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August 12, 1982


The opinion of the court was delivered by: BRODERICK

 BRODERICK, District Judge.

 The Court's original injunctive Order in this case ( Order of March 17, 1978, 446 F. Supp. 1295, 1326) as modified by the order of April 24, 1980, appointed a Special Master to aid in implementing the injunctive relief by submitting plans for procedures to protect the rights of the plaintiff class and to monitor the defendants' compliance with this Court's Orders. The Office of the Special Master has performed these tasks exceptionally well, especially in view of the many instances of non-compliance on the part of the defendant (see, e.g., pp. 416-17, infra). The Court has determined, however, that the time is approaching when the Office of the Special Master should no longer be required in order to ensure protection for the retarded residents of Pennhurst. For the reasons hereinafter set forth, the Court will therefore enter an order directing that the Office of the Special Master plan to phase out its operations and terminate its activities by December 31, 1982.

 History of the Litigation

 As is well-known to the litigants, this case began in 1974 as a class action in which the named plaintiffs, retarded persons (the "Pennhurst class") who were either residents of Pennhurst State School and Hospital ("Pennhurst") or on the waiting list for residence at Pennhurst as of May 30, 1974, claimed injury based on violations of certain state and federal statutes and the United States Constitution in connection with their institutionalization at Pennhurst. This Court, in its findings of fact and conclusions of law ( Memorandum of December 23, 1977, 446 F. Supp. 1295) found that the defendants were violating the constitutional and statutory rights of the Pennhurst Class by failing to provide them with minimally adequate habilitation in the least restrictive environment. This holding has been affirmed on two occasions by the United States Court of Appeals for the Third Circuit, sitting en banc. The legal bases for its affirmances were predicated upon federal and state statutes, and the constitutional violations found by this Court have not as yet been directly addressed by either the Third Circuit or the United States Supreme Court. See pp. 414-15, infra.

 On January 6, 1978, this Court held a hearing to determine the injunctive relief necessary to remedy the violations. The parties were asked to attempt to agree on the terms of the Court's order, but no agreement was forthcoming. On March 17, 1978, the Court issued an injunctive Order setting forth the relief to which the retarded residents of Pennhurst were entitled (446 F. Supp. at 1326). The March 17, 1978 Order, inter alia, established the Office of the Special Master. At that time, the Special Master was, for a variety of reasons, essential to monitoring the relief which would ensure that the Pennhurst residents would receive the minimally adequate habilitation which the Court found had been denied them. At the time the Special Master was appointed by the Court, it was the understanding of the parties as well as the Court that this would be a short-term appointment in that it was contemplated that community living arrangements could be provided for the Pennhurst residents within a few years. It was never envisioned that the Special Master would be necessary for as long as has been the case. See pp. 416, infra. However, for the reasons hereinafter set forth, the Court at long last finds that the Office of the Special Master will no longer be necessary for the effective implementation of the injunctive relief which this Court has ordered for the plaintiff class.

 This case, which began in 1974, was tried before the Court, sitting without a jury, over a period of 32 days, ending June 13, 1977. At the trial, all the parties, including the defendants, agreed with the testimony of many experts who testified the Pennhurst was inappropriate and inadequate for habilitation of its mentally retarded residents and that the retarded at Pennhurst were not receiving minimally adequate education, training and care. The defendants did not dispute this finding, but insisted that they wished to accomplish the minimally adequate habilitation by placing the Pennhurst residents in community facilities pursuant to their own schedule, which the Court found to be vague and indefinite.

 The Court found, and the defendants admitted, that Pennhurst, in 1977, did not "meet the minimum standards for the habilitation of its residents." (446 F. Supp. at 1302). The Court also found that Pennhurst was overcrowded and understaffed and without the programs which the experts considered necessary for minimally adequate habilitation. The evidence showed that a large number of Pennhurst residents had actually showed a regression of basic living skills as a result of their confinement at Pennhurst. All parties to the litigation agreed that Pennhurst as an institution was inappropriate and inadequate for the habilitation of the retarded. (446 F. Supp. at 1304). Programming and training of the retarded Pennhurst residents was found to fall far short of the minimum required for adequate habilitation according to the uncontradicted expert testimony of habilitation professionals. (446 F. Supp. at 1304). Not only was the habilitation then inadequate, but Pennhurst had no plans for improving the programming available to its residents. (446 F. Supp. at 1305).

