2024.03.01 #118 and #118-1 Joint Mot. For Prelim. Approval of Settlement and Ex. 1 - Settlement Agreement

Case 1:21-cv-00005-NT Document 118 Filed 03/01/24 Page 1 of 21 PageID #: 967
UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MAINE
Bryan C. and Henry B. through their next friend )

Michael P. Dixon; Trent W. and Grayson M.
through their next friend Taylor S. Kilgore; and )
Neville H. through his next friend Sandra
Romano-Shain, for themselves and those similarly )
situated,
) Civil No. 1:21-cv-00005-NT
)
Plaintiffs,
)
v.
)
Jeanne M. Lambrew in her official capacity as
Commissioner of the Maine Department of Health and )
Human Services; and Todd A. Landry in his official
capacity as Director of the Maine Office of Child and )
Family Services,
)
)
Defendants.
JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION

SETTLEMENT, CERTIFICATION OF SETTLEMENT CLASS, AND
APPROVAL OF FORM AND MANNER OF CLASS NOTICE WITH INCORPORATED
MEMORANDUM OF LAW IN SUPPORT
The Parties have reached a class action settlement agreement to resolve this lawsuit. The
Settlement Agreement (Exhibit 1) is the result of almost two years of careful drafting and
negotiation between the Parties, collaborative mediation with the Honorable Magistrate Judge John
C. Nivison, and consultation with clients and subject matter experts.
The Parties hereby jointly move the Court to enter an order granting preliminary approval of
the Class Action Settlement Agreement, certifying the Class and appointing Class Counsel, setting a
hearing for final approval of the Class Action Settlement Agreement, and authorizing the form and
manner of the Notice of the Class Action Settlement (Exhibit 2). The Order would preliminarily
approve the Settlement Agreement and allow the Parties to direct notice to the Class to initiate the
final settlement approval process.
FACTS
I. OVERVIEW OF THE LITIGATION

Plaintiffs are hundreds of children who are or will be in Maine foster care custody and who
are or will be prescribed or administered one or more psychotropic medications while in state care.
In January 2021, after an extensive 22-month investigation, 1 Named Plaintiff children brought a
class action litigation through their adult Next Friends against the Commissioner of the Maine
Department of Health and Human Services (“DHHS”) and the Director of the Maine Office of
Child and Family Services (together, “Defendants”), in their official capacities only. See Initial
Compl., ECF No. 1; see also Second Am. Compl. (the “Complaint”), ECF No. 45. The Complaint
alleges Fourteenth Amendment substantive and procedural due process violations for the state’s
alleged inadequate monitoring and oversight of the administration of psychotropic medications to
1
See Declaration of Marissa C. Nardi of Children’s Rights (“Nardi Decl.”) ¶ 4. This investigation included a close
examination of Maine’s child welfare system and Defendants’ policies and practices regarding medical records, informed
consent, and secondary review. Id. During this investigation, Plaintiffs’ Counsel interviewed dozens of knowledgeable
people across the state; spent significant hours obtaining, compiling, and analyzing data, reports, and other relevant
information; and conducted a thorough review of First Circuit rulings on the applicable constitutional and statutory law.
Id.
1
children in foster care, and the Adoption Assistance and Child Welfare Act of 1980 (“AACWA”)
statutory violations for the state’s alleged failure to keep medical records up to date and to timely
deliver them to each foster care placement. Complaint, ECF No. 45 ¶¶ 280-85, 294-97. Plaintiffs
sought declaratory and injunctive relief to remedy these alleged issues by implementing systemic
practices and policies to ensure: (1) maintenance and timely dissemination of up-to-date medical
records; (2) a meaningful informed consent procedure for psychotropic medications; and (3) a
secondary review system to guard against outlier and high-risk prescription practices before and after
psychotropic medication is prescribed. Id. ¶ 298. Defendants disputed the allegations and moved to
dismiss the Complaint in April 2021 (ECF No. 25), which Plaintiffs opposed that May (ECF No.
36). The Court ultimately allowed the litigation to proceed past the motion to dismiss phase with all
causes of action intact. See Order on Defs.’ Mot. to Dismiss, ECF No. 43.
The Parties then engaged in months of discovery that allowed them to understand the scope
of the issues and ultimately craft solutions. See Nardi Decl. ¶ 6. The discovery included substantial
written discovery. Id. Both Parties propounded and responded to dozens of requests for production
and interrogatories. Defendants produced thousands of pages of the state’s Named Plaintiff case
files and additional documents in Defendants’ possession about Defendants’ policies and practices,
which Plaintiffs reviewed. Id. In turn, Plaintiffs reviewed and produced thousands of pages of other
documents concerning the Named Plaintiffs and Next Friends in Plaintiffs’ possession. In addition,
the three Next Friends sat for depositions, and Plaintiffs worked on the development of expert
reports. Id.
In early 2022, while continuing with active discovery, the Parties initiated settlement
negotiations under the direction and guidance of Judge Nivison. See Order Setting Settlement
Conference, ECF No. 67 (February 9, 2022 order setting an initial settlement conference before
Judge Nivison on April 11, 2022). In March and April 2022, the Parties exchanged terms sheets and
2
prepared detailed mediation statements for Judge Nivison. See Nardi Decl. ¶ 7. Starting in April
2022, the Parties began mediating with Judge Nivison on a monthly or roughly bi-monthly basis
while continuing with discovery. Id. 2 In July 2022, the Parties agreed to a stay of the litigation to
focus all their efforts on mediation. See Order Staying Case, ECF No. 88. Over the next year and a
half, the Parties participated in 10 joint sessions with Judge Nivison. See ECF Nos. 72, 80, 87, 94, 99,
103, 106, 108, 112, and 114 (minute entries reflecting settlement conferences held with Judge
Nivison). During this same time, the Parties engaged in countless direct discussions. See Nardi Decl.
¶¶ 7-8. The Parties also had individual and joint meetings with subject matter consultants with
knowledge of psychotropic medication oversight as well as national and local prescribing practices.
See id.; see also Ex. 1, Settlement Agreement § II.
After successfully completing negotiations of all substantive and structural elements of the
Settlement Agreement, all Parties executed the Settlement Agreement on March 1, 2024. See Ex. 1,
Settlement Agreement.
II. SUMMARY OF THE SETTLEMENT AGREEMENT

The Settlement Agreement resolves all claims against Defendants brought by Plaintiffs on
behalf of a proposed Settlement Class. It explicitly contemplates resolution of the pending claims,
with the Court retaining jurisdiction for purposes of enforcing the terms of the Settlement
Agreement. Ex. 1, Settlement Agreement §§ IV.1.B, 4.B. Plaintiffs continue to believe that their
substantive and procedural due process and AACWA claims are meritorious. Defendants continue
to believe that they would prevail in a trial on the merits. But both sides recognize the risks, burdens
and uncertainties inherent to litigation.
2See also Decl. of John A. Woodcock in Supp. of Pls.’ Opp’n to Defs.’ Mot. for a Protective Order, ECF No. 85 (reflecting
discovery exchanged in the first half of 2022 and describing a dispute that arose related to the discovery).
3
Above all, the Settlement Agreement shows that the Parties share significant common
ground: a joint commitment to ensuring that all children in foster care in Maine safely receive the
medical and mental health care they need, and that relevant actors in the foster care system oversee
(or have an opportunity to raise issues regarding) the administration of psychotropic medications. As
a result, the Settlement Agreement addresses – in a detailed and specific manner – the issues raised
in the Plaintiffs’ Complaint. The commitments in the Agreement include:
• Timely preparation and dissemination of a portable health record upon placement that
moves with the child from placement to placement and is routinely updated with critical
medical, mental health, and behavioral health information – which will be gathered from
improved collection and appointment procedures as well as incorporated into the child’s
case plan. Ex. 1, Settlement Agreement § III.1.
• The creation of an informed consent process that includes all classes of psychotropic
medication, informed consent by designated adults and by youth ages 14 or older, including
a process to be heard in the event of a dispute, education and training to staff and resource
parents, procedures for emergencies, and a detailed informed consent form including critical
information. Id. § III.2.
• The creation of a psychiatric Clinical Review Team to conduct reviews – including both
prospective reviews of psychotropic medications before they are administered and
retrospective reviews after they are administered. Id. § III.3.
ARGUMENT
III. THE COURT SHOULD PRELIMINARILY APPROVE THE SETTLEMENT

AGREEMENT
1. Legal Standard for Preliminary Approval of a Class Action Settlement Agreement
“The claims, issues, or defenses of a certified class — or a class proposed to be certified for
purposes of settlement — may be settled . . . only with the court’s approval.” FED. R. CIV. P. 23(e);
see also Ex. 1, Settlement Agreement § IV.4.A. (agreeing to jointly seek class certification for
settlement purposes). This Court has explained that “[u]nder Federal Rule of Civil Procedure 23(e), a
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two-step notice-then-approval procedural framework applies to [evaluating] proposed class
settlements.” Anderson v. Team Prior, Inc., No. 2:19-cv-00452-NT, 2022 WL 1156056, at *5 (D. Me.
Apr. 19, 2022) (Torresen, J.). First, counsel submits the terms of the proposed settlement to the
court, as the Parties have done herein, and the court makes a preliminary fairness evaluation of the
settlement. See Manual for Complex Litigation, Fourth, § 21.632. Second, if preliminary approval is
granted, the court directs issuance of the notice of the settlement, solicits comments and objections
from class members and interested parties, and holds a formal fairness hearing to determine whether
the proposed settlement is fair, reasonable, and adequate. Id. §§ 21.633-35.
During this first stage of the settlement approval process, “the court’s role is limited to
deciding ‘whether the proposed settlement appears to fall within the range of possible final
approval.’” Michaud v. Monro Muffler Brake, Inc., No. 2:12-cv-00353-NT, 2015 WL 1206490, at *8 (D.
Me. Mar. 17, 2015) (Torresen, J.) (citation omitted). Therefore, at this time, the Court reserves “its
determination as to the proposed settlement’s fairness, reasonableness, and adequacy until after the
fairness hearing.” Id. Instead, the Court “direct[s] notice [and preliminarily approves the settlement]
if ‘giving notice is justified by the parties’ showing that the court will likely be able to’ approve the
settlement proposal and certify the class for purposes of judgment on the proposal.” Anderson, 2022
WL 1156056, at *5. This Court has found that “[a] proposed settlement of a class action may be
given preliminary approval where it is the result of serious, informed, and non-collusive
negotiations, where there are no grounds to doubt its fairness and no other obvious deficiencies
(such as unduly preferential treatment of class representatives or of segments of the class, or
excessive compensation for attorneys), and where the settlement appears to fall within the range of
possible approval.” Id. (quotation marks and citations omitted). “If the parties negotiated at arm’s
length and conducted sufficient discovery, the [] court must presume the settlement is reasonable.”
5
In re Pharm. Indus. Average Wholesale Price Litig., 588 F.3d 24, 32–33 (1st Cir. 2009) (citing City P’ship
Co. v. Atl. Acquisition Ltd. P’ship, 100 F.3d 1041, 1043 (1st Cir. 1996)).
In addition, determinations regarding the reasonableness of a settlement agreement should
be made in light of the “strong public policy in favor of settlements.” See P.R. Dairy Farmers Ass’n. v.
Pagan, 748 F.3d 13, 20 (1st Cir. 2014) (quotation marks and citation omitted). The First Circuit has
stressed the “great favor” that settlement agreements enjoy with the courts “as a preferred
alternative to costly, time-consuming litigation.” Fid. & Guar. Ins. Co. v. Star Equip. Corp., 541 F.3d 1,
5 (1st Cir. 2008) (quotation marks and citation omitted). This is particularly true for class action
lawsuits such as this one, affecting hundreds of children. See, e.g., In re Tyco Int’l, Ltd. Multidistrict Litig.,
535 F. Supp. 2d 249, 259 (D.N.H. 2007).
2. The Settlement Agreement Should be Preliminarily Approved

