Settlement Agreement

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA CHARLOTTESVILLE DIVISION CYNTHIA B. SCOTT, et al., Plaintiffs, v. HAROLD W. CLARKE, et al., Defendants. ) ) ) ) ) ) ) ) ) ) Case No. 3:12-cv-00036-NKM Sr. Judge Norman K. Moon MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ CONSENT MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT Mary C. Bauer, VSB No. 31388 Abigail Turner, VSB No. 74437 Brenda E. Castañeda, VSB No. 72809 Angela A. Ciolfi, VSB No. 65337 Erin M. Trodden, VSB No. 71515 Ivy A. Finkenstadt, VSB No. 84743 LEGAL AID JUSTICE CENTER 1000 Preston Avenue, Suite A Charlottesville, VA 22903 (434) 977-0553 Theodore A. Howard (admitted pro hac vice) WILEY REIN LLP 1776 K Street, NW Washington, DC 20006 (202) 719-7000 Deborah M. Golden (admitted pro hac vice) Elliot Mincberg D.C. PRISONERS’ PROJECT OF THE WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, N.W. Suite 400 Washington, D.C. 20036 (202) 319-1000 Attorneys for Plaintiffs Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 1 of 21 Pageid#: 4064 TABLE OF CONTENTS Page(s) INTRODUCTION ...........................................................................................................................1 I. II. DESCRIPTION OF THE LITIGATION AND THE PROPOSED SETTLEMENT ..........2 A. THE CLAIMS AND DEFENSES AT ISSUE .........................................................2 B. THE PROPOSED SETTLEMENT .........................................................................3 Changes to VDOC Operating Procedures for FCCW..................................4 2. Additional Guidelines and Standards...........................................................4 3. Establishment of Additional Relevant Policies............................................5 4. Performance Monitoring Tools ....................................................................5 5. Monitoring ...................................................................................................6 6. Attorneys’ Fees ............................................................................................7 THE COURT SHOULD GRANT PRELIMINARY APPROVAL OF THE TERMS OF SETTLEMENT ..............................................................................................................7 A. III. 1. FAIRNESS: THE PROPOSED SETTLEMENT WAS THE RESULT OF EXTENSIVE “ARMS’ LENGTH” NEGOTIATIONS. ..........................................8 1. Posture At Time Of Settlement ....................................................................8 2. Extent Of Discovery ....................................................................................8 3. Circumstances Surrounding Negotiations....................................................9 4. Opinion Of Counsel .....................................................................................9 B. THE CLASS SETTLEMENT TERMS IN RELATION TO THE STRENGTH OF PLAINTIFFS’ CLAIMS DEMONSTRATE THAT THIS SETTLEMENT IS FAIR, ADEQUATE, AND REASONABLE. ..............10 C. THE CLASS NOTICE IS REASONABLE IN FORM AND CONTENT ............12 PRISON LITIGATION REFORM ACT FINDINGS BY THE COURT .........................14 CONCLUSION ..............................................................................................................................15 i Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 2 of 21 Pageid#: 4065 TABLE OF AUTHORITIES Page(s) Cases Ass'n for Disabled Ams., Inc. v. Amoco Oil Co., 211 F.R.D. 457 (S.D. Fla. 2002) ..............................................................................................12 Beaulieu v. EQ Indus. Services, Inc., Case No. 5:06-cv-00400-BR, 2009 WL 2208131 (E.D.N.C. Oct. 9, 2009) ..............................7 Berry v. LexisNexis Risk & Information Analytics Group, Inc., Case No. 3:11-cv-0754, 2014 WL 4403524 (E.D.Va., 2014) .........................................1, 7, 11 Carson v. Am. Brands, Inc., 450 U.S. 79 (1981) ................................................................................................................. 7-8 City Partnership Co. v. Atlantic Acquisition L.P., 100 F.3d 1041 (1st Cir. 1996) ................................................................................................2, 8 Clark v. Experian Information Solutions, Inc., Case No. 6:03-mc-00120, 2004 WL 256433 (D.S.C. Jan. 14, 2004) ......................................11 Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977) ...................................................................................................9 Domonoske v. Bank of America, 790 F.Supp.2d 466 (W.D. Va. 2011) .....................................................................................1, 2 Ellis v. Naval Air Rework Facility, 87 F.R.D. 15 (N.D. Cal. 1980), aff'd, 661 F.2d 939 (9th Cir. 1981)..........................................9 In re Fasteners Antitrust Litigation, MDL Dkt. No. 1912, 2014 WL 285076 (E.D. Pa., Jan. 24, 2014) ............................................2 In re Jiffy Lube Sec. Litig., 927 F.2d 155 (4th Cir. 1991) ...........................................................................................7, 8, 11 Levell v. Monsanto Research Corp., 191 F.R.D. 543 (S.D. Ohio 2000) ..........................................................................................1, 2 Luevano v. Campbell, 93 F.R.D. 68 (D.D.C., 1981) ......................................................................................................1 In re MicroStrategy Inc. Sec. Litig., 148 F. Supp.2d 654 (E.D. Va. 2001) .........................................................................................9 iii Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 3 of 21 Pageid#: 4066 In re Mid-Atlantic Toyota Antitrust Litig., 564 F. Supp. 1379 (D. Md. 1983) ..............................................................................................7 In re Prudential Ins. Co. of Am. Sales Practices Litig., 962 F. Supp. 450 (D.N.J. 1997) ...............................................................................................13 Rolland v. Cellucci, 191 F.R.D. 3 (D. Mass 2000) .....................................................................................................8 Scardelletti v. Debarr, 43 Fed.App’x 525 (4th Cir. 2001) ...................................................................................2, 7, 10 Statutes 18 U.S.C. § 3626(a) .......................................................................................................................14 28 U.S.C. § 1715 ............................................................................................................................14 28 U.S.C. § 1715(a)(2) ...................................................................................................................14 28 U.S.C. § 1715(b) .......................................................................................................................14 28 U.S.C.§ 1715(b)(7)(a) ...............................................................................................................14 42 U.S.C. § 1988 ..............................................................................................................................7 Rules and Regulations Fed. R. Civ. P. 23(c)(2) ..................................................................................................................13 Fed. R. Civ. P. 23(e) ..................................................................................................................1, 12 Fed. R. Civ. P. 23(e)(2) ................................................................................................................1, 7 Other Authorities Annotated Manual for Complex Litigation (Fourth), § 21.632 (2015)......................................7, 13 7B Charles A. Wright, et al., Federal Practice and Procedure § 1793 (3d ed. 2006) ..................12 iv Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 4 of 21 Pageid#: 4067 MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT INTRODUCTION Plaintiffs Cynthia B. Scott, Belinda Gray, Toni Hartlove, Karen Powell and Lucretia Robinson, for themselves individually and as representatives of a class of additional unnamed plaintiffs similarly situated (“the Plaintiffs”), ask this Court to grant preliminary approval of a proposed settlement in this action because the settlement terms are fair, reasonable, and adequate. See Fed. R. Civ. P. 23(e)(2). Plaintiffs and Defendants Harold W. Clarke, A. David Robinson, Frederick Schilling and Tammy Brown, each in their official capacities as representatives of the Virginia Department of Corrections (“the VDOC Defendants”), have reached a Settlement Agreement which the parties believe fairly and adequately resolves Plaintiffs’ claims. A certified class action cannot be compromised or settled without the approval of the Court. Fed. R. Civ. P. 23(e). The Court must follow a three-step process prior to granting final approval of a proposed settlement. Domonoske v. Bank of America, 790 F.Supp.2d 466, 472 (W.D. Va. 2011); see also Levell v. Monsanto Research Corp., 191 F.R.D. 543, 547 (S.D. Ohio 2000). First, the Court must preliminarily approve the proposed settlement. Domonoske, 790 F. Supp.2d at 472; Levell, 191 F.R.D. at 547. In a Rule 23(b)(2) class action, notice to the class members before settlement is optional. Rule 23(c)(2)(A); see also Luevano v. Campbell, 93 F.R.D. 68, 85 (D.D.C., 1981); Berry v. LexisNexis Risk & Information Analytics Group, Inc., Case No. 3:11-cv-0754, 2014 WL 4403524, at *1 (E.D.Va., 2014). Nonetheless, in this case both parties agree that each class member should receive notice of the settlement, in addition to notice being posted in common areas at FCCW. Third, the Court must hold a hearing, after which the Court decides whether the proposed settlement is fair, adequate, and reasonable to the Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 5 of 21 Pageid#: 4068 class as a whole, and consistent with the public interest. Domonoske, 490 F.Supp.2d. at 472; Levell, 191 F.R.D. at 547. These three steps protect the class members' procedural due process rights and enable the Court to fulfill its role as the guardian for the class’s interests. For the third step, the decision to approve or reject a proposed settlement is committed to the Court's sound discretion. City Partnership Co. v. Atlantic Acquisition L.P., 100 F.3d 1041, 1043-44 (1st Cir. 1996); see also Scardelletti v. Debarr, 43 Fed.App’x 525, 547 (4th Cir. 2001); In re Fasteners Antitrust Litigation, MDL Dkt. No. 1912, 2014 WL 285076, at *3 (E.D. Pa., Jan. 24, 2014). As more fully set forth below, the relevant facts and circumstances amply demonstrate that the settlement is fair, reasonable and adequate. Therefore, Plaintiffs request that the Court grant preliminary approval to the terms of the settlement and order Notice of the terms of the proposed Settlement to be provided to all class members pursuant to Rule 23(e)(1). I. DESCRIPTION OF THE LITIGATION AND THE PROPOSED SETTLEMENT A. THE CLAIMS AND DEFENSES AT ISSUE The Plaintiffs, prisoners residing at the Fluvanna Correctional Center for Women (FCCW), a facility of the VDOC, initiated this class-action lawsuit on July 24, 2012, pursuant to the Eighth Amendment to the Constitution of the United States and 42 U.S.C. § 1983, seeking declaratory and injunctive relief with respect to alleged constitutionally-deficient medical care afforded to themselves and all other women residing at FCCW, which the Plaintiffs contend reflects deliberate indifference on the part of the VDOC Defendants to the Plaintiffs’ serious medical needs. By Memorandum Opinion and Order dated November 20, 2014, the Court granted the Plaintiffs’ Motion for Class Certification and certified a class consisting of “all women who currently reside or will in the future reside at FCCW and have sought, are currently seeking or 2 Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 6 of 21 Pageid#: 4069 will seek adequate, appropriate medical care for serious medical needs, as contemplated by the Eighth Amendment to the U.S. Constitution,” pursuant to Fed. R. Civ. P. 23(b)(2). (ECF Dkt. No. 188). Thereafter, the Court entered an Order granting Partial Summary Judgment in favor of the Plaintiffs and denying the VDOC Defendants’ Motion for Summary Judgment in its entirety on November 25, 2014, holding, inter alia, that: 1. the Plaintiffs established, as a matter of law, that they fully and properly exhausted all pre-litigation administrative remedies available to them, as required by applicable provisions of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e (see Memorandum Opinion dated November 25, 2014, at 23-33 & nn.8-10 (ECF Dkt. No. 201)); 2. the Plaintiffs established, as a matter of law, that individually and as a class, they suffer from “serious medical needs” as a predicate to a viable cause of action for “deliberate indifference” under the Eighth Amendment (id. at 13-18 & n.7); 3. the Plaintiffs established, as a matter of law, that the VDOC Defendants have a non-delegable duty under the Eighth Amendment to provide constitutionally-adequate medical care to all prisoners within their custody, including the Plaintiffs (id. at 8-13); and that 4. the VDOC Defendants failed, as a matter of law, to demonstrate on the basis of material facts as to which there is no genuine issue in dispute, that they could not be found liable for providing insufficient medical care, or failing to provide medical care under circumstances in which such care was due, reflecting “deliberate indifference” to the Plaintiffs’ and the class members’ serious medical needs in violation of the Eighth Amendment (id. at 33-46). The VDOC Defendants have denied liability for the Eighth Amendment violations alleged by the Plaintiffs in their original and amended Complaints. B. THE PROPOSED SETTLEMENT The parties negotiated the proposed settlement, first agreeing on an Memorandum of Understanding (MOU) in November 2014 regarding the content of the Settlement and the process by which a final agreement would be reached. The parties notified the Court that they had reached an agreement in principle on the eve of trial, November 25, 2014. (ECF Dkt. No. 3 Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 7 of 21 Pageid#: 4070 204). Since that time, the parties have engaged in extensive communications by phone, email, and three in-person meetings involving counsel, VDOC officials, medical experts, and the proposed Settlement Compliance Monitor, Dr. Nicholas Scharff, in order to finalize the Settlement Agreement terms as well as changes to the VDOC Operating Procedures in effect and governing the provision of medical care at FCCW, as contemplated in the parties’ MOU. The proposed settlement provides the following essential terms: 1. Changes to VDOC Operating Procedures for FCCW Plaintiffs and Defendants, through medical experts of their choosing, reviewed the existing VDOC Operating Procedures and proposed revisions to those procedures to enhance the prospects for constitutionally-adequate medical care at FCCW. Where disagreements could not be resolved by the medical experts, the designated Compliance Monitor, Dr. Scharff, weighed in with suggestions to resolve the matter, and the parties have now agreed on a set of revisions to procedures that have been adopted and will be implemented at FCCW. These changes are identified and summarized in an attachment to the proposed Settlement Agreement. (Appendix A). 2. Additional Guidelines and Standards In addition to the changes to specific Operating Procedures, the parties have negotiated and agreed upon a set of additional broader medical guidelines and standards addressing issues and problem areas that the Plaintiffs alleged in their Complaint and developed with the evidence supporting their Memorandum in Support of the Motion for Class Certification (ECF Dkt. No. 132) and their Memorandum in Support of their Motion for Partial Summary Judgment (ECF Dkt. No. 138). These subjects include, inter alia, standards for improving staffing levels, the medical intake process, comprehensive health assessments, the sick call process, the co-pay 4 Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 8 of 21 Pageid#: 4071 policy, diagnosis and treatment, response to emergencies, infirmary conditions, chronic care, infectious disease control, utilization management, continuity of medications and treatment supplies, physical therapy, medical grievances, access to information regarding care, accommodations for prisoners with special needs, staff training, care and release of terminally-ill prisoners, conduct of mortality reviews, and criteria for measuring performance and quality improvement and contractor monitoring. These guidelines and standards are described more fully in Section III.b. of the Settlement Agreement, attached hereto as Exhibit 1, at pages 6 to 15. 3. Establishment of Additional Relevant Policies In addition to the changes to Operating Procedures, VDOC’s Medical and Nursing Guidelines and the agreed standards, the parties have agreed to create an additional Operating Procedure regarding reasonable accommodations for physical disabilities of incarcerated individuals consistent with the mandate of the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 et seq., and its implementing regulations and standards. Lastly, the parties have agreed that they will develop an operating procedure establishing concrete and definitive practices and procedures to govern VDOC’s self-evaluation with respect to the quality and quantity of the medical care it provides to prisoners on an ongoing basis in accordance with widely-recognized Continuous Quality Improvement (“CQI”) concepts. This procedure will be developed with consultation of the parties’ respective medical experts and the Compliance Monitor within 120 days of the effective date of the Settlement Agreement. See Section III.c. of the Settlement Agreement at pg. 15 (Exh. 1 hereto). 4. Performance Monitoring Tools The parties agree that the Compliance Monitor shall develop a set of Performance Measuring Tools which focus on each of the subjects identified on the list attached as 5 Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 9 of 21 Pageid#: 4072 Appendix B to the Settlement Agreement, which he will then apply as the foundation of for his evaluation of VDOC’s ongoing obligation to provide constitutionally adequate medical care at FCCW. Dr. Scharff, the parties’ agreed Compliance Monitor, will work to develop these standards and is prepared to testify at the fairness hearing regarding the process for developing such standards, their content, and their application. 