The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
In 1976, residents of Forest Haven, then the District of Columbia's institution for persons with developmental disabilities, filed this class action alleging that they were receiving constitutionally-deficient care, treatment, education, and training. In 1978, the Court entered a consent decree pursuant to which defendants agreed that plaintiffs' constitutional rights had been violated and that they would take certain actions to remedy those violations.*fn1 A series of consent orders and remedial plans followed in which defendants admitted that they were still violating class members' constitutional rights and agreed to take additional actions to remedy those constitutional violations. The last such consent order and remedial plan was entered into in 2001, when the parties jointly agreed to a Plan for Compliance, pursuant to which defendants could demonstrate compliance with the Court's orders and terminate the litigation.
In 2006, plaintiffs filed a motion to find defendants in noncompliance and to appoint a receiver. On March 30, 2007, the Court granted that motion in part, concluding, based on extensive factual findings, that there had been "systemic, continuous, and serious noncompliance with many of the Court's Orders." Evans v. Fenty, 480 F. Supp. 2d 280, 325 (D.D.C. 2007) ("March 2007 Liability Opinion"). With respect to remedy, the Court asked the Special Masters to assist by making findings and recommendations to the Court that address, inter alia, "the current status of defendants' compliance, what are the available options for curing the identified deficiencies, and whether a receivership is the most effective and efficient remedy available to the Court." Id. at 326.
Now before the Court is the Special Masters' Report and Recommendation, which concludes that, as of December 2008, defendants were still in noncompliance with the Court's orders and recommends the appointment of an "Independent Compliance Administrator" to bring defendants into compliance and to end to this litigation. (Special Masters' Report and Recommendation Regarding A Remedy For Defendants' Noncompliance With Court Orders at 128, Aug. 14, 2009 ["2009 Special Masters' Report"].) Defendants have filed limited objections to the report and oppose the imposition of the proposed remedy;*fn2 plaintiffs have no objections to the report and ask that the Court adopt the findings of the Special Masters and their recommended remedy. Also before the Court is a motion the District filed, after the Special Masters concluded their proceedings in January 2009, to vacate all consent orders and to dismiss the entire case. For the reasons stated herein, defendants' motion to vacate and dismiss will be denied. The Court will address, in a future memorandum opinion and order, defendants' objections to the Special Masters' Report and Recommendations.
The lengthy procedural history of this litigation prior to March 30, 2007, will not be repeated here, as it was fully summarized in the Memorandum Opinion filed on that date. See Evans, 480 F. Supp. 2d at 281. Certain events, however, are relevant to defendants' pending motions and will be briefly noted below, followed by a more detailed summary of the facts and procedural history that post-date that decision.*fn3
I. KEY EVENTS PRIOR TO THE MARCH 30, 2007 LIABILITY OPINION
A. 1978 Final Judgment and Order
On June 14, 1978, the Court*fn4 entered a "Final Judgment and Order" providing for permanent injunctive relief. Evans v. Washington, 459 F. Supp. 483 (D.D.C. 1978) ("1978 Consent Order"). The 1978 Consent Order was premised on the recognition, which was consented to by the parties, that plaintiffs had federal constitutional rights under the due process clause of the Fifth Amendment "to be kept free from harm" and "to receive habilitative care and treatment in the alternative least restrictive of individual liberty" and that "violations of [those] federal constitutional rights . . . have occurred." Id. at 484. To remedy those violations, the 1978 Consent Order required defendants and their successors to take a number of specific actions, see id. at 484-90, that, loosely classified, fell into three categories: health care, safety, and welfare/habilitation. Defendants "consented to the entry of [the 1978 Consent Order] so as to assure protection of the rights of plaintiffs." Id. at 484.
In 1981, plaintiffs and plaintiff-intervenor filed motions for contempt, based on defendants' noncompliance with the 1978 Consent Order. Those motions led to the entry of a second Consent Order, which supplemented defendants' obligations under the 1978 Consent Order with a list of agreed-upon "measures necessary to the implementation of this Court's Order of June 14, 1978." (Consent Order at 1, June 25, 1981 ["1981 Consent Order"].) The 1981 Consent Order did not revisit the legal conclusions of the 1978 Consent Order nor did it "release defendants from their obligations" thereunder. (Id. at 10.) Rather, the parties came to an agreement that defendants needed to take additional measures to assure protection of plaintiffs' constitutional rights. The agreed-upon measures supplemented defendants' obligations in each area addressed by the 1978 Consent Order -- health, safety and welfare/habilitation. (Id. at 1-10.)
