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The following document is a summary of the settlement reached between the parties of Marr, et al v. Eastern State Hospital. To read the background on the lawsuit, please see the articles in Envoy On-Line titled, WPAS files Lawsuit Against Eastern State Hospital, and WPAS Settles Marr Lawsuit with Eastern State Hospital.
Settlement Summary of
Marr, et al. v. Eastern State Hospital, et al.
Prepared by the Washington Protection and Advocacy System
Table of Contents:
The Washington Protection and Advocacy System (WPAS), in conjunction with the Disability Law Center and Davis Wright Tremaine, LLP, has reached a settlement agreement with the State of Washington in the case Marr, et al. v. Eastern State Hospital, et al. This settlement agreement was approved by the Honorable William Fremming Nielson. The following is a summary of that settlement agreement.
About the lawsuit in general:
What was this lawsuit about?
On December 13, 2001, WPAS filed a class action lawsuit in the United States District Court Eastern District of Washington. This lawsuit alleged that the services provided by the State of Washington to individuals with developmental disabilities who were living at Eastern State Hospital did not meet the minimum standards of care that are guaranteed by the United States Constitution. The lawsuit also alleged that the community supports and services were inadequate for people with developmental disabilities and mental health needs who live Eastern Washington.
More specifically, WPAS alleged that conditions were unsafe at Eastern State Hospital for people with developmental disabilities in part because:
 | Eastern State Hospital employed an excessive amount of physical restraints, chemical restraints, seclusion, “therapeutic holds,” and “time outs.” |
| The units where people with developmental disabilities were living were overcrowded. |
| Eastern State Hospital failed to separate vulnerable patients from predatory patients. |
| Eastern State Hospital failed to separate patients with developmental disabilities from patients who did not have developmental disabilities. |
| Eastern State Hospital did not adequately report and investigate allegations of patient abuse and neglect, in violation of their own policies and state law. |
| Eastern State Hospital did not provide appropriate treatment to individuals with developmental disabilities and mental health needs. |
| Eastern State Hospital did not provide minimally adequate discharge planning to people with developmental disabilities and mental health needs. |
In regard to community services, WPAS alleged in part that:
| Community providers did not have the resources to provide adequate supervision of individuals with developmental disabilities and mental health needs. |
| Community supports and services were not sufficiently individualized. |
| Community providers lacked sufficient access to trained professionals to assist in the development of more individualized services. |
| People with developmental disabilities and mental health needs did not have adequate access to psychiatric services. |
| The community services provided in Eastern Washington were not comparable to the services provided in Western Washington, as according to a previous lawsuit, Allen, et al. v. Western State Hospital, et al. |
| Because of these limited community resources, individuals with developmental disabilities were at an unacceptable risk of being returned to Eastern State Hospital. |
Who did WPAS sue?
In Marr, et al. v. Eastern State Hospital, et al., WPAS sued Governor Gary Locke; Eastern State Hospital and its Chief Operating Officer, Harold Wilson; the Washington State Department of Social and Health Services and its Secretary, Dennis Braddock; the Division of Developmental Disabilities and its Acting Director, Linda Rolfe; the Mental Health Division and its Director, Karl Brimner; the Office of Financial Management and its Director, Martin Brown; and the State of Washington Medical Assistance Administration and its Assistant Secretary, Douglas Porter. All agency executive defendants were sued in their official capacities.
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About the Settlement in general:
Who will be affected by this settlement?
The settlement is designed to improve services for those people who are defined as being members of the Marr class.
The Marr class is defined as “all individuals with developmental disabilities who (a) are admitted to and reside at Eastern State Hospital as of the Complaint’s filing date, (b) have been discharged from Eastern State Hospital on or after December 2, 1999, and (c) are admitted to Eastern State Hospital in the future.”
What is a “settlement agreement?”
A “settlement agreement” is an agreement between the parties in a lawsuit that outlines the means by which the parties have agreed to try and resolve their differences. In an attempt to reach such resolution in the Marr case, WPAS and the State of Washington entered into mediated settlement negotiations on July 23, 2002. These settlement negotiations were held in United States District Court Western District of Washington, and were heard before the Honorable J. Kelley Arnold.
