal services and lay advocacy services for individuals with developmental disabilities*fn2 in the District of Columbia's service delivery system.
D. Within 30 days of the filing of the Settlement Agreement signed by the Quality Trust, the Defendants and/or the District of Columbia agree to pay the sum of eleven million dollars for deposit into an interest bearing fund for the exclusive use of the Quality Trust.
E. Within 30 days of the filing of the Settlement Agreement signed by the Quality Trust, as their initial annual payment, Defendants and/or the District of Columbia shall provide the Quality Trust with annual operating funds in the amount of two million dollars, prorated for the balance of the District of Columbia's Fiscal Year 2001 which ends on September 30, 2001. On or before October 1, 2001, Defendants and/or the District of Columbia shall provide the Quality Trust with the difference between two million dollars and the prorated amount paid in Fiscal Year 2001 pursuant to the terms of this paragraph (in Year 2000 dollars).
F. Commencing October 1, 2001, for a period of five years, or until September 30, 2006, the Defendants and/or the District of Columbia shall provide the Quality Trust with annual operating funds of no less than two million dollars per year (all in Year 2000 dollars). The timing of the annual payment is set forth in paragraph III.H. below.
G. Commencing October 1, 2006, for a period of five years, or until September 30, 2011, the Defendants and/or the District of Columbia shall provide the Quality Trust with annual operating funds in the amount of 1.9 million dollars in Year 2006, 1.8 million dollars in Year 2007, 1.7 million dollars in Year 2008, 1.6 million dollars in Year 2009, and 1.5 million dollars in Year 2010 (all in Year 2000 dollars). The timing of the annual payment is set forth in paragraph III.H. below.
H. The Defendants and/or the District of Columbia shall provide annual operating funding to the Quality Trust on or before October 1 of each Fiscal Year for which the funds are intended (Fiscal Years 2001 to 2011), or as soon thereafter as the budget process will allow.
I. Nothing in this Consent Order is intended to preclude any party or the Board of Directors of the Quality Trust from advocating for funds to increase those available to the Quality Trust above two million dollars in Year 2000 dollars in any given year.

IV. Quality Trust's Right to Access and Information

A. The employees, contractors and consultants retained by the Quality Trust shall have full access to information that the Quality Trust deems reasonably necessary and appropriate in performing the monitoring and lay advocacy duties described in the Settlement Agreement. More specifically, the employees, contractors and consultants retained by the Quality Trust shall have full access to consumers, and their residences, facilities, buildings, programs, services, documents, records (including medical and departmental) and other materials that the Quality Trust deems reasonably necessary and appropriate in performing the duties of the Quality Trust's monitoring and lay advocacy functions. The Quality Trust may obtain copies of the aforementioned documents, records, and other materials. The Defendants and/or the District of Columbia shall provide the Quality Trust with information upon request relevant to individual supports and services provided in the District of Columbia's service delivery system and the Quality Trust may request written responses from the Defendants and/or the District of Columbia in this regard. Advance notice of any visit or inspection by the Quality Trust shall not be required. Representatives of the Quality Trust may conduct private interviews and meetings with any individual including employees, contractors or agents of the District of Columbia, as well as all provider staff. The Defendants and/or the District of Columbia shall require its employees, contractors, agents, as well as provider staff, to cooperate with the Quality Trust representatives.
B. Attorneys who provide direct legal representation of consumers under a contract or other arrangements with the Quality Trust shall have the right to access their clients' records and any and all information regarding their clients that flow from their attorney-client relationship. In litigation involving the Defendants and/or the District of Columbia, attorneys shall comply with the applicable rules of discovery and procedure.
The Quality Trust shall safeguard the information obtained pursuant to paragraph IV.A. above, as required by all applicable laws and Court Orders protecting the confidentiality of such information.
D. The Defendants and/or the District of Columbia shall keep the Quality Trust informed in a timely fashion of relevant budgetary information regarding the District of Columbia's Mental Retardation and Developmental Disabilities Administration ("MRDDA"), or its successor. The areas about which the Defendants and/or District of Columbia shall provide information to the Quality Trust are set forth in greater detail in the Settlement Agreement attached as Exhibit A.

V. Conclusion

Upon (1) incorporation of the Quality Trust consistent with the terms of this Consent Order, (2) Court entry of this Consent Order, (3) filing of the Settlement Agreement referenced above with the Court with signatures from the parties and the Quality Trust, (4) the Defendants' and/or the District of Columbia's payment of eleven million dollars into an interest-bearing investment fund for the exclusive use of the Quality Trust as described in paragraph III.D. above, within 30 days from the date of the filing of the Settlement Agreement signed by the Quality Trust, and (5) the Defendants' and/or District of Columbia's initial payment to the Quality Trust within 30 days of the filing the Settlement Agreement signed by the Quality Trust, of the prorated amount of two million dollars for Fiscal Year 2001 for operating funds of the Quality Trust as described in paragraph III.E. above, the Plaintiffs and Plaintiff-Intervenor shall comply with the provisions set forth in section II above, and expressly waive any and all claims for past violations of the Court's Orders in this case as specified in section II above, based on Defendants' past non-compliance with the existing Orders in this case which occurred during the period up to and including the date of this Court's entry of this Consent Order.
B. The United States does not waive its right to pursue any other claims against the Defendants or the District of Columbia with regard to disputes or claims that involve incidents or events that occurred during any period arising under laws, statutes and regulations other than the existing Court Orders in this case.

WHEREFORE, the parties to this action, having agreed to the provisions in the Consent Order set forth above, and the Court being advised in the premises, this Court hereby GRANTS CONDITIONAL APPROVAL of this Consent Order pending final approval after a fairness hearing pursuant to Rule 23 of the Federal Rules of Civil Procedure.

WHEREFORE, the parties to this action, having agreed to the provisions in the Consent Order set forth above, and the Court being advised in the premises and having concluded that this Consent Order is a fair resolution of these matters after a fairness hearing held on March 5, 2001, this Consent Order is hereby entered as the ORDER and JUDGMENT of this Court.

EXHIBIT A

SETTLEMENT AGREEMENT

Pursuant to the attached Consent Order, the parties and the Quality Trust for Individuals with Disabilities, Inc., (hereinafter the "Quality Trust" ...


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