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U.S. v. Tennessee
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MH-TN-001-005

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

) Civil Action No

STATE OF TENNESSEE; Don Sundquist,

)

Governor of the State of Tennessee;

)

§$-2312 -&/

Tennessee Department of Mental Health ) Complaint

and Mental Retardation; Marjorie Nelle )

Cardwell, Commissioner; and Elizabeth

A. Banks, Superintendent, Memphis

) Civil Rights

Mental Health Institute,

Defendants.

THE UNITED STATES OF AMERICA alleges: 1. This civil action is brought by the Attorney General on
behalf of the United States of America pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 et sea.. to enjoin the named Defendants from depriving patients of the Memphis Mental Health Institute ("MMHI") of rights, privileges or immunities secured or protected by the Constitution of the United States.
JURISDICTION 2. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1345. 3. The United States has standing to maintain this action pursuant to 42 U.S.C. § 1997a. 4. The Attorney General has certified that all the

pre-filing requirements specified in 42 U.S.C. § 1997b have been met. The Certificate of the Attorney General is appended to this Complaint and is incorporated herein.
5. Venue in the Western District of Tennessee is proper pursuant to 28 U.S.C. § 1391. All claims set forth in the Complaint arose in said District.
DEFENDANTS 6. Defendant STATE OF TENNESSEE owns and operates MMHI, a state facility for mentally ill persons located in Memphis, Tennessee. 7. Defendant DON SUNDQUIST is the Governor of Tennessee and, in this capacity, heads the Executive Branch of the State government where, among other duties, he reviews and approves budget requests submitted by Executive Branch agencies. He selects and appoints the Director of the Tennessee Department of Mental Health and Mental Retardation. 8. Defendant MARJORIE NELLE CARDWELL is the Director of the Tennessee Department of Mental Health and Mental Retardation and, in this capacity, exercises administrative control of, and responsibility for, MMHI. 9. Defendant ELIZABETH A. BANKS is the Superintendent of MMHI and is responsible for its day-to-day operations. 10. The individual Defendants named in paragraphs 7, 8, and 9 are officers of the Executive Branch of the State of Tennessee and are sued in their official capacities.
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11. MMHI is an institution within the meaning of 42 U.S.C. § 1997(1).
12. Persons residing at MMHI include individuals who are mentally ill.
13. Defendants are legally responsible, in whole or in part, for the operation of and conditions at MMHI, as well as for the care and treatment of patients at that institution.
14. At all relevant times, Defendants have acted or failed to act, as alleged herein, under color of state law.
FACTUAL ALLEGATIONS 15. Defendants have failed and are continuing to fail to provide adequate medical care, including nursing care, to MMHI patients. 16. Defendants have failed and are continuing to fail to provide patients of MMHI with individualized psychiatric care and treatment, including adequate and appropriate assessments and the development, implementation and monitoring of individualized treatment plans, in accordance with professional standards. 17. Defendants have failed and are continuing to fail to ensure that there is an adequate number of sufficiently trained direct care and professional staff, including psychiatrists, psychologists and nurses, to render and implement professional standards of care and treatment of MMHI patients. 18. The acts and omissions alleged in HU 15 - 17 constitute patterns or practices of resistance to the full enjoyment of rights, privileges or immunities secured or protected by the
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Fourteenth Amendment to the Constitution of the United States and deprive MMHI patients of such rights, privileges or immunities.
19. Unless restrained by this Court, Defendants will continue to engage in the conduct and practices set forth in 11 15 - 17 which deprive patients of MMHI of rights, privileges or immunities secured or protected by the Constitution of the United States and cause irreparable harm to MMHI patients.
21. The Attorney General is authorized under 42 U.S.C. § 1997 to seek only equitable relief.
PRAYER FOR RELIEF WHEREFORE, the United States prays that this Court enter an order permanently enjoining Defendants, their agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts, practices and omissions at MMHI set forth in 11 15 - 17 above, and to require Defendants to take such action as will provide constitutional conditions of care to persons who reside at MMHI. \\ \\ \\
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The United States further prays that this Court grant such other and further equitable relief as it may deem just and proper.
Respectfully submitted,

'JANET RENO Attorney General of t h e
lited States

VERONICA F. COLEMAN United States Attorney Western District of
Tennessee

)EVAL CT PATR] Assistant Attorney General Civil Rights Division
ARTHUR E . PEABODY/ Chief Special Litigation Section

ROBINSUE FROHBOESE Deputy Chief Special Litigation Section

VERLIN HUGHES WILLIAM G. MADDOX Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 10th and Pennsylvania Ave., NW Washington, DC 20530 (202) 514-6260

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<£eneral
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CERTIFICATE OF THE ATTORNEY GENERAL
I, Janet Reno, Attorney General of the United States, certify that with regard to the foregoing Complaint, United States v. State of Tennessee, et al., I have complied with all subsections of 42 U.S.C. § 1997b(a)(1). I certify as well that I have complied with all subsections of 42 U.S.C. § 1997b(a) (2) . I further certify, pursuant to 42 U.S.C. § 1997b(a)(3), my belief that this action by the United States is of general public importance and will materially further the vindication of rights, privileges or immunities secured or protected by the Constitution of the United States.

I further certify that I have the "reasonable cause to believe" set forth in 42 U.S.C. § 1997a to initiate this action. Finally, I certify that all prerequisites to the initiation of suit under 42 U.S.C. § 1997 e_t seq. have been met.

Pursuant to 42 U.S.C. § 1997a(c), I have personally signed the foregoing Complaint. Pursuant to 42 U.S.C. § 1997b(b), I am personally signing this Certificate.

Signed this / "h day of P^/y.^^ ^ Washington, D.C.

, 1996, at

Attorney General of the United States

 UNITED STATES DISTRICT COURT r-,^,.

FOR THE WESTERN DISTRICT OF TENNESSEE" '—

WESTERN DIVISION

C;.,.

UNITED STATES OF AMERICA, Plaintiff,

Civil Action No.

V.
STATE OF TENNESSEE, et. al., )

Defendants.

JOINT MOTION FOR ENTRY OF CONSENT DECREE
The United States and the State of Tennessee respectfully move this Court to enter the accompanying Consent Decree as an Order of this Court by signing the document on page nine. The parties have agreed that the Consent Decree represents settlement of this case.

U.S. v. Tennessee

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MH-TN-001-006

Respectfully submitted,
CHARLES W. BURSON Attorney General and Reporter

KATHLEEN A. MALOY Assistant Attorney (Seneral 404 James Robertson Parkway #1510 Nashville, TN 37243-0499 (615) 532-7913

DEVAL L: PATRICK

Assistant Attorney General

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SRLIN-HUGHES Senior Trial Attorney Civil Rights Division 10th and Constitution N.W. Washington, D.C. 20530 (202) 514-6260

UNITED STATES DISTRICT COURT

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FOR THE WESTERN DISTRICT OF TENNESSEE.

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UNITED STATES OF AMERICA,

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Plaintiff,

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STATE OF TENNESSEE, et. al., )

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Defendants.

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Civil Action No. $ 6 ~ 2 3 ] Z

CONSENT DECREE INTRODUCTION
1. This case was instituted by the United States on March 15, 1996, pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997 et sea.
2. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1345.
3. Venue is appropriate pursuant to 28 U.S.C. § 1391(b). 4. The United States is authorized to institute this civil action by 42 U.S.C. § 1997a, and has met all the prerequisites for the institution of this civil action prescribed by the statute. 5. The Defendants are the State of Tennessee; the Honorable Don Sundquist, Governor of the State of Tennessee; Marjorie Nelle Cardwell, Commissioner of the Department of Mental Health and Mental Retardation; and Elizabeth A. Banks, Superintendent, Memphis Mental Health Institute ("MMHI"), who are sued in their respective official capacities.

6. The individual Defendants are officers of the Executive Department of the State of Tennessee who have authority and responsibility for the operation of MMHI.
7. On December 12, 1990, the Attorney General of the United States, through the Assistant Attorney General, Civil Rights Division, notified the Governor of Tennessee, the Attorney General and Reporter of Tennessee (the "Attorney General"), the Commissioner of Mental Health and Mental Retardation (the "Commissioner"), and the Superintendent of MMHI (the "Superintendent") of his intent to investigate allegations of unconstitutional conditions at MMHI pursuant to CRIPA.
8. Following the United States' initial investigation tour, the Attorney General of the United States, by and through the Assistant Attorney General, Civil Rights Division, on April 4, 1991, notified the Governor of Tennessee, the Attorney General, the Commissioner, and the Superintendent that he had determined that certain conditions at MMHI (i.e.. the lack of professional and direct care staff) were depriving persons residing in or confined to MMHI of their constitutional rights.
9. Following further tours and a thorough investigative effort of MMHI, on February 6, 1992, the Attorney General of the United States, by and through the Assistant Attorney General, Civil Rights Division, notified the Governor, the Attorney General, the Commissioner, and the Superintendent that he had determined that numerous conditions in addition to those listed
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in Paragraph 8 were depriving persons residing in or confined to MMHI of their constitutional rights.
10. The parties agree that the care, conditions of
confinement, and the treatment of MMHI residents implicate rights of these residents that are secured or protected by the Constitution of the United States. The parties entering into this Consent Decree recognize these rights and, for the purpose of avoiding protracted and adversarial litigation, agree to the provisions set forth herein. This Consent Decree provides for actions, practices, and procedures that the State has agreed to implement.
11. Each and every provision of this Decree is entered into by clear agreement of the parties, after lengthy and thorough negotiations.
12. In entering into this Consent Decree, the Defendants do not admit any violation of law, and this Consent Decree may not be used as evidence of liability in any other legal proceeding.
13. Any violation of the provisions of this Consent Decree does not create a private right of action. This Consent Decree is enforceable only by the parties.
14. The provisions of this Consent Decree are a lawful, fair, adequate and reasonable resolution of this case.
15. This Consent Decree shall be applicable to and binding upon all of the parties, and their officers, agents, employees, assigns, and successors.
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16. The purpose of this Consent Decree is to achieve the substantive outcomes set forth within this decree. This consent decree includes all of Attachment A, appended to this document.
17. This Consent Decree is binding on all state agencies and/or departments that may have an effect, either directly or indirectly, either currently or in the future, on the operations of MMHI.
I . REMEDIAT. The Defendants shall implement, continue to implement, and/or maintain the implementation of all policies, systems, procedures, and rules currently in place and as set forth in Attachment A. These policies, systems, procedures, and rules are designed to provide adequate care and treatment to patients at MMHI in accordance with rights secured and protected by the Constitution of the United States.
II. STATUS REPORTS 1. The Defendants shall provide to the United States quarterly status reports on progress made toward implementation of this Consent Decree. The status reports shall be submitted to the United States no later than 15 working days after the-end of each reporting period. The reporting periods shall begin on the first day of January, April, July, and October. The first reporting period shall be the first full calendar quarter after the entry of this Consent Decree. The status reports shall continue until the parties agree otherwise or until this Consent Decree is no longer in effect.
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2. Each status report shall include: a. For each month of the reporting period, the average
daily patient population; b. The status of compliance with each requirement in
this Consent Decree; c. The name and age of every MMHI patient who, during
the reporting period, died at MMHI or who is known to have died at an acute health care facility following transfer by MMHI to the facility, indicating the date and cause of death and any autopsies, death review summaries, and investigative findings related to the death;
d. The text of any policies and procedures promulgated to fulfill the requirements of this Consent Decree;
e. All staff training plans developed to implement the requirements of this Consent Decree, the frequency with which the training has been provided, the duration and content of the training, and the categories and numbers of staff to which it has been provided;
f. The number of uses, and duration of use, of seclusion, time out, and bodily restraint;
g. A tabulation of injuries sustained by patients, setting out the date, time, and floor of each injury;
h. A listing of the MMHI patients transferred to any acute health care facility, showing the name of the patient, the reason for the transfer, the facility to which the patient was
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transferred, and the nature of the treatment rendered or expected to be rendered, by the acute health care facility.
3. Defendants shall, within three working days of any "Code Blue," or other similar emergency medical situation, provide the United States with a detailed accounting of the event including the time and place of the event, the time emergency medical personnel were advised of the situation, the time such personnel responded, the treatment provided and the ultimate resolution of the event (e.g.. patient transferred to local acute care hospital).
4. A listing of all patients discharged within the quarter, including the place to which the patient was discharged or the program providing aftercare services.
III. ACCESS TO MMHI 1. The United States and its attorneys, consultants, and agents shall have reasonable access to the facilities, records, patients, and employees of MMHI upon reasonable notice to the Defendants for the purpose of ascertaining compliance with this Consent Decree. Such access shall continue so long as this Consent Decree is in effect. 2. Designee(s) of the Defendants may be present during tours or inspections of facilities and records. 3. MMHI employees may be interviewed by the counsel for the United States or consultants retained by the United States during tours of MMHI. At the option of the individual employee, such
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interviews may be conducted in private or in the presence of designee(s) of the Defendants.
4. Within 25 days of receipt of written questions from the United States relating to the Defendants' compliance with the Consent Decree, the Defendants shall provide to the United States specific written answers and any requested documents regarding the Defendant's compliance with requirements of this Consent Decree.
5. Nothing in this Consent Decree precludes the United States from conducting discovery pursuant to the Federal Rules of Civil Procedure on matters relating to enforcement of or compliance with this Consent Decree.
IV. CONSTRUCTION AND TERMINATION OF CONSENT DECREE 1. If the nature of the patient population of MMHI significantly changes, the parties agree to confer in good faith on the provisions of this Consent Decree. Upon motion, or by agreed order, either party may seek to modify any requirement of this Consent Decree consistent with the existing standards for modification of consent decrees. 2. The Defendants may petition the Court for termination of this Consent Decree, in whole or in part, on grounds that they have achieved and demonstrated their ability to maintain compliance with its provisions at any time, but not sooner than one year following entry of this Consent Decree. Upon the filing of such petition, the United States shall have 60 days to object. If no objection is filed, the Consent Decree shall terminate as
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to the parts addressed by the petition. If the United States files an objection, the Court will decide which parts of the Consent Decree shall be terminated and which parts shall remain in effect. With respect to any part(s) of this Consent Decree so terminated, the Court's jurisdiction over each terminated requirement will end.
3. The Court shall retain jurisdiction of this action for all purposes until such time as the Consent Decree is terminated with respect to all requirements.

