IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
UNITED STATES OF AMERICA,
Plaintiff,
COMMONWEALTH OF VIRGINIA,
Defendant,
and
Civil Action No. 3:12cv59-JAG
PEGGY WOOD, etaL,
Intervener-Defendants and Third-Party Plaintiffs,
ROBERT MCDONNELL, et al.,
Third-Party Defendants.
ORDER APPROVING CONSENT DECREE
This case comes before the Court on a joint motion of the United States and the
Commonwealth of Virginia (the "Commonwealth" or"Virginia") for the Court to approve and
adopt a consent decree. The Court finds that the parties entered into their settlement agreement
without collusion, and that the agreement, as embodied in the decree, is lawful, fair, adequate,
and reasonable. The Court therefore APPROVES the decree and GRANTS the Joint Motion for
Entry of Settlement Agreement (Dk. No. 2).
I. Proceedings
The United States commenced this proceeding by filing a complaint alleging that the
Commonwealth had violated the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et
seq. Simultaneously, Virginia and the United States submitted a consent decree for the Court's
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consideration. In essence, they had worked out a settlement before the suit was filed. As
discussed below, the settlement dramatically changes the way Virginia provides services to its
intellectually and developmentally disabled population.
Not everyone liked the terms ofthe settlement, and a group of disabled citizens moved to
intervene to oppose the settlement (the "Intervenors"). The Court granted their motion to
intervene, and they participated activelyin the litigation, arguing at every step that the proposed
settlementwas unfair to the residents ofVirginia's five training centers (the "Training Centers").
Funded and operated by the Commonwealth, the Training Centers are large, hospital-like
facilities built to house hundreds of disabled people. The Intervenors considered the Training
Centers their homes. They opposed the settlement because they believed that the proposed
consent decree would mandate removing them from the Training Centers and putting them in
harm's way.
The Court received hundreds of letters both for and against the consent decree. The
Court has treated those letters as briefs amicus curiae. In addition, the Court received several
formal amicus briefs, filed by counsel for interested groups. The Court has considered the letters
and briefs in reaching its decision.
Several months ago, the Court toured a number of facilities, accompanied by counsel
and the Commissioner of Behavioral Health and Developmental Services. The tourincluded not
only residential homes but also sites for supported day activities—essentially examples of most
of the types of facilities that provide services to disabled Virginians. The Court selected places
to inspect from a list of facilities provided by the Attorney General of Virginia's office. The
Court created an itinerary for its tour, but did not share the proposed stops with the parties.
1The inspection of facilities occurred before the Court granted the motion to intervene, so
counsel for the Intervenors did not participate in the tour.
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Rather, after inspecting one facility, the Court would then tell counsel the next place to visit.
The Court's purpose was to prevent anyone from receiving advanced notice of the visit and
somehow improving the conditions before the Court's arrival.
The Court also held a fairness hearing. It allowed the Commonwealth, the United States,
and the Intervenors ninety minutes each to put on evidence supporting their positions. A Courtappointed
expert also testified regarding the impact of the consent decree on Virginia's
community service boards and, specifically, whether those boards could handle the number of
new clients envisioned in the decree.
Having held these proceedings, the Court is now prepared to decide whetherto adopt the
settlement as a consent decree.
II. Facts
This case involves Virginia's treatment of its intellectually and developmentally disabled
population. Intellectual disabilities consist of a number of conditions, including autism, Downs
Syndrome, self-destructive behavior, retardation, and a host of other behavioral and intellectual
difficulties. Developmental disability refers to people born with physical issues that prevent
them from being able to feed themselves, to walk, and to accomplish myriad other activities.
Although intellectual disability and developmental disability are two different categories, most of
the people with developmental issues also have intellectual disabilities. In this Order, therefore,
the Court will simplyrefer to "disabled" individuals, encompassing both branches ofdisability.
Several decades ago, Virginia developed a group of five Training Centers to serve its
disabled population. As noted above, the Training Centers are large hospital-like facilities
housing a number of disabled people. Although the Training Center residents sometimes go on
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outside trips, most of their time is spent with other disabled people in the centers. The facilities
provide recreation, housing, supported work, and meals to their residents.
At the time it created the Training Centers, the Commonwealth encouraged families to
put their disabled relatives in them, in order to provide a safe and healthful environment. The
Intervenors in this case largely come from families that accepted the Commonwealth's invitation
to use the Training Centers. The Intervenors are uniformly satisfied with the treatment of their
loved ones in the centers, and are afraid that a change of homes will lead to disruption and
danger. In its tour of facilities, the Court visited the Southside Regional Training Center in
Petersburg, Virginia. That facility is clean and well-run. The residents seemed largely content.
The staffwas very supportive and loving to the residents.
As the years passed, however, new modalities of care were developed, and became the
preference of experts in the disability field. Specifically, the preferred method involved allowing
disabled people to live in the broader community, rather than in facilities restricted to disabled
residents. Over the years, the Commonwealth has taken fewer and fewer residents into Training
Centers, and has discharged many residents to community facilities. As aresult, the population
of the Training Centers has diminished from 6000 to less than a thousand residents.
Nevertheless, the Commonwealth maintains the facilities to house the vastly diminished
population ofdisabled citizens.
Congress passed the Americans with Disabilities Act("ADA") in 1990, providing further
impetus to the movement toward community services. In the ADA, "Congress explicitly
identified unjustified 'segregation' of persons with disabilities as a 'for[m] of discrimination.'"
Olmstead v. L.C., 527 U.S. 581, 600 (1999). "The ADA stepped up earlier measures to secure
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opportunities for people with developmental disabilities to enjoy the benefits of community
living." Id. at 599.
The United States, through the Department of Justice ("DOJ"), believes that hospital-type
settings are precisely the kind of segregated facility frowned upon in the ADA. In 2008, the
DOD began to look into the Central Virginia Training Center in Lynchburg, Virginia.
Recognizing system-wide problems, the DOJ eventually broadened the investigation to include
all ofVirginia's Training Centers. The DOJ concludedthat Virginia's entire system of Training
Centers violated the ADA by denying disabled citizens the right to be part of the broader
community. Accordingly, the DOJ sent a letter of findings to the Commonwealth, demanding
changes in the system.
The DOJ's demands were consonant with Virginia's own plans. As noted above,
Virginia had taken long strides to lessen the population of the Training Centers by this time. The
Commonwealth essentially agreed with the DOJ'sgoal of community-based services.
Thereafter, a lengthy negotiation commenced between the Commonwealth and the
United States to find a solution. It became apparent that the issue of community services had
ramifications that would affectmanymore people than those in the Training Centers. Virginia
has long waiting lists of disabled people who are notreceiving appropriate services, and any plan
to reduce the Training Center population needed to address the broader problems of the disabled
community.
The solution came in the form of a vast increase in the number of "Medicaid waivers"
available to Virginians. Medicaid waivers are, essentially, government subsidies to pay for care
and services for disabled people. The funds are provided by both the federal and state
government. Virginia's problem was that it spentso much money on Training Centers that it had
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very little left over for waivers. Hence, Virginia has extensive waiting lists of people who need
waivers to secure services.
Waivers can be used to fund any number of services. These include community-based
living arrangements such as intermediate-care facilities for disabled people, group homes,
residences with "sponsored families," and supported apartments. The Court visited most ofthese
types of facilities in its tour, and they are, like the Training Centers, clean, healthful, and
managed by caring staff members. Going further, however, the waivers can also provide
assistance to families who choose to have disabled people live in their homes. This can include
medical equipment and even part-time help with the care of a disabled family member.
After months of negotiations, the United States and the Commonwealth agreed on a plan
to address both the Training Centers and the waiting lists. The consent decree embodies that
agreement.2 Under the proposed settlement, Virginia has agreed to provide 4170 additional
waiver slots, divided among current Training Center residents, disabled people in various
segregated facilities other than theTraining Centers, and people onthe waiting list for services.
The settlement also prescribes in great detail howVirginia will administer the services it
provides to disabled citizens. This process will be a shared responsibility of the Department of
Behavioral Health and Developmental Services and local community service boards ("CSBs").
CSBs are agencies that coordinate—and sometimes provide—a variety of services in the
communities of the Commonwealth, including services for disabled people. The CSBs will be
responsible for placing disabled people who are discharged from a Training Center into an
appropriate community setting. Under the consent decree, the CSBs will need to find a large
2The Court suggested several minor changes to the proposed decree, but they do not affect the
heart ofthe agreement.
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number of community placements for residents of Training Centers as well as people on the
waiting lists. The Court-appointed expert testified that the CSBs can handle this task.
The decree also provides for changed procedures at the Training Centers and spells out
how the Commonwealth will assist the CSBs with technical assistance. Each Training Center
resident will have a discharge plan crafted by the professionals at the facility. Virginia will set
up case-management teams, crisis teams, and plans for supported day services in the community.
Essentially, the Commonwealth's efforts—and those of the CSBs—will all be focused on
keeping disabled people in the community.
To protect its disabled citizens, the Commonwealth also agrees in the decree to conduct
inspections to determine the quality of services. Further, Virginia must develop a riskmanagement
plan that will insure that community-based disabled people are safe. At each stage
from planning to implementation, health professionals will participate in the process of
identifying appropriate services.
Finally, the consent decree requires the appointment ofan independent reviewer who will
reportto the Courton the progress of implementing the decree.
III. Discussion
"In considering whether to enter a proposed consent decree, a district court should be
guided by the general principle that settlements are encouraged." United States v. North
Carolina, 180 F.3d 574, 581 (4th Cir. 1999). Courts may accord deference to thejudgment of
parties with experience in the area ofthe decree, and should especially give substantial weight to
the expertise of public agencies entering settlements. American Canoe Association v. United
States EPA, 54 F. Supp. 2d 621, 625 (E.D. Va. 1999). While settlements are desirable, the court
must not "blindly accept" the terms of a proposed consent decree. Id. Rather, the court should
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insure that the agreement is not illegal, is not the product of collusion, is not against the public
interest, and is fair, adequate and reasonable. North Carolina, 180 F.3d at 581. Obviously, these
concepts—illegality, collusion, public interest, fairness, adequacy, and reasonableness—overlap
a great deal. For instance, it is hard to imagine a fair, adequate, and reasonable settlement that is
not also in the public interest. These factors are not a checklist, but rather considerations that
point the court in the right direction. In this case, they support approval of the settlement and
consent decree.
A. Illegality
Clearly, the agreement is not illegal. The decision of what kind of services to offer to
citizens and how to allocate limited funds are inherent in the sovereign power of the states. In
this instance, the consent decree is completely consonant with the principles set forth in the
ADA, as interpreted by Justice Ginsburg in Olmstead, supra. One purpose of the ADA is "to
secure opportunities for people with developmental disabilities to enjoy the benefits of
community living." Id. at 599.
The Intervenors, however, argue that the settlement agreement requires Virginia to close
down the Training Centers and allows the Commonwealth to force current Training Center
residents out of their long-term homes, all in violation of the ADA. They point out that
Olmstead also states that no one should be compelled to leave a facility without his or her
consent. Id. at 602 (noting that there is no "federal requirement that community-based treatment
be imposed on patients who do not desire it.").
The Intervenors read the consent decree incorrectly. Nothing in the decree compels
Virginia to close any facility. Decisions of that sort lie in the hands of the Virginia General
Assembly. If it deems it wise, the General Assembly can appropriate funds to continue to
8
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operate some or all of the Training Centers, even while funding the Medicaid waivers. The
Court recognizes that the Virginia Department of Behavioral Health and Developmental Services
is trying to move away from a care model with Training Centers, but the ultimate decision
whether to close any Training Center lies not with the Department, but with the legislature.
Moreover, the Intervenors ignore a provision of state law that forbids the horrible
outcomes they conjure up. Virginia Code Section 37.2-837(A)(3) provides that no one may be
forced to leave a Training Center against his or her will. Va. Code § 37.2-837(A)(3). The statute
serves as bedrock assurancethat no one will be evicted from a Training Center. The parties have
even agreed that the Court may reopen the case in the event § 37.2-837(A)(3) is repealed. (See
Settlement Agreement, Ex. A, § IV, ^ 10.) At that time, the Court can revisit the fairness of the
decree.
