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DURETT v. COHEN

August 21, 1985

PAUL DURETT
v.
WALTER S. COHEN, Individually and in his official capacity as Secretary of the Department of Public Welfare, Commonwealth of Pennsylvania; JENNIFER L. HOWSE, Individually and in her official capacity as Deputy Secretary for Mental Retardation for the Pennsylvania Department of Public Welfare, Commonwealth of Pennsylvania; PATRICIA C. SWEIGERT, Individually and in her official capacity as the Administrator of the Bucks County Department of Mental Health-Mental Retardation, Commonwealth of Pennsylvania; ELAINE P. ZETTICK, CARL F. FONASH, and ANDREW L. WARREN, Individually and in their official capacities as the Bucks County Commissioners, Commonwealth of Pennsylvania



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 In this action, plaintiff Paul Durett alleged that the denial of funding for mental retardation services by Pennsylvania and Bucks County constituted a violation of plaintiff's rights under the fourteenth amendment, the Rehabilitation Act of 1973, 29 U.S.C. § 795 (1985 supp.), federal regulations, 45 C.F.R. § 84.51 et seq. (1985), and the Pennsylvania Mental Health /Mental Retardation Act, 50 P.S. §§ 4301(a) & (d), 4305(2), 4415(b) (1969). Plaintiff sought injunctive relief prohibiting the Pennsylvania and Bucks County defendants' denial of plaintiff's residential eligibility for state-funded mental retardation services and a declaratory judgment that Pennsylvania's policy and practice concerning residency of mentally retarded individuals was unconstitutional and violative of the above-named statutes. This lawsuit was resolved by a settlement under which New Jersey, a nonparty to this action, agreed to fund plaintiff's mental retardation services from February 1, 1984 on and Pennsylvania agreed to pay the major portion of the cost of plaintiff's care for the year 1983. Now pending before the Court is the petition of plaintiff's counsel, Stephen F. Gold, Esquire, and Ilene W. Shane, Esquire, for attorney's fees under 42 U.S.C. § 1988 and 29 U.S.C. § 794a(b).

 The pleadings, affidavits, and evidentiary materials submitted by the parties establish the following facts: The plaintiff, Paul Durett, is a nonambulatory, profoundly mentally retarded man with cerebral palsy characterized by scoliosis and spastic quadriplegia, microcephalia, multiple contractures and associated deformities, and a grand mal seizure disorder. In 1983, the plaintiff at age 37 was diagnosed as having a mental age of 2.5 months, and I.Q. of 10, and as being in need of total physical care. Plaintiff was born on January 27, 1946 in Roselle, New Jersey. In 1957, the Durett family moved to Venezuela because Mr. Durett was transferred there by his employer. The Duretts maintained their New Jersey home and returned to New Jersey for vacations during their stay in Venezuela. Plaintiff lived with his parents until 1961, when they placed plaintiff in Happy Hills, a private residential mental retardation facility in Montgomery County, Pennsylvania. The Duretts chose Happy Hills because they felt it was the only facility in Pennsylvania or New Jersey which could provide the comprehensive care which plaintiff required, and which they could no longer provide at home. After a fire at Happy Hills in 1968, plaintiff was transferred to Pleasant Manor, a residential facility located in Bucks County, Pennsylvania. From 1961 until 1973, the Duretts paid the entire cost of plaintiff's care and maintenance at Happy Hills and Pleasant Manor.

 When the plaintiff's father died in 1972, the plaintiff's mother, Mrs. Durett, left Venezuela and moved back to New Jersey. In 1975, Mrs. Durett moved to Nevada, where she lived at the time this action was instituted. In 1973, plaintiff began receiving Social Security Disability and Veterans Assistance benefits, which benefits were used as partial payment for plaintiff's care. The larger portion of the cost of plaintiff's care was paid by the Durett family. The total cost of plaintiff's care for the year 1982 was $27,168.90, of which $5,784.00 was paid from Social Security and Veterans' benefits, and $21,384.90 from the savings of Mrs. Durett.