AGREED TO: FOR THE -STATE OF TENNESSEE

Ch'arles W. Burson
Attorney General and Reporter
State of Tennessee

Kathleen A. Maloy Assistant Attorney State of Tennessee

eral

Deval Iff Patrick Assistant Attorney General Civil Rights Division
Arthur E. Peabody Chief Special Litigation Section

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Robinsue Frohboese Deputy Chief Special Litigation Section
K -^h
Verlin Hughes Senior Trial Attorney Special Litigation Section
y
William G. M a d d o x ' Senior Trial Attorney Special Litigation Section

Done and Ordered this Memphis, Tennessee.

day of

U.S. District Court Judge

, 1996 at

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ATTACHMENT A I. DEFINITIONS As used in this Consent Decree, the following definitions apply to the terms below: 1. "Defendants": The State of Tennessee, specifically, the Executive Department of the government of the State of Tennessee, including the Governor, the Department of Mental Health and Mental Retardation ("DMHMR"), the administration of MMHI, and any and all of their officials, agents, or assigns, and the successors in office of such officials, agents, employees, or assigns. 2. "MMHI": The Memphis Mental Health Institute, a State facility located in Memphis, Tennessee, providing acute care for adults with psychiatric diagnoses. The areas covered by this Consent Decree include all units and common areas except for the Alcohol and Drug unit. 3. "Unit": A self-contained area comprised of one-half the physical plant of each of three floors dedicated to providing acute care for psychiatric illness at MMHI. There are three "units" at MMHI, one on the third floor, one on the fourth floor and one on the fifth floor. 4. "Physician": A medical doctor lawfully entitled to practice medicine in the State of Tennessee. 5. "Psychiatrist": A physician who is certified by or is eligible for certification by the American Board of Psychiatry and Neurology.
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6. "Psychologist": An individual who has a minimum of a master's degree in the field of psychology.
7. "Nurse Practitioner": A nurse practitioner, as defined by Tennessee statutory law, lawfully entitled to practice in the State of Tennessee.
8. "Social Worker": An individual who has a minimum of a bachelor's degree in social work and who is eligible to practice in the State of Tennessee.
9. "Adjunctive Therapist": A recreational therapist with either a bachelor's degree or four years experience, and who is eligible to practice in the State of Tennessee.
10. "Program Director": An individual with either a master's degree or a bachelor's degree with four years experience in psychiatric care.
11. "Nurse Manager": A registered nurse or higher degree, who is eligible to practice in the State of Tennessee.
12. "Direct care worker": A staff member, other than a licensed professional, who is directly responsible for implementing treatment and providing care to patients. This includes, but is not limited to, psychiatric technicians and nurses' aides.
13. "Qualified professional": An individual who is competent, whether by education, training or experience, to make the particular decision at issue.
14. "Initial Treatment Plan": A plan devised by the professional staff at MMHI which addresses the initial
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assessment, both medically and psychiatrically, of the patient upon admission.
15. "Master Treatment Plan": A program of therapeutic steps and activities, including psychological and psychiatric services and medications, determined by qualified professionals and consistent with professional standards and practice to be sufficient to permit each patient an opportunity to improve, to be cured, or to function as independently as the patient's psychiatric conditions permit.
16. "Psychotropic medication": Chemical substances used in the treatment of mental illness which exert an effect on the mind and are capable of modifying mental activity or behavior.
17. "PRN": A treatment modality ordered on a pro re nata or "as needed" basis.
18. "Stat": A treatment modality ordered on an immediate basis.
II. REMEDIAL MEASURES A. STAFFING REQUIREMENTS
The Defendants shall maintain a sufficient number of appropriately qualified psychiatrists, psychologists, nurses, and direct care staff at MMHI. The staffing requirements shall be accomplished without excessive resort to: 1) use of overtime; 2) reliance on temporary agency or temporary contract staff; or 3) the transfer of personnel from their regularly assigned units. The total number of adjunctive therapists present and on duty shall be increased, when necessary, to account for increased
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patient population, or to ensure the provision of adequate therapy services to MMHI patients. There shall be one full-time program director per unit whose responsibilities include the development and implementation of the programming on each unit and the management and supervision of the unit staff. The responsibilities of the nurse managers include the direct supervision of the nursing staff and the assessment of the appropriate acuity level for each unit. The nursing and direct care staff includes registered nurses (RNs), licensed practical nurses (LPNs), and psychiatric technicians (PTs). The number of registered nurses present and on duty on each floor shall be adequate to ensure a sufficient number of registered nurse hours for supervision of other staff and to provide patient treatment. The total number of nursing and direct care staff present and on duty shall be increased, when necessary, to account for increased patient population, or to ensure adequate supervision, health, safety, and treatment of each MMHI patient, by having sufficient nursing staff to provide administrative
support and to provide for therapeutic groups and other nursing care needs of MMHI patients. The total time in which an internist is present and on duty shall be increased, when necessary, to ensure the provision of adequate medical services to MMHI patients. The total time in which a nurse practitioner is present and on duty shall be increased, when necessary, to ensure the provision of adequate medical services to MMHI patients.
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B. DEVELOPMENT AND IMPLEMENTATION OF PATIENT TREATMENT PLANS Defendants shall maintain adequate evaluation and appropriate
treatment plans for MMHI patients at MMHI. This shall include, at a minimum, the following actions:
1. Assessment and Diagnosis a. Ensuring, when warranted, that each patient has
appropriate secondary diagnoses, with particular attention paid to the possible presence of organic brain syndrome and/or substance abuse.
b. Ensuring that each patient's diagnosis comports with accepted professional standards and the justification for change in diagnosis is documented in the patient's record.
c. Ensuring that each patient's diagnosis forms a basis for the patient's treatment plans.
2. Initial Treatment Plan MMHI shall develop an Initial Treatment Plan with input
from 1) a psychiatrist, 2) an internist or a nurse practitioner and 3) a nurse, for each patient within 24 hours of admission.
3. Master Treatment Plan MMHI shall develop for each patient, within 7 days of admission, a Master Treatment Plan consistent with professional judgment by an interdisciplinary team of professional staff, including, as appropriate, a psychiatrist, a medical physician, a nurse, a psychologist, a social worker, appropriate adjunctive therapist(s) and direct care worker(s). Each Master Treatment Plan shall contain at least the following elements:
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a. Statements describing the nature of the specific problems and needs' of the patient;
b. A description of clear, objective and measurable treatment goals relative to each patient's individual needs and written in behavioral terms;
c. A delineation of the specific individualized treatment methods and/or programs to be afforded to each patient, including a schedule(s) for the conduct of such programs and the individual(s) responsible for such treatment;
d. A statement and rationale for the Master Treatment Plan; and
e. A statement of what is needed by the patient to function in a community setting (e.g.. medication compliance).
4. Review of Master Treatment Plan Each patient's Master Treatment Plan shall be reviewed and revised, as needed but at least weekly, by an interdisciplinary team of qualified professionals in accordance with professional standards with a particular focus on behavioral episodes, use of seclusion or bodily restraints, use of PRN or Stat medications for behavior related reasons, or occurrence of an injury. At a minimum, these reviews shall consist of a psychiatric, medical and nursing progress note, including the determination of whether the treatment program is effective.
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5. Implementation of Master Treatment Plan a. A designated psychiatrist shall be responsible for coordinating and implementing each patient's Master Treatment Plan. b. Treatment plans shall be implemented by qualified staff who are adequately trained in the implementation of the Treatment Plan. 6. Discharge Plan a. Prior to discharging the patient, MMHI shall ensure that the patient's record is complete, including treatment plan, progress notes, and social history. b. MMHI shall assess each patient to determine the patient's needs for aftercare services. Based upon this assessment, MMHI shall specify that patient's needs and the criteria for discharge, and develop a discharge plan that meets those aftercare needs. Prior to discharge, appropriately qualified MMHI staff shall ascertain the adequacy of the plan for aftercare services. Appropriate and adequate referrals shall be made to applicable outpatient or residential treatment programs named in the discharge plan to provide reasonable assurance of continued and appropriate after care consistent with T.C.A. § 33-1-202 and 208 and with 42 U.S.C. §§ 12131-12134.
c. Each patient at MMHI shall have a social worker who has the responsibility of overseeing the development and implementation of the patient's aftercare plan. MMHI/DMHMR shall
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take all appropriate/necessary steps to 1) monitor the implementation of the aftercare plan in terms of the availability and/or provision of the services identified in the aftercare plan and 2) review the compliance by providers with their obligations under the aftercare plan and other contracts for services and shall take appropriate action if those obligations are not being met.
d. No patient will be discharged from MMHI until a determination is made by an appropriate and qualified physician that the patient is appropriate for discharge. C. NON-PSYCHIATRIC MEDICAL CARE
All patients shall be afforded adequate medical care. To this effect, Defendants shall:
1. Ensure that each patient admitted to MMHI is given a complete history and physical within 24 hours of admission by qualified personnel. The history and physical shall include, at a minimum, a record of present and past illnesses, traumas, or other significant events which could affect the patient's medical status; current medications; allergies; vaccinations; and substance abuse history. Special attention is to be paid to potentially treatable organic causes of the patient's neuropsychiatric condition, including assessment of a patient's HIV status where clinically indicated.
2. Develop a medical problem list identifying acute and chronic medical problems. Have appropriate medical specialists address any possible correlation between the patient's medical
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and psychiatric problems. Develop an appropriate plan to address such correlation. Care should be taken to ensure that the patient's medication regimen does not pose undue risk to his or her physical or mental health. The medical problem list shall be placed in each patient's chart and shall be appropriately updated during the course of the patient's stay at MMHI.
3. Ensure that the medical plan is made an integral part of the patient's Master Treatment Plan.
4. Ensure that each patient has an appropriate and individualized nursing care plan, which is incorporated in the patient's Master Treatment Plan, and that the MMHI nursing staff is adequately trained in the development and implementation of the nursing care plans.
5. Ensure that adequate reviews of both the quality and timeliness of outside consultant services are performed by qualified MMHI staff, and that appropriate followup action is implemented as necessary to correct any identified deficiencies in the consultant services.
6. Ensure that each patient's medical condition is reassessed as appropriate. The intensity of medical monitoring shall reflect the severity and acuity of patient's condition.
7. Investigate, to the extent possible, any known and/or reported deaths, and the circumstances surrounding those deaths, of any MMHI patient who dies either at MMHI or within three months from the time of transfer or discharge from MMHI.
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 Case 2:96-cv-02312-BBD Document 8 Filed 09/18/1998 Page 1 of 10

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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

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UNITED STATES OF AMERICA,

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Plaintiff,

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STATE OF TENNESSEE, et al

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Defendants.