B. Collusion
The agreement is also not the product of collusion between the Commonwealth and the
United States. The DOJ began an investigation of the Central Virginia Training Center in 2008,
and eventually expanded the scope to include all of the Training Centers. It sent aletter to the
Commonwealth outlining various ADA violations and demanding changes. The parties then
engaged in long and difficult negotiations at arms' length to reach an agreement. The settlement
agreement provides hundreds of millions of dollars of benefits for disabled Virginians. Clearly,
the plaintiff and the Commonwealth did not collude inany way to reach the agreement presented
to the Court.
C. Public Interest, Fairness, Adequacy, and Reasonableness
As the Intervenors have demonstrated, one can argue vigorously that disabled people are
best treated in a hospital-type setting, such as a Training Center. The existence of such an
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argument, however, does not mean that the consent decree is improper. The Commonwealth, as
its right, has decided that the public interest compels community placements. As observed
above, a public agency charged with protecting the public interest deserves substantial deference.
See American Canoe Assoc, 54 F. Supp. 2d at 625. The Court trusts the expertise of the
Commonwealth's Department of Behavioral Health and Developmental Services to adopt a plan
of action that benefits Virginia's disabled citizens. In this case, the Court need not look beyond
the number of people receiving greater, more beneficial services. In Training Centers, fewer
than one thousand Virginians receive services. When the waivers are fully funded, over 4000
people willbe ableto afford the services theyneed. Theentry of the decree is a valid decision in
the public interest.
Furthermore, the settlement agreement addresses pressing needs. Virginia currently has
over 2900 people on an "urgent wait list" for Medicaid waivers. Those citizens and their
families must fend for themselves in dealing with disability. Many of them will receive benefits
under the decree. The decree, thus, balances the needs of these citizens. The Court certainly
cannot say that the agreement is not fair, reasonable, and adequate. Rather, the parties have
come upwith a plan to fund a broad range of services fordisabled Virginians.
The Court finds thatthe agreement is fair, reasonable, adequate, and in thepublic interest.
The Court therefore approves the consent decree; the final settlement agreement is attached as
Exhibit A to this Order, and is deemed part ofthis Order.
IV. Third Party Complaint
The Intervenors have filed a third party complaint against a number of state officials.
Their claim arises under the ADA, the Rehabilitation Act of 1973, and the Medicaid statute and
regulations. 42 U.S.C. § 12132; 29 U.S.C. § 794(a); 42 U.S.C. § 1396, et seq. In essence, the
10
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Intervenors say that they are being forced out of Training Centers, and ask this Court to fashion
appropriate relief, whatever that may be.
The third-party complaint fails in at least three ways. First, it is not a proper third-party
pleading. A third-party complaint is brought by a litigant who claims that someone else "is or
may be liable to it for all or part of the claim against it." Fed. R. Civ. P. 14(a). The Intervenors'
third-party complaint simply does not fit in themold setby the rules for suchpleadings.
Second, the claims are not ripe. No one has been involuntarily removed from a state
facility. Whatever injury the Intervenors might suffer simplyhas not occurred yet.
Third, the claim is based on a misreading of the settlement agreement. The agreement
compels Virginia to offer Medicaid waivers and associated services; it does not compel the
shutdown of any Training Center. The Court recognizes that it is unlikely that the
Commonwealth can afford to operate five Training Centers while funding the Medicaid waivers.
It is possible, however, that the Commonwealth will keep one center open and consolidate its
operations there. Nothing in the agreement forbids the state from doing so. This matter is a
judgment left to the Virginia General Assembly as it considers the state's various needs.
Nothing, however, forces the General Assembly to close down any facility. The settlement
agreement does not have the effect attributed to it inthe third-party complaint.
For these reasons, the third-party complaintis DISMISSED.
Furthermore, the Joint Motion for Entry of Settlement Agreement (Dk. No. 2) is
GRANTED. The Court FINDS that the consent decree is fair, reasonable, adequate, and in the
public interest. Accordingly, the Court hereby APPROVES the final settlement agreement (Ex.
A) in this case.
It is SO ORDERED
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Let the Clerk send a copy ofthis Order to all counsel ofrecord.
Date: August 23.2012
Richmond, VA
/s/
John A. Gibney, Jr7 J j
United States District Judge
12
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Exhibit A
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
UNITED STATES OF AMERICA,
Plaintiff,
CIVIL ACTION NO: 3:12cv059-JAG
v.
COMMONWEALTH OF VIRGINIA,
Defendants,
and
PEGGY WOOD, etal
Intervenor-Defendants.
SETTLEMENT AGREEMENT
I. Introduction
B.
The Commonwealth of Virginia ("the Commonwealth") and the United States (together,
"the Parties") are committed to full compliance with Title II of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101, as interpreted by Olmstead v. L.C., 527
U.S. 581 (1999). This Agreement is intended to ensure the Commonwealth's compliance
with the ADA and Olmstead, which require that, to the extent the Commonwealth offers
services to individuals with intellectual and developmental disabilities, such services
shall be provided in the most integrated setting appropriate to meet their needs.
Accordingly, throughout this document, the Parties intend that the goals ofcommunity
integration, self-determination, and quality services will be achieved.
On August 21,2008, the United States Department of Justice ("United States") initiated
an investigation of Central Virginia Training Center ("CVTC"), the largest of Virginia's
five state-operated intermediate care facilities for persons with intellectual and
developmental disabilities ("ICFs"), pursuant to the Civil Rights of Institutionalized
Persons Act ("CRIPA"), 42 U.S.C. § 1997. On April 21,2010, the United States notified
the Commonwealth that it was expanding its investigation under the ADA to focus on the
Commonwealth's compliance with the ADA's integration mandate and Olmstead with
respect to individuals at CVTC. During the course ofthe expanded investigation,
1
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however, it became clear that an examination of the Commonwealth's measures to
address therights of individuals at CVTC under theADA and Olmstead implicated the
statewide system for serving individuals with intellectual and developmental disabilities
and required a broader scope of review. Accordingly, the policies andpractices thatthe
United Statesexamined in its expanded investigation were statewide in scope and
application. OnFebruary 10, 2011, the United States issued its findings, concluding that
the Commonwealth fails to provideservices to individuals with intellectual and
developmental disabilities in the most integrated setting appropriate to their needs as
required by the ADA and Olmstead.
C. The Commonwealthengaged with the United States in open dialogue about the
allegations and worked withthe United States to resolve the alleged violations of the
ADAarisingout of the Commonwealth's provision of services for individuals with
intellectual and developmental disabilities.
D. In order to resolve all issues pending between the Parties without the expense, risks,
delays, and uncertainties of litigation, the United States and the Commonwealth agree to
the terms ofthis Settlement Agreement as stated below. This Agreement resolves the
United States' investigation ofCVTC, as well as its broader examination ofthe
Commonwealth's compliance with the ADA and Olmstead with respect to individuals
with intellectual and developmental disabilities.
E. By entering into this Settlement Agreement, the Commonwealth does not admit to the
truth or validity of any claim made against it by the United States.
F. The Parties acknowledge that the Court has jurisdiction over this case and authority to
enter this Settlement Agreement and to enforce its terms as set forth herein.
G. No person or entity is intended to be a third-party beneficiary of the provisions ofthis
Settlement Agreement for purposes of any other civil, criminal, or administrative action,
and, accordingly, no person or entity may assert any claim or right as a beneficiary or
protected class under this Settlement Agreement in any separate action. This Settlement
Agreement is not intended to impair or expand the right of any person or organization to
seek relief against the Commonwealth or their officials, employees, or agents.
H. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331; 28 U.S.C.
§ 1345; and 42 U.S.C. §§ 12131-12132. Venue is proper in this district pursuant to
28 U.S.C. § 1391(b).
II. Definitions
A. "Developmental disability" means a severe, chronic disability of an individual that: (1) is
attributable to a mental or physical impairment or combination of mental and physical
impairments; (2) is manifested before the individual attains age 22; (3) is likely to
continue indefinitely; (4) results in substantial functional limitations in 3 or more ofthe
following areas ofmajor life activity: (a) self-care; (b) receptive and expressive
language; (c) learning; (d) mobility; (e) self-direction; (f) capacity for independent living;
(g) economic self-sufficiency; and (5) reflects the individual's need for a combination
and sequence of special, interdisciplinary, or generic services, individualized supports, or
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other forms of assistance that are of lifelong or extendedduration and are individually
planned andcoordinated. 42 U.S.C. § 15002.
B. "Intellectual disability" means adisability characterized by significant limitations both in
intellectual functioning (reasoning, learning, problem solving) and in adaptive behavior,
which covers arange ofeveryday social and practical skills. This disability originates
before the age of 18. An intellectual disability is atype of developmental disability.
C. Home andCommunity-Based Services Waivers ("HCBS Waivers") meansthe program
approved by the Centers for Medicare and Medicaid Services ("CMS") for the purpose of
providing services in community settings for eligible persons withdevelopmental
disabilitieswho would otherwise be served in ICFs. For purposes ofthis Settlement
Agreement, "HCBS Waivers" includes the Intellectual Disabilities Waiver ("ID Waiver")
andthe Individual and Family Developmental Disabilities SupportWaiver ("DD
Waiver"), or any otherCMS approved waivers that are equivalent to the ID orDD
Waivers that may be created after the execution of this Agreement.
D. Individual and family supports are defined as a comprehensiveand coordinated set of
strategies that are designed to ensure that families who are assisting family memberswith
intellectual or developmental disabilities ("ID/DD") or individuals with ID/DDwho live
independently have access to person-centered and family-centered resources, supports,
services and other assistance. Individual and family supports are targeted to individuals
not already receiving services underHCBS waivers, as defined in Section II.C above.
The family supports provided under this Agreement shallnot supplant or in any way limit
the availability of services provided through the Elderly or Disabled with Consumer
Direction ("EDCD") waiver, Early and Periodic Screening, Diagnosis and Treatment
("EPSDT"), or similar programs.
E. As used in this Agreement, the term Authorized Representative means a person
authorized to make decisions about treatment or services, including residence, on behalf
of an individual who lacks the capacity to consent.
1. The Authorized Representative shall be recognized by the Commonwealth (which
may be delegated to local care providers) from the following, if available:
a. An attorney-in-fact who is currently empowered to consent or authorize the
disclosure under the terms of a durable power ofattorney;
b. A health care agent appointed by the individual under an advance directive or
power of attorney in accordance with the laws ofVirginia; or
c. A legal guardian ofthe individual, or if the individual is a minor, a parent with
legal custody ofthe minor or other person authorized to consent to treatment
pursuant to §54.1-2969A ofthe Code ofVirginia.
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2. If an attorney-in-fact, health care agent or legal guardian is not available, the
Commonwealth or its designee shalldesignate a substitute decision makeras
Authorized Representative in the following order of priority:
a. Theindividual's family member as designated by the individual, unless doing so
is clinically contraindicated.
b. If the individual does not have a preference or the preference is clinically
contraindicated, the best qualified person shall be selected according to the
following order ofpriority:
i. A spouse;
ii. An adult child;
iii. A parent;
iv. An adult brother or sister; or
v. Any other relative ofthe individual.
c. Next friend ofthe individual. Ifno other person specified above is available and
willingto serve as Authorized Representative, the Commonwealth or its designee
may designate a next friendofthe individual in accordance with 12VAC 35-115-
146, who has either:
i. Shared a residence with the individual; or
ii. Had regular contact or communication with the individual and provided
significant emotional, personal, financial, spiritual, psychological, or other
support and assistance to the individual.
3. No director, employee, or agent of a provider of services may serve as an Authorized
Representative for any individual receiving services delivered by that provider unless
the Authorized Representative is a relative or the legal guardian.