C. 1982 Supreme Court Decision (Youngberg v. Romeo)
In 1982, the Supreme Court decided Youngberg v. Romeo, 457 U.S. 307 (1982), addressing for the first time the constitutional rights of an individual who had been involuntarily committed to a state institution for the mentally retarded. As discussed infra, defendants' motion to vacate is based in part on the Youngberg decision and defendants' contention, made for the first time in the 28 years since Youngberg was decided, that Youngberg changed the law and established that the 1978 Consent Order rested on "extraconstitutional" rights.
In 1982, plaintiffs and plaintiff-intervenor again filed motions for contempt, which led to the entry of a third Consent Order. (Consent Order, Feb. 8, 1983 ["1983 Consent Order"]). The 1983 Consent Order similarly did not revisit the legal conclusions of the 1978 Consent Order nor did it release defendants from their obligations under prior orders; it merely added to those obligations "to assist in the implementation of those orders." (Id. at 14-15.) Again, the agreed-upon measures supplemented defendants' obligations in each area addressed by the 1978 Consent Order -- health, safety and welfare/habilitation. (Id. at 2-14.)
In 1989, plaintiffs and plaintiff-intervenor again filed motions for contempt. In 1990, the Court issued an Order holding the District in civil contempt based on its "consistent and continuing violation of the three Consent Orders [of 1978, 1981 and 1983]." Evans, 480 F. Supp. 2d at 284 (quoting Order, Jan. 30, 1990 ["Jan. 1990 Contempt Order"].) After a sanctions hearing, the Court issued an Order that, inter alia, required defendants to complete the outplacement of the 233 plaintiffs remaining at Forest Haven by September 30, 1991. Id. (citing Order, Apr. 9, 1990 ["Apr. 1990 Contempt Order"]). By October 1991, all plaintiffs had been moved from Forest Haven and the institution was closed.
F. 1995 Contempt Order, Appointment of Special Master, 1996 Remedial Plan
In 1995, four years after the closure of Forest Haven, plaintiff and plaintiff-intervenor filed motions for contempt, for remedial sanctions and for appointment of a Special Master. After two hearings, the Court again found the District to be in contempt based on "clear and convincing evidence, including defendants' conceded violations, that the District is not in compliance with the consent orders in this case . . . ." (Findings of Fact & Conclusions of Law at 7, Oct. 11, 1995 ["1995 Contempt Order"].) In its decision, the Court*fn5 observed that as of 1995, it had "entered numerous orders, including consent orders between the parties, to safeguard the rights of class members and ensure their adequate and appropriate habilitation." (Id. at 1.) The Court further noted that "[d]efendants admit that the District has a continuing responsibility to provide the class members with habilitation in accordance with their needs" and "admit that they also are required to provide adequate medical care, psychological care, day programming, community residential placements and other support systems as set forth in the class members' [individual habilitation plans]." (Id. at 5-6 (emphasis added).) The Court proceeded to find the District in contempt because it (1) was delinquent in ensuring timely payment of providers, in violation of the 1983 Consent Order; (2) permitted inadequate case manager ratios, in violation of the 1983 Consent Order; and (3) offered inadequate "community living arrangements" and "community-based day programs and services as are necessary to provide them with minimally adequate habilitation," in violation of the 1978 Consent Order. (Id. at 7-8.)
The Court further found that defendants' "history of noncompliance, compounded by the complicated and factually elusive nature of the matters under consideration," required the appointment of a "Special Master" pursuant to Federal Rule of Civil Procedure 53 to "evaluate and ensure defendants' compliance with the Court's Orders and Consent Decrees . . . and to recommend remedies for any deficiencies in defendants' compliance with the Orders." (Order of Reference at 2, Oct. 11, 1995 ["1995 Reference Order"].)*fn6
In August 1996, the Court, based on a Report and Recommendation from the Special Master, adopted a "Remedial Plan," designed "to enable defendants to come into compliance with the terms of this Court's multiple Consent Orders" and to establish the conditions by which defendants could purge their civil contempt. Evans v. Barry, No. 76-CV-293, 1996 WL 451054, at *1-*2 (D.D.C. Aug. 2, 1996) ("1996 Order & Remedial Plan"). In adopting the Remedial Plan, the Court observed that
[d]efendants have, for over two years, chronically and unapologetically violated the terms of nearly every aspect of this Court's multiple Consent Orders. Defendants' unrelenting contempt of this Court's orders, and their seeming inability to bring themselves in compliance therewith, have created chaos for the care providers vested with day-to-day responsibility for the members of this plaintiff class. The plaintiffs comprising this class, as defendants well know, are ill-equipped to adjust to or defend against the city's failure to assist their care providers in giving them the care and treatment they desperately need.
