The opinion of the court was delivered by: BRODERICK
No one, and certainly not this Court, anticipated that this civil action commenced on May 30, 1974 would be actively litigated for more than 10 years, requiring 2,192 docket entries, about 500 Court orders, twenty-eight published opinions, and three arguments before the U.S. Supreme Court. See 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984); 451 U.S. 1, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981); 707 F.2d 702 (3d Cir. 1983; 673 F.2d 645 (3d Cir. 1982) (en banc); 673 F.2d 647 (3d Cir. 1982) (en banc); 612 F.2d 84 (3d Cir. 1979) (en banc); 612 F.2d 131 (3d Cir. 1979) (en banc); 566 F. Supp. 185 (E.D. Pa. 1983); 97 F.R.D. 522 (E.D. Pa. 1983); 555 F. Supp. 835 (E.D. Pa. 1983); 555 F. Supp. 1144 (E.D. Pa. 1982); 555 F. Supp. 1142 (E.D. Pa. 1982); 555 F. Supp. 1138 (E.D. Pa. 1982); 559 F. Supp. 153 (E.D. Pa. 1982); 96 F.R.D. 60 (E.D. Pa. 1982); 545 F. Supp. 410 (E.D. Pa. 1982); 542 F. Supp. 619 (E.D. Pa. 1982); 536 F. Supp. 522 (E.D. Pa. 1982); 533 F. Supp. 649 (E.D. Pa. 1982); 533 F. Supp. 641 (E.D. Pa. 1982); 526 F. Supp. 428 (E.D. Pa. 1981); 526 F. Supp. 423 (E.D. Pa. 1981); 526 F. Supp. 414 (E.D. Pa. 1981); 526 F. Supp. 631 (E.D. Pa. 1981); 526 F. Supp. 409 (E.D. Pa. 1981); 452 F. Supp. 867 (E.D. Pa. 1978); 451 F. Supp. 233 (E.D. Pa. 1978); 446 F. Supp. 1295 (E.D. Pa. 1977).
The concluding chapter of this litigation is at hand. The Final Settlement Agreement is now before this Court for approval. As with all settlement agreements, this settlement is a creature of compromise. As with all things of this world, the settlement is not perfect. It is, however, a fair, adequate, and reasonable settlement, which will protect the rights and well-being of all the mentally retarded persons who resided at Pennhurst on and after May 30, 1974, as well as all retarded persons on the Pennhurst waiting list as of that date who have received habilitative services in the community pursuant to prior orders of this Court.
It has taken eleven years of litigation to produce this settlement. It is ironic that when this action was tried in 1977, all parties agreed that Pennhurst as an institution was inappropriate and inadequate for the habilitation of mentally retarded persons. (Habilitation is a term of art which refers to the education, training, and care which will enable a retarded person to reach his or her maximum potential.) During the course of the trial, no one took issue with the many professionals in the field of mental retardation who testified that "normalization" has been universally accepted as the only successful method of habilitating a retarded person. Normalization, as the term implies, is the antithesis of institutionalization. The basic principle of normalization is that a retarded person must be cared for, trained and educated in a normal community environment.
Mental retardation is an impairment in learning capacity and adaptive behavior. It has been estimated that about three percent of the population in the United States may be classified as "mentally retarded." However, the overwhelming majority of that three percent are only "mildly" retarded, and are capable of achieving self-support, while the remainder are capable of achieving some degree of self care. As pointed out by the United States Supreme Court in Kremens v. Bartley, 431 U.S. 119, 135, 97 S. Ct. 1709, 1718, 52 L. Ed. 2d 184 (1977), careful attention must be paid to the differences between mental illness and mental retardation. There is no question that mental illness and mental retardation are separate and distinct conditions which require different types of treatment. Although retardation is wholly distinct from mental illness, retarded individuals, just as other members of society, often suffer from mental and emotional illness. Mental retardation is 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.
Throughout history, retarded individuals have been mistreated, and their dire need for treatment, education and training has been ignored. Wolfensberger, The Origin and Nature of Our Institutional Models 3 (1975). Retardation is not a violation of the law. Being mentally retarded does not make juveniles or adults dangerous to society. Mentally retarded persons are individuals who, because of circumstances beyond their control, are unable to function at the same levels as others in society. They do require specialized education, training and care. They do have a constitutional right under the Equal Protection Clause of the Fourteenth Amendment to receive as much education and training as is provided by the government to those whom society considers as "not retarded." Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972). In this case the Court was faced with a situation where retarded members of our society had been "incarcerated" in an institution. These retarded citizens had not violated any laws and, with very few exceptions, were not dangerous to society. Their only need was for care, education, and training.
