A lengthy legal dispute over use of restraints at two state facilities continues. In February U.S. District Court Judge Donovan Frank rejected a Minnesota Department of Human Services (DHS) request to stay an external review on use of restraints, until a DHS appeal can be heard at the Eighth Circuit Court of Appeals.
The ongoing fight over restraints coincides with a DHS investigative report also released in February. The report indicates that the Forensic Mental Health Program/Minnesota Security Hospital at St. Peter violated its own policies and state law in the treatment of a vulnerable adult in September 2019. That violation resulted in a $1,000 fine.
Use of restraints against people with disabilities is considered inhumane as it can cause physical injury and trauma. State officials have emphasized the use of other techniques to manage behavior, considering restraints to be something used only as a last resort. Additional staff training and offering of alternative techniques have emerged as priorities in recent years.
In the September 2019 case in St. Peter, the patient refused an as-needed medication, made verbal threats, and was then manually restrained and placed in a restraint chair. The patient was spitting while restrained, so a staff member pulled a sweatshirt hood over the patient’s head. The patient reported an injury causing limited neck movements after being restrained for more than an hour.
The report indicates that there was video of the patient acting in an agitated manner, and punching a Plexiglas window. Video also showed staff talking to the patient, who was in an area away from other patients. That happened before the restraint chair was used.
The patient who was restrained has autistic spectrum disorder, post-traumatic stress disorder, pedophilic disorder, borderline intellectual functioning, attention deficit hyperactivity disorder, and antisocial personality disorder. The patient also had a history of anxiety, impulsivity, irritability, self-injurious behaviors, physical aggression, and making verbal threats.
The DHS investigation is detailed in a 17-page report, which states that the restraints used weren’t therapeutic and escalated the patient’s behavior. The investigation also concluded that the use of restraints. represented a failure to provide “reasonable and necessary care.”
The restraints debate is the latest wrinkle in a dispute that began to make its way through the courts in 2009. Parents of three residents of the Minnesota Extended Treatment Options (METO) facility in Cambridge filed a class action lawsuit against DHS, METO and individuals involved citing mistreatment of residents. That mistreatment included allegations of unlawful and unconstitutional use of seclusion and restraints.
A settlement agreement was reached in 2011. While the settlement has led to changes and kick-started Minnesota’s federally mandated Olmstead Plan for community integration for people with disabilities, use of restraints and a positive supports rule continue to be disputed.
Under the settlement agreement, prohibited behavioral techniques are mechanical restraints such as metal handcuffs, leg hobbles, cable tie cuffs, plasticuffs, flexicuffs, soft cuffs, posey cuffs, manual restraint, prone restraint, chemical restraint, seclusion, and the use of painful techniques to change behavior through punishment of residents with developmental disabilities. Medical/chemical restraints and psychotropic/ neuroleptic medications shall not be used for punishment.
The settlement agreement spells out that “certain specified manual and mechanical restraints shall only be used in the event of an emergency. This policy also prohibits the use of prone restraint, chemical restraint, seclusion and time out.”
DHS has sought to end federal court jurisdiction over the settlement but the disagreement over restraints has meant the court continues to have authority.
In December 2019 the court ordered two sides to meet and select an individual to conduct an external review of the Anoka Metro Regional Treatment Center and the Forensic Mental Health Program, formerly the Minnesota Security Hospital at St. Peter. The review is meant to address the extent to which the state facilities’ use of mechanical restraint reflects current best practices.
If the plaintiffs and defendants couldn’t agree on a reviewer, the court asked that each nominate two individuals and send the names to the court for a decision.
The plaintiffs nominated Dr. Gary LaVigna and David Ferleger. Both have experience with cases including those of use of restraints. LaVigna in June 2019 worked with DHS officials on an external review on the use of prohibited techniques at Minnesota Life Bridge Homes, and has been involved with other reviews. Ferleger has submitted several reports on the court case over the years as a monitor.
Court documents indicate that the state’s two nominees lack the experience needed for the review, so the court ordered DHS to select either LaVigna or Ferleger to conduct the external review of the two state facilities. The deadline to select a reviewer was last month. DHS had the option of selecting a reviewer or appealing the issue to the Eighth Circuit Court of Appeals.