5. Monitoring The parties jointly selected Dr. Nicholas Scharff, M.D., MPH, the former Chief Medical Officer of the Commonwealth of Pennsylvania Department of Corrections, to serve as the Settlement Compliance Monitor. The parties believe that Dr. Scharff is appropriate and qualified for this role. Dr. Scharff’s curriculum vitae is attached as Appendix C to the Settlement Agreement, and he is prepared to testify at the fairness hearing with regard to his qualifications to serve as Compliance Monitor. Pursuant to the Settlement Agreement, the Compliance Monitor shall visit FCCW a number of times each year, and shall have access to speak confidentially with personnel, prisoners, and review facilities, medical files, and grievances as he deems necessary. The visits shall occur over the period of a minimum of three years. The Compliance Monitor will prepare a report following each visit detailing his findings, and identifying any areas in which he finds that VDOC is not in compliance with the Settlement Agreement. VDOC will have 30 days to correct any areas of noncompliance of which it is notified, after which, if the problems persist, Plaintiffs will have the option of bringing an action in this Court to enforce the Settlement Agreement, seek contempt sanctions, or both. 6 Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 10 of 21 Pageid#: 4073 6. Attorneys’ Fees Plaintiffs’ counsel have spent a substantial amount of time preparing and litigating this case, and have fronted significant litigation costs for depositions, discovery, and the services of Plaintiffs’ medical expert. The parties have agreed that the Plaintiffs will be compensated for their reasonable attorneys’ fees and litigation costs. In the event that the parties cannot come to an agreement on the amount of fees and costs, Plaintiffs may submit a petition to the Court for the determination and awarding of fees and costs as prevailing parties under 42 U.S.C. § 1988. II. THE COURT SHOULD PRELIMINARILY APPROVE THE TERMS OF THE SETTLEMENT The principal underlying concern for the Court in reviewing a proposed class settlement is the protection of class members whose rights may not have received sufficient consideration in settlement negotiations. In re Jiffy Lube Sec. Litig., 927 F.2d 155, 158 (4th Cir. 1991). In determining whether to grant preliminary approval to the Class Settlement, this Court must make a preliminary determination as to the fairness, reasonableness, and adequacy of the settlement terms. Fed. R. Civ. P. 23(e)(2); see Annotated Manual for Complex Litigation (Fourth), § 21.632 (2015). The Fourth Circuit has bifurcated the analysis into consideration of the fairness of the settlement negotiations of the settlement and the adequacy of the consideration to the class. Jiffy Lube, 927 F.2d at 158-59; Scardelletti, 423 Fed. App’x at 528; Berry, 2014 WL 4403524, at *14; see also Beaulieu v. EQ Indus. Services, Inc., Case No. 5:06-cv-00400-BR, 2009 WL 2208131 (E.D.N.C. Oct. 9, 2009); In re Mid-Atlantic Toyota Antitrust Litig., 564 F. Supp. 1379, 1383-84 (D. Md. 1983). While the Court must assess the strength of plaintiffs' claims, it should "not decide the merits of the case or resolve unsettled legal questions." Carson v. Am. Brands, 7 Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 11 of 21 Pageid#: 4074 Inc., 450 U.S. 79, 88 n.14 (1981). Moreover, where a settlement is the result of genuine arms’length negotiations, it is presumed to be fair. City P 'ship Co. v. Atlantic Acquisition Ltd P 'Ship, 100 F.3d 1041, 1043 (1st Cir. 1996); Rolland v. Cellucci, 191 F.R.D. 3, 6 (D. Mass 2000). A. FAIRNESS: THE PROPOSED SETTLEMENT WAS THE RESULT OF EXTENSIVE "ARMS’ LENGTH" NEGOTIATIONS Factors relating to the fairness of a proposed settlement are: (1) the posture of the case at the time the proposed settlement was reached, (2) the extent of discovery that had been conducted, (3) the circumstances surrounding the settlement negotiations, and (4) counsel's experience in the type of case at issue. Jiffy Lube, 927 F.2d at 158-59. 1. Posture At Time Of Settlement At the time of settlement, the Court had heard and granted the Plaintiffs’ Motions for Class Certification and Partial Summary Judgment (ECF Dkt. Nos. 189 and 202), and heard and denied the VDOC Defendants’ Motion for Summary Judgment (ECF Dkt. No. 202). The parties had prepared for multi-week trial that was set to begin the first week of December 2014. The parties had conducted sufficient discovery and engaged in extensive motions practice over the two and a half years the case had been pending, and were well aware of the strengths and weaknesses of their respective legal and factual positions in the litigation. 2. Extent Of Discovery The parties in this case exchanged tens of thousands of pages of documents pursuant to discovery requests in this case. Furthermore, the parties conducted 27 depositions, including depositions of the four original Named Plaintiffs, experts for each side, doctors, and other VDOC and contractor witnesses in this case. The discovery period had closed and all requested documents and depositions had been taken and exchanged by the parties. 8 Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 12 of 21 Pageid#: 4075 3. Circumstances Surrounding Negotiations As mentioned in section I(B), supra, the parties agreed in November 2014, following a meeting between counsel for both parties and VDOC representatives, to an MOU setting forth the scope of the final Settlement Agreement and a process by which that agreement would be reached. Over the past nine months, the parties have engaged in extensive discussions by telephone conference, email, and three lengthy in-person meetings with the counsel for each side and representatives of VDOC. One of the in-person conferences also included medical experts for each side and the designated Compliance Monitor, Dr. Scharff. Plaintiffs’ counsel have repeatedly met with and consulted with the Named Plaintiffs and recently-added Class Representatives to advise them regarding the proposed settlement terms. The Agreement has been reached by thorough and detailed consideration of the terms by both sides, agreed to in protracted and sometimes contentious negotiations. The Settlement is arms’-length and has been carefully evaluated by all parties. These facts militate in favor of finding the circumstances of the Settlement are fair. 4. Opinion Of Counsel Counsel for Plaintiffs and Defendants endorse the settlement as fair and adequate under the circumstances. Courts recognize that the opinion of experienced and informed counsel in favor of settlement should be afforded substantial consideration. See Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977); In re MicroStrategy Inc. Sec. Litig., 148 F. Supp.2d 654, 665 (E.D. Va. 2001); Ellis v. Naval Air Rework Facility, 87 F.R.D. 15, 18 (N.D. Cal. 1980), aff'd, 661 F.2d 939 (9th Cir. 1981). After initial discovery, contested motions practice and vigorous settlement negotiations, counsel for the parties have agreed to the proposed Settlement Agreement as a 9 Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 13 of 21 Pageid#: 4076 just and appropriate resolution of all claims. Class counsel recommend this settlement to the Court based upon their collective experience as federal court litigators and experienced class counsel. The Settlement Agreement is the product of extensive arms’-length negotiations by experienced counsel, which were undertaken in good faith after factual investigation, discovery, and legal analysis. Thus, the parties in this litigation and their counsel have the best information available to evaluate the strengths and weaknesses of the parties' respective claims and defenses, and the costs and benefits of continued litigation versus compromise. Armed with this detailed knowledge, the parties entered into earnest settlement negotiations, and after months of continuous interaction, the parties reached an agreement to settle the claims. B. THE CLASS SETTLEMENT TERMS IN RELATION TO THE STRENGTH OF PLAINTIFFS' CLAIMS DEMONSTRATE THAT THIS SETTLEMENT IS FAIR, ADEQUATE, AND REASONABLE In evaluating the proposed Class Settlement, the Court should also consider the strength of Plaintiffs' case on the merits. See Scardelletti, 43 Fed. App’x at 528. In this process, however, a court must "avoid deciding or trying to decide the likely outcome of a trial on the merits." In re Nat 'l Student Marketing Litig., 68 F.R.D. 151, 155 (D.D.C. 1974). Prior to settlement, the Plaintiffs had defeated Defendants’ Motion to Dismiss, and won both their Motion for Class Certification and their Motion for Partial Summary Judgment. The Court, by contrast, ruled against Defendants’ Motion for Summary Judgment. This suggests that the Plaintiffs had presented a viable case capable of prevailing on the merits, though a trial on the merits had not commenced at the time of settlement. In light of the fact that the class members will receive the benefit of enhanced medical care in accordance with revised Operating Procedures and additional agreed upon medical guidelines and standards for the provision of medical care, as well as newly-developed Operating Procedures governing the treatment for 10 Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 14 of 21 Pageid#: 4077 prisoners with disabilities and the VDOC’s continuous quality improvement, as well as three years of monitoring by a medical doctor experienced in correctional health, the settlement is reasonable and is set up to adequately monitor and ensure VDOC’s compliance with Eighth Amendment standards in providing medical care at FCCW. In analysis of the adequacy of the settlement terms, relevant factors to be considered may include: (1) the relative strength of the plaintiffs' case on the merits, (2) any difficulties of proof or strong defenses the plaintiffs would likely encounter if the case were to go to trial, (3) the expected duration and expense of additional litigation, and (4) the degree of opposition to the proposed settlement. See Berry, 2014 WL 4403524, at *14; see also In re Jiffy Lube, 927 F.2d at 159; Clark v. Experian Information Solutions, Inc., Case No. 6:03-mc-00120, 2004 WL 256433 (D.S.C. Jan. 14, 2004). The parties reached an agreement in principle to settle this case six days before trial was set to begin, after the Court had ruled on the Motion for Class Certification and also cross motions for Summary Judgment and Partial Summary Judgment. All parties were as informed as they could be about the strength and weaknesses of their respective cases. Plaintiffs believe that the Settlement Agreement affords them substantially the same relief that they would have achieved if they had prevailed at trial, given the restrictions of the Prison Litigation Reform Act 18 U.S.C. § 3626, on the length and scope of any injunctive relief available to Plaintiffs. Furthermore, it is Plaintiffs’ determination that this Agreement would bring relief in a more expedited manner than going to trial. Even had Plaintiffs prevailed at trial, the Court would still have needed to make findings and the parties would likely have had to give input into a final order. Furthermore, any final order could then have been appealed by the VDOC Defendants to the Fourth Circuit, lengthening substantially the time before Plaintiffs would have seen any final 11 Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 15 of 21 Pageid#: 4078 order for changes to the medical system and monitoring of those changes go into effect. Given both the inherent uncertainty of an outcome at trial and the likelihood of a protracted process to reach a final order even had Plaintiffs prevailed, entering into this Settlement Agreement is a prudent and reasonable result for Plaintiffs and class members. If the Court grants preliminary approval, class members will receive notice explaining the terms of the proposed Settlement Agreement and their right to object. While the degree of opposition to the proposed Settlement Agreement cannot be known with any certainty, the lack of any other competing classes supports the strength of the settlement and the likelihood that it will stand. For these reasons, the opinion of all counsel involved is that the terms of the Settlement Agreement represent a fair, reasonable, and adequate resolution of the claims alleged. C. THE CLASS NOTICE IS REASONABLE IN FORM AND CONTENT Reasonable notice may be provided to class members to allow them an opportunity to object to the proposed Settlement in a Rule 23(b)(2) class action. See Ass'n for Disabled Ams., Inc. v. Amoco Oil Co., 211 F.R.D. 457, 466 (S.D. Fla. 2002) (“Notice (and exclusion opportunity) is not required in Rule 23(b)(2) actions.”); 7B Charles Alan Wright et al., Federal Practice and Procedure § 1793 (3d ed. 2006) (stating that while Rule 23(b)(3) classes require mandatory notice, notice is not as important for Rule 23(b)(2) classes “because the class typically will be more cohesive”). The parties in this case have agreed that notice will be provided to class members. The VDOC will provide a copy of the written notice attached hereto to each woman incarcerated at FCCW within seven days of the Court’s preliminary approval of the Proposed Agreement and Notice to the Class. Rule 23(e) requires notice of a proposed settlement "in such manner as the court directs." In a settlement class maintained under Rule 12 Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 16 of 21 Pageid#: 4079 23(b)(2), class notice should meet the requirements of both Federal Rules of Civil Procedure 23(c)(2) and 23(e). Rule 23(c)(2)(A) provides that in a 23(b)(2) class action, “the court may direct appropriate notice to the class.” In addition, the Manual for Complex Litigation sets forth several elements that a notice of settlement should include. See Annotated Manual for Complex Litigation (Fourth), § 21.312 (2015). A notice should, inter alia, describe the options open to class members and the deadlines for taking action; the essential terms of the settlement; the attorneys’ fees; the time and place of the hearing to approve settlement; and the method for objecting to the settlement. In this case, the proposed Notice (Exhibit 2) meets the requirements of Rule 23(c)(2) and 23(e), because it includes notice of the general terms of the settlement, notice of the right to object and the manner in which objections should be filed, notice of the date, time and place of the Fairness Hearing (once scheduled), and notice regarding how to contact class counsel for additional information regarding the settlement. See also In re Prudential Ins. Co. of Am. Sales Practices Litig., 962 F. Supp. 450, 496 (D.N.J. 1997). Because each member of the class can be identified, actual notice will be provided to each prisoner currently incarcerated at FCCW, as well as posted at FCCW in common areas accessible to prisoners. No issue arises in this case of locating missing class members, as all prisoners currently incarcerated at FCCW are easily identified. The proposed Notice and counsel’s proposed methods of distribution at the Prison and posting in common areas constitute adequate notice to the class members, reasonably calculated to provide the class members with actual notice of their rights. In addition, class counsel will meet with women at FCCW who have questions about the Settlement; such meetings will be in 13 Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 17 of 21 Pageid#: 4080 groups if ten women or more request a meeting. As such, the Court should approve the proposed notice methodology. Under the Class Action Fairness Act (CAFA), 28 U.S.C. § 1715, notice of the Settlement should also be given to the appropriate Federal and State Officials. Notice to a State Official under this section is not necessary in this case, because under 28 U.S.C. § 1715(a)(2), the appropriate State Officials in this case are the DOC or the Attorney General’s office, which are respectively defendants and counsel in this case, and are already well aware of the settlement terms. Under 28 U.S.C.§ 1715(b)(7)(a), no notice to State officials in other states is necessary, since by definition of the class as all women incarcerated at FCCW, there are no class members in other states. Notice will be provided to the U.S. Attorney General by defendants pursuant to 28 U.S.C. § 1715(b), within ten days of the filing of this proposed Settlement. III. PRISON LITIGATION REFORM ACT FINDINGS BY THE COURT The parties request that the Court, upon independent review and consideration, find that this Settlement Agreement complies with the Prison Litigation Reform Act. The Parties agree that the prospective relief established by this Settlement Agreement is narrowly drawn, extends no further than is necessary to address and remedy the violations of federal rights alleged by the Plaintiffs in their pleadings in this action, is the least intrusive means necessary to correct these alleged violations, and will not have any adverse impact on public safety or the operation of the criminal justice system. Accordingly, the parties agree and they jointly request that the Court find that this Settlement Agreement complies in all respects with the provisions and requirements of 18 U.S.C. § 3626(a). 14 Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 18 of 21 Pageid#: 4081 CONCLUSION For all of the foregoing reasons, the Plaintiffs request this Court to preliminarily approve the terms of the Settlement Agreement, find that it complies with the PLRA, and order the proposed Notice to be provided to class members forthwith, and schedule this matter for a Fairness Hearing on the earliest practicable date mutually convenient to this Court and the parties. DATED: September 15, 2015 Respectfully submitted, Mary C. Bauer, VSB No. 31388 ([email protected]) Abigail Turner, VSB No. 74437 ([email protected]) Brenda E. Castañeda, VSB No. 72809 ([email protected]) Angela Ciofi, VSB No. 65337 ([email protected]) Erin M. Trodden, VSB No. 71515 ([email protected]) Ivy A. Finkenstadt, VSB No. 84743 ([email protected]) LEGAL AID JUSTICE CENTER 1000 Preston Avenue, Suite A Charlottesville, VA 22903 (434) 977-0553 and Deborah M. Golden (admitted pro hac vice) ([email protected]) Elliot Mincberg D.C. PRISONERS’ PROJECT OF THE WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, N.W. Suite 400 Washington, D.C. 20036 (202) 319-1000 15 Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 19 of 21 Pageid#: 4082 and Theodore A. Howard (admitted pro hac vice) ([email protected]) WILEY REIN LLP 1776 K Street, N.W. Washington, D.C. 20006 (202) 719-7000 By: /s/ Brenda E. Castañeda Attorneys for Plaintiffs 16 Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 20 of 21 Pageid#: 4083 CERTIFICATE OF SERVICE I hereby certify that on this 15th day of September, 2015, a true and correct copy of Plaintiffs’ Memorandum in Support of Their Consent Motion for Preliminary Approval of Settlement was served electronically upon the following: Richard C. Vorhis, Esq. J. Michael Parsons, Esq. OFFICE OF THE ATTORNEY GENERAL Public Safety and Enforcement Division 900 East Main Street Richmond, VA 23219 ([email protected]) Attorneys for the Virginia Department of Corrections Defendants /s/Brenda E. Castañeda Brenda E. Castañeda 17 Case 3:12-cv-00036-NKM Document 221 Filed 09/15/15 Page 21 of 21 Pageid#: 4084 EXHIBIT 1 Case Document 221-1 Filed 09/15/15 Page 1 of 57 Pageid#: 4085 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA CHARLOTTESVILLE DIVISION CYNTHIA B. SCOTT, et al., ) ) ) ) ) ) ) ) ) ) Plaintiffs, v. HAROLD W. CLARKE, et al., Defendants. Case No. 3:12-cv-00036-NKM Sr. Judge Norman K. Moon SETTLEMENT AGREEMENT Plaintiffs Cynthia B. Scott, Belinda Gray, Toni Hartlove, Karen Powell and Lucretia Robinson,1 for themselves individually and as representatives of a class of additional unnamed plaintiffs similarly situated (“the Plaintiffs”), and defendants Harold W. Clarke, A. David Robinson, Frederick Schilling and Tammy Brown, each in their official capacities as representatives of the Virginia Department of Corrections (“the VDOC Defendants”), for their Settlement Agreement in resolution of the above-captioned lawsuit, hereby jointly state as follows: I. 1. INTRODUCTION The Plaintiffs initiated this class-action lawsuit on July 24, 2012, pursuant to the Eighth Amendment to the Constitution of the United States and 42 U.S.C. § 1983, seeking declaratory and injunctive relief with respect to alleged constitutionally-deficient medical care 1 Original Named-Plaintiff Bobinette D. Fearce requested voluntary dismissal from this case, without opposition by the Defendants, by Motion filed March 28, 2015. See ECF Docket No. 207. The Motion was granted by Order dated March 31, 3015. (ECF Dkt. No. 208). Original Named-Plaintiff Marguerite Richardson requested voluntary dismissal from this case, without opposition by the Defendants, by Motion filed June 17, 2015. (ECF Dkt. No. 210). The Motion was granted by Order on June 22, 2015. (ECF Dkt. No. 214). On July 24, 2015, the Plaintiffs filed a Consent Motion for Substitution of New Class Representatives and supporting Memorandum, requesting that four class members be substituted as new class representatives in place of original Named-Plaintiffs Ms. Fearce, Ms. Richardson and Ms. Rebecca Scott, who would soon be released from FCCW. See ECF Dkt. Nos. 215, 216. The Substitution Motion was granted by oral Order entered July 29, 2015 (ECF Dkt. No. 217), designating Belinda Gray, Toni Hartlove, Karen Powell and Lucretia Robinson as new class representatives. Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 2 of 57 Pageid#: 4086 afforded to themselves and all other women residing at the Fluvanna Correctional Center for Women (“FCCW”), which the Plaintiffs contend reflects deliberate indifference on the part of the VDOC Defendants to the Plaintiffs’ serious medical needs. 