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HALDERMAN v. PENNHURST STATE SCH. & HOSP.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


December 23, 1977

TERRI LEE HALDERMAN, a retarded citizen, by her mother and guardian, Winifred Halderman; LARRY TAYLOR, a retarded citizen, by his parents and guardians, Elmer and Doris Taylor; KENNY TAYLOR, a minor, a retarded citizen, by his parents and guardians, Elmer and Doris Taylor; ROBERT SOBETSKY, a minor, a retarded citizen, by her parents and guardians, Frank and Angela Sobetsky; THERESA SOBETSKY, a retarded citizen, by her parents and guardians, Frank and Angela Sobetsky; NANCY BETH BOWMAN, a retarded citizen, by her parents and guardians, Mr. and Ms. Horace Bowman; LINDA TAUB, a retarded citizen, by her parents and guardians, Mr. and Mrs. Allen Taub; GEORGE SOROTOS, a minor, a retarded citizen, by his foster parents, William and Marion Caranfa, all of the above individually and on behalf of all others similarly situated; THE PARENTS AND FAMILY ASSOCIATION OF PENNHURST, Plaintiffs PENNSYLVANIA ASSOCIATION FOR RETARDED CITIZENS, JO SUZANNE MOSKOWITZ, a minor, by her parents and next friends, Leonard and Nancy Moskowitz, ROBERT HIGHT, a minor, by his parents and next friends, John and Jeanne Hight, DAVID PREUSCH, a minor, by his parents and next friends, Calvin and Elizabeth Preusch, and CHARLES DiNOLFI, On behalf of themselves and all others similarly situated, Plaintiffs-Intervenors UNITED STATES OF AMERICA, Plaintiff-Intervenor
v.
PENNHURST STATE SCHOOL & HOSPITAL, DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, FRANK S. BEAL, Secretary of the Department of Public Welfare, STANLEY MEYERS, Deputy Secretary for Mental Retardation, Department of Public Welfare, HELENE WOHLGEMUTH, Former Secretary, Department of Public Welfare ALDO COLAUTTI, Executive Deputy Secretary, Department of Public Welfare WILBUR HOBBS, Deputy Secretary for Southeastern Region, Department of Public Welfare, RUSSELL RICE, JR., Commissioner of Mental Retardation for Southeastern Region, Department of Public Welfare, C. DUANE YOUNGBERG, Superintendent, Pennhurst State School & Hospital, ROBERT SMILOVITZ, Former Assistant Superintendent, Pennhurst State School & Hospital, JOSEPH FOSTER, Assistant Superintendent, Pennhurst State School & Hospital, MARGARET GREEN, BETTY UPHOLD, ALICE BARTON, P. E. KLICK, DR. PAROCCA, HELEN FRANCIS, employees and agent of Pennhurst State School & Hospital, JOHN DOCTOR, JAMES NURSE, JANE AIDE, JILL THERAPIST, RICHARD ROE, JANE DOE, unknown and unnamed staff, employees and agents of Pennhurst State School & Hospital, each individual Defendant sued individually and in his or her official capacity, GEORGE METZGER, JOSEPH CATANIA, and ROGER BOWERS, Commissioners for Bucks County, ROBERT STREBL, EARL BAKER, and LEO McDERMOTT, Commissioners for Chester County, FAITH R. WHITTLESEY, CHARLES KEELER, and WILLIAM SPINGLER, Commissioners for Delaware County, A. RUSSELL PARKHOUSE, FRANK W. JENKINS and LAWRENCE H. CURRY, Commissioners for Montgomery County, MAYOR FRANK L. RIZZO and THE CITY COUNCIL OF PHILADELPHIA, as Authorities for Philadelphia County, PETER BODENHEIMBER, Mental Health/Mental Retardation Administration for Bucks County, WILLIAM A. McKENDRY, Mental Health/Mental Retardation Administrator for Chester County, P. PAUL BURRICHTER, Mental Health/Mental Retardation Administrator for Delaware County, HERMANN A. ROETHER, Mental Health/Mental Retardation Administrator for Montgomery County, and LEON SOFFER, Mental Health/Mental Retardation Administrator for Philadelphia County, Defendants

The opinion of the court was delivered by: BRODERICK

BRODERICK, J.