Id. at *2. The Court also warned defendants that:
the point has been reached beyond which this Court will not tolerate further and continuing incidences of contempt by defendants. Any further noncompliance with this Court's longstanding Consent Orders, and noncompliance with the Remedial Plan issued this date, must be expected by defendants to result in serious consequences.
Id. The remedial plan concerned defendants' obligations in each area addressed by the 1978 Consent Order -- health, safety and welfare/habilitation. Id. at *3-*8
In April 1997, less than a year after the Court adopted the 1996 Remedial Plan, plaintiffs moved for sanctions based on the District's admitted failure to pay providers within 30 days, as required under that Plan. In February 1999, the Court granted the motion and imposed a $5 million fine on defendants.*fn7 Evans v. Williams, 35 F. Supp. 2d 88 (D.D.C. 1999). As part of that decision, the Court modified the 1996 Remedial Plan to order the Special Master to work with the parties to "develop and recommend to the Court a plan for the conclusion of the [litigation]" and the termination of the Court's jurisdiction in a manner that would ensure that plaintiffs' interests would continue to be protected. Id. at 97. As envisioned by the Court, the plan would include "recommended findings of fact and conclusions of law regarding the following topics":
a. Goals. A summary and articulation of the goals of this lawsuit as reflected in the 1978 and 1983 Consent Orders, the 1996 Remedial Plan, and all other Court-ordered obligations (hereafter collectively "Court-ordered requirements").
b. Current compliance. An evaluation of existing programs to determine the extent of defendants' compliance with requirements for the protection of the health and safety of the plaintiff class and their effectiveness in meeting the goals described in subparagraph a, including but not limited to the provision of necessary medical and other health services and the compliance of private vendors with District of Columbia licensing and payment requirements governing community residence facilities, intermediate care facilities, foster care, day treatment programs, day programs, employment programs, representative payment and guardianship.
c. Adequate habilitation. The extent of defendants' compliance with Court-ordered requirements for the provision of adequate habilitation in the least restrictive setting and their effectiveness (strengths and weaknesses) in meeting the goals described in subparagraph a, including individual habilitation planning, individual financial planning, case management, appropriate residential services, adequate habilitation services, and the safeguarding of client funds.
d. Payment of providers. The extent of defendants' compliance with Court-ordered requirements for the timely payment of private providers who provide the plaintiff class with appropriate residential services, day treatment programs, vocational and supported employment services, day programs, medical, mental health, dental, and other services required by the Court.
e. Quality assurance. The quality assurance methods to be developed and implemented by defendants to monitor continually the performance of public and private providers of service in meeting the goals of the suit.
f. Standards and compliance measurement. The standards, including outcome standards to be developed and implemented by defendants, that should be used to determine defendants' continued compliance with Court-ordered requirements, and the way in which compliance with such standards should be measured.
g. Substantial compliance standards. The degree of compliance that should be required with each of the standards recommended.
h. Permanent monitoring. The steps necessary to establish permanent, objective, efficient, and effective post-termination monitoring of the programs serving class members by independent entities (for example, private accreditation services and independent monitoring bodies).
I. Individual and community advocacy. The steps necessary to coordinate existing mechanisms and to develop needed mechanisms for the advocacy of the interests of class members, on a[n] individual and community-wide basis, in compliance with Court-ordered requirements, including but not limited to the use of court-appointed attorneys, guardianships, and medical decision-making procedures for class members.
