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Orden v. Schafer

United States District Court, E.D. Missouri, Eastern Division

September 11, 2015

JOHN VAN ORDEN, et al., Plaintiffs,
v.
KEITH SCHAFER, et al., Defendants

         As Amended December 22, 2015.

Page 840

          For John R. Van Orden, Plaintiff: Anthony E. Rothert, LEAD ATTORNEY, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, St. Louis, MO USA; Daniel K. O'Toole, LEAD ATTORNEY, ARMSTRONG TEASDALE, LLP, St. Louis, MO USA; Eric M. Selig, LEAD ATTORNEY, ROSENBLUM AND SCHWARTZ, Clayton, MO USA; John H. Quinn, III, LEAD ATTORNEY, ARMSTRONG TEASDALE, LLP, St. Louis, MO USA; Christopher LaRose, ARMSTRONG TEASDALE, LLP, St. Louis, MO USA; Gillian R. Wilcox, ACLU OF MISSOURI, Kansas City, MO USA; Grant R. Doty, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, St. Louis, MO USA.

         For Michael D. Mccord, Joseph Miller, Macon Baker, Chance Tyree, Walter W. Ritchey, David Brown, Anthony Amonette, Richard Tyson, Wade A. Turpin, Plaintiffs: Anthony E. Rothert, LEAD ATTORNEY, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, St. Louis, MO USA; Daniel K. O'Toole, LEAD ATTORNEY, ARMSTRONG TEASDALE, LLP, St. Louis, MO USA; Eric M. Selig, LEAD ATTORNEY, ROSENBLUM AND SCHWARTZ, Clayton, MO USA; James G. Martin, LEAD ATTORNEY, DOWD BENNETT, LLP, Clayton, MO USA; John H. Quinn, III, LEAD ATTORNEY, ARMSTRONG TEASDALE, LLP, St. Louis, MO USA; Christopher LaRose, ARMSTRONG TEASDALE, LLP, St. Louis, MO USA; Gillian R. Wilcox, ACLU OF MISSOURI, Kansas City, MO USA; Grant R. Doty, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, St. Louis, MO USA.

         For Matthew King, Andre Cokes, Plaintiffs: Daniel K. O'Toole, LEAD ATTORNEY, ARMSTRONG TEASDALE, LLP, St. Louis, MO USA; Eric M. Selig, LEAD ATTORNEY, ROSENBLUM AND SCHWARTZ, Clayton, MO USA; James G. Martin, LEAD ATTORNEY, DOWD BENNETT, LLP, Clayton, MO USA; John H. Quinn, III, LEAD ATTORNEY, ARMSTRONG TEASDALE, LLP, St. Louis, MO USA; Anthony E. Rothert, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, St. Louis, MO USA; Christopher LaRose, ARMSTRONG TEASDALE, LLP, St. Louis, MO USA; Gillian R. Wilcox, ACLU OF MISSOURI, Kansas City, MO USA; Grant R. Doty, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION, St. Louis, MO USA.

         For Harold Myers, Reimbursement Officer, HealthLink, Individually and Officially, Alan Blake, Chief Operating Officer, MSOTC, Individually and Officially, Keith Schaefer, also known as Keith Schafer, Melissa Ring, Mark Stringer, Julie Inman, Jay Englehart, Justin Arnett, Defendants: Katherine S. Walsh, LEAD ATTORNEY, ATTORNEY GENERAL OF MISSOURI, Assistant Attorney General, St. Louis, MO USA; Philip Sholtz, LEAD ATTORNEY, ATTORNEY GENERAL OF MISSOURI, Assistant Attorney General, St. Louis, MO USA; Joseph Paul Dandurand, ATTORNEY GENERAL OF MISSOURI, Jefferson City, MO USA; Mary Delworth Morris, ATTORNEY GENERAL OF MISSOURI, St. Louis, MO USA.

         For Rick Gowdy, Joseph Parks, M.D., Robert Reitz, Linda Moll, Daman Longworth, Donna Augustine, Dave Schmitt, Marty Martin-Forman, Ian Fluger, Sherry Lee, Ericka L. Kempker, Kristina Bender-Crice, Defendants: Joel A. Poole, LEAD ATTORNEY, ATTORNEY GENERAL OF MISSOURI, Assistant Attorney General, Jefferson City, MO USA; Katherine S. Walsh, LEAD ATTORNEY, ATTORNEY GENERAL OF MISSOURI, Assistant Attorney General, St. Louis, MO USA.

