United States District Court, D. Columbia.
Clarence J. Sundram, Special Master, Pro se, Delmar, N.Y. USA.
For Joy Evans, by and through her parents and next friends, Betty Jane Evans and Harold G. Evans, Venita Felton, Christine Exton, Joseph Scates, William Brown, John Kennedy, Jr., Plaintiffs: Cathy E. Costanzo, LEAD ATTORNEY, CENTER FOR PUBLIC REPRESENTATION, Northampton, MA USA; Stephen F. Hanlon, LEAD ATTORNEY, Paul J. Kiernan, HOLLAND & KNIGHT, LLP, Washington, DC USA; Sandra J. Bernstein, UNIVERSITY LEGAL SERVICES, INC., Washington, DC USA.
For United States of America, Intervenor Plaintiff: John A. Henderson, Samuel Robert Bagenstos, William G. Maddox, LEAD ATTORNEYS, Cathleen Siobhan Trainor, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA.
For District of Columbia, Defendant: Ellen A. Efros, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, Washington, DC USA; Martha J. Mullen, LEAD ATTORNEY, Matthew Robert Blecher, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC USA; Robert C. Utiger, LEAD ATTORNEY, DC OFFICE OF THE ATTORNEY GENERAL, Washington, DC USA; John D. Dodge, DAVIS WRIGHT TREMAINE, LLP, Washington, DC USA.
For Adrian Fenty, Mayor, District of Columbia, Defendant: Ellen A. Efros, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, Washington, DC USA; John D. Dodge, LEAD ATTORNEY, DAVIS WRIGHT TREMAINE, LLP, Washington, DC USA; Martha J. Mullen, LEAD ATTORNEY, Matthew Robert Blecher, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC USA; Robert C. Utiger, LEAD ATTORNEY, DC OFFICE OF THE ATTORNEY GENERAL, Washington, DC USA.
For Elizabeth L. Jones, Court Monitor, Interested Party: Robert N. Weiner, LEAD ATTORNEY, ARNOLD & PORTER LLP, Washington, DC USA.
For We Care Projects,Inc, Movant: Nicholas George Karambelas, LEAD ATTORNEY, SFIKAS & KARAMBELAS, Washington, DC USA.
For Quality Trust For Individuals With Disabilities, Inc., Movant: Leslie Anne Davis, LEAD ATTORNEY, CROWELL & MORING LLP, Washington, DC USA.
ELLEN SEGAL HUVELLE, United States District Judge.
Pursuant to the " 2010 Revision to the 2001 Plan for Compliance and Conclusion of Evans v. Fenty,"  (" 2010 Plan" ), Special Master Clarence J. Sundram has submitted a Report and Recommendation regarding defendants' certification of compliance with the remaining outcome criteria for Goal A.1, Individualized Habilitation Plans. ( See Special Master's Report and Recommendation Regarding Individualized Habilitation Plans -- Part II, Dec. 9, 2014 [ECF No. 1506], as amended, see Errata, Jan. 7, 2015 [ECF No. 1510] (" R& R-Part II" ); Director's Certification of Compliance, Evans Goal A.1, Individualized Habilitation Plan (Outcome Criteria ii, iii, vii, viii, ix, x, xii, xvi and xvii), June 30, 2014 (filed with the Court as Exhibit 1 to the R& R-Part II [ECF No. 1506-1]) (" Certification-Part II" ).) Following the Special Master's first Report and Recommendation regarding Goal A.1 ( see Special Master's Report and Recommendation Regarding Individualized Habilitation Plans, Oct. 15, 2013 [ECF No. 1418] (" R& R-Part I" ) and the Court's Order approving and adopting that Report and Recommendation ( see Order, Nov. 27, 2013 [ECF No. 1426]), eight criteria from Goal A.1 remained outstanding in full (ii, iii, vii, ix, x, xii, xvi, xvii), and one criterion (viii) remained outstanding in part. The Special Master now recommends that the Court find that defendants (1) have met their burden of proof of compliance with respect to criteria ii, vii, xvi, and xvii; (2) have achieved partial compliance with respect to criteria iii, viii, x (part C), and xii (parts B-D); and (3) have not met their burden of proof of compliance with respect to criteria ix and the remaining parts of criteria iii, viii, x (parts A, B and part of D), and xii (part A). Plaintiffs have not filed any objections, but defendants challenge the Special Master's adherence to the 2010 Plan's threshold for " high" compliance as well as his recommended findings of noncompliance as to criteria viii, x.D, and xii.A. (Defs.' Objections to the R& R-Part II at 1, Jan. 8, 2015 [ECF No. 1512-1] (" Objections" ).) For the reasons explained herein, the Court will partially sustain defendants' objection as to criteria viii, but will otherwise approve and adopt the pending Report and Recommendation in its entirety.
I. THRESHOLD FOR " HIGH" COMPLIANCE
Under the 2010 Plan, the standard of compliance for Goal A.1 is " high" (2010 Plan at 12), which is defined as follows:
This threshold requires compliance with the indicator at a rate generally exceeding 90 percent compliance. Where instances of noncompliance with the indicator are found, none can involve a serious and substantive violation of the Court Order with significant adverse impact upon class members (i.e., actual harm or a serious risk of harm) in the judgment of the Court and Special Master (e.g., excusable noncompliance may involve failure to comply with documentation or some aspect of process, without significant adverse impact). Generally speaking, this level of compliance will be expected for important programmatic aspects of the Court Orders.
2010 Plan at 6 (emphasis added).)
In defendants' Certification-Part II, they suggested, for the first time, that the 2010 Plan's definition of " high compliance" was too demanding. (Certification-Part II at 3.) They pointed out therein that they had never " agreed" to a 90% threshold for " high" compliance, that certain outcome criteria do not lend themselves to numerical analysis, and that requiring 90% compliance was virtually unprecedented in any intellectual and developmental disability service delivery system across the country. (Certification-Part II at 3.) After an extensive discussion, the Special Master concluded that, while determining a numerical " rate" of compliance was not always easy, none of defendants' concerns merited jettisoning the approach established by the 2010 Plan. ( See R& R-Part II at 3-7.)
Defendants now object to the Special Master's " discussion" of the threshold of compliance, raising the same arguments they made in their certification, and ask the Court for two specific things: (1) that a percentage compliance rate of less than 90% on a particular JMQ question should not be " summarily held as a showing of non-compliance" ; and (2) that " the [90%] threshold of [high] compliance can and should be revisited by this Court in evaluating the remaining elements of the 2010 Plan and the underlying court orders in recognition of the progress that has been made as evidenced by the Court orders to date ...