III. Serving Individuals with Developmental Disabilities In the Most Integrated Setting
A. To prevent the unnecessary institutionalization of individuals with ID/DD and to provide
them opportunities to live in the most integrated settings appropriate to their needs
consistent with their informed choice, the Commonwealth shall develop and provide the
community services described in this Section.
B. Target Population:
1. The target population ofthis Agreement shall include individuals with ID/DD who
meet any ofthe following additional criteria:
a. are currently residing at any ofthe Training Centers;
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b. who (i) meet the criteria for the wait list for the ID waiver, or(ii) meet the criteria
for the wait list for the DD waiver; or
c. currently reside in a nursing home or ICF.
2. The Commonwealth shall not excludeany otherwise qualifying individual from the
target population due to the existence of complex behavioral ormedical needs orof
co-occurring conditions, including butnot limited to, mental illness, traumatic brain
injuries, or other neurological conditions.
3. Individuals shall remain in the target population if they receiveHCBS waiver services
or individual and family supports under this Agreement.
4. Individualswho are otherwise in the target population and who have been released
from forensic status or placed on conditional release by a court shall not be excluded
from the target population solely on the basis oftheir former forensic status or current
conditional release status.
5. Inclusion in the target population does not guarantee or create a right to receiptof
services.
C. Enhancement ofCommunity Services
1. By June 30, 2021, the Commonwealth shall create 4,170 waiver slots for the target
population, to be broken down as follows:
a. The Commonwealth shall create a minimum of 805 waiver slots to enable
individuals in the target population in the Training Centers to transition to the
community according to the following schedule:
i. In State Fiscal Year 2012,60 waiver slots
ii. In State Fiscal Year 2013,160 waiver slots
iii. In State Fiscal Year 2014,160 waiver slots
iv. In State Fiscal Year 2015, 90 waiver slots
v. In State Fiscal Year 2016, 85 waiver slots
vi. In State Fiscal Year 2017, 90 waiver slots
vii. In State Fiscal Year 2018, 90 waiver slots
viii. In State Fiscal Year 2019, 35 waiver slots
ix. In State Fiscal Year 2020, 35 waiver slots
b. The Commonwealth shall create a minimum of 2,915 waiver slots to prevent the
institutionalization of individuals with intellectual disabilities in the target
population who are on the urgent waitlist for a waiver, or to transition to the
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community individuals with intellectual disabilities under 22 years of age from
institutions other thanthe Training Centers (i.e., ICFs andnursing facilities),
accordingto the following schedule:
i. In State Fiscal Year 2012, 275 waiver slots
ii. In State Fiscal Year 2013, 225 waiver slots, including 25 slots prioritized for
individuals under 22 years of age residing in nursing homes and the largest
ICFs
iii. In State Fiscal Year 2014,225 waiverslots, including 25 slots prioritized for
individuals under 22 years of age residing in nursing homes andthe largest
ICFs
iv. In State Fiscal Year 2015,250 waiver slots, including 25 slots prioritized for
individuals under 22 years of age residing in nursing homes and the largest
ICFs
v. In State Fiscal Year 2016,275 waiver slots, including 25 slots prioritized for
individuals under22 years of ageresiding in nursinghomes andthe largest
ICFs
vi. In State Fiscal Year 2017, 300 waiver slots
vii. In State Fiscal Year 2018,325 waiver slots
viii. In State Fiscal Year 2019,325 waiver slots
ix. In State Fiscal Year 2020,355 waiver slots
x. In State Fiscal Year 2021, 360 waiver slots
c. The Commonwealth shall create a minimum of 450 waiver slots to prevent the
institutionalization of individuals with developmental disabilities other than
intellectual disabilities in the target population who are on the waitlist for a
waiver, or to transition to the community individuals with developmental
disabilities other than intellectual disabilities under 22 years of age from
institutions other than the Training Centers (i.e., ICFs and nursing facilities),
according to the following schedule:
i. In State Fiscal Year 2012,150 waiver slots
ii. In State Fiscal Year 2013, 25 waiver slots, including 15 prioritized for
individuals under 22 years ofage residing in nursing homes and the largest
ICFs
iii. In State Fiscal Year 2014, 25 waiver slots, including 15 prioritized for
individuals under 22 years of age residing in nursing homes and the largest
ICFs
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iv. In State Fiscal Year 2015, 25 waiver slots, including 15 prioritized for
individuals under 22 years of age residing in nursing homesand the largest
ICFs
v. In State Fiscal Year 2016,25 waiver slots, including 15 prioritized for
individuals under 22 years of ageresiding in nursing homes andthe largest
ICFs
vi. In State Fiscal Year 2017,25 waiver slots, including 10 prioritized for
individuals under 22 years of age residing in nursing homes and the largest
ICFs
vii. In State Fiscal Year 2018, 25 waiver slots, including 10 prioritized for
individuals under22 years of ageresiding in nursinghomes andthe largest
ICFs
viii. In State Fiscal Year 2019,25 waiver slots
ix. In State Fiscal Year 2020, 50 waiver slots
x. In State Fiscal Year 2021,75 waiver slots
d. If the Commonwealth creates more waiver slots than are required in Sections
IH.C.l.a, b, or c above for a particular fiscal year, the number of slots created
abovethe requirement shall be counted towards the slots required to be created in
the subsequent fiscal year in the relevant Section.
2. The Commonwealth shall create an individual and family support program for
individuals with ID/DD whom the Commonwealth determines to be most at risk of
institutionalization, according to the following schedule:
a. In State Fiscal Year 2013, a minimum of700 individuals supported
b. In State Fiscal Year 2014, a minimum of 1000 individuals supported
c. In State Fiscal Year 2015, a minimum of 1000 individuals supported
d. In State Fiscal Year 2016, a minimum of 1000 individuals supported
e. In State Fiscal Year 2017, a minimum of 1000 individuals supported
f. In State Fiscal Year 2018, a minimum of 1000 individuals supported
g. In State Fiscal Year 2019, a minimum of 1000 individuals supported
h. In State Fiscal Year 2020, a minimum of 1000 individuals supported
i. In State Fiscal Year 2021, a minimum of 1000 individuals supported
3. If the Commonwealth substantially changes or amends its ID or DD waivers, the
Parties shall meet within 15 days of final approval from CMS to determine if any
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provisions ofthis Agreement should be amended. The Parties agree that under any
new terms, at least as many individuals in each category in Sections Ill.C.l.a, b, and c
and C.2 above shall receive HCBS waivers and individual and family supports under
the Agreement. If the Parties cannot reach agreement within 90days, the Court shall
resolve the dispute.
4. With the consent ofthe United States and the Independent Reviewer, the
Commonwealth may re-allocate any unused waiver slotfrom onecategory of
Ill.C.l.a-c to another in any State Fiscal Year covered by this Agreement.
5. Case Management
a. The Commonwealth shall ensure that individuals receiving HCBS waiver services
under this Agreement receive case management.
b. For the purposes of this agreement, case managementshall mean:
i. Assembling professionals and nonprofessionals who provide individualized
supports, as well as the individual being served and other persons importantto
the individual being served, who, through their combined expertise and
involvement, develop Individual Support Plans ("ISP") that are
individualized, person-centered, and meet the individual's needs;
ii. Assisting the individual to gain access to needed medical, social, education,
transportation, housing, nutritional, therapeutic, behavioral, psychiatric,
nursing, personal care, respite, and other services identified in the ISP; and
iii. Monitoring the ISP to make timely additional referrals, service changes, and
amendments to the plans as needed.
c. Case management shall be provided to all individuals receiving HCBS waiver
services under this Agreement by case managers who are not directly providing
such services to the individual or supervising the provision of such services. The
Commonwealth shall include a provision in the Community Services Board
("CSB") Performance Contract that requires CSB case managers to give
individuals a choice of service providers from which the individual may receive
approved waiver services and to present practicable options of service providers
based on the preferences of the individual, including both CSB and non-CSB
providers.
d. The Commonwealth shall establish a mechanism to monitor compliance with
performance standards.
6. Crisis Services
a. The Commonwealth shall develop a statewide crisis system for individuals with
intellectual and developmental disabilities. The crisis system shall:
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i. Provide timely and accessible support to individuals with intellectual and
developmental disabilities who are experiencing crises, including crises due to
behavioral or psychiatric issues, and to their families;
ii. Provide services focused on crisis prevention and proactive planning to avoid
potential crises; and
iii. Providein-home and community-based crisis servicesthat are directedat
resolving crises and preventing the removal of the individual from hisor her
current placement whenever practicable.
b. The crisis system shall include the following components:
i. Crisis Point of Entry
A. The Commonwealth shall utilize existing CSB Emergency Services,
including existing CSB hotlines, for individuals to access information
about and referrals to local resources. Such hotlines shall be operated 24
hours per day, 7 days perweek andstaffed with clinical professionals who
are able to assess crisesby phoneand assist the caller in identifying and
connecting with local services. Where necessary, the crisis hotline will
dispatch at leastonemobile crisis teammember who is adequately trained
to address the crisis.
B. By June 30, 2012, the Commonwealthshall train CSB Emergency
Servicespersonnel in each HealthPlanning Region ("Region") on the new
crisis response system it is establishing, how to make referrals, and the
resources that are available.
ii. Mobile crisis teams
A. Mobile crisis team members adequately trained to address the crisis shall
respond to individuals at their homes and in other community settings and
offer timely assessment, services, support, and treatment to de-escalate
crises without removing individuals from their current placement
whenever possible.
B. Mobile crisis teams shall assist with crisis planning and identifying
strategies for preventing future crises and may also provide enhanced
short-term capacity within an individual's home or other community
setting.
C. Mobile crisis team members adequately trained to address the crisis also
shall work with law enforcement personnel to respond if an individual
with ID/DD comes into contact with law enforcement.
D. Mobile crisis teams shall be available 24 hours per day, 7 days per week
and to respond on-site to crises.
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E. Mobile crisis teams shall providelocal and timely in-home crisis support
for upto 3 days, with the possibility ofan additional period of upto 3 days
upon review bythe Regional Mobile Crisis TeamCoordinator.
F. ByJune 30, 2012, the Commonwealth shall have at least one mobile crisis
teamin eachRegion that shall respond to on-site crises within three hours.
G. ByJune 30,2013, theCommonwealth shall have at least two mobile crisis
teams in each Region that shall respond to on-site crises within two hours.
H. ByJune 30,2014, theCommonwealth shall have a sufficient number of
mobile crisis teams in each Region to respond on site to crises as follows:
in urban areas, within one hour, and in rural areas, within two hours, as
measured by the average annual response time.
iii. Crisis stabilization programs
A. Crisis stabilization programs offer a short-term alternative to
institutionalizationor hospitalization for individuals who need inpatient
stabilization services.
B. Crisis stabilization programs shall be used as a last resort. The State shall
ensure that, prior to transferring an individual to a crisis stabilization
program, the mobile crisis team, in collaboration with the provider, has
first attempted to resolve the crisis to avoid an out-of-home placement and
if that is not possible, has then attempted to locate another communitybased
placement that could serve as a short-term placement.
C. If an individual receives crisis stabilization services in a community-based
placement instead of a crisis stabilization unit, the individual may be given
the option ofremaining in the placement if the provider is willing and has
capacity to serve the individual and the provider can meet the needs ofthe
individual as determined by the provider and the individual's case
manager.
D. Crisis stabilization programs shall have no more than six beds and lengths
of stay shall not exceed 30 days.
E. With the exception ofthe Pathways Program operated at Southwestern
Virginia Training Center ("SWVTC"), crisis stabilization programs shall
not be located on the grounds ofthe Training Centers or hospitals with
inpatient psychiatric beds. By July 1, 2015, the Pathways Program at
SWVTC will cease providing crisis stabilization services and shall be
replaced by off-site crisis stabilization programs with sufficient capacity to
meet the needs ofthe target population in that Region.
F. By June 30, 2012, the Commonwealth shall develop one crisis
stabilization program in each Region.
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G. By June 30,2013, the Commonwealth shall develop an additional crisis
stabilization program in each Region as determined necessary by the
Commonwealth to meet the needs ofthe target population in that Region.
