On April 8, 2003, the U.S. Department of Justice’s Civil Rights Division (“DOJ”) sent a findings letter to New Jersey’s governor, advising him of the results of a May-June 2002, DOJ investigation of conditions and practices at the New Lisbon Developmental Center (NLDC), which houses people with developmental disabilities, with intellecutal disabilities that ranged from mild to profound. The investigation occurred under the authority of the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997.
Based on a site visit and document review, and despite the state’s recent efforts to improve, DOJ advised that its investigation found continuing deficiencies in resident care at NLDC; conditions and services there substantially departed from generally accepted standards of care, and violated both constitutional and federal statutory rights of residents.
According to the findings letter, deficiencies existed in five topic areas, causing residents significant harm or risk of harm through NLDC’s failure to: (1) keep residents safe (e.g., residents subjected to neglect, physical and verbal abuse; disproportionate number of unexplained injuries; facility’s systematic reductions in penalties for abuse fostered atmosphere where abuse and neglect were tolerated); (2) provide residents with adequate psychological, behavioral, and psychiatric services (e.g., inadequate, non-individualized behavior programs and functional analysis of problem behaviors, including a failure to sufficiently incorporate positive reinforcement and health concerns in plans; inconsistent program implementation, monitoring, and follow-up; poor staff training and plan revision; unreasonable, excessive, and insufficiently-recorded use of restraints, padded helmets, and medications or manual contact for control; inadequate psychiatric staffing; failure to employ data-based decision-making; psychotropic polypharmacy without strong justification and intense oversight); (3) provide adequate habilitation services and supports to residents (e.g., lack of skills training objectives or of person-centered planning; plans that are not comprehensive, holistic, or the product of an interdisciplinary process, and which lack measurable outcomes or specificity in services; inconsistent plan implementation; poorly-trained staff which seldom engaged residents or collected/recorded adequate data to permit evaluation and improvement; insufficient training, vocational, and work opportunities for residents who would benefit from such services); (4) provide adequate health care (failure to meet needs of residents with bowel obstructions and nutritional and physical management concerns; inadequate neurological services for residents with seizure disorders; over-obligated physicians; substandard mealtime, positioning, and seating assistance and assessments; occupational, physical, and communication therapy inadequacies; unacceptable oral hygiene); and (5) provide services to NLDC residents in the most integrated setting appropriate to the residents’ needs, as required by the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq.; 28 C.F.R § 35.130(d). As to this latter category, DOJ observed slow and poorly-funded transitions resulting from a NLDC process inadequate to identify appropriate individuals for community placement. The letter provided details of deficiencies for all five of the categories, and outlined proposed remedial measures, and warned the state that, absent resolution of federal concerns, the DOJ would file a CRIPA lawsuit to compel correction of the identified deficiencies at NLDC.
On August 2, 2004, in the U.S. District Court for the District of New Jersey, DOJ simultaneously filed a CRIPA complaint against New Jersey and its officials responsible for operation of the NLDC and tendered a settlement agreement between the parties, the latter setting out numerous remedial measures to be taken by the state in response to the deficiencies existing at NLDC. The lawsuit, seeking declaratory and injunctive relief, set out that the state had violated NLDC violated residents’ Fourteenth Amendment due process rights and their rights under the Americans with Disabilities Act (“ADA”), 42 U.S.C §§ 12101 et seq., and the ADA’s implementing regulations, 28 C.F.R. Part 35.
The settlement obligated the state to ensure, and to periodically report upon its progress in ensuring, improvements that would bring the facilities up to generally accepted professional standards of care. The agreement provided that Elin Howe would be appointed as Compliance Monitor, with the ability to use independent consultants funded by the state. The monitor would also be state-funded, with total monitor-and-consultant costs capped at $200,000 per year, except added funds would be available for abuse, neglect, or death-related monitoring/reporting). She was required to periodically report, pursuant to an attached protocol, upon the state’s compliance with obligations imposed by the agreement. After four years, the agreement would automatically terminate, unless extended through agreement of the parties or terminated earlier due to substantial compliance being achieved. The settlement also allowed for the United States, if it had cause to believe conditions threatened the immediate health and safety of NLDC residents (and at any time in the final six months of the agreement) to conduct compliance reviews, with facility inspections and interviews of staff and residents, and to fully access and review relevant documents.
District Judge Garrett E. Brown, Jr., approved the settlement on August 5, 2004, and issued an unpublished order which granted the parties’ request to conditionally dismiss the case.
On June 13, 2008, the parties agreed to a one-year extension of the settlement agreement. On August 21, 2009, the court signed an order of final dismissal in the case. Elizabeth Daligga - 07/25/2012