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UNITED STATES v. PENNSYLVANIA

July 27, 1995

UNITED STATES OF AMERICA, Plaintiff
v.
COMMONWEALTH OF PENNSYLVANIA, ROBERT CASEY, Governor of the Commonwealth of Pennsylvania, KAREN F. SNYDER, Acting Secretary Department of Public Welfare, STEVEN M. EIDELMAN, Deputy Secretary of Mental Retardation Office of Mental Retardation, ALAN M. BELLOMO, Director Ebensburg Center, Defendants


D. Brooks Smith, United States District Judge


The opinion of the court was delivered by: D. BROOKS SMITH

SMITH, District J.

 TABLE OF CONTENTS

 I. Introduction

 II. Standard of Proof

 A. Cripa Actions

 B. Substantive Due Process Rights of Institutionalized Mentally Retarded Persons

 C. The Professional Judgment Standard

 III. Findings of Fact and Conclusions Regarding Liberty Interests at Issue in this Litigation

 A. A Center's Structure and Services

 B. Adequate Basic Care

 C. Adequate Medical Care

 1. Neurological Care

 2. Psychiatric Care

 a. Psychiatric Assessment Techniques

 b. Differential Diagnosis

 c. Psychiatric Treatment

 3. Gastroesophaegeal Reflux and Aspiration

 4. Nutritional Management

 a. Screening

 b. Assessment

 c. Intervention

 d. Monitoring

 e. Training

 5. Physical Therapy

 a. Assessment

 b. Wheelchair

 c. Transfers

 6. General Medical Care

 7. General Nursing Care

 D. Adequate Training and Freedom From Undue Restraint

 E. Reasonable Safety and Protection From Harm

 IV. CONCLUSION

 I. INTRODUCTION

 This action presents a claim by the Attorney General, on behalf of the United States of America ("United States"), under the Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. §§ 1997-1997j ("CRIPA"). The United States contends that the Commonwealth of Pennsylvania ("Commonwealth") and the individually-named defendants (officers of the Executive Branch of the Commonwealth sued in their official capacities) are depriving institutionalized mentally retarded persons at the Ebensburg Center (the "Center") of rights, privileges or immunities secured by the Constitution of the United States. Complaint (Docket No. 1), PP 1, 6-11. The United States seeks equitable relief, the sole remedy authorized by CRIPA (see 42 U.S.C. § 1997a (a)), and asks this Court to enjoin defendants from "continuing the acts, practices and omissions" at the Center which allegedly violate the Constitution, and "to require defendants to take such action as will provide constitutional conditions of care to persons" who reside at the Center. Complaint, p. 5.

 The instant CRIPA action was tried before this Court over the course of twenty (20) days. Extensive testimony by lay and expert witnesses was presented, hundreds of exhibits were received into evidence, and this Court conducted a detailed view of the facility in the presence of counsel.

 Inasmuch as "decisional law interpreting [CRIPA] is virtually nonexistent" ( United States v. Pennsylvania, 863 F. Supp. 217, 218 (E.D. Pa. 1994)), and in order to properly evaluate the evidence presented, I will first address the applicable standard of proof. Thereafter, for each alleged constitutional violation, I will discuss the nature of the duty owed, my findings of fact regarding the alleged violative conduct, and my conclusion regarding whether a violation exists.

 For the reasons explained below, I find that the residents at the Ebensburg Center are not being deprived of their rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. Accordingly, the United States' request for injunctive relief shall be denied.

 II. STANDARD OF PROOF

 A. CRIPA Actions

 The Commonwealth submits that the standard of proof in this CRIPA action requires the United States to satisfy five elements set forth in 42 U.S.C. § 1997a. According to the Commonwealth, the United States must demonstrate:

 
1. egregious and flagrant conditions in a State institution resulting in;
 
2. a deprivation of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States;
 
3. said deprivation is pursuant to a pattern or practice of resistance to the full enjoyment of such rights, privileges or immunities; and
 
4. said deprivation causes;
 
5. grievous harm to persons residing in an institution.

 See Docket No. 22, pp. 34-35. *fn1" The United States argues that the Commonwealth's extrapolation of these elements from 42 U.S.C. § 1997a is in error because that statute merely establishes the elements of the "Attorney General's 'reasonable cause' determination that conditions at the institution in question merit Department of Justice involvement." 30/3-4.

 None of CRIPA's provisions specifically address the elements which must be demonstrated by the United States at trial in order to obtain the equitable relief sought. See 42 U.S.C. §§ 1997-1997j. Section 1997a is entitled "Initiation of civil actions," and subsection (a)'s caption reads: "Discretionary authority of Attorney General; preconditions." 42 U.S.C. § 1997a. Subsection (a) provides:

 
Whenever the Attorney General has reasonable cause to believe that any State . . . is subjecting persons residing in or confined to an institution, as defined in section 1997 of this title, to egregious or flagrant conditions which deprive such persons of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States causing such persons to suffer grievous harm, and that such deprivation is pursuant to a pattern or practice of resistance to the full enjoyment of such rights, privileges, or immunities, the Attorney General, for or in the name of the United States, may institute a civil action in any appropriate United States district court against such party for such equitable relief as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment of such rights, privileges, or immunities . . .

 42 U.S.C. § 1997a(a) (emphasis added).

 The plain language of § 1997a(a) reveals that the statute simply confers standing upon the Attorney General, thereby providing authority for the United States to initiate a lawsuit on behalf of mentally retarded persons, and others, who reside or are confined in an institution. See Patsy v. Florida Bd. of Regents, 457 U.S. 496, 507-08, 73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982) ("The Civil Rights of Institutionalized Persons Act . . . was enacted primarily to ensure that the United States Attorney General has legal standing to enforce existing constitutional rights and Federal statutory rights of institutionalized persons.'" (quoting H.R. Conf. Rep. No. 96-897, 9 (1980)); United States v. Pennsylvania, 863 F. Supp. at 219-20 ("From this language [in § 1997a(a)] the Court must hold that the Attorney General is vested with the discretion to bring suit whenever she is satisfied that a case is serious enough to warrant federal involvement. Once such a determination is made by the Attorney General, the standard of proof to be borne by the United States at trial must be the same as any other plaintiff."); United States v. Tennessee, 798 F. Supp. 483, 488 (W.D. Tenn. 1992) ("CRIPA is a standing statute.").

