On November 7, 2002, the U.S. Department of Justice's Civil Rights Division ("DOJ") sent its "findings letter" to Kentucky's governor, advising him of the results of the November 2001, DOJ investigation of conditions and practices at the Oakwood Developmental Center ("Oakwood"), a state-operated center in Somerset, Kentucky, for developmentally and mentally disabled persons. (Although legally a "commonwealth," Kentucky will be referred to in this summary as a state, as it is more commonly known.) The investigations occurred under the authority of the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. DOJ and expert consultants visited the facility, reviewed a wide array of documents there, and conducted interviews with personnel and residents. The letter commended Oakwood and state government staff for providing a high level of cooperation during the investigation. The investigation found multiple deficiencies in resident care at Oakwood, in that numerous conditions and services there substantially departed from generally accepted standards of care. Constitutional and federal statutory rights of residents at the facility were violated in several respects, according to the DOJ.
DOJ concluded that deficiencies existed in conditions of resident care and treatment due to Oakwood's failure to provide adequate: (1) protection of its residents from harm due to abuse, mistreatment, neglect, improper use of restraints, pica behavior (ingestion of non-food items), and an overall lack of environmental safety; (2) behavioral and psychology services, including adequate treatment team meetings, individual and behavioral support plans, and training programs; (3) psychiatric services; (4) medical care, including neurological care; (5) nursing care; (6) staffing and staff training; (7) nutritional management; (8) physical therapy, and (9) quality assurance mechanisms designed to self-correct institutional problems. The letter provided details of deficiencies for all of these categories.
This summary provides examples of these details, using the numeric indicator from the prior paragraph, as follows: (1) numerous and recurring incidents of abuse and neglect by staff; continued employment of documented abusers; inadequate investigations of incidents; unacceptably high volume of abuse and neglect incidents; inadequate supervision and communication regarding residents known for pica or self-injurious behaviors; (2) inadequate interdisciplinary care team meetings and individual/behavior support plans; overuse of chemical and physical restraints; inadequate resident training programs; insufficient psychological staff resources; (3) incorrect psychiatric diagnoses and use of psychotropic medications without psychiatric diagnoses; no peer review of psychiatric care nor any functional system for treatment of movement disorders; untrained staff; (4) poor preventative care, medical monitoring, communication among medical professionals, record keeping, and mortality review; inadequate evaluation, diagnosis, and treatment for seizure disorders leading to improper medication usage; (5) fragmented, incomplete, and inconsistent nursing assessments and documentations; high level of medication errors; vague medical emergency protocols and inadequate documentation of emergencies by poorly trained staff; outdated and ineffective infection control practices; haphazard staffing; (6 and 7) inadequate individual meal management plans; unmonitored, unaided meals for residents with swallowing difficulties; under-staffing at mealtimes resulting in cold food; (7 and 8) absence of a positioning program; overuse of wheelchairs; inadequately trained direct care staff; understaffed physical therapy department; and (9) no quality improvement program capable of addressing systemic crises in clinical services; absence of formal feedback system; nursing performance goals not objective and measurable, precluding reliable assessment and monitoring; and a total lack of a management information system.
In addition to the remarkable list of deficiencies at Oakwood, the letter also noted that the state regularly deprived Oakwood residents who desired to live in the community and who reasonably can be accommodated an adequate opportunity to do so, in violation of the state's obligations under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132 et seq., and ADA-related regulations.
Ten pages of minimally-acceptable remedial measures for each of these categories were outlined in the letter, which concluded by inviting continued further collaboration in implementing the remediation. The letter provided notice that, absent a resolution of the federal concerns, the DOJ would file a CRIPA lawsuit to compel correction of the identified deficiencies at Oakwood.
Subsequently, on September 21, 2004, the state and DOJ entered into a memorandum of understanding, setting out a "Strategic Action Plan" that aimed to resolve the many deficiencies in care and conditions at Oakwood (which, by this time, had been re-named and re-organized as the Communities at Oakwood). It included the appointment of a jointly-selected monitor, Dr. Nirbhay N. Singh, Ph. D., to oversee, at state expense, Kentucky's implementation of the memorandum and its plan. The plan, an attachment to the memorandum, set specific goals and target dates for achieving them.
On August 31, 2006, in the U.S. District Court for the Eastern District of Kentucky, DOJ simultaneously filed a CRIPA complaint against the state and a settlement agreement between the parties, the latter referencing and attaching the strategic action plan obligating the state to implement remedial measures. The settlement named the same monitor, who would also now report compliance progress to the court. The lawsuit, seeking declaratory and injunctive relief, described practices at Oakwood that violated the 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 document its progress in ensuring, improvements that would bring the facility up to generally accepted professional standards of care. The state also obliged itself to educate Oakwood employees about the requirements imposed by the settlement agreement. The settlement provided for the United States to conduct regular compliance reviews, with facility inspections and interviews of staff and residents, and to fully access and review relevant documents.
District Judge Karen K. Caldwell approved the settlement on September 13, 2006, retaining jurisdiction to enforce the strategic action plan.
Following several years of the parties providing periodic updates to the court, the parties filed a Joint Notice of Dismissal and the court signed an order closing the case on September 29, 2011.Elizabeth Daligga - 07/25/2012