The Parties’ Settlement Agreement should be preliminarily approved and the Court should
direct notice to the Class based on a finding that it will likely be able to approve the Proposed
Settlement as fair, reasonable, and adequate. Miller v. Carrington Mortg. Servs., LLC, No. 2:19-cv-
00016-JDL, 2020 WL 2898837, at *4 (D. Me. June 3, 2020), R. & R. adopted, 2020 WL 3643125
(July 6, 2020) (describing first- and second-step procedures under Rule 23(e)). The proposed
Settlement meets that standard because (i) “the class representatives and class counsel have
adequately represented the class”; (ii) “the proposal was negotiated at arm’s length”; (iii) “the relief
provided for the class is adequate, taking into account” factors including, “the costs, risks, and delay
of trial and appeal”; and (iv) “the proposal treats class members equitably relative to each other.”
FED. R. CIV. P. 23(e)(2). The discovery conducted prior to settlement negotiations, extensive arm’s
length mediation process overseen by Judge Nivison, and the risks and expenses inherent in
proceeding to trial all point to a “serious, informed, non-collusive” and fair Settlement Agreement.
Anderson, 2022 WL 1156056, at *5 (citation omitted).
6
First, the Class representatives and Class Counsel have adequately represented the proposed
Settlement Class. After litigating Defendants’ motion to dismiss in 2021, the Parties engaged in
formal discovery in 2022. See Nardi Decl. ¶ 7; see also Scheduling Order, ECF No. 56. Discovery
began with the production of thousands of pages of documents by each side in connection with
their respective initial disclosures. Thereafter, the Parties exchanged tens of thousands of documents
in response to document requests as well as interrogatory responses. While Defendants completed
the depositions of the three named Next Friends, the Parties litigated a discovery dispute regarding
the scope of non-party information to which Plaintiffs were entitled in response to their document
requests. See, e.g., Defendants’ Motion for Protective Order, ECF No. 79. The Parties engaged in
multiple meet and confer sessions during the course of discovery, with Defendants supplementing
one production, and Plaintiffs providing two supplemental responses to Defendants’ Requests for
Production of Documents. See Nardi Decl. ¶ 6; supra pp. 3-4 (discussing discovery). In addition to
the information exchanged during formal discovery, the Parties confidentially shared information
during settlement negotiations. Plaintiffs investigated for over a year prior to the lawsuit and
conducted informal discovery throughout the litigation. Nardi Decl. ¶¶ 4, 6. The work done by
Plaintiffs’ Counsel in litigating this action and the Next Friends in responding to discovery supports
a finding that “the class representatives and class counsel have adequately represented the class.”
FED. R. CIV. P. 23(e)(2)(A).
Second, the negotiations culminating in the Settlement Agreement support a finding that the
proposal was negotiated at arm’s length, making this Court’s preliminary approval of the Settlement
Agreement appropriate. Beginning in 2022, the Parties engaged in arm’s length, non-collusive
negotiations over the substance and structure of the Settlement Agreement. Nardi Decl. ¶¶ 7-8.
Beginning in April 2022, the Parties participated in 10 judicial settlement conferences with Judge
Nivison’s active involvement. The detailed negotiations eventually resulted in: (i) new practices for
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collection and dissemination of health information critical to the informed consent process, a new
informed consent form for designated adult consenters and older youth, and a new system of review
of new outlier triggers by a new psychiatric review team; (ii) detailed performance metrics and
benchmarks; and (iii) a time-limited structure settling the underlying litigation with an
Implementation Reviewer to monitor implementation. Leveraging the expertise of Plaintiffs’ outside
consultants and Defendants’ pediatric, behavioral health, and medical record professionals, the
Parties’ Settlement Agreement reflects creative solutions to the Parties’ initially divergent views on
appropriate measures to address matters of mutual concern. See id. ¶ 8. The Settlement Agreement
addresses key issues outlined in Plaintiffs’ Complaint, provides for a third-party to serve as
Implementation Reviewer of Defendants’ progress in relation to certain Performance Criteria,
establishes a fixed duration subject to compliance, and sets a clear timeline for implementation and
enforcement, if necessary. See Ex. 1, Settlement Agreement §§ IV.2.-3., 4.B.; supra Section II.
Third, “the relief provided for the class is adequate, taking into account” factors including,
“the costs, risks, and delay of trial and appeal.” FED. R. CIV. P. 23(e)(2)(C). Proceeding to trial on
Plaintiffs’ systemic claims addressing Defendants’ oversight of the administration of psychotropic
medication to children in foster care – a claim of first impression in Maine – would be expensive,
complex, and unpredictable for both Parties. See Order on Defendants’ Motion to Dismiss, ECF
No. 43 at 26-27. 3 If this case does not settle, then the Parties would continue fact discovery, file their
expert reports, and brief class certification. Potential dispositive motion practice, as well as potential
challenges to either side’s expert witnesses pursuant to Daubert, would follow the close of discovery
and ultimately there would be a trial in this matter. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579
(1993). In contrast, the value of immediate relief addressing Plaintiffs’ claims and the removal of
3 In Connor B., the First Circuit also sidestepped the question of what standard applies to a substantive due process claim
in the foster care context. See Connor B. ex rel. Vigurs v. Patrick, 774 F.3d 45, 54 (1st Cir. 2014).
8
uncertainty and the demand on limited resources for Defendants is significant. See Medoff v. CVS
Caremark Corp., No. 09-cv-554-JNL, 2016 WL 632238, at *5 (D.R.I. Feb. 17, 2016) (explaining that
settlement “eliminates those expenses and, perhaps more importantly, the uncertainties inherent in
taking this case to trial”).
The Settlement Agreement fairly resolves all critical issues in the Complaint through
carefully crafted reforms. See supra Section II; Nardi Decl. ¶ 8; Declaration of John A. Woodcock of
Bernstein Shur (“Woodcock Decl.”) ¶ 8; Ex. 1, Settlement Agreement § IV.4.B. The Settlement
Agreement ensures systemic oversight of the administration of psychotropic medications for the
proposed Class. The system-wide nature of all the reforms ensures that the Settlement Agreement
treats all children in the system, and therefore all Class Members, fairly and equitably relative to each
other – which goes to the fourth factor. See FED. R. CIV. P. 23(e)(2)(D). Waiting for the completion
of prolonged litigation before implementing changes to Defendants’ oversight of the administration
of psychotropic medications to Class members – per Plaintiffs’ allegations – risks harm to Class
members relating to potential adverse consequences inherent in the psychotropic medications at
issue. Notwithstanding Defendants’ denial of the factual allegations and their liability, the Settlement
Agreement reflects a considered, detailed, and reasonable resolution to a complex issue. Settling now
instead allows Class members to experience the benefits of the commitments in the Settlement
Agreement as soon as possible. This Court should, therefore, grant preliminary approval of the
Settlement Agreement.
IV. THE PLAINTIFF CLASS SHOULD BE PROVISIONALLY CERTIFIED

The proposed “Plaintiff Class” consists of the Named Plaintiffs and all of the children who
are or will be in Defendants’ foster care custody and who are or will be prescribed one or more
psychotropic medications while in state care (also referred to as the “Settlement Class”). Ex. 1,
Settlement Agreement §§ I.12, IV.4.A; see also Complaint ¶ 160. The Manual for Complex Litigation,
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Fourth, instructs, “Rule 23(a) and (b) standards apply equally to certifying a class action for
settlement or for trial . . . .” . Certifying a Settlement Class, Ann. Manual Complex Lit. § 21.132 (4th
ed.) (noting exception for actions proceeding under FED. R. CIV. P. 23(b)(3)(D), which does not
apply here). In the context of settlement, the Court must find that the proposed class meets the
prerequisites of Rule 23(a): (1) “the class is so numerous that joinder of all members is
impracticable,” (2) “there are questions of law or fact common to the class,” (3) “the claims or
defenses of the representative parties are typical of the claims or defenses of the class,” and (4) “the
representative parties will fairly and adequately protect the interests of the class.” FED. R. CIV. P.
23(a). In addition, the class must satisfy one of the requirements of Rule 23(b), which here is Rule
23(b)(2): that “the party opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate
respecting the class as a whole.” FED. R. CIV. P. 23(b)(2). As set forth below, Plaintiffs satisfy each
of the requirements of Rule 23(a), and certification is proper under Rule 23(b)(2), because this case
involves system-wide injunctive reforms impacting the class of children in the foster care system as a
whole.
1. Plaintiffs Satisfy the Numerosity Requirement
The Class here easily satisfies the numerosity requirement. Under Rule 23(a)’s numerosity
requirement, the class must be “so numerous that joinder of all members is impracticable.” FED. R.
CIV. P. 23(a)(1). Courts in the First Circuit have generally found that a class of 40 or more
individuals satisfies the numerosity requirement. See Fitzmorris v. New Hampshire Dep’t of Health &
Hum. Servs. Comm’r Lori Weaver, No. 21-cv-25-PB, 2023 WL 8188770, at *9 (D.N.H. Nov. 27, 2023)
(explaining numerosity in the First Circuit is a “low threshold”); Michaud, 2015 WL 1206490, at *2;
Connor B. v. Patrick, 272 F.R.D. 288, 292 (D. Mass. 2011); cf. S.S. v. Springfeld, 318 F.R.D. 210, 222-23
(D. Mass. 2016) (finding that proposed class of “[m]ore than two hundred” class members could
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“certainly have established numerosity” in light of the presumption that 40 individuals is sufficient);
DeRosa v. Massachusetts Bay Commuter Rail Co., 694 F. Supp. 2d 87, 98 (D. Mass. 2010) (numerosity
met with approximately 110 class members).
The Class here consists of far more than 40 Class members. Approximately 2,500 children
were in the legal custody of DHHS as of December 2023, 4 and approximately 500 children in the
foster care system at any given time are prescribed one or more psychotropic medications. 5 Since the
Settlement Class includes not just those children already in the foster care system and receiving
psychotropic medications, but also those children who will later enter the system and who will later
be prescribed psychotropic medications, there will likely continue to be hundreds of children in the
Settlement Class.
In the numerosity analysis, courts also consider judicial economy and the plaintiffs’ ability to
bring individual suits. See Curtis v. Comm’r, Maine Dep’t of Hum. Servs., 159 F.R.D. 339, 340-41 (D. Me.
1994). This suit seeks only injunctive and declaratory relief that will inure to the benefit of all
members of the Class, so judicial economy favors certification. As in Curtis, it would be
impracticable to require hundreds of minors to file individual suits about systemic harms when they
could instead proceed with one litigation. See id. (when considering “judicial economy and the ability
of the members to institute individual suits,” joinder of 500 benefits recipients who were class
members was impracticable).
2. Plaintiffs Satisfy the Commonality Requirement
The commonality requirement asks whether “there are questions of law or fact common to
the class.” FED. R. CIV. P. 23(a)(2). Plaintiffs must show that a class action is capable of “generat[ing]
common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
4 Child Welfare Data Dashboard, Maine Dep’t of Health & Hum. Servs., https://www.maine.gov/dhhs/ocfs/data-reports-
initiatives/child-welfare (accessed Jan. 26, 2024).