 The five elements identified by the Commonwealth apply only to the Attorney General's "reasonable cause" determination, which must be made before the Attorney General may properly institute a CRIPA action. 42 U.S.C. § 1997a(a). One court has concluded that this plain reading of the statute is supported by its legislative history. *fn2" Inasmuch as I conclude that it is clear from the text that § 1997a(a) is a standing statute, I believe an examination of its legislative history is unnecessary. *fn3"

 As the Supreme Court of the United States has noted, CRIPA is legislation pertaining to "a specific class of § 1983 actions." Felder v. Casey, 487 U.S. 131, 148, 101 L. Ed. 2d 123, 108 S. Ct. 2302 (1988) (state statute creating exhaustion requirement for § 1983 action held violative of Supremacy Clause). For purposes of the instant action, it is important to remember that § 1983 did not create any new rights, but was enacted by Congress "to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position." Monroe v. Pape, 365 U.S. 167, 172, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961) (emphasis added). See also Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981) (Section 1983 provides "a civil remedy' for deprivations of federally protected rights caused by persons acting under color of state law without any express requirement of a particular state of mind.").

 The Supreme Court has identified "two essential elements" to a § 1983 civil rights action:

 
(1) whether the conduct complained of was committed by a person acting under color of state law; and
 
(2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.

 Id. Accord Shaw v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990). Because CRIPA was enacted to provide standing for the Attorney General to initiate civil rights actions on behalf of institutionalized persons, the "essential elements" that the United States must prove are the same as in any civil rights action. See United States v. Pennsylvania, 863 F. Supp. at 220 ("The United States has no greater standard of proof than an individual plaintiff would bear in a case alleging the same illegal conduct on the part of a state.").

 In this case, the United States alleges -- and the Commonwealth does not dispute -- that "defendants have acted or failed to act . . . under color of state law." Complaint, P 15. The core of the dispute here concerns whether defendants have "deprived residents of Ebensburg of rights, privileges, or immunities secured or protected by the Constitution of the United States." Id., P 21. The individually-named defendants have been sued in their official capacities, which "'generally only represents another way of pleading an action against an entity of which an officer is an agent.'" Kentucky v. Graham, 473 U.S. 159, 165, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985) (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n.55, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978)). Accord Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989) ("Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself."). *fn4"

 B. Substantive Due Process Rights of Institutionalized Mentally Retarded Persons

 The United States contends that the Commonwealth has subjected the residents of the Center to a deprivation of their liberty interests protected by the Due Process clause of the Fourteenth Amendment of the United States Constitution, *fn5" because they have not been provided:

 
a. adequate basic care -- in particular, adequate food, shelter, clothing, and hygiene;
 
b. adequate medical care;
 
c. freedom from undue restraint, and training programs to ensure freedom from undue restraint; and
 
d. safe conditions.

 In Youngberg v. Romeo, 457 U.S. 307, 314, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982), the Supreme Court considered "for the first time the substantive rights of involuntarily committed mentally retarded persons under the Fourteenth Amendment to the Constitution." The Youngberg Court acknowledged that "the mere fact that Romeo has been committed [to a Pennsylvania state institution] under proper procedures does not deprive him of all substantive liberty interests under the Fourteenth Amendment." Id. (emphasis added).

 The defendants in Youngberg (three administrators of the Pennsylvania institution) "conceded a duty to provide adequate food, shelter, clothing, and medical care." Id. at 324. The Supreme Court noted that these duties "are the essentials of the care that the State must provide." Id. Separate and apart from these interests, however, the plaintiff argued that he had "a constitutionally protected liberty interest in safety, freedom of movement, and training within the institution; and that [the defendants] infringed these rights by failing to provide constitutionally required conditions of confinement." Id. at 315. The Court's task, therefore, was to "decide whether liberty interests also exist in safety, freedom of movement, and training," and, if so, to "decide whether they have been infringed in this case." Id.

 The Youngberg Court found that the first two claims -- safe conditions and freedom from bodily restraint -- involved, "liberty interests recognized by prior decisions of this Court, interests that involuntary commitment proceedings do not extinguish." Id. (footnote omitted). The plaintiff's other claim -- a constitutional right to minimally adequate training -- was, in the words of the Court, "more troubling." Id. at 316.

 
In addressing the asserted right to training, we start from established principles. As a general matter, a State is under no constitutional duty to provide substantive services for those within its border. When a person is institutionalized-- and wholly dependent on the State--it is conceded by petitioner that a duty to provide certain services and care does exist, although even then a State necessarily has considerable discretion in determining the nature and scope of its responsibilities. Nor must a State "choose between attacking every aspect of a problem or not attacking the problem at all."

 Id. at 317 (citations omitted). The Court noted that the plaintiff's "primary needs" were "bodily safety and a minimum of physical restraint," and the plaintiff "clearly claimed training related to these needs." Id. at 317-18. The Court therefore held that "in the circumstances presented by this case, and on the basis of the record developed to date, we agree . . . that [the plaintiff's] liberty interests require the State to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint." Id. at 319. *fn6"

 Significantly, although the Court found that a constitutional liberty interest existed that required Pennsylvania to provide "minimally adequate or reasonable training," the Court cautioned against adopting an unrestrained notion of liberty interests that would impose additional duties on a State:

 
It is not feasible, as is evident from the variety of language and formulations in the opinions below and the various briefs here, to define or identify the type of training that may be required in every case. A court properly may start with the generalization that there is a right to minimally adequate training. The basic requirement of adequacy, in terms more familiar to courts, may be stated as that training which is reasonable in light of identifiable liberty interests and the circumstances of the case. A federal court, of course, must identify a constitutional predicate for the imposition of any affirmative duty on a State.