         For Doe Defendants, Defendant: Joel A. Poole, LEAD ATTORNEY, ATTORNEY GENERAL OF MISSOURI, Assistant Attorney General, Jefferson City, MO USA.

         For George Lombardi, in his official capacity as the Director of the Missouri Department of Corrections, Defendant: Katherine S. Walsh, LEAD ATTORNEY, ATTORNEY GENERAL OF MISSOURI, Assistant Attorney General, St. Louis, MO USA; Philip Sholtz, LEAD ATTORNEY, ATTORNEY GENERAL OF MISSOURI, Assistant Attorney General, St. Louis, MO USA; Mary Delworth Morris, ATTORNEY GENERAL OF MISSOURI, St. Louis, MO USA.

Page 841

         AMENDED MEMORANDUM OPINION

         AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE.

         This class action is before the Court following a bench trial to address Plaintiffs' claims in their Fifth Amended Complaint. Plaintiffs are civilly committed residents of the Missouri Department of Mental Health's (" DMH" ) Sex Offender

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Rehabilitation and Treatment Services (" SORTS" ) facilities, who have been declared sexually violent predators (" SVP" ) under Missouri's SVP Act, Mo. Rev. Stat. § § 632.480-632.525. Plaintiffs state claims under 42 U.S.C. § 1983, asserting that the SVP Act is unconstitutional as written and as applied to SORTS, and that the reimbursement sought by the state from SORTS residents is also unconstitutional.

         Parties

         Plaintiffs are civilly committed residents of SORTS, who were committed to the custody of the DMH by a judgment of a Missouri circuit or probate court, pursuant to the SVP Act. On September 30, 2011, the Court certified this case as a class action under Federal Rule of Civil Procedure 23(b)(2). The Court certified two classes: (1) a " Treatment Class" consisting of persons who are, or will be, during the pendency of this action, residents of SORTS as a result of civil commitment, and (2) a " Charging Class" consisting of persons who were, are, or will be, during the pendency of this action, residents of SORTS as a result of civil commitment, and who have been, or will be, billed or charged for care, treatment, room, or board by SORTS.

         On the last day of trial, the parties informed the Court of their agreement that named Plaintiffs Macon Baker, David Brown, Joseph Bowen, and William Murphy are not members of the Treatment Class because they were solely pre-trial detainees,[1] and that as such, their claims relating to treatment are moot. Baker and Brown were never committed to SORTS because a jury found that they did not meet the criteria of an SVP. And as of the last day of trial in this case, Bowen and Murphy had not been committed to SORTS and were awaiting a civil commitment trial to determine whether they met the criteria of an SVP. Other than these four individuals, all Plaintiffs are currently civilly committed at one of two SORTS facilities in Farmington and Fulton, Missouri.

         Defendants are executives or employees of SORTS and the DMH, and all are sued solely in their official capacities.

         Defendant Keith Schafer is the Director of the DMH. Defendant Mark Stringer is the Director of the DMH's Division of Behavioral Health. Defendant Richard Gowdy is the Deputy Director of the DMH's Division of Behavioral Health and the former Director of the DMH's Forensic Services. Defendant Joseph Parks is the former Chief Clinical Officer of the DMH's Office of Director. Defendant Robert Reitz is the Director of the DMH's Psychiatric Facilities and Chief Executive Officer of Fulton State Hospital, which houses SORTS-Fulton. Defendant Melissa Ring is the former Chief Operating Officer of Adult Psychiatric Services (" APS" ) at the Southeast Missouri Mental Health Center (" SMMHC" ), whose responsibilities included supervision of SORTS-Farmington. Defendant Alan Blake is the former Chief Operating Officer of SORTS and is currently a SORTS consultant. Defendant Jay Englehart is the Medical Director of the SMMHC and the Director of Treatment Services for SORTS-Farmington. Defendant Julie Inman is the Regional Executive Officer of the Southeast Region of the DMH, which includes the SMMHC and SORTS. Defendant Linda Moll is the Director of Behavioral Treatment Services, APS at the SMMHC. Defendants Harold Myers and Judy Sumpter are reimbursement officers at the SMMHC. Defendant Damon Longworth