5 Defs.’ Response to Pls.’ First Set of Interrogatories ¶ 1, Feb. 23, 2022.
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338, 350 (2011) (emphasis in original) (internal citations omitted). “The First Circuit has recognized
that such ‘common answers typically come in the form of a particular and sufficiently well-defined
set of allegedly illegal policies or practices that work similar harm on the class plaintiffs.’” Fitzmorris,
2023 WL 8188770, at *15. These serve as “the ‘glue’ that unites Plaintiffs’ claims.” Connor B. v.
Patrick, 278 F.R.D. 30, 34 (D. Mass. 2011); see also Maine Ass’n of Retirees v. Bd. of Trustees of Maine Pub.
Emps. Ret. Sys., No. 1:12-CV-59-GZS, 2012 WL 5874783, at *2 (D. Me. Nov. 20, 2012) (“[T]here is
commonality among the class members [where] each class member claims that Maine’s 2011
Amendment amounts to a unconstitutional deprivation of the cost-of-living adjustments.”); Risinger
v. Concannon, 201 F.R.D. 16, 19-20 (D. Me. 2001); Gonzalez v. XPO Last Mile, Inc., 579 F. Supp. 3d
252, 260-61 (D. Mass. 2022). As courts in this Circuit have recognized post-Wal-Mart, members of
the proposed class need not share every fact in common as long as there is at least one common
issue among them. See In re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 293 F.R.D. 21, 27 (D.
Me. 2013) (“While the losses of each class member may not be identical in amount or type,
Hannaford’s action or inaction that allegedly produced the loss is the same, and the economic
injuries are similar. Thus, there are questions of law and fact common to the class, and the
commonality requirement is satisfied.”).
The commonality requirement is met here because Defendants have uniform system-wide
policies and practices concerning the monitoring and oversight of the administration of
psychotropic medications to Class members that apply equally to each member of the Plaintiff Class.
See Compl., ECF No. 45 ¶¶ 217-79; M.B. v. Corsi, 327 F.R.D. 271, 278-80 (W.D. Mo. 2018)
(commonality requirement met in foster care psychotropics reform class action where system-wide
policies and practices on psychotropics uniformly subjected putative class members to a substantial
risk of serious harm). Each member of the Plaintiff Class is in foster care, and they are equally
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subject to practices and policies that apply to Maine’s care system, so their claims are capable of
class-wide resolution in one stroke. See id.
The three principal alleged factual issues underlying Plaintiffs’ claims each show
commonality among the Plaintiff Class. 6 The first principal fact issue is Defendants’ medical record
practice, including Defendants’ alleged failure to maintain complete, current, and reasonably
accessible medical records, including medication history, and to provide these records to foster
caregivers and health care providers. See Compl., ECF No. 45 ¶¶ 170, 236-53. The second issue
focuses on the informed consent process, including Defendants’ alleged failure to ensure that
adequate informed consent with adequate notice and a meaningful opportunity to be heard is
obtained before the child is administered any psychotropic medications. See id. ¶¶ 170, 254-73. The
third issue centers on Defendants’ oversight of outlier and high-risk prescription practices,
specifically whether Defendants allegedly fail to operate a statewide secondary review system capable
of timely identifying and addressing outlier prescribing practices to assure the safe administration of
psychotropic medication or to provide for periodic review or reconsideration of the prescription and
administration of such medication. Plaintiffs allege that each of these three main issues applies to the
Plaintiff Class as a whole. See id. ¶¶ 274-79.
As a result of these three main factual issues, the Class members also share the legal
questions of whether these challenged policies and practices violate their constitutional substantive
due process rights, constitutional procedural due process rights, or statutory rights under AACWA.
These questions can all be answered on a class-wide basis. Moreover, children in foster care
asserting similar claims as the Plaintiffs here have established commonality and class certification in
similar litigations. See, e.g., M.B., 327 F.R.D. at 280.
6 Defendants dispute Plaintiffs’ allegations. See Ex. 1, Settlement Agreement § IV.4.C.
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3. Plaintiffs Satisfy the Typicality Requirement
Rule 23(a)(3) requires “that the claims or defenses of the representative parties are typical of
the claims or defenses of the class.” FED. R. CIV. P. 23(a)(3). Typicality is satisfied when the
representative’s “injuries arise from the same events or course of conduct as do the injuries of the
class and when plaintiff’s claims and those of the class are based on the same legal theory.” Michaud,
2015 WL 1206490, at *3 (Torresen, J.) (citation omitted). “The claims of the class representative and
the class overall must share essential characteristics, but they need not be precisely identical.” Bezdek
v. Vibram USA Inc., 79 F. Supp. 3d 324, 338 (D. Mass.), aff’d, 809 F.3d 78 (1st Cir. 2015).
The Named Plaintiffs’ claims arise from the same events and course of conduct as the claims
of the Class: they were all in state custody, subject to the administration of psychotropic medications
while in foster care, and subject to the alleged harms and risk of harm stemming from the same
policies and practices applicable to children in foster care concerning the monitoring and oversight
over psychotropic medications. The Named Plaintiffs’ claims are also based on the same legal
theories as those of the Class; namely that Defendants’ policies and practices allegedly (1) violate
their substantive due process right to be free from harm while in state custody, (2) violate their
procedural due process right to be free from the unnecessary administration of medical treatment
without due process of law, and (3) deprive them of their rights under AACWA. See Van Meter v.
Harvey, 272 F.R.D. 274, 283 (D. Me. 2011) (typicality established where the named plaintiffs fit the
class definition and asserted the same legal claims as the other class members, which were based on
a common course of alleged conduct by DHHS); M.B., 327 F.R.D. at 281 (typicality established
where claims asserted that the state was obligated to provide additional safeguards against the
improper administration of psychotropic medications to children in foster care, “an issue that
equally concern[ed] all of the named plaintiffs and the members of the proposed class”). Thus, Rule
23(a)’s typicality requirement is satisfied.
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4. Plaintiffs and Their Counsel Will Adequately Represent the Class
The Class representatives and Class Counsel satisfy Rule 23(a)(4) because they will continue
to “fairly and adequately protect the interests of the class.” FED. R. CIV. P. 23(a)(4). The adequacy
requirement is met where “the interests of the representative party [do] not conflict with the
interests of any of the class members,” and where the representatives and counsel are “qualified,
experienced, and able to vigorously conduct the proposed litigation.” Gomes v. Acting Sec’y., U.S. Dep’t
of Homeland Sec., 561 F. Supp. 3d 93, 102 (D.N.H. 2021) (quoting Andrews v. Bechtel Power Corp., 780
F.2d 124, 130 (1st Cir. 1985)). Plaintiffs satisfy both elements here.
First, Named Plaintiffs, through their Next Friends, are committed to protecting the
interests of the proposed Class members, as demonstrated through their substantial efforts
throughout this litigation and the Next Friends’ assistance with the Settlement Agreement on their
behalf. Nardi Decl. ¶¶ 4-8. Their incentives do not conflict, because Named Plaintiffs and Class
members share the same claims, arising out of the same course of conduct by Defendants, and they
all desire to improve Defendants’ policies and practices – which apply equally to each of them,
obviating any potential conflict of interest between them. See In re Nexium (Esomeprazole) Antitrust
Litig., 297 F.R.D. 168, 172 (D. Mass. 2013), aff'd sub nom., In re Nexium Antitrust Litig., 777 F.3d 9 (1st
Cir. 2015) (“A showing of an alignment of incentives between the class and the class representatives
can sufficiently overcome a challenge on conflict of interest grounds.”). Further, each Next Friend,
on behalf of the Named Plaintiffs whom he or she represents, is dedicated to improving
Defendants’ policies and practices, which pose the same risk of harm to Plaintiffs and other Class
members. Indeed, each Next Friend sat for depositions in this case and has been involved in the
settlement negotiations. Nardi Decl. ¶¶ 6, 8.
Second, Plaintiffs’ Counsel are deeply committed to representing the Class, have
demonstrated their willingness to vigorously pursue the claims brought here, and have substantial
15
experience in handling complex litigations, including federal class actions and suits on behalf of
children in state custody asserting claims similar to those here. Nardi Decl. ¶¶ 4-6, 10-12; Woodcock
Decl. ¶¶ 2-7. For instance, Plaintiffs’ Counsel Children’s Rights is a non-profit national legal
advocacy organization that is recognized for its extensive record of representing children in foster
care and litigating both constitutional and statutory claims seeking declaratory and injunctive relief.
See, e.g., Connor B., 272 F.R.D. at 297 (“Children’s Rights’ attorneys have served as class counsel on
much of the major child welfare litigation in the United States. The attorneys at Children’s Rights
have years of experience litigating similar class actions across the country, asserting constitutional
and statutory claims on behalf of children in foster care to obtain system-wide injunctive and
declaratory relief.”); Nardi Decl. ¶¶ 4, 11-12. Plaintiffs’ Counsel Bernstein Shur, a New England
based law firm, also has vast experience in complex federal litigation, including class action lawsuits,
with local expertise in the state of Maine. See https://www.bernsteinshur.com/; Woodcock Decl. ¶¶
2, 6; Nardi Decl. ¶ 5. Accordingly, Rule 23(a)’s adequacy requirement is met.
V. THE COURT SHOULD APPOINT PLAINTIFFS’ COUNSEL AS CLASS

COUNSEL
Federal Rule of Civil Procedure 23(g) requires that, when certifying a case as a class action,
the Court must appoint class counsel. The Rule requires that, when appointing class counsel, the
Court must consider: (1) counsel’s work in identifying or investigating claims; (2) counsel’s
experience in handling the types of claims asserted; (3) counsel’s knowledge of the applicable law;
and (4) the resources that counsel will commit to representing the class. FED. R. CIV. P. 23(g)(1)(A);
see also Michaud, 2015 WL 1206490, at *5 (appointing class counsel in the context of settlement where
proposed class counsel had sufficient experience and had committed significant resources to
represent Plaintiffs and where the Court did not perceive any conflicts that would prevent proposed
class counsel from fairly and adequately representing the interests of the classes).
16
The Parties respectfully request that the Court appoint Plaintiffs’ Counsel as Class Counsel
for purposes of approval and administration of the proposed Settlement. Plaintiffs’ Counsel have
dedicated substantial work to identifying and prosecuting the claims of the putative Class thus far,
and are dedicated to ensuring the case will continue to receive the necessary focus and resources to
protect the rights of Class members. Nardi Decl. ¶¶ 4-6, 10; Woodcock Decl. ¶ 2-7. The proposed
Class Counsel have extensive experience in, and knowledge of, complex and class action litigation in
Maine and nationally, as well as in representing youth in the child welfare system. Nardi Decl. ¶¶ 2-3,
5, 11-12; Woodcock Decl. ¶¶ 2, 7; see also supra Section IV.4. Plaintiffs’ Counsel, and in particular
Plaintiffs’ private law firm Counsel of Bernstein Shur, have committed significant resources to
representing the Class and will continue do so as needed. Nardi Decl. ¶ 10; Woodcock Decl. ¶¶ 6-7.
Accordingly, Plaintiffs’ Counsel meets the requirements under Rule 23(g) and respectfully requests
appointment as Class Counsel.
VI. THE PROPOSED CLASS NOTICE AND NOTICE PLAN SHOULD BE