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Civil Action No. (96-2312)

STIPULATION AND ORDER

Plaintiff, the United States of America, and Defendants, the State of Tennessee, et.

aI., in order to ensure adequate protection of the constitutional and federal statutory rights

of patients of the Memphis Mental Health Institute ("MMHI"), to effectuate the Consent

Decree entered in this case, and to remedy what Plaintiffs have alleged is Defendants'

non-compliance with certain provisions of the Consent Decree, do hereby Stipulate as

follows:

I.

STAFFING AND PATIENT SUPERVISION AND SAFETY

A. Within 30 days of the entry of this Stipulation and Order Defendants shall

employ and retain sufficient nursing staff (including Registered Nurses and Psychiatric

Technicians) to maintain at least 5.5 NurSing Care Hours Per Patient Day ("NCHPPD") on

the Fourth and Fifth floors of MMHI. Compliance with 5.5 NCHPPD shall be determined by

taking the number of patients on a unit (census), multiplying that number by 5.5 and then

dividing that figure by 7.5 (the number of hours worked in a shift). If this calculation results

in a fraction of a person, MMHI shall round up to the next highest whole number. Excluded

This document ent~ed on~cket sheet in compilince with Bula 58 and/or
79 (a.) FRCP on CJ,;?-f ICj~·

Case 2:96-cv-02312-BBD Document 8 •Filed 09/18/1998 Page 2 of 10

CERTIFICATE OF SERVICE I, Verlin Hughes Deerinwater, hereby certify that a copy of the attached Joint Motion for Entry of Stipulation and Order and accompanying Stipulation and Order were mailed by overnight mail to the following counsel of record this 10th day of September, 1998.

Mary Beth Franklin

Pamela Haydp' ,Wood

Jennifer He

-Hann

Attorneys

Office of t

~orney General

State of Tel

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425 %th Aver .. orth

Nashville, T 37243-0499

(615) 532-3164

Hughes eerinwater Senior Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section Room 5106 601 "D" Street, N.W. Washington, D.C. 20004 (2021 514-6260

Case 2:96-cv-02312-BBD Document 8 Filed 09/18/1998 Page 3 of 10
from this calculation are: a) nursing staff involved in 1: 1 supervision or other special assignments and nursing staff serving primarily administrative or supervisory duties; and b) any patients on 1:1 supervision.
B. The nursing staff shall be deployed in such a manner so as to ensure that at least thirty percent (30%) of staff on each ward on each shift that comprise the NCHPPD requirement are to be registered nurses.
C. The NCHPPD requirement shall be met without excessive use of overtime, excessive use of temporary or agency personnel, or the excessive use of staff reassigned from their regularly worked units. Defendants may contract with a private agency for the provision of temporary staff in case of discrete emergenCies (when regular state employed staff are not available), and for the provision of continuous staff on a continuous long-term basis (Le., to provide a certain number of consistent, non-rotating individual staff, who will serve on a continuous basis for at least six months). Staff who serve at MMHI pursuant to contracts with private agencies on a long-term basis will receive the same training as state employed MMHI staff. For example, nurses provided by private agencies pursuant to longterm contracts will receive the same initial training and orientation that state employed nurses receive at or immediately prior to commencement of their duties at MMHI, and will receive the same ongoing or in service training that state employed nurses receive. Temporary staff employed in case of emergency will receive similar training whenever practicable.
D. Psychiatric Technicians will be expected to know the whereabouts of the patients for whom they are responsible and will observe them at least every fifteen (15) minutes. The technicians will document their observations every thirty (30) minutes. At
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Case 2:96-cv-02312-BBD Document 8 File•d 09/18/1998 Page 4 of 10
D. By no later than 12 months from entry of this Stipulation and Order, Defendants shall ensure that each MMHI patient's Master Treatment Plan meets the objectives set forth in ~~s II (C) (1-11) above.
E. When individuals must be discharged pursuant to Tenn. Code Ann. § 33-6-109, Defendants will seek to complete a comprehensive treatment plan, but parties recognize there may be time constraints on developing treatment plans for these discharges.
F. Within 120 days of entry of this Stipulation and Order, the Clinical Director, or such other qualified physician(s) as MMHI may designate, shall prepare the Clinical Director's Quarterly Report by overseeing an ongoing peer-review of randomly-selected patient records. The results of that review will be provided to the facility Superintendent. Corrective action for identified deficiencies must begin immediately upon identification of such deficiencies, including written notification of the deficiencies to the clinicians involved. III. RESTRAINT AND SECLUSION
A. Within 30 days of entry of this Stipulation and Order, Defendants shall ensure that MMHI adheres to the requirements of its policy entitled "Restraint and Seclusion," which is attached hereto as Attachment A. Special attention shall be paid to the requirement that all patients placed in restraints are afforded 1: 1 supervision while in restraints. MMHI will provide to the United States any revisions to this policy prior to implementation, and the United States shall have an opportunity to object. IV. DISCHARGE PLANNING
Upon entry of this Stipulation and Order, Defendants shall take the following steps as part of the discharge process from MMHI:
-5-

Case 2:96-cv-02312-BBD Document 8 Filed 09/18/1998 Page 5 of 10
A. For every patient who requires outpatient mental health services, including substance abuse services, Defendants shall ensure that at least an initial appointment with the entity providing outpatient services is arranged for the patient by the time of discharge. If a patient refuses such services, refusal of services will be documented.
B. Defendants shall ensure, that to the maximum extent appropriate, the patient's family members are involved in the treatment planning and discharge process. For patients who are discharged to a family setting, MMHI shall, taking into account the patient's history with his/her family and the patient's wishes, make every appropriate effort to inform the family of the patient's discharge and mental health status at time of discharge.
C. If Defendants discharge any patient who has been subject to restraint and/or seclusion or the administration of a STAT or PAN medication for the purpose of behavioral control within 24 hours prior to the time of discharge, the discharging psychiatrist shall make a specific note related to the event and the patient's status upon discharge.
v_ CONTINUING FORCE ANP EFFECT OF MARCH 27,1996 CONSENT
DECREE All provisions of the March 27, 1996 Consent Decree entered as an Order of this Court that do not otherwise conflict with the terms of this Stipulation and Order shall remain in full force and effect. VI. ADDITIONAL QUARTERLY REPORTS Beginning with the calendar-quarter reporting period during which this Stipulation and Order are entered, the State shall provide the United States with the following additional
-6-

Case 2:96-cv-02312-BBD Document 8 • Filed 09/18/1998 Page 6 of 10

information as part of its Quarterly Status Reports required by Section II of the March 27,

1996 Consent Decree:

A. The text of any policies, procedures or directives issued to comply with, or monitor compliance with, the terms of this Stipulation and Order;

B. The quarterly report of the Clinical Director or designee referred to in Paragraph II.F of this Stipulation and Order;

C. A narrative from MMHl's superintendent summarizing significant efforts taken by the State to comply with the requirements of this Stipulation and Order.

FOR THE STATE OF TENNESSEE John Knox Walkup Attorney General

FOR THE UNITED STATES Bill Lann Lee Acting A ,'stant Attorn!W~eneral

; A -;, ') ,(~~. I ) '~\ ,--.,' /,

'.;I'.,..l--\-. ) .

Mary Beth Franklyn

Pamela Hayden-Wood

Jennifer Helton-Hann

Attorneys

Office of the Attorney General

State of Tennessee

425 5th Avenue North

Nashville, TN 37243-0499

(615) 532-3164

Verlin H. Deerinwater Louisa A. Smith Attorneys U. S. Department of Justice Civil Rights Division P. O. Box 66400 Washington, D.C. 20035-6400 (202) 514-6260

SO ORDERED this ,,.,... day of ,9ptt..rrl V-V

, 1998, at

Memphis, Tennessee.

-7-

Case 2:96-cv-02312-BBD Document 8 Filed 09/18/1998 Page 7 of 10

--

MEMPHIS MENTAl HEAlTH INSTITUTE NURSING SERVICES
POLlCY AND PROCEDURE MANUAl

SUBJECT:

Locked-Door Seclusion or Restraint

EFFECTIVE DATE: 02-05=91

REVISE DATE:

10-01 97·

L14"- APPROVED BY:

Lk~

Susan Schnuerer, MSN. RN. Director of Nursing

* Supersedes prior review/revise dates of 04-94, 05-97 and 02-96.

Policy:

. ,

Staff will assist a patient in gaining control of his/her behavior •

Locked-door aeclusion or restraint. are impl~nted after least restrictive behavioral control measures have been unsuccessful or the patient is out of control and requires immediate restraint for the protL~tion of self and others.

3) The RN may initiate locked-door seclusion or restraints but a phYSician's order is required.

4) Any patient placed in restraints is immediately placed on 1: 1 observation (per· MO' s order) •

5) see Hospital Instruction 80-71.

Procedure:
1. The locked-door seclusion or restraint room should be checked at the beginning of each shift for readiness by the RN or his/her designee.
2. When a patient begins to lose self-control, the RN must assess the patient to determine what action is to be taken. The RN must use the least restrictive measur. first, unless physical harm is being done to the patient or others.
A. Least restrictive measures:
1) verbal cue I 2 ) t !me-out; 3) prn medications; 4) locked-door seclusion; 5) mechanical restraints as necessary - 1, 2, 3, 4, 5 and rarely a body net m.
be used;
6) medication intervention.
3. A. If more restrictive measures are indicated, the R.N. d~rects the Nursing staff place the patient in locked-door seclusion or restraints. The R.N. determines the level of restraints and the patient is placed in a prone position except fo, pregnant patient.

Case 2:96-cv-02312-BBD Document 8 Filed 09/18/1998 ..._P-a-g-e-_8._o-f-1-0_ ..

-

RSING SERVICES POUCY AND PROCEDURE MANUAl: Locked-Door Seclusion or Restraint ,(Page 2)

B. The R.N. will

notify the physician/OD to obtain an order ~ Nursing

Supervisor.

must assess the patient within two hours of being __

placed in restraints. No patient will be1Placed in locked-door seclusion or

restraints without a phYSician's order.

C. The written order must say "up to" the number of points of restrainta and "up to" the number of hours, not to exceed four (4) hours. The continuation of the restraints each four-hour period requires a new order by the phyaician. The physician may renew the -order one time without reasaessing the patient. The second renewal requires reassessment by the physician.

D. The Nursing ataff checks the patient' a pockets for hazards a·,-::h aa matches, lighter, pencils or other aharp objects.

E. Nursing staff removea the patient's shoes and hazardous objects and gives them to the nurse in charge. The nurae documents on the "Speci..: care Record. LockedDoor Seclusion or Restraint" what was removed and where it was placed for safekeeping. (This documentation must be co-signed by ...~other staff member.)

F. If less than 5 points are used, the remaining restraints are locked down.

(All Nursing staff employees receive keys for the Posey Restraints from Staff Development during "new employee': orientation.)

4. If a patient is in locked-door seclusion or restraints and another patient needs to
be placed in locked-door seclusion or restraints, the patient room across from the
nurses' station will be used as the locked-door seclusion or restraint room (using a
hospital bed). The patient must be placed on 1.1 observation with the door opened and the technician sitting in the doorway.