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is the Chief Financial Officer of the SMMHC. Defendant Donna Augustine is the Director of Social Work at the SMMHC. Defendant David Schmitt is the Chief Operating Officer of the SMMHC, and the former Quality Improvement Director of the SMMHC. Defendant Justin Arnett is the Chief Nurse Executive of the SMMHC. Defendant Marty Martin-Foreman is the Chief Operating Officer of Fulton State Hospital. Defendant Ian Fluger is the Program Treatment Coordinator of SORTS-Fulton. Defendant Sherry Lee is the Chief Nurse Executive of Fulton State Hospital. Defendant Kristina Bender-Crice is a Unit Program Supervisor at SORTS-Farmington. Defendant Erica Kempker is a former employee of SORTS-Farmington.

         Proceedings

         Plaintiffs claim that that the SVP Act on its face and as applied to the SORTS treatment program violates the Due Process Clause, and that the reimbursement sought by the state from SORTS residents also violates the Due Process Clause.[2] Plaintiffs assert two types of as-applied claims regarding treatment. First, Plaintiffs claim that particular modalities of treatment at SORTS are inadequate due to staff and funding shortages. Second, Plaintiffs claim that the entire SORTS treatment program is a sham because, in its 16 years of operation, SORTS has neither established the risk assessment and release procedures contemplated by the SVP Act, nor successfully treated and released, following such treatment, any residents back into the community.

         After extensive informal and formal discovery, the Court, on December 19, 2014, granted Plaintiffs' uncontested motion to bifurcate the trial into two phases: liability and remedy. (Doc. No. 358.) An eight-day trial solely on the issue of liability was held beginning on April 21, 2015.

         Four expert witnesses testified at trial. Clinical psychologist Brian Abbott, Ph.D., and licensed clinical social worker David Prescott testified for Plaintiffs. Dr. Abbott has extensive experience in developing, implementing, and reviewing treatment programs for sex offenders, and in conducting forensic evaluations of individuals civilly committed as SVPs. Prescott formerly served as Treatment Assessment Director of Wisconsin's SVP program, and he, too, has extensive experience in developing, assessing, and providing training regarding SVP treatment programs around the country, including at SORTS. Prescott also formerly served as a board member and president of the national Association for the Treatment of Sexual Abusers (" ATSA" ), and he currently serves on the board of directors of the national Sex Offender Civil Commitment Providers' Network (" SOCCPN" ).

         Clinical psychologist Anita Schlank, Ph.D., and forensic psychiatrist Angeline Stanislaus, M.D., testified for Defendants. Dr. Schlank is the Clinical Director of Virginia's SVP civil commitment program. She has provided sex offender evaluation and treatment for approximately 30 years, formerly served as the Clinical Director of Minnesota's SVP civil commitment program, and has served as a consultant for several other SVP civil commitment programs around the country, including SORTS. She also serves on the board of directors of SOCCPN. Dr. Stanislaus is the Chief Medical Director of Adult Services for the DMH, and she oversees the two hospitals in which the SORTS facilities are housed. Dr. Stanislaus also has several years of experience in conducting forensic

Page 844

evaluations of civilly committed sex offenders in Illinois and has testified as an expert witness in numerous civil commitment trials.

         The following findings of fact and conclusions of law are entered based on the entire record, including the trial testimony and exhibits, and the parties' post-trial briefs. As set forth below, the Court finds that Plaintiffs have proved their claims in part.

         SUMMARY OF DECISION

          Missouri's SVP Act permits the state to involuntarily detain individuals outside of the criminal justice system, potentially indefinitely, under a civil commitment process designed to protect the public from persons who suffer from severe mental abnormalities and who are dangerous. Unlike criminal systems, which punish individuals for past criminal conduct, civil commitment systems such as SORTS involuntarily confine individuals who have in many cases already served complete prison sentences for their crimes, but who, by reason of mental illness or abnormality, are deemed likely to commit acts of violence in the future.

         Where so significant a restriction of an individual's liberty is at issue, the Due Process Clause of the United States Constitution requires that the nature and duration of the confinement bear some reasonable relation to the confinement's non-punitive, civil purpose. Thus, the state must ensure that it civilly confines individuals only so long as they are both mentally ill and dangerous. If confinement continues beyond that time, or if it imposes restrictions that are so excessive as to indicate the forbidden purpose to punish, it becomes unconstitutional.