 This is a class action in which the named plaintiffs are either residents or former residents of Pennhurst State School and Hospital, now known as Pennhurst Center ("Pennhurst"), an institution owned and operated by the Commonwealth of Pennsylvania, located in Spring City, Pennsylvania. These plaintiffs are all retarded persons, or their representatives, who claim injury based on violations of certain state *fn1" and federal *fn2" statutes as well as violations of certain constitutional rights *fn3" in connection with their institutionalization at Pennhurst. The plaintiffs seek both damages and broad equitable relief including the closing of Pennhurst, and mandating that the defendants provide them with education, training and care in their respective communities. "Habilitation" is the term of art used to refer to that education, training and care required by retarded individuals to reach their maximum development.

 This matter was tried before the Court, sitting without a jury, over a period of thirty-two days, testimony being limited solely to the issue of liability. In connection therewith, the Court makes the following findings of fact and conclusions of law:

 Mental retardation, by definition, is an impairment in learning capacity and adaptive behavior. *fn4" (Roos, N.T. 1-86). Retardation is wholly distinct from mental illness. Retarded individuals, just as other members of society, may suffer from mental illness. Mental retardation is primarily an educational problem and not a disease which can be cured through drugs or treatment. However, with proper habilitation, the level of functioning of every retarded person may be improved. (Glenn, N.T. 5-186). *fn5"

 The incidence of mental retardation is about 3% in the general population. There are four basic levels of mental retardation: (1) mild (I.Q. 52-69) which comprises 89% of the mentally retarded population; (2) moderate (I.Q. 36-51) which comprises 6% of the mentally retarded population; (3) severe (I.Q. 20-35) which in conjunction with (4) profound (I.Q. less than 20) comprises 5% of the mentally retarded population. (Roos, N.T. 1-89, 1-90).

 Pennhurst, as an institution for the retarded, was on trial. Recent years have witnessed an assault upon such institutions. *fn6" At issue is whether the residents at Pennhurst have been the victims of violations of their statutory or constitutional rights; specifically whether Pennhurst as an institution has been violating the statutory or constitutional rights of its retarded residents in failing to provide them with minimally adequate education, training and care.

 History is replete with misunderstanding and mistreatment of the retarded. As Wolf Wolfensburger points out in The Origin and Nature of Our Institutional Models 3 (1975):

 

It is chastening to recall that the retarded in American history were long grouped with other types of deviant groups. In early America, the Puritans looked with suspicion on any deviation from behavioral norms, and irregular conduct was often explained in terms of the supernatural, such as witchcraft. There is reason to believe that retarded individuals were hanged and burned on this suspicion. Later in New England, records show that lunatics, "distracted" persons, people who were non compos mentis, and those who had "fits" were all classed together, perhaps with vagabonds and paupers thrown in . . . . Connecticut's first house of correction in 1722 was for rogues, vagabonds, the idle, beggars, fortune tellers, diviners, musicians, runaways, drunkards, prostitutes, pilferers, brawlers -- and the mentally afflicted . . . . As late as about 1820, the retarded, together with other dependent deviant groups such as aged paupers, the sick poor, or the mentally distracted were publicly "sold" ("bid off") to the lowest bidder, i.e., bound over to the person who offered to take responsibility for them for the lowest amount of public support . . . .

 

The 10th (1880) U.S. census first combined "defectives," "dependents," and "delinquents" for reporting purposes. The Public Health Service combined "criminals, defectives, and delinquents" as late as the 1920's.

 

The National Conference on Charities and Correction, between about 1875 and 1920, often grouped the idiotic, imbecilic and feeble-minded with the deaf, dumb, blind, epileptic, insane, delinquent and offenders into one general class of "defectives." Few of us today are aware of the fact that the more contemporary term "mental defective" was coined to distinguish the retarded from these other "defectives," and it is no coincidence that many state institutions were for both the retarded and the epileptic. During the "indictment period," discussed later, an incredible range of deviances were associated with retardation; indeed, they were seen to be caused by it: illness, physical impediments; poverty; vagrancy; unemployment; alcoholism; sex offenses of various types, including prostitution and illegitimacy; crime; mental illness; and epilepsy. All these were called the "degeneracies."

