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HALDERMAN v. PENNHURST STATE SCH. & HOSP.

February 9, 1998

TERRI LEE HALDERMAN, et al.,
v.
PENNHURST STATE SCHOOL & HOSPITAL, et al.



The opinion of the court was delivered by: BRODERICK

 RAYMOND J. BRODERICK, J.

 FEBRUARY 9, 1998

 In the Court's Memorandum of April 5, 1985 approving the settlement of this class action and the entry of a consent decree, it was optimistically declared that "The concluding chapter of this litigation is at hand." It was therefore with great regret that on March 28, 1994 the Court was required to find, after a hearing, that defendants Commonwealth of Pennsylvania ("Commonwealth") and the County of Philadelphia ("Philadelphia") were blatantly failing to provide Pennhurst class members from Philadelphia with minimally adequate habilitation and protection from harm in violation of the 1985 Court Decree. Rather than imposing fines, however, the Court ordered the Commonwealth and Philadelphia to use their resources to make certain that each class member received the habilitation and protection mandated by the Decree. The Court also set forth contingent coercive fines of at least $ 5,000 per day in the event that the Commonwealth and Philadelphia failed to remedy their substantial non-compliance by the deadlines imposed by the Court.

 In the spring of 1994, the Court appointed a Special Master to oversee and report to the Court concerning the actions to be taken by the Commonwealth and Philadelphia to remedy their contempt. The Special Master has performed in an outstanding manner by achieving the cooperation of both the Commonwealth and Philadelphia to bring about the changes necessary to provide Philadelphia class members with the habilitation mandated by the Court Decree. The Court has not had to impose any fines or penalties in order to achieve compliance. Indeed, over the past four years the Commonwealth and Philadelphia have made significant strides towards fulfilling their obligations under the 1985 Court Decree and the 1994 Contempt Order. A "Quality Assurance Plan" to assure that class members receive adequate habilitation in the community is now in place. Plans for health care, employment, and investigation of abuse and other incidents are also in place. There is no doubt that Philadelphia class members are better off as a result of these efforts.

 After reviewing the Commonwealth's and Philadelphia's record of compliance since 1994 and the Special Master's recent reports to the Court, the Court has determined that the Office of the Special Master should be phased out. At the behest of the Court, the Special Master has submitted a proposed schedule and methodology for terminating his supervision. The Commonwealth and Philadelphia have responded that they are fully committed to working with the Special Master to achieve substantial compliance with the Court's Orders by June 30, 1998. The defendants' recent commitment to their obligations to the Pennhurst class is markedly different from 1994, when the Court found them in contempt. The Court welcomes a speedy conclusion to the participation of the Court and the Special Master in monitoring the Commonwealth's and Philadelphia's efforts to achieve substantial compliance with the 1985 Court Decree.

 Although the Court has previously stated that it intended to conclude the Special Master's supervision on December 31, 1997, the Court agrees that a few more months are necessary for the Special Master to conduct a comprehensive individual review of approximately 110 randomly selected class members in order to determine whether the Commonwealth's and Philadelphia's efforts to achieve substantial compliance are actually providing each Philadelphia class member with the habilitation, training, and care mandated by the 1985 Court Decree. By Order dated today, the Court will direct the Special Master to conduct this review and to submit a report of his findings to the Court by June 30, 1998. The Court is hopeful and confident that the Special Master's final review in the upcoming weeks will reveal few, if any, deficiencies. Accordingly, it is the plan of this Court that on about June 30, 1998, the Court will rule that the Commonwealth and Philadelphia are in substantial compliance with the 1985 Court Decree and are purged of all contempt determined in this Court's Order of March 28, 1994.

 I. BACKGROUND

 This action began in 1974 with the filing of a class action seeking to vindicate the constitutional and federal and state statutory rights of persons with mental retardation at Pennhurst State School and Hospital ("Pennhurst") in Spring City, Pennsylvania, approximately thirty miles northwest of Philadelphia. The members of the Pennhurst class are persons with mental retardation who resided at Pennhurst on or after May 30, 1974. As this Court has stated numerous times over the years, mental retardation is an impairment in learning capacity and adaptive behavior which is wholly distinct from mental illness. Mental retardation is not a violation of the law. Being mentally retarded does not make juveniles or adults dangerous to society. Mental retardation is not a disease. However, with proper habilitation in the community, the level of functioning of every person with mental retardation can be improved. "Habilitation" is a term of art used to refer to the education, training, and care which will help those with mental retardation achieve their maximum development.