 Id. at 319 n.25 (emphasis added).

 After establishing that the plaintiff in Youngberg retained "liberty interests in safety and freedom from bodily restraint," the Court explained the need to set forth a standard to apply in determining whether the State has violated these substantive due process rights of an involuntarily committed mentally retarded individual.

 
The question . . . is not simply whether a liberty interest has been infringed but whether the extent or nature of the restraint or lack of absolute safety is such as to violate due process.
 
* * * *
 
Whether [the plaintiff's] constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests. If there is to be any uniformity in protecting these interests, this balancing cannot be left to the unguided discretion of a judge or jury.

 Id. at 320-21. The Court then held that "'the Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professional choices should have been made.'" Id. at 321 (emphasis added) (citation omitted). *fn7"

 With respect to the plaintiff's claim for minimally adequate training, the Youngberg Court explained the deference to be shown in applying the "professional judgment" standard:

 
In this case, the minimally adequate training required by the Constitution is such training as may be reasonable in light of respondent's liberty interests in safety and freedom from unreasonable restraints. In determining what is "reasonable" -- in this and in any case presenting a claim for training by a State -- we emphasize that the courts must show deference to the judgment exercised by a qualified professional. By so limiting judicial review of challenges to conditions in state institutions, interference by the federal judiciary with the internal operations of these institutions should be minimized. . . . The decision, if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.

 Id. at 322-23 (emphasis added) (footnotes omitted). See also Society for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239, 1248 (2d Cir. 1984) ("Youngberg held that due process is satisfied if restraints are imposed on mentally retarded individuals in accordance with the judgment of qualified professionals and that courts should defer to this professional judgment.").

 C. The Professional Judgment Standard

 The United States contends that the "professional judgment" standard set forth in Youngberg is not applicable, but if it is applicable, the standard pertains only to the claim regarding training. 87/30-33. *fn8" The United States' argument is based on a tortured reading of Youngberg, and completely ignores Third Circuit precedent interpreting Youngberg, which is binding on this Court. See Shaw v. Strackhouse, 920 F.2d 1135, 1146 (3d Cir. 1992) ("Absent even a hint that the Court meant to so limit its holding, we must read Youngberg at face value and apply the professional judgment standard to all failure to protect, excessive restraint, and failure to habilitate claims brought by mentally retarded persons who are institutionalized, whether such claims are brought independently or in tandem.").

 The United States argues: "As contemplated in Youngberg, safety is an objective standard that can be measured through objective criteria." 87/30. The United States fails to explain how this novel proposition is "contemplated" in Youngberg, and fails to indicate the source of the "objective standard" that this Court should apply. To the contrary, the Supreme Court in Youngberg specifically stated that, in determining whether the constitutional rights of an institutionalized individual have been violated, a court must balance the individual's liberty interests against the relevant state interests, and that "if there is to be any uniformity in protecting these interests, this balancing cannot be left to the unguided discretion of a judge or jury." 457 U.S. at 321. For this very reason, the Supreme Court set forth the "professional judgment" standard. The United States' argument must be rejected. *fn9"

 In Shaw, the Third Circuit attempted to clarify the meaning of the "professional judgment" standard established in Youngberg, and stressed that mere negligence "cannot trigger due process protection." Id. at 1146.

 
Professional judgment is a relatively deferential standard. It requires only that a state actor exercise professional judgment in choosing the appropriate course of action. Negligence, however, imposes on a state official the burden of choosing, from among alternatives, a course of action consistent with the exercise of 'due care.' That means, as we see it, rejecting negligent alternatives that might nonetheless satisfy the demands of professional judgment.
 
. . . . [Professional judgment] appears to us to be a substantially less onerous standard than negligence from the viewpoint of the public actor. Indeed, in our view, professional judgment more closely approximates -- although, as we have discussed, remains somewhat less deferential than -- a recklessness or gross negligence standard. Professional judgment, like recklessness and gross negligence, generally falls somewhere between simple negligence and intentional misconduct.

 Id. (emphasis added). Accord Society for Good Will to Retarded Children, 737 F.2d at 1248 ("'Professional judgment' has nothing to do with what course of action would make patients 'safer, happier and more productive.' Rather, it is a standard that determines whether a particular decision has substantially met professionally accepted minimum standards.").

 As Shaw and other cases decided since Youngberg explain, the "professional judgment" standard (i.e., deciding whether a decisionmaker's action, or inaction, constituted "such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment," 457 U.S. at 323,) is a less onerous standard for a state actor to meet than that of negligence or medical malpractice. Optimal courses of treatment as determined by some expert, while laudable, do not establish the minimal constitutional standard. Society for Good Will to Retarded Children, 737 F.2d at 1248. *fn10" Instead, the factfinder must determine whether the decision made by the professional comports with minimally accepted professional standards.

 In making this determination, expert testimony is "relevant not because of the experts' own opinions -- which are likely to diverge widely -- but because that testimony may shed light on what constitutes minimally accepted standards across the profession." Society for Good Will to Retarded Children, Inc., 737 F.2d at 1248.

 
The role of the experts is only to assist the court in ascertaining what the minimum professional standard is; the ultimate question is whether "'professional judgment in fact was exercised.'" Even if every expert testifying at trial agrees that another type of treatment or residence setting might be better, the federal courts may only decide whether the treatment or residence setting that actually was selected was a "substantial departure" from prevailing standards of practice.

 Id. at 1248-49 (citations omitted). Accord Society for Good Will to Retarded Children, Inc. v. Cuomo, 902 F.2d 1085, 1090 (2d Cir. 1990) (district court erred in finding constitutional violations without first determining whether the conditions and treatment substantially departed from accepted professional judgment; "the district court should use expert testimony to identify 'substantial departures', but not to choose from among several professionally acceptable remedies").