7. Integrated Day Activities and Supported Employment
a. Tothe greatest extent practicable, the Commonwealth shall provide individuals in
thetarget population receiving services under this Agreement with integrated day
opportunities, including supportedemployment.
b. The Commonwealth shall maintain its membership in the State Employment
Leadership Network ("SELN") established by the National Association of State
Developmental Disability Directors. The Commonwealth shall establish a state
policy on Employment First for the target population and include aterm in the
CSB Performance Contract requiring application ofthis policy. The Employment
First policy shall, at a minimum,be based on the following principles: (1)
individual supported employment in integrated work settings is the first and
priority service option for individuals with intellectual or developmental
disabilities receivingday program or employment services from or funded by the
Commonwealth; (2) the goal ofemployment services is to support individuals in
integrated work settings where they are paidminimum or competitive wages; and
(3) employment services and goals must be developed and discussed at least
annually through a person-centered planning process and included in ISPs. The
Commonwealth shall have at least one employment service coordinator to
monitor implementation of Employment First practices for individuals in the
target population.
i. Within 180 days ofthis Agreement, the Commonwealth shall develop, as part
of its Employment First policy, an implementation plan to increase integrated
day opportunities for individuals in the target population, including supported
employment, community volunteer activities, community recreational
opportunities, and other integrated day activities. The plan will be under the
direct supervision of a dedicated employment service coordinator for the
Commonwealth and shall:
A. Provide regional training on the Employment First policy and strategies
throughout the Commonwealth; and
B. Establish, for individuals receiving services through the HCBS waivers:
1. Annual baseline information regarding:
a. The number of individuals who are receiving supported
employment;
b. The length oftime people maintain employment in integrated work
settings;
c. Amount of earnings from supported employment;
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d. The number of individuals in pre-vocational servicesas definedin
12 VAC 30-120-211 in effect on the effective date ofthis
Agreement; and
e. Thelength of time individuals remain in pre-vocational services.
2. Targets to meaningfully increase:
a. The number of individuals who enroll in supported employment
each year; and
b. The number of individuals who remain employed in integrated
worksettings at least 12 months after the start of supported
employment.
c. Regional Quality Councils, described in Section V.D.5 below, shallreview data
regarding die extent to which thetargets identified in Section III.C.7.b.i.B.2 above
are beingmet. These data shallbe provided quarterly to the Regional Quality
Councilsand the QualityManagement systemby the providers. Regional Quality
Councils shall consult with those providers and the SELN regarding the need to
take additional measures to further enhance these services.
d. The Regional Quality Councils shall annually review the targets set pursuant to
Section III.C.7.b.i.B.2 above and shall work with providers and the SELN in
determining whether the targets should be adjusted upward.
8. Access and Availability of Services
a. The Commonwealth shall provide transportation to individuals receiving HCBS
waiver services in the target population in accordance with the Commonwealth's
HCBS Waivers.
b. The Commonwealth shall publish guidelines for families seeking intellectual and
developmental disability services on how and where to apply for and obtain
services. The guidelines will be updated annually and will be provided to
appropriate agencies for use in directing individuals in the target population to the
correct point of entry to access services.
9. The Commonwealth has made public its long-standing goal and policy, independent
ofand adopted prior to this Agreement or the Department ofJustice's findings, of
transitioning from an institutional model ofcare to a community-based system that
meets the needs of all individuals with ID/DD, including those with the most complex
needs, and ofusing its limited resources to serve effectively the greatest number of
individuals with ID/DD. This goal and policy have resulted in a decline in the
population ofthe state training centers from approximately 6000 individuals to
approximately 1000 individuals. The Commonwealth has determined that this
significant and ongoing decline makes continued operation ofresidential services
fiscally impractical. Consequently, and in accordance with the Commonwealth's
policy oftransitioning its system of developmental services to a community-based
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system, the Commonwealth will provide to the General Assembly within one year of
the effective date ofthis Agreement, a plan, developed in consultation with the
Chairmen ofVirginia's House of Delegates Appropriations and Senate Finance
Committees, to cease residential operations at four ofthe five training centers by the
end of State Fiscal Year 2021.
D. Community Living Options
1. The Commonwealth shall serve individuals in the target population in the most
integrated setting consistentwith their informed choice and needs.
2. The Commonwealth shall facilitate individuals receiving HCBS waivers under this
Agreement to live in their own home, leased apartment, or family's home, when such
a placement is their informed choice and the most integrated setting appropriate to
their needs. To facilitate individuals living independently in their own home or
apartment, the Commonwealth shall provide information about and make appropriate
referrals for individuals to apply for rental or housing assistance and bridge funding
through all existing sources, including local, State, or federal affordable housing or
rental assistance programs (tenant-based or project-based) andthe fund described in
Section III.D.4 below.
3. Within 365 days ofthis Agreement,the Commonwealth shall develop a planto
increase accessto independent living options such as individuals' own homes or
apartments. The Commonwealth undertakes this initiative recognizing that
comparativelymodest housing supports often can enable individuals to live
successfully in the most integrated settings appropriate to their needs.
a. The plan will be developed underthe direct supervision of a dedicated housing
service coordinator for the Department of Behavioral Health and Developmental
Services ("DBHDS") and in coordination with representatives from the
Department of Medical Assistance Services ("DMAS"), Virginia Board for
People with Disabilities, Virginia Housing Development Authority, Virginia
Department of Housing and Community Development, and other organizations as
determined appropriate by DBHDS.
b. The plan will establish, for individuals receiving or eligible to receive services
through the HCBS waivers under this Agreement:
i. Baseline information regarding the number of individuals who would choose
the independent living options described above, if available; and
ii. Recommendations to provide access to these settings during each year ofthis
Agreement.
4. Within 365 days ofthis Agreement, the Commonwealth shall establish and begin
distributing, from a one-time fund of $800,000 to provide and administer rental
assistance in accordance with the recommendations described above in Section
III.D.3.b.ii, to as many individuals as possible who receive HCBS waivers under this
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Agreement, express a desire for living intheir own home or apartment, and for whom
such a placement is the most integrated setting appropriate to their needs.
5. Individuals in the target population shall not be servedin a sponsored home or any
congregate setting, unless such placement is consistent with the individual's choice
after receiving options for community placements, services, and supports consistent
with the terms of Section IV.B.9 below.
6. No individual in the target population shall be placedin a nursing facility or
congregate setting with five or more individuals unless such placement is consistent
with the individual's needs and informed choice and has been reviewed by the
Region's Community Resource Consultant and, under circumstances described in
Section III.E below, by the Regional Support Team.
7. The Commonwealth shall include a term in the annual performance contract with the
CSBsto require case managers to continue to offer educationabout less restrictive
community options on at least an annual basis to anyindividuals living outside their
own home or family's home (and, if relevant, to their Authorized Representative or
guardian).
E. Community Resource Consultants and Regional Support Teams
1. The Commonwealth shall utilize Community Resource Consultant ("CRC") positions
located in each Region to provide oversight and guidance to CSBs and community
providers, and serve as a liaison betweenthe CSB case managers and DBHDS
Central Office. The CRCs shall provide on-site, electronic, written, and telephonic
technical assistance to CSB case managers and private providers regarding personcentered
planning, the Supports Intensity Scale, and requirements of case
management and HCBS Waivers. The CRC shall also provide ongoing technical
assistance to CSBs and community providers during an individual's placement. The
CRCs shall be a member ofthe Regional Support Team in the appropriate Region.
2. The CRC may consult at any time with the Regional Support Team. Upon referral to
it, the Regional Support Team shall work with the Personal Support Team ("PST")
and CRC to review the case, resolve identified barriers, and ensure that the placement
is the most integrated setting appropriate to the individual's needs, consistent with the
individual's informed choice. The Regional Support Team shall have the authority to
recommend additional steps by the PST and/or CRC.
3. The CRC shall refer cases to the Regional Support Teams for review, assistance in
resolving barriers, or recommendations whenever:
a. The PST is having difficulty identifying or locating a particular community
placement, services and supports for an individual within 3 months ofthe
individual's receipt ofHCBS waiver services.
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b. The PSTrecommends and, upon his/her review, the CRC also recommends that
an individual residing in his or herown home, his or her family's home, or a
sponsored residence be placed in a congregate setting with five or more
individuals.
c. The PSTrecommends and, uponhis/her review, the CRCalso recommends an
individual residing in any setting be placed in a nursing home or ICF.
d. There is a pattern of an individual repeatedly being removed from his or her
current placement.
IV. Discharge Planning and Transition from Training Center
ByJuly 2012,the Commonwealth will haveimplemented Discharge and Transition Planning
processes at all Training Centers consistent withthe terms of this Section, excluding otherdates
agreed upon, and listed separately in this Section.
A. To ensure that individuals are served in the most integrated setting appropriate to their
needs, the Commonwealth shall develop and implement discharge planning and transition
processes at all Training Centers consistent with the terms ofthis Section and personcentered
principles.
B. Discharge Planning and Discharge Plans
1. Discharge planning shall begin upon admission.
2. Discharge planning shall drive treatment of individuals in any Training Center and
shall adhere to the principles ofperson-centered planning.
3. Individuals in Training Centers shall participate in their treatment and discharge
planning to the maximum extent practicable, regardless of whether they have
Authorized Representatives. Individuals shall be provided the necessary support
(including, but not limited to, communication supports) to ensure that they have a
meaningful role in the process.
4. The goal oftreatment and discharge planning shall be to assist the individual in
achieving outcomes that promote the individual's growth, well being, and
independence, based on the individual's strengths, needs, goals, and preferences, in
the most integrated settings in all domains ofthe individual's life (including
community living, activities, employment, education, recreation, healthcare, and
relationships).
5. The Commonwealth shall ensure that discharge plans are developed for all
individuals in its Training Centers through a documented person-centered planning
and implementation process and consistent with the terms ofthis Section. The
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discharge plan shall be an individualized support plan for transition into the most
integrated setting consistent with informed individual choice and needs and shall be
implemented accordingly. The final discharge plan (developed within 30 days prior
to discharge) will include:
a. Provision of reliable information to the individual and, where applicable, the
Authorized Representative, regarding community options in accordance with
Section IV.B.9;
b. Identification ofthe individual's strengths, preferences, needs (clinical and
support), and desired outcomes;
c. Assessmentofthe specific supports and services that build on the individual's
strengths and preferences to meetthe individual's needs and achieve desired
outcomes, regardless of whether those services and supports are currently
available;
d. Listing of specific providers that can provide the identified supports and services
that build on the individual's strengths and preferencesto meet the individual's
needs and achieve desired outcomes;
e. Documentation ofbarriers preventing the individual from transitioning to a more
integrated setting and a plan for addressing those barriers.
i. Such barriers shall not include the individual's disability or the severity ofthe
disability.
ii. For individuals with a history of re-admission or crises, the factors that led to
re-admission or crises shall be identified and addressed.
6. Discharge planning will be done by the individual's PST. The PST includes the
individual receiving services, the Authorized Representative (if any), CSB case
manager, Training Center staff, and persons whom the individual has freely chosen or
requested to participate (including but not limited to family members and close
friends). Through a person-centered planning process, the PST will assess an
individual's treatment, training, and habilitation needs and make recommendations
for services, including recommendations ofhow the individual can be best served.
7. Discharge planning shall be based on the presumption that, with sufficient supports
and services, all individuals (including individuals with complex behavioral and/or
medical needs) can live in an integrated setting.
8. For individuals admitted to a Training Center after the date this Agreement is signed
by both parties, the Commonwealth shall ensure that a discharge plan is developed as
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described herein within30 daysof admission. For all individuals residing in a
Training Center onthe date thatthis Agreement is signed by both parties, the
Commonwealth shall ensurethat a discharge plan is developed as described herein
within six months of the effective date ofthis Agreement.
