The Minnesota Specialty Health Systems facility in Cambridge operated for 10 months without a required state license and then tried to conceal that status. Those actions brought a scolding from U.S. District Court Judge Donovan Frank, who must now decide how to sanction the Minnesota Department of Human Services (DHS).

Frank’s December 17 memorandum is just the latest chapter in a long and troubling saga centered on the DHS-run facility. During its years as the Minnesota Extended Treatment Options (METO) program, the Cambridge facility drew scrutiny for its treatment of about 300 residents with developmental disabilities. Use of seclusion and restraint were the major problems. Residents were restrained and at times were physically injured by staff, on top of the emotional injuries they sustained.

That led to legal action led by three residents’ families in 2009 and a $3million class action settlement in December 2011. The settlement called for a number of changes, including mandate training for DHS staff, emphasis to positive behavioral support, regular reporting and completion of the federally required Olmstead Plan. METO closed in late June 2011 and Minnesota Specialty Health Systems opened in its place.

The families involved in the case are concerned that the state isn’t acting in good faith. One huge red flag they raised at a November 2013 hearing is that the current Cambridge facility wasn’t licensed by the state from July 1, 2011 until April 24, 2013. That issue was raised in June 2013 by a court monitor.

DHS officials admitted that they didn’t submit a license application for the Cambridge facility until February 2012. That means the Cambridge facility operated without a license, in violation of the December 2011 settlement agreement, for more than three months. In court document, DHS officials admitted that violation and called it “inexcusable.”

“This violation is anything but a trivial or unimportant matter,” Frank wrote in the memorandum. “For example, Cambridge residents and their families were entitled to have a facility which complied with fundamental

legal requirements. This court is more than a mere bystander to this very important settlement agreement where all parties promised to improve the lives of people with disabilities. The court further finds that DHS consciously concealed and misled the plaintiffs and the court with regard to the lack of licensure, or if not consciously concealed and misled, was indifferent to both the violation and the expectation of candor with all parties, including the court; conceding the violation once it was reported by the court does not mitigate this in any way.”

The plaintiffs have asked that $150,000 be paid into a fund set up for people with developmental disabilities and their families, and that $50,000 be paid to cover legal costs. While Frank December 17 granted the motion for sanctions, he needs more time to decide what those sanctions should be.

While the only issue before the court in the current proceeding is the lack of proper state licensing, in his memorandum Frank also expressed unhappiness at DHS’s “slow pace” in coming into compliance with what is now a two-year-old settlement.

The facility’s operating license was required by the original settlement agreement. In December 2011, as part of the federal class action settlement, DHS agreed to “immediately and permanently discontinue the use of mechanical restraint,” including handcuffs and other devices at Cambridge and all other state-operated facilities serving people with developmental disabilities.

DHS Deputy Commissioner Anne Barry responded to the order with a statement saying the legal settlement has “resulted in system-wide improvements in Department of Human Services facilities and in the lives of many of the clients we serve.”

DHS has also contended that it has made much progress in reducing the use of seclusion and restraints throughout its system, and that more people are being moved from state-run institutions to community settings. Another accomplishment in the settlement agreement is the recent completion of Minnesota’s Olmstead Plan, which was released in October 2013.

An Olmstead Plan is a way for states to document services provided to individuals with disabilities in the most integrated setting appropriate to the individual. Olmstead plans include analysis of current services, concrete commitments to increase integration and to prevent unnecessary institutionalization, and specific and reasonable timeframes, among other components. One part of Minnesota’s plan is meant to guide expansion of the range of community and home-based settings for people with disabilities.