  III. FINDINGS OF FACT AND CONCLUSIONS REGARDING LIBERTY INTERESTS AT ISSUE IN THIS LITIGATION

  The United States alleges that four separate categories of "liberty interests" have been violated at the Center. To properly analyze the evidence, I must evaluate (1) the nature of the liberty interests of the residents at issue (and defendants' corresponding duty to protect those rights); and (2) whether defendants' official customs and policies, as implemented at the Center, so substantially departed from accepted professional judgment, practice, or standards as to demonstrate that defendants actually did not base their decisions on professional judgment.

  This case has been carefully and exhaustively litigated by the United States and the defendants. Constraints of time and space do not permit me to respond to every one of the manifold factual and legal contentions raised by the United States with respect to the liberty interests at issue in this litigation. As the lengthy opinion which follows demonstrates, however, I have attempted to address in detail the more serious issues, while confronting the remaining issues in a general manner. Before addressing the United States' contentions, a brief overview of the Center's structure and services is in order.

  A. The Center's Structure and Services

  The Ebensburg Center is an institution operated by the Commonwealth for mentally retarded persons, serving Bedford, Blair, Cambria and Somerset Counties. The Center is licensed as an intermediate care facility for persons with mental retardation and is geared toward caring for individuals with significant behavioral deficits who require assistance to meet their daily needs, and who have been unable to procure like services elsewhere. Exh. 11. The Center has a full operating license under the federal standards of the Title XIX Medicaid Program, which is a prerequisite for participating in the Medicaid Program. 62/158.

  The Center was built in the 1950s. Many of the residents were placed at the center as children, and currently the median age of the residents is 32.5 years. 62/163. The Center's 475 residents live in five buildings or living units, each of which has four separate wings. There are approximately 96 residents to each building or 24 residents to each wing. 62/140-41; Exh. 608/62. *fn11" The Center currently provides four private rooms per unit and plans to increase the number of private rooms available. Exh. 603/104; 63/27.

  The living units are the Keystone House, Laurel House, Sunset House, Horizon House, and the Villa House. The Keystone Unit houses the residents who are more profoundly mentally retarded and more physically disabled. Some physically handicapped residents also live in the Laurel, Horizon, Sunset and Villa living units. 34/98. Approximately one third of the residents of the Keystone unit are essentially immobile -- meaning that, as a result of their physical handicaps, they have no active movement, except for the ability to move their head, or to slightly move an arm or leg. 34/98. The physical handicaps manifested by the residents at the Center are a result of damage to the brain. 34/107.

  Laurel Unit houses mentally retarded women. Some of the mentally retarded men reside in the Sunset House. Horizon House houses residents who are visually impaired or blind. Villa is home for the Center's higher functioning individuals who are mildly to moderately mentally retarded. 43/81.

  The Center has been budgeted a total of 790 full-time staff, which includes direct staff, professional staff and administrative staff. Exh. 601/53, 95. Additional staff may be requested during or before the fiscal year from a pool of staff serving facilities operated by the state. Exh. 600/95-99. Approximately 366 of the Center's staff are involved solely with direct care. Exh. 600/99.

  Alan M. Bellomo was appointed as Director of the Ebensburg Center in 1985 and continues to serve in that capacity. 62/130. As Director, he oversees the total operation of the facility to insure that the residents are receiving adequate services, care and treatment. Exh. 600/51-52. All staff of the Center are ultimately responsible to Mr. Bellomo. Exh. 600/52. Mr. Bellomo relies in part on the judgments of his division director, disciplinary coordinator, outside reviews, advocacy groups and family association members to keep him updated on the needs of the facility. Exh. 600/63.

  Mr. Bellomo reports to Dr. Sneed, who is the Director of the Bureau of Direct Program Operations for the OMR. 63/25. Dr. Sneed supervises the direction of eight other mental retardation facilities and is supervised himself by the Pennsylvania Deputy Secretary for Mental Retardation. Exh. 600/64-67. Dr. Sneed speaks with Mr. Bellomo at least once a week and attends monthly meetings with Mr. Bellomo. Exh. 600/67-73.

  Under Mr. Bellomo's direction, the Center's Executive Staff perform rounds of the facility to remain abreast of resident's concerns and care. These rounds give management the opportunity to know the residents personally, provide oversight when there would otherwise be none, and give the employees an opportunity to speak openly with facility management. Exh. 600/11-12; 63/8-9; 63/59. Management submits weekly observations and criticisms of the facility to Mr. Bellomo for consideration. Exh. 603/10. Mr. Bellomo addresses these concerns as they arise and creates incremental plans to relieve problems. Exh. 600/25-27.

  As facility director, Mr. Bellomo also chairs the Executive Staff and Risk Management committees and participates on the Mortality and Morbidity Review and Budget committees. Exh. 600/49. Mr. Bellomo often attends the annual reviews that occur at the facility. Id. Additionally, Mr. Bellomo chairs town meetings so that he may address concerns of the residents. Exh. 600/49.

  Richard G. O'Brien has been Director of Program Services at the Center since 1982. 64/65. As Director of Program Services, Mr. O'Brien is responsible for monitoring discipline coordinators in the areas of psychology, nursing, speech pathology, volunteer resources and social services. He also is responsible for the contract services provided to the Center by Liberty Health Care, Mercy Hospital, Camco's physical therapy services, and various laboratory services. In addition, Mr. O'Brien is responsible for the operation of and monitoring of the quality assurance program. 64/66. This program insures that Ebensburg complies with various federal standards and properly implements the standard for Intermediate Care Facilities for the Mentally Retarded (ICFMR). Exh. 600/53.

  The Center is organized along the lines of a "unit system" -- a method of operation that became popular in the 1970s in an effort "to get away from the clearly delineated -- what became isolated -- roles of different professionals." 51/17. The unit system strives to better coordinate the services of all the professional disciplines that are provided to the residents, with each unit director or manager administratively supervising the provision of services to his or her residents. 51/17-19.