[Follow this Nursing Policy and Procedure for locked-door seclusion or restraint.]

5. The RN initiates a special Care Record. Locked-Door Seclusion or Restraint (see Attachment A). The nurse describes the patient's behavior that necessitated the use of restraints, verbal responses, the use of the least restrictive mep.ures and that patient was placed on 1.1. This entry should be very detailed and descriptive. A note is also made by the nurse in the progress notes stating briefly that the patient was placed in restraints and "aee Special Care Record".

6. The RN deSignates a Nursing staff member to monitor and document every 15 minutes on the SpeCial care Record. Locked-Door Seclusion or Restrainr.

7. The documentation on the Special Care Record. Locked-Door Seclusion or Restraint should reflect specific behaviors and responses of the patient. All spaces on the form must be completed appropriately.

The Nursing ataff aasigned to monitor the 1.1 may sit in the anteroom of the lockeddoor seclusion or restraint room as long as the .taff member has full view of the patient at all times. It is not necessary to lock the door.

8. The Nursing .taff will visibly check the patient every 15 minute. for circulation of the extremities as well aa the general comfort and condition of the patient.
Circulation is assessed by temperature, presence of edema, color, pulse, movement an. patient's reports of numbness, tingling or pain. Observe for an self-mutilating behavior. Adequate circulation will be deSignated by "WIlL". If not mot., designate with an "0" for other and describe in the "Nursing Progress Notes" section of the Special Care Record.

The NurSing staff will offer fluids and bathroom privileges to the patient every two hours and prn. This must be documented on the Special Care Record.
10. Nursing staff will serve meals in unbreakable containers, paper plates and paper cUF to the patient in restraints; Trays are not to be left in the room. When removing articles, Nursing staff should account for all items that were brought into the roo~ espeCially utensils.

Case 2:96-cv-02312-BBD Document 8 Filed 09/18/1998 Page 9 of 10
'SING SERVICES POLICY AND PROCEDURE MANUAl: Locked-Door Seclusion or Restraint (Pege 3)
11. Nursing staff will take vital signs every shift and prn as soon as the patient deescalates and document on the blue sheet.
12. The RN assesses the patient and documents on the special Care Record: Locked-Door
Seclusion or Restraint every two hours and reviews all previous entries for
completeness and accuracy. Documentation should reflect specific behaviors, responses, affect and the justification for continued use of restraints.
13. The nurse will administer routine medicines and prn's as needed.
14. When the patient is calmer, the RN will explain to the patient the reason as to why
locked-door seclusion or restraint occurred.
15. The nurse has the discretion of reducing the number of points of restraints and removing the patient from locked-door seclusion or restraints within the points and time as ordered restraint if this decision is made.
16. The Nursing Supervisor and/or the Nurse Manager documents on the Special Observation Record every eight hours and reviews all previous entries for completeness and accuracy.
17. When a patient is released, the RN makes a final entry on the Special Observation Care Record documenting his/her behavior. A note is made in the progress notes stating that locked-door seclusion or restraint has been discontinued.
All restraints are to be removed, bagged and sent to Central Medical Supply (CMS). The restraint bed is to be sprayed with disinfectant. Clean linens and restraints are to be put on the bed.
lB. If the patient is removed from locked-door seclusion or restraints but escalates (requiring locked-door seclusion or restraints), the physician must give a new order and assess the patient within two (2) hours.
19. If the patient has shown a pattern of aggressive behavior, the RN discusses the patient in unit team staffing. On an existing Master Treatment Plan, appropriate Nursing interventions will be included.
20. The nurse reports to the Nursing Office on the B-hour reports. The carbon of the physician's order is stapled to the B-Hour Report.
21. The Director of NurSing Services or designee reports all incidents of patient locked-
door seclusion or restraint to the Superintendent each day. This information is
obtained on the Supervisor's shift report.

Case 2:96-cv-02312-BBD Document 8 •Filed 09/18/1998 Page 10 of 10

CERTIFICATE OF SERVICE I, Verlin Hughes Deerinwater, hereby certify that a copy of the attached Joint Motion for Entry of Stipulation and Order and accompanying Stipulation and Order were mailed by overnight mail to the following counsel of record this 10th day of September, 1998.

Mary Beth Franklin

Pamela Haydp' ,Wood

Jennifer He

-Hann

Attorneys

Office of t

~orney General

State of Tel

3e

425 %th Aver .. orth

Nashville, T 37243-0499

(615) 532-3164

Hughes eerinwater Senior Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section Room 5106 601 "D" Street, N.W. Washington, D.C. 20004 (2021 514-6260

 Case 2:96-cv-02312-BBD Document 10 Filed 06/21/2005 Page 1 of 10

UNITED STATES DISTRICT COURT

re- FII.ED BY _Of/J D.C.

FOR THE WESTERN DISTRICT OF TENNESSEE 05 JUN 21 AM 6: 4)

WESTERN DIVISION

UNITED STATES OF AMERICA,

ROBERT R. Dj TROLIO CLERK, U.S. DIST. CT. WO. OF TN, MEMPHIS

Plaintiff, v.

Civil Action No. (96-2312)

STATE OF TENNESSEE, et a1.,

Defendants.

ORDER 1. Upon a Joint Motion and Stipulation presented by the parties and for good cause shown, the Court hereby dismisses, with prejudice, the following court orders in this case: A. Section I ("Remedial Measures", including Attachment A referenced therein), Section II ("Status Reports"), and Section IV ("Construction and Termination") of the March 27, 1996, Consent Decree; and B. All provisions of September 18, 1998, Stipulation and Order. 2. Upon a Joint Motion and Stipulation presented by the parties and for good cause shown, the Court hereby enters as an order of the Court the Plan for Non-Psychiatric Medical Care, attached hereto as Attachment A, and incorporated by reference into this Order. 3. Upon a Joint Motion and Stipulation presented by the
This document entered on the docket sheet In compliance
Ir.2l-0.5 with Rule 58 andior 79(a) FRCP on

Case 2:96-cv-02312-BBD Document 10 Filed 06/21/2005 Page 2 of 10
parties and for good cause shown, the Court hereby enters as an order of the Court the Plan for Psychopharmacological Practices, attached hereto as Attachment B, and incorporated by reference into this Order.
4. Upon Joint Motion and Stipulation presented by the parties and for good cause shown, the Court hereby orders that:
(A) The Stipulation for Supplemental Relief shall be dismissed, with prejudice, six months from date of entry of this Order; or
(B) That the Stipulation for Supplemental Relief shall be dismissed earlier than six months from date of entry if:
(i) The United States and Defendants agree that Defendants have achieved substantial compliance with each provision of the Supplemental Stipulation for a period of at least six months; or
(ii) Defendants petition the Court for termination of this Supplemental Stipulation, in whole or in part, on grounds that they have achieved and demonstrated their ability to maintain compliance with its provisions at any time. Upon the filing of such petition, the United States shall have 60 days to object. If no objection is filed, the Supplemental Stipulation shall terminate as to the parts addressed by the petition. If the United States files an objection, the Court

Case 2:96-cv-02312-BBD Document 10 Filed 06/21/2005 Page 3 of 10
will decide which parts of the Supplemental Stipulation shall be terminated and which parts shall remain in effect.
5. This Order is binding on all State of Tennessee agencies and/or departments that may have an effect on the operations of MMHI, and on all Defendants, and their successors and/or agents.
DATED: (p/,tt)/;J.OIJS --: Memphis, Tennessee ~ I
IT IS SO ORDERED

Case 2:96-cv-02312-BBD Document 10 Filed 06/21/2005 Page 4 of 10
ATTACHMENT A
Plan for Non-Psychiatric Medical Care
1. Timely and effective consultation with outside providers shall be obtained as indicated for patients with medical concerns, with adequate follow-up and documentation by MMHI staff.
1.1 When patients need medical assessment and/or treatment that cannot be provided by MMHI, the patient shall be referred to outside medical services including, but not limited to, the emergency room at The Regional Medical Center, specialty clinics, or private practitioners.
1.2 Infonnation necessary to assure that the outside medical provider is aware of the patient's condition and current treatment, as well as the reason for the request for services, shall be given to the outside provider prior to sending the patient or shall be sent with the patient.
1.3 Arrangements shall be made with outside medical providers to assure that all relevant infonnation regarding the treatment provided and recommendations for medical follow-up, either by MMHI or by the outside provider, is provided to MMHI either prior to the patient returning to MMHI or with the patient upon return. If infonnation is not provided by the outside medical provider, MMHI staff shall contact the provider to obtain the infonnation.
1.4 Any patient sent out for medical services shall be evaluated by a physician or nurse practitioner in a timely manner upon return to MMHI, with follow-up orders written as indicated.
2. Non-psychiatric medical interventions shall be documented and integrated into treatment planning.
2.1 Initial Treatment Plan (ITP):
2.1.1 Within 24 hours of admission, based on the Medical History & Physical Exam, the internist or nurse practitioner shall indicate on the Medical Problems page ofthe Initial Treatment Plan any chronic medical problems receiving active medical treatment and/or any medical problems that may affect the patient's psychiatric condition. The internist/nurse practitioner shall develop initial interventions to treat the identified medical problems. If a medical treatment plan protocol is initiated, then the protocol shall be completed at the time of the ITP and "see medical treatment protocol for
1

Case 2:96-cv-02312-BBD Document 10 Filed 06/21/2005 Page 5 of 10

(specific medical problem)" shall be written in the intervention section of the ITP. The medical treatment protocol shall then serve as the internist's or nurse practitioner's interventions for that medical problem.

2.1.2

The treatment team, under the leadership of the attending psychiatrist, shall add or modifY the discipline-specific, individualized interventions on the ITP, including medical interventions, as necessary to address the patient's current needs, problems, and/or behaviors.

2.2 Master Treatment Plan (MTP):

2.2.1 The MTP shall include medical problems, related objectives, and interventions or protocols initiated to address medical problems.

2.2.2

The internist or nurse practitioner shall initiate Medical Treatment Plans as medical problems are diagnosed. Thus, a Medical Treatment Plan can be incorporated into the ITP (ifthe Medical Treatment Plan is initiated prior to the MTP) or into the MTP. A medical problem shall require a Medical Treatment Plan ifthe problem is a chronic problem requiring active medical treatment and/or a problem that may impact the patient's psychiatric condition. Medical problems that do not meet these criteria shall be addressed through the physician'S orders and nursing care plans.

2.2.3 The attending psychiatrist is ultimately responsible for the total care of his/her patients, including medical treatment. The internist or nurse practitioner functions in a consultative role to the attending psychiatrist and is responsible for the immediate medical care of the patient. Together, the attending psychiatrist and the internist or nurse practitioner are considered the "Responsible Staff" for providing interventions addressing medical problems on the Medical Treatment Plans.

2.3 Treatment Plan Reviews (TPRs):

2.3.1 Interdisciplinary TPRs shall include a verbal review ofthe status of problems identified on the MTP, including medical problems, and continued rationale for any problems that were deferred. The TPR shall address the efficacy of staffs interventions, including medical interventions, and any revisions needed.

2.3.2

If a patient is not making progress as expected toward the medical goals and objectives ofthe MTP, the treatment team shall, in a timely manner, consider the modification of treatment interventions, including medical interventions.