 In January, 1983, Mrs. Durett informed Pleasant Manor that she was no longer financially able to pay for plaintiff's care. She continued to forward plaintiff's benefits check to Pleasant Manor. In March of 1983, Pleasant Manor's Director of Social Services sought funding on behalf of plaintiff from the Bucks County Mental Health-Mental Retardation Program, the Nevada Developmental Disabilities Office, the New Jersey Department of Human Services, and the Pennsylvania Department of Public Welfare (DPW). Plaintiff's family also contacted the New Jersey, Nevada, and Bucks County offices. The New Jersey and Nevada offices denied funding on the ground that neither considered plaintiff a resident of its state. By letter dated May 18, 1983, Pleasant Manor notified Mrs. Durett that it would not keep plaintiff on the approximately $500.00 per month which she was providing. Pleasant Manor allowed Mrs. Durett 60 days from the date of that letter within which to balance her account. By letter dated July 13, 1983, defendant Patricia C. Sweigert, the Administrator of the Bucks County Department of Mental Health-Mental Retardation, notified plaintiff's counsel that plaintiff was ineligible for mental retardation services funding from Bucks County because plaintiff was not a Pennsylvania or a Bucks County resident. This determination was based on a draft regulation providing that for individuals who became incapable of indicating intent before the age of 21, the state of residence is the state in which the parents reside. See Pennsylvania DPW Mental Retardation Bulletin, July, 1983 (Exhibit A to plaintiff's motion for summary judgment). In July of 1983, plaintiff's counsel contacted counsel for DPW, Howard Ulan, to request funding for plaintiff's treatment. This request was denied on the ground that plaintiff was not deemed a resident of Pennsylvania.

 On August 10, 1983, plaintiff commenced this action against Walter S. Cohen, Secretary of DPW, Jennifer L. Howse, Deputy Secretary for Mental Retardation of the DPW, Patricia C. Sweigert, Administrator of the Bucks County Department of Mental Health-Mental Retardation, and Elaine P. Zettick, Carl F. Fonash, and Andrew L. Warren, Bucks County Commissioners. Plaintiff alleged, inter alia, (1) that because Pennsylvania's residency standard hinged on the mentally retarded individual's ability to articulate a subjective intent to be a resident of the state, it discriminated against plaintiff in the provision of mental retardation services on the basis of handicap in violation of the Rehabilitation Act of 1973, supra ; (2) that Pennsylvania's practice, which denied individuals in plaintiff's position publicly funded mental retardation services, was a penalty and hence unconstitutional discrimination against those who exercise the right of interstate migration; (3) that Pennsylvania's policy embodied an unjustified irrebuttable presumption in violation of plaintiff's right to due process; (4) that the arbitrary distinction drawn by Pennsylvania in determining the residency of mentally retarded individuals violated the purpose of the Pennsylvania Mental Health-Mental Retardation Act, supra. Plaintiff requested relief in the form of a temporary restraining order (TRO) and preliminary and permanent injunction against denying mental retardation eligibility and appropriate services to plaintiff and a declaration of the invalidity of Pennsylvania's residency standard. Plaintiff's request for a TRO was withdrawn when Pleasant Manor agreed to keep plaintiff until a subsequent conference with the Court. At an in-chambers conference on September 6, 1983, Pleasant Manor agreed to keep plaintiff pending judicial resolution of the matter on an expedited basis. Plaintiff filed a motion for summary judgment on November 22, 1983.

 Counsel for DPW told plaintiff's counsel on more than one occasion that plaintiff was a resident of New Jersey and/or Nevada and that plaintiff had erred in failing to sue one or both of these states. Between September and mid-December 1983, counsel for DPW requested counsel for plaintiff to join New Jersey and Nevada as co-defendants. Although counsel for plaintiff declined to do so, counsel for plaintiff invited DPW to join those states as third-party defendants, if DPW desired their participation. Counsel for DPW concluded that these states could not be joined under Fed.R.Civ.P. 14, 19, or 20.

 On November 7, 1983, defendant Dr. Howse, the Deputy Secretary of DPW, contacted Mr. Eddie Moore, the Director of the Division of Mental Retardation of the New Jersey Department of Human Services. Dr. Howse explained plaintiff's situation to Mr. Moore, and further stated, "The issue of residency of a mentally retarded person and the liability of a state thereafter to assume responsibility for his care is a difficult issue." Dr. Howse requested Mr. Moore's New Jersey office to consider assuming responsibility for plaintiff on the ground that the residence of the parents controlled plaintiff's residence, because plaintiff was incapable of expressing consent. On December 6, 1983, Mr. Moore responded to Dr. Howse, stating that New Jersey would assume the funding of plaintiff's placement at Pleasant Manor if plaintiff's parents could verify their residence in New Jersey during their stay in Venezuela. On January 4, 1984, counsel for plaintiff provided DPW with an appropriate affidavit from Mrs. Durett. By letter dated February 16, 1985, Mr. Moore advised Dr. Howse of DPW that New Jersey would provide funding for plaintiff's care and treatment at Pleasant Manor as of February 1, 1984.

 Pleasant Manor, having been apprised of these developments by plaintiff's counsel, continued to insist on reimbursement for plaintiff's care and treatment during 1983 and threatened to oppose any settlement which did not include this reimbursement. DWP began negotiating a settlement with Pleasant Manor for the 1983 costs.

 On February 22, 1984, the Court approved the following Stipulation of Settlement:

 
SETTLEMENT STIPULATION
 
WHEREAS at the request of the Deputy Secretary for Mental Retardation, Department of Public Welfare, the New Jersey Department of Human Services has agreed to pay for Paul Durett's ...

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