9. In developing discharge plans, PSTs, in collaboration with the CSB case manager,
shall provide to individuals and, where applicable, theirAuthorized Representatives,
specific options for types of community placements, services, and supports based on
the discharge plan as described above, andthe opportunity to discuss and
meaningfully consider those options.
a. The individual shall be offered a choice ofproviders consistent with the
individual's identified needs and preferences.
b. PSTs and the CSB case manager shall coordinate with the specific type of
community providers identified in the discharge plan as providingappropriate
community-based servicesfor the individual, to provide individuals, their
families, and, where applicable, their Authorized Representative with
opportunities to speak with those providers, visit community placements
(including, where feasible, for overnight visits) and programs, and facilitate
conversations and meetings with individuals currently living in the community
and their families, before being asked to make a choice regarding options. The
Commonwealth shall develop family-to-family and peer programs to facilitate
these opportunities.
c. PSTs and the CSB case managers shall assist the individual and, where
applicable, their Authorized Representative in choosing a provider after providing
the opportunities described above and ensure that providers are timely identified
and engaged in preparing for the individual's transition.
10. Nothing in this Agreement shall prevent the Commonwealth from closing its Training
Centers or transferring residents from one Training Center to another, provided that,
in accordance with Virginia Code 37.2-837(A)(3), for as long as it remains effective,
no resident of a Training Center shall be discharged from a Training Center to a
setting other than a Training Center if he or his Authorized Representative chooses to
continue receiving services in a Training Center. If the General Assembly repeals
Virginia Code 37.2-837(A)(3), the Commonwealth shall immediately notify the
Court, the United States, and the Intervenors. The Parties agree that repeal or
alteration of Virginia Code 37.2-837(A)(3) justifies consideration of relief under Fed.
R. Civ. P 60(b)(6).
11. The Commonwealth shall ensure that Training Center PSTs have sufficient
knowledge about community services and supports to: propose appropriate options
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about how an individual's needs could be met in a more integrated setting; present
individuals and their families with specific options for community placements,
services, and supports; and, together with providers, answer individuals' and families'
questions about community living.
a. In collaboration with the CSBs andcommunity providers, the Commonwealth
shall develop and provide training and information for Training Center staffabout
the provisions ofthis Agreement, staff obligations underthe Agreement, current
community living options, the principles of person-centered planning, and any
related departmental instructions. The training will be provided to all applicable
disciplines and all PSTs.
b. Person-centered thinking training will occurduring initial orientation andthrough
annual refresher courses. Competency will be determined through documented
observationofPST meetings andthroughthe use of person-centered thinking
coachesand mentors. EachTraining Centerwill have designated coacheswho
receive additional training. The coaches will provide guidance to PSTs to ensure
implementation ofthe person-centered tools and skills. Coaches throughout the
state will have regular and structured sessions with person-centered thinking
mentors. These sessions will be designed to foster additional skill development
and ensure implementation of person-centered thinking practicesthroughout all
levels ofthe Training Centers.
12. In the event that an individual or, where applicable, Authorized Representative
opposes the PST's proposed options for placement in a more integrated setting after
being provided the information and opportunities described in Section IV.B.9, the
Commonwealth shall ensure that PSTs:
a. Identify and seek to resolve the concerns ofindividuals and/or their Authorized
Representatives with regard to community placement;
b. Develop and implement individualized strategies to address concerns and
objections to community placement; and
c. Document the steps taken to resolve the concerns of individuals and/or their
Authorized Representatives and provide information about community placement.
13. All individuals in the Training Center shall be provided opportunities for engaging in
community activities to the fullest extent practicable, consistent with their identified
needs and preferences, even if the individual does not yet have a discharge plan for
transitioning to the community.
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14.The State shall ensurethat informationaboutbarriers to discharge from involved
providers, CSB case managers, Regional Support Teams, Community Integration
Managers, and individuals' ISPs is collected from the Training Centers and is
aggregated and analyzed for ongoing quality improvement, discharge planning, and
development of community-based services.
15. In the event that a PST makes a recommendationto maintain placement at a Training
Center orto place an individual inanursing home orcongregate setting with five or
more individuals, the decision shall be documented, andthe PST shall identify the
barriers to placement in amore integrated setting and describe in the discharge plan
the steps the team will take to address thebarriers. The case shall be referred to the
Community Integration Manager and Regional Support Team in accordance with
Sections IV.D.2.a and f and IV.D.3 below, and such placements shall only occur as
permitted by Section IV.C.6.
C. Transition to Community Setting
1. Once a specific provider is selected by an individual, the Commonwealth shall invite
andencourage the provider to actively participate in the transition ofthe individual
from the Training Center to the community placement.
2. Once trial visits are completed, the individualhas selected a provider, and the
provider agrees to servethe individual, discharge will occurwithin 6 weeks, absent
conditions beyond the Commonwealth's control. If discharge does not occurwithin 6
weeks, the reasons it did not occur will be documented and a new time frame for
discharge will be developed by the PST. Where discharge does not occur within 3
months of selecting a provider, the PST shall identify the barriers to discharge and
notify the Facility Directorand Community Integration Manager in accordance with
Section IV.D.2 below, and the case shall be referred to the Regional Support Teams
in accordance with Section IV.D.3 below.
3. The Commonwealth shall develop and implement a system to follow up with
individuals after discharge from the Training Centers to identify gaps in care and
address proactively any such gaps to reduce the risk of re-admission, crises, or other
negative outcomes. The Post Move Monitor, in coordination with the CSB, will
conduct post-move monitoring visits within each ofthree (3) intervals (30, 60, and 90
days) following an individual's movement to the community setting. Documentation
ofthe monitoring visit will be made using the Post Move Monitoring Checklist. The
Commonwealth shall ensure those conducting Post Move Monitoring are adequately
trained and a reasonable sample of look-behind Post Move Monitoring is completed
to validate the reliability ofthe Post Move Monitoring process.
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4. The Commonwealth shall ensure that each individual transitioning from a Training
Center shall havea current discharge plan, updated within 30 days prior to the
individual's discharge.
5. The Commonwealth shall ensure that the PST will identify all needed supports,
protections, and services to ensure successful transition in thenew living
environment, including what is most important to the individual as it relates to
community placement. The Commonwealth, in consultation with the PST, will
determine the essential supports needed for successful andoptimal community
placement. The Commonwealth shall ensure that essential supports are in place atthe
individual'scommunity placement prior to the individual's discharge from the
Training Center. This determination will be documented. The absence ofthose
services and supports identified as non-essential by the Commonwealth, in
consultation with the PST, shall not be a barrier to transition.
6. No individual shall be transferred from a Training Center to a nursing home or
congregate settingwith five ormoreindividuals unless placement in such a facility is
in accordance with the individual's informed choice after receiving options for
community placements, services, and supports andis reviewed by the Community
Integration Manager to ensure such placement is consistentwith the individual's
informed choice.
7. The Commonwealth shall develop and implement quality assurance processes to
ensure that discharge plans aredeveloped and implemented, in a documented manner,
consistent with the terms ofthis Agreement. These quality assurance processes shall
be sufficient to show whether the objectives ofthis Agreement are being achieved.
Whenever problems are identified, the Commonwealth shall develop and implement
plans to remedy the problems.
D. Community Integration Managers and Regional Support Teams
1. The Commonwealth will create Community Integration Manager ("CIM") positions
at each operating Training Center. The CIMs will be DBHDS Central Office staff
members who will be physically located at each ofthe operating Training Centers.
The CIMs will facilitate communication and planning with individuals residing in the
Training Centers, their families, the PST, and private providers about all aspects ofan
individual's transition, and will address identified barriers to discharge. The CIMs
will have professional experience working in the field of developmental disabilities,
and an understanding of best practices for providing community services to
individuals with developmental disabilities. The CIMs will have expertise in the
areas ofworking with clinical and programmatic staff, facilitating large, diverse
groups of professionals, and providing service coordination across organizational
boundaries. The CIMs will serve as the primary connection between the Training
Center and DBHDS Central Office. The CIMs will provide oversight, guidance, and
technical assistance to the PSTs by identifying strategies for addressing or
overcoming barriers to discharge, ensuring that PSTs follow the process described in
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Sections IV.B andC above, and identifying and developing corrective actions,
including the need for any additional training orinvolvement of supervisory staff.
CIMs shall be engaged in addressing barriers to discharge, including in all of the
following circumstances:
a. The PST recommends that an individual be transferred from a Training Center to
a nursing homeor congregate setting with five ormoreindividuals;
b. The PST is havingdifficulty identifying or locating a particular type of
community placement, services and supports for anindividual within 90days of
development of adischarge plan during the first year ofthe Agreement; within 60
days of development of a discharge plan during the second year ofthe
Agreement; within 45 days of development of adischarge plan in the third year of
the Agreement; and within 30 days of development of adischarge plan thereafter.
c. The PST cannot agree on a discharge plan outcomewithin 15 days ofthe annual
PST meeting, or within 30 days afterthe admissionto the Training Center.
d. The individual or his or her Authorized Representative opposes discharge after all
the requirements described in Section IV.B.9 have been satisfied or refuses to
participate in the discharge planning process;
e. The individual is not discharged within three months of selecting a provider, as
described in Section IV.C.2 above. The PST shall identify the barriers to
discharge and notify both the facility director and the CIM; or
f. The PST recommends that an individual remain in a Training Center. If the
individual remains at the Training Center, an assessment by the PST and the CIM
will be performed at 90-day intervals from the decision for the individual to
remain at the Training Center, to ensure that the individual is in the most
integrated setting appropriate to his or her needs.
The Commonwealth will create five Regional Support Teams, each coordinated by
the CIM. The Regional Support Teams shall be composed of professionals with
expertise in serving individuals with developmental disabilities in the community,
including individuals with complex behavioral and medical needs. Upon referral to
it, the Regional Support Team shall work with the PST and CIM to review the case
and resolve identified barriers. The Regional Support Team shall have the authority
to recommend additional steps by the PST and/or CIM. The CIM may consult at any
time with the Regional Support Teams and will refer cases to the Regional Support
Teams when:
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a. The CIM is unable, within2 weeksof the PST's referral to the CIM, to document
attainable steps thatwill betaken to resolve any barriers to community placement
enumerated in Section IV.D.2 above.
b. A PSTcontinues to recommend placement in a Training Centerat the second
quarterly review following the PST's recommendation that anindividual remain
in a Training Center (Section IV.D.2.f), and at all subsequent quarterly reviews
that maintain the samerecommendation. This paragraphshall not take effect until
two years after the effective date ofthis Agreement.
c. The CIM believes external review is needed to identify additional steps that can
be taken to remove barriers to discharge.
4. The CIM shall provide monthly reports toDBHDS Central Office regarding thetypes of
placements to which individuals have been placed, including recommendations that
individuals remain at a Training Center.
V. Quality and Risk Management System
A. To ensure that all services for individuals receiving services under this Agreement are of
goodquality, meet individuals' needs, and help individuals achievepositive outcomes,
including avoidance of harms, stable community living,and increasedintegration,
independence, and self-determination in all life domains (e.g., community living,
employment, education, recreation, healthcare, and relationships), and to ensurethat
appropriate services are available and accessible for individuals in the target population,
the Commonwealth shall develop and implement a quality and risk management system
that is consistent with the terms ofthis Section.
B. The Commonwealth's Quality Management System shall: identify and address risks of
harm; ensure the sufficiency, accessibility, and quality of services to meet individuals'
needs in integrated settings; and collect and evaluate data to identify and respond to
trends to ensure continuous quality improvement.
C. Risk Management
1. The Commonwealth shall require that all Training Centers, CSBs, and other
community providers of residential and day services implement risk management
processes, including establishment ofuniform risk triggers and thresholds, that enable
them to adequately address harms and risks ofharm. Harm includes any physical
injury, whether caused by abuse, neglect, or accidental causes.
2. The Commonwealth shall have and implement a real time, web-based incident
reporting system and reporting protocol. The protocol shall require that any staff of a
Training Center, CSB, or community provider aware of any suspected or alleged
incident of abuse or neglect as defined by Virginia Code § 37.2-100 in effect on the
effective date ofthis Agreement, serious injury as defined by 12 VAC 35-115-30 in
effect on the effective date ofthis Agreement, or deaths directly report such
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information to the DBHDS Assistant Commissioner for Quality Improvement or his
or her designee.