2

Case 2:96-cv-02312-BBD Document 10 Filed 06/21/2005 Page 6 of 10
3. Sufficient coverage for non-psychiatric medical care shall be provided. 3.1 A full-time internist shall be assigned to work on weekdays during the daytime. The equivalent of a half-time internist shall be available on weekdays during the evenings. An internist shall be available to provide consultation to the nurse practitioners and psychiatrists at all times. 3.2 Two full-time nurse practitioners shall be assigned to work on weekdays during the daytime. A nurse practitioner shall also be assigned to work on Saturdays and Sundays, plus state holidays. 3.3 During the hours that an internist or nurse practitioner is not present at MMHI, the OD psychiatrist shall be responsible for the provision of non-psychiatric medical care.
4. Performance improvement activities shall be implemented to ensure that non-psychiatric medical care is consistent with accepted standards of care. 4. I Medical Staff peer review processes shall include indicators related to non-psychiatric medical care. 4.2 Provision of outside medical services shall be monitored to assure that services are provided in a timely manner, that appropriate clinical information is received from the outside medical service, and that treatment recommendations are followed-up by MMHI staff. 4.3 Actions shall be taken as indicated to improve the quality of non-psychiatric medical care.
3

Case 2:96-cv-02312-BBD Document 10 Filed 06/21/2005 Page 7 of 10
ATTACHMENT B
Plan for Psychopharmacological Practices
1. Psychopharmacological care shall be provided in a timely manner, including monitoring and follow-up.
1.1 Each patient's need for psychopharmacological treatment shall be assessed by the admitting psychiatrist at the time of admission and by the attending psychiatrist at the time of the first contact with the patient and on an on-going basis thereafter. The initial rationale for psychopharmacological treatment shall be documented in the psychiatric assessment, with the rationale for modifications in psychopharmacological treatment documented in the psychiatrist's progress notes.
1.2 Psychiatric progress notes shall include the patient's sUbjective response to treatment, including psychopharmacological interventions, objective findings (such as mental status or test results), an analysis of the effectiveness of treatment, including psychopharmacological treatment, and the rationale for any medication changes, including dosage, method of administration, schedule of administration, as well as discontinuation of medications.
1.3 Psychiatric progress notes shall also provide clear justification for psychopharmacological interventions that are outside usual and customary treatment, including psychotropic medication above usual does, multiple simultaneous medication changes, and use of polypharmacy.
2. Psychopharmacological consultation shall be available to provide input to MMHI psychiatrists regarding psychopharmacological practices.
2.1 The MMHI psychiatrists shall participate in monthly peer consultation regarding psychopharmacological practices.
2.2 Psychopharmacological consultation shall also be available from an appropriately qualified professional, upon request.
2.3 Consultation shall be available regarding general psychopharmacological practices and on a case-specific basis.
1

Case 2:96-cv-02312-BBD Document 10 Filed 06/21/2005 Page 8 of 10

3. Psychopharmacological interventions shall be documented and integrated into treatment planning.

3.1 Initial Treatment Plan (ITP):

3.1.1 The admitting psychiatrist shall develop ITP interventions for psychiatry, including psychopharmacological interventions, intended to initiate measures that will provide for the safety of the patient and/or others as well as to stabilize the patient's acute psychiatric symptomsibehaviors.

3.1.2

The attending psychiatrist shall have the final authority for approving the ITP, as evidenced by hislher dated signature on the ITP form. The attending psychiatrist shall make modifications to the ITP, including psychopharmacological interventions, as indicated, based on the attending psychiatrist's plan for on-going treatment of the patient.

3.1.3

The treatment team, under the leadership ofthe attending psychiatrist, shall add or modify the discipline-specific, individualized interventions on the ITP, including psychopharmacological interventions, as necessary to address the patient's current needs, problems, and/or behaviors.

3.2 Master Treatment Plan (MTP):

3.2.1

The MTP shall include the patient's current diagnosis, problem descriptions and objectives related to discharge barriers and other treatment issues, and interventions, including psychopharmacological interventions, identified to address the discharge barriers and other treatment issues.

3.2.2

The attending psychiatrist shall include in hislher interventions psychopharmacological interventions selected to address the patient's psychiatric symptomsibehaviors. The attending psychiatrist's progress notes shall document the effectiveness of psychopharmacological interventions, as well as the rationale for any changes in these interventions.

3.3 Treatment Plan Reviews (TPRs):

3.3.1

Interdisciplinary TPRs shall include a verbal review of the status of problems identified on the MTP, including diagnoses, and continued rationale for any problems that were deferred. TPRs shall include a review ofmedications, including medication changes and use ofPRN and STAT medications. The TPR shall address the efficacy of stail's interventions,

2

Case 2:96-cv-02312-BBD Document 10 Filed 06/21/2005 Page 9 of 10

including psychophannacological interventions, and any revisions needed.

3.3.2

If a patient is not making progress as expected toward the goals and objectives ofthe MTP, the treatment team shall, in a timely manner, consider the modification oftreatment interventions, including psychophannacological interventions.

4. Performance improvement activities shall be implemented to ensure that psychopharmacological practices are consistent with accepted standards of care.

4.1 Medical Staff peer review processes shall include indicators related to psychophannacological practices.

4.2 The MMHI Phannacy and Therapeutics Committee shall review information relative to psychopharmacological practices and make recommendations for improvements to the MMHI Medical Staff and Quality Council.

4.3 Actions shall be taken as indicated to improve the quality of psychopharmacological care.

I - '-,
L..... .. I' ,. ~--

Case 2:96-cv-02312-BBD Document 10 Filed 06/21/2005 Page 10 of 10
UNITED STATES DISTRICT COURT - WESTERN DISTRICT OF TENNESSEE
Notice of Distribution
This notice confirms a copy ofthe document docketed as number 10 in case 2:96-CV-02312 was distributed by fax, mail, or direct printing on June 21,2005 to the parties listed.
Verlin Hughes Deerinwater
u.s. DEPARTMENT OF JUSTICE
10th & Pennsylvania Avenue, N.W. Washington, DC 20035--640
Kathleen A. Maloy ATTORNEY GENERAL AND REPORTER 426 Fifth Avenue North Second Floor Nashville, TN 37243--048
William G. Maddox U.S. DEPARTMENT OF JUSTICE 601 D-Street, N.W. Room 5128 Washington, DC 20004
Honorable Bernice Donald US DISTRICT COURT

 Case 2:96-cv-02312-BBD Document 6 Filed 05/21/1997 Page 1 of 1
.r~""~J' ,',G-&:
'IN:TED S~A~ES DISTIl.:CT COURT ',..,STERN J:T3T:<ICT QP TENNRSSSR
WE5~RN D:V:S:CN

CJII:TED S~ATES OF AMERICA
Plai"t~ff.
VS. dl_. e t 3T~TE O~ T~VKESSEE,
Defendants,

,- ,,-
Civi'. "'0_ )O-n12-c/V

JIRlGMHNT
~-------------~
~eClSl0n by Cour~. Thi. ac~ion ca~ for consideratl0n b~fore ,he COUrt, Tc.e issues ;'.ave been. duly consid~r"d and" ded.ion has been rendered,
:T IS ORDERED AND ADJUDGED tl~t judgmen~ is enter~d in
accordanc,,- with 'he Con~~nt DecZ"<!!e entered March :n. 1396. Th"
COurt retains jurisdi~tion of this action to @nforc~ the provLsion. of 'he consent C8Cree if nece~8ary_

~ £;-,..,..., "'" JG:J, ~ ..
~ITH GIBBONS
~ITBD STATES DISTRICT JG~GE

 Memorandum

U.S. v. Tennessee MH-TN-001-001

JRD:AEP:BPS:VH:drb DJ 1 6 8 - 7 2 - 0

Subject

Recommendations to Investigate

Dale

Memphis Mental Health Institute

Memphis, Tennessee

NOV 2 I99C

To

John R. Dunne

From -7 Arthur E. Peabody, Jr.

Assistant Attorney General ft Chief

Civil Rights Divisionv*

Special "Eltigation Section

Introduction
We recommend initiation of an investigation into conditions of confinement at the Memphis Mental Health Institute (MMHI) in Memphis, Tennessee, pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. Section 1997. The information we have obtained indicates that conditions at MMHI deprive residents there of their constitutional rights. These conditions include inadequate psychiatric care and treatment, inadequate supervision of patients and neglect caused, at least in part, by an inadequate number of professional and direct care staff. Other allegations suggest general medical care deficiencies, including overuse and misuse of medication, and an unsafe and unsanitary environment. These conditions may be subjecting MMHI residents to undue bodily restraint and undue risks to personal safety as well as denying them of their constitutional rights to adequate medical care and reasonable safety. Cf. Youngberg v. Romeo. 457 U.S. 307 (1982).
Background
The Memphis Mental Health Institute is located in northern Memphis. The facility is approximately 27-30 years old and serves a population of 160-175 patients. There are presently 217 beds at the facility although there are plans to reduce that number by 44 beds. 1/ Although currently certified by the Health Care Financing Administration (HCFA), an October 1989 report following a review of the facility by HCFA surveyors cited major problems. 2/

1/ The Commercial Appeal, July 15, 1990, at p.Bl.
2/ Although MMHI is currently HCFA certified, such certification does not conclusively determine whether a facility meets constitutional standards. See Woe v. Cuomo. 729 F.2d 96 (2d Cir. 1984), cert, denied. 105 S.Ct. 339 (1984). The HCFA Survey Report is dated October 3 0-31, 1989.

- 2-
Sources of Information
Allegations regarding alleged inadequate conditions at MMHI first came to our attention when attorneys traveled to Memphis to conduct investigatory activities at the Arlington Developmental Center. During the course of the Arlington investigation, numerous allegations of grossly inadequate conditions of confinement at MMHI came to our attention. We obtained further information from a variety of sources including a 1989 HCFA report of MMHI, interviews with present and former members of the staff at MMHI and parents of MMHI patients and former patients, numerous articles from the local newspaper xn Memphis, documents from the Alliance for the Mentally 111 (AMI) of Memphis, and documents from the facility itself from present and former employees.
Inadequate Supervision and Unsafe Environment
Our information indicates that there are insufficient numbers of qualified professional and direct care staff to adequately supervise residents. Because of these deficiencies, MMHI appears to be unable to protect its residents from harm. Based on our information, environmental conditions at MMHI also endanger the health of residents.
The failure to have sufficient numbers of staff has resulted in physical harm to patients. A parent of a former patient told us that her daughter was raped and that the facility has been trying to cover up the incident since it occurred. 3/ The patient had been admitted to MMHI only a short time before the incident. A local rape crisis center confirmed that the patient had, in fact, been raped. The patient's mother believes the rape to have resulted directly from the inadequate supervision of patients due to insufficient staff at MMHI. 4/ The facility did not contact the patient's parents until the day after the incident and refused to allow the patient go to a rape crisis center until after the police intervened in the matter. 5/
The sister of another former patient also informed us of a sexual incident at the facility. 6/ The source's sister was
2/ Telephone interview with Joanne Woodford, mother of a former MMHI patient, August 30, 199 0.
4/ Id.
5/ Id.
6/ Telephone interview with Diane Billings, sister of a former patient at MMHI, August 13, 1990.

- 4-
have been fired due to their own drug abuse and mental illnesses. 15/
The shortage of staff members and the lack of training for the facility personnel continue to be primary concerns of our sources. As one source stated, "MMHI is one of the worst institutions in the South" and also that she believes that "very few patients are actually helped by receiving treatment there." 16/ Many of our sources indicated that the staff seems inadequately trained to handle even minor situations at the facility and is generally ineffective in helping the patients. 17/
Additionally, one former employee of MMST told us that he was criticized by the MMHI Joy the administration for being "too involved and overly concerned about his patients." Furthermore, he alleges that often patients are intimidated and threatened by the staff and that the overall attitude of the staff toward patients is "deplorable." 18/ This source stated that many employees are "totally insensitive to patient needs and didn't treat patients as people." 19/ He also notes that staff members often sleep or watch television while on duty and that, at least in one unit, patients allegedly find it very easy to buy drugs from staff members. 2 0/
Staffing shortages are exacerbated by excessive and unnecessary crowding at MMHI. One source told us that most of the eight units are only able to accommodate 25 patients but often have up to 30 patients at one time. Furthermore, the same source indicated that while some units are overcrowded, often other units have extra room but will not "accept" patients from other units to accommodate the overcrowding, nor will administration move beds to change the cramped conditions on overcrowded units. 21/
15/ Telephone interview with Marianne Finely, Effective Advocacy for Citizens with Handicaps, Inc. (EACH) representative at MMHI, August 14, 1990.
16/ Telephone interview with Dee Green, mother of a former MMHI patient, August 15, 1990.
17/ Green interview, Billings interview, Woodford interview.
18/ Telephone interview with Billy Henderson, former MMHI technician, August 13, 1990.
19/ Id.
20/ Id.
21/ Id.