  Under the unit system, all of the living units are served by the Center's Director of Residential Unit Management (DRUM), David Devine. Mr. Devine supervises each building's Unit Manager, and Mr. Devine is ultimately responsible for providing adequate residential services and care to the residents of the facility. Exh. 608/22; 63/8. Mr. Devine's direct supervisor is Mr. Bellomo. Exh. 608/34.

  The Unit Managers run each unit in three shifts. The first shift is supervised by a Residential Service Supervisor (RSS), who is a Qualified Mental Retardation Professional (QMRP). The QMRP is the staff person responsible for a resident's case management, which includes a ninety-day review to insure that all services are being properly provided. The QMRP also coordinates that resident's annual staffing and insures that any provider of a program service documents activity in the chart. 64/130. The RSS also supervises the Residential Service Aids (RSAs) who provide direct care to the residents. Exh. 608/190. Residential Service Aide Supervisors (RSAS) and Residential Service Night Aide Supervisors (RSNAS) act as RSA supervisors on the second and third shifts, respectively. Exh. 601/78.

  Mr. Devine also is responsible for scheduling staff and meeting direct care employee quotas. Quotas, the minimum number of RSAs allowed for a shift, are set by Mr. Bellomo to insure that residents receive adequate attention and care. Currently, the Center employs approximately 366 full-time and twenty-nine substitute RSAs to meet the existing quotas. Exh. 601/7-8. Professional staff are not included when determining the quota, but the record reveals that approximately 30% of the RSAS' time per month is spent working in cooperation with the RSA quota, providing hands-on care and at the same time monitoring their staff. Exh. 600/140; Exh. 601/69-71; Exh. 608/97. RSASs are not included in the quota because they also are responsible for administrative tasks, such as assisting in the design and implementation of the residents' programs. Exh. 601/78.

  On occasion, Mr. Devine also uses unit "pulls" to meet his minimum quota. Generally RSAs are "pulled" from one unit to work in another so that both units are able to make quota for that shift. Exh. 601/78-80. Occasionally, Mr. Devine must pull nurses, so that the Registered Nurse Supervisors are properly supported. Exh. 601/80. The Center's quota minimums exceed Title XIX's requirements and are reviewed on a monthly basis by the OMR. Exh. 600/149, 152.

  Mr. Devine's duties also include the supervision of infection control, all staff of the third shift, as well as three nurse supervisors. Finally, as DRUM, Mr. Devine sits on the Executive Staff Safety Committee, Risk Committee, Budget Committee, Approved Purchase Committee, Record Committee, Probationary Review, Mortality/Morbidity Committee, and the Policy Committee. Exh. 608/16-18, 188.

  Mary Kay Bennett acts as the Center's guardian officer, and ensures that the residents' money is safeguarded and reasonably spent. Exh. 603/25, 56. Ms. Bennett is court-appointed and supervised by a western regional officer. Exh. 603/25-26.

  The state, through the Pennsylvania Protection and Advocacy Organization (PP&A), also provides some residents with advocates. PP&A is recognized by Pennsylvania's governor as an advocate for the disabled and occasionally subcontracts its duties with the state Association for Retarded Citizens (ARC). Due to an inadequacy of representation, however, the Center began a program which utilizes citizens from the Ebensburg area as "special friends" and advocates for the residents. The special friends form relationships with the residents, visit on holidays, and attend the residents' annual care review if possible. Exh. 603/26-27.

  The facility also attempts to place residents in the surrounding area so that they have an opportunity to live in a non-institutional community. 63/171. Mr. Bellomo recommends that residents be placed in the community, but the county's mental health/mental retardation administrator makes final determinations on placement. Exh. 600/81; 63/18. Although the Center has residents who could be placed in the community, no such facilities are currently available. In an effort to ameliorate this unfortunate situation, for those residents who qualify for community placement, the facility awards "grounds privileges," which allows those residents to walk independently on the grounds or go to the mini-mall located near the facility. 63/160.

  The standards of Title XIX require that facilities such as the Center be subjected to an unannounced, annual survey. 62/158. The survey team is present for approximately one week and scrutinizes the Center for its compliance with approximately 475 different standards. 64/42. The survey team then provides a report to the Center listing its concerns, and the Center must provide a plan of correction, which specifies a particular date for compliance. Thereafter, the survey team will return unannounced to ascertain if the various deficiencies previously cited have, in fact, been completely corrected. 64/42.

  As a result of a Title XIX survey in October 1990, the Center received a Provisional I license under Title XIX for January 31, 1991, to July 31, 1991. 62/144; Exh. 1101. The provisional license was recommended by the Title XIX survey team to the OMR (which is responsible for the licensure process and is under the aegis of the Pennsylvania Department of Public Welfare). 62/144-45. The survey team recommended the provisional license as a result of problematic sexual behavior presented by one male resident, Clifford P. The Title XIX survey team was of the opinion that the Center had to develop a sexuality program to address this problematic sexual behavior before a full operating license could be recommended. 602/113. Significantly, the Title XIX survey team noted "the deficiencies during this survey do not individually or collectively jeopardize client health and safety or seriously impair the facility's ability to render care." 62/144. The Provisional I license issued by the Pennsylvania Department of Public Welfare was not equivalent to the decertification process that exists under the Health Care Finance Administration. 62/147.

  Subsequently, the Provisional I license was replaced by a full operating license issued by the Pennsylvania Department of Public Welfare. The record contains no evidence of the issuance of any other provisional license. A full operating license under the Title XIX Medicaid Program is not an indication that a facility does not have any deficiencies. In fact, it is rare for a Title XIX survey team not to find some deficiencies in a facility which it has inspected. 64/44.