H. Appointment of Independent Court Monitor
In November 2000, the Court entered an Order granting the parties' joint motion for the appointment of an independent Court Monitor. (Order Regarding the Appointment of an Independent Court Monitor, Nov. 21, 2000.) The Order specified that the duties of the Court Monitor were to include observing, monitoring, reporting findings, and making recommendations to the parties, the Special Master, and the Court regarding implementation of the Court's Orders, and to submit quarterly reports on defendants' "compliance" with the Court's Orders. (Id. at 2-5.) The Order also provided that the "findings, recommendations and reports of the Court Monitor . . . may be introduced as evidence when relevant and admissible in accordance with the Federal Rules of Evidence." (Id. at 5.) In order to perform these duties, the Monitor was granted broad access "to the persons, residences, facilities, buildings, programs, services, documents, records, personnel and materials the Monitor deems necessary or appropriate in performing [her duties]." (Id. at 4.)*fn8
I. 2001 Opinion and Order: Joint Stipulated Findings of Fact; Plan for Compliance; Consent Order and Settlement Agreement
In 2001, after "lengthy negotiations" -- almost two years of work by the Special Master, the parties, and an expert to the Special Master -- the parties came to a series of agreements that "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 Orders [wa]s achieved." Evans v. Williams, 139 F. Supp. 2d 79, 81 (D.D.C. 2001) ("2001 Consent Order"). Upon consideration of these agreements, the Court, on March 30, 2001, (1) adopted the Parties' Joint Stipulated Findings of Fact, id. at 96-107;*fn9 (2) approved the 2001 Plan for Compliance and Conclusion of Evans v. Williams, id. at 85 ("2001 Plan");*fn10 and (3) entered a Consent Order, with a Settlement Agreement attached thereto. Id. at 85-96. Two aspects of these agreements remain critically important today: the 2001 Plan to achieve compliance and the creation of the Quality Trust in exchange for plaintiffs' waiver of claims on noncompliance.
The 2001 Plan started from the premise "that there is already in place a declaratory judgment and permanent injunction recognizing a federal constitutional right to receive individualized habilitative care and treatment in the least separate, most integrated, and least restrictive settings, and to be kept free from harm." (2001 Plan at 6.) The Plan then identified (as the Court's 1999 Order had requested) the agreed-upon "goals" of the existing Court orders. According to the Plan, the parties agreed that existing Court Orders embodied eight goals:
(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;
(7) Timely payment of vendors; and
(8) Essential systemic conditions.
Evans, 139 F. Supp. 2d at 81.*fn11 For each goal (or subgoal), the Plan identified the "relevant Court Orders," the "specific tasks that must be performed to implement those Orders," the "time frames within which the tasks must be performed," the "specific outcome criteria for measuring compliance," the "standard of compliance," and the "methods by which evidence will be collected and evaluated to assess compliance." Id. at 81-82.
The Court approved the 2001 Plan "as, in effect, a statement of the conditions for the expected vacating of the Court's relevant prior Orders." Id. at 85. It was anticipated that
[w]hile 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.
2. Creation of the Quality Trust
The Consent Order and attached Settlement Agreement provided that, in exchange for the plaintiffs waiving "any and all claims for past violations of the Court's Orders," the District would "endow and annually fund . . . 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." Id. at 86. Defendants agreed to fund the organization, denominated the Quality Trust, with a total of $31.5 million over eleven years.*fn12 Ultimately, the goal was for the Quality Trust to be "an external monitoring body to permanently protect the interests of the class members once this case ends." Id. at 83.
The 2001 agreements, which the Court accepted and adopted, contemplated that as defendants satisfied the outcome criteria in the 2001 Plan for particular groups of Court Orders, they would move the Court to have those Orders vacated and dismissed with the ultimate goal that, over time, defendants would implement all of the required actions and meet the specified outcome criteria in order to successfully move the Court to vacate and dismiss the related Court Orders, except the declaratory judgment on the constitutional rights of the consumers to receive individualized habilitation in the least separate, most integrated and least restrictive environment and to be protected from harm.
(2001 Plan at 9-10 (emphasis added).) Once the Court orders were vacated and dismissed, the plaintiffs agreed that they would not "seek recourse to the federal court to litigate individual violations of rights in this case pursuant to the declaratory judgment which will remain unless:
(1) there are systemic violations of the declaratory judgment; or (2) legal remedies are unavailable in Superior Court (e.g., due to repeal of the statutes); or (3) there is a failure to adequately fund the Quality Trust pursuant to the Consent Order dated January 19, 2001." (Id.)
Since 2001, however, defendants have not invoked the procedures set forth in the 2001 Plan, to which they agreed, to vacate any Court Orders based on their implementation of the necessary tasks and satisfaction of the specified outcome criteria.*fn13 Accordingly, the Court Orders "continue to remain enforceable in federal court." (Id.) Moreover, even though the 2001 Plan itself was "not intended to be an enforceable document," the parties agreed that plaintiffs "have a great interest in ensuring that the agreed upon actions identified in this Plan are in fact implemented effectively and in a timely manner by defendants to secure the benefits and protections provided for by the Court Orders," and provided, therefore, that "in the event that defendants do not implement the provisions of this Plan effectively and on a timely basis, plaintiffs and plaintiff-intervenor retain the right to seek appropriate judicial relief, based on this evidence of noncompliance with the Court Orders, including Orders requiring specific performance of the Plan." (Id.)