2. By Memorandum Opinion and Order dated November 20, 2014, the Court granted the Plaintiffs’ Motion for Class Certification and certified the class described by the Plaintiffs’ Motion pursuant to Fed. R. Civ. P. 23(b)(2). (ECF Dkt. No. 188). Thereafter, the Court entered an Order of Partial Summary Judgment in favor of the Plaintiffs on November 25, 2014, holding, inter alia, that: a. the Plaintiffs established, as a matter of law, that they fully and properly exhausted all pre-litigation administrative remedies available to them, as required by applicable provisions of the Prison Litigation Reform Act, 42 U.S.C. § 1997e (see Memorandum Opinion dated November 25, 2014, at 23-33 & nn.8-10 (ECF Dkt. No. 201)); b. the Plaintiffs established, as a matter of law, that individually and as a class, they suffer from “serious medical needs” as a predicate to a viable cause of action for “deliberate indifference” under the Eighth Amendment (id. at 13-18 & n.7); c. the Plaintiffs established, as a matter of law, that the VDOC Defendants have a non-delegable duty under the Eighth Amendment to provide constitutionallyadequate medical care to all prisoners within their custody, including the Plaintiffs (id. at 8-13); and that d. the VDOC Defendants failed, as a matter of law, to demonstrate on the basis of material facts as to which there is no genuine issue in dispute, that they could not be found liable for providing insufficient medical care, or failing to provide medical care under circumstances in which such care was due, reflecting “deliberate indifference” to the Plaintiffs’ and the class members’ serious medical needs in violation of the Eighth Amendment (id. at 33-46). 3. The parties have engaged in extensive discovery and have vigorously litigated this matter in accordance with their respective claims and defenses with regard to the issues presented by the Plaintiffs’ original and amended Complaints. 2 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 3 of 57 Pageid#: 4087 4. The VDOC has denied liability for the Eighth Amendment violations alleged by the Plaintiffs in their original and amended Complaints filed in this action. 5. The parties, upon due consideration, determined that it was in their respective, as well as their mutual, best interests to resolve their differences and to conserve the time, effort expense and resources of the parties and the Court that would be consumed by continuing to litigate this matter. 6. Accordingly, the parties, by and through their respective counsel of record, entered into a Memorandum of Understanding (“MOU”), effective as of November 25, 2014, setting forth mutually agreed-upon terms and conditions for the settlement of this action upon the completion of the parties’ collaborative effort to identify, adopt and implement operative standards for the provision of constitutionally-adequate medical care at FCCW going forward, subject to the oversight of a party-designated Compliance Monitor and this Court’s continuing supervisory jurisdiction. 7. The duties and responsibilities imposed upon the parties by Sections 1 and 2 of the MOU having now been substantially performed to the parties’ mutual satisfaction, they now present their Settlement Agreement, as set forth below, for the Court’s review and approval pursuant to Fed. R. Civ. P. 23(e). This Settlement Agreement applies to FCCW. II. 1. DEFINITIONS “Settlement Agreement” shall mean this document and all of the terms and conditions set forth herein as submitted to the Court for approval. 2. “Plaintiffs” shall mean the named Plaintiffs and class representatives Cynthia B. Scott, Belinda Gray, Toni Hartlove, Karen Powell and Lucretia Robinson. 3 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 4 of 57 Pageid#: 4088 3. The “Class” shall mean the class certified by the Court pursuant to Fed. R. Civ. P. 23(b)(2) in its Memorandum Opinion and Order entered November 20, 2014, consisting of “all women who currently reside or will in the future reside at FCCW and who have sought, are currently seeking or will seek adequate, appropriate medical care for serious medical needs, as contemplated by the Eighth Amendment to the Constitution[.]” 4. “FCCW” shall mean the Fluvanna Correctional Center for Women, located in Troy, VA. 5. “Defendant” for purposes of this Settlement Agreement shall mean the Virginia Department of Corrections, acting by and through its duly-authorized employees performing in their official capacities, including but not limited to the individual named defendants Harold W. Clarke, A. David Robinson, Frederick Schilling and Tammy Brown, and their respective successors, agents and assigns. 6. “Parties” shall mean, collectively, the Plaintiffs and the Defendant as defined hereinabove. 7. “Effective Date” shall mean the date on which the Court enters a Consent Order of Judgment granting final approval to this Settlement Agreement. 8. “Contractor” shall mean Armor Correctional Healthcare, Inc. or any other entity with which the Defendant may choose to enter into a contractual agreement pursuant to which that entity assumes the obligation to provide medical and/or mental health services to prisoners residing at FCCW in exchange for monetary compensation. 9. “Compliance Monitor” shall mean the individual person jointly designated by the Parties or selected by the Court who shall periodically review, evaluate and report to the Parties concerning the Defendant’s performance of its obligation to provide constitutionally- 4 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 5 of 57 Pageid#: 4089 adequate medical care to the members of the Class in accordance with the provisions of this Settlement Agreement, and the requirements of the Eighth Amendment. 10. “Facility” shall mean the Fluvanna Correctional Center for Women. III. 1. SUBSTANTIVE PROVISIONS Statement Of Purpose In order to insure that the quality and quantity of medical care to be provided by the Defendant to prisoners residing at FCCW as of and following the Effective Date of this Settlement Agreement shall meet or exceed constitutional requirements under the Eighth Amendment, the Defendant shall be obligated to achieve and maintain compliance with the Operating Procedures, Guidelines and Standards governing the provision of medical care that are set forth in this Section below or incorporated in this Section by reference. The provisions included in this Section, expressly or as incorporated by reference, are intended to insure that prisoners incarcerated at FCCW receive adequate, appropriate and timely medical care to protect them from substantial existing, ongoing and/or imminent physical injury, illness, chronic pain and undue risk of worsening health or premature death. 2. Governing Practices And Procedures a. VDOC Operating Procedures In accordance with the provisions of Section 2 of the Parties’ MOU, the Plaintiffs and the Defendant each named a correctional medical care expert/consultant of their own choosing to conduct a comprehensive review of all of the VDOC’s existing Operating Procedures (“OPs”) governing or having a bearing on the Defendant’s and its Contractor’s provision of medical care to prisoners incarcerated at FCCW. On the basis of that review, modifications to the language of specific provisions in certain of the OPs were proposed by the Parties’ experts/consultants in order to enhance the likelihood that medical care afforded to prisoners in a manner adhering to 5 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 6 of 57 Pageid#: 4090 these revised OPs will meet constitutional requirements. Following negotiations, the Defendant has accepted, adopted and will implement certain of the recommended modifications to its OPs at FCCW.2 The VDOC OPs applicable at FCCW are incorporated herein by reference, and adherence to the OPs by the Defendant and its Contractor in providing medical care to the Plaintiff Class as of and following the Effective Date shall be evaluated by the Compliance Monitor in assessing the Defendant’s fulfillment of its obligations to provide medical care meeting constitutional requirements under the terms of this Settlement Agreement and the Eighth Amendment. b. Additional Guidelines And Standards In addition to the OPs, including but not limited to those modified pursuant to the Memorandum of Understanding process described above, the Defendant’s obligation to provide constitutionally-adequate medical care at FCCW pursuant to the terms of this Settlement Agreement and the requirements of the Eighth Amendment shall be carried out in accordance with the Guidelines and Standards set forth below. During the time period that this Settlement Agreement is in effect, the Defendant’s performance of these obligations shall be evaluated on an ongoing basis by the Compliance Monitor in accordance with the procedures described in Section IV. of this Agreement below. 2 A list of the OPs that were modified pursuant to the provisions of Section 2 of the Parties’ MOU and a summary of the revisions thereto is attached hereto as Appendix A. In the event the Defendant seeks to affect any further changes to its OPs governing or relating to the provision of medical care at FCCW during the pendency of this Settlement Agreement, it shall provide notice of the proposed changes to the Plaintiffs and the Compliance Monitor at least 20 days before such changes are scheduled to take effect. In the event the Plaintiffs object to the proposed changes on the grounds that the provision of medical care in accordance with the changed OP would result in an Eighth Amendment violation, the Plaintiffs may seek a ruling from the Court precluding adoption of the proposed changes pursuant to the dispute resolution procedures set forth in Section V.2. of this Agreement below. 6 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 7 of 57 Pageid#: 4091 Guidelines for FCCW i. VDOC Clinical Practice, Medical and Nursing Guidelines  The Defendant shall refer to and follow generally accepted national clinical guidelines for chronic disease, as they evolve, including the current guidelines for the treatment of diabetes and hypertension, respectively.  VDOC’s 2015 clinical guideline for Hepatitis B shall include, in Section XII thereof, pregnancy as an indication for treatment, as untreated Hepatitis B infection poses a serious risk of harm to a fetus. Under Section XVI, the discontinuation of treatment for risky rule violations shall be considered by physicians on a case-by-case basis, taking into account the public health risk posed by such discontinuation in any specific case.  VDOC’s updated clinical guideline for Hepatitis C shall be reviewed for further updating on an annual basis. This guideline shall be revised to expressly provide for continuity of treatment for newly-incarcerated prisoners who were receiving treatment in the community. “Control” of comorbid conditions, such as diabetes, shall be defined, and the level of control for diabetes shall be A1c hemoglobin level ≤9.0. Treatment shall be afforded to any prisoner with a remaining sentence of nine months or more at the time the need for treatment is identified, and a prisoner need not have been incarcerated for three years before she is eligible for treatment. Under Section X1.4, .5 and .6, the discontinuation of treatment for risky rule violations shall be considered by physicians on a case-bycase basis, taking into account the public health risk posed by such discontinuation in any specific case.  The Defendant shall refer to the Federal Bureau of Prisons (BOP) clinical guideline and other generally accepted national guidelines for treatment of skin and soft-tissue infections.  In regard to the VDOC Medical and Nursing Guidelines, the guideline governing AIMs (abnormal involuntary movements) testing of prisoners on antipsychotic medications shall be modified to provide that an AIMs test should be performed as a baseline for any prisoner with a prescription for any first-generation or second-generation 7 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 8 of 57 Pageid#: 4092 antipsychotic medication, and the test should be repeated every six months, at a minimum.  The guideline regarding treatment of Urinary Tract Infections shall be modified to provide for a physician visit within 72 hours of diagnosis absent an indication of a need for greater urgency.  Handcuffs applied in the front of the offender are the only restraints authorized when transporting an offender who is pregnant or in post-partum recovery outside the secure perimeter. Female offenders in their second and third trimesters of pregnancy shall be transported by wheelchair or gurney instead of walking in order to prevent accidental falls posing a risk of harm to the fetus. Restraint by handcuffs of offenders during active labor and delivery, or at any other time when the Health Services Administrator determines that the use of handcuffs might jeopardize the health or wellbeing of the pregnant woman or fetus is not permitted. Medical profiles for use of bottom bunks shall be granted to pregnant offenders and other offenders whose physical disabilities or illnesses make climbing to an upper bunk infeasible as a practical matter. Standards for FCCW i. Provider staffing levels. Standard: FCCW shall establish and maintain a sufficient number of health staff of varying types or adopt such other measures as shall be necessary to provide inmates with adequate and timely evaluation and treatment, including continuity and coordination of care. Nurse practice shall be performed within the scope of nursing licenses, and neither registered nurses (RNs) nor licensed practical nurses (LPNs) shall make medical decisions beyond the scope of their professional training. Nursing coverage shall be provided around the clock. ii. Intake screening of offenders. Standard: Receiving screening shall be performed on all inmates upon arrival at the intake facility as soon as possible to ensure that emergent and urgent health needs are met and to protect staff and prisoners from unnecessary exposure to communicable disease. 8 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 9 of 57 Pageid#: 4093 iii. Comprehensive health assessments. Standard: Comprehensive health assessments shall be performed on intake and thereafter according to revised OP 720.3. Age and gender specific screening and testing shall conform to generally accepted national guidelines. These health assessments should be performed no later than 14 days after intake, or sooner depending on medical appropriateness. Patients on medication for acute or chronic conditions at time of intake shall have continuity of medication. iv. The Sick Call Process/Access to Health Services. Standard: Non-emergency requests for care shall be screened for urgency within 24 hours. Physician/mid-level practitioner referrals should be accomplished in no more than 72 hours for urgent problems or deterioration of chronic conditions. FCCW shall assure continuity when requests for examination and/or treatment concern lapses in prescribed medication. v. Offenders’ Co-Pay Policy. Standard: FCCW shall suspend all co-payments for medical care for six months commencing as of the Effective Date, after which co-payment requirements will resume in accordance with thenexisting VDOC policy. There will be no co-payments for medications for chronic conditions, emergency care, or treatment of communicable diseases (e.g., MRSA, HIV, HCV). Copayments shall not be charged until the service is performed or until the first dose of ordered medication is provided. Under no circumstances will there be co-payments for wheelchair or stretcher transport for acute or urgent conditions. Co-payment, if any, for medical equipment (e.g., crutches, walkers, canes, etc.) that FCCW provides to prisoners in accordance with its legal obligation to afford reasonable accommodations in regard to disabilities will be determined pursuant to the parties’ development of a comprehensive ADA policy under Section III.2.c. of this Agreement, below. Co-payments will not be charged for providing prisoners with an initial copy of the results of diagnostic or laboratory tests ordered by the practitioners. vi. Diagnosis and Treatment. Standard: Prisoners should have unimpeded access to timely medical care at an appropriate level, including, among other things, adequate pain management for acute and chronic conditions. 9 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 10 of 57 Pageid#: 4094 vii. Response to Medical Emergencies/Emergency Medical Care. Standard: Response to medical emergencies should be timely and should conform to appropriate standards of care. Emergency medications, medical supplies and equipment shall be regularly maintained and readily available. viii. Infirmary Conditions and Operations. Standard: Infirmary care shall be appropriate to meet the serious medical needs of patients. This includes physical plant accommodations; infectious disease control; sanitation and hygiene; privacy; heat and hot water; functioning medical equipment; and staffing. Each admission should have admission notes, treatment plans, and discharge plans. Infirmary patients should have access to recreation and programming, except as specifically limited by their medical conditions. ix. Chronic Care. Standard: Offenders shall have continuity and coordination of care for chronic conditions such as hypertension, diabetes, cancer and other diseases that require periodic care and treatment. They shall be monitored every six months if their condition is controlled and stable. For those whose conditions are not controlled and stable, they shall be monitored every three months, at a minimum. x. Infectious Disease control and infectious waste management. Standard: An effective program includes surveillance, prevention, and control of communicable disease. Among other things, this includes expedited access to prophylactic measures for high-risk exposures, such as blood-borne exposures. xi. Utilization Management. Standard: The quality of care can be enhanced by effective care management. Quality can be diminished by underuse of appropriate health care services, overuse of services (e.g., unnecessary testing that leads to unnecessary interventions) and misuse of resources. The UM program shall work to enhance quality of care by providing timely access to an appropriate level of care. 10 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 11 of 57 Pageid#: 4095 a. Timely Referral to Outside Providers for Specialized Care. Physician requests for off-site care shall be processed in a timely manner and considered in accordance with nationally-accepted criteria, e.g., InterQual, Milliman, etc. A physician shall make any recommendations or decisions other than approvals. The referring physician shall have an appeal process, and appeals shall be resolved in a timely manner. New referrals should be accomplished within 30 days. The referring physician shall examine the patient monthly while awaiting the referral appointment to ascertain any deterioration in condition. b. Timely Compliance with Consultant Recommendations/ Consultant recommendations, including those regarding follow-up appointments, shall be acknowledged in the medical record and either followed or amended, with medical record documentation of the rationale for not following consultants’ recommendations. c. Prescription of Non-Formulary Medications. The Formulary shall include a procedure to waive Formulary restrictions with respect to otherwise necessary and/or appropriate medications not listed. If a waiver request is denied, the referring physician shall have a right of appeal to the VDOC Medical Director, and appeals shall be resolved in a timely manner. xii. Continuity in Supply and Distribution of Medication. Standard: Medication services shall be clinically appropriate and medications shall be provided in a timely, safe, and sufficient manner, including continuity of medication on intake and renewal of prescriptions whenever clinically appropriate. Pharmaceutical operations shall be sufficient to meet the needs of the Facility and conform to legal requirements. To the extent possible, arrangements shall be made to provide medication indoors during inclement weather. The timing of medication administration shall be considerate of sleep requirements and relationship to the timing of meals, where medically appropriate, e.g., diabetes. Morning pill call shall be conducted no earlier than 5:30 a.m. 11 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 12 of 57 Pageid#: 4096 All prescription medications delivered or administered to patients will be labeled according the Virginia Regulations Governing the Practice of Pharmacy.3 This shall include, among other things, patient name, identification number, drug name, instructions, and expiration date. Further, appropriate safeguards should be in place so that medications that should not be crushed are not crushed. xiii. Continuity in Supply and Distribution of Medical Equipment/Supplies (prostheses, wheelchairs, adult diapers, bandages, etc.). Standard: Durable medical equipment in appropriate working order and supplies shall be ordered, maintained, provided and available for daily use, as medically necessary. xiv. Physical Therapy. Standard: Physical therapy services shall be available on-site or off-site, as appropriate, and, subject to the offender’s consent, shall be carried out as prescribed by the patient’s physician. xv. The Medical Grievance Process. Standard: The grievance mechanism is an important component of the Facility quality management program. The grievance process allows a patient to question or complain about health care services. The Facility shall log and track incoming grievances to assure timely responses. The Facility shall be responsive to the complaint in a timely and meaningful manner. The Facility shall perform quantitative and qualitative analysis of grievance data as part of its quality management program. FCCW data shall be analyzed by VDOC as part of its contract oversight function. xvi. Appropriate Offender Access To Information regarding Medical Care. Standard: Information on access to health services shall be communicated orally and in writing to prisoners on arrival at the facility, tailored in a form and language that each prisoner can understand. Patients shall be provided with the results of laboratory and diagnostic testing and the recommendations of consulting practitioners in a comprehensible form and timely manner. 