- 5-
Our information suggests that the physical environment at MMHI poses health and safety risks to MMHI patients. The most serious allegations involve the failure to maintain sanitary conditions. One source we spoke with indicated that the facility is not cleaned on a regular basis. Also, that source was quite concerned about roach infestation at the facility. She indicated that when she checks patients at night and turns on the lights in patient rooms, she sees roaches "scurry everywhere." 22/ She said that when food is being served, roaches are visible in the rooms and around the tables where patients eat their meals. 23/
In sum, serious allegations meriting investigation have been raised with respect to the adequacy of staff—and the safety of the general environment.
Inadequate Psychiatric Treatment
.Beyond the problems already noted resulting from MMHI's acute staffing shortages, there is evidence that patients are not receiving adequate psychiatric treatment. Our sources indicated that a primary problem at MMHI is the lack of adequate treatment programs for patients in that the programs are not individualized to meet patient needs. 24/ Further, it is alleged that what treatment programs exist are not monitored to determine whether they are benefitting the patients. 25/ The failure to properly review residents' treatment programs allows patients' drug schedules to go unmonitored. In at least one case, this apparently resulted in brain damage to one MMHI patient when two potent antipsychotic medications were inappropriately used in combination. 26/
One source told us that patients who have an acute need to be seen by a psychiatrist have little or no chance of being seen on a timely basis. 27/ Another source told us patients have extremely limited access to physicians and that, for patients, "it is literally impossible to talk to a doctor at the facility." 28/
22/ Collier interview.
23/ Id.
24/ Id.
25/ Id.
26/ Scott interview. Mrs. Scott's son, Keith, a former patient at MMHI, was prescribed a dangerous mixture of haldol and lithium and his current doctor fears that the brain damage may be irreversible.
27/ Collier interview.
28/ Lee interview.

- 6-
One patient's mother told us she believes that, because her son did not participate in group therapies, he never received any type of treatment at MMHI. 29/
We were told that there are no adequate schedules of activities for the patients to follow. 30/ Further, we were informed that patients are idle during most of the time and that it is a rare case when patients are afforded any type of scheduled activity. 31/
Improper Use of Medication
Almost all of our sou"rces indicated some"concern about the misuse and overuse of psychoactive medications at the facility. 32/ Furthermore, one of our sources indicated that individualized drug treatment was not maintained and that she frequently saw the same medication being prescribed for many different patients with many conditions. 33/ According to our information, there have number patients harmed by improper medication administration. The mother of a former patient at MMHI informed us that her son has possible irreversible brain damage that her son's present doctor has told her is linked to a dangerous mixture of mind-altering drugs used at the facility. 34/ The same source claims that drug schedules are not closely monitored.
We were told that there has been at least one death at MMHI that resulted from the mismanagement of drugs. A current MMHI employee told us that a 15-16 year old patient died in July of 1989, allegedly after a wrong medication was given the patient by an MMHI physician. 35/ Apparently the medication blocked his bowels and led to his death. According to our sources, MMHI staff were told by the administration that if they "talked" they would be fired. 3 6/
29/ Green interview.
30/ Collier interview.
31/ Id.
32/ Collier interview, Scott interview, Woodford interview, Green interview.
33/ Collier interview.
34/ Scott interview.
35/ Scott interview, and telephone interview with Richard Mark, MMHI employee, August 20, 1990.
36/ Mark interview.

- 7-
Another source told us that her son's medication had so adversely affected him that he could not sit still, was therefore continuously walking and, as a result, had lost 25 pounds in one month. That same source told us she suspected her son was being over-medicated because prior to her son's recent release hearing, he was talking and walking normally, but at the court hearing the next day, her son could not speak or lift his head. 37/
Another source reported to us that her son was so heavily medicated that he spent 22 or 23 hours a day in bed during his 1989 stay at the facility. 38/ These allegations strongly suggest overuse and misus'e" of psychotropic ffiSdications. Moreover, these allegations indicate that insufficient psychiatric care is available to avoid unreasonable use of chemical restraints.
Conclusion
Our information indicates that conditions at MMHI are depriving patients of their constitutional rights. If the allegations and information we have received are true, patients at MMHI may be being deprived of, inter alia, their right to adequate medical care, including psychiatric treatment a professional would consider reasonable to avoid undue risks to personal safety and unreasonable bodily restraint, reasonably safe conditions of confinement, and freedom from undue bodily restraint. Therefore, we recommend that an investigation of Memphis Mental Health Institute be instituted under our CRIPA authority. Fu^ids^ are available to conduct this investigation.
Approved:
Disapproved
Comments:
37/ Telephone interview with Ann Coffey, mother of former patient at MMHI, August 14, 1990.
38/ Green interview.

 U.S. v. Tennessee
MH-TN-001-002 Office of the Assistant Attorney General

U.S. Department of Justice Civil Rights Division
Washington, D.C. 20530

REGISTERED MAIL RETURN RECEIPT REQUESTED

APR 4 I99I

Honorable Ned McWherter Governor of Tennessee State Capitol Governor's Office Nashville, TN 37243

Interim Findings Letter Regarding Memphis Mental Health Institute. Memphis. Tennessee

Dear Governor McWherter:

On December 12, 1990, we informed you that, pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. §1997 et seg., we were commencing an investigation into conditions of patient care and treatment at the Memphis Mental Health Institute ("MMHI") in Memphis, Tennessee. On February 19 - 21, 1991, the Department conducted a tour of MMHI with experts in the fields of psychiatry and psychiatric nursing. Our touring team examined patient records, interviewed MMHI's superintendent and numerous staff and spoke with patients. We also reviewed voluminous documents provided by the facility concerning a wide range of activities and procedures. During the tour, we were treated graciously by staff from the Department of Mental Health and Mental Retardation, the Attorney General's office and MMHI.

Even though our investigation into conditions at MMHI is still ongoing as of the date of this letter, our tour uncovered certain conditions which we believe are violating the constitutional rights of MMHI patients. For reasons that are explained below, we thought it important to immediately inform you of these conditions. This letter is, therefore, only an interim finding as the Department's investigation is still continuing. At a future date, we will provide you with a letter that will set forth in detail our complete findings and supporting facts.

Institutionalized mentally ill persons are constitutionally entitled to adequate food, clothing, shelter, medical and nursing care, a reasonably safe environment and such treatment programs as an appropriate professional would consider reasonable to..

- 2-
ensure a patient's safety and freedom from undue bodily and chemical restraint. Cf_. Younqbera v. Romeo. 457 U.S. 307, 324 (1982). Staffing deficiencies at MMHI are precluding the full enjoyment of.these rights by patients at the facility.
MMHI does not have a sufficient number of psychiatrists, nurses, or psychiatric technicians to provide even minimally adequate psychiatric treatment to MMHI patients. At the time of our tour, MMHI had only four psychiatrists providing services to patients. We were told that several psychiatrists had left MMHI within the past few months. There are simply too few psychiatrists to provide adequate treatment to MMHI patients. The ability of the psychiatrists at MMHI to provide appropriate treatment is further compromised by the fact they are supervising non-psychiatrist physicians who are prescribing psychotropic medications and treating seriously mentally ill patients.
There are as well an insufficient number of nurses and psychiatric technicians to implement and monitor patient treatment plans or to provide necessary patient supervision and ensure patient safety. This has resulted, among other things, in patients being subjected to undue physical and chemical restraint in violation of the patients' Youngbera rights.
It is our understanding that the Tennessee Department of Mental Health and Retardation is planning to cut 24 direct patient service positions at MMHI as of July 1, 1991. As stated above, we found the current complement and ratio of professional, nursing and direct care staff to the patient population at MMHI to be insufficient. Further cuts in staff will exacerbate these shortages that already result in conditions that are depriving patients of their constitutional rights. In sum, additional — not fewer -- staff are required at MMHI.
At a future date we will provide you with our complete findings and supporting facts regarding conditions or practices at MMHI which violate the constitutional rights of the patients there, along with the minimal remedial measures that may be required to correct those conditions.
Again, we appreciate the cooperation extended to us during the initial stages of our CRIPA investigation of MMHI. I hope and trust that this cooperation will continue.
John R. Dunne fistant Attorney General Civil Rights Division

 U.S. Department of Justice Civil Rights Division

Office of the Assistant Attorney General

Washington. D.C. 20530
U.S. v. Tennessee

REGISTERED HAIL RETURN RECEIPT REQUESTED

MH-TN-001-003 February 6, 1992

Honorable Ned McWherter Governor of Tennessee .State Capitol ' Governor's Office Nashville, TN 37243

Re: Findings Letter Regarding Memphis Mental Health Institute, Memphis. Tennessee

Dear Governor McWherter:

On December 12, 1990, we informed you that, pursuant to the

Civil Rights of Institutionalized Persons Act ("CRIPA"), 42

U.S.C. § 1997 et seq., we were commencing an investigation into

conditions relating to patient care and treatment at the Memphis

Mental Health Institute ("MMHI") in Memphis, Tennessee. As

specified by CRIPA, we are now writing to inform you of our

conclusions that the conditions at MMHI deprive patients there of

their constitutional rights. We also outline the minimum

measures we believe necessary to remedy those unconstitutional

conditions. Finally, in the Attachment to this letter, we set

forth the facts supporting the findings of constitutional

violations.

•

Based on our extensive investigation, we conclude that conditions at MMHI deprive patients of their constitutional rights to adequate medical care and sAich treatment as an appropriate professional would consider reasonable to ensure their safety and freedom from undue bodily and chemical restraints. Cf.. Youngberg v. Romeo. 457 U.S. 307, 324 (1982).

- 2-
As you will recall, on April 4, 1991, following our initial tours at MMKI, we informed you in" writing that.MMHI was subjecting its patients to grossly substandard psychiatric care and treatment caused, in significant part, by the failure to provide a sufficient number of staff, including psychiatrists, nurses and psychiatric technicians. In our letter, we specifically requested reconsideration of the State's decision to cut 24 staff positions at MMHI. By letter dated May 22, 1991, you responded to our findings by stating, among other things, that the State was studying this issue. No further response has been received. We subsequently learned that 24 -staff positions at MMHI were' cut. While we further understand that the unit covered by these 24 positions was ultimately closed, these cuts have exacerbated staffing shortages at the facility. The lack of a sufficient number of adequately trained staff contributes substantially to the unconstitutional conditions we find at MMHI.

We have identified the following conditions and practices which we believe violate the constitutional rights of MMKI patients:

1) Failure to provide patients with adequate general and emergency medical care;

2) Inadequate psychiatric care and medication practices including:

a) Lack of psychiatric staff;

b) Dangerous medication regimens; and

c) Inadequate development and implementation of individualized treatment plans.

3) Improper and excessive use of physical restraints, including restraining patients in locked-door seclusion rooms without adequate supervision.

These deficiencies subject patients at MMHI to harm, both

potential and real.