In 2004, after several years of receiving discouraging monitor reports on the implementation of the 2001 Plan, this Court*fn14 issued an order to address the "need for greater coordination among District of Columbia agencies which have responsibilities for actions that are necessary to achieve compliance with the 2001 Plan." (Order at 1, Jan. 21, 2004 ["2004 Coordination Order"].) As described therein, the parties had met with the Court on December 12, 2003, and agreed that "the current lack of such coordination has impeded the timely completion of necessary tasks identified in the 2001 Plan." (Id. at 1-2.) The 2004 Order reiterated that the District remained subject to the Court's previous orders, which were issued "to effectuate the rights of class members to adequate habilitation in a manner least restrictive of their liberty" and that the purpose of the 2001 Plan was to require defendants to take certain actions to achieve compliance with those orders. (Id. at 1.) The Order required, inter alia, that the Mayor appoint a Deputy Mayor or other senior official "to be responsible for the day-to-day efforts of District of Columbia agencies to achieve compliance with this Court's orders and the 2001 Plan." (Id. at 2.) That individual was to "have the necessary authority to supervise and direct the activities of" and "coordinate the efforts of all District of Columbia agencies" as necessary to "carry out their obligations under the 2001 Plan and previous orders of this Court," and was to "cooperate with and report periodically to the Special Masters and Court Monitor on defendants' progress," and "appear before this Court at each status conference and report to the Court on behalf of defendants regarding the status of defendants' compliance with the 2001 Plan and orders of this Court." (Id. at 3.)*fn15
II. MOTION FOR RECEIVERSHIP: LIABILITY PHASE
In May 2006, plaintiffs filed a motion asking the Court to find defendants in noncompliance with the outstanding Court Orders and to place the District's Mental Retardation and Developmental Disabilities Administration ("MRDDA") into receivership.*fn16 The Court bifurcated proceedings into a "liability" and a "remedy" phase. Evans, 480 F. Supp. 2d at 291 ("March 2007 Liability Opinion").
While the liability phase was ongoing, several notable events occurred. On December 20, 2006, the "Developmental Disabilities Services Agency," later renamed the "Department on Disability Services," was established by emergency legislation as a separate Cabinet-level agency to serve consumers formerly served by the MRDDA, including the Evans class members. Developmental Disabilities Services Management Reform Emergency Amendment Act of 2006, §§ 103, 105(1), (2). In January 2007, Adrian Fenty took office as Mayor for the District of Columbia. On February 5, 2007, defendants asked the Court to delay its liability ruling in light of the new administration's "commitment to DDS and its consumers" and its newly adopted "Systems Improvement Plan" in order "to allow sufficient time for the DDS to appropriately address the continuing concerns of the Court, the Monitor, the Department of Justice, and plaintiffs." (Defs.' Notice of Filing of Supplemental Information in Resp. to the Ct. Monitor's Quarterly Report at 10, Feb. 5, 2007.) In making its request, the District indicated that it was "cognizant that much remains to be done to bring DDS into compliance with outstanding court orders and the 2001 Plan," but promised the Court that the "Fenty Administration is fully committed to the success of the new agency, the delivery of improved services and care to the consumers served by the agency, and compliance with the 2001 Plan." (Id. at 8.) At a status hearing the next day, the Court rejected this request and indicated that it intended to issue its liability ruling based on the record as of November 29, 2006, when the Court Monitor had filed her supplemental report as requested by the Court, but that information about improvements and accomplishments after that date would be considered in any remedy phase. (Hr'g Tr. at 23-24, Feb. 6, 2007.)
On March 30, 2007, the Court issued its liability ruling, concluding that plaintiffs had met their burden to show that there had been "systemic, continuous, and serious noncompliance" with the Court's prior Orders. Evans, 480 F. Supp. 2d at 325.
A. Findings: Health, Safety and Welfare
The Court organized its findings in terms of these three broad subject areas: health, safety and welfare. Based on a record that closed in November 2006, the Court found that plaintiffs have demonstrated, by clear and convincing evidence, that defendants have failed to comply with existing Court Orders in the core areas of health, safety, and welfare. These failures are systemic in that they affect many class members served by a cross-section of providers and occur throughout defendants' service delivery system. They are serious in that they concern matters that are integral ...