3 https://www.dhp.virginia.gov/pharmacy/pharmacy_laws_regs.htm, accessed 15 December 2014. 12 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 13 of 57 Pageid#: 4097 Diagnostic reports or patient instructions from consulting physicians shall be provided to an offender upon request at no charge for the first copy. xvii. Appropriate Accommodations for Prisoners with Special Needs. Standard: Prisoners are essentially dependent on the physical conditions of and services provided by their facilities. The Facility shall make reasonable accommodations for physically challenged and mentally ill prisoners, consistent with and as required by the law. This shall include, among other things, medical and mental health care and physical plant accommodations; medication; protection from heat injury; skilled nursing care and programming. Health and custody staff shall avoid disciplining prisoners for their disabilities and provide personal safety protection for those with disabilities, especially the elderly. Among other things, this includes access to medical services in Building 2 and wheelchair access in dining halls. In addition, patients shall be provided toilet access, consistent with their medical needs as determined by a practitioner. xviii. Guidance/Training of Correctional Staff. Standard: Health care staff shall work with Facility administration to provide training and guidance to custody staff on first aid to the extent needed; recognizing the need for emergency care; cardiopulmonary resuscitation; recognizing acute manifestation of chronic illness (e.g., diabetes, asthma, seizures) and adverse effects of medication; suicide prevention; and recognizing signs and symptoms of mental illness. xix. Care/Release of Terminally-Ill Offenders Standard: FCCW shall have and maintain a program to provide palliative care, including pain management, where medically appropriate. FCCW shall have a program to address the needs of terminally ill patients, including voluntary hospice programs. The health care staff shall recommend transfer or early release to legal authorities, where medically appropriate. xx. Conduct Of and Follow-Up Regarding Mortality Reviews. Standard: Mortality review is an important component of a quality management program. Within 30 days of a death, the Medical Director of the Facility shall complete a review of the care provided to each decedent. This review should be self-critical, 13 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 14 of 57 Pageid#: 4098 including explicit consideration as to whether the death was preventable. It should also include a discussion of how the care might have been improved, even if the death was not preventable. The review should include recommendations for improving care for presentation to the VDOC Quality Management Committee. The mortality review at the facility level shall become part of the VDOC statewide mortality review. The mortality review shall be reopened, as necessary or appropriate, in consideration of an autopsy and toxicology report, when these are released. xxi. Criteria for Performance Measures, Evaluation, and Comprehensive Quality Improvement. Standard: FCCW shall measure its performance on each aspect of the obligations imposed by this Settlement Agreement. This measurement shall be quantitative, based on focused or comprehensive medical record review where applicable. Measures shall conform to the circumstances at FCCW and shall be approved by the Compliance Monitor. In addition, the quality management program shall consider data from mortality reviews, grievance analyses, and any patient satisfaction surveys. Data shall be analyzed qualitatively so as to identify opportunities for improvement and identify remedies. Performance shall be tracked and trended over time and shared with the Parties through counsel on a quarterly basis while this Settlement Agreement is in effect. FCCW will develop an annual quality management program plan that takes into consideration known impediments to quality care and opportunities for improvement. On an annual basis, FCCW will produce a self-critical evaluation of the prior year’s clinical performance and an evaluation of the value of the quality management program. This evaluation will be used to develop the annual quality management program plan. xxii. Performance Evaluation and Quality Improvement, including Contractor Monitoring and Compliance, beyond expiration of the Settlement Agreement. Standard: VDOC will actively participate in Quality Improvement Committee meetings, as part of clinical oversight and as partners with the Contractor in providing continuous and unimpeded access to an appropriate level of health care at FCCW. Through its 14 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 15 of 57 Pageid#: 4099 oversight, VDOC will work to reduce barriers to timely access to care at FCCW, and provide remedies where opportunities for improvement are identified. VDOC will assure that improvements in care at FCCW are supported by sustainable systems of care. The Compliance Monitor will evaluate VDOC’s progress in selfidentification of opportunities for improvement and will evaluate the sustainability of documented improvements in care and clinical outcomes at FCCW. c. Establishment Of Additional Relevant Policies The Parties acknowledge that VDOC does not currently have an OP regarding reasonable accommodations for physical disabilities of incarcerated individuals consistent with the mandate of the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 et seq., and its implementing regulations and standards. Nor does VDOC currently have an OP establishing concrete and definitive practices and procedures to govern the Defendant’s self-evaluation with respect to the quality and quantity of the medical care it provides to prisoners on an ongoing basis in accordance with widely-recognized Continuous Quality Improvement (“CQI”) concepts. The Defendant agrees that the Parties, their respective correctional medical experts/consultants and the Compliance Monitor, acting in mutual good faith and working in concert, shall develop, adopt and implement new VDOC OPs for FCCW concerning Reasonable Accommodation of Disabilities and CQI, respectively, within 120 days of the Effective Date of this Settlement Agreement. In the event a disagreement between the Parties arises with respect to the content of these new OPs, such dispute shall be resolved by the Compliance Monitor. d. Performance Measuring Tools In evaluating the Defendant’s performance and satisfaction of its obligation to provide the prisoners incarcerated at FCCW with constitutionally-adequate medical care in accordance with the Eighth Amendment and the terms and conditions of this Settlement Agreement, the Compliance Monitor shall utilize and report on the basis of application of the Performance 15 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 16 of 57 Pageid#: 4100 Measuring Tools to be developed by the Compliance Monitor with a focus on each of the subjects identified on the list attached as Appendix B of this Agreement and fully incorporated herein by reference. IV. 1. MONITORING Monitor Selection Pursuant to Section 1 of the Parties’ MOU, the Parties have jointly selected Nicholas Scharff, M.D., MPH, the former Chief Medical Officer of the Commonwealth of Pennsylvania Department of Corrections, to serve as the Compliance Monitor for purposes of this Settlement Agreement.4 In the event the Compliance Monitor position becomes vacant before the full duration of the monitoring period contemplated by this Settlement Agreement has expired, the Parties, by counsel, shall meet, confer and seek to agree upon another knowledgeable individual with expertise and experience in the field of correctional medicine to fill the vacancy as promptly as practicable. If the Parties’ representatives are unable to reach agreement on the selection of an individual to serve as Dr. Scharff’s successor in the role of Compliance Monitor, each Party shall nominate one correctional medical expert to the Court, accompanied by a written submission setting forth its nominee’s qualifications to serve and any arguments either Party may wish to make concerning the other Party’s nominee, and the Court shall select the Compliance Monitor from the Parties’ competing nominees, the Court’s determination in this regard to be final. 2. Monitoring Functions a. Visits To FCCW The Compliance Monitor shall, during the first two years that this Settlement Agreement is in effect, conduct an in-depth visit on site at FCCW at least four times per year. The duration of the initial visit shall presumptively be at least 24 hours, to be conducted over the course of 3 to 4 A copy of Dr. Scharff’s current Curriculum Vitae is attached as Appendix C to this Settlement Agreement. 16 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 17 of 57 Pageid#: 4101 5 days. The duration of visits thereafter shall be determined in accordance with the Compliance Monitor’s discretion. If the Monitor, in the exercise of his discretion, on the basis of application of the Guidelines, Standards and Performance Measuring Tools set forth or referenced herein, determines that appropriate progress has been demonstrated toward the goal of constitutionallyadequate medical care on a consistent basis by the end of the second year that this Settlement Agreement is in effect, he may reduce the frequency of his visits to FCCW to at least once during each four-month period, for a total of three annual visits in the third year. Otherwise, the number of annual visits in the third year shall be no fewer than the number of annual visits during the second year. If the Monitor, in the exercise of his discretion as described above, determines that appropriate progress has been demonstrated toward the goal of constitutionallyadequate medical care on a consistent basis during the third year that this Settlement Agreement is in effect, he may reduce the frequency of his visits to FCCW to at least once during each sixmonth period, for a total of two annual visits in the fourth year. Otherwise, the number of annual visits in the fourth year shall be no fewer than the number of annual visits during the third year. The Monitor, in his discretion, may determine that it is necessary to visit FCCW more frequently than the minimum number of visits prescribed for any year during the time period that this Settlement Agreement is in effect. b. Focus/Purpose Of Visits To FCCW The purpose and focus of the Compliance Monitor’s periodic visits to FCCW shall be to observe, evaluate and analyze the nature and extent of all aspects of the Defendant’s performance of its obligation to provide constitutionally-adequate medical care to the Class, as required by the Eighth Amendment and in accordance with the provisions of Section III of this Settlement Agreement. 17 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 18 of 57 Pageid#: 4102 c. Monitor Reporting The Compliance Monitor shall prepare a written report to the Parties setting forth his findings after each visit to FCCW. Each report shall be provided to counsel for the Parties in draft form fourteen days before the intended date of its issuance in final form, and the Compliance Monitor shall consider the Parties’ comments and suggestions and make such changes, if any, as he deems appropriate to the draft before issuing the report. The reports shall be written with due regard for the privacy interests of individual prisoners and the Defendant’s interest in protecting against the disclosure of non-public information that may legitimately be regarded as affecting security considerations. For purposes of each report, the Compliance Monitor shall evaluate the status of the Defendant’s performance of its obligations under the Eighth Amendment and this Settlement Agreement, focusing on the Operating Procedures, Guidelines and Standards, and utilizing the Performance Measuring Tools, set forth or incorporated by reference in Section III above. With respect to each element of the Defendant’s performance evaluated, the Compliance Monitor shall rate the Defendant as non-compliant, partially compliant or fully compliant with the obligations contemplated in Section III above. In order to assess compliance, the Monitor shall review a sufficient number of pertinent medical charts and other relevant documents to accurately evaluate current conditions; interview all necessary medical personnel and correctional staff; and interview a sufficient number of prisoners to gain a complete and accurate sense of the status of provision of medical care at the time of each visit. The Compliance Monitor shall be responsible for independently verifying any representations made by the Defendant and/or the Contractor regarding progress towards satisfaction of the obligation to provide constitutionally-adequate medical care in accordance with the provisions of Section III and examining all supporting documentation. Each report shall describe the measures undertaken by the Compliance Monitor 18 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 19 of 57 Pageid#: 4103 to analyze conditions and assess compliance, including identification of documents reviewed, individuals interviewed, medical practices and procedures observed and locations investigated, and shall expressly and with specificity set forth the basis for each of the Compliance Monitor’s findings and conclusions. If the Compliance Monitor, during the time period in which this Settlement Agreement is in effect, identifies a deficiency in any aspect of the medical care provided by the Defendant at FCCW that he deems to involve constitutionally-inadequate care, he shall promptly bring the problem at issue to the Defendant’s attention by written notice. The date of receipt of such notice by the Defendant shall trigger the running of a 30-day time period within which the Defendant may determine and implement a cure of the problem identified, or attempt to otherwise resolve the problem through negotiations with the Compliance Monitor. If the Plaintiffs, during the time period in which this Settlement Agreement is in effect, identify a deficiency in any aspect of the medical care provided by the Defendant at FCCW that they believe involves constitutionally-inadequate care, they, by and through their counsel and with or without the concurrence of the Compliance Monitor, may bring the problem at issue to the Defendant’s attention by written notice. The date of receipt of such notice by the Defendant shall trigger the running of a 30-day time period within which the Defendant may determine and implement a cure of the problem identified, or attempt to otherwise resolve the problem through negotiations with the Plaintiffs’ counsel. To the extent they deem necessary or appropriate, the Parties may enlist the assistance and input of the Compliance Monitor in attempting to resolve such problems as may be identified. The Plaintiffs’ opportunity, acting by and through their counsel, to bring issues of allegedly constitutionally-inadequate medical care to the attention of the Defendant directly as 19 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 20 of 57 Pageid#: 4104 described in the preceding paragraph shall not constitute a substitute for any individual prisoner’s obligation to comply with the Inmate Grievance Procedure, and Plaintiffs’ counsel shall advise the Plaintiffs accordingly. Copies of the reports prepared by the Compliance Monitor shall be public records and shall be maintained on file in the Prison Library at FCCW and available for review by the prisoners residing there, such copies to be redacted to the extent necessary to protect against the disclosure of the identity of any particular prisoner discussed therein, the disclosure of any nonpublic information relating to security considerations, or the disclosure of information deemed to be Confidential by the parties as described more fully in Section IV.4. below. 3. Monitor Access Subject to the express understanding that the Compliance Monitor may be escorted by VDOC correctional personnel when visiting within secure areas of FCCW as the Defendant deems necessary or appropriate, the Compliance Monitor shall have liberal and prompt access upon request to all areas within FCCW in which medical care services or accommodations for disabilities are provided; to all medical and security personnel employed at FCCW; to all prisoners residing at FCCW; and to all medical grievance records and medical records maintained by FCCW and/or the Defendant pertaining to prisoners residing at FCCW. All interviews conducted by the Compliance Monitor shall be confidential, even if subject to visual observation by FCCW correctional staff from an appropriate distance. There shall be no retaliation on the part of FCCW correctional staff or other VDOC personnel against any prisoner residing at FCCW on the basis of such prisoner’s active involvement in this lawsuit or her interaction with the Compliance Monitor. The Defendant shall instruct all VDOC and Contractor employees to cooperate fully with the Compliance Monitor. The Defendant shall 20 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 21 of 57 Pageid#: 4105 provide documents to the Compliance Monitor upon his request (e.g. census summaries, incident and compliance reports involving medical issues, grievances, etc.) within 7 days of the date of the request. The Compliance Monitor, in his sole discretion, may engage in ex parte communications with any of the Parties, without any obligation to disclose the existence or the substance of any such communications to any other Party either before or after they are conducted. 