,

In order to eliminate the egregious or- flagrant conditions that deprive MMHI residents of their constitutional rights, the following measures, at a minimum, must be implemented:

1) MMHI must hire and deploy a sufficient number of qualified direct care and professional staff, including psychiatrists, psychologists, registered nurses and psychiatric technicians, to ensure that patients receive adequate medical and psychiatric care, including the development and implementation of individualized patient treatment plans;

- 3-
2) MMHI must institute improvements in its medication practices, including monitoring medications and medication interactions and side-effects, to remedy departures from accepted professional standards;
3) MMHI must improve its medical health care delivery system to ensure that patients have timely access to adequate emergency and general medical care;
4) Restraints must be employed only pursuant to the exercise of professional judgment by a qualified professional. The practice of using restraint for the convenience of staff or in lieu of adequate staffing or 'the implementation of treatment programs must cease immediately. The practice of restraining patients and then placing patients in a locked-door seclusion room must cease immediately. Patients must be released from /seclusion as soon as their physical and mental condition will allow for safe release;
5) MMHI must institute recordkeeping practices that will ensure documentation sufficient to enable staff to render professional judgments as to medical, psychiatric, psychological and nursing treatment services; and
6) MMHI must immediately halt the practice of using untrained unit clerks as psychiatric technicians.
To remedy the deficiencies at MMHI and to ensure that constitutionally adequate conditions are maintained thereafter, we propose, as an amicable resolution of this matter and based upon the principles of conciliation and negotiation embodied in CRIPA, to negotiate an agreement with the State of Tennessee to be entered as an order of a federal court. Any such agreement shall provide, at a minimum, that the above referenced remedies be implemented at MMHI.
We suggest you contact the appropriate regional office of the Departments of Health and Human Services and the Department of Education to ensure that the State is maximizing its use of federal financial assistance assistance that may be utilized to correct the deficiencies identified in this letter.
Our attorneys will be contacting legal counsel for the Tennessee Department of Mental Health and Mental Retardation shortly to discuss this matter in greater detail. In the meantime, should you or your staff have any questions regarding

- 4 -
this matter, please feel free to .call Arthur E. Peabody, Jr., Chief, Special Litigation Section, at (202) 514-6255. We continue to hope and trust that this matter can be resolved in an amicable manner.
Sincerely,

John R. Dunne Asvci4tant Attorney General
"Civil Rights Division

cc: Honorable Charles Burson Attorney General State of Tennessee

Mr. Evelyn C. Robertson, Jr.
Director Department of Mental Health and Mental Retardation

Mr. Walter Diggs Superintendent Memphis Mental Health Institute

Ed Bryant, Esq. United States Attorney Western District of Tennessee •

Mr. Anthony Tirone

Director ~

. ..•

Office of Survey and Certification

Health Care Financing Administration

- 5-
ATTACHMENT
FACTS SUPPORTING FINDINGS OF CONSTITUTIONAL VIOLATIONS
Our investigation consisted of three separate tours of MMHI with four expert consultants: a psychiatrist, a psychiatric nurse, a psychologist, and a physician. We observed conditions on the various patient units, interviewed administrators, staff and patients and examined a variety of records concerning a wide range of facility operations. -Throughout "the investigation, we were treated graciously and received complete cooperation from the administrators and staff of MMHI and from attorneys of the Department of Mental Health and Retardation.
The following paragraphs set forth the facts supporting our findings.
1. Failure to provide patients with adequate general and emergency medical care and nursing care.
Major deficiencies exist in the medical care delivery system at MMHI, including the inability to recognize and treat life-threatening or dangerous medical conditions, deficient follow-up of recognized problems, inadequate physical examinations, including inadequate neurological examinations, deficient interpretations of abnormal laboratory findings, deficient formulation of medical treatment plans and deficient medical recordkeeping.
Many of the deficiencies in medical services can be traced directly to inadequate numbers of trained staff. Specifically, it is our consultant physician's opinion that MMHI staff are not adequately trained to recognize the serious medical needs of patients. As a result, patient ailments or illnesses can deteriorate to the point where such conditions become life threatening.
Deficiencies in the medical care, service delivery system at MMHI have resulted in physical harm -DO MMHI. patients. Our medical consultant believes such deficiencies may have contributed to the deaths of two MMHI patients. His review of these charts suggests that MMHI staff members failed to recognize the severity of these patients' worsening conditions prior to the time such conditions presented medical emergencies. Furthermore, various members of the nursing and medical staffs we interviewed were unfamiliar with "crash cart" emergency medical equipment. Some of MMHI's emergency equipment was also faulty.

— 6—
MMHI's physicians are not proficient, trained or certified in advanced cardiac life support; In reviewing code blue calls for the previous six months, our consultant physician notes numerous examples of inadequate responses. In one instance, the code blue physician failed to arrive until 16 minutes after the code blue was called. In other instances, physicians failed to institute even the most basic life saving measures, such as the administration of oxygen or intravenous fluids, when the patient's condition required such treatment. It is our consultant's opinion that, in at least one instance, poor response to a code blue call contributed to a patient's death.
Significantly, while touring MMHI we observed staff participating in an unscheduled code blue exercise in which the hospital administrator played the role of a patient who had suffered a seizure and was'aspirating. The MMHI response team -made several serious mistakes. First, hospital operators announced the code blue as taking place on the wrong unit, : resulting in a delay in the arrival of the code blue team. Second, the nursing staff who were instituting basic life support failed to take appropriate action to establish an adequate airway in the victim's throat. If the exercise had been a real emergency, the "victim" "might have suffered serious brain damage or even death.
Resources and expertise to provide general medical care are likewise deficient. MMHI lacks a sufficient number of registered nurses to provide adequate, professional nursing care to patients. Current nurse staffing is inadequate to provide necessary patient assessments, treatment planning, supervision and evaluation of patients' conditions, including any untoward change in patients7 conditions. Further, although MMHI does have in place a policy relating to severity of illness and assignment of staff accordingly, which includes adult service minimum safe staffing standards, MMHI was unable to meet its own recognized minimum safe standards for the several weeks before our consultant nurse's tour. Nurse staffing appears to be based on the number of positions approved by the State rather than on any system related to patient need.
i
The ratio of registered nursing 'to non.-registered nursing patient care positions at MMHI (27% to 73%)' is inadequate to provide for appropriate supervision of the non-licensed direct care staff. This ratio is an especially critical deficiency at MMHI given that psychiatric technicians (PTs) at MMHI are hired without any previous psychiatric background and often receive only "on the job" training. We find instances where psychiatric technicians are hired and assigned to patient wards without -~ previous psychiatric experience and without receiving MMHI's own 120-hour PT training program. This is particularly dangerous given that inadequately trained staff are responsible for placing patients in restraints.

- 7-
We also find that MMHI is using untrained ward clerks — essentially clerical personnel — as substitute PTs on night shifts. This practice must stop immediately because unit clerks have absolutely no training in providing psychiatric nursing care.
MMHI's policies and procedures regarding the identification, treatment and follow-up of active medical problems are inadequate. Moreover, MMHI's infectious disease/isolation practices are so deficient as to threaten the health and safety of MMHI patients. Our consultant finds practices in the areas of the prevention of hepatitis transmission, HIV precautions, tuberculosis screening, and immunization to be especially problematic.
In addition, neurologic exams performed by MMHI staff are • grossly inadequate. Only the most basic and rudimentary exams are performed. There is no systematic evaluation for the extrapyramidal side effects of psychotropic medications. It is our consultant's opinion that the neurological exams performed at MMHI represent a significant departure from accepted practice in ' that they provide neither an accurate assessment of neurological function nor an evaluation for medication side effects.
Medical recordkeeping at MMHI is also inadequate. Physicians' findings, assessments, and plans are not adequately documented. From a review of the records, it is often impossible to determine if a physician actually examines a given patient or merely observes the patient from a distance. There are also indications in patient records that suggest that physician and nursing notes are written at a later date, backdated, and inserted into the medical record without being clearly identified as such. While we do not, at the moment, ascribe any improper motive to these backdated records, such a practice is clearly not in keeping with accepted standards of practice.
2. Inadequate psychiatric care and medication practices,
a. Lack of psychiatric staff.
The lack of professional resources, including appropriate staffing, results in the failure to provide' constitutionally adequate psychiatric care and treatment. Simply put, there are too few psychiatrists at MMHI to provide necessary care and treatment to patients. During the time of our psychiatrist's visit, there were only four psychiatrists providing service to approximately 170 patients. This psychiatrist-to-patient ratio is woefully inadequate — especially in light of the severe psychiatric conditions of MMHI patients.

- 8-
b. Dangerous medication reainens.
A major problem resulting from the shortage of psychiatrists at MMHI is that non-psychiatric trained physicians prescribe psychotropic medications and attempt to provide psychiatric care without adequate supervision by trained psychiatrists. As a result, many aspects of drug usage at MMHI represent substantial departures from generally accepted medical standards. For example, a review of records reveals numerous instances where patients are misdiagnosed or exposed to inappropriate dosages of drugs used in the treatment of mental illness and dangerous drug interactions'. • Other patients are subjected to both inappropriate drug combinations and physical restraint, or treated for psychiatric symptoms when their illnesses have organic origins. We also note patients who are started on abnormally large doses of potent medications without any justification in the patients' .records. Deficiencies of this kind are aggravated by the 'inadequacy of MMHI's policies and practices pertaining to the monitoring of drug side effects. Adverse medication reactions/ are, by MMHI's admission, underreported.
c. Inadequate development and implementation of individualized treatment plans.
We find consistent evidence that MMHI patients are not receiving individualized treatment based on plans designed to meet specific patient needs. This is especially true of, and a critical deficiency for, patients who exhibit aggressive behaviors and patients who are in need of behaviorally-oriented programming. The development of such a plan — and its consistent implementation — is central to the provision of professionally-based psychiatric care. Such a planning process requires sufficient staff to collect data, observe the outcome of interventions, coordinate the results, and, if necessary, reformulate the plan. MMHI does not have sufficient staff available to perform these necessary treatment functions. We find examples of patients who have certain problems identified in an initial screening, but whose treatment plan fails to address them.
Consequently, MMHI patients are subjected to the possibility of increased hospital stays due to lack of progress, increased exposure to risk of harm from the patients' own illnesses or from other patients' illnesses, and the-continued exposure to the side-effects of medications.
Progress notes are also not properly maintained. If a patient has more than one psychiatric problem, notes are written in such a manner that it is often not clear which problem a given note might be addressing. Other notes are often so vague as to be worthless.

- 9 -
3. Misuse and excessive use of physical restraints, including restraining pa~tients in locked-door seclusion rooms.

Patients at MMHI are subjected to both an undue amount of bodily restraint and dangerous restraint practices. It is the consensus of our consultants that the lack of adequate staffing and the failure to develop and consistently implement treatment plans have led MMHI staff to resort to inappropriate and excessive restraint practices in order to control patients.

The routine practice at MMHI is to put patients into fivepoint restraints (a practice where a patient is restrained on a bed and bound by the ankles, by the wrists with the arms to the side, and by a strap across.the waist) and to place them into a locked seclusion room. Monitoring is done via closed circuit ,-television and the monitors are located in a separate hallway outside the nurses' station.

This practice is inappropriate and dangerous. Indeed, • such a practice can seldom, if ever, be justified. When asked why a patient in a five-point restraint is also locked in a room, MMHI staff consistently reply that it is to protect the restrained patient from possible injury from other patients. The protection of a patient from other patients is not an acceptable rationale for placing a restrained patient into a locked room. A patient so restrained and secluded is at great risk of harm. There are myriad health and safety related problems that restrained patients can experience — including choking and asphyxiation — and the risk of harm is only increased when, as here, the patients are locked up and not under direct observation of staff.

Further, staff members are placing patients inappropriately

in physical restraints simply because they are confused or

disoriented. For example, patients are placed in restraints for

"confusion," "getting out of bed," "tumbling, ataxia [muscular

incoordination], and being unable to care for self needs," and

"disrobing, stumbling and not following directions." These are

not professionally justifiable reasons for subjecting patients to

restraints.

'

We also note numerous instances where patients are kept in restraints for longer than what appears warranted by professional judgment. For example, patients are placed into five-point restraints, then released from a portion of those restraints to eat a meal or for some other purpose, then placed back into the five-point restraint. In general, if a patient is calm enough to eat a meal, putting the patient back into full, five-point restraint after eating without restraints — an indication that the patient is calm — i s unnecessary and excessive. We also find

-10-
incidents where a patient is reported as "very sedated" and "confused," during times when he-is in restraint. Restraining a sedated patient is a substantial departure from accepted standards of psychiatric care.
Physicians' notes often do not justify why a given restraint is necessary. MMHI has no separate policy concerning the use of restraints on patients with medical illnesses. Finally, it does not appear from the documentation that staff are consistently offering patients fluids or toileting while patients are in restraints.
Our consultants conclude that the excessive reliance on restraints is due to a lack of sufficient numbers of adequately trained staff. Too few psychiatrists and other professional and direct care staff translates into a failure to provide and 'implement individualized treatment plans, which, in turn, results in over-reliance on restraints to control behavior. The lack of appropriate training of staff results in patients remaining in restraints longer than professionally justifiable or being restrained unnecessarily. As well, the failure to properly monitor patients in restraints is due to insufficient numbers of direct care staff to provide such monitoring.
In sum, based on the above stated findings, MMHI residents are subjected to egregious and flagrant conditions that deprive them of their constitutional rights pursuant to a pattern and practice of resistance to the full enjoyment of those rights.

