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June 21, 1985


The opinion of the court was delivered by: HUYETT

 Presently pending before me is plaintiff's motion for equitable relief. For the reasons set forth in the following findings of fact, discussion, and conclusions of law, this motion will be granted.


 Because the parties have entered into a very comprehensive stipulation of the facts of this tragic case, I will provide only a brief summary of the relevant facts. The following narrative together with the stipulation constitute my findings of fact.

 Plaintiff is forty-four years old. She has spent her entire adult life at Laurelton Center ("Laurelton"), a state institution for the mentally retarded, after she was committed there in 1956 at the age of fifteen. At the time of her commitment, plaintiff had been taken from the custody of her family. There are suggestions in the record and among the documents from her file at Laurelton that plaintiff's family life prior to her commitment was tempestous and disruptive to her development. A petition for plaintiff's commitment pursuant to § 326 of the Mental Health Act of 1951, as amended, 50 P.S. § 1071 et seq., repealed by Mental Health and Mental Retardation Act of 1966, 1966 Pa. Laws 96 (codified at 50 Pa. Stat. Ann. §§ 4101-4704 (Purdon 1969)), was filed on November 8, 1956 and approved by the court the next day. Plaintiff did not have a hearing in connection with her commitment nor did she receive notice of the petition.

 On November 11, 1956 plaintiff was transported to Laurelton, a residential institution located in Union County, Pennsylvania which houses approximately 350 mentally retarded persons. It is at least four hours from Philadelphia. At the time of her commitment, plaintiff was a resident of Philadelphia and still has family there. She has not seen them for approximately six years.

 Although plaintiff was described as "severely defective" in the commitment petition in 1956, tests administered to her soon after her admittance at Laurelton revealed that she is in the mild range of mental retardation with an IQ of roughly 60. Her IQ tests have remained fairly constant since that time. Her IQ is much higher than the vast number of Laurelton residents and plaintiff functions at a much higher level than most of her companions at Laurelton.

 Soon after she was sent to Laurelton, plaintiff expressed her displeasure with being committed there against her will. She has continued to protest her detention there up to the present time. Despite these protests, plaintiff never received a hearing regarding the propriety of either her initial commitment or her continued residence at Laurelton. Her efforts, however, to obtain a hearing have been unstinting at least since 1981.

 During her almost thirty years at Laurelton, the law regarding the treatment and rights of mentally ill and mentally retarded people has changed dramatically. The statute under which plaintiff was originally committed was repealed and replaced in 1966. Plaintiff's commitment was then deemed by the Commonwealth to be equivalent to one under the new statute. In 1976, a three judge panel declared § 406 of the 1966 Act -- the section dealing with involuntary commitments -- unconstitutional. In spite of these events and in spite of the fact that plaintiff reached maturity in 1962, plaintiff never received a hearing. It appears from the testimony of James Pelter that the Commonwealth's Department of Public Welfare ("DPW") has no formal procedure under which persons committed indefinitely are given hearings to review their commitments. An average hearing pursuant to § 406 of the 1966 Act held in Union County costs approximately $132.

 Although plaintiff has remained at Laurelton since her commitment in 1956, the staff at that facility, including plaintiff's treatment team, has agreed, at least since 1976, that she should be placed in a community living arrangement ("CLA"). All of the professionals who testified at the hearing on this matter voiced this same opinion. The stipulation details the various steps that have been taken in order to convince those in power to place plaintiff in a CLA. All of these efforts were to no avail.

 A CLA consists in most general terms of a small residential group composed of mentally retarded people who function at similar levels. These individuals live in a house within the community and receive intensive supervision and training in those behaviors and skills necessary to function independently within the community. A CLA is designed to allow a mentally retarded person to live in a setting which is as close to a "normal" one as possible. They are also designed to allow for more community interaction and interaction with nonretarded persons than is an isolated institution such as Laurelton. Plaintiff has continually sought placement in some form of CLA since at least 1976. She continues to want such a placement very much.