4. Reporting Of Deaths The Defendant shall, within 24 hours of any such occurrence, notify the Compliance Monitor of the death of any FCCW prisoner and shall, as soon as possible thereafter, forward to the Compliance Monitor, with a copy to the Plaintiffs’ counsel, any Incident Reports or Reports of Sudden and Unusual Incidents concerning the death, whether prepared by VDOC personnel (including investigators employed by the VDOC Special Investigation Unit) or the Contractor’s personnel; all medical records of the deceased prisoner; any medical and/or mental health reports regarding or relating to the death or the deceased prisoner; as well as any and all final reports prepared by or on behalf of the VDOC concerning any prisoner death at FCCW. To the extent requested by the Defendant and agreed upon by the Compliance Monitor and Plaintiffs’ counsel, documents provided pursuant to this provision shall be handled and maintained in a Confidential manner, and public copies of any report prepared by the Compliance Monitor containing a specific reference to information derived from such Confidential documents shall be redacted or filed under seal if submitted to the Court. 5. Limitations On The Scope Of The Compliance Monitor’s Role The Compliance Monitor shall not voluntarily testify as a witness or affiant in any other litigation matter or proceeding with respect to any actual or alleged acts or omissions on the part 21 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 22 of 57 Pageid#: 4106 of the Defendant or any of its agents, representatives or employees related to this Settlement Agreement, nor as to any matter or subject of which he learned or became informed as a result of the performance of his role under this Settlement Agreement. Unless a conflict of interest is knowingly and expressly waived by all Parties, the Compliance Monitor shall not accept employment or provide consulting services that would present or constitute such a conflict with his responsibilities under this Settlement Agreement, including being retained (on a paid or unpaid basis) by any current or future litigant or claimant, or such litigant’s or claimant’s attorney, in connection with any claim or lawsuit against the Defendant or its agents, representatives or employees. The Compliance Monitor is not a State, County or local agency or agent thereof and, accordingly, the work papers developed and/or maintained by the Compliance Monitor in connection with the performance of his responsibilities under this Settlement Agreement shall not be deemed public records subject to public inspection or disclosure except for final versions of his reports to the Parties. Upon the expiration of one year after the date on which this Settlement Agreement concludes, the Compliance Monitor shall either return all VDOC documents that he obtains pursuant to the provisions of this Agreement to the possession and custody of the VDOC or shall certify to the VDOC in writing, subject to the penalty of perjury, that all such documents have been destroyed. Neither the Compliance Monitor nor any person or entity hired or otherwise retained by the Compliance Monitor to assist in the performance of his responsibilities under this Settlement Agreement or in furtherance thereof shall be subject to or liable for any claim, lawsuit or demand arising out of that performance. 6. Monitor Replacement The Compliance Monitor, except at his own election, may be terminated and replaced only upon mutual agreement of the Parties or by Order of the Court upon motion, but solely for 22 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 23 of 57 Pageid#: 4107 good cause shown that is unrelated to the substance of his findings and conclusions. Good cause, for these purposes, shall include gross neglect of duties resulting in deficient performance; willful misconduct; inappropriate personal relationship with a representative of either of the Parties; a conflict of interest; or actual or alleged involvement in any criminal or other unlawful conduct during the pendency of this Settlement Agreement. 7. Monitor Compensation The Compliance Monitor’s reasonable fees and expenses incurred in performing his duties under the provisions of this Settlement Agreement shall be borne by the Defendant pursuant to the terms discussed and agreed upon between the Defendant and the Compliance Monitor. V. 1. ENFORCEMENT The Court shall retain jurisdiction over the Parties for purposes of ensuring the implementation of this Settlement Agreement and shall preside over such further proceedings as may be necessary or appropriate to enforce its terms and conditions. 2. In the event that a problem of constitutionally-deficient medical care on the part of the Defendant, and brought to the Defendant’s attention by the Compliance Monitor or the Plaintiffs’ counsel pursuant to the provisions of Section IV.2.c. of this Settlement Agreement, has not been cured or otherwise resolved to the satisfaction of the Plaintiffs or the Compliance Monitor upon expiration of the 30-day period following the provision of such notice to the Defendant, the Plaintiffs, by and through their counsel, may initiate proceedings before the Court seeking specific performance of the terms of this Settlement Agreement, contempt sanctions against the Defendant, or both. The Plaintiffs shall bear the burden of proof by a preponderance of the evidence in such proceeding. In the event the Plaintiffs prevail in the prosecution of such 23 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 24 of 57 Pageid#: 4108 enforcement action, they may petition the Court for an award of their reasonable costs and attorneys’ fees incurred in bringing the action. 3. In the event of a medical emergency posing a substantial threat of immediate harm to any prisoner residing at FCCW, as identified by the Compliance Monitor or the Plaintiffs through counsel, the notice and 30-day cure provisions of this Settlement Agreement shall be deemed waived by the Defendant and the Plaintiffs, through counsel, may seek immediate enforcement of its terms by the Court. VI. 1. CONSTRUCTION, IMPLEMENTATION AND TERMINATION The implementation of this Settlement Agreement shall begin no later than the Effective Date. 2. Except to the extent otherwise agreed upon by the Parties under a specific provision set forth herein, the Defendant shall implement all provisions of this Settlement Agreement within 30 days of the Effective Date. 3. The VDOC Operating Procedures applicable to FCCW, except to the extent maintained on a confidential, non-public basis pursuant to applicable law or regulation, and the Guidelines, Standards and Performance Measuring Tools governing and establishing a basis for assessment of whether the provision of medical care at FCCW is satisfying constitutional standards, shall all be copied and made available for prisoner access and review at various locations within the Prison, including but not limited to the Prison Library, where a copy of these materials clearly and legibly labeled as such will be on display in an easily recognized and accessible location. 4. All women incarcerated at FCCW as of the Effective Date, and all women entering FCCW thereafter during the term that this Settlement Agreement is in effect, shall be 24 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 25 of 57 Pageid#: 4109 provided in a timely manner with an Information Sheet, the contents of which shall be mutually agreed upon by the Parties, advising the recipients of the existence and material terms and conditions of this Settlement Agreement including, without limitation, contact information for the Compliance Monitor. The Information Sheet shall expressly advise that any direct communications by any offender to the Compliance Monitor regarding any medical care problem or concern shall not be a substitute for the obligation to comply with the Offender Grievance Procedure. 5. Failure by any Party to enforce or seek to enforce this Settlement Agreement or any provision thereof with respect to any deadline or any other obligation to be performed hereunder shall not be construed as a waiver of that Party’s right to enforce or seek to enforce other deadlines or conditions of this Settlement Agreement. 6. This Settlement Agreement reflects and shall constitute the entire agreement of the Parties. No prior or contemporaneous communications, oral or written, shall be deemed relevant or admissible in any proceeding for purposes of determining the meaning of any provisions hereof, in this or any other action. 7. This Settlement Agreement shall be applicable to and binding upon the Parties and their successors, officers, agents, employees and assigns. Any VDOC Requests for Proposal and/or contracts for the provision of medical care at FCCW issued or entered into on or after the Effective Date shall expressly incorporate by reference and shall be subject to all of the terms and conditions of this Settlement Agreement. 8. Except as regards the members of the Plaintiff Class, this Settlement Agreement is not intended to affect, impair, enhance or expand the right of any individual person or entity to seek relief against the Defendant, its employees or agents for their past, current or future 25 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 26 of 57 Pageid#: 4110 conduct; accordingly, this Settlement Agreement, except to the extent expressly set forth herein, does not alter any legal standards governing any such claim under federal and/or Virginia law. 9. If any provision of this Settlement Agreement is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect or impair this Settlement Agreement as a whole or any of the remaining provisions thereof except as dictated by applicable law or public policy. 10. This Settlement Agreement shall terminate as of the date on which the Defendant has achieved substantial compliance with all elements of performance of its obligations to provide constitutionally-adequate medical care under the Eighth Amendment, subject to the Compliance Monitor’s evaluation under this Settlement Agreement, and has consistently maintained such substantial compliance for a period of one year, provided, however, that the termination may not take effect less than three years from the Effective Date unless the Parties, by and through their respective counsel, mutually agree to termination within a shorter period of time. VII. ATTORNEYS’ FEES AND COSTS The Parties, in mutual good faith, shall exercise their best efforts to agree upon the measure of reasonable attorneys’ fees and litigation costs, including such attorneys’ fees and costs as may be incurred in implementing the terms and conditions of this Settlement Agreement (except as contemplated by Section V.2. hereof), that shall be paid to the Plaintiffs by the Defendant. If, within 30 days after the date on which the Motion for Preliminary Approval of this Agreement is filed, the parties have been unable to resolve the matter of recoverable attorneys’ fees and costs by mutual agreement, the Plaintiffs may submit a petition to the Court 26 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 27 of 57 Pageid#: 4111 for the determination and awarding of fees and costs to the Plaintiffs as the prevailing parties in this action pursuant to 42 U.S.C. §1988. VIII. PLRA FINDINGS The Parties hereby stipulate, and request that the Court, upon independent review and consideration, find that this Settlement Agreement complies with the Prison Litigation Reform Act. The Parties agree that the prospective relief established by this Settlement Agreement is narrowly drawn, extends no further than is necessary to address and remedy the violations of federal rights alleged by the Plaintiffs in their pleadings in this action, is the least intrusive means necessary to correct these alleged violations, and will not have any adverse impact on public safety or the operation of the criminal justice system. Accordingly, the Parties agree and they jointly request that the Court find that this Settlement Agreement complies in all respects with the provisions and requirements of 18 U.S.C. § 3626(a). Any admission made for purposes of this Settlement Agreement is not admissible if presented by any third party in any other proceeding. This Settlement Agreement is not intended to have and shall not have any preclusive effect except as between the Parties hereto, and does not resolve, adjudicate or bar, or purport to resolve, adjudicate or bar, any claim for damages against the Defendant by any former, current or future Class member. 27 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 28 of 57 Pageid#: 4112 DATED: September 2015 ReSpeetfully submitted, Cy?hia B. Scott, Class Representative R149 lay-mi (QQ- B'?l'inda Gray, Class Representativ Toni Hartlove, Class Representative I Karen Powell, Class Representative ueretial Robinson, Class Representative 28 Case Document 221-1 Filed 09/15/15 Page 29 of 57 Pageid#: 4113 Mary C. Bauer, VSB No. 31388 ([email protected]) Abigail Turner, VSB No. 74437 ([email protected]) Brenda E. Castañeda, VSB No. 72809 ([email protected]) Anglea Ciolfi, VSB No. 65337 ([email protected]) Erin M. Trodden, VSB No. 71515 ([email protected]) Ivy A. Finkenstadt, VSB No. 84743 ([email protected]) LEGAL AID JUSTICE CENTER 1000 Preston Ave., Suite A Charlottesville, VA 22903 (434) 977-0553 ( and Deborah M. Golden (admitted pro hac vice) ([email protected]) Elliot Mincberg WASHINGTON LAWYERS’ COMMITTEEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, N.W. Suite 400 Washington, D.C. 20036 (202) 319-1000 and 29 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 30 of 57 Pageid#: 4114 Theodore A. Howard (admitted pro hac vice) ([email protected]) WILEY REIN LLP 1776 K Street, N.W. Washington, D.C. 20006 (202) 719-7000 By: /s/Brenda E. Castañeda Attorneys for Plaintiffs Richard C. Vorhis, VSB No. 23170 [email protected]) J. Michael Parsons, VSB No. 68520 ([email protected]) Correctional Litigation Section, Criminal Justice and Public Safety Division OFFICE OF THE ATTORNEY GENERAL 900 East Main Street Richmond, VA 23219 (804) 784-0046 By: /s/Richard C. Vorhis Attorneys for Defendants APPROVED AND SO ORDERED this __ day of ____________, 2015 The Hon. Norman K. Moon Senior U.S. District Judge 30 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 31 of 57 Pageid#: 4115 APPENDIX A Case Document 221-1 Filed 09/15/15 Page 32 of 57 Pageid#: 4116 SUMMARY OF VDOC OPERATING PROCEDURES REVISIONS As an element of the resolution agreed upon by Plaintiffs Cynthia B. Scott, et al., and the Virginia Department of Corrections (VDOC) Defendants in settlement of the case captioned Scott, et al. v. Clarke, et al., Case No. 3:12-cv-00036-NKM (W.D. Va.), and in accordance with the provisions of Section 2 of the Memorandum of Understanding entered into by the parties on November 25, 2014, the parties, with the assistance of and in collaboration with their respective medical consultants and the designated Compliance Monitor, Nicholas Scharff, M.D., MPH, have agreed upon revisions to the following VDOC Operating Procedures (OPs) which, as revised, will serve as guidance for the provision of medical care at Fluvanna Correctional Center for Women on and after the Effective Date of the Settlement Agreement: OP 411.1 Offender Transportation [Non-Public] OP 420.2 Use of Restraints and Management of Offender Behavior [Non-Public] OP 425.2 Hospital Security [Non-Public] OP 701.1 Health Services Administration OP 720.1 Access to Health Services OP 720.2 Medical Screening Classification and Levels of Care OP 720.3 Health Maintenance Program OP 720.4 Co-Payment for Health Care Services OP 720.5 Pharmacy Services OP 730.1 Mental Health Services: Administration OP 730.2 Mental Health Services: Screening, Assessment and Classification OP 730.5 Mental Health Services: Suicide Prevention and Behavior Management OP 740.1 Infectious Disease Control OP 810.1 Offender Reception and Classification Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 33 of 57 Pageid#: 4117 An itemized summary of the agreed-upon revisions follows: 1. OP 411.1 Offender Transportation [Non-Public] The revisions to OP 411.1 accomplish the following changes: a. Acknowledge that removal of restraints for purposes of necessary medical treatment is acceptable. b. Strike an appropriate balance between safety concerns and doctor-patient privacy in the context of correctional officer observation of off-site encounters between a prisoner and her medical care provider. Also acknowledge that in the event a prisoner is required to disrobe for purposes of examination or treatment, the correctional officer maintaining visual observation of the prisoner shall be the same sex as the prisoner absent an emergency. 2. OP 402.2 Use of Restraints And Management of Offender Behavior [Non-Public] The revisions to OP 420.2 accomplish the following changes: 3. a. Provide for additional measures to assure the safe transportation of pregnant offenders restrained by handcuffs during their second and third trimesters of pregnancy. b. Provide for additional safety measures with respect to monitoring of prisoners subject to restraints in their cells for behavior management reasons. OP 425.2 Hospital Security [Non-Public] The revisions of OP 425.2 accomplish the following changes: 4. a. Recognize that off-site specialists and medical providers at FCCW should be able to communicate directly and in real time with one-another in the course of the offsite specialist’s examination of the prisoner. b. Recognize the option of removing restraints, fully or in part, upon the request of attending medical staff in connection with diagnostic examination or treatment. c. Recognize, per the revisions to OP 411.1, § XV.A.7.d., that when a prisoner offsite must disrobe for specialist diagnosis or treatment, the observing correctional officer must be of the same sex, except in emergency circumstances. OP 701.1 Health Services Administration a. Section IV.A.3. This provision, as revised, will state as follows: 2 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 34 of 57 Pageid#: 4118 The [Health Services Unit] and the medical department at [FCCW] shall develop measurable goals and objectives in support of the mission and philosophy of DOC healthcare, including, but not limited to, performance measures for timely access to care and medication; continuity of care and medication; coordination of care and clinical quality in accordance with Departmental clinical guidelines and nursing protocols. These goals and objectives are reviewed annually and updated as needed. 5. OP 720.1 Access to Health Services a. Section III. i. The Definition for “Access to Care,” as revised, will state as follows: Access to Care -- In a timely manner, patients are seen by a clinician, given a professional judgment, and receive care that is ordered. ii. A Definition for “Medical Practitioner” has been added and will state as follows: Medical Practitioner -- A physician, physician’s assistant, or nurse practitioner licensed to practice medicine in the Commonwealth of Virginia or in the jurisdiction where the treatment is to be rendered or withheld. iii. The Definition for “Sick Call,” as revised, will state as follows: Sick Call -- Care for ambulatory offenders with health care requests which are evaluated and treated in a clinic setting, it is the system through which each offender reports for and receives appropriate health services for a non-emergency illness or injury, in a timely manner in consideration of medical urgency. iv. A Definition for “Urgent Care” has been added and will state as follows: Urgent Care -- Treatment of an acute condition or deterioration of a chronic condition that is not emergent, but if left untreated could deteriorate into a more serious or emergent problem. b. Section IV.A.I. The initial statement in this provision, as revised, will state as follows: The Facility Unit Head, in conjunction with the Health Authority, will ensure that offenders have timely access to, and are provided adequate health care services. The continuity of health care including the continuity of medication shall be available from admission to discharge. 