 Institutions for a number of "deviant" groups were founded in the United States in the mid-nineteenth century for the purpose of making the deviant less deviant. They were originally relatively small centers, often located within the community, in which intensive training could be concentrated on the deviants. Their emphasis was on education; they were viewed as temporary boarding schools, geared toward returning the individuals to their family or living group once appropriate skills were learned. By the late nineteenth century, however, these schools were replaced by asylums isolated from the community, where instead of providing the individual with the education and training necessary to return to the community, they provided the protection and care it was thought that these individuals required. The asylum grew to be viewed as a permanent residential facility for the deviant. In the more progressive states, the retarded received their own facilities separated from other "deviant" groups. With this concept came increased isolation and increased size permitting little time for habilitation. See generally, W. Wolfensberger, supra at 24-56. Pennhurst was the product of this era. *fn7"

 I. Procedural History

 This action was commenced in May, 1974. On November 26, 1976, it was certified by the Court as a class action, with the plaintiff class of retarded persons defined as:

 

All persons who as of May 30, 1974, and at any time subsequent, have been or may become residents of Pennhurst State School and Hospital. The members of the class are persons resident at Pennhurst State School and Hospital, persons residing in Bucks, Chester, Delaware, Montgomery and Philadelphia Counties who are on a waiting list for placement at Pennhurst State School and Hospital, and persons residing in Bucks, Chester, Delaware, Montgomery and Philadelphia Counties, who, because of the unavailability of alternate services in the community, may be placed at the Pennhurst State School and Hospital.

 On February 4, 1977, by agreement of the parties, we entered an Order trifurcating the trial. This Order reads, in pertinent, part, as follows:

 

Said trial will be bifurcated -- the first phase limited solely to the issue of liability. At such time as the Court issues its findings of fact and conclusions of law thereafter, a date shall be set for the second phase of the trial -- to determine what relief, if any, a federal court can and should grant in this situation. At the conclusion of the second phase of the trial, a date shall be set for the third phase of the trial, if one is deemed necessary, -- to determine damages due Plaintiffs.

 The first phase of this non-jury trial began on April 18, 1977 and ended on June 13, 1977, occupying thirty-two court days.

 II. The Parties

 The original complaint in this action was filed as a class action by Terri Lee Halderman, a retarded individual who had been admitted to Pennhurst on the application of her parents pursuant to 50 P.S. § 4402 *fn8" in 1966. On July 29, 1974, the first amended complaint was filed, adding as name plaintiffs seven other retarded individuals *fn9" who had been admitted to Pennhurst upon the application of their parents. The amended complaint also added as a plaintiff the Parents and Family Association of Pennhurst representing 200 parents of retarded residents at Pennhurst. The Association was organized in 1967 to protect the rights of retarded citizens at Pennhurst and other institutions. (First amended complaint at 4).

 On January 17, 1975, the Court granted the United States of America leave to intervene as a party plaintiff. *fn10" On November 12, 1975, the Court, without opposition, granted leave to intervene to the Pennsylvania Association for Retarded Citizens ("PARC") and four retarded individuals, *fn11" three of whom were court committed to Pennhurst pursuant to 50 P.S. § 4406 *fn12" or an earlier statute. PARC is a non-profit corporation which was founded in 1950 (Schmidt, N.T. 14-108) and has member chapters in fifty-seven of Pennsylvania's sixty-seven counties; its purpose being to advance the interest of retarded persons in Pennsylvania. The members of PARC include parents, other relatives, guardians, and next friends of persons residing at Pennhurst, and those in jeopardy of residing there.

 Defendants are: Pennhurst; the Pennsylvania Department of Public Welfare; various state and county *fn13" officials responsible for supervising the Commonwealth's and the counties' retardation programs; and the superintendent and various employees of Pennhurst.