3. The Commonwealth shall have and implement a process to investigate reports of
suspected or alleged abuse, neglect, critical incidents, ordeaths and identify
remediation steps taken. The Commonwealth shall be required to implement the
process for investigation and remediation detailed inthe Virginia DBHDS Licensing
Regulations (12 VAC 35-105-160 and 12 VAC 35-105-170 in effectonthe effective
date ofthis Agreement) and theVirginia Rules and Regulations to Assure the Rights
of Individuals Receiving Services from Providers Licensed, Funded or Operated by
the Department of Mental Health, Mental Retardation and Substance Abuse Services
("DBHDS Human Rights Regulations" (12 VAC 35-115-50(D)(3)) in effectonthe
effective date ofthis Agreement, and shall verify the implementation ofcorrective
action plans required under these Rules and Regulations.
4. The Commonwealth shall offer guidance and training to providers on proactively
identifying and addressing risks ofharm, conducting root cause analysis, and
developing and monitoring corrective actions.
5. The Commonwealth shall conduct monthly mortality reviews for unexplained or
unexpected deaths reported through its incident reporting system. The Commissioner
shall establishthe monthly mortality review team, to include the DBHDS Medical
Director, the Assistant Commissioner for Quality Improvement, and others as
determined by the Department who possess appropriate experience, knowledge, and
skills. The team shall have at least one member with the clinical experience to
conduct mortality reviewswho is otherwise independent ofthe State. Within ninety
days ofa death, the monthly mortality review team shall: (a) review, or document the
unavailability of: (i) medical records, including physician case notes and nurses
notes, and all incident reports, for the three months preceding the individual's death;
(ii) the most recent individualized programplan and physical examination records;
(iii) the death certificate and autopsy report; and (iv) any evidence ofmaltreatment
related to the death; (b) interview, as warranted, any persons having information
regardingthe individual's care; and (c) prepare and deliver to the DBHDS
Commissioner a reportof deliberations, findings, and recommendations, if any. The
team also shall collect and analyze mortality data to identify trends, patterns, and
problems at the individual service-delivery and systemic levels and develop and
implement quality improvement initiatives to reduce mortality rates to the fullest
extent practicable.
6. If the Training Center, CSBs, or other community provider fails to report harms and
implement corrective actions, the Commonwealth shall take appropriate action with
the provider pursuant to the DBHDS Human Rights Regulations (12 VAC 35-115-
240), the DBHDS Licensing Regulations (12 VAC 35-105-170), Virginia Code
§ 37.2-419 in effect on the effective date ofthis Agreement, and other requirements in
this Agreement.
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D. Data to Assess and Improve Quality
1. The Commonwealth's HCBS waivers shall operate in accordance with the
Commonwealth's CMS-approved waiver quality improvement plan to ensure the
needs of individuals enrolled in a waiver are met, that individuals have choice in all
aspects of their selection of goals and supports, and that there are effective processes
in place to monitor participant health and safety. The plan shall include evaluation of
level of care; development and monitoring of individual service plans; assurance of
qualified providers; identification, response and prevention ofoccurrences of abuse,
neglect and exploitation; administrative oversight of all waiver functions including
contracting; and financial accountability. Reviewof data shall occur atthe local and
state levels by the CSBs andDBHDS/DMAS, respectively.
2. The Commonwealth shall collect andanalyze consistent, reliable data to improvethe
availability and accessibility of services for individuals in the target population and
the quality of services offered to individuals receiving services under this Agreement.
The Commonwealth shall use data to:
a. identify trends, patterns, strengths, and problems at the individual, servicedelivery,
and systemic levels, including, but not limited to, qualityof services,
service gaps, accessibility of services, serving individuals with complex needs,
and the discharge and transition planning process;
b. develop preventative, corrective, and improvement measures to address identified
problems;
c. track the efficacy of preventative, corrective, and improvement measures; and
d. enhance outreach, education, and training.
3. The Commonwealth shall begin collecting and analyzing reliable data about
individuals receiving services under this Agreement selected from the following areas
in State Fiscal Year 2012 and will ensure reliable data is collected and analyzed from
each ofthese areasby June 30, 2014. Multiple types of sources (e.g., providers, case
managers, licensing, risk management, Quality Service Reviews) can provide datain
each area, though any individual type of source need not provide data in every area:
a. Safety and freedom from harm (e.g., neglect and abuse, injuries, use of seclusion
or restraints, deaths, effectiveness of corrective actions, licensing violations);
b. Physical, mental, and behavioral health and well being (e.g., access to medical
care (including preventative care), timeliness and adequacy of interventions
(particularly in response to changes in status));
c. Avoiding crises (e.g., use of crisis services, admissions to emergency rooms or
hospitals, admissions to Training Centers or other congregate settings, contact
with criminal justice system);
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d. Stability (e.g., maintenance of chosen living arrangement, change in providers,
work/other day program stability);
e. Choice and self-determination (e.g., service plans developedthrough personcentered
planning process, choice of services and providers, individualized goals,
self-direction of services);
f. Community inclusion (e.g., community activities, integrated workopportunities,
integrated living options, educational opportunities, relationships with non-paid
individuals);
g. Access to services (e.g., waitlists, outreach efforts, identified barriers, service
gaps and delays, adaptive equipment, transportation, availability of services
geographically, cultural and linguistic competency); and
h. Provider capacity (e.g., caseloads, training, staff turnover, provider competency).
4. The Commonwealth shall collect and analyze data from available sources, including,
the risk management system described in Section V.C. above, those sources described
in Sections V.E-G and I below (e.g., providers, case managers, Quality Service
Reviews, and licensing), Quality Management Reviews, the crisis system, serviceand
discharge plans from the Training Centers, service plans for individuals receiving
waiver services, Regional Support Teams, and CIMs.
5. The Commonwealth shall implement Regional Quality Councils that shall be
responsible for assessing relevant data, identifying trends, and recommending
responsive actions in their respectiveRegions ofthe Commonwealth.
a. The councils shall include individuals experienced in data analysis, residential
and other providers, CSBs, individuals receiving services, and families, and may
include other relevant stakeholders.
b. Each council shall meet on a quarterly basis to shareregional data, trends, and
monitoring efforts and plan and recommend regional quality improvement
initiatives. The work ofthe Regional Quality Councils shall be directed by a
DBHDS quality improvement committee.
6. At least annually, the Commonwealth shall report publicly, through new or existing
mechanisms, on the availability (including the number of people served in each type
of service described in this Agreement) and quality of supports and services in the
community and gaps in services, and shall make recommendations for improvement.
E. Providers
1. The Commonwealth shall require all providers (including Training Centers, CSBs,
and other community providers) to develop and implement a quality improvement
("QI") program, including root cause analyses, that is sufficient to identify and
address significant service issues and is consistent with the requirements ofthe
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DBHDS Licensing Regulations at 12 VAC 35-105-620 in effectonthe effective date
ofthis Agreement andthe provisions ofthis Agreement.
2. Within 12 months ofthe effective date ofthis Agreement, the Commonwealth shall
develop measures that CSBs and other community providers are required to report to
DBHDS on a regular basis, either through their risk management/critical incident
reporting requirements orthrough their QIprogram. Reported key indicators shall
capture information regarding both positive and negative outcomes for bothhealth
and safety and community integration, and willbe selected from the relevant domains
listed in Section V.D.3. above. The measures will be monitored and reviewed by the
DBHDS quality improvement committee, withinput from Regional Quality Councils,
described in Section V.D.5 above. The DBHDS quality improvement committee will
assess the validity of each measure at least annually and update measures
accordingly.
3. The Commonwealth shall use Quality Service Reviews and other mechanisms to
assess the adequacy of providers' qualityimprovement strategies and shall provide
technical assistance and other oversight to providers whose quality improvement
strategiesthe Commonwealth determines to be inadequate.
F. Case Management
1. For individuals receiving case management services pursuant to this Agreement, the
individual's case manager shall meet with the individual face-to-face on a regular
basis and shall conduct regularvisits to the individual's residence, as dictated by the
individual's needs.
2. At these face-to-face meetings, the case manager shall: observe the individual and
the individual's environment to assess for previously unidentified risks, injuries,
needs, or other changes in status; assess the status of previously identified risks,
injuries, needs, or other change in status; assess whether the individual's support plan
is being implemented appropriately and remains appropriate for the individual; and
ascertain whether supports and services are being implemented consistent with the
individual's strengths and preferences and in the most integrated setting appropriate
to the individual's needs. If any ofthese observations or assessments identifies an
unidentified or inadequately addressed risk, injury, need, or change in status; a
deficiency in the individual's support plan or its implementation; or a discrepancy
between the implementation of supports and services and the individual's strengths
and preferences, then the case manager shall report and document the issue, convene
the individual's service planning team to address it, and document its resolution.
3. Within 12 months ofthe effective date ofthis Agreement, the individual's case
manager shall meet with the individual face-to-face at least every 30 days, and at least
one such visit every two months must be in the individual's place of residence, for
any individuals who:
a. Receive services from providers having conditional or provisional licenses;
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b. Have more intensive behavioral or medical needs as defined by the Supports
Intensity Scale ("SIS") category representing the highest level ofrisk to
individuals;
c. Have an interruption of service greater than 30 days;
d. Encounter the crisis system for a serious crisis or for multiple less serious crises
within a three-month period;
e. Have transitioned from a Training Centerwithin the previous 12 months; or
f. Reside in congregate settings of 5 or more individuals.
4. Within 12 months from the effective date ofthis Agreement, the Commonwealth
shall establish a mechanism to collect reliable data from the case managers on the
number, type, and frequency of case manager contacts with the individual.
5. Within 24 months from the date ofthis Agreement, key indicators from the case
manager's face to face visits with the individual, andthe case manager's observations
and assessments, shall be reported to the Commonwealth for its review and
assessment of data. Reported key indicators shall capture information regarding both
positive and negative outcomes for both healthand safety and community integration,
and will be selected from the relevant domains listed in Section V.D.3 above.
6. The Commonwealth shall develop a statewide core competency-based training
curriculum for case managers within 12 months ofthe effective date ofthis
Agreement. This training shall be built on the principles of self-determination and
person-centeredness.
G. Licensing
1. The Commonwealth shall conduct regular, unannounced licensing inspections of
community providers serving individuals receiving services under this Agreement.
2. Within 12 months ofthe effective date ofthis Agreement, the Commonwealth shall
have and implement a process to conduct more frequent licensure inspections of
community providers serving individuals under this Agreement, including:
a. Providers who have a conditional or provisional license;
b. Providers who serve individuals with intensive medical and behavioral needs as
defined by the SIS category representing the highest level ofrisk to individuals;
c. Providers who serve individuals who have an interruption of service greaterthan
30 days;
d. Providers who serve individuals who encounter the crisis system for a serious
crisis or for multiple less serious crises within a three-month period;
e. Providers who serve individuals who have transitioned from a
Training Center within the previous 12 months; and
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f. Providers whoserve individuals in congregate settings of 5 or more individuals.
3. Within 12 months of the effective date ofthis Agreement, the Commonwealth shall
ensure that the licensure process assesses the adequacy of the individualized supports
and services provided to persons receiving services under this Agreement in each of
the domains listed in Section V.D.3 above and that these data and assessments are
reported to DBHDS.
H. Training
1. The Commonwealth shall have a statewide core competency-based training
curriculum for all staffwhoprovide services underthis Agreement. The training
shall include person-centered practices, community integration andself-determination
awareness, and required elements ofservice training.
2. The Commonwealth shall ensure that the statewide training program includes
adequate coaching and supervision of stafftrainees. Coaches and supervisors must
have demonstrated competency in providing the service they are coaching and
supervising.