APPROVED AND THE COURT SHOULD ESTABLISH A SCHEDULE FOR
FINAL APPROVAL
Rule 23 provides that for a class “certified under Rule 23 . . . (b)(2), the court may direct
appropriate notice to the class” “in a reasonable manner.” FED. R. CIV. P. 23(c)(2)(A), 23(e)(1)(B).
“Notice meets Rule 23(e) and due process requirements if it is reasonably calculated to reach the
class members and inform them of the existence of and the opportunity to object to the settlement.”
Nilsen v. York Cnty., 382 F. Supp. 2d 206, 210 (D. Me. 2005). 7
7 While Rule 23 requires that reasonable efforts be made to reach all class members, it does not require actual notice to
each class member. Silber v. Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994). A class settlement notice satisfies due process if it
contains a summary sufficient to “apprise interested parties of the pendency of the action and to afford them an
opportunity to present their objections.” UAW v. GMC, 497 F.3d 615, 629 (6th Cir. 2007) (quoting Mullane v. Cent. Hanover
Bank & Tr. Co., 339 U.S. 306, 314 (1950)). Notice is a summary, not a complete source of information. See, e.g., Petrovic v.
AMOCO Oil Co., 200 F.3d 1140, 1153 (8th Cir. 1999); In re Agent Orange Prod. Liab. Litig. MDL No. 381, 818 F.2d 145, 170
(2d Cir. 1987); Mangione v. First USA Bank, 206 F.R.D. 222, 233 (S.D. Ill. 2001).
17
The Parties have agreed to a Notice that comports with these requirements. The Notice
summarizes the litigation and the Proposed Settlement Agreement, provides instructions on how to
obtain full copies of the Settlement Agreement, and advises recipients on what to do if they have
questions. See Ex. 2, Notice at 1-4. The Notice describes the procedure for those who wish to be
heard in favor of or in opposition to the Settlement Agreement, and it includes a placeholder to
specify the time and place of the fairness hearing once that date is set by the Court. See id. at 3-4. In
addition, the form of the Notice, at just four pages, is clear and in plain language for Class members,
their representatives, and other local advocates who may be interested in its terms. It is similar to
other notices directed at foster care populations that have been approved. See, e.g., M.B. v. Tidball,
No. 2:17-cv-04102, Notice of Proposed Class Action Settlement, ECF No. 280-2 (W.D. Mo. July 8,
2019), and Order Granting Prelim. Approval, ECF No. 282 (July 15, 2019). The Parties have also
agreed to a detailed plan for reasonable dissemination of the Notice. See Ex. 2 at 5-6 (Notice
Addendum setting forth the proposed manner of notice). The Parties’ proposal includes, among
other things, posting the Notice in various locations that the Class members or their representatives
are likely to frequent, and sending the Notice directly to placement providers, parents, Guardians ad
Litem for Class members, and older Class members in independent or transitional living placements.
Id. Courts have found this sort of approach to be reasonable in other cases with 23(b)(2) classes like
this one on behalf of youth in the foster care system. See, e.g., M.B. v. Tidball, No. 2:17-cv-04102,
ECF No. 282 at 4-6 (W.D. Mo. July 15, 2019) (approving notice in similar foster care psychotropic
case using similar notice methods, including notice posted on agency’s website, emailed to case
managers, posted in offices, and sent to parents, foster caregivers, older youth, and congregate care
and group homes); M.B. v. Howard, No. 2:18-cv-02617, ECF No. 140 at 5-8 (D. Kan. Sept. 9, 2020)
(approving similar notice in foster care case emailed to agency’s staff, posted conspicuously in main
offices, and sent to parents, foster caregivers, older youth, and congregate care and group homes).
18
Accordingly, the Notice comports with Rule 23 and due process requirements, and it should be
approved.
The Parties further request that the Court set a schedule for notice to the Class and final
approval of the Settlement Agreement as follows:
Event Date
Court’s Order on Preliminary Approval To be determined by the Court
Parties’ Deadline for Completing Notice to the Class 6 weeks after the Court’s Order of
Preliminary Approval
Joint Motion for Final Settlement Approval; and Plaintiffs’ 4 weeks after notice complete
Motion for Reimbursement of Attorneys’ Fees, Costs, and
Expenses
Objection Deadline; and Deadline for Class Members’ 6 weeks after notice complete
Notification of Intent to Appear at the Fairness Hearing
Plaintiffs to Submit to the Court all Submissions in 2 weeks after Objection Deadline
Support of or in Objection to the Settlement Agreement
Pursuant to the Order of Preliminary Approval; and
Parties’ Response(s) to Submissions in Support of or in
Objection to the Settlement Agreement Pursuant to the
Order of Preliminary Approval (if any)
Fairness Hearing To be determined by the Court
CONCLUSION
For the foregoing reasons, the Parties jointly move the Court for an order granting
preliminary approval of the Settlement Agreement; provisionally certifying the Class and appointing
Children’s Rights and Bernstein Shur as Class Counsel; approving the form and manner of the
Notice of Proposed Class Action Settlement; and setting the deadlines and a hearing date proposed
herein for the purpose of deciding whether to grant final approval of the Settlement Agreement.
Dated: March 1, 2024
Respectfully submitted,
BERNSTEIN, SHUR, SAWYER & NELSON, P.A.
/s/ John A. Woodcock III .
19
John A. Woodcock III

Eben M. Albert
100 Middle Street
PO Box 9729
Portland, ME 04101
(207) 774-1200
jwoodcock@bernsteinshur.com
ealbert@bernsteinshur.com
CHILDREN’S RIGHTS
/s/ Marissa C. Nardi .

Marissa C. Nardi (admitted pro hac vice)
Samantha Bartosz (admitted pro hac vice)
Stephen Dixon (admitted pro hac vice)
Claire R. Glasspiegel (admitted pro hac vice)
Madeleine M. Kinney (admitted pro hac vice)
88 Pine Street, Suite 800
New York, New York 10005
(212) 683-2210
mnardi@childrensrights.org
sbartosz@childrensrights.org
sdixon@childrensrights.org
cglasspiegel@childrensrights.org
mkinney@childrensrights.org
ATTORNEYS FOR PLAINTIFFS
AARON M. FREY
Attorney General
/s/ Sean Magenis .

Sean Magenis
Assistant Attorney General
6 State House Station
Augusta, ME 04333
(207) 626-8830
Sean.D.Magenis@maine.gov
ATTORNEYS FOR DEFENDANTS
20
Case 1:21-cv-00005-NT Document 118-1 Filed 03/01/24 Page 1 of 32 PageID #: 988
EXHIBIT 1
UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MAINE
Bryan C. and Henry B. through their next friend )

Michael P. Dixon, et al.,
)
)
Plaintiffs,
) C/A No. 1:21-cv-00005-NT
v.
)
Jeanne M. Lambrew in her official capacity as
Commissioner of the Maine Department of Health )
and Human Services, et al.,
)
)
Defendants.
)
JOINT SETTLEMENT AGREEMENT
It is hereby agreed, upon the stipulation and agreement of the Parties, through the
undersigned, that this action is settled, subject to the approval and continuing jurisdiction of the
United States District Court for the District of Maine, on the following terms and conditions:
I. DEFINITIONS
For the purposes of this Settlement Agreement (“Agreement”):
1. “Action,” “Class Action,” or “Litigation” means the case Bryan C., et al. v. Lambrew, et
al., Civil Action Number 1:21-cv-0005-NT, pending in the United States District Court
for the District of Maine.
2. “Complaint” means the Second Amended Complaint (ECF No. 45) filed in this Action.
3. “Defendants” means all Defendants in this Action, including but not limited to Dr. Jeanne
M. Lambrew in her official capacity as the Commissioner of the Maine Department of
Health and Human Services, Bobbi Johnson in her official capacity of Acting Director of
the Maine Office of Child and Family Services, and successors to their positions.
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4. “DSM” or “DSM-V” means the Diagnostic and Statistical Manual of Mental Disorders,
Fifth Edition, the Fifth Edition Text Revision, and any future editions.
5. “Department” or “DHHS” means the Maine Department of Health and Human Services,
or any successor in interest.
6. “Court” or the “Federal District Court” means the United States District Court for the
District of Maine.
7. “Katahdin” means the Maine child welfare information system that includes (among
other functions) electronic records management, including any successor system(s) used
to effectuate this Agreement.
8. “Named Plaintiffs” means Bryan C., Henry B., Trent W., Grayson M., and Neville H., the
Named Plaintiffs specified in the Complaint, subject to the Joint Stipulation of Voluntary
Dismissal of Named Plaintiff Kendall P. filed on December 17, 2021 (ECF No. 57).
9. “OCFS” and “Office” means the Maine Office of Child and Family Services, its
subdivisions, and any successor in interest.
10. “Parties” means the Plaintiffs and Defendants in this Action. The Agreement shall be
binding upon, and inure to the benefit of, the successors and assigns of the Parties hereto.
11. “Performance Criteria” means the Performance Criteria in Exhibit C to this Agreement.
12. “Plaintiff Class,” or “Class Member(s)” means the Named Plaintiffs and all plaintiff
class members in this Action, defined in the Complaint as children who are or will be in
Defendants’ foster care custody and who are or will be prescribed one or more
Psychotropic Medication while in state care, authorized by the terms of this Agreement
and to be approved by the Court through certification under Federal Rule of Civil
Procedure Rules 23(a) and (b)(2).
13. “Psychotropic Medication(s)” means pharmaceutical medications in the drug classes of:
antidepressants; antipsychotics or atypical antipsychotics; stimulants; alpha agonists
(such as Clonidine and Guanfacine); anxiolytics (anti-anxiety) / hypnotics (such as
benzodiazepines and non-benzodiazepines); and mood stabilizing medicines (such as
lithium). Psychotropic Medications also include medications from the anticonvulsant and
antihypertensive drug classes when the medication is prescribed for a behavioral health
indication.
14. “Resource Parent(s)” means those providing foster care to children placed in the legal
custody of Defendants pursuant to 10-148 C.M.R. c.16, § 1, et seq.
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II. RECITALS
WHEREAS, Plaintiffs filed this action (“the Litigation”) alleging Defendants have violated
federal statutory and constitutional law and seeking prospective declaratory and injunctive
relief concerning the oversight of Psychotropic Medication administration to children in the
Maine child welfare system;
WHEREAS, Defendants deny that they have violated federal law;
WHEREAS, the Parties wish to amicably resolve this action in a way that addresses the
concerns identified in the Litigation and benefits the children served by Defendants;
WHEREAS, the Parties began discussing a negotiated settlement in December 2021, jointly
selected the Honorable Judge John C. Nivison as the mediator in February 2022, and entered
a stay of the litigation in July 2022 to focus all efforts on developing systemic reforms for
this Agreement; and
WHEREAS, the Parties jointly consulted subject matter experts and participated in over 10
mediation conferences with the Honorable Judge Nivison;
NOW, THEREFORE, in consideration of the execution of this Settlement Agreement and the
mutual recitals and promises contained herein, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
III. SUBSTANTIVE COMMITMENTS