         The evidence at trial did not establish that the SVP Act is unconstitutional in all of its applications, or that the particular treatment modalities at SORTS are so lacking as to violate the Due Process Clause. Nor did the evidence establish that the state's reimbursement scheme is unconstitutional. Therefore, the Court will deny relief with respect to Plaintiffs' claims challenging the SVP Act on its face, challenging the constitutional adequacy of the SORTS treatment modalities, and challenging the state's reimbursement scheme.

         However, the overwhelming evidence at trial--much of which came from Defendants' own experts--did establish that the SORTS civil commitment program suffers from systemic failures regarding risk assessment and release that have resulted in the continued confinement of individuals who no longer meet the criteria for commitment, in violation of the Due Process Clause. This case will proceed to the remedy phase to determine appropriate relief regarding these specific, as-applied constitutional deficiencies.

         FINDINGS OF FACT

         History of Missouri's SVP Act and SORTS

         Twenty states, including Missouri, have enacted laws permitting the civil commitment of sex offenders. Thirty states have no such law. Missouri's SVP Act became effective on January 1, 1999. SORTS, previously known as the Sexually Violent Predator Treatment Program and later, the Missouri Sex Offender Treatment Center, opened just a few days later, on January 4, 1999.

         There are now two SORTS facilities. The first was opened in 1999 at the SMMHC in Farmington, Missouri. During the first decade of its operations, no residents were released from the SORTS-Farmington facility. In mid-2009, SORTS was running out of space for residents, and began to explore options, including the development of a community alternative for the aged and infirm and the opening of

Page 845

group homes. Another option considered was the conditional release of 8 to 16 residents to cottages at the St. Louis Psychiatric Rehabilitation Center (" SLPRC" ), a secure facility that is somewhat less restrictive than SORTS, and a group of individuals thought suitable for such release was identified. None of these options was pursued, however. Instead, in 2010, the state provided further funding which was used to expand the program at SORTS-Farmington, and to open a new SORTS facility at Fulton State Hospital in Fulton, Missouri.

         Both the SMMHC and Fulton State Hospital divide their hospital space between SORTS and other divisions for mentally ill persons, including criminal sex offenders who have not been declared SVPs under the SVP Act. At the SMMHC, the non-SORTS division is known as APS. At Fulton State Hospital, the non-SORTS division is known as " Fulton Proper." The SORTS facilities in both hospitals are considered to be either maximum security or high security facilities, with razor wire fences patrolled by armed guards. There are separate wards within each of the SORTS facilities for aged and infirm residents.

         In the fall of 2013, SORTS-Farmington opened a facility within its secure perimeter known as the " Annex." The Annex is a step-down unit, with space for up to eight residents, and is a somewhat less restrictive, group-home-type setting, that is behind the razor wire fence of SORTS-Farmington. There are currently five residents living in the Annex. Evidence was presented with respect to three of these residents, each of whom has obtained a court order finding that he no longer meets the criteria for commitment and is therefore entitled to conditional release.

         One such resident, James Lewis, received a court order for conditional release in January, 2012, after successfully completing the SORTS treatment program. Although SORTS treatment providers recommended his conditional release, they requested that his release be " without discharge." In the absence of any facilities to accommodate such a release, Lewis remained confined in the main ward of SORTS for a little over a year, until the Annex was opened.

         The other two Annex residents who obtained conditional release orders are Donald Williams and James Fennewald. Both obtained conditional release orders " without discharge," at the request of SORTS treatment providers, in 2013 and late 2014, respectively.

         Although treatment programs have been on-going at both facilities, and a number of residents have progressed through the designated treatment programs, no procedures or placement options for community reintegration have been established. Only two residents have ever been reintegrated into the community after civil commitment to SORTS, but neither was released as a result of successfully completing the treatment program.