 James McFall testified on behalf of plaintiff at the May 28, 1985 hearing. McFall is qualified as an expert in the field of psychology. Although he does not possess a doctoral degree in that field, he has completed all of his degree requirements except for his dissertation. In addition, he has extensive work experience in the treatment of mentally retarded persons. In his opinion, there are no contraindications to a placement in a CLA for plaintiff. He testified that in his experience, plaintiff functions at a higher level than many of those currently placed in CLAs in Philadelphia. He described plaintiff as at "the highest functioning levels of any of my clients."

 Dr. Paul Spangler also testified on behalf of plaintiff. He holds a doctoral degree in psychology and has extensive experience in the treatment of the mentally retarded. I find him to be qualified as an expert in the field of psychology. Spangler opined that plaintiff should be placed into a CLA as soon as possible. He noted that many people who function at a level below plaintiff's are already either in a structured CLA or in some other form of community residence. He stated that in 1985 it was unusual to see someone like plaintiff in a large institution like Laurelton.

 Spangler also described a CLA program that has been developed by defendant County of Philadelphia. *fn1" This program, known as a Teaching Family Home, would allow plaintiff to share a home with a small number of other mentally retarded people and a husband and wife team of trained psychologists. This team would be augmented by one or two other staff members from time to time, thus bringing the staff to patient ratio to approximately one to one. This is a much higher ratio than is available at Laurelton. Spangler stated that in his opinion, plaintiff would spend approximately two years in such a placement, then two years at a minimal supervision CLA, and then live independently with some backup support. The costs of this program would be $56,000 per year for the Teaching Family Home, $20,000 to $25,000 per year for the minimal supervision CLA, and approximately $4,000 per year for the necessary backup support after that. By contrast, it costs the Commonwealth approximately $40,000 to $48,000 per year to maintain plaintiff at Laurelton.

 Spangler and McFall also testified that the opportunities for growth and training at a CLA far exceeded those available at Laurelton. Although some aspects of these opinions were disputed by witnesses for the defendants, I find that Spangler and McFall were credible expert witnesses and I credit their opinions regarding the relative merits of life at a CLA and Laurelton. It is uncontroverted that certain aspects of CLA life simply cannot be duplicated at Laurelton. For example, because of its remote setting, the degree of community involvement at Laurelton will never be as great as that in a CLA. Neither will plaintiff be able to practice the food preparation she would be able to practice in a CLA.

 Indeed, many attributes of a CLA make it far superior in every way to institutionalization for someone like plaintiff. At Laurelton, plaintiff shares a "room" with two other women. This room is actually a small part of a much larger room that has been divided into small bedroom areas with partitions that are three-quarters of the height of the ceiling. Plaintiff testified that there are no doors in her cottage at Laurelton, even on the bathroom. Plaintiff has little ability to structure her sleeping time at Laurelton. She testified that there was a "curfew" imposed with a strict eleven o'clock "lights out" policy. In addition, she testified that she would like to be able to shop for her own clothes in the community and to do her own food shopping and preparation. Mr. McFall testified that plaintiff cannot do any of these things while she remains at Laurelton. At the very least, she is unable to engage in the full range of these activities while at Laurelton.

 In addition, although work activities are available at Laurelton, it is obvious that they are not of the same variety as those available to her in the community. Plaintiff stated her strong desire to work and earn money which she obviously enjoys spending. This motivation was considered a strong factor by both McFall and Spangler in their conclusions that plaintiff would make a good candidate for a CLA.

 Plaintiff obviously desires to be placed in a CLA very much. Indeed, both McFall and Spangler testified that the failure to place her in such a program has made her so frustrated that her behavior has deteriorated. McFall testified that plaintiff's self-esteem has been adversely affected by her continued stay at Laurelton especially in light of the fact that many of her former friends who functioned at similar levels as she does have left for CLAs. There was additional testimony that plaintiff's behavior is in a "downward spiral" as a result of her continued frustration at remaining at Laurelton. This testimony was, however, strongly contested by staff members of Laurelton. The Superintendent of Laurelton, defendant S. Reeves Powers, testified that plaintiff's behavior has always been variable and that she frequently became more aggressive for periods of time. He stated that her behavior has not gotten consistently worse over the years. He admitted, however, that a continued stay at Laurelton would cause her emotional harm.