1. MEDICAL RECORDS
A. OCFS will maintain appropriate statewide practices for collecting, updating, and
disseminating medical, mental, and behavioral health information to Resource Parents
caring for each child in the Department’s custody. This information will be provided
to the Resource Parents in the Portable Health Record within three (3) business days
of initial placement and upon each subsequent placement. Resource parents will sign
a standardized acknowledgement form upon receipt of the Portable Health Record.
B. Each Office will ensure that all relevant medical and mental health information is
obtained, communicated to the caseworker and Resource Parent in the Portable
Health Record within three (3) business days of a child being placed and upon each
subsequent placement, and documented in Katahdin. This information will include,
at a minimum and to the extent known after best efforts, the dates of appointments,
medical providers, a medical history including medical and mental health diagnoses,
allergies, medications, immunizations, and treatment. If any of the medications are
Psychotropic Medications, the information listed for each Psychotropic Medication
shall include, to the extent known: the associated DSM diagnosis(es), treatment
indication, dosage(s), start and end date(s), psychotropic class, possible and observed
adverse effects, administration instructions, date(s) of upcoming medication
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management meetings, and contact information for the Authorized Consenter and
prescriber.
C. Each Office will also coordinate the initial medical appointment for the child to occur
within ten (10) days of entry into care and, when indicated, the follow-up
comprehensive evaluation to occur within thirty (30) days, as required by 22 MRSA §
4063-A. Resource Parents will be responsible for scheduling and attending all
subsequent medical appointments for the child placed in their home, as well as for
notifying the Department of these appointments.
D. The caseworker will, within seven (7) business days of receipt, sign and return
requests for releases of information from current medical providers to obtain health
records from prior medical, mental health, and/or behavioral health providers. Any
release of information will comply with HIPAA regulations, including those that
medical facilities are required to follow, and those specific to the dissemination of
mental health and substance use disorder information.
E. When a minor: enters DHHS custody with prescriptions for Psychotropic

Medication(s); or, while in DHHS custody, is prescribed Psychotropic Medication(s);
then, DHHS will request records from the minor’s current or last known primary care
physician; behavioral health provider(s); and school / educational institution within
ten (10) days of DHHS obtaining contact information for the physician, provider, or
institution. If no records are received within thirty (30) days of the original request,
then DHHS will convey a second request.
F. Healthcare information will be updated in the Portable Health Record and child case
record in the Katahdin system as received from the parent(s), Resource Parent(s),
Authorized Consenter(s), and/or medical provider(s) and incorporated into the
development of the child’s case plan, which occurs at least once every six (6) months.
The Department shall provide a copy of the child’s case plan to the Resource
Parent(s) when initially created and when updated.
G. OCFS shall update Section V.I-2. (“Health Records”) of the Child and Family
Services Policy Manual consistent with the above.
2. INFORMED CONSENT
A. Informed consent for all classes of Psychotropic Medication shall be given by a child
welfare caseworker, supervisor, assistant program administrator, or program
administrator (“Authorized Consenter”). The identity and contact information of
each child’s Authorized Consenter shall be listed in their Portable Health Record.
The Authorized Consenter shall be present (in-person, virtually, or by telephone) at
regularly scheduled medical appointments, except in cases of emergencies, to have
the informed consent discussion with the provider. In consultation with the provider,
the Authorized Consenter shall complete the Informed Consent Form (attached hereto
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as Exhibit A). The signature of the Authorized Consenter on the Informed Consent
Form may be physical or electronic.
B. The Authorized Consenter’s decision to consent or not consent shall be directed by

the information contained in the Informed Consent Form. In making the consent
decision or completing the Informed Consent Form, the Authorized Consenter may
seek a second opinion or ask questions of the Clinical Review Team (described in
Section III.3.A. below).
C. Executed Informed Consent Forms will be stored in the child’s case record in the
Katahdin system.
D. Youth under age fourteen (14) shall be provided with the opportunity for an age and
developmentally appropriate discussion with the prescriber, including an opportunity
to ask questions and express concerns. The Informed Consent Form will include a
record confirming that the discussion took place.
E. Youth age fourteen (14) and older shall provide informed consent to Psychotropic
Medications. A youth’s informed consent will be indicated on the Informed Consent
Form. The youth may sign and complete the fields in the “Informed Consent by
Youth Age 14 or Over (to be completed by youth age 14 or over)” section of the
Informed Consent Form either physically or, in the unusual circumstance when an
appointment is virtual, electronically through a process(es) to be determined by
Defendants. Informed consent will be established by an age and developmentally
appropriate discussion between the prescriber and the youth, including: the purpose of
the proposed treatment, the risks and benefits and potential side effects of the
proposed treatment, availability of alternative behavioral health treatments, prognosis
with and without the proposed medication, and the potential for drug interactions. The
Authorized Consenter shall inform the youth of their rights, including their rights to
refuse Psychotropic Medications after consultation with their prescriber, speak
privately with their prescriber and/or request a second opinion from the Clinical
Review Team, modify their decision at any time in the future, and file a complaint
using the Grievance Form (Exhibit B).
F. The legal parent(s) and/or youth age 14 and older shall be provided with information
regarding their rights to refuse Psychotropic Medication, speak privately with the
prescriber, request a second opinion, withdraw consent, and start a review process.
G. Except in emergencies, the Informed Consent Form will be completed prior to the
administration of a newly prescribed Psychotropic Medication; the discontinuation of
consent of a pre-existing medication; a change in the dosage of a medication; or the
one-year renewal of informed consent.
H. In an emergency, Psychotropic Medication may be prescribed and administered

without informed consent. Emergency prescriptions shall be documented in the
child’s case record in the Katahdin system. Upon notification of an emergency use of
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Psychotropic Medication, the Authorized Consenter shall complete the Informed

Consent Form within five (5) business days.
I. Education and training regarding Psychotropic Medications will be provided to staff

who may serve as authorized consenters within six (6) months of employment with
OCFS, or prior to serving as an Authorized Consenter. The training will, at a
minimum, cover the following topics: definition and classes of Psychotropic
Medications; FDA-approved versus off-label use of such medications; the possible
risks, benefits, and interactions of such medications; alternative behavioral health
treatment options; and OCFS’s policies with respect to medical records, informed
consent, and secondary review (including the process for obtaining a second opinion,
if desired). OCFS will track participation in these trainings. Participants shall be
required to pass a subject matter test upon completion of the training or be required to
repeat the training.
J. The Department shall provide a training on Psychotropic Medications to all Resource

Parents. For those Resource Parents who are already registered, the Department shall
encourage them to complete this training within four (4) months of entry of this
Agreement. Upon request, the Department shall allow Guardians ad Litem, judges,
and legal parents (pre-termination) to attend this existing training on a voluntary
basis.
K. OCFS shall update Sections V.A-C. (“Authorization of the Use of Antipsychotic

Medications for Youth in Foster Care”) of the Child and Family Services Policy
Manual, including the “Making a Choice” guide, consistent with the above. The
updated policy will address the use of all classes of Psychotropic Medications.
3. PROSPECTIVE EVALUATION & RETROSPECTIVE REVIEW
A. OCFS will convene a clinical review team (the “Clinical Review Team”) to conduct
prospective evaluations and retrospective reviews of Psychotropic Medications for
children in the Department’s custody. The Clinical Review Team will be comprised
of the Child Welfare Nurse Consultant(s); the OCFS Child and Adolescent
Psychiatric Consultant, who shall be a board certified, licensed, and experienced child
and adolescent psychiatrist; and the OCFS Medical Director.
B. Written findings and recommendations of the Clinical Review Team shall be

promptly transmitted to the Authorized Consenter(s), prescriber, parent(s), youth over
the age of fourteen (14), Resource Parent(s), and Guardians ad Litem. Written
findings and recommendations will be kept in the child’s case file in the Katahdin
system and included as part of the child’s medical history.
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PROSPECTIVE EVALUATION
C. Prior to the informed consent decision and subsequent fulfillment of a prescription
and/or administration of a Psychotropic Medication, except in emergency situations,
the recommendation for psychotropic medications will be evaluated prospectively by
the Clinical Review Team in the following circumstances:
1. Absence of an indicated DSMV diagnosis(es) in the youth’s health care
record.
2. Dosage is not within FDA dosage guidelines (where available).
3. A youth in care age six (6) or older has three (3) or more Psychotropic
Medications prescribed concomitantly.
4. A child in care age five (5) or younger has two (2) or more Psychotropic
5. A child in care age five (5) or younger is prescribed any antipsychotic or
atypical antipsychotic medication.
6. A youth in care is receiving:
o Two or more concomitant stimulant medicines [the prescription of a
longacting stimulant and an immediate release stimulant of the same
chemical entity (e.g., methylphenidate) does not constitute concomitant
prescribing].
o Two or more concomitant alpha-agonist medicines.
o Two or more concomitant antidepressant medicines.
o Two or more concomitant antipsychotic medicines.
o Two or more concomitant mood stabilizing medicines (note that youth in
foster care with a medical diagnosis of epilepsy or other seizure disorders
may be prescribed medications from this medication class to address
seizures).
7. Requested medication is contraindicated given this child’s medical history and
other current medications.
The Child Welfare Nurse Consultant will collect information from the child’s
caseworker, including the caseworker’s discussions with the Resource Parent(s)
and/or parent(s) and other collateral contacts as well as the prescriber’s clinical
rationale for the medication and relevant treatment alternatives. The OCFS Child and
Adolescent Psychiatric Consultant will, in collaboration with the Nurse Consultant,
review the information, follow-up with the prescriber as necessary, and make a
medical recommendation regarding the clinical appropriateness of the medication and
dosage. This review will be completed within five (5) business days of the request
for secondary review by the caseworker and shall be completed prior to the
Authorized Consenter providing informed consent. The OCFS Medical Director will
oversee this process.
RETROSPECTIVE REVIEW
D. OCFS will continue to receive a quarterly data report with child-specific data and
aggregate data for children in DHHS custody who have been administered
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Psychotropic Medication(s). The Clinical Review Team will identify and review the
files that meet any of the following prescribing condition triggers:
a. A paid Psychotropic Medication prescription is missing a current signed
informed consent form in Katahdin [To be implemented within six (6) months
of this Agreement].
b. A youth in care age six (6) or older has three (3) or more Psychotropic
c. A child in care age five (5) or younger has two (2) or more Psychotropic
d. A child has been concurrently administered two (2) or more antipsychotic
medications for a period of longer than ninety (90) days.
e. A child aged five (5) or younger prescribed an antipsychotic.
f. Psychotropic Medication dose exceeds usual recommended doses for age and
weight of the youth in foster care, based on FDA and/or literature based
maximum dosages.
E. The Clinical Review Team shall consider the following in conducting its review of
each triggered file:
a. Diagnosis(es): The prescription(s) do not correspond to a DSM diagnosis(es)
in the child’s medical record, and/or that the specific prescription(s) are
inappropriate for such DSM diagnosis(es) or the documented targeted
symptoms, including whether evidence-based psychosocial treatment has
already been attempted as a first-line treatment or will occur concurrently;
b. Dosage: The prescribed dosage(s) are not appropriate to the age and condition
for which it is being prescribed and/or exceeds the recommended dosages
based on the age or weight of the child, guidance from the FDA, and/or other
scientific literature on maximum dosages;
c. Metabolic Monitoring: The prescriber has not demonstrably appropriately
monitored the child’s weight, fasting glucose, lipids, and other metabolic
measures consistent with standard practices for the medication(s);
d. Contraindications: The child presents with contraindications, or a history of
any, for the prescribed medication(s);
e. Drug Interactions and Other Health History: Based on the child’s other
prescriptions or health history (e.g., allergies), there are known side effects or
drug interactions causing the risks of the medication(s) to exceed the benefits;
f. Polypharmacy: The child is concurrently administered two or more
Psychotropic Medications, without a documented exceptional need;
g. Age: The medication(s) have been prescribed to age-inappropriate children
based on established guidelines; and
h. Response: The child has not shown a positive response to the medication(s),
including whether the child has developed any adverse effects to the
medication(s).
F. Retrospective reviews will be completed within forty-five (45) days of receipt of the
quarterly report, and any concerns shall be communicated with the child’s caseworker
and prescribing medical professional. The OCFS Medical Director will oversee this
process. The Child Welfare Nurse Consultant will collect information. The Nurse
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Consultant will collaborate with the OCFS Child and Adolescent Psychiatric
Consultant, who will review the information, follow up with the prescriber as
necessary, and make a medical recommendation regarding the safety and
appropriateness of the medication(s) at the administered dosage(s).
IV. STRUCTURAL COMMITMENTS

