After a two-hour hearing in federal district court on Thursday, Dec. 1, Judge Donovan Frank ordered final approval of the settlement of the class action lawsuit prompted by excessive use of restraint of residents of the Minnesota Extended Treatment Options (METO) in Cambridge. Parents of three METO residents brought this lawsuit in 2009 and sought changes in the facility practices and money damages for those residents and other METO residents who had been restrained or secluded there.

None of the class members, about 300 persons who had been secluded or restrained while at METO from July 1, 1997 through May 11, 2011, objected to the settlement agreement which, among other things, prohibited the kinds of mechanical restraint that had been used at METO at the new program, Minnesota Specialty Health System-Cambridge, started when METO closed at the end of June. The agreement also provided for money damages awards to class members in amounts ranging from $200 to $300,000, calculated on the basis of about $200 for each time a resident was restrained or secluded.

A unique aspect of this “fairness hearing” was that the judge took a very active role to ensure that class members would continue to be eligible for public benefit programs such as Medical Assistance after they received the funds. He emphasized that the agreement included protections to ensure that class members could actually make use of this money. Among them was his order that “to the extent of the Court’s authority” taking the damage award would not jeopardize any disability benefits or related funding. All damage awards more than $3,000 (the assets limit for one person on Medical Assistance) would be held by the Court until Frank was shown that the person to receive it could do so without losing eligibility for benefits.

The settlement provided for $50,000 to pay for lawyers to set up special needs trusts if they were necessary, but Frank had also arranged for pro bono representation so that this sum could be used in other ways. He stressed in his comments from the bench that no check would be written for the settlement money held by the Court until he was sure that the person would actually be allowed to use it.

Steve Larson from Arc Minnesota, Bud Rosenfield from the Disability Law Center, Colleen Wieck from the Minnesota Governor’s Council on Developmental Disabilities, and Roberta Opheim, the Ombudsman for Mental Health and Developmental Disabilities all spoke in support of sections of the agreement regarding expansion of state operated community support services, development of a plan for expansion of community resources (called an Olmsted plan with reference to a United States Supreme Court decision), and establishment of a committee to propose changes in Rule 40, the rule governing use of aversive and deprivation procedures. In response to questions from Frank, each of them assured him they would seek to hold the Department of Human Services accountable to comply with these provisions. The judge’s question reflected the lack of other enforcement procedures in the agreement. DHS Deputy Commissioner Anne Barry also assured the Court that she, the Commissioner of Human Services, and others within the Department were committed to fulfilling the requirements of the settlement agreement to enable persons with disabilities to live in our communities and to be treated with respect and dignity.

Barry’s comments echoed statements by Heidi Mhyre and Kurt Rutzen, persons with disabilities. Mhyre, who had been placed in restraint at Anoka State Hospital, said the settlement agreement was important for the future of people in the next generation. Rutzen emphasized to Frank that the settlement agreement was a way to bring issues of respect and dignity and integration into the community to the forefront.

Frank’s responsibility in this hearing was to determine whether the settlement agreement was fair and reasonable and adequately protected the interests of all members of the class. At the close of the hearing he made that determination in open court. He also said that the agreement made to pay almost $1,000,000 in attorney’s fees to the plaintiffs’ lawyer was appropriate