The Minnesota Department of Human Services (DHS) has launched an investigation into the billing practices of a court-appointed monitor who has been highly critical of the state’s efforts to reform services for people with disabilities.
Auditors at DHS are investigating whether more than $1.2 million in expense invoices submitted by the federally appointed court monitor and reimbursed by the agency are excessive and may violate state policy. Human Services Commissioner Lucinda Jesson ordered the review after discovering three first-class airplane tickets of more than $1,000 each that exceed state expense guidelines, according to an April 7 letter from Jesson obtained by the Star Tribune.
The monitor, David Ferleger of Jenkintown, Pa., was appointed by U.S. District Court Judge Donovan Frank to oversee the implementation of a landmark 2011 federal court settlement that required Minnesota to revamp its services for thousands of people with disabilities and compelled the state to phase out the use of restraints and seclusion in state-licensed facilities. Ferleger also was appointed as a technical consultant to the federal court in a class-action lawsuit challenging the constitutionality of Minnesota’s sex offender program. Ferleger has billed the state $1.24 million for his work on both cases since 2012, according to DHS.
“In the upcoming days, our internal audits office, at my request, will review the past billing practices [in the two cases] to ensure appropriate internal controls and the proper use of taxpayer dollars,” Jesson wrote. Ferleger did not respond to calls seeking comment, although in documents shared with attorneys the court monitor said his billing is “conservative” and in keeping with court guidelines.
The move to audit Ferleger’s receipts is seen by some close to the litigation as an effort to discredit a monitor who repeatedly and publicly admonished the DHS for failing to move quickly enough on major reforms of state services for people with disabilities. Ferleger was appointed in part because of Frank’s frustration with what he saw as the sluggish pace of DHS reform efforts.
In a scathing report last October, Ferleger found that state-regulated facilities continue to subject people with disabilities to harsh disciplinary practices, including life-threatening prone restraints and seclusion. Ferleger found that one woman at a group home in Crystal urinated on herself after being strapped to a restraint chair for up to nine hours a day without food or bathroom breaks.
In mid-April, Ferleger issued another report accusing the agency of filing inaccurate or unverifiable information with the federal court. Administrators at DHS have objected strongly to many of Ferleger’s claims, and their back-and-forth letters and motions with the court have become increasingly acrimonious in recent months.
‘Distraction from real issue’
“This looks to be a collateral attack on the court and a distraction from the real issue,” said Shamus O’Meara, a Minneapolis attorney representing people with disabilities and families in the 2011 court settlement. “DHS should take a look at the ongoing abuse of people who are vulnerable instead of griping about the court monitor’s expenses, which DHS brought upon itself.”
Roberta Opheim, the state ombudsman for mental health and developmental disabilities, questioned the timing of Jesson’s critique of Ferleger’s billings, noting that the concerns arose only after he became more critical of DHS. “Why is this coming out now when every state agency has an opportunity to scrutinize every state bill at the time when they receive it?” she asked.
State records show that Ferleger and his office billed the state for at least a dozen first-class plane tickets, ranging from $1,000 to $1,800 each, for round-trip flights from Philadelphia to Minneapolis. Though Ferleger is not a state employee, state policy requires the use of the lowest airfare when state funds are used, Jesson said in her April 7 letter to Ferleger.
“I reiterate the request that you book the lowest round trip airfare for your trips to Minnesota,” Jesson wrote to Ferleger.
‘Billing is conservative’
In a letter to lawyers in the case, Ferleger noted that DHS never has filed an objection to the court to any of his airplane tickets or any other expense since he was appointed court monitor nearly three years ago. Ferleger said he has “no practice of buying first-class airfare,” but noted that exceptional circumstances such as a change in weather often can require him to make a seat change. Ferleger added that it’s not always possible to book the lowest coach airfare because of a lack of available flights, a desire to reduce overnight expense and the scheduling of court meetings, he wrote.
In his memo to Jesson, Ferleger added that he chose “not to be compensated at all for significant time and expenses.” For instance, Ferleger said his time consulting with his assistant is not billed; and taxis to and from the Minneapolis airport are “almost never” billed to the state. “My billing is conservative,” Ferleger wrote.
The bulk of Ferleger’s invoices are for routine legal expenses, such as time spent meeting with DHS officials and reviewing documents. Those can add up quickly: He bills $225 per hour, which means that a four-hour meeting with state officials can run $900. Ferleger noted that he charges DHS less than half his usual hourly rate.
Jesson admitted in her April letter to Ferleger that her agency had never formally objected to his invoices, while noting that “we should have.” She wrote, “The fact that DHS did not assert formal objections earlier is a disservice to Minnesota taxpayers and the court.”
Staff researcher John Wareham contributed to this report