 Kay Stewart, who is employed at Laurelton as a psychological services associate, supported Powers' view of plaintiff's behavior. Indeed, she testified that plaintiff's behavior has gotten better since 1981. I believe, however, that Stewart's testimony does not deserve much weight. She does not hold a degree in psychology per se and is not licensed in that field. She professed that she did not have deep background in the psychological literature. Moreover, I found that her testimony was often self-serving and that at times it was not forthright. For example, she relied on Exhibit C-15 which is a bar graph showing plaintiff's "continued stay assessment" scores over time. This exhibit was admitted to show that plaintiff's scores did not decline over time. The 1985 score was, however, made on the basis of a new test and could not be compared with earlier scores. On cross-examinations, Stewart admitted that the inclusion of this score in C-15 and her reliance on it were "unfair". For these reasons, I find that Stewart's testimony should be given little weight. I do, however, believe that those with the closest ability to observe plaintiff over a long period of time have the best ability to assess any changes in her behavior. I therefore must conclude that there have not been any long term trends in her behavior as a result of her being denied a CLA.

 To understand fully the circumstances which have given rise to plaintiff's present plight, it is necessary to sketch briefly the complicated relationship between local and state authority and responsibility in the provision of services to mentally retarded citizens. Both areas of government have some responsibility in this area. The responsibilities of the state include: ensuring the availability of adequate mental retardation services to all those who need them; making and enforcing regulations to implement the Mental Health/Mental Retardation Act; consulting with the various counties and assisting them in carrying out their mental retardation functions; operating state facilities, and supervising mental retardation facilities, services, and programs. The counties (and with respect to this action, Philadelphia County) have the duty to cooperate with the state to ensure that services are available.

 In addition, defendant Surles, who is the Mental Health and Mental Retardation Administrator for the County of Philadelphia, is responsible for establishing an organizational unit or units consisting of multi-disciplinary professional staff capable of providing and planning appropriate services for mentally retarded persons in need of such services from the county. These organizational units are known as "Base Service Units" ("BSUs"). The County has contracted with several BSUs each of which serves individuals from a different area of the City of Philadelphia. Defendant Centralized Comprehensive Human Services, Inc. operates the John F. Kennedy Community Mental Health and Mental Retardation Center ("JFK MH/MR") which is the BSU responsible for serving plaintiff. The obligations of JFK MH/MR are described in some detail in the stipulation of facts and I will not recite them here. It is unfortunate, but true, however, that although nominally responsible for the provision of services to plaintiff, JFK MH/MR apparently has no records in its possession concerning plaintiff from the time of her commitment until 1976. Since 1976, however, plaintiff's BSU has been repeatedly advised by Laurelton staff that plaintiff should not be institutionalized and should be placed in a CLA. JFK MH/MR, in fact, attempted to have Philadelphia's mental health and mental retardation program arrange a CLA placement for plaintiff. Like all other attempts to transfer plaintiff from Laurelton, however, this never resulted in any change in plaintiff's treatment.

 Although all the available professional opinion strongly favors a CLA for plaintiff, and has for the last nine years, plaintiff remains at Laurelton. The primary forces which have kept her there appear to be bureaucratic ineptitude and insufficient allocations of funds to community residence programs. Mr. Paul Hindman testified at the May 29, 1985 hearing regarding the process by which mental retardation services are funded by the state. He is currently director of the DPW's Bureau of Planning and Resource Allocation. He testified that DPW has allocated approximately $500 million for mental retardation services for the present fiscal year and that over one-half of this money goes to state institutions. Only 23% goes to community residential programs. He also testified that each year some of the money allocated to the counties for community residential programs is not spent. These "carry-over funds" are then reallocated during the next fiscal year to other counties. DPW has the discretion to reallocate this carry-over, at least to some degree. In spite of the fact that plaintiff's plight has been known by those at Laurelton, JFK MH/MR, and the County for many years, Hindman testified that no money has ever been sought or proposed to fund a CLA for plaintiff. Indeed, in the DPW budget for the 1985-1986 fiscal year, there was no increase for non-Pennhurst community placements at all. *fn2"


 A. Introduction

 Plaintiff makes a number of specific contentions in support of her motion for injunctive relief. She claims that the actions of the defendants have violated § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a). She also claims that she has been deprived of her liberty without due process and that she has had her substantive rights under the due process clause violated. Defendants *fn3" deny that plaintiff has been the victim of actionable discrimination under the Rehabilitation Act and contend that no constitutional violations have occurred. In addition, they argue that the relief plaintiff seeks is inappropriate.