By the end of these negotiations, WPAS and the State of Washington had developed a written plan by which the State of Washington would address the allegations set forth in the Marr lawsuit. In order to give the State of Washington time to implement certain elements of this plan, WPAS agreed not to proceed to trial, for the time being. WPAS reserved the right, however, to go back to trial on these same issues if the State of Washington failed to fulfill certain specific promises it made in the Settlement Agreement. In legal terminology, such an action—that is, putting off trial for the time being while defendants attempt to remedy the problems that gave rise to the lawsuit—is called a “stay of proceedings.”
Other issues were of such pressing concern, however, that WPAS could not agree to a stay of proceedings. Instead, WPAS argued that these issues had to be corrected immediately. The State of Washington agreed to make these immediate changes. If the State of Washington fails to make these corrections, WPAS can ask the Court to hold a hearing to see if the State is violation of the Settlement Agreement. In legal terminology, these required, immediate, corrections are called the “enforceable provisions” of the Settlement Agreement.
The “enforceable provisions” of the Settlement Agreement are discussed in more detail below in the sections regarding the Marr Monitoring Committee and in the section entitled Changes at Eastern State Hospital.
What does it mean when a judge “approves” a settlement?
By law, parties in a class action lawsuit cannot agree to a settlement until a judge has determined that this settlement is fair, reasonable, and adequate. Judge Wm. Fremming Nielsen has reviewed and has preliminarily approved the settlement in the Marr case.
In order to further assist the judge in determining whether or not the Marr settlement is fair, reasonable, and adequate, two “fairness hearings” will be held on November 4, 2002. All class members, and their legal guardians, are encouraged to attend these hearings. At these hearings, class members and their guardians will have the opportunity to tell the judge whether or not they support the settlement. After the hearings, Judge Nielsen will decide whether the settlement is fair, reasonable, and adequate. If he does, then he will give his final approval. If he does not, he will instruct the parties to try to reach a different settlement.
Further notice regarding the time and place of these two fairness hearings will be provided to Marr class members and their guardians.
Will Marr class members receive money now that the case is settled?
No. WPAS sought injunctive, rather than compensatory, relief in the Marr case. This means that WPAS sought to improve the services provided to Marr class members by the State of Washington, but that WPAS did not seek to have the State of Washington pay any damage awards to Marr class members.
It is important to note, however, that the Marr settlement does not preclude class members from engaging in further lawsuits and from seeking damage awards in the future.
In order to preserve the right of class members to take further legal action, Section B (4) of the Marr Settlement Agreement reads: “By agreeing to entry of this Order, plaintiffs have not waived, forfeited, or agreed to forego any legal rights they would otherwise have or enjoy regarding services provided by defendants, including, but not limited to, the rights of individuals plaintiffs to bring actions challenging their conditions of care and treatment at Eastern State Hospital (“ESH”) and in the community.” Further, paragraph B (9) of the Settlement Agreement reads: “ Plaintiffs hereby reserve all rights to initiate independent legal action to preserve, protect, and/or vindicate the rights of individual class members.”
How will WPAS make sure that the State of Washington provides the services described in the Settlement Agreement?
WPAS will stay in regular touch with the members of the Marr class to make sure that they are getting appropriate services. Further, the Settlement Agreement specifically states that by entering into this agreement WPAS has not waived, forfeited, or agreed to forego any of its legal rights under federal law to advocate on behalf of individuals with disabilities.
Also, the Settlement Agreements establishes and sets forth the duties of a Marr Monitoring Committee. For the next three years, the Marr Monitoring Committee will be responsible for overseeing all of the changes that will be made at Eastern State Hospital in regard to the treatment it provides to individuals with developmental disabilities and mental health needs. The Marr Monitoring Committee will regularly visit Eastern State Hospital throughout these three years, and after each visit, the Monitoring Committee will provide a written report if its findings to both WPAS and the State of Washington. At the end of this three-year period, the Marr Monitoring Committee will make a finding as to whether or not Eastern State Hospital is in substantial compliance with the Settlement Agreement.
If the Marr Monitoring Committee, at the end of this three-year period, determines that Eastern State Hospital has substantially complied with the provisions of the Settlement, the Committee will be disbanded. If the Marr Monitoring Committee finds that Eastern State Hospital is not in compliance with the provisions of the Settlement Agreement, the Monitoring Committee will identify the areas of non-compliance and then continue to monitor these areas of non-compliance for another year.