1. Jurisdiction
A. This Court has subject matter jurisdiction and personal jurisdiction over this action
and, therefore, the authority to enter an order approving this Agreement.
B. Upon approval of this Agreement, this Court shall have continuing jurisdiction over
this action to enforce and ensure compliance with the terms of the Agreement,
including through the exercise of its contempt power, for as long as the Agreement
remains in effect.
a. This Agreement shall remain in effect for five (5) years from the date the
Implementation Reviewer’s contract begins. The term of this Agreement
may only be altered by:
i. An Order of the Court granting a motion by Plaintiffs, which

motion may be filed no later than four years and six months
following the date the Implementation Reviewer’s contract begins,
seeking an extension of the term of the Agreement based on
Plaintiffs’ showing that Defendants have failed to substantially
comply with the obligations established in Exhibit C; or
ii. An Order of the Court granting a motion by Defendants, which

motion may be filed at any time, seeking termination of this
Agreement based on Defendants having met all Exit Performance
Criteria at the specified percentages in Exhibit C for three (3)
consecutive reporting periods, subject to Section IV.2.F below.
Plaintiffs agree that Defendants having met all Exit Performance
Criteria in Exhibit C for three (3) consecutive reporting periods
justifies termination of this Agreement and the Court’s continuing
jurisdiction over this matter by dismissing the underlying Class
Action with prejudice, provided that the three (3) consecutive
reporting periods of compliance with an Exit Performance
Criterion do not need to be the same three (3) consecutive
reporting periods for all other Exit Performance Criteria to justify
termination.
9 of 15
2. Implementation of Performance Criteria
A. The Parties agree that Defendants shall retain the services of a third-party
Implementation Reviewer, based on mutually agreed-to criteria to be included in a
request for proposals (“RFP”).
B. The Implementation Reviewer shall issue written reports pursuant to the schedule set
forth below. The reports shall describe the measurable progress made by Defendants
in relation to each of the Performance Criteria, as well as issues or challenges
encountered or observed by the Implementation Reviewer regarding compliance with
this Agreement, if any.
C. Sampling, data, and data analysis will be agreed to between the Parties and the
Implementation Reviewer including the following for each criterion: (i) a definition
of the case reviews to measure performance based on a representative sample of Class
Members, where aggregate administrative data is otherwise unavailable; and (ii) the
identification of the data source to be used to measure performance. The
Implementation Reviewer shall use their discretion to determine the appropriate
margin of error and confidence level to ensure that the sample is representative.
D. The Implementation Reviewer and Parties shall agree to a template for the
Implementation Reviewer’s periodic reports.
E. The first reporting period is twelve (12) months following the date the
Implementation Reviewer’s contract begins. Each subsequent reporting period is six
(6) months.
F. As specified in Exhibit C, the Parties agreed to percentages to establish compliance

with the Performance Criteria. Provided, however, that the Parties acknowledge that
there may be events or circumstances beyond Defendants’ control that prevent
meeting one or more Performance Criterion, Defendants, in writing, may assert and
explain to the Implementation Reviewer why such a circumstance should not prevent
them from being deemed to have met the relevant Performance Criterion, with a copy
to Plaintiffs, who may respond. Under these circumstances, the Implementation
Reviewer may, at their sole discretion, deem Defendants to have met, or not to have
met, the relevant Performance Criteria.
G. Within sixty (60) days of the end of each reporting period, Defendants shall provide
to the Implementation Reviewer all data, reports, and other information that the
Implementation Reviewer deems necessary to measure of Defendants’ performance
on each of the Performance Criteria. The Implementation Reviewer and Defendants
may communicate regarding the data and information to be furnished. The Parties
shall have access, through the Implementation Reviewer, to all information made
available by Defendants to the Implementation Reviewer under the terms of this
Agreement.
10 of 15
H. Should the Implementation Reviewer need additional documents or information to

verify Defendants’ performance in any reporting period, the Implementation
Reviewer will request the same in writing and provide a copy of that request to
Plaintiffs’ Counsel.
I. Should the Implementation Reviewer encounter or identify any issues regarding the
collection or measurement of data, reports, and other information that the
Implementation Reviewer deems necessary to measure of Defendant’s performance
on each of the Performance Criteria, the Implementation Reviewer shall bring the
matter to the Parties’ attention. If necessary, in the judgment of the Implementation
Reviewer, the matter shall be resolved pursuant to the Dispute Resolution processes
set forth below.
J. The Implementation Reviewer shall issue a draft report setting forth Defendants’
progress in relation to each of the Performance Criteria within four months of the
close of the reporting period. After receipt of the draft report, the Parties shall have
twenty-one (21) days to submit comments to the Implementation Reviewer.
Thereafter, within thirty (30) days, the Implementation Reviewer shall issue a final
report.
K. The RFP establishing the scope of the reviewer’s work shall include provisions
intended to allow the reviewer’s reports to be considered public documents pursuant
to 1 M.R.S.A. § 401, et seq. Any individually-identifying information and other
confidential information protected from disclosure shall be redacted from any public
report.
L. The Implementation Reviewer shall be permitted to speak separately with all Parties.
M. The cost of the Implementation Reviewer shall be borne by Defendants, pursuant to

the RFP.
3. Enforcement
A. Meet and Confer: If a dispute arises regarding either Party’s compliance with any
provision of the Agreement, then the Party asserting noncompliance shall first send
written notice to the other Party specifying the concern and requesting an opportunity
to meet and confer. The Parties shall schedule a mutually convenient time, place, and
manner to confer, within 14 business days, to seek resolution of the dispute. The
Parties agree that this informal dispute resolution procedure is a condition precedent
to seeking judicial intervention with respect to a dispute regarding compliance with
the obligations established in Exhibit C. To facilitate open discussion, the Parties’
communications and all information exchanged during this informal dispute
resolution process shall be deemed to be part of confidential settlement negotiations
pursuant to Fed. R. Evid. 408 and shall not be disclosed or used by one Party against
11 of 15
the other unless mutually agreed, in writing, between the Parties. Any agreement
generated by this informal dispute resolution process to resolve a dispute shall be
reduced to writing.
B. Corrective Action Plan: If the Implementation Reviewer determines that Defendants

have failed to meet two (2) or more Performance Criteria for two (2) successive
reporting periods, then Defendants shall, within forty-five (45) days of their receipt of
the reviewer’s report, draft a corrective action plan to address those unmet
Performance Criteria and provide a copy of that plan to Plaintiffs and the
Implementation Reviewer, through counsel. The Parties agree that any plan drafted
and submitted under this section shall not create new substantive commitments or
otherwise alter the substantive commitments under this Agreement.
C. Court Intervention: If Defendants’ performance does not meet the applicable

Performance Criteria in the monitoring report immediately subsequent to the
corrective action planning process set forth above in Section IV.3.B., Plaintiffs shall
have the right to seek relief from the federal District Court based on the full scope of
its equitable and contempt powers. The Parties agree that the informal dispute
resolution procedure set forth in Section IV.3.A is a condition precedent to seeking
court intervention under the terms of this Paragraph.
4. Release and Fees
A. The Parties agree that the Plaintiff Class should be certified under Fed. R. Civ. P.
23(a) and (b)(2) in order to settle the claims brought in this case on a class-wide basis,
subject to the Court’s approval.
B. This Agreement resolves all existing disputes in the case of Bryan C., et al. v.
Lambrew, et al., Civil Action Number 1:21-cv-00005-NT and satisfies and resolves
the claims of the Named Plaintiffs and the Plaintiff Class for the asserted
constitutional and statutory causes of action raised in the above-entitled case as of the
date of this Agreement. Until Defendants exit this Agreement, Defendants are
released from a future class action by the Plaintiff Class alleging any cause of action
arising out of Defendants’ systemic oversight, administration, delivery, record-
keeping, and other procedures concerning Psychotropic Medication. This Agreement
does not preclude any individual Plaintiff Class member from bringing an individual
action for money damages, nor does it preclude any individual Plaintiff Class member
from asserting claims alleging a claim for a particularized injury arising from their
individual circumstances and seeking individual, as opposed to systemic relief. This
Agreement, however, shall not alter any rights, remedies, or defenses in any such
action alleging particularized injury or harm.
C. This Agreement is a compromise of disputed claims and is not an admission of

liability or an admission of any allegation in the Complaint on the part of any Party,
which allegations Defendants specifically deny.
12 of 15
D. After agreeing to all substantive settlement terms in this agreement, the Parties agreed
that Plaintiffs are entitled to reimbursement by Defendants of a reasonable amount of
Plaintiffs’ attorneys’ fees, costs, and expenses to date. Plaintiffs will file a motion for
reimbursement seeking a specific reasonable amount for Plaintiffs’ attorneys’ fees,
costs, and expenses through the date of final approval of this agreement by the Court,
subject to the Court’s approval under Federal Rule of Civil Procedure 23(h), and
Defendants reserve their rights to object to the amount sought. The Parties reserve all
rights with respect to any petition for reimbursement of reasonable attorney’s fees,
costs, and expenses arising from a Party prevailing in an effort to enforce the terms of
this Agreement under Sections IV.3.A and 3.C. Neither Party shall seek or be entitled
to any award of reasonable attorney’s fees, costs, and expenses for any motion
pursuant to Section IV.1.B.a.i or ii.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
13 of 15
EXHIBIT A
ATTACHMENT A: TRIGGER LIST FOR CRT REVIEW
Except in an emergency, any “NO” response to Question 1 or 2 below requires referral to and a
recommendation from the OCFS Clinical Review Team (“CRT”), prior to the fulfillment of a
prescription and/or administration of a psychotropic medication.
1. Is an indicated DSM-V diagnosis in the child’s health care record? Y/N