 At the hearing on this matter, plaintiff requested that her motion for preliminary relief be treated as one for a permanent injunction. Although in most cases I would have given all parties advance notice of my intention to accelerate a hearing on a permanent injunction, defendants did not object to plaintiff's proposal either in court or in their post-hearing supplemental memoranda. I will therefore treat plaintiff's present motion as one for a permanent injunction. See Fed. R. Civ. P. 65(a).

 The power to grant a permanent injunction rests with the sound discretion of the trial court. Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1966). The court may grant a permanent injunction after a hearing if there are no material issues of fact and the issues of law have been correctly resolved. See Standard Oil Co. of Texas v. Lopeno Gas Co., 240 F.2d 504 (5th Cir. 1957).

 Plaintiff states claims on both statutory and constitutional grounds. The federal courts have long been directed to decide whether causes of action can be supported on statutory grounds before they adjudicate constitutional law issues. See Hagans v. Lavine, 415 U.S. 528, 543, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974); Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175, 53 L. Ed. 753, 29 S. Ct. 451 (1909). I will therefore address plaintiff's Rehabilitation Act argument first.

 B. Rehabilitation Act

 Plaintiff advances a claim under the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Act"). Introduced in the House of Representatives on December 9, 1971 and in the Senate on January 20, 1972, § 504 of the Act was framed initially as an amendment to the Civil Rights Act of 1964. Although it ultimately became part of another act, its language and intent were patterned after other civil rights legislation, especially Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a). Section 504 states:

No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.

 29 U.S.C. § 794.

 Senator Humphrey, the primary Senate sponsor of the bill, said when introducing it:

I introduce . . . a bill . . . to insure equal opportunities for the handicapped by prohibiting needless discrimination in programs receiving Federal financial assistance . . . The time has come when we can no longer tolerate the invisibility of the handicapped in America . . . I am calling for public attention to three-fourths of the Nation's institutionalized mentally retarded, who live in public and private residential facilities which are more than 50 years old, functionally inadequate, and designed simply to isolate these persons from society. . . . These people have the right to live, to work to the best of their ability - to know the dignity to which every human being is entitled. But too often we keep children, whom we regard as "different" or a "disturbing influence" out of our schools and community activities altogether . . . Where is the cost-effectiveness in consigning them to . . . "terminal" care in an institution? These are people who can and must be helped to help themselves. That this is their constitutional right is clearly affirmed in a number of recent decisions in various judicial jurisdictions.

 118 Cong. Rec. 525 (1972).

 Unfortunately, Congress apparently assumed that § 504 would be enforced as had previous civil rights legislation and provided no specific authorization for rulemaking in the statute. This situation was remedied when President Ford signed Executive Order No. 11,914 on April 28, 1976 which required the secretary of the Department of Health, Education, and Welfare (now the department of Health and Human Services) to promulgate regulations for the enforcement of § 504. It was not until 1977, however, that such regulations were published. See Cherry v. Mathews, 419 F. Supp. 922 (D.D.C. 1976).

 As the Supreme Court has recognized, these regulations are especially helpful in interpreting the congressional intent in passing § 504. This is true because the responsible congressional committees participated in their formation and both those committees and Congress as a whole endorsed the final product. See Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S. Ct. 1248, 1254-55 & n.15, 79 L. Ed. 2d 568 (1984). Plaintiff relies in particular on 45 C.F.R. §§ 84.4(b)(1)(i)-(iv) which state:

(b) Discriminatory actions prohibited.
(1) A recipient, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap:
(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective as that provided to others;
(iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;

 The term "equally effective" is defined in the regulations as:

(2) For purposes of this part, aids, benefits and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons, but must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same ...

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