If, at the end of this additional year, the Monitoring Committee finds that Eastern State Hospital is not in compliance with the provisions of the Settlement Agreement, WPAS has the right to take whatever appropriate action it deems necessary.
Scott Stiefel, M.D., a psychiatrist, and Lauren Charlot, Ph. D., a psychologist, have been selected to serve as the Marr Monitoring Committee. Both Dr. Stiefel and Dr. Charlot have had extensive experience in providing treatment to individuals with developmental disabilities and mental health needs.
The creation of the Monitoring Committee and the scope of its responsibilities are both “enforceable provisions” of the Settlement Agreement.
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Changes at Eastern State Hospital
As a result of the Marr settlement agreement, many changes will be made at Eastern State Hospital. Some of these changes are listed below. Each of the following changes is an “enforceable provision” of the Settlement Agreement.
| Eastern State Hospital (ESH) will create a small, specialized ward for individuals with developmental disabilities. All patients with developmental disabilities will move to that ward except for patients with developmental disabilities who are at ESH for competency evaluation. This ward will serve no more than 12 individuals. |
| Eastern State Hospital will develop a number of new policies and procedures that will ensure the provision of specialized care for all people with developmental disabilities and mental health needs, including patients with developmental disabilities who are at ESH for competency restoration. |
| To better serve Marr class members, Eastern State Hospital will create a specialized treatment team, trained in the provision of care to individuals with developmental disabilities and mental health needs. |
| On weekdays, Eastern State Hospital will provide at least six hours per day of active treatment for people with developmental disabilities and mental health needs. Eastern State Hospital will also provide Marr class members with weekend and evening activities. |
| Eastern State Hospital staff will be trained in how to serve people with developmental disabilities and mental health needs. This training will include curricula regarding the provision of psychoactive medication. |
| Eastern State Hospital will adopt a formal side effect tracking tool to monitor side effects of prescribed medications for Marr class members. |
| Eastern State Hospital will minimize the use of seclusion, restraint, “time out,” and “therapeutic holds” for Marr class members. |
| Eastern State Hospital will change the way it reports possible incidents of abuse and neglect involving Marr class members. |
| Eastern State Hospital will adopt an objective data collection system designed to facilitate the monitoring of treatment progress for Marr class members. |
| Eastern State Hospital will change its discharge process for Marr class members. |
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Changes in the community
There will also be changes in the provision of community services to Marr class members as a result of the Settlement Agreement. One of the most significant changes has to do in large part with a previous case called Allen, et al. v. Western State Hospital.
Allen, et al. v. Western State Hospital was a lawsuit brought by WPAS on behalf individuals with developmental disabilities and mental health needs who are (a) admitted to Western State Hospital, (b) who are living at Western State Hospital, or (c) who have been discharged from Western State Hospital. A Settlement Agreement between WPAS and the State of Washington concerning the Allen lawsuit was filed in federal court on December 2, 1999. According to the Allen settlement, the State of Washington would provide enhanced community services to Allen class members.
One of the provisions of the Marr settlement requires that the State of Washington provide Marr class members with the same community services that it provides to Allen class members.
These services include:
| Enhanced crisis prevention and respite services; |
| Expanded residential and day program capacity; |
| Increased training for community providers; |
| Increased medication evaluation and management; |
| For a period of three years, two members of the Monitoring Committee established in Allen will oversee the provision of these services to the Marr class members. At the end of this three-year period, these members of the Allen Monitoring Committee will make a finding as to whether or not the State of Washington has satisfactorily provided these services. |
Other provisions of the Marr Settlement Agreement include:
| The State of Washington has also agreed to identify all Marr class members living in the community who have mental health needs. These individuals will be referred to their local community mental health center for screening and assessment. |
| The Department of Social and Health Services (DSHS) will use their best efforts to secure funding for the creation of the following positions to provide services to Marr class members: one additional Ph. D. level psychologist for DSHS Region 1, one full time case manager for DSHS Region 1, one case resource manager for DSHS Region 1, and one case manager for DSHS Region 2. |
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Please bear in mind that the preceding is only a summary of the Marr Settlement Plan. The Marr Settlement Agreement itself goes into much greater detail about each of the provisions described above. The Marr Settlement Agreement is a public document, and any member of the public is free to examine it in greater detail.
If you have more questions about the Marr settlement, or if you want a copy of the Settlement Agreement itself, please call the Washington Protection and Advocacy System at:
(800) 562-2702
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