 The Court has reviewed the history of this litigation in several opinions over the years. See, e.g., 154 F.R.D. 594 (E.D. Pa. 1994); 784 F. Supp. 215 (E.D. Pa. 1992); 610 F. Supp. 1221 (E.D. Pa. 1985); 555 F. Supp. 1144 (E.D. Pa. 1983); 545 F. Supp. 410 (E.D. Pa. 1982); 446 F. Supp. 1295 (E.D. Pa. 1977). As revealed by these opinions and by the official record, the history of this case can be broken down into five separate periods: (1) the trial, from 1974 to 1978; (2) the appeals and implementation of relief, from 1978 to 1984; (3) the class action settlement and consent decree, from 1984 to 1985; (4) the contempt proceedings, from 1987 to 1994; and (5) compliance with the contempt order, from 1994 to the present. Each period will be reviewed below.

 A. The Trial (1974-1978)

 On May 30, 1974, the plaintiffs brought a class action on behalf of residents of Pennhurst, a state institution founded in 1908 and dedicated by the Pennsylvania Legislature on June 12, 1913 to the "segregation ... of epileptic, idiotic, imbecile or feeble-minded persons." In 1975, the United States of America intervened as a plaintiff. Also in 1975, the Pennsylvania Association for Retarded Citizens (formerly "PARC" but now "The ARC-PA") and additional class representatives intervened as plaintiffs. Named as defendants were Pennhurst; the superintendent and various employees of Pennhurst; the Pennsylvania Department of Public Welfare; and various officials from the state and counties of Bucks, Chester, Delaware, Montgomery, and Philadelphia responsible for supervising the Commonwealth's and the counties' mental retardation programs. On November 26, 1976, the Court certified the case as a class action, the definition of which was later amended to include all persons with mental retardation who resided at Pennhurst on or after May 30, 1974.

 Plaintiffs claimed that their institutionalization at Pennhurst violated their constitutional rights under the First, Eighth, Ninth and Fourteenth Amendments to the United States Constitution, as well as their rights under the following federal and state statutes: the Rehabilitation Act of 1973, § 504 (current version at 29 U.S.C. § 794 (1985)); the Developmentally Disabled Assistance and Bill of Rights Act of 1975, § 111 (current version at 42 U.S.C. § 6009 (1995)); and the Pennsylvania Mental Health and Mental Retardation Act of 1966, § 201, 50 P.S. § 4201 (Purdon's 1969). Plaintiffs sought damages and broad equitable relief, including individualized habilitation and the relocation of all class members from Pennhurst into their communities.

 At the time of the lawsuit there were approximately 1,230 persons with mental retardation at Pennhurst, reduced from a high of nearly 4,000 in the early 1960s. The average age of Pennhurst residents was thirty-six, and their average stay at the institution was twenty-one years. Staff numbered approximately 1,500. Despite improvements in the 1960s and early 1970s, Pennhurst was typical of large, isolated state residential institutions for persons with mental retardation. Forty-three percent of Pennhurst residents had no family contact within the past three years. Residents slept in large, overcrowded wards, spent their days in large day rooms, and ate in large group settings. There were few programs designed to increase their skills.

 On December 23, 1997, after a thirty-two day trial, this Court issued findings of fact and conclusions of law which found that the defendants had violated the constitutional and statutory rights of Pennhurst class members by failing to provide them with minimally adequate habilitation in the least restrictive environment. Halderman v. Pennhurst State School & Hospital, 446 F. Supp. 1295, 1313-1324 (E.D. Pa. 1977) (subsequent history omitted). Testimony had revealed that Pennhurst provided such a dangerous, miserable environment for its residents that many of them actually suffered physical deterioration and intellectual regression during their stay at the institution. Id. at 1308 & 1318. Indeed, none of the defendants disputed that Pennhurst as an institution was inappropriate and inadequate for the habilitation of persons with mental retardation, and that its residents should be educated, trained, and cared for in their communities. The defendants insisted, however, that the Commonwealth be permitted to close Pennhurst and place the residents in the community at its own pace. Id. at 1313.