 Furthermore, the evidence presented at trial clearly showed that Pennhurst residents were not only receiving inadequate habilitation but also were regularly subjected to a number of dehumanizing practices. Specifically, this Court found that at Pennhurst restraints were used as control measures in lieu of adequate staffing. (446 F. Supp. at 1306). The Court further found that psychotropic drugs at Pennhurst were used for control and not for treatment, and the rate of drug use on some of the units at Pennhurst was extraordinarily high. (446 F. Supp. at 1307). Regarding treatment at Pennhurst, the Court found that the environment at Pennhurst was not only not conducive to learning new skills, but it was so poor that it contributed to the loss of skills already learned. (446 F. Supp. at 1308). One survey showed that more than one-third of the Pennhurst residents had "some notation of regression in their records." (446 F. Supp. at 1308, n.40). Pennhurst, at the time of trial, was in fact a dangerous place to live. "Injuries to residents by other residents and through self-abuse, were common . . . . In addition, there [was] some staff abuse of residents." (446 F. Supp. at 1308-09). The Court also found that many of the residents suffered physical deterioration and intellectual and behavioral regression during their residency at Pennhurst. (446 F. Supp. at 1309).

 Based upon the uncontradicted evidence presented at trial, the Court found that

Since the Early 1960's there has been a distinct humanistic renaissance, replete with the acceptance of the theory of normalization for the habilitation of the retarded. Mason & Menolascino, supra note 6, at 136. [ The Right to Treatment for Mentally Retarded Citizens: An Evolving Legal and Scientific Interface, 10 Creighton L.Rev. 124 (1976)]. The principles of normalization are an outgrowth of studies showing that those in large institutions suffered from apathy, stunted growth and loss in I.Q., and that the smaller the living unit on which the retarded individual lived, the higher the level of behavioral functioning shown by the individual. (Roos, N.T. 1-96 to 1-104). Under the principles of normalization, the retarded individual is treated as much like the non-retarded person as possible. (Id., N.T. 1-106, 1-107). The basic tenet of normalization is that a person responds according to the way he or she is treated. (Glenn, N.T. 5-186, 5-187). The thrust of habilitation through normalization is the remediation of the delayed learning process, so as to develop the maximum growth potential by the acquisition of self-help, language, personal, social, educational, vocational and recreation skills. Mason & Menolascino, supra note 6, at 139-140. The older theories of habilitating the retarded stressed protecting the individual, and were characterized by little expectation of growth. Given this lack of expectation, the individual rarely exhibited growth. However, once removed from depressing, restrictive routines, the retarded have been able to accomplish a great deal. (Dybwad, N.T. 7-160).
The environment at Pennhurst is not conducive to normalization. It does not reflect society. It is separate and isolated from society and represents group rather than family living. (Hirst, N.T. 7-124). The principles of normalization have been accepted by the administration of Pennhurst and by the Department of Public Welfare, which is responsible for the administration of programs for the retarded in the five county area (Youngberg, N.T. 22-171; Rice, N.T. 26-43 to 26-45; Bilyew, N.T. 24-13; Hirst, N.T. 7-120), and the current intention of the Department of Public Welfare is to transfer all residents from Pennhurst by the early 1980's. (Rice, N.T. 28-48).
The five county area (Bucks, Chester, Delaware, Montgomery and Philadelphia) has some community facilities providing for the education, training and care of the retarded covering all ages of retardation, including the profoundly retarded with multiple handicaps. (Girardeau, N.T. 4-140, 4-141). These community facilities have been an outgrowth of the acceptance of the principle of normalization and the rejection of institutions such as Pennhurst in connection with the habilitation of the retarded.
Many individuals now living at Pennhurst could be moved immediately into the community and would be able to cope with little or no supervision. (Settle, N.T. 6-126; Hirst, N.T. 7-116). All the parties in this litigation are in agreement that given appropriate community facilities, all the residents at Pennhurst, even the most profoundly retarded with multiple handicaps, should be living in the community. (Dybwad, N.T. 7-68).