 U.S. Department of Justice Civil Rishts Division

A£?:JC?:WGM:LWJ:eh DJ 163-72-33

Spi .'ial Uzi'^cniiin S*z:ion P.O. Box 56-iOfl Hj.s/K.ii'ror:. DC. 20GX-6JC0
November 17, 1994

, :::
114 John Sever iuilding 50 0 Charlotte Avenue

• - IllllllllillU U.S. v. Tennessee

—

MH-TN-001-004

Nashville, Tennessee 37243-0497

Re: Memphis Mental Health Institute

Dear Mr. Bursor.:
I am writing in response to your request of the Department for information regarding conditions at the Memphis Mental Health Institute ("MMHI") in Memphis, Tennessee, for use in a briefing you intend to give to the new Governor-elect of Tennessee. As you are aware, we have been investigating conditions at MMHI since December 1990, pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997 et sea.
In April 1991, we first informed state officials that conditions at MMHI, including a lack of professional and direct care staff, posed unreasonable risks to the health and safety of MMHI patients in violation of their constitutional rights. In February 1992, we informed you in further detail of the many conditions and practices at the facility which were endangering the health and safety of MMHI patients. Copies of these letters are attached for your further information and convenience.

Our most recent tour of MMHI was completed in June of this year. Unfortunately, many of the most serious conditions identified throughout the course of our multi-year investigation of MMHI still exist. For example, medical care remains grossly deficient and endangers MMHI patients. Our expert physician, making his third visit in as many years to MMHI, determined that MMHI patients are denied timely and adequate medical care and identified practices that result in harm to patients and are potentially life-threatening.

- 2-
Medical staff at MMHI fail to appropriately examine ar.d assess patients' medical status and needs, fail to interver.e to treat patients' serious medical problems, neglect life-threatening medical conditions and often administer contra-indicated medications. Such practices are inconsistent with generally accepted medical standards or practice.
Psychiatric care is also critically deficient. Inadequate care results primarily from an inadequate number of competent and qualified psychiatrists. A high rate of admissions and discharges creates a work load too great for the few psychiatrists at MMHI. Thus, psychiatrists are not adequately assessing patients to determine "their needs, are not sufficiently involved in developing appropriate, individualized treatment plans for patients which address their mental conaTition, and are not adequately involved in providing direct patient care. As well, treatment programs for patients are inadequate.
Medication practices at MMHI pose great risks to patients. Medications are often administered without sufficient clinical justification and absent adequate consideration of the dangerous side effects of these medications, given a patients' psychiatric and medical status.
Finally, we determined that mental health patients are being prematurely released from the hospital before their psychiatric condition has been stabilized and without appropriate monitoring or placement in community programs. During our June tour we reviewed records of patients who were discharged even though professionals at MMHI indicated in their records that they were still dangerous or not stabilized. Absent adequate treatment, such patients are subjected to repeated admissions and discharges and a repetitious cycle of harm. A review of records indicated that recidivism is a significant issue at MMHI due to inadequate treatment. For example, we noted numerous patients who had multiple admissions to MMHI. Indeed, we found -- in an extreme case -- that one patient was on his 3 5th inpatient admission.
Our nursing consultant, also making her third trip to MMHI in June, found that nursing services had not improved, but had deteriorated since her last visit to MMHI. She found that MMHI is not adequately staffed to provide therapeutic nursing care to its patients. Nursing care plans are not adequately individualized to reflect the needs of patients and, due to the lack of nursing staff, what plans are written are often not implemented.
In sum, both medical and psychiatric care at MMHI fail "to meet constitutional standards. Patients continue to be subjected to harm or unreasonable risks to their health and safety.'

- 3-
I hope you find this information helpful in your conversations with the Governor-elect. If anything further is needed, please advise me.
Sincerely,

Enclosures

Arthur E. Peabodyr*or. Chief
Special Litigation Section

 CM/ECF - U.S. District Court:tnwd - Docket Report

Page 1 of 3

51AD, TERMED
U.S. District Court Western District of Tennessee (Memphis) CIVIL DOCKET FOR CASE #: 2:96-cv-02312-BBD

USA v. Tennessee, State of, et al Assigned to: Bernice B. Donald Demand: $0 Cause: 28:1345 Medical Care Recovery Plaintiff United States of America
V. Defendant State of Tennessee Defendant

Date Filed: 03/15/1996 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff
represented by Kathleen A. Maloy ATTORNEY GENERAL AND REPORTER Civil Rights and Claims Division 426 Fifth Avenue North Second Floor Nashville, TN 37243-0488 615-741-6820 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Verlin Hughes Deerinwater U.S. DEPARTMENT OF JUSTICE P.O. Box 66400 10th & Pennsylvania Avenue, N.W. Washington, DC 20035-6400 202-514-6260 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William G. Maddox U.S. DEPARTMENT OF JUSTICE Special Litigation Section 601 D-Street, N.W. Room 5128 Washington, DC 20004 202-514-6408 LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.tnwd.uscourts.gov/cgi-bin/DktRpt.pl?107585078416786-L_280_0-1

10/25/2005

CM/ECF - U.S. District Court:tnwd - Docket Report

Page 2 of 3

Don Sundquist Governor of the State of Tennessee;
Defendant Mental Health Tennessee Department of Mental Health & Mental Retardation;
Defendant Marjorie Nelle Cardwell Commissioner;
Defendant Elizabeth A. Banks Superintendent, Memphis Mental Health Institute;

Date Filed 03/15/1996 03/15/1996 03/19/1996 03/27/1996
03/27/1996
05/21/1997
09/11/1998 09/18/1998

#

Docket Text

1 COMPLAINT; pursuant to 28 USC 1345; (BAG) (Entered: 03/15/1996)

2 JOINT MOTION FOR ENTRY OF CONSENT DECREE by USA, Tennessee, State of for entry of consent decree (BAG) (Entered: 03/15/1996)

3 SETTING LETTER: Phone conference reset for 3/27/96 at 9:30, before Judge Gibbons; (BAG) (Entered: 03/21/1996)

4 CONSENT DECREE by Chief Judge Julia S. Gibbons : granting motion for entry of consent decree [2-1]; The court shall retain jurisdiction of this action for all purposes until such time as the Consent Decree is terminated with respect to all requirements. (cc: all counsel) (BAG) (Entered: 03/27/1996)

5 MINUTES: telephone conference held 3/27/96, Judge Julia Gibbons presiding. The court approved the Consent Decree. Pla Atty: Verlin Hughes Dft Atty: Kathleen Maloy C/R: Joe Moore (TMN) (Entered: 03/29/1996)

6 JUDGMENT: by Chief Judge Julia S. Gibbons ...judgment is entered in accordance w/Consent Decree entered 3/27/96. The Court retains jurisdiction of this action to enforce the provisions of the Consent Decree if necessary. terminating case (cc: all counsel) (EHG) (Entered: 05/21/1997)

7 JOINT MOTION by plaintiff, defendants for entry of stipulation and order (EHG) (Entered: 09/17/1998)

8 STIPULATION and ORDER by Chief Judge Julia S. Gibbons: granting motion for entry of stipulation and order [7-1] to effectuate the Consent Decree entered in this case. (cc: all counsel) (SSH) (Entered: 09/21/1998)

https://ecf.tnwd.uscourts.gov/cgi-bin/DktRpt.pl?107585078416786-L_280_0-1

10/25/2005

CM/ECF - U.S. District Court:tnwd - Docket Report

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Judge Bernice B. Donald added. Judge Julia S. Gibbons no longer assigned to case. (ldc, ) (Entered: 06/13/2005)
9 JOINT MOTION FOR PARTIAL TERMINATION OF COURT ORDERS AND ENTRY OF STIPULATION FOR SUPPLEMENTAL RELIEF by United States of America, State of Tennessee, Mental Health Tennessee Department of Mental Health & Mental Retardation;. (ldc, ) (Entered: 06/13/2005)
10 ORDER GRANTING JOINT MOTION FOR PARTIAL TERMINATION OF COURT ORDERS AND ENTRY OF STIPULATION FOR SUPPLEMENTAL RELIEF. Court granted motion [9]and stated Order is binding on all State of Tennessee agencies and/or departments that may have an effet on the operations of MMHI, and on all defendants, and their successors and/or agents. Signed by Judge Bernice B. Donald. (jae, ) (Entered: 06/21/2005)
11 JOINT MOTION to Dismiss by United States of America, State of Tennessee, Don Sundquist, Mental Health Tennessee Department of Mental Health & Mental Retardation;, Marjorie Nelle Cardwell, Elizabeth A. Banks. (jae, ) (Entered: 08/19/2005)

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https://ecf.tnwd.uscourts.gov/cgi-bin/DktRpt.pl?107585078416786-L_280_0-1

10/25/2005

Output:
On March 15, 1996, the United States filed a lawsuit under the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997, against the State of Tennessee, the Tennessee Department of Mental Health and Mental Retardation (DMH/MR) and the Memphis Mental Health Institute (MMHI), in the U.S. District Court for the Western District of Tennessee, Memphis Division.  The government asked the court for injunctive relief, alleging that the defendants were depriving patients of MMHI of constitutional rights, privileges and immunities.  Specifically, the plaintiff contended that the defendants failed to provide adequate medical care, failed to provide individualized psychiatric care and treatment, and failed to provide adequate trained direct care and professional staff.

The CRIPA investigation began in 1990.  On November 2, 1990, the Department of Justice (DOJ) began sending internal memoranda recommending a CRIPA investigation of conditions at MMHI.  The preliminary findings indicated that conditions there included inadequate psychiatric care and treatment, inadequate supervision and neglect caused by an inadequate number of professional and direct care staff, as well as general medical care deficiencies, including overuse and misuse of medication and an unsafe and unsanitary environment.  On December 12, 1990, the DOJ sent the Governor of Tennessee a letter indicating an intention to investigate.  And, on April 4, 1991, the DOJ sent another letter to the Governor presenting interim findings.  In that letter, the DOJ indicated it found MMHI did not have a sufficient number of psychiatrists, nurses, or psychiatric technicians, and that DMH/MR planned to cut additional staff positions at MMHI.  On February 6, 1992, the DOJ sent another letter to the Governor presenting its findings.  In that letter, the DOJ indicated it found that MMHI failed to provide patients with adequate general and emergency medical care, had inadequate psychiatric care and medication practices, and employed improper and excessive use of physical restraints.  Further, in its findings letter, DOJ demanded implementation of certain remedial measures.

Apparently, the parties began negotiating a settlement before the CRIPA lawsuit was filed.  On March 15, 1996, the same day as the complaint was filed, the parties submitted a joint motion for entry of a consent decree.  Under the settlement agreement the defendants agreed to implement all policies, systems, procedures and rules currently in place, to provide quarterly status reports, provide the government access to the facilities, records, patients, and employees of MMHI, and to confer in good faith on the provisions of the consent decree.  Further, the consent decree contained provisions detailing staffing requirements, patient treatment and discharge plans, and non-psychiatric medical care.

On March 27, 1996, the District Court (Judge Julia S. Gibbons) approved the consent decree, and retained jurisdiction of the action until the consent decree was terminated with respect to all requirements.  And, on May 21, 1997, the Court entered judgment in accordance with the consent decree and terminated the case, retaining jurisdiction for necessary enforcement of the decree.  And, on September 18, 1998, the District Court (Judge Gibbons) granted the parties' joint motion for a stipulation and order, effectuating the consent decree.

On June 21, 2005, the District Court (Judge Bernice B. Donald) granted the parties' joint motion for an order partially terminating the consent decree and approved the parties' stipulation for supplemental relief.

We have no more information on this file.