2. Is the dosage within FDA dosage guidelines (where available)? Y/N
Except in an emergency, any “YES” response to Questions 3-7 below requires referral to and a
recommendation from the OCFS Clinical Review Team (“CRT”), prior to the fulfillment of a
prescription and/or administration of a psychotropic medication.
3. Is the child: (a) age 6 or older AND (b) already prescribed or will now be prescribed a total of 3 or
more psychotropic medications? Y/N
4. Is the child: (a) age 5 or younger AND (b) already prescribed or will now be prescribed a total of 2
or more psychotropic medications? Y/N
5. Is the child: (a) age 5 or younger AND (b) being prescribed or will now be prescribed any
antipsychotic or atypical antipsychotic? Y/N
6. Including this prescription, is the child now prescribed:
o Two (2) or more concomitant stimulant medicines (NOTE: two forms of a stimulant of the same
chemical entity, e.g., methylphenidate, does not qualify)? Y/N
o Two (2) or more alpha-agonist medicines? Y/N
o Two (2) or more antidepressant medicines? Y/N
o Two (2) or more antipsychotic medicines? Y/N
o Two (2) or more mood stabilizing medicines (NOTE: children with epilepsy or other seizure
disorders prescribed medications from this medication class to address seizures do not qualify)? Y/N
7. Has the prescriber identified that this medication is contraindicated given this child’s medical
history or current medications (including negative interactions between current medications)? Y/N
3
EXHIBIT B
GUIDE TO FILING GRIEVANCES INVOLVING CHILD OR

ADOLESCENT RECIPIENTS
We hope that this information will help explain how you can file a grievance, which is called a
grievance, with the Department if you ever feel your rights have been ignored, or you feel you have been
treated unfairly. The Department has set up a way for you to send in your grievance so you have the
chance to talk about this with the right people. This is called the Rights of Recipients of Mental Health
Services Grievance.
The information listed here will answer these questions:

• What is a grievance?
• What is the grievance process?
• How do I file a grievance?
• Where do I send my grievance form?
• What do I do if I do not agree with a decision made in the grievance process?
• Where can I get help with my grievance?
WHAT IS A GRIEVANCE?
If you believe that someone has violated your rights while you are looking for or receiving mental health
services, you can file a grievance, saying a violation of your rights has occurred. Filing a grievance is a
way to make sure that you are heard when you believe that one of your rights has been violated. For
example:
• You think your child’s counselor gave information about your child or family to someone
without your written permission. You believe that this is wrong and feel the counselor should not
be sharing information without your permission. You believe your right to privacy and
confidentiality has been ignored. You can file a grievance.
• Your case manager has promised to help you fill out forms to get some more services you need
but keeps changing appointment dates and so, it never gets done. You have spoken with his or
her supervisor but nothing happened. You can file a grievance.
• You want to read all of your child’s treatment records but the agency providing your child’s
treatment refuses to let you. You can file a grievance.
These are just a few examples of why someone might file a grievance. Your reason for filing a grievance
might be different from these, but the Grievance Process is the same, no matter who files it, and no
matter what their grievance is about.
INFORMAL GRIEVANCES INVOLVING CHILD OR
ADOLESCENT RECIPIENTS
We expect agencies to have a way for people receiving their services to talk about any grievances they
may have with the agency. We encourage you to speak directly with your agency to try to settle the
grievance to everyone’s satisfaction. Settling things this way is the easiest, and usually the best way to
handle your grievances. But, if you feel that this is not working, or is not to your satisfaction, or if you
are simply uncomfortable discussing your grievance with your provider, you may proceed at any time
with the formal resolution process that follows.
WHAT IS THE GRIEVANCE PROCESS?
The Grievance Process is a system created by the Department to make sure that if you feel your rights
have been violated or ignored by a person, agency, or by the Department while seeking or getting mental
health treatment, you will have the opportunity to be heard in a meeting or hearing managed by an
objective third party.
HOW DO I FILE A GRIEVANCE?
There may be other ways, instead of filing a grievance, that you may want to consider. For instance, you
may ask for meeting with a representative of the hospital, agency, or person you are considering filing a
grievance against, to talk about the situation and try to find a solution. If you want to find out more
about other ways of resolving issues, contact one of the agencies listed at the end of this guide.
If you have been unable to resolve your grievance through speaking with your service provider, or you
choose to take your grievance directly to the Department, you must send in a completed Grievance
Form, which you will find at the end of this Guide, and also available from all providers of mental
health services to children and adolescents and at all DHHS offices.
The Grievance Form asks you to provide the following information about the problem or issue you
wish to grieve:
• the name, address, phone number and date of birth of the child or adolescent recipient
• the name, address, phone number and relationship to the child/adolescent of the person filing the
grievance
• the name, address, and phone number of the provider/agency involved
• the dates upon which the problem/issue which you are grieving took place
• the names of all people involved
• a description of what happened that has resulted in the filing of the grievance
• the specific issue that needs to be addressed
• your suggestions about possible ways to resolve the situation
If you need help in filling out the Grievance Form, your provider, or a representative from DHHS, is
also available to assist you.
WHERE DO I SEND MY GRIEVANCE FORM?
Send the fully completed Grievance Form to the designated DHHS Grievance Coordinator listed at the
bottom of the form, making sure to write grievance on the lower left corner of the envelope. Grievance
Forms may also be faxed to the DHHS Grievance Coordinator, please see the bottom of the form.
GRIEVANCE CHOICES
You may choose one of two ways to have your grievance heard:
1) Mediation
2) Administrative Hearing
MEDIATION
In mediation, a meeting is held with you and the party you have a grievance against, and an impartial
party runs the meeting trying to help you reach a solution. You, or the other party, may have a lawyer
present to help, but it is not required to have lawyers there. A settlement is reached only with the full
involvement and approval of the parties in the dispute. Every attempt will be made to hold the
mediation meeting at a time and place convenient for you.
ADMINISTRATIVE HEARING
An administrative hearing is a more formal process, conducted by an impartial Hearing Officer from the
Office of Administrative Hearings, Department of Health and Human Services. The hearing must be
conducted in accordance with state law, and must be electronically recorded. The administrative hearing
will take place at a location that is convenient for the parties, and at a time when the Hearing Officer is
available.
When you send in your Grievance Form, you can indicate on the form whether you choose mediation
or an administrative hearing to resolve your grievance. If you do not indicate one or the other, the
Grievance Coordinator will contact you, because you must make a selection in order to have your
grievance resolved.
Whether you choose mediation or an administrative hearing, you will need to complete and submit a
release so that the Office of Child and Family Services may share information with the mediator or
Office of Administrative Hearings. The following is a link to the release form on the Department’s
website: https://www.maine.gov/dhhs/sites/maine.gov.dhhs/files/inline-files/authorization-release_0.pdf.
Additionally, if you would like to authorize a representative to act on your behalf, please complete this
form: https://www.maine.gov/dhhs/ofi/documents/Appointment-of-Authorized-Representative-Form.pdf
WHAT HAPPENS IF I CHOOSE MEDIATION?
The mediator will contact you to arrange a time and location for the mediation meeting to take place.
This meeting must be held within five (5) calendar days of the Grievance Coordinator’s receipt of the
fully completed Grievance Form.
However, you may waive this requirement that the mediation meeting take place within five calendar
days, if you desire. You will be considered to have waived this requirement if you are unavailable to
attend any mediation meeting offered to you within this five-day period. If this happens, the mediation
meeting will be held as soon as practicable.
If mediation is successful, resolution of your grievance to your satisfaction will be achieved by the end
of the mediation process.
If a resolution satisfactory to you has not been achieved by the conclusion of the mediation meeting, you
may request a subsequent administrative hearing. If you request the administrative hearing before you
leave the mediation meeting, then the written recommended decision of the hearing officer must be
issued within two weeks of the Grievance Coordinator’s receipt of the Grievance Form. However, if
you request an administrative hearing at any time after the conclusion of the mediation meeting, your
request will be treated in the same manner as if you had chosen an administrative hearing initially.
WHAT HAPPENS IF I CHOOSE AN ADMINISTRATIVE HEARING?
The DHHS Grievance Coordinator, or the Hearing Office representative will contact you to arrange a
time and location for the hearing to take place. The hearing must be held within five (5) calendar days
of the Grievance Coordinator’s receipt of the fully completed Grievance Form.
However, you may waive this requirement that the administrative hearing take place within five
calendar days, if you desire. You will be considered to have waived this requirement if you are
unavailable to attend any administrative hearing offered to you within this five-day period. If this
happens, the hearing will be held as soon as practicable.
The administrative hearing is a formal process, conducted in accordance with State law, and presided
over by an impartial Hearing Officer from the Division of Administrative Hearings of the Department of
Labor. All hearings are recorded in a form susceptible to transcription, as required by law.
Pre-hearing Conference: A pre-hearing conference is not required by law, but the Hearing Officer may
hold a meeting to talk to you, and someone who represents the agency, or facility, that you have filed a
grievance against. During this meeting, you will be asked to identify the issues that need to be discussed
during the hearing. You may also be asked to talk about what, if any, witnesses and documents you may
want to bring to the hearing, so that it will proceed as smoothly as possible.
The Administrative Hearing: At the hearing, you may present any witnesses to the event(s) under
discussion, or present any documents that are relevant to the situation under review. In addition to
yourself, providers, as well as advocates for your child/adolescent, may testify during the administrative
hearing.
You also may examine and/or cross-examine witnesses, and have an attorney, a designated
representative, or Disability Rights Maine, or DHHS Office of Advocacy staff help you if you wish.
While hearings are not conducted like courtroom trials, the Hearing Officer may establish and maintain
rules that everyone present at the hearing must follow.
The Hearing Officer’s Decision: The Hearing Officer will issue to the Commissioner of DHHS a
formal written recommended decision that discusses the issues and testimony presented, and the facts of
the situation, as he or she has determined them. This recommended decision must be issued within one
week of the Grievance Coordinator’s receipt of the Grievance Form, unless otherwise agreed to by the
parties involved. If the administrative hearing was requested after mediation, the Hearing Officer must
issue the written recommended decision with findings of fact within two weeks of the Grievance
Coordinator’s receipt of the Grievance Form.
You may waive the deadline for a recommended decision, if you desire to do so. You will be
considered to have waived the deadline if the hearing is held outside the five-day period at your request,
or due to the unavailability of you, or any person you want to have present at the hearing.
At any point after requesting an administrative hearing, you may elect mediation. If you do this, the
deadline for scheduling the administrative hearing, as well as the Hearing Officer’s deadline for issuing
a written recommended decision, are suspended, and mediation will be held as soon as practicable.
It is important to remember that you can avoid a hearing and settle your grievance at any point in
the process--until the Hearing Officer has issued his or her decision. You can even settle your
grievance after the hearing has begun.
The Commissioner’s Review: The Commissioner will review the recommended decision, and must
issue a final decision adopting, modifying, or rejecting the Hearing Officer’s recommended decision, no
later than seven (7) business days from the date of the Hearing Officer’s recommended decision.
Parties to the grievance may submit written memoranda to the Commissioner for his/her consideration
no later than five (5) business days from the date of the Hearing Officer’s recommended decision.
WHAT DO I DO IF I DO NOT AGREE WITH A DECISION MADE IN THE