I. Quality Service Reviews
1. The Commonwealth shall use Quality Service Reviews ("QSRs") to evaluate the
qualityof services at an individual, provider, and system-wide level and the extentto
whichservices are provided in the most integrated setting appropriate to individuals'
needs and choice. QSRs shall collect information through:
a. Face-to-face interviews ofthe individual, relevant professional staff, and other
people involved in the individual's life; and
b. Assessment, informed by face-to-face interviews, of treatment records,
incident/injury data, key-indicatorperformance data, compliance with the service
requirements ofthis Agreement, and the contractual compliance of community
services boards and/or community providers.
2. QSRs shall evaluate whether individuals' needs are being identified and met through
person-centered planning and thinking (including building on individuals' strengths,
preferences, and goals), whether services are being provided in the most integrated
setting appropriate to the individuals' needs and consistent with their informed
choice, and whether individuals are having opportunities for integration in all aspects
oftheir lives (e.g., living arrangements, work and other day activities, access to
community services and activities, and opportunities for relationships with non-paid
individuals). Information from the QSRs shall be used to improve practice and the
quality of services on the provider, CSB, and system wide levels.
3. The Commonwealth shall ensure those conducting QSRs are adequately trained and a
reasonable sample of look-behind QSRs are completed to validate the reliability of
the QSR process.
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4. The Commonwealth shall conduct QSRs annually of a statistically significantsample
of individuals receiving services under this Agreement.
VI. Independent Reviewer
A. The Parties have jointly selected Donald J. Fletcher as the Independent Reviewer forthis
Settlement Agreement. In the event thatthe Independent Reviewer resigns or the Parties
agree to replace theIndependent Reviewer, the Parties will select a replacement. If the
Parties are unable to agree on a replacement within 30 days from the date the Parties
receive a notice of resignation from the Independent Reviewer, or from the datethe
Parties agree to replace the Independent Reviewer, they shall each submit the names of
up to three candidates to the Court, and the Court shall select the replacement from the
names submitted.
B. TheIndependent Reviewer shall conduct the factual investigation and verification of data
and documentation necessaryto determine whetherthe Commonwealth is in compliance
withthis Settlement Agreement, on a six-month cyclecontinuing during the pendency of
the Agreement. The Independent Reviewer is not an agent of the Court, nor does the
Independent Reviewer haveanyauthority to act on behalfof the Court. The Independent
Reviewer may hire staff and consultants, in consultation with and subject to reasonable
objections by the Parties,to assist in his compliance investigations. The Independent
Reviewerand any hired staff or consultants are neither agents nor business associatesof
the Commonwealth or DOJ.
C. The Independent Reviewer shall file with the Court a written report on the
Commonwealth's compliance with the terms ofthis Agreement within 60 days ofthe
close of each review cycle. The first report shall be filed nine months from the effective
date ofthis Agreement. With the consent ofthe Court, the Court will hold a status
conference after the filing of each written report. The Independent Reviewer shall
provide the Parties a draft ofhis/her report at least 21 days before issuing the report. The
Parties shall have 14 days to review and comment on the proposed report before it is filed
with the Court. The Parties may agree to allow the Independent Reviewer an additional
20 days to finalize a report after he/she receives comments from the Parties, and such an
agreement does not require Court approval. In preparing the report, the Independent
Reviewer shall use appendixes or other methods to protect confidential information so
that the report itself may be filed with the Court as a public document. Either Party may
file a written report with the Court noting its objections to the portions ofthe Independent
Reviewer's report with which it disagrees. The Commonwealth shall publish and
maintain these reports on the DBHDS website.
D. Upon receipt ofnotification, the Commonwealth shall immediately report to the
Independent Reviewer the death or serious injury resulting in ongoing medical care of
any former resident of a Training Center. The Independent Reviewer shall forthwith
review any such death or injury and report his findings to the Court in a special report, to
be filed under seal with copies to the Parties. The Parties shall seek a protective order
permitting these reports to be shared with Intervenors' counsel and upon entry of such
order, shall promptly send copies ofthe reports to Intervenors' counsel.
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E. The Independent Reviewer, andany hired staff or consultants, may:
1. Have ex parte communications with the Court uponthe Court's request or with the
consent of the Parties.
2. Have ex parte communications with the Parties at any time.
3. Request meetings with the Parties and the Court.
4. Speak with stakeholders with such stakeholders' consent, on a confidential basis or
otherwise, at the Independent Reviewer's discretion.
5. Testify in this case regarding anymatter relating to the implementation orterms of
this Agreement, including the Independent Reviewer's observations and findings.
6. Offer to provide the Commonwealth with technical assistance and, with the
Commonwealth's consent, provide such technical assistance, relatingto any aspect of
this Agreement or its stated purposes.
7. Conduct regular meetingswith both Parties. The purpose ofthese meetings shall
include, among other things, to prioritize areas for the Independent Reviewer to
review, schedule visits, discuss areas ofconcern, and discuss areas in which technical
assistance may be appropriate.
F. The Independent Reviewer and any hired staff or consultants shall not be liable for any
claim, lawsuit, or demand arising out oftheir duties under this Agreement. This
paragraph does not apply to any proceeding before this Court for enforcement of payment
of contracts or subcontracts for reviewing compliance with this Agreement.
G. The Independent Reviewer and any hired staff or consultants shall not be subject to
formal discovery, including, but not limited to, deposition(s), request(s) for documents,
request(s) for admissions, interrogatories, or other disclosures. The Parties are not
entitled to access the Independent Reviewer's records or communications, or those of
his/her staff and consultants, although the Independent Reviewer may provide copies of
records or communications at the Independent Reviewer's discretion. The Court may
review all records ofthe Independent Reviewer at the Court's discretion.
H. In order to determine compliance with this Agreement, the Independent Reviewer and
any hired staff or consultants shall have full access to persons, employees, residences,
facilities, buildings, programs, services, documents, records, including individuals'
medical and other records, in unredacted form, and materials that are necessary to assess
the Commonwealth's compliance with this Agreement, to the extent they are within the
State's custody or control. This shall include, but not be limited to, access to the data and
records maintained by the Commonwealth pursuant to Section V above. The provision of
any information to the Independent Reviewer pursuant to this Agreement shall not
constitute a waiver of any privilege that would otherwise protect the information from
disclosure to third parties. The Independent Reviewer and any hired staff or consultants
may also interview individuals receiving services under this Agreement with the consent
ofthe individual or his/her Authorized Representative. Access to CSBs and private
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providers and entities shall beat the sole discretion of the CSB or private provider or
entity; however, the Commonwealth shall encourage CSBs and private providers and
other entities to provide such access and shall assist the Independent Reviewer in
identifying and contacting them. The Independent Reviewer shall exercise his/her access
to Commonwealth employees and individuals receiving services under this Agreement in
a mannerthat is reasonable andnot unduly burdensome to the operation of
Commonwealth agencies and that has minimal impact on programs or services being
provided to individuals receiving services under this Agreement. Such access shall
continue untilthe Agreement is terminated. The Parties agree that, in cases ofan
emergency situation that present an immediate threat to life, health, or safety of
individuals, the Independent Reviewer will notbe required to provide the Commonwealth
notice of suchvisit or inspection. Any individually identifying health information that
the Independent Reviewer and any hired stafforconsultants receive or maintain shall be
kept confidential.
I. Budget ofthe Independent Reviewer
1. Within 45 days ofappointment, the Independent Reviewer shall submit to the Court
for the Court's approval a proposed budget for State Fiscal Year 2013. Using the
proposed budget for State Fiscal Year 2013, the Independent Reviewer shall also
propose anequivalent amount prorated through the remainder of State Fiscal Year
2012 as the budget for State Fiscal Year 2012.
2. The Independent Reviewer shall providethe Parties a draft ofthe proposed budget at
least 30 days in advanceof submission to the Court. The Parties shall raise with the
Independent Reviewer any objections they may have to the draft ofthe proposed
budget within 10 business days of its receipt. If the objection is not resolved before
the Independent Reviewer's submission ofa proposed budget to the Court, a Party
may file the objection with the Courtwithin 10 business days ofthe submission ofthe
proposedbudget to the Court. The Court shall consider such objections and make
any adjustments it deems appropriate priorto approving the budget.
3. Thereafter, the Independent Reviewer shall submit annually a proposed budget to the
Court for its approval by April 1 in accordance with the process set forth above.
4. At any time, the Independent Reviewer may submit to the Parties for approval a
proposed revision to the budget, along with any explanation ofthe reason for the
proposed revision. Should the Parties and Independent Reviewer not be able to agree
on the proposed revision, the Court will be notified as set forth in Section V.H.2
above.
5. The approved budget ofthe Independent Reviewer shall not exceed $300,000 in any
State Fiscal Year during the pendency ofthis Agreement, inclusive of any costs and
expenses ofhired staff and consultants, without the approval ofthe Commonwealth
or the Court pursuant to Sections V.H.2. or H.4. above.
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J. Reimbursement and Payment Provisions
1. Thecost of the Independent Reviewer, including the cost of any consultants and staff
to the Reviewer, shall be borne by the Commonwealthin this action up to the amount
of the approved budget for each State Fiscal Year. All reasonable expenses incurred
by the Independent Reviewer in the course of the performance of his/her duties as set
forth in this Agreement shallbe reimbursed by the Commonwealth. In no eventwill
the Commonwealth reimburse the Independent Reviewer for any expense that
exceeds the approved fiscal year budget or the amountapproved under Sections
V.H.4 or H.5 above. The Court retains the authority to resolve any dispute that may
arise regardingthe reasonableness of fees and costs charged by the Reviewer. The
United States shall bear its own expenses in this matter. If a dispute arises regarding
reasonableness of fees or costs, the Independent Reviewer shall provide an
accounting justifying the fees or costs.
2. The IndependentReviewershall submitmonthly statementsto DBHDS,with copies
to the United States and the Court, detailing all expenses the Independent Reviewer
incurred during the prior month. DBHDS shall issue payment in accordance with the
monthly statement as long as such payment is within the approved State Fiscal Year
budget. Such payment shall be made by DBHDS within 10 business days ofreceipt
ofthe monthly statement. Monthly statements shall be provided to: Assistant
Commissioner for Developmental Services, DBHDS, P.O. Box 1797, Richmond,
Virginia 23238-1797.
3. In the event that, upon a request by the United States or the Independent Reviewer,
the Court determines that the Commonwealth is unreasonably withholding or
delaying payment, or if the Parties agree to use the following payment procedure, the
following payment procedure will be used:
a. The Commonwealth shall deposit $100,000.00 into the Registry ofthe Court as
interim payment of costs incurred by the Independent Reviewer. This deposit and
all other deposits pursuant to this Order shall be held in the Court Registry
Investment System and shall be subject to the standard registry fee imposed on
depositors.
b. The Court shall order the clerk to make payments to the Independent Reviewer.
The clerk shall make those payments within 10 days ofthe entry ofthe Order
directing payment. Within 45 days ofthe entry of each Order directing payment,
the Commonwealth shall replenish the fund with the full amount paid by the clerk
in order to restore the fund's total to $100,000.00.
K. The Independent Reviewer, including any hired staff or consultants, shall not enter into
any contract with the Commonwealth while serving as the Independent Reviewer. If the
Independent Reviewer resigns from his/her position as Independent Reviewer, he/she
may not enter into any contract with the Commonwealth on a matter related to this
Agreement during the pendency ofthis Agreement without the written consent ofthe
United States.
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L. Other than the semi-annual compliancereport pursuant to Section VI.C above or
proceedings beforethe Court, the Independent Reviewer, and any hired staff or
consultants, shall refrain from any public oral or written statementsto the media,
including statements "on background," regarding this Agreement, its implementation, or
the Commonwealth's compliance. In addition, the Independent Reviewer shall not
establishor maintain a website regarding this Agreement, its implementation, or the
Commonwealth's compliance.
VII. Construction and Termination
A. The Partiesagreejointly to file this Agreement with the United States District Courtfor
the Eastern District of Virginia, Richmond Division.