         As discussed more fully below, the two residents released into the community after commitment to SORTS were DeWayne Arthur and Ronald Gibson. Neither the DMH nor SORTS was involved in either of these releases. Arthur was civilly committed but never received treatment at SORTS. Because of Arthur's medical frailty, Missouri's Attorney General reached an agreement with Arthur's attorney to discharge Arthur to a skilled nursing facility immediately after his commitment. The DMH and SORTS were not involved in this negotiation. Gibson spent more time at SORTS, but because he was aged and suffering from dementia, he was conditionally released by a court in 2010. This release was opposed by the DMH and SORTS. Expert witnesses from both sides and Defendant Jay Englehart, M.D.,

Page 846

Director of Treatment Services for SORTS-Farmington, all agreed at trial that neither the Arthur nor Gibson releases could be credited to the success of the SORTS treatment program. No other SORTS resident has been released into the community, and Missouri is at the bottom of SVP programs nationally in this respect.

         At the time of trial, there were approximately 200 individuals confined at SORTS under the SVP Act, including several residents over the age of 65 and others who are physically infirm. Both SORTS facilities are at or near maximum capacity.

         Missouri's SVP Act

          The SVP Act defines an SVP as " any person who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility" and who has either (a) pled guilty, been found guilty, or been found not guilty by reason of mental disease or defect of a sexually violent offense; or (b) has been committed as a criminal sexual psychopath pursuant to another Missouri statute. Mo. Rev. Stat. § 632.480(5).

         Among sex offenders, individuals civilly committed as SVPs are considered to pose the highest risk of sexually reoffending. However, evidence was credibly presented that recidivism rates for sex offenders generally may be overstated.[3]

          When a prisoner found guilty of a sexually violent crime is suspected of meeting the criteria of an SVP, the agency with jurisdiction provides notice to Missouri's Attorney General within 360 days prior to the prisoner's release. Id. § 632.483. The person is then evaluated by a prosecutors' review committee and a multidisciplinary team established by Missouri's Department of Corrections (" DOC" ), which includes psychiatrists and psychologists from both the DOC and the DMH, to assess whether the person meets the definition of an SVP. Id. If the prosecutors' review committee determines by a majority vote that the person meets the definition of an SVP, the Attorney General may file a petition in the probate division of the circuit court alleging that the person is an SVP, stating sufficient facts to support such an allegation, and also attaching a copy of the multidisciplinary team's assessment. Id. § 632.486. The court then holds a hearing to determine whether there is probable cause to believe that the person is an SVP, and if so, the person is held in secure custody until the time of trial. Id. § 632.489. The person has the right to counsel at the probable cause hearing and at trial. Id. § § 632.489-632.492.

          If at trial, the court or a jury by unanimous verdict determines " by clear and convincing evidence" that the person is an SVP, the person is " committed to the custody of the director of the [DMH] for control, care and treatment until such time as the person's mental abnormality has so changed that the person is safe to be at large." Id. § 632.495.2. The SVP Act provides that civilly committed persons " shall be kept in a secure facility designated by the director of the [DMH] and such persons shall be segregated at all times from any other patient under the supervision of the director of the [DMH]." Id. § 632.495.3.

Page 847

          Once a person has been civilly committed under the SVP Act, the director of the DMH or his " designee" must evaluate the person's " mental condition" once a year, and must provide the " yearly report" to the court that committed the person. Id. § 632.498.1. However, nothing in the SVP Act prohibits or prevents the DMH from providing more frequent updates to the court.

          There are two methods by which a person civilly committed as an SVP may obtain release. First, the director of the DMH must provide committed persons with an annual written notice of the person's right to petition the court for release over the director's objection.[4] Id. § 632.498.5(3)2. But petitions filed without the director's approval are subject to heightened requirements. For example, " [u]pon receipt of a first or subsequent petition from committed persons without the director's approval, the court shall endeavor whenever possible to review the petition and determine if the petition is based on frivolous grounds and if so shall deny the petition without a hearing." Id. § 632.504. Moreover, if a petition filed without the director's approval has been found to be frivolous or has been previously denied, the court must deny any subsequent petition " unless the petition contains facts upon which a court could find the condition of the petitioner had so changed that a hearing was warranted." Id.

          If a petitioner filing for release without the director's approval survives the frivolity review, he is then subject to the requirements of § 632.498. Under § 632.498.4, the court first holds a hearing at which the petitioner bears the burden to demonstrate by a " preponderance of the evidence," that he " no longer suffers from a mental abnormality that makes [him] likely to engage in acts of sexual violence if released." Id. § 632.498.4. If a petitioner can make this threshold showing, the court will set a trial on the issue. At trial, the burden of proof shifts to the state to show by clear and convincing evidence that " the committed person's mental abnormality remains such that the person is not safe to be at large and if released is likely to engage in acts of sexual violence." Id. § 632.498.5(3). If the state fails to meet this burden, the person is entitled to conditional release. Id.