The primary limiting factor in the transfer of Pennhurst residents to community facilities has been the failure of the Commonwealth and its subdivisions to provide sufficient living units, vocational and day care facilities and other support services at the community level. Since fiscal year 1972, only 186 Pennhurst residents have been transferred from the institution directly into community living units. (Bilyew, N.T. 24-50); although 176 others were transferred from Pennhurst to other institutions during 1974 and 1975. (Clark, N.T. 21-170).
In November, 1970, Act 256 was signed by the Governor of Pennsylvania. This legislation appropriated twenty-one million dollars for the purpose of planning, designing and constructing community facilities which would enable 900 Pennhurst residents to be transferred to the community. In 1971, the McDowell report was prepared at a cost of $68,000. It detailed the programs and services needed to support the 900 Pennhurst residents in the community and provided a blueprint for the implementation of the Act. (Samuels, N.T. 23-9, 23-10, 23-55). Though seven years have passed since the Act was signed, few of the facilities have become operational. The Department of Public Welfare now expects this program to be completed by 1980. (Id., N.T. 23-44). Over eighteen million dollars of this fund remains unspent but is allocated to building these facilities. (Stipulation, N.T. 7-97). As of April 25, 1977, however, only 37 Pennhurst residents have directly benefitted from the Act. (Samuels, N.T. 23-80).
Comparable facilities in the community are generally less expensive than large isolated state institutions. Services can be purchased at regular rates, rather than at rates which must be paid to attract individuals to work in a setting like Pennhurst. (Conley, N.T. 11-107). The cost of running Pennhurst in 1976 was $27.8 million dollars, or $60 per resident per day. (Id., N.T. 12-28). This does not include the fair rental value of the buildings at Pennhurst (estimated at $3-$4 per resident per day). (Id., N.T. 11-114). The statewide cost of community living arrangements in Pennsylvania for 1976 was $17.64 per individual per day. (PARC Exhibit 63, 64). Program services, which 1/3 of mentally retarded individuals would need, average approximately $10 per individual per day. (Conley, N.T. 11-116, 11-117). Moreover, keeping the retarded individual in the community makes it possible for him or her to get employment. (Settle, N.T. 7-4). The lifetime earnings of a mildly retarded individual often exceeds $500,000. (Conley, N.T. 12-32). For those with an I.Q. between 25 and 50, 45% of men and 12% of women earn about 20% of the average wage. (Id., N.T. 12-31). When the retarded can work, the amount of financial support which society must provide decreases and the individuals may benefit society with the taxes they pay. Furthermore, the investment per individual at Pennhurst is primarily for warehousing and not for the individual's well-being or future planning, as is the case with community facilities. (Id., N.T. 11-23, 11-24).

 (446 F. Supp. at 1311-12 (footnotes omitted)). *fn1" The Court also found that the procedure for funding treatment and habilitation of the retarded gave the county defendants a financial incentive -- unrelated to the relative habilitative benefits -- to place retarded citizens in Pennhurst rather than in appropriate community facilities (446 F. Supp. at 1312-13).

 The overwhelming weight of the evidence presented at trial, evidence uncontradicted by the defendants, mandated but one course of injunctive relief -- placing the residents of Pennhurst in the community living arrangements being planned by the Commonwealth and the counties for the habilitation of the retarded (446 F. Supp. at 1325-29). In its first en banc decision in this case, the Third Circuit determined that this Court's original injunctive order had been too broad in that it ordered that all members of the plaintiff class be placed in appropriate community living arrangements and that Pennhurst eventually be closed. Said the Third Circuit:

It is probably true, as the trial court found, that in general institutions are less effective than community living arrangements in facilitating the right to habilitation in the least restrictive setting. There is ample testimony on the record ...

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