B. TheParties anticipate that the Commonwealth willhave complied with all provisions of
the Agreement by the end of State Fiscal Year2021. Compliance is achieved whereany
violations of the Agreement are minoror incidental and are not systemic. The Courtshall
retainjurisdiction ofthis action for all purposes until the end of State Fiscal Year 2021
unless:
1. The Partiesjointly ask the Court to terminate the Agreementbefore the end of State
Fiscal Year 2021, provided the Commonwealthhas complied with this Agreement
and maintained compliance for one year; or
2. The United States disputes that the Commonwealth is in compliance with the
Agreement at the end of State Fiscal Year2021. The United States shall inform the
Court and the Commonwealth by January 1, 2021, that it disputes compliance, and
the Court may schedule further proceedingsas appropriate. The Party that disagrees
with the Independent Reviewer's assessment of complianceshall bear the burden of
proof.
C. The burden shall be on the Commonwealth to demonstrate compliance to the United
States pursuant to Section VII.B.l above. If the Commonwealthbelieves it has achieved
compliance with a portion of this Agreementand has maintained compliance for one
year, it shall notify the United States and the IndependentReviewer. If the United States
agrees, the Commonwealth shall be relieved ofthat portion ofthe Settlement Agreement
and notice of such relief shall be filed with the Court. The Parties may instead agree to a
more limited review ofthe relevant portion ofthe Agreement.
D. With the exception of conditions or practices that pose an immediate and serious threat to
the life, health, or safety of individuals receiving services under this Agreement, if the
United States believes that the Commonwealth has failed to fulfill any obligation under
this Agreement, the United States shall, prior to initiating any court proceeding to remedy
such failure, give written notice to the Commonwealth which, with specificity, sets forth
the details ofthe alleged noncompliance.
1. With the exception of conditions or practices that pose an immediate and serious
threat to the life, health, or safety of individuals covered by this Agreement, the
Commonwealth shall have forty-five (45) days from the date of such written notice to
respond to the United States in writing by denying that noncompliance has occurred,
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or by accepting (without necessarily admitting) the allegation of noncompliance and
proposing steps that the Commonwealth will take, and by when, to cure the alleged
noncompliance.
2. If the Commonwealth fails to respond within45 days or denies thatnoncompliance
has occurred, the United States may seek an appropriate judicial remedy.
3. If the Commonwealth timely responds by proposing curative action by a specified
deadline, the United States may accept the Commonwealth's proposal or offer a
counterproposal for adifferent curative action ordeadline, butin no event shall the
United States seek anappropriate judicial remedy for the alleged noncompliance until
after the time provided for the Commonwealth to respond under Section VII.D.2
above. If the Parties fail to reach agreement on a plan for curative action, the United
States may seek an appropriate judicial remedy.
4. Notwithstanding the provisions ofthis Section, with the exceptionofconditions that
pose animmediate and serious threat to the life, health, or safety of individuals
receiving services under this Agreement, the United States shall neither issuea
noncompliance notice nor seekjudicial remedy for the nine months afterthe effective
date ofmis Agreement.
E. If the United States believes that conditions or practices within the control ofthe
Commonwealth pose an immediate andserious threat to the life, health, or safety of
individuals in the Training Centers or individualsreceiving services pursuantto this
Agreement, the United States may, without further notice, initiatea court proceeding to
remedy those conditions or practices.
F. This Agreement shall constitute the entire integrated Agreement ofthe Parties.
G. Any modification ofthis Agreement shall be executed in writing by the Parties, shall be
filed with the Court, and shall not be effective until the Court enters the modified
agreement and retains jurisdiction to enforce it.
H. The Agreement shall be applicable to, and binding upon, all Parties, their employees,
assigns, agents, and contractors charged with implementation ofany portion ofthis
Agreement, and their successors in office. If the Commonwealth contracts with an
outside provider for any ofthe services provided in this Agreement, the Agreement shall
be binding on any contracted parties, including agents and assigns. The Commonwealth
shall ensure that all appropriate Commonwealth agencies take any actions necessary for
the Commonwealth to comply with provisions ofthis Agreement.
I. The Commonwealth, while empowered to enter into and implement this Agreement, does
not speak for the Virginia General Assembly, which has the authority under the Virginia
Constitution and laws to appropriate funds for, and amend laws pertaining to, the
Commonwealth's system of services for individuals with developmental disabilities. The
Commonwealth shall take all appropriate measures to seek and secure funding necessary
to implement the terms ofthis Agreement. If the Commonwealth fails to attain necessary
appropriations to comply with this Agreement, the United States retains all rights to
enforce the terms ofthis Agreement, to enter into enforcement proceedings, or to
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withdrawits consent to this Agreement and revive any claims otherwise barred by
operation ofthis Agreement.
J. The United States and the Commonwealth shall bear the cost oftheir fees and expenses
incurred in connection with this case.
VIII. General Provisions
A. The Commonwealth agreesthat it shallnot retaliate againstany person becausethat
person has filed or may file a complaint,provided assistance or information, or
participated in any other manner in the United States' investigation or the Independent
Reviewer's duties related to this Agreement. The Commonwealth agrees that it shall
timely and thoroughly investigate anyallegations of retaliation in violation of this
Agreement and take any necessary corrective actions identified through such
investigations.
B. If an unforeseen circumstance occurs that causes a failure to timely fulfill any
requirement of this Agreement, the Commonwealth shall notify the United Statesand the
Independent Reviewer in writing within20 calendardays after the Commonwealth
becomes aware ofthe unforeseen circumstance and its impact on the Commonwealth's
abilityto performunderthe Agreement. The notice shall describethe cause of the failure
to perform and the measures taken to prevent or minimize the failure. The
Commonwealth shall take reasonable measures to avoid or minimize any such failure.
C. Failure by any Party to enforce this entire Agreement or any provision thereof with
respect to any deadline or any other provisionherein shall not be construed as a waiver,
including of its right to enforce other deadlines and provisions ofthis Agreement.
D. The Parties shall promptly notify each other of any court or administrative challenge to
this Agreement or any portion thereof, and shall defend against any challenge to the
Agreement.
E. Exceptas provided in this Agreement, during the pendencyofthe Agreement, the United
States shall not file suit under the ADA or CRIPA for any claim or allegation set forth in
the complaint.
F. The Parties represent and acknowledge this Agreement is the result of extensive,
thorough and good faith negotiations. The Parties further represent and acknowledge that
the terms ofthis Agreement have been voluntarily accepted, after consultation with
counsel, for the purpose of making a full and final compromise and settlement of any and
all claims arising out of the allegations set forth in the Complaint and pleadings in this
Action, and for the express purpose of precluding any further or additional claims arising
out ofthe allegations set forth in the Complaint and pleadings in this Action. Each Party
to this Agreement represents and warrants that the person who has signed this Agreement
on behalfofhis or her entity is duly authorized to enter into this Agreement and to bind
that Party to the terms and conditions ofthis Agreement.
G. Nothing in this Agreement shall be construed as an acknowledgement, an admission, or
evidence of liability ofthe Commonwealth under federal or state law, and this Agreement
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shall not be used as evidence of liability in this or any other civil or criminal proceeding.
H. This Agreement may be executed in counterparts, each of whichshall be deemed an
original,and the counterparts shall togetherconstitute one and the same agreement,
notwithstandingthat each Party is not a signatory to the original or the same counterpart.
I. "Notice" under this Agreement shall be provided to the following or their successors:
For the United States:
Chiefofthe Special Litigation Section
United States Department ofJustice
Civil Rights Division
601 D Street, N.W.
Washington, D.C. 20004
For the Commonwealth:
Attorney General of Virginia
900 E. Main Street
Richmond, VA 23219
Counsel to the Governor
Patrick Henry Building, 3rd Floor
1111 E. Broad Street
Richmond, VA 23219
For the Independent Reviewer:
Donald J. Fletcher
P.O. Box 54
16CornwellRoad
Shutesbury, MA 01072-0054
IX. Implementation of the Agreement
A. The implementation ofthis Agreement shall begin immediately upon the Effective Date,
which shall be the date on which this Agreement is approved and entered as an order of
the Court.
B. Within one month from the Effective Date ofthis Agreement, the Commonwealth shall
appoint an Agreement Coordinator to oversee compliance with this Agreement and to
serve as a point of contact for the Independent Reviewer.
C. The Commonwealth shall maintain sufficient records to document that the requirements
ofthis Agreement are being properly implemented and shall make such records available
to the Independent Reviewer for inspection and copying upon request and on a
reasonable basis.
D. The Commonwealth shall notify the Independent Reviewer and the United States
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promptly upon the unexplained or unexpected death or serious physical injury resulting in
on-going medical care of any individual covered by this Agreement. The
Commonwealth shall, via email, forward to the United States andthe Independent
Reviewer electronic copies of all completed incident reports and final reports of
investigations related to such incidents, as well as any autopsies and death summaries in
the State's possession. The provision ofanyinformation to the Independent Reviewer
andthe United States pursuant to this Agreement shall not constitute a waiverof any
privilege that would otherwise protect the information from disclosure to third parties.
The United States shall have full access to persons, employees, residences, facilities,
buildings, programs, services, documents, records, and materials that are within the
control and custody ofthe Commonwealth andare necessary to assess the
Commonwealth's compliance with this Agreementand/or implementation efforts.
1. Such access shall include departmental and/or individualmedical and other records in
unredacted form.
2. The United States shall provide notice at least one week in advance ofany visit or
inspection.
3. The Parties agree that, in cases of anemergency situation that presents an immediate
threat to life, health, or safety of individuals, the United States wijl be required to
providethe Commonwealth with sufficient notice of such visit or inspection as to
permit a Commonwealth representative to join the visit.
4. Such access shall continue until this case is dismissed.
5. The Commonwealth shall provide to the United States, as requested, in unredacted
form, any documents, records, databases, and information relating to the
implementation ofthis Agreement as soon as practicable, but no later than within
thirty (30) business days ofthe request, or within a time frame negotiated by the
Parties if the volume ofrequested material is too great to reasonably produce within
thirty days.
6. The provision of any information to the United States pursuant to this Agreement
shall not constitute a waiver of any privilege that would otherwise protect the
information from disclosure to third parties.
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FOR THE UNITED STATES:
NEIL H. MacBRIDE
United States Attorney
Eastern District ofVirginia
ROBERT McINTOSH
Virginia Bar Number 66113
Attorney for the United States of America
United States Attorney's Office
600 East Main St., Suite 1800
Richmond, VA 23219
Telephone: (804) 819-5400
Facsimile: (804) 819-7417
Email: Robert.McIntoshffiusdoi.gov
Respectfully submitted,
THOMAS E. PEREZ
Assistant Attorney General
Civil Rights Division
EVE HILL
Senior Counselor to the Assistant Attorney General
Civil Rights Division
ALISON N.BARKOFF
Special Counsel for Olmstead Enforcement
Civil Rights Division
JONATHAN SMITH
Chief
Special Litigation Section
BE!
Deputy pnief
AARON B. ZISSER
JACQUELINE K. CUNCANNAN
VINCENT HERMAN
Trial Attorneys
U.S. Department of Justice
Civil Rights Division
Special Litigation Section
950 Pennsylvania Ave, NW
Washington, D.C. 20530
(202) 305-3355
Fax: (202)514-4883
Aaron.Zisser@usdoi .gov
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FOR THE COMMONWEALTH:
WILLIAM A. HAZEL, JR., M.D.
Secretary of Health and Human Resources
on Behalf of Governor Robert F. McDonnell
KENNETH T. CUCCINELLI, II
as Attorney General ofVirginia pursuant to Virginia Code § 2.2-514
£
ALLYSON^C. TYSINGER
Senior Assistant Attorney General
900 East Main Street
Richmond, Virginia 23219
(804) 786-1927
Fax: (804)371-8718
ATysinger@oag.state.va.us
Virginia State Bar No. 41982
( ujpu^vQl/v
-?*rv "//Z.
=UliI12,
39
Case 3:12-cv-00059-JAG Document 112 Filed 08/23/12 Page 52 of 53 PageID# 4690
ENTERED THIS /£_ day of &yX .2012.
UNITED STATES DISTRICTJtfJDGE
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