 III. Education, Training and Care (Habilitation) Afforded the Retarded at Pennhurst

 Pennhurst, a residential institution for the retarded, was founded in 1908. It is owned and operated by the Commonwealth of Pennsylvania, and is located in Spring City, Pennsylvania about 30 miles from Philadelphia. Since its founding in 1908, the institution has been overcrowded and understaffed. (PARC Exhibit 40, R. Smilovitz, Pennhurst in Perspective: Purpose, Programs, Possibilities.) The present resident population is approximately 1,230, reduced from a high of nearly 4,000 in the early 1960's. (Youngberg N.T. 22-123). Its staff numbers approximately 1,500. All parties concede that the institution has undergone tremendous improvement since the 1950's when, at best, the residents' treatment could be described as "warehousing". Even with these improvements, it was admitted by the defendants that Pennhurst does not presently meet minimum standards for the habilitation of its residents. (Rice, N.T. 26-24; Youngberg, Deposition at 22-31). *fn14"

 Approximately half of the residents at Pennhurst have been admitted upon application of their parents or guardians, while the other half have been committed by a court. (Youngberg, N.T. 22-122). No distinction is made in the services extended to either group. The average *fn15" resident age at Pennhurst is 36, and the average stay at the institution is 21 years. Forty-three percent of the residents have had no family contact within the last three years. *fn16" Seventy-four percent of the residents are severely to profoundly retarded. *fn17" The average resident has had one psychological evaluation every three years and one vocational adjustment service report every 10 years. Those residents who have had more than one Vineland examination (measuring social quotient) during their residency at the institution, have, on the basis of this test, shown a decline rather than an increase in social skills while at Pennhurst (they declined an average of 7.542 points during their residence at Pennhurst, a loss of.596 points per year.) *fn18"

  At its best, Pennhurst is typical of large residential state institutions for the retarded. *fn19" These institutions are the most isolated and restrictive settings in which to treat the retarded. (Lancaster-Gaye, N.T. 4-79). Pennhurst is almost totally impersonal. (Id., N.T. 4-71). Its residents have no privacy (Roos, N.T. 1-149) -- they sleep in large, overcrowded wards (Youngberg, Deposition at 22), spend their waking hours together in large day rooms and eat in a large group setting. (Clements, N.T. 2-57, 2-71, 2-72). They must conform to the schedule of the institution which allows for no individual flexibility. Thus, for example, all residents on Unit 7 *fn20" go to bed between 8:00 and 8:30 p.m., are awakened and taken to the toilet at 12:00 - 12:30 a.m. and return to sleep until 5:30 a.m. when they are awakened for the day (Barton, Deposition at 21-26, 33-34; Roos, N.T. 1-50), which begins with being toileted and then having to wait for a 7:00 a.m. breakfast.

 A. Staffing On the whole, the staff at Pennhurst appears to be dedicated and trying hard to cope with the inadequacies of the institution. (Hersh, N.T. 13-130). n21 Many of the problems at Pennhurst result from overcrowding and understaffing. n22 As professionals leave the staff, they are often not replaced, their jobs being turned over to direct care staff; thus, in the last two years nineteen professionals have left the staff without being replaced. (Roos, N.T. 1-153). Nearly every witness who testified concerning Pennhurst stated that it was grossly understaffed to adequately habilitate the residents. None of the standard reference sources now generally used by professionals in the field of mental retardation define the qualifications and minimal numbers of mental retardation professionals necessary to provide minimally adequate programs of habilitation. (Clements Report at 6). However, the court in Wyatt v. Stickney, 344 F. Supp. 387 (N.D. Ala. 1972), attempted to provide such guidelines. A comparison of the Wyatt ratios to those at Pennhurst in 1975 n23 reveals: Wyatt Standards Pennhurst a. Psychologists 23 23 b. Social Workers 40 6 c. Vocational Therapists 5 4 d. Recreation Therapists 23 0 e. Occupational Therapists 18 10 f. Registered Nurses 95 54 g. Physicians 7 6 h. Physical Therapists 14 2 i. Speech and Hearing Therapists 14 9 j. Dentists 7 4 k. Chaplains 7 4 l. Teachers n24 51 8

19771223

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