and for other retarded members of the class being recommended for admission to other state institutions for the mentally retarded.
The United States Supreme Court granted certiorari in this case on June 10, 1980, and on June 30, 1980 entered a limited stay order which, in effect, allowed only "voluntary" transfers of Pennhurst residents to the community pending final disposition of the matter. On July 14, 1980, this Court ordered the Hearing Master to hold a hearing for each Pennhurst resident for whom a community living arrangement had been prepared, for the purpose of determining whether the proposed transfer from Pennhurst to the community was "voluntary." On December 1, 1980, the Supreme Court declined to disturb this Court's interpretation and application of its stay order. On February 22, 1982, this Court granted the Commonwealth defendants' motion to discontinue voluntariness hearings on the ground that the stay order requiring such hearings was dissolved by the Supreme Court's subsequent decision on the merits. See Memorandum and Order of February 22, 1982.
On April 20, 1981, the United States Supreme Court reversed the Third Circuit's determination that the Bill of Rights for the Handicapped contained in the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6010, created in favor of the mentally retarded a substantive right to appropriate habilitation and treatment in the least restrictive environment. The Supreme Court remanded this case to the Third Circuit for consideration of the federal Constitutional and statutory issues as well as the state law questions raised by this Court in its Memorandum of December 23, 1977 (451 U.S. 1, 101 S. Ct. 1531, 1546-47, 67 L. Ed. 2d 694).
On February 26, 1982, the Third Circuit, pursuant to the Supreme Court's remand, issued its second en banc decision in this case. The Third Circuit again affirmed, holding that Pennsylvania's Mental Health and Mental Retardation Act of 1966, 50 Pa. Stat. Ann. §§ 4101-4704 (Purdon 1969), granted Pennsylvania's retarded citizens the right to adequate habilitation in the least restrictive environment. Although the Supreme Court again granted certiorari on June 21, 1982, there is no stay of this Court's Orders mandating the community placement of those Pennhurst residents whose individual habilitation plans require community living arrangements in order to provide for their adequate habilitation. (Orders of March 17, 1978; June 8, 1979; April 24, 1980; March 2, 1981).
Based on the evidence presented at the trial of this case, 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 experienced 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).