          The second method by which a person civilly committed as an SVP may obtain release is by obtaining director authorization. " If the director of the [DMH] determines that the person's mental abnormality has so changed that the person is not likely to commit acts of sexual violence if released, the director shall authorize the person to petition the court for release." Id. § 632.501 (emphasis added). Director-authorized petitions are not subject to a frivolity review. Section 632.501 provides that " [t]he hearing and trial, if any" for director-authorized petitions " shall be conducted according to the provisions of section 632.498." Id.

         The uncontroverted testimony at the bench trial in this case suggested that the court proceedings would be more streamlined for director-authorized release petitions. This result is perhaps supported by the language " if any" in § 632.501.

         Section 632.505 of the SVP Act, governing conditional release, provides:

Upon determination by a court or jury that the person's mental abnormality has so changed[5] that the person is not

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likely to commit acts of sexual violence if released, the court shall place the person on conditional release pursuant to the terms of this section. The primary purpose of conditional release is to provide outpatient treatment and monitoring to prevent the person's condition from deteriorating to the degree that the person would need to be returned to a secure facility designated by the director of the [DMH].

Id. § 632.505.1. This section requires the DMH to " develop a conditional release plan which contains appropriate conditions for the person to be released," and which addresses the " person's need for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol and drug treatment." Id. § 632.505.2.

          The DMH must submit the proposed plan for conditional release to the court. Id. The reviewing court then determines the conditions that it " deems necessary to meet the person's need for treatment and supervision and to protect the safety of the public." Id. § 632.505.3. Section 632.505 lists 21 conditions to which conditionally released persons " shall be subject," such as maintaining a residence approved by the DMH; not having contact with any child without specific approval by the DMH; not consuming alcohol or controlled substances; not leaving the state without permission of the DMH; and submitting to electronic monitoring, which may be based on technology that identifies and records a person's location at all times. Id. This section also permits the court to add other conditions that it deems " necessary to meet the person's need for treatment and supervision and to protect the safety of the public." Id. However, the section also provides that the court " may modify conditions of release upon its own motion or upon petition of the [DMH], the [DOC], or the person on conditional release." Id. § 632.505.6. Moreover, although conditionally released persons may have to maintain a residence approved by the DMH, they are not required to be segregated from other mental health patients. Id. § 632.495.3.

          Individuals civilly committed to SORTS may also have to reimburse the state for any care and treatment provided by the DMH. Missouri Revised Statutes § 630.205.1 provides that a " person receiving services and the person's estate, spouse, parents, if the person is a minor, and any fiduciary or representative payee holding assets for the person . . . are jointly and severally liable for the fees for services rendered to the person by a residential facility[.]" Id. § 630.205.1. The director of the DMH determines the " maximum amount for services which shall be charged in each of the residential facilities" and applies a " standard means test" in determining the amount to be charged. Id. § 630.210.1. The SVP Act also provides that conditionally released persons may be required to pay " fees to the [DMH] and the [DOC] to cover the costs of services and monitoring," as a condition of release. Id. § 632.505.3(18). However, the reimbursement provisions state that " [n]o person who is domiciled in Missouri shall be denied services from a [DMH] facility because of an inability to pay for such services on the part of the individual, the spouse, or the parents." Id. § 630.205.4.

         SORTS Treatment Program

         SORTS has historically maintained a vision and mission of " no more victims," and at one point, the SORTS treatment manual stated that residents were to remain in the

Page 849

custody of the DMH until it was determined that the resident " will not engage in acts of sexual violence if discharged." (Pls.' Ex. 123 at 40.) These statements, which essentially require a complete absence of risk before a resident will be released, are inconsistent with the SVP Act's requirements. They are also unrealistic. Evidence was credibly presented that no adult male has a 0% risk of committing an act of sexual violence.

         Both SORTS-Farmington and SORTS-Fulton are accredited, as part of their respective hospitals, pursuant to the Joint Commission on Accreditation of Healthcare Organizations, also known as the " Joint Commission." The SMMHC, including SORTS-Farmington, passed the Joint Commission's survey performed in 2012, which reviewed, among other things, the ...


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