GRIEVANCE PROCESS?
The decision of the Commissioner represents the final State Agency action on the matter. If you are still
dissatisfied with the outcome of this ruling, you may appeal to the Maine Superior Court under
Rule 80C of the Maine Rules of Civil Procedure.
WHERE CAN I GET HELP WITH MY GRIEVANCE?
For more general information about or assistance with the grievance process, contact:
Disability Rights Maine
Disability Rights Maine (DRM)

160 Capitol St.
Suite 4
Augusta, ME 04330
Phone and TTY: (207) 626-2774 or 1-800-452-1948 Fax: (207) 621-1419
All formal grievances involving child or adolescent recipients must be submitted on the
attached DHHS Grievance Form to:
Children's Services Grievance Coordinator

DHHS
Office of Child and Family Services, Children’s Behavioral Health Services
11 State House Station, 2 Anthony Avenue
Augusta, ME 04333-0011
Phone: (207) 493-4135; Fax: (207) 287-5282; Maine relay - 711
EXHIBIT C
Exhibit C to Joint Settlement Agreement

# Issue Agreement Performance Criteria %
Reference
1 Medical III. 1.A. Was the portable health record provided to the resource parent(s) within 3 80%
Records days following initial and each subsequent placement?
2 Medical III. 1.F. Did DHHS update the child’s portable health record and case plan at least 80%
Records once within the prior 6 months (unless the child entered care within the
prior 6 months), and was the updated case plan provided to the resource
parent(s)?
3 Medical III. 1.C. For a child who entered care during the review period, did DHHS schedule 80%
Records a medical examination by a licensed physician or nurse practitioner within
10 working days after the department's custody of the child commenced?
22 M.R.S.A. § 4063-A(1)
4 Medical III. 1.C. If the physician or nurse practitioner who performed the initial medical 80%
Records appointment determined that a psychological assessment of the child is
appropriate, was the appointment for that assessment obtained within 30
days of the initial medical examination? 22 M.R.S.A. § 4063-A(2)
5 Informed III. 2.A. If any of the following occurred: 80%
Consent III. 2.E. - administration of a newly prescribed psychotropic medication;
III. 2.G. - discontinuation of consent of a pre-existing psychotropic
medication;
- a change in the dosage of a psychotropic medication; or
- the renewal of informed consent;
was an Informed Consent Form completed?
6 Informed III. 2.C. Following notification of an emergency prescription for a psychotropic 80%
Consent III. 2.H. medication, was an IC form executed within 5 business days and placed in
the child’s case record?
7 Prospective III. 3.C. If one or more referral circumstances applied, did the Authorized Consenter 80%
Secondary refer to the OCFS Child Psychiatric Team?
Review
8 Prospective III. 3.D. Was the prospective secondary review completed within 5 business days of 80%
Secondary the request by the Authorized Consenter?
Review
9 Retrospective III. 3.E. Did OCFS complete a secondary review of prescription psychotropic 80%
Secondary III. 3.G. medications meeting conditions (identified in Section 3.E. (a) – (f)) within
Review 45 days of receipt of the quarterly report with child-specific data for
children in DHHS custody who have been prescribed psychotropic
medications?
10 Medical III. 1.B Defendants will make a number (to be determined by agreement of the 80%
Records Parties) of records of children with prescriptions for psychotropic
medications who have been in DHHS custody for at least sixty (60) days
available to the Implementation Reviewer for each reporting period. The
criteria for compliance would be: is each and every field populated? Any
blank field (with the exception of Allergies, if there are no allergies) would
render the record noncompliant. The totals for each reporting period for
Item #10 would be subject (as with the other performance metrics) to a
percentage rate to determine whether Defendants have met or failed to meet
this metric.
Fields:
1
Medical Allergies Medical Medications Diagnoses

Appointments Providers
Appointment Allergy Medical Medication Health

Date / Time Type Provider Name Care
Type Provider
Health Care Allergy Primary Medication Diagnosis

Provider Phone Start Date
Appointment Allergic Practice Prescriber Diagnosis

Type Reaction Name Name Date
Allergy Physician Dosage

Details Name
Location Frequency per

day
11 Medical III. 1.E. When a minor: 80%

Records - has entered DHHS custody with prescriptions for psychotropic
medications; or
- is prescribed psychotropic medications while in DHHS custody:
Has DHHS requested records from the minor’s current or last known
primary care physician; behavioral health provider(s); and school /
educational, institution
within 10 days of DHHS obtaining those individuals’ contact information?
12 Medical If records requested by DHHS when a minor: 80%

Records - has entered DHHS custody with prescriptions for psychotropic
medications; or
- is prescribed psychotropic medications while in DHHS custody;
were not received within 30 days of the initial request, did DHHS make a
second request?
13 Informed III. 2.I Did all OCFS staff who served as an Authorized Consenter during the 80%
Consent reporting period complete the required psychotropics training and pass the
(Training) subject matter test?
14 Prospective / III. 3.B. When the clinical review team has made written findings and 80%
Retrospective recommendations, were those written findings and recommendations placed
Review in the child’s case file
2
# Issue Agreement Data Sharing Elements

Reference
A Informed III.2 Semi-annual reporting on OCFS’s efforts to develop and maintain policies
Consent and systems that allow for the tracking of informed consent and assent
both at an individual and aggregate level, and procedures to address
noncompliance.
B All All For the duration of the Agreement, Defendants shall provide to the
Implementation Reviewer and Plaintiffs’ Counsel the following data points
at the time Defendants provide data on the performance metrics to the
Implementation Reviewer:
1. Number of children in foster care currently prescribed a Psychotropic
Medication compared to the overall number of children in foster care.
2. Percent of children in foster care currently prescribed one or more
Psychotropic Medication(s).
C Medical Records III. 1.G. Current / Revised OCFS Policies addressing Section III. 1. A – F.
D Informed III. 2.I. Certification by DHHS that enumerated topics are included in training.
Consent
E Prospective and III. 3.A. List of Current Clinical Review Team members: Nurse Consultant(s), the
Retrospective OCFS Child and Adolescent Psychiatric Consultant, and the OCFS
Review Medical Director
F Prospective and III. 3.A. Is the OCFS Child and Adolescent Psychiatric Consultant:
Retrospective - board certified;
Review - licensed, and;
- an experienced child and adolescent psychiatrist?
G Medical Records III.1.B Each time Defendants provide the sample of Portable Health Records of
children with prescriptions of psychotropic medication to the
Implementation Reviewer pursuant to Exit Criteria 10, Defendants will
also provide this sample to Plaintiffs, along with the Medicaid billing data
related to psychotropic medications for each child in the sample. Upon
written request, Defendants shall also provide to Plaintiffs all or a portion
of the health records in the case plans for the children in the sample.

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Case 1:21-cv-00005-NT Document 118 Filed 03/01/24 Page 1 of 21 PageID #: 967

UNITED STATES DISTRICT COURT FOR THE

Bryan C. and Henry B. through their next friend )

JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION

C. Nivison, and consultation with clients and subject matter experts.

final settlement approval process.

I. OVERVIEW OF THE LITIGATION

alleged inadequate monitoring and oversight of the administration of psychotropic medications to

See id.; see also Ex. 1, Settlement Agreement § II.

II. SUMMARY OF THE SETTLEMENT AGREEMENT

and uncertainties inherent to litigation.

in the Plaintiffs’ Complaint. The commitments in the Agreement include:

III. THE COURT SHOULD PRELIMINARILY APPROVE THE SETTLEMENT

1. Legal Standard for Preliminary Approval of a Class Action Settlement Agreement

two-step notice-then-approval procedural framework applies to [evaluating] proposed class

the proposed settlement is fair, reasonable, and adequate. Id. §§ 21.633-35.

(such as unduly preferential treatment of class representatives or of segments of the class, or

In addition, determinations regarding the reasonableness of a settlement agreement should

535 F. Supp. 2d 249, 259 (D.N.H. 2007).

2. The Settlement Agreement Should be Preliminarily Approved

Anderson, 2022 WL 1156056, at *5 (citation omitted).

in response to document requests as well as interrogatory responses. While Defendants completed

FED. R. CIV. P. 23(e)(2)(A).

Implementation Reviewer to monitor implementation. Leveraging the expertise of Plaintiffs’ outside

Implementation Reviewer of Defendants’ progress in relation to certain Performance Criteria,

Plaintiffs’ systemic claims addressing Defendants’ oversight of the administration of psychotropic

taking this case to trial”).

of prolonged litigation before implementing changes to Defendants’ oversight of the administration

members relating to potential adverse consequences inherent in the psychotropic medications at

IV. THE PLAINTIFF CLASS SHOULD BE PROVISIONALLY CERTIFIED

1. Plaintiffs Satisfy the Numerosity Requirement

met with approximately 110 class members).

members of the Class, so judicial economy favors certification. As in Curtis, it would be

members was impracticable).

2. Plaintiffs Satisfy the Commonality Requirement

initiatives/child-welfare (accessed Jan. 26, 2024).

Amendment amounts to a unconstitutional deprivation of the cost-of-living adjustments.”); Risinger

commonality requirement is satisfied.”).

class-wide resolution in one stroke. See id.

Plaintiff Class as a whole. See id. ¶¶ 274-79.

similar litigations. See, e.g., M.B., 327 F.R.D. at 280.

6 Defendants dispute Plaintiffs’ allegations. See Ex. 1, Settlement Agreement § IV.4.C.

3. Plaintiffs Satisfy the Typicality Requirement

23(a)’s typicality requirement is satisfied.

4. Plaintiffs and Their Counsel Will Adequately Represent the Class

on behalf of the Named Plaintiffs whom he or she represents, is dedicated to improving

settlement negotiations. Nardi Decl. ¶¶ 6, 8.

2, 6; Nardi Decl. ¶ 5. Accordingly, Rule 23(a)’s adequacy requirement is met.

V. THE COURT SHOULD APPOINT PLAINTIFFS’ COUNSEL AS CLASS

appointment as Class Counsel.

VI. THE PROPOSED CLASS NOTICE AND NOTICE PLAN SHOULD BE

heard in favor of or in opposition to the Settlement Agreement, and it includes a placeholder to

approval of the Settlement Agreement as follows:

Dated: March 1, 2024

BERNSTEIN, SHUR, SAWYER & NELSON, P.A.

/s/ John A. Woodcock III .

John A. Woodcock III

/s/ Marissa C. Nardi .

ATTORNEYS FOR PLAINTIFFS

/s/ Sean Magenis .

ATTORNEYS FOR DEFENDANTS

UNITED STATES DISTRICT COURT FOR THE

Bryan C. and Henry B. through their next friend )