3 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 35 of 57 Pageid#: 4119 c. Section IV.A.2. This new provision will state as follows: The facility shall establish and maintain a sufficient number of health staff of varying types or adopt such other measures as shall be necessary to provide offenders with adequate and timely evaluation and treatment, including continuity and coordination of care. Nurse practice falls within the scope of nursing licenses. Nursing coverage is available around the clock at FCCW. d. Section IV.A.3. This provision, as revised, will state, in pertinent part, as follows: Each Health Authority shall ensure that offenders entering their facility are provided with information about procedures to access routine and emergency healthcare. Information on access to health services is communicated to offenders in writing and orally in a form and language that is easily understood. e. Section IV.A.5. This provision, as revised, will state as follows: Offenders have unimpeded access to healthcare, including, but not limited to, adequate pain management for acute and chronic conditions and to a system for processing complaints regarding health care. Offenders may process complaints regarding health care through the Offender Grievance Procedure in institutions or by appeal to the Facility Unit Head at Community Corrections facilities. f. Section IV.A.9. This new provision will state as follows: Offenders are to be notified that laboratory and diagnostic testing results have been received and reviewed and that the results are either (check box) “acceptable” or “please see practitioner to discuss the results.” g. Section IV.A.12.c. This new provision will state as follows: Co-payment fees shall be waived when appointments or services, including follow-up appointments, are initiated by health care staff, including visits for medication renewals, and for preventive screenings. h. Section IV.B.1. This provision, as revised, will state as follows, and will be moved to become Section IV.B.8. 4 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 36 of 57 Pageid#: 4120 Each facility shall evaluate all offender health care complaints. The grievance mechanism is an important component of the facility quality management program. The grievance process allows a patient to question or complain about health care services. The facility logs and tracks incoming grievances to assure timely responses. The facility is responsive to the complaints in a timely and meaningful manner. The facility performs quantitative and qualitative analysis of grievance data as part of its quality management program. FCCW data is analyzed by DOC as part of its contract oversight function. i. Section IV.B.2. This provision, as revised, will state as follows: 1. j. Emergency Complaints a. Twenty-four hour emergency medical services shall be available and complaints handled immediately. Each facility shall have a written plan to provide 24-hour emergency care (see Operating Procedure 720.7, Emergency Medical Equipment and Care). b. An adequate inventory of first aid kits and emergency medical equipment and supplies should be maintained at all times in accordance with Operating Procedure 720.7, Emergency Medical Equipment and Care. Facilities shall provide for on-site emergency first aid, CPR, and crisis intervention. Section IV.B.3. Medical requests should be triaged within 24 hours by a qualified health care professional or health-trained staff, and the offender seen by a qualified health care professional within 72 hours. 6. a. For medical complaints deemed to be urgent, a referral shall be made for the offender to see a medical practitioner, and the offender should be seen by the practitioner within 72 hours of the referral. b. For medical complaints determined to be routine, if referral to a medical practitioner is deemed to be indicated, the offender should be seen by the practitioner within two weeks of the referral. OP 720.2 Medical Screening Classification and Levels of Care a. Section III i. A Definition for “Health-Trained Staff” has been added and will state as follows: 5 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 37 of 57 Pageid#: 4121 Health Trained Staff -- A DOC employee, generally a correctional officer, who has been trained to administer health screening questionnaires, including training as to when to refer an offender to health care staff and at what level of urgency. ii. The Definition for “Qualified Healthcare Personnel,” as revised, will state as follows: Qualified Healthcare Personnel -- A licensed LPN, RN, physician assistant, nurse practitioner or physician. b. Section IV.A.3. This new provision will be transferred and inserted within OP 720.1, § IV.A.1., subject to a cross-reference to OP 810.1 if VDOC deems appropriate. c. Section IV.B.1 This provision, as revised, will state as follows: An intake medical screening shall be performed by health-trained staff or qualified health care personnel upon the offender’s arrival into the DOC, i.e., at a Reception and Classification Center, Detention Center, or Diversion Center. The purpose of the medical intake screening is to ensure that emergent and urgent health needs are met and to protect staff and offenders from unnecessary exposure to communicable disease. d. Section IV.B.4. This provision, as revised, will include, among the list of subjects as to which inquiry is made in the course of intake medical screening, the following additional subject:  e. Current and prescribed medications Section IV.B.5. This new provision will state as follows: For offenders on medication, a medical practitioner shall decide whether to continue, discontinue or modify the medication within 24 hours of arrival and shall prescribe accordingly. Medication shall be available to the offender at an time considered appropriate by the medical practitioner. f. Section IV.D.1.g. This provision will state as follows: 6 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 38 of 57 Pageid#: 4122 Cervical cytology (Pap test) and testing for Chlamydia and gonorrhea (females). g. Section IV.E.2.a. This provision, as revised, will state as follows: [Health Appraisals shall be conducted] [w]ithin 14 days after arrival at the facility, but sooner for incoming offenders with more urgent conditions, and in all cases consistent with the degree of urgency. h. Section IV.E.6. This provision, as revised, will state as follows: The health assessment shall conform to age and gender recommendations following generally accepted national guidelines, including pelvic examinations, Pap smears and mammography. i. Section IV.I.5.a.-e. This provision, as revised, as follows: The following medical categories must be considered in identifying offenders who may require medical classification and possible separation for appropriate diagnosis and treatment: j. (i) communicable disease (ii) physical disability (iii) cognitive or developmental disability (iv) serious mental illness (v) risk of harm to self or others (vi) chronic illness and debility. Section V.A.2.a. This provision, as revised, will state as follows: Offenders shall have continuity and coordination of care for chronic conditions such as hypertension, diabetes, cancer, and other diseases that require periodic care and treatment. They shall be monitored every six months if their condition is controlled and stable. For those whose conditions are not controlled and stable, they shall be monitored every three months, at a minimum. 7 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 39 of 57 Pageid#: 4123 k. Section V.A.5.b.i. This provision, as revised, will state as follows: Infirmary care is appropriate to meet the serious medical needs of patients. This includes physical plant accommodations and hygiene; privacy; heat; and staffing. l. Section V.A.5.b.ii. This provision, as revised, will state as follows: Each facility with an infirmary shall develop procedures to define the scope of services available, including a program to provide palliative care, including pain management, where medically appropriate. There shall be a program to address the needs of terminally ill patients, including voluntary hospice programs. See Operating Procedure 820.2, Re-entry Planning, for information on release of terminally ill offenders. m. Section V.A.9.a. This new provision will state as follows: Offenders are essentially dependent on the physical conditions of and services provided by their facilities. The Facility shall make reasonable accommodations for physically-challenged and mentally ill prisoners, consistent with and as required by the law. This shall include, but not be limited to, medical and mental health care and physical plant accommodations; medication; protection from heat injury; skilled nursing care and programming. Health care, security and other staff shall avoid disciplining prisoners for their disabilities and shall provide personal safety protection for those with disabilities, especially the elderly. This includes access to medical services in Building 2 and wheelchair access in dining halls. In addition, patients shall be provided toilet access, consistent with their medical needs as determined by a medical practitioner. n. Section V.A.9.g. This new provision will state as follows: Physical therapy shall be available on or off-site, as appropriate, and shall be carried out, subject to the offender’s consent, a prescribed by the offender’s physician. o. Section V.B.1. This provision, as revised, will state as follows: The utilization management program works to enhance quality of care by providing timely access to an appropriate level of care. 8 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 40 of 57 Pageid#: 4124 p. Section V.B.8.a-b. These provisions, as revised, will state as follows: All UM requests shall be reviewed and returned to the facility within 5 working days. All urgent UM requests are returned within 48 hours. Denials or alternate recommendations shall only be issued by a licensed physician. q. Section V.B.16. This new provision will state as follows: Initial referrals shall be accomplished within 30 days of the initial request. When this is not possible, unless otherwise indicated, a physician shall see the patient every 30 days until the [referral] visit is accomplished, to review for deterioration and increased urgency. r. Section V.B.19.a.-b. This new provision will state as follows: Consultant recommendations shall be acknowledged in the Health Record and either followed or amended, with Health Record documentation of the rationale for not following the consultant’s recommendations. Follow-up appointments shall be scheduled by the Facility and realized, as per the consultants’ orders as determined by the facility physician. Some types of follow-up care can be provided by the facility physician without transporting the offender to the consultant. 7. OP 720.3 Health Maintenance Program a. Section IV.A.1.-2. This provision, as revised, will state, in pertinent part, as follows: Each facility should operate a health education program appropriate to its mission and offender population, so that health education and wellness information is provided to all offenders. Education methods may include posters, printed materials, seminars, videos, and individual instruction. The form and format should be designed to maximize offender comprehension. b. Section IV.C.3. This provision, as revised, will state as follows: The conditions for periodic health examinations for offenders are determined by the Health Authority, based on age and gender, in accordance with generally accepted national standards. 9 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 41 of 57 Pageid#: 4125 c. Section IV.D.6. This provision, as revised, will state as follows: Each offender who does not have a record of a positive test result will be offered a test for infection with human immunodeficiency virus (HIV) at intake and within 180 days of the offender’s scheduled release. 8. OP 720.4 Co-Payment for Health Services OP 720.4 shall be suspended in its entirety for six months from the Effective Date of the Settlement Agreement pending the parties’ work on development of a comprehensive Operating Procedure with respect to compliance with the Americans With Disabilities Act, pursuant to their Settlement Agreement, Section III.2.c. at page 15. 9. OP 720.5 Pharmacy Services a. Section IV.A.2. This provision, as revised, will state as follows: [Proper management of pharmaceuticals includes] [a] formalized process for obtaining non-formulary medications and a process for the prescribing physician to appeal denials of non-formulary prescriptions. b. Section IV.A.3. This provision, as revised, will state as follows: There is continuity of medication on intake, whenever clinically appropriate, as determined by the DOC physician. c. Section IV.A.9. This provision, as revised, will state as follows: Timing of medication administration is medically appropriate. Facility administration must coordinate medically necessary medication administration schedules with facility operation and offender movement schedules. d. Section IV.A.10. This provision, as revised, will state as follows: Prescription medications shall be administered according to the Virginia Regulations Governing the Practice of Pharmacy. This shall include, among other things, labels with patient name, drug name, instructions and expiration date. e. Section IV.A.11. 10 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 42 of 57 Pageid#: 4126 This new provision will state as follows: Provision should be made for medications to be delivered to offenders indoors during increment weather. 10. OP 730.2 Mental Health Services: Screening, Assessment and Classification a. Section III. A Definition for “Health-Trained Staff” has been added and will state as follows: Health-Trained Staff -- A DOC employee, generally a correctional officer, who has been trained to administer health screening questionnaires, including training as to when to refer an offender to health care staff and at what level of urgency. 11. OP 730.5 Mental Health Services: Suicide Prevention and Behavior Management a. Section V.G.1.-13. These provisions, as revised, will state as follows: 1. This operating procedure provides guidance whereby offenders may be restrained within a cell for clinical reasons as determined by a Qualified Mental Health Professional (QMHP), subject to consultation with a DOC physician or Ph.D.-level psychologist, after reaching the conclusion that less intrusive measures would not be successful. * c. * * Initial authorization is for up to 12 hours but the offender may be released earlier based on the recommendation of the QMHP or physician. * * * 5. When contact with a DOC physician or Ph.D.-level psychologist is not possible, the Facility Unit Head or Administrative Duty Officer may determine that an emergency exists and authorize temporary restraint of an offender within a cell until a DOC physician or Ph.D.-level psychologist can be contacted. 6. When a QMHP, subject to consultation with a DOC physician or Ph.D.level psychologist, considers it necessary for an offender to be restrained beyond 12 hours, the clinician will advise the Warden. * * * 11 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 43 of 57 Pageid#: 4127 7. At the 12-hour mark, an Incident Report Addendum will be completed by the Warden documenting either approval for continued restraints or disapproval and the offender’s release from restraints. 8. If the clinician recommends that restraints be continued beyond 24 hours, the Warden will be advised and will contact the Regional Administrator for approval. If the Regional Administrator approves the request, s/he will notify the Regional Operations Chief. 9. At the 24-hour mark, an Incident Report Addendum will be completed by the Warden documenting either the approval of continued restraints or disapproval and the offender’s release from restraints. 10. When an offender is going to be restrained in excess of 24 hours, the QMHP, subject to consultation with a DOC physician or Ph.D.-level psychologist, will: a. Notify the Regional Mental Health Clinical Supervisor (MHCS) via telephone and via e-mail, attaching the most recent Mental Health Monitoring Reports 730_F14, progress notes, and any other related documentation as to why the offender was initially placed in restraints and why restraints are recommended beyond 24 hours. b. Update the MCHS every day that the offender remains in restraints. 11. When an offender is going to be restrained in excess of 24 hours the Mental Health Clinical Supervisor will notify the Chief of Mental Health and provide an update every day that the offender remains in restraints. 12. An offender may not be restrained beyond 48 hours without the approval of Regional Administrator, Regional Operations Chief, Chief of Corrections Operations, and the Chief of Mental Health. 13. Approved Restraints * iii. b. * * Medically ordered restraints are limited to Humane Restraints. This requirement does not preclude the use of metal restraints by security when Humane Restraints have proven ineffective due to an offender’s behavior or prior history. The offender’s wrists and/or ankles will be wrapped in gauze or adhesive tape by medical staff prior to metal restraints being applied. Section V.G.18. This provision, as revised, will state, in pertinent part, as follows: 12 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 44 of 57 Pageid#: 4128 A nursing or other qualified medical person, when on duty at the Facility, will examine the offender as soon as possible after restraints have been initially applied, and at any time when they are reapplied, to ensure that circulation is adequate. Health-trained staff or health services nurses shall monitor and document vital signs at least every two hours. Medical personnel shall assure that the patient has adequate hydration, release for toileting, and release of limbs to prevent the development of blood clots. c. Section V.G.19. This provision, as revised, will state, in pertinent part, as follows: b. d. Health trained staff or health services nurses will directly observe the offender in restraints at least every fifteen minutes, and more often if necessary, as directed by the QMHP or physician. Documentation of the status checks, behaviors, etc., will be made on the Special Watch Log. 425-FS. Section VII.A.1. This provision, as revised, will state as follows: As legally appointed custodians of offenders, the DOC has a responsibility to provide for their health and safety. An offender who chooses to go on a hunger strike (i.e., refuses fluids and/or nutrition intake for five consecutive meals) presents a unique challenge to the orderly operation of a correctional facility due to extra demands placed on security staff, the necessary medical assessments and daily evaluations, increased psychological monitoring and administrative review. e. Section VII.B.1. This provision, as revised, will state as follows: The Shift Commander will notify medical staff, mental health staff and the Administrative Duty Officer after the offender’s declaration of a hunger strike and/or after the fifth consecutive missed meal as documented via the routine security checks. f. Section VII.B.9. This provision, as revised, will state as follows: Nursing staff shall visit the offender on a hunger strike daily, with measurement and recording of weight and vital signs. Nursing staff shall notify a physician if the offender is losing weight. 13 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 45 of 57 Pageid#: 4129 12. OP 740.1 Infectious Disease Control a. Section IV.A.2.-3. This provision, as revised, will state as follows: Each facility should establish and maintain a multidisciplinary team that includes clinical, security and administrative representatives and meets at least quarterly to review communicable disease and infection control activities. There is an effective program that includes surveillance, prevention and control of communicable disease. Among other things, this includes expedited access to prophylactic measures for high-risk exposures, such as blood exposures. b. Section IV.B.1. This provision, as revised, will state as follows: All workers who may come in contact with blood and other potentially infectious material in order to perform their jobs, especially Health Care Personnel (HCP) and offenders who work in health care areas, should routinely use barrier precautions to protect skin and mucous membranes. This includes the regular use of gloves, facemasks, face shields, eyewear, and gowns or aprons as needed. Disposables should be used, as much as possible, and discarded in an approved manner after each use. c. Section IV.C.1.d. This new provision will state as follows: Health care staff shall be trained on the urgency of evaluation and prophylactic treatment for high-risk exposures. d. Section IV.M.4.a. & c. This new provision will state as follows: An offender exposed should be evaluated as to whether the exposure was “high risk.” In the case of a high-risk exposure, the exposed offender should be directed to a facility for evaluation and prophylactic treatment, immediately and no longer than within a few hours after the exposure. There is a very small window of opportunity to prevent the development of HIV infection and/or viral hepatitis in an exposed person. 