Pennhurst, a residential institution for retarded persons, 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. At the time of the trial of this case in 1977, the resident population was approximately 1,230, reduced from a high of nearly 4,000 in the early 1960s. The Pennhurst staff numbered approximately 1,500. All parties conceded at trial that the institution had undergone tremendous improvement since the 1950s when, at best, the treatment of the residents could be described as "warehousing." Even with these improvements, however, the defendants admitted that Pennhurst did not meet the professionally accepted minimum standards for the habilitation of its retarded residents. Despite these admissions, the defendants insisted that no constitutional or statutory rights of the residents were being violated. The years of litigation have, however, brought about an awareness that a retarded person does have a right to minimally adequate habilitation in the least restrictive setting.
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 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. At trial, all parties agreed that Pennhurst as an institution was inappropriate and inadequate for the habilitation of mentally retarded citizens, and that retarded persons should be educated, trained, and cared for in community living arrangements. However, the defendants insisted that they be permitted to accomplish the community placement of Pennhurst residents and the closing of Pennhurst at their own pace.
On December 23, 1977, this Court issued findings of fact and conclusions of law ( Memorandum of December 23, 1977, 446 F. Supp. 1295) which 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.
Based on the evidence presented at the trial of this case, the Court found that Pennhurst in 1977 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. Programming and training of the retarded Pennhurst residents was found to fall 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.
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 that 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.
This Court held: (1) when a state involuntarily commits a retarded person, it must provide habilitation that will afford a reasonable opportunity to acquire such skills as his or her capabilities will permit, and that due process requires that once a state undertakes the habilitation of a retarded person it must do so in the least restrictive setting consistent with his habilitative needs; (2) that because the retarded persons had been physically abused, their constitutional right to be free from harm had been violated; (3) that retarded persons have the constitutional right to non-discriminatory habilitation and that Pennhurst residents had been segregated in an institution that was not only separate, but was not equal, thus denying their equal protection rights guaranteed by the 14th Amendment; (4) similarly, that Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794), which provides that no handicapped person shall be excluded from any program receiving federal aid because of his handicap, had been violated; (5) that the Pennsylvania Mental Health/Mental Retardation Act of 1966, 50 Pa. Stat. Ann. § 4201 (Purdon 1969), which provides that the Department of Public Welfare shall have the power and duty to assure availability of adequate mental retardation services, gives retarded persons a statutory right to minimally adequate habilitation. In effect, this Court provided our Circuit Court with several reasons for upholding its order that the retarded residents of Pennhurst should be transferred to community living arrangements.
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: an appropriate community living arrangement and all necessary support services. The Court ordered that Individual Habilitation Plans be developed for each member of the plaintiff class, that appropriate community monitoring mechanisms be designed and implemented, that a friend-advocate system be established to represent those class members who were without family or guardian, and that a Special Master be appointed to monitor the defendants' planning and implementation activities and report to the Court on the defendants' compliance with the Court's orders.
During the course of this litigation, questions were raised concerning the appointment of a Special Master, whose primary function was to monitor the implementation of the Court's remedial decree. The Court wishes to point out, however, that this was the only occasion where this Court has ever determined it necessary to appoint a Special Master. The retarded residents of Pennhurst for the most part were unable to articulate their complaints concerning violations of the Court's orders. They were not a class capable of enunciating complaints concerning non-compliance with the injunction. This Court needed someone at Pennhurst who would observe and report violations of its orders.
This Court's judgment was appealed to the Third Circuit. It was determined that the entire court should sit en banc and decide the appeal. Nine judges sat; Judge Gibbons wrote the majority opinion. 612 F.2d 84 (3d Cir. 1979) (en banc). The majority opinion held that the Developmentally Disabled and Bill of Rights Act, 42 U.S.C. § 6010, provided mentally retarded persons with a right to adequate treatment. This Act was not considered by the trial court. The Court of Appeals held that the Pennhurst residents had standing to sue to enforce the Bill of Rights provision set forth in the Act, and, on this basis, determined that this Court's injunctive order should be affirmed with some exceptions. The Court of Appeals stated that on remand this Court should engage in a presumption in favor of placing individuals in community living arrangements, but that "the special needs and desires of individual patients must not be neglected in the process," and suggested that this could be handled by the appointment of a Master. 612 F.2d at 115. The majority opinion commented on each of the five grounds which this Court had offered as a basis for its holding, but stated that the preferred order was to turn first to the federal statutory issues and then to the state statutory issues before considering the constitutional questions. Commenting on this Court's finding of constitutional violations, the Circuit Court stated that while there was substantial case law supporting this Court's position, the Circuit's resolution of the controversy on statutory grounds obviated the necessity for consideration of the constitutional issues. 612 F.2d at 130.