  B. Adequate Basic Care

  The United States contends that defendants have failed to provide the residents at the Center with the constitutionally required level of basic care. In particular, the United States alleges that insects have been found on food and on the residents, *fn12" the clothing of some residents has been soiled, residents have not been bathed properly, and there is a disregard for the privacy of residents. 87/8-9; 92/22-3. *fn13"

  As noted above, adequate food, shelter and clothing are "essentials of . . . care that the State must provide" to the residents of the Center. Youngberg, 457 U.S. at 324. The United States' allegations with respect to inadequate food (nutritional management) are addressed below in the discussion concerning adequate medical care, and I limit this portion of the opinion to the right to receive adequate shelter and clothing.

  In Society for Good Will, 737 F.2d at 1244, the Court of Appeals for the Second Circuit affirmed a district court's finding that "the quality of the shelter at [a state operated school for the mentally retarded] did not meet constitutional minimums." The Second Circuit noted the conditions of filth, insect and rodent infestation, unsanitary conditions resulting in the transmission of various diseases, and inordinately hot rooms and/or temperature control problems, and held that the record contained sufficient evidence to support the district court's conclusion that the shelter was constitutionally infirm. Id. The court specifically noted that the problems at the facility were pervasive, and were not simply isolated lapses in care -- "there was sufficient evidence for the district court to conclude that problems in the living conditions at [the institution] were either not being corrected or were arising on a recurring basis and that these problems caused the living environment to fall below constitutional standards." Id.

  In this case, the United States has persistently focused on two incidents involving insects as a basis for its assertion that the Center, as an institution, has failed to provide adequate shelter. The first instance involved the discovery of ants on two residents who had been placed on floor mats in the day room to sleep overnight because their rooms were being painted. The staff discovered the ants on their bodies on two separate mornings (i.e., the first resident was discovered with ants on her body on one morning, and the other resident was discovered with ants the following morning). Exh. 87. Thereafter, the staff took steps to exterminate the insects, and the residents' beds were moved out to the day room for overnight sleeping purposes while the rooms were being painted. Id. at 00000918.

  The other, more serious incident involved the discovery of an infestation of maggots in a resident's ear. Exh. 1022. Just how this infestation occurred could not be definitively established, but the Center's investigation concluded that this resident's ear most likely became infested as a result of outdoor activity in the grass, which was confirmed by the emergency room physician. 63/77. No other similar incidents were reported.

  As the Third Circuit in Shaw explained (in addressing a claim for alleged inadequate safety), isolated examples of problems, while regrettable, do not establish constitutional violations.

  
Although the failure to prevent a "pattern of attacks, injuries, or violent behavior" is actionable, "the right to protection is not activated by an isolated mishap, or called into question by each bruise that a patient may suffer." We do not mean to minimize the seriousness of Shaw's February 3 injury. We conclude, however, that the failure of the responsible staff member to keep watch over Shaw at the instant he happened to leave or be taken from his ward on February 3 amounts to just such an "isolated mishap." It cannot amount to more than simple negligence.

  920 F.2d at 1143 (citation omitted). See also Society for Good Will, 737 F.2d at 1245 ("While there have been occasions when patients' specific medical problems have been treated improperly, the district court's decision should not have been based on isolated instances of improper treatment, but on a finding that medical care was inadequate on a class-wide basis. Isolated instances of inadequate care, or even of malpractice, do not demonstrate a constitutional violation.").

  The United States also asserts that the clothing provided to the residents of the Center violates constitutional minimum standards because, on occasions, residents have been found with soiled clothing and soiled diapers. In support of its position, the United States cites expert testimony regarding a patient who he discovered with vomitus on his face and clothing. Dr. Stark, a psychologist who specializes in the care of persons with developmental disabilities, testified that he notified someone about the resident's condition, and that it "took a while" for someone to clean it up. Dr. Stark also stated that he saw residents with food stains on their clothes, and that some residents had a body odor and others an odor of urine. 43/220.

  Obviously, the presence of vomitus on one's person is unpleasant for that individual and repugnant to others. Again, however, the record indicates that this was an isolated occurrence, and, without more, I cannot deem this incident indicative of a failure by the Center to provide adequate clothing for the residents or to promptly respond to situations requiring care and attention. In particular, I note that the record contains credible testimony that the staff at the Center felt inhibited and hesitated to intervene on behalf of the residents in the presence of the United States' experts. 62/198.

  Moreover, even if I consider this incident together with the testimony that residents had food stains on their clothes, I cannot find defendants constitutionally deficient in providing adequate clothing to the residents. There are stains which by their nature alter the appearance of clothing, but which do not automatically make it unfit to wear. The United States' own witness, Mr. Tackett, acknowledged that the Center routinely changed the clothing of those residents in the Keystone unit who "needed it." 38/17. In addition, the United States' photographic exhibits reveal that each resident had clean, presentable, and properly-fitting clothing. See, e.g., Exhs. 670-71, 678-82, 705, 709-10, 713, 734-40. This is a trivial matter that does not warrant the constitutional analysis which the Government's contention requires of me.

  With respect to the United States' contention that the residents smell like urine, the United States cites the conclusory testimony of Dr. Stark (which provided no evidence with respect to the frequency of this alleged problem), 43/220, and a November 6, 1992, Medical Assistance Survey. Exh. 60. The November 1992 Survey states that a Medicaid standard had not been met because 12 residents were confined to their wheelchairs for 5 hours without being changed, and when changed, the Attends (a brand name of an adult diaper) worn by those residents were heavily saturated with urine. Exh. 60, 00503763. There is no reference to urine saturated residents or urine saturated Attends in any other of the Medical Assistance Surveys from 1983 to 1992 (see Exhs. 48-59) nor is there any other testimony in this regard. This single discovery by the survey team hardly proves a prevalent condition at the Center.

  The United States contends the residents are not bathed properly, citing the testimony of Mr. Tackett, a former Center employee, and an anonymous complaint at a union meeting about residents being "hosed up one side and down the other." Exh. 995. As I indicated during the trial of this matter, the anonymous complaint at a union meeting about bathing the residents is not competent evidence. It is hearsay which is being offered to prove the truth of the matter asserted, Fed. R. Evid. 801(c). The declarant has not been subject to cross-examination, nor is his/her identity even known. Moreover, the reliability of the evidence is suspect in light of the fact that the employee would not repeat the allegation at the request of the Center so that the Center might seek to validate the complaint and, if necessary, address it. 64/46-47. There is no evidence to suggest that the employee wished to remain anoymous because he feared retaliation.