13. OP 810.1 Offender Reception and Classification a. Section III A Definition for “Health-Trained Staff” has been added and will state as follows: 14 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 46 of 57 Pageid#: 4130 Health-Trained Staff -- A DOC employee, generally a correctional officer, who has been trained to administer health screening questionnaires, including training as to when to refer an offender to health care staff and at what level of urgency. 15 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 47 of 57 Pageid#: 4131 APPENDIX 2 Case Document 221-1 Filed 09/15/15 Page 48 of 57 Pageid#: 4132 SUBJECTS FOR COMPLIANCE MONITOR’S PERFORMANCE MEASURING TOOLS As contemplated by Section III.2.d. of the parties’ Settlement Agreement, the Compliance Monitor shall develop Performance Measuring Tools for utilization in evaluating the Defendant’s performance and satisfaction of its obligation to provide constitutionally-adequate medical care at FCCW. Those Tools will have as their focus the following subjects, as previously identified by the parties in Section 2 of their November 25, 2014 Memorandum of Understanding: 1. Provider staffing levels 2. Intake screening of offenders 3. Comprehensive health assessments 4. The Sick Call Process/Access to Health Services 5. Offender’s Co-Pay Policy 6. Diagnosis and Treatment of Offender Illnesses 7. Response to medical emergencies/Emergency Medical Care 8. Infirmary Conditions and Operations 9. Chronic Care 10. Infectious disease control/Infectious waste management 11. Utilization Management a. Timely referrals to outside providers of specialized care b. Access to non-formulary medications 12. Medication administration 13. Continuity in supply and distribution of Medical Equipment 14. Follow-up care in accordance with outside specialists’ instructions 15. Physical therapy Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 49 of 57 Pageid#: 4133 16. Offender Grievance Process (Medical care issues) 17. Offender access to information regarding diagnosis and treatment 18. Reasonable accommodations for disabilities and special needs 19. Guidance/training of Correctional Staff 20. Care/release of terminally-ill offenders 21. Conduct of and follow up regarding Mortality Reviews 22. Continuous Quality Improvement protocols 23. Contractor oversight by VDOC 2 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 50 of 57 Pageid#: 4134 APPENDIX Case Document 221-1 Filed 09/15/15 Page 51 of 57 Pageid#: 4135 NICHOLAS SCHARFF M.D. 252 Hathaway Lane Wynnewood PA 19096 Phone: 610-299-8075 Fax: 610-642-0438 [email protected] ______________________________________________________________________________________ SUMMARY General internist with extensive patient care and administrative experience in private practice, public health, and corrections, now retired from the Pennsylvania Department of Corrections and working part-time as a correctional physician and consultant in correctional medicine and health care administration. MEDICAL LICENSURE Pennsylvania Medical Physician & Surgeon, MD017314E Delaware Physician M.D., C1-0010760 U.S. Drug Enforcement Agency Practitioner, BS0440719 Delaware Controlled Substance Registration, DR-0009851 expires 12/31/2014 expires 03/31/2015 expires 02/29/2016 expires 06/30/2015 PROFESSIONAL EXPERIENCE LAW DEPARTMENT, CITY OF PHILADELPHIA 2014-present Medical Contract Monitor, Philadelphia Prison System. Inspection of procedures and outcomes in the medical program. Semi-annual inspections and ongoing involvement with PPS and contractor quality assurance/quality improvement personnel. 2014-present CORRECT CARE SOLUTIONS Correctional Physician, Howard R. Young Correctional Institution, Wilmington, DE. Medical assessment and treatment of sentenced and un-sentenced inmate patients; routine periodic evaluation, acute and chronic care. 3-6/2014 Correctional Physician, State Correctional Institution, Graterford, PA. Medical assessment and treatment of sentenced inmate patients including routine periodic evaluation, acute, and chronic care. 1/2015-present State Medical Director, Acting, part-time, Lemoyne, PA. Assist CCS Regional Vice President and PA DOC Chief of Clinical Services in administration of correctional medical services in Pennsylvania prisons. 6/2015-present COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS Chief of Clinical Services, Bureau of Healthcare Services. Responsibility for oversight, quality assurance/quality improvement, and policy for medical care, psychiatric care, dentistry, including policy revision, program planning, and program evaluation. Primary liaison to the Secretary of Corrections, the rest of the Department of Corrections, and other 04/2004-12/2013 2006-2013 Nicholas Scharff Resume 150813 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 52 of 57 Pageid#: 4136 NICHOLAS SCHARFF MD Page 2 agencies in Pennsylvania government. Assistant Medical Director, Bureau of Healthcare Services. Responsibility for oversight of adult medical care programs as provided by medical care contractor, quality assurance/quality improvement programs, infection control program; participation in policy revision, program planning, and program evaluation. 2004-2006 SOCIETY FOR CORRECTIONAL PHYSICIANS 2011-2013 2013 Board of Directors, Chairman of Policy Committee STAR CENTER FOR SENSORY THERAPIES AND RESEARCH, GREENWOOD, CO. Board of Directors 2012-present ZUBROW KERSHBAUM COHEN MD PC Private practice of internal medicine at Pennsylvania Hospital in Philadelphia. Practice sold in 1997 to the Benjamin Franklin Clinics of the Pennsylvania Hospital, which was in turn subsumed into the Clinical Care Associates of the University of Pennsylvania Health System in 2000. 1981-2003 Teaching rounds Pennsylvania Hospital one or two months annually, rounding with a team of interns, residents, and students. 1977-2003 Journal Club for internal medicine residents, Pennsylvania Hosptial, weekly. 2003-present Chairman, Tissue Utilization and Transfusion Committee of the Professional Staff of the Pennsylvania Hospital. 1986-89 Executive Committee of the Professional Staff of the Pennsylvania Hospital 1993-94 Secretary, Board of Directors, Pennsylvania Hospital PHO 1994-97 Chair Credentialing Committee, 1995-97 Chair Provider Services Committee 1996-97 CORRECTIONAL MEDICAL CARE, INC. 2001-2003 Corporate Medical Director. Oversight of clinical services provided by corporate Staff, clinical activities of Medical Audit, Pharmacy & Therapeutics, Quality Assurance, and Utilization Review committees, and Risk Management program; screening and credentialing of medical professionals; final level of clinical appeals in grievance system; participation in continuing education and patient education programs. AMERICOR, INC. 2003 Vice-president for Medical Affairs. Oversight of clinical services provided by corporate staff, clinical activities of Medical Audit, Pharmacy & Therapeutics, Quality Assurance, and Utilization Review committees, and Risk Management program; screening and credentialing of medical professionals; final level of clinical appeals in grievance system; participation in continuing education and patient education programs. Nicholas Scharff Resume 150813 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 53 of 57 Pageid#: 4137 NICHOLAS SCHARFF MD Page 3 DEPARTMENT OF PUBLIC HEALTH, CITY OF PHILADELPHIA Medical Director, Family Medical Care Services. Physician recruitment and oversight for seven District Health Centers providing comprehensive outpatient care throughout the City of Philadelphia. Consultation with the Director of Family Medical Care, and coordination with other categorical programs in the Department of Public Health. Instituted a Quality Assurance Program. Medical Advisory Committee, Quality Assurance Committee, HealthPASS, an early Medicaid HMO serving patients in Southwest Philadelphia. I represented Family Medical Care Services on the Medical Advisory Committee, which became the Quality Assurance Committee. EIGHTH AND SPRUCE MEDICAL ASSOCIATES OF THE PHILADELPHIA HEALTH PLAN 7/81-6/85 1982-85 7/77-7/81 GROUP MEDICAL DIRECTOR at Pennsylvania Hospital, negotiated annual capitation agreements with participating specialist physicians, supervised and represented Group physicians in our own negotiations with the Board and administration. Member, Board of Directors of Philadelphia Health Plan, representing Eighth and Spruce Medical Associates. U.S. Peace Corps, Nepal Community development volunteer in a rural district in the Western Hills., speaking predominately Nepali, in which I am still fairly fluent; worked for the Home Ministry in a training-program for members of newly-constituted Village Councils teaching the essentials of their new form of government. Extended service for a third year in Kathmandu at program headquarters in the Ministry of Home Panchayat, developing teaching aids concerning village health and sanitation practices. 6/66-6/69 EDITORIAL EXPERIENCE Hospital Physician, editorial board Journal of Correctional Health Care, reviewer 2002-2009 2003-2004 PUBLICATIONS Larney S, Mahowald M, Scharff N, et al., “Epidemiology of Hepatitis C Virus in Pennsylvania State Prisons, 2004-2012: Limitations of 1945-1965 Birth Cohort Screening in Correctional Settings,” Am J Public Health 104(6):e69-e74. PRESENTATIONS Nicholas Scharff Resume 150813 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 54 of 57 Pageid#: 4138 NICHOLAS SCHARFF MD Page 4 Montgomery County Correctional Facility, Montgomery County, Pennsylvania, presentation to the Board of Directors: “Responding to Hepatitis C” 2/13/03 Centers for Disease Control and Prevention, Division of Viral Hepatitis: “Viral Hepatitis: Considerations for Jails” presented at a Consultancy on Management of Viral Hepatitis in Jails, Atlanta, Georgia 7/14/03 Johns Hopkins Bloomberg School of Public Health, "Corrections and Public Health" in Contemporary Issues in Public Health ( 550.862.81). 2/21/05 Johns Hopkins Bloomberg School of Public Health, “Remarks on Mid-Career MPH Training and the Distance Learning Program” 5/2005 PA Mid-Atlantic AIDS Education and Training Center, “Medical Challengfes in an Aging Prison Population” 6/12/2006 Pennsylvania Viral Hepatitis Conference, “Hepatitis B & C: Case Management Strategies” 11/17/06 St. Joseph’s Hospital, Reading, PA, “Correctional Health and Health Care” 11/20/06 American Correctional Association Meeting, Tampa, FL, “Meeting Community Standards” and “Immunization Program in the Pennsylvania DOC.” 1/20/2007 Pennsylvania Hospital Medical Grand rounds, “Corrections and Correctional Health” 1/14/2008 Penn Presbyterian Hospital Global Health Group, Philadelphia, “Correctional Health Care” 9/2008 and annually since National Commission for Correctional Health Care Leadership Institutes, “Quality Improvement and Managing Change.” Using a quality improvement program to create and sustain a culture of change. 7/2009-14 University of Pennsylvania School of Nursing, Philadelphia, “Corrections and Correctional Health” 8/2012 PA DOC Crisis Intervention Training, “Confusion and Behavior: Beyond Mad and Bad” at Crisis Intervention Training course for correctional personnel, presented approximately every 2 months. 10/2012 – 12/2014 National Commission for Correctional Health Care Leadership Institutes, “Infecton Control in the Correctional Setting.” Organizing and deploying an infection control program for prisons, jails, and correctional systems. 7/2014 EDUCATION AND TRAINING Johns Hopkins Bloomberg School of Public Health Master of Public Health. 6/00-5/03 The Pennsylvania Hospital, Philadelphia, Pennsylvania Internship and Residency, internal medicine. 6/74 -7/77 Columbia University College of Physicians and Surgeons 1970 –74 Doctor of Medicine. Yale University Nicholas Scharff Resume 150813 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 55 of 57 Pageid#: 4139 NICHOLAS SCHARFF MD Page 5 1962 –66 Bachelor of Arts in English Literature. Nicholas Scharff Resume 150813 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 56 of 57 Pageid#: 4140 NICHOLAS SCHARFF MD Page 6 Legal Depositions and Trial Experience since 2004 Estate of Joseph Robinson v. a Dr. Bober, Atlantic County; Deposed and testified June-July 2006 6/2006 Estate of Travis Magditch v. Lehigh County et al., Lehigh County, No. 2012-C-5428 BOARD CERTIFICATIONS 3/2015 American Board of Internal Medicine 1977-present Nicholas Scharff Resume 150813 Case 3:12-cv-00036-NKM Document 221-1 Filed 09/15/15 Page 57 of 57 Pageid#: 4141 EXHIBIT 2 Case Document 221-2 Filed 09/15/15 Page 1 of 7 Pageid#: 4142 U. S. Court Ordered Legal Notice to All Women Held at FCCW Notice of proposed settlement of lawsuit about inadequate medical care at Fluvanna Correctional Center for Women The Virginia Department of Corrections (VDOC) has agreed to settle a class action lawsuit about conditions in the Fluvanna Correctional Center for Women (FCCW). Five women filed the lawsuit in July 2012. They said the inadequate medical care services at Fluvanna prison violated the 8th Amendment to the U.S. Constitution’s ban on cruel and unusual punishment. These officials in the Department of Corrections are involved in the suit: Director, Harold Clarke; Director of Operations, David Robinson; Medical Services Director, Fred Schilling; and the Fluvanna Warden. During the whole case, the DOC has denied that it or its contractors failed to provide adequate care. This notice describes (1.) the lawsuit; (2.) the proposed terms of Settlement; and (3.) your legal rights. It tells you how to object if you disagree with the Settlement. 1. Background on the suit. The lawsuit asked the federal court to order DOC to provide adequate medical care under the U.S. Constitution. The lawsuit does not involve money damages, so whether this case settles or goes to trial, no woman will obtain money from VDOC. Nothing in the Proposed Settlement prevents you from filing a separate lawsuit for money against VDOC. The class. U. S. District Court Judge Norman Moon approved the case as a class action. The class is all women at Fluvanna, now or in the future, who have asked for or will ask for medical care for serious medical needs. If the Court approves this Settlement, this Settlement will affect your rights. Court rulings. On November 20, 2014, Judge Moon ruled: a. As a class, the women at FCCW suffer from, or may in the future suffer from, “serious medical needs.” b. A number of the women who sued and other members of the class fully exhausted the Offender Grievance Procedure and had a right to bring this lawsuit for a class of prisoners. c. The VDOC cannot delegate its duty to provide constitutional medical care to a private contractor. VDOC must ensure adequate care for serious medical needs. d. The facts did not support VDOC’s argument that it had provided constitutional care. Preliminary agreement. Just before the trial set for December 1, 2014, the women who filed the suit and the VDOC agreed to reach settlement through negotiations on standards Case 3:12-cv-00036-NKM Document 221-2 Filed 09/15/15 Page 2 of 7 Pageid#: 4143 for health care at FCCW. With their lawyers, the women decided that an agreement (1.) allowed changes to more types of inadequate medical care than would a trial; and (2.) medical care could improve much faster than waiting for a court order after trial and possible appeals. These could take 18 months or longer. The women had advice from Dr. Robert Greifinger, a national expert on prison medical care. 2. Proposed terms of settlement. The women and the VDOC have proposed an Agreement that will, if approved by the Court, settle this case. A summary of the Settlement follows: a. VDOC will provide constitutionally adequate medical care. b. VDOC’s Operating Procedures about medical care at FCCW will change. VDOC has agreed to changes in the medical Operating Procedures for FCCW as recommended by the women’s and VDOC’s medical experts. Highlights of the changes are: i. Medical staff will be adequate to provide timely evaluation and treatment. ii. Intake screening will be done so that urgent health needs are met. Patients on medicine for acute or chronic conditions at time of intake will have continuity of medication. iii. Sick call requests for non-emergency care will be screened for urgency within 24 hours. Women with urgent problems or worsening chronic conditions should see a physician or nurse practitioner in less than 72 hours. iv. Co-pays. All medical co-pays will be suspended for 6 months. After 6 months, co-pays will start again. No co-pays will be charged for medications for chronic conditions, emergency care, or treatment of communicable diseases (e.g., MRSA, HIV, and HCV). Co-payments will not be charged until the service is performed or the first dose of ordered medication is provided. Whether any co-pays will be charged for wheelchairs, walkers, prosthetics, or for medical equipment that FCCW provides to woman to accommodate disabilities, will be determined by negotiations between the Plaintiffs’ counsel, the VDOC’s counsel and the Compliance Monitor. v. Diagnosis and Treatment. Access to medical care will include adequate pain management for acute and chronic conditions. Guidelines for treatment of Hepatitis B and C, soft tissue infections (MRSA) and urinary tract infections have been updated. Physical Therapy will be available on-site or off-site, as prescribed by the patient’s physician. 2 Case 3:12-cv-00036-NKM Document 221-2 Filed 09/15/15 Page 3 of 7 Pageid#: 4144 Women may speak confidentially with medical providers at FCCW and in hospitals. Security staff may watch but will be out-of-hearing range, and shall otherwise maintain the confidentiality of the communications. vi. Medicines will be given on time. Continuity of medicines and renewal of prescriptions will occur when clinically appropriate. Pill line will occur indoors during bad weather. Morning pill call will be no earlier than 5:30 a.m. vii. Chronic Care patients with conditions such as hypertension, diabetes, cancer and other diseases will be monitored every 6 months if their condition is controlled and stable. If not, they will be monitored at least every 3 months. viii. Medical Equipment/Supplies (prostheses, wheelchairs, adult diapers, bandages, etc.) will work, and supplies will be ordered, maintained and provided for daily use, as medically necessary. ix. Medical Emergency response will be timely. Emergency medications, supplies and equipment will be maintained and readily available. vii. Infirmary care will include infectious disease control; sanitation and hygiene; privacy; heat and hot water; functioning medical equipment; and adequate staffing. Infirmary patients will have access to recreation and programming, unless limited by their medical conditions. ix. Referrals to specialists will be timely. New referrals should happen within 30 days. If it takes more than 30 days to get an appointment, a physician will examine the patient at least monthly. Any decision to refuse to follow or to amend the outside specialists/consultants’ recommendations will state reasons in writing and will be placed in the medical record. x. Access to Medical Information. Women will timely receive written results of laboratory and diagnostic tests and the recommendations of consulting doctors, including after hospital treatment. The first copy will be free. Women will have access to the changes in written medical standards agreed to in this Settlement, including the Operating Procedures, the Guidelines and the Monitor’s tools for measuring performance, except where confidential under Virginia law. Copies will be available in several places at the prison. xi. The Medical Grievance Process will include logging of grievances, regular analysis of the number and topics of filed grievances to identify trends or systemic problems. Staff will respond to grievances in a meaningful and timely manner. 