On April 20, 1981, the United States Supreme Court, in an opinion written by Justice Rehnquist, reversed the judgment of our Circuit Court on the ground that the Developmentally Disabled Assistance and Bill of Rights Act established a federal grant program which was voluntary for the States and that the Act did not create any substantive rights for retarded persons. 451 U.S. 1, 31, 101 S. Ct. 1531, 1546-47, 67 L. Ed. 2d 694 (1981). The opinion also held that the Act did not make granting rights to retarded persons a condition to receiving money from the federal government under the Act. The Supreme Court remanded the case to the Circuit Court to address (1) the federal constitutional claims; (2) the claims under the Pennsylvania statute and (3) the claims under Section 504 of the Rehabilitation Act of 1973.
On February 26, 1982, our Circuit Court, pursuant to the Supreme Court's remand, issued its second en banc decision, which again affirmed the judgment of this Court, holding that the Pennsylvania Mental Health/Mental Retardation Act of 1966, 50 Pa. Stat. Ann. §§ 4101-4704, (Purdon 1969), granted to Pennsylvania's retarded citizens the right to adequate habilitation in the least restrictive environment. 673 F.2d 647 (3d Cir. 1982) (en banc).
The Supreme Court again granted certiorari and after two oral arguments, reversed the judgment of the Third Circuit on January 23, 1984. 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984). In a five to four decision, the Court held that the Eleventh Amendment barred a federal court from ordering prospective injunctive relief against state officials on the basis of violations of state law, even where the state law claims were properly brought into the federal court under pendent jurisdiction. See D. Shapiro, Wrong Turns: The Eleventh Amendment and the Pennhurst Case, 98 Harv. L. Rev. 61 (1984). Once again the Supreme Court remanded to the Court of Appeals for a determination of the remaining federal statutory and constitutional issues.
While the case was pending (for the third time) before the Court of Appeals, the parties entered into settlement negotiations conducted by the Honorable Max Rosenn, Senior Circuit Judge of the Third Circuit. On July 12, 1984, the parties executed a Final Settlement Agreement. By Order dated July 20, 1984, the Third Circuit remanded the case to this Court for proceedings pursuant to Fed. R. Civ. P. 23(e). By Order of August 8, 1984, this Court directed that all members of the plaintiff class, and their parents and guardians, be notified of the Final Settlement Agreement pursuant to the notification provisions of Appendix C of the Agreement; that any objections to the Agreement by any member of the plaintiff class, or any party, be filed with the Clerk of Court and mailed to all counsel no later than September 18, 1984; and that a hearing on the proposed settlement would be held in accordance with Rule 23(e) on September 25, 1984.
On September 25, 1984, a hearing on the proposed settlement was held before this Court. Subsequent to that hearing, at the request of the Commonwealth defendants, this Court deferred a decision on the approval or disapproval of the proposed settlement while the parties discussed the effect of unanticipated federal funding cutbacks upon the viability of the settlement. At a final hearing held in December, 1984, counsel for the Commonwealth defendants, all the County defendants, the plaintiff class, intervening plaintiff P.A.R.C., and intervening plaintiff United States of America recommended that this Court approve the settlement.
Under the terms of the proposed settlement, the Commonwealth and County defendants have agreed to provide community living arrangements to those members of the plaintiff class for whom such placement is deemed appropriate by the individual planning process, together with such community services as are necessary to provide each person with minimally adequate habilitation, until such time as the retarded individual no longer is in need of such living arrangements and/or community services. The defendants agree to provide residential and habilitative services to all persons who have been furnished with such services pursuant to prior orders of this Court. The defendants agree to develop and provide a written habilitation plan, formulated in accordance with professional standards, to each member of the plaintiff class; provide an individualized habilitation program to each member of the plaintiff class; and permit each class member and his family or guardian to be heard in connection with his or her program. The defendants also agree to provide an annual review of each person's individualized habilitation program, and to monitor the services and programs provided to the class members in accordance with a detailed, professionally-established monitoring and visitation procedure. All defendants shall assure that all persons provided with services under the terms of the agreement shall be afforded: (1) protection from harm; (2) safe conditions; (3) adequate shelter and clothing; (4) medical, ...