  Mr. Tackett testified that the bathing process in the Keystone living unit was like an assembly line, "it could have been longer . . . it was done very quickly . . . ." 38/27-28. The substance of his testimony does not establish an inadequate bathing process. Although the procedure is done quickly, it is routine for the staff. Mr. Tackett's testimony does not assert that the residents were still dirty after being bathed, that they smelled, or that they were not bathed frequently enough. Rather, his testimony suggests no more than that they were bathed too quickly. This hardly demonstrates a failure to exercise professional judgment, or that the Center's bathing practices did not meet minimum professional standards.

  Finally, the United States submits that the Center fails to provide adequate care for the residents because it does not provide the residents with privacy. Although the Supreme Court in Youngberg did not explicitly acknowledge a "right to privacy" for institutionalized mentally retarded individuals, it is only logical to infer from the Court's recognition of the right to adequate clothing that there exists a correlative right to avoid being viewed unclothed. 457 U.S. at 324; see also Association for Retarded Citizens of North Dakota, 561 F. Supp. at 491.

  The United States points to the fact that privacy issues have been addressed in every annual state survey, and yet the Center has failed to respond effectively. The United States further notes that even Mr. Bellomo observed an incident involving seven residents clothed in only Attends, milling about a hallway while locked out of their rooms. Exh. 109. These problems with privacy have by and large occurred in the Sunset, Horizon or Villa living units, where the residents are more mobile.

  The November/December 1983 Medical Assistance Survey for the Center noted a lack of privacy for residents during toileting and bathing. Exh. 48, #00800265. In the October 1989 Medical Assistance Survey, a deficiency was noted because residents in Keystone were dressed, changed and bathed without privacy, and two residents in Horizon II used the bathroom stalls without closing the privacy curtain. Exh. 56, #00800324. In October of 1990, the Medical Assistance Survey noted a deficiency because a resident was observed while in a Villa unit TV room without a blouse on, and another resident was observed walking naked from the bathroom to the TV room. Exh. 57, #00004041.

  For each of these deficiencies, the Center's Plan of Correction provided for inservicing or teaching the staff regarding the need to afford greater privacy to residents. The privacy issues were not ignored, and I find that the Plan of Correction implemented at the Center fully comports with accepted professional standards. The record is clear that the Center responded to the breaches of privacy by instituting more training. The professional judgment exercised, therefore, is not a substantial departure from accepted professional standards.

  The fact that the training did not bring about a complete cessation of incidents like those described above does not compel the finding of a violation of the residents' right to privacy. Improvements were made, and the United States failed to offer any testimony, expert or otherwise, concerning how the Center's action in responding to the privacy breaches constituted a substantial deviation from acceptable professional standards. *fn14"

  To summarize, I find that the United States has failed to prove that the cited lapses in basic care at the Center -- either individually or in total -- have risen to the level of a constitutional violation, much less that the Commonwealth's official "policy or custom" played any role in the alleged deprivation of care. See Graham, 473 U.S. at 166 (in official-capacity suit, the governmental entity's "policy or custom" must have played a part in the violation of federal law). In response to each of the problems with care discussed above (which occurred in different areas over the course of several years at this large institution), the Center responded with corrective measures pursuant to the exercise of professional judgment. While the lapses by the Center may have been negligent -- and are at least regrettable -- I conclude that the basic care provided at the Center does not constitute a substantial deviation from professional standards and is not constitutionally infirm.

  C. Adequate Medical Care

  The right of an institutionalized mentally retarded person to receive adequate medical care -- acknowledged without discussion by the Supreme Court in Youngberg as a substantive liberty interest protected by the Fourteenth Amendment (457 U.S. at 315, 324) -- has been discussed by a number of courts. See, e.g., Society for Good Will, 737 F.2d at 1245 (district court's finding of inadequate medical care at facility was clearly erroneous; "Isolated instances of inadequate care, or even of malpractice, do not demonstrate a constitutional violation."); Lelsz v. Kavanagh, 673 F. Supp. 828, 834 (N.D. Tex. 1987) (constitutionally required medical care "includes not only life-preserving or emergency care, but also regular and preventive treatment for ordinary or chronic ailments."). The United States challenges the following areas of medical care at the Center: neurologic care; psychiatric care; treatment of gastroesophaegeal reflux and aspiration; nutritional management; physical therapy and physical management; general medical care; and general nursing care.

  1. NEUROLOGIC CARE

  In one sense, any seizure activity is an emergency. True status epilepticus, however, presents special concerns not only because of the seizure and its associated loss of consciousness, but also because of the potential to compromise an individual's respiratory status and the ability to oxygenate the tissues of the brain and other vital organs. 49/235; 36/50-51; 81/17. The longer the seizure activity persists, the more difficult it is to control with medication. 81/141. On the other hand, most seizures spontaneously cease within a few minutes. 36/201. A seizure that lasts one, two or three minutes and then ends with the resident responding, while clinically significant, is not an emergency situation. 81/34. To further complicate the assessment of status epilepticus and its treatment, neither the onset nor the duration of a seizure can be predicted. Exh. 1107, p. 854; 81/33, 119-20.

  Against this backdrop, I must determine whether the Center's care of its residents with status epilepticus constitutes a substantial deviation from acceptable professional standards. Dr. Alvarez, an expert neurologist for the United States, testified that the Center's treatment of status epilepticus -- which consists of observation and monitoring, the administration of oral or intramuscular anticonvulsants pursuant to a physician's order, and ambulance transportation to a hospital -- is not acceptable treatment. Dr. Alvarez testified that the most acceptable treatment for status epilepticus is the use of intravenous Valium, and that the intramuscular administration of anticonvulsants is a substantial deviation from acceptable professional standards. 36/55; Exh. 1107. The Commonwealth responded with evidence from Dr. Chamovitz, the Center's consulting neurologist, that the Center is not licensed to provide intravenous therapy to its patients (64/171-2; Exh. 633 (1-19-93), pp. 25-26)), but that the treatment provided for residents in status epilepticus comported with acceptable medical treatment.