3 Case 3:12-cv-00036-NKM Document 221-2 Filed 09/15/15 Page 4 of 7 Pageid#: 4145 xii. Accommodations for Disabilities. FCCW will make reasonable accommodations for women with physical and mental disabilities. These will include medical and mental health care, physical plant accommodations, medication, and protection from heat injury, skilled nursing care, and programming. Women with disabilities will have access to medical services in Building 2 and wheelchair access in dining halls. Staff will not discipline women for their disabilities. Women will be provided toilet access, consistent with their medical needs as determined by a medical practitioner. Medical profiles for use of bottom bunks will be available to pregnant women and others whose physical disabilities or illnesses make climbing to an upper bunk infeasible. xiii. Terminally-Ill women will have a program at FCCW to address their needs including palliative care, pain management, and voluntary hospice care. Staff will recommend transfer or early release where medically appropriate. xiv. Mortality Reviews. Within 30 days of a death, the Medical Director will complete a review of the care provided, including whether the death was preventable and how the care might have been improved. 3. A Compliance Monitor will measure compliance with new standards. Dr. Nicholas Scharff will be the Compliance Monitor who decides if health care at FCCW is adequate. He will visit FCCW regularly to evaluate whether the medical care meets the agreed upon standards. He will examine all parts of medical care at FCCW, including medical records and grievances. He can meet with any woman, or medical and security employees. All talks with the Monitor will be confidential, but security staff may watch out-of-hearing distance unless the Monitor requests otherwise. No woman may be retaliated against because of talking with or writing the Monitor. The Compliance Monitor will write a report about the status and quality of the medical care each time he goes to FCCW. He will rate the medical care as non-compliant, partially compliant, or fully compliant with the standards. Women’s privacy will be protected in the reports. The Monitor will give a draft report to the lawyers for the women and to VDOC. Each side may make suggestions for changes in the draft. The Monitor’s final reports will be public information. Women may read the reports at the FCCW prison library. 4. The class may enforce the Agreement in the U.S. District Court. If the Monitor finds any part of the medical care to be constitutionally inadequate, he will give VDOC 30 days to fix the problem. If the women notify their lawyers of constitutionally 4 Case 3:12-cv-00036-NKM Document 221-2 Filed 09/15/15 Page 5 of 7 Pageid#: 4146 deficient medical care, the women’s lawyers may also give DOC notice in writing. Then DOC has 30 days to fix the problem. This does not replace the need for you to continue to use the grievance process. If DOC does not fix a problem in 30 days, whether it was brought to VDOC’s attention by the Monitor or by Plaintiffs’ counsel, the women’s lawyers may ask the Judge to order DOC to comply with the Constitution and/or the Settlement Agreement, or to hold DOC in contempt of court, or both. If a medical emergency poses a substantial threat of immediate harm, the women’s lawyers do not have to give DOC 30 days’ notice before going to court. Agreement terminates. The Agreement will be in effect for at least 3 years unless the parties determine otherwise. After that, it will end when the Monitor finds that DOC has provided medical care which is constitutionally adequate on a consistent basis for at least 1 year. Information sheet. If the Judge signs the Agreement, all women at Fluvanna and all future women who come to Fluvanna will get an Information Sheet about the standards for medical care and the other terms of the Settlement. 5. Attorneys’ fees and costs. As provided in the Settlement Agreement, the parties agree that, under the Civil Rights Attorneys’ Fees Award Act, their lawyers will get attorneys’ fees and the costs they spent conducting the suit. The women’s lawyers will give VDOC a list of hours and costs. If the amount of fees cannot be successfully negotiated, the women’s lawyers will ask the Judge to decide the amount of the fees and costs to award. If a Petition for Fees and Costs must be submitted to the Court for a ruling, the Plaintiffs will seek at least $2.3 million in fees and $150,000 in costs. 6. Your legal rights and options. a. If you agree, do nothing. If you agree with the Settlement, you do not have to do anything. As a class member, you will get all of the benefits of the improved medical care. b. If you object to the Settlement. If you think the Settlement is improper or unfair and want to tell the Court why it should not be approved, you must file an objection in writing. Objections must include: i. cv-00036; ii. iii. iv. The name and number of this lawsuit: Scott v. Clarke, Case No. 3:12Your full name, prisoner number and current address; What exactly you object to and why you object; Your signature. Mail the objection by ______________to 5 Case 3:12-cv-00036-NKM Document 221-2 Filed 09/15/15 Page 6 of 7 Pageid#: 4147 Clerk of the United States District Court 255 W. Main Street Charlottesville, Va. 22903 FCCW will give you paper, envelope and a stamp to write the Court. c. You can appear in the lawsuit through your own attorney. Any woman may obtain an attorney to appear on her behalf in this lawsuit, at her own expense. d. Fairness Hearing. After reviewing your comments, the Court will have a hearing on ___________, 2015, at _____a.m. in the Federal District Court in Charlottesville, Virginia, to decide whether to approve the Settlement Agreement. If the Judge finds that the Settlement Agreement is fair, adequate and a reasonable compromise, then the Settlement Agreement will become final. If the Judge does not approve the Settlement Agreement, it will be void, and the case will go to trial. However, if that happens, no one can assure that: (a.) any decision at trial will be in favor of the women; (b.) any favorable trial decision will be as good as the Settlement Agreement; or (c.) any decision after a trial would be upheld on appeal. e. How do I find out more? This summary does not cover all terms of the Proposed Settlement. If you want to read a full copy, you may ask Legal Aid to send you one or you may ask to see a copy at the prison library or prison law library. If you want more information or do not understand this Notice, contact: Brenda Castañeda, Esq. Legal Aid Justice Center 1000 Preston Ave., Ste. A Charlottesville VA 22903 By phone, 1-434-529-1849. You may call collect. By email at [email protected]. If more than 10 women ask for a legal visit about the Settlement, the Legal Aid lawyers can come to FCCW to meet with you in a group about the terms of the Settlement. Please do not call the U.S. District Court or the lawyers for the Department of Corrections. ______________ Date _______________________ U.S. District Judge 6 Case 3:12-cv-00036-NKM Document 221-2 Filed 09/15/15 Page 7 of 7 Pageid#: 4148 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA CHARLOTTESVILLE DIVISION CYNTHIA B. SCOTT, et al., Plaintiffs, v. HAROLD W. CLARKE, et al., Defendants. ) ) ) ) ) ) ) ) ) ) Case No. 3:12-cv-00036-NKM Sr. Judge Norman K. Moon PROPOSED ORDER GRANTING THE PLAINTIFFS’CONSENT MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT The Plaintiff Class (collectively, “the Plaintiffs”) and Defendants Harold W. Clarke, A. David Robinson, Frederick Schilling and Tammy Brown, each in their official capacities as representatives of the Virginia Department of Corrections (“the VDOC Defendants”), have agreed upon the substantive provisions of a Settlement Agreement. The Agreement seeks to resolve all of the Plaintiffs’ claims in the above-styled case regarding allegations of deliberate indifference to their serious medical needs while confined at the Fluvanna Correctional Center for Women (“FCCW”) in violation of the Eighth Amendment’s ban on cruel and unusual punishment. This Court certified a class under Fed. R. Civ. P. 23(b)(2) to include all women who currently reside or will in the future reside at FCCW and who have sought, are currently seeking or will seek adequate, appropriate medical care for serious medical needs, as required by the Eighth Amendment. (See ECF Dkt. 188). The Plaintiffs and the VDOC Defendants stipulate and agree that the prospective relief in the Settlement Agreement is narrowly drawn, extends no further than necessary to correct the violations of federal rights at FCCW as alleged by Plaintiffs in the Second Amended Complaint, Case 3:12-cv-00036-NKM Document 221-3 Filed 09/15/15 Page 1 of 10 Pageid#: 4149 is the least intrusive means necessary to correct these violations, and will not have an adverse impact on public safety or the operation of a criminal justice system. Based on the Court’s previous rulings certifying the Class, granting partial summary judgment for the Plaintiffs and denying summary judgment to the Defendants, as well as the Court’s initial review of the Settlement Agreement, and pending a final determination after a Fairness Hearing to be held in accordance with the class action notice and comment process set forth in Rule 23( e) of the Federal Rules of Civil Procedure, the Court hereby FINDS as follows: 1. The Plaintiff Class fully exhausted the administrative remedies available to them; 2. VDOC has a non-delegable duty under the Eighth Amendment to provide to all prisoners within its custody, including Plaintiffs, medical care that meets constitutionally minimum standards, without regard to whether day-to-day medical services are contractually provided; 3. The undisputed material facts establish that the original named Plaintiffs and several other members of the Class who offered sworn Declarations attesting to significant health problems have serious medical needs representative of the Class as a whole, which, absent treatment, could give rise to further significant injury and the unnecessary infliction of pain; 4. The Plaintiffs have presented ample evidence in their filings supporting class certification, their Motion for Partial Summary Judgment, and their response in opposition to the VDOC’s Motion for Summary Judgment, enabling a fact-finder to reasonably conclude that the VDOC Defendants are or have been deliberately indifferent to the serious medical needs of the Plaintiff class; 2 Case 3:12-cv-00036-NKM Document 221-3 Filed 09/15/15 Page 2 of 10 Pageid#: 4150 5. The proposed Settlement Agreement appears, upon preliminary review, to be (a) fair, adequate, and reasonable in light of the relevant factual, legal, practical, and procedural considerations of the Action, (b) free from collusion among the Plaintiffs and the VDOC Defendants to the detriment of class members, and (c) within the range of reasonableness to support possible final approval; 6. This Court has no reason to doubt the proposed Settlement Agreement’s fairness and adequacy; the Settlement Agreement has no obvious deficiencies; and the Settlement Agreement does not grant preferential treatment to the Plaintiff Class Representatives; and 7. The proposed Settlement Agreement does not violate the Constitution, any statute, or relevant jurisprudence. Rather, the prospective relief established by this Settlement Agreement is narrowly drawn, extends no further than is necessary to address and remedy the violations of federal rights alleged by the Plaintiffs in their pleadings in this action, is the least intrusive means necessary to correct these alleged violations, and will not have any adverse impact on public safety or the operation of the criminal justice system. See 18 U.S.C. § 3626(a) & (c). Accordingly, on this ______ day of _______________________, 2015, in the United States District Court for the Western District of Virginia, it is hereby ORDERED as follows: 1. The Court hereby grants the Plaintiffs’ Consent Motion for Preliminary Approval of the Settlement Agreement; 2. Exhibit 2 to the Plaintiffs’ Memorandum (Notice to All FCCW Prisoners About Settlement in Scott v. Clarke) is approved and shall be distributed as follows: 3 Case 3:12-cv-00036-NKM Document 221-3 Filed 09/15/15 Page 3 of 10 Pageid#: 4151 a. The VDOC Defendants shall, within seven (7) calendar days of entry of this Order, provide a written copy of the Notice of Proposed Settlement to each individual prisoner housed at the Fluvanna Correctional Center for Women. This shall include, but not be limited to, the providing a copy of the Notice to each prisoner housed in a maximum custody unit, in segregation, in the mental health units, in the infirmary or otherwise held in isolation. b. The VDOC Defendants shall, within seven (7) calendar days of entry of this Order, post a copy of the Notice in each general population housing unit, in the library, and in the law library, and shall ensure that the Notice remains posted until the Court makes its final determination on approval of the Proposed Settlement. At least five (5) copies of the Settlement Agreement, including all appendices, shall be available for review by prisoners in each of the prison libraries. Such copies shall be available for prisoners to inspect from at least 9:00 a.m. to 9 p.m., Monday through Saturday. c. Prisoners who are not permitted physical access to a library shall be allowed to check out a copy of the Settlement Agreement, including all appendices, upon request. d. The VDOC Defendants shall file and serve on Plaintiffs’ counsel a sworn declaration affirming that the notices were provided to each individual prisoner and published as required by the Court’s order. 4 Case 3:12-cv-00036-NKM Document 221-3 Filed 09/15/15 Page 4 of 10 Pageid#: 4152 3. The Plaintiffs’ counsel is authorized to meet with FCCW prisoners individually, or in groups if more than ten (10) request to meet with counsel, to answer questions and explain the details of the proposed Settlement. 4. Within seven (7) calendar days of entry of this Order, the VDOC Defendants shall mail the Notice and documents required by 28 U.S.C.A. § 1715 of the Class Action Fairness Act (CAFA) to the Attorney General of the United States. The VDOC Defendants shall file a Notice with the Court upon completion of the required CAFA mailings. 5. The Court schedules a Fairness Hearing for _______________ at __________ to determine whether the settlement of this action on the terms and conditions provided for in the proposed Settlement Agreement is fair, reasonable, and adequate and should be finally approved by the Court and whether to approve the request of Class Counsel for payment of attorneys’ fees and reimbursement of litigation costs; 6. Class Counsel shall file their Motion for attorneys’ fees and costs no later than 21 days before the Fairness Hearing if the parties are unable to reach a negotiated resolution. The VDOC Defendants shall make this Motion available for review by prisoners upon request. 7. All memoranda, affidavits, declarations, and other evidence in support of the request for final approval of the Settlement Agreement and Class Counsel’s request for approval of attorneys’ fees and costs shall be filed on or before ________________; 5 Case 3:12-cv-00036-NKM Document 221-3 Filed 09/15/15 Page 5 of 10 Pageid#: 4153 8. Any member of the Class may enter an appearance on his or her own behalf in this action through that class member’s own attorney (at the class member’s own expense), but need not do so. Class members who do not enter an appearance through their own attorneys will be represented by Class Counsel. 9. Any member of the Class may write to the Court about her opinions on the fairness of the proposed Settlement and/or the Plaintiffs’ Motion for attorney fees. The Court will consider the written communications of the class members when deciding whether to approve the Settlement. Comments regarding the fairness of the settlement must include the case name, Scott v. Clarke, and case number, at the top of the first page. A written comment must contain the author’s full name and include all objections and the reasons for them, and must be signed by the class member. Comments must be postmarked by __________________ and must be sent to the following address: Clerk of the Court United States District Court 255 West Main Street Room 101 Charlottesville, VA 22902 A Class Member who desires to comment but fails to comply with the abovedescribed objection procedure and timeline shall be deemed not to have objected, and that Class Member’s objections shall not be heard or considered at the hearing. 10. Alternatively, any Class Member who chooses to appear by a representative may appear at the Fairness Hearing to show cause why the proposed Settlement Agreement should or should not be approved as fair, reasonable, adequate, and in 6 Case 3:12-cv-00036-NKM Document 221-3 Filed 09/15/15 Page 6 of 10 Pageid#: 4154 good faith, and/or why the request of Class Counsel for approval of attorneys’ fees and costs should or should not be approved as fair and reasonable. However, no person shall be heard at the Fairness Hearing to contest the approval of the terms and conditions of the proposed Settlement Agreement or the fees and costs requested by Class Counsel, unless that person (a) has sent or delivered written objections and copies of any supporting papers and briefs so that they are received no later than _____________ to Class Counsel and counsel for the VDOC Defendants, and (b) has filed objections, papers, and briefs with the Clerk of the United States District Court for the Western District of Virginia, on or before the same date. 11. Any Class Member who does not submit an objection as provided in paragraphs 9 or 10 shall be deemed to have waived any objection to the Settlement Agreement that she may have and shall forever be forbidden from making any objection to the fairness, adequacy, or reasonableness of the Settlement, or to the attorneys’ fees and costs approved. 12. The Court may adjourn the Fairness Hearing from time to time without further notice other than to counsel of record and may approve the proposed Settlement Agreement and request for approval of attorneys’ fees and costs at or after the originally-scheduled Fairness Hearing. 13. The Court shall have continuing jurisdiction, during the term of this Settlement Agreement, to enforce the Agreement’s terms, and to enforce the Final Judgment. 7 Case 3:12-cv-00036-NKM Document 221-3 Filed 09/15/15 Page 7 of 10 Pageid#: 4155 ENTERED this _____ day of _______________, 2015. BY THE COURT: ________________________________________ UNITED STATES DISTRICT COURT JUDGE WE ASK FOR THIS: Mary C. Bauer, VSB No. 31388 ([email protected]) Abigail Turner, VSB No. 74437 ([email protected]) Brenda E. Castañeda, VSB No. 72809 ([email protected]) Angela Ciolfi, VSB No. 65337 ([email protected]) Erin M. Trodden, VSB No. 71515 ([email protected]) Ivy A. Finkenstadt, VSB No. 84743 ([email protected]) LEGAL AID JUSTICE CENTER 1000 Preston Avenue, Suite A Charlottesville, VA 22903 (434) 977-0553 and Deborah M. Golden (admitted pro hac vice) ([email protected]) Elliot Mincberg D.C. PRISONERS’ PROJECT OF THE WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, N.W. Suite 400 Washington, D.C. 20036 (202) 319-1000 8 Case 3:12-cv-00036-NKM Document 221-3 Filed 09/15/15 Page 8 of 10 Pageid#: 4156 and Theodore A. Howard (admitted pro hac vice) ([email protected]) WILEY REIN LLP 1776 K Street, N.W. Washington, D.C. 20006 (202) 719-7000 By: /s/Brenda E. Castañeda Attorneys for Plaintiffs 9 Case 3:12-cv-00036-NKM Document 221-3 Filed 09/15/15 Page 9 of 10 Pageid#: 4157 CERTIFICATE OF SERVICE I hereby certify that on this 15 day of September, 2015, a true and correct copy of this Proposed Order Granting the Plaintiffs’ Consent Motion for Preliminary Approval of Settlement was served electronically upon the following: Richard C. Vorhis, Esq. J. Michael Parsons, Esq. OFFICE OF THE ATTORNEY GENERAL Public Safety and Enforcement Division 900 East Main Street Richmond, VA 23219 ([email protected]) Attorneys for the Virginia Department of Corrections Defendants /s/Brenda E. Castañeda_______________ Brenda E. Castañeda Case 3:12-cv-00036-NKM Document 221-3 Filed 09/15/15 Page 10 of 10 Pageid#: 4158