  On rebuttal, Dr. Coulter, also a neurologist, emphasized the deficiency in the Center's treatment of status by reference to a protocol recommended by the Epilepsy Foundation of America (EFA) stating that "intramuscular therapy has no place treating status epilepticus or seizures in general." Exh. 1107/856. Dr. Coulter explained that the treatment protocol "pulled together for the general medical community what neurologists have known for ten or fifteen years." 81/24. Dr. Coulter noted that although the EFA treatment protocol recommendation was not new, it had been recently codified and published in the August 18, 1993 Journal of the American Medical Association. 81/64. He noted that neurologists are the medical professionals most qualified to treat status epilepticus, and that the thrust of the EFA treatment protocol recommendation was for other medical practitioners who encountered patients in status. 81/18. The protocol recommendation was published in the JAMA for that reason -- "the intent was to put it in a place where all general physicians would see it . . ." 81/19.

  The primary care physicians at the Center who ordered the intramuscular administration of anticonvulsants are not neurologists, but general practitioners. This is the audience the EFA treatment protocol was hoping to reach. As Dr. Coulter's testimony and the EFA treatment protocol itself establish, the "treatment of status epilepticus varied, and archaic therapies with sedatives, insufficient doses, and intramuscular administration [were] still practiced in some areas." 81/18-25; Exh. 1107/854. As such, there was a tacit acknowledgment within the medical community that the protocol for the treatment of status epilepticus among medical practitioners, other than neurologists, before the publication of the EFA treatment protocol in August of 1993, was anything but clear. 81/18, 25; see also 48/118-21 (Dr. Kastner's testimony regarding confusion in medical literature about treatment of status epilepticus)." *fn16"

  As a result, the direction by the Center's primary care physicians to administer anticonvulsants intramuscularly to treat status epilepticus was made pursuant to an exercise of professional judgment that had some basis in accepted professional practice among general practitioners at that time. The Center's administration of anticonvulsants intramuscularly for the treatment of status epilepticus during the period for which testimony was offered did not violate constitutional minimum standards. *fn17"

  The Center's treatment of status epilepticus also includes observation and monitoring of the resident, and ambulance transportation to a hospital. Both Dr. Chamovitz and Dr. Coulter testified that this is the accepted modality of treatment for their patients who reside at home. 49/231-34; 81/33. Inasmuch as the Center is the "home" for the residents, both of these interventions are acceptable professional practices. Moreover, the observation and monitoring of a resident would appear to be a necessary component for purposes of determining whether that resident actually is in a state approaching status epilepticus, or has reached the point where additional services should be provided. 81/59. Once a determination has been made that the resident requires treatment that cannot be rendered at the Center, ambulance transportation is appropriate. 49/231-34. The Center's contract with an ambulance association provides access to practitioners licensed to administer advanced life support services in conjunction with a physician from one of the local hospitals. 64/98-99. *fn18"

  Dr. Alvarez also challenged as deficient the regular neurologic care for the residents pertaining to the administration of anticonvulsants. Dr. Alvarez alleged that there were too many residents on multiple anticonvulsants, despite the fact that they had few seizures or were experiencing side effects. 36/114. It is undisputed that the acceptable standard for the treatment of seizures is the administration of the smallest dosage of anticonvulsant medications necessary to control seizures. 36/112; 48/126. However, if one anticonvulsant does not control an individual's seizures, another anticonvulsant may be added to the regime. If two anticonvulsants do not control the seizures, a third anticonvulsant may be added. Occasionally, if an individual's seizures still are not controlled, a fourth anticonvulsant may be added. 36/112-13; 49/241. Dr. Alvarez admitted that he himself had some patients on four anticonvulsants to control their seizures. 36/149-50.

  In response to this testimony by Dr. Alvarez, however, Dr. Chamovitz explained that the decisions of the primary care physicians not to reduce the number of and dosages of anticonvulsants were acceptable professional practices. Dr. Chamovitz described the manner in which he discussed his recommendation with the primary care physicians, who ultimately implemented or rejected them, and that the rejection of his recommendation was based on the fact that the primary care physician was more familiar with the resident and aware of previous unsuccessful efforts to reduce the amount of medication needed to control a resident's seizure disorder. 49/241, 244-47. Dr. Chamovitz also testified regarding his confidence in the judgment of the primary care physicians, who although they were not neurologists, were very well versed in the treatment of seizures because 50% of the Center's population is epileptic. 49/245.

  Dr. Alvarez opined that even though polypharmacy with four drugs may be acceptable in some circumstances, it should only be instituted for a short period of time and for no more than two months. 36/112-13. The United States contends that the Center's use of four anticonvulsants has gone on for years, as opposed to acceptable short periods of time. In response, Dr. Chamovitz testified that although treatment with four anticonvulsants is not desirable, it is acceptable practice. 49/241.

  Significantly, the Center has a total of 312 residents with a diagnosis of epilepsy, Exh. HH, Table 6, of whom 240 are prescribed anticonvulsant medication. Of the 312 epileptic residents, 17.63% are treated with polypharmacy: 13.46% are treated with three anticonvulsants and 4.17% treated with four anticonvulsants. Exh. HH, Table 6. *fn19" In addition, the Center has improved its treatment of seizures by reducing the number of anticonvulsants prescribed to control seizure activity. Dr. Kastner, a former Department of Justice consultant and a pediatrician who works with the developmentally disabled, testified that the Center's efforts to reduce polypharmacy started in 1990, shortly after the publication by researchers in the field of a protocol calling for such action. 48/110. The result of this effort was illustrated by Dr. Kastner in a table documenting the treatment from ...


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