 The Court issued five holdings, in effect giving the Court of Appeals several reasons for upholding its decision. First, the Court held that Pennhurst residents had a constitutional right to be provided with minimally adequate habilitation in the least restrictive environment consistent with their habilitative needs, and that the Commonwealth and five county defendants had violated this right. Id. at 1314-20. Second, the Court held that the defendants had violated class members' right to be free from harm, because they had been physically abused, injured, and inadequately supervised. Id. at 1320-21. Third, the Court held that persons with mental retardation have a constitutional right under the equal protection clause of the Fourteenth Amendment to non-discriminatory habilitation, and that Pennhurst residents were being segregated in an institution that was not only separate, but also not equal. Id. at 1321-22. Fourth, the Court held that the defendants had violated class members' state statutory right to minimally adequate habilitation under the Pennsylvania Mental Health and Mental Retardation Act of 1966, § 201, 50 P.S. § 4201 (Purdon's 1969). Id. at 1322-23. Finally, the Court held that the defendants had violated class members' federal statutory right to non-discriminatory habilitation under Section 504 of the Rehabilitation Act of 1973 (current version at 29 U.S.C. § 794 (1985)). Id. at 1323-24.

 In fashioning a remedy, the Court determined that there was no basis for awarding money damages because testimony had shown that, for the most part, the people responsible for running Pennhurst were dedicated employees faced with overwhelming staff shortages and institutional inadequacies. On March 17, 1978, the Court issued an injunctive relief order requiring the defendants to provide, inter alia, each class member with minimally adequate habilitation according to an individualized habilitation program. Id. at 1326-29. The Court also appointed a Special Master to monitor compliance and to oversee the orderly transition of class members from Pennhurst into suitable community living arrangements.

 B. The Appeals and Implementation of Relief (1978-1984)

 A lengthy appeal process followed, a summary of which is provided in this Court's Memorandum of April 5, 1985, Halderman v. Pennhurst State School & Hospital, 610 F. Supp. 1221, 1225-26 (E.D. Pa. 1985). Briefly, the defendants appealed to the United States Court of Appeals for the Third Circuit, which substantially affirmed this Court's relief order on the basis of the Developmentally Disabled Assistance and Bill of Rights Act, § 111 (current version at 42 U.S.C. § 6009 (1995)). Halderman v. Pennhurst State School & Hospital, 612 F.2d 84 (3d Cir. 1979) (en banc). On the first appeal to the United States Supreme Court, the Supreme Court reversed and remanded for consideration of the statutory and constitutional issues decided by the trial court. Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981). On remand, the Court of Appeals again affirmed, this time on the basis of the Pennsylvania Mental Health and Mental Retardation Act of 1966, 50 P.S. §§ 4101-4704 (Purdon's 1969). Halderman v. Pennhurst State School & Hospital, 673 F.2d 647 (3d Cir. 1982) (en banc). After hearing argument on two separate occasions, the Supreme Court reversed, ruling five to four that the Eleventh Amendment barred a federal court from ordering prospective injunctive relief against state officials on the basis of violations of state law, even where the state law claims had been properly brought into the federal court under pendent jurisdiction. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984). The Supreme Court remanded the case to the Court of Appeals a second time for consideration of the federal statutory and constitutional issues.

 It is with fond memory that this Court recalls Justice Stevens' dissent, with whom Justices Brennan, Marshall and Blackmun joined. Justice Stevens wrote:

 Pennhurst, 465 U.S. at 126, 104 S. Ct. at 922.

 Between this Court's initial decision in 1977 and the Supreme Court's second opinion in 1984, this Court issued twenty-three published opinions and hundreds of orders implementing its original injunctive relief order. The Court denied several motions by the defendants to stay its judgment pending the appeals. See, e.g., 526 F. Supp. 409 (E.D. Pa. 1981); 451 F. Supp. 233 (E.D. Pa. 1978). On June 30, 1978, the Court appointed the first Special Master in this case, Robert H. Audette, who served until December 8, 1978 when he was replaced by Carla S. Morgan. Ms. Morgan served until the Office of Special Master was closed on December 31, 1982. Halderman v. Pennhurst State School & Hospital, 545 F. Supp. 410 (E.D. Pa. 1982). Pursuant to the Third Circuit's mandate, this Court also appointed an impartial Hearing Master, Michael S. Lottman, to make individual placement determinations for class members or their families who contested their removal from Pennhurst. Mr. Lottman served from April 24, 1980 until the Office of the Hearing Master was closed on April 30, 1985.

 The Commonwealth opposed the operation and funding of the masters' offices. Initially, the Commonwealth paid the costs of the masters' officers for fiscal years 1978-79, 1979-80, and 1980-81. However, the Commonwealth deliberately refused to provide full funding for fiscal year 1981-82. On August 25, 1981, after appropriate hearings, the Court found the Commonwealth in contempt for failing to make the required monthly payments for the masters' offices. Halderman v. Pennhurst State School & Hospital, 533 F. Supp. 631 (E.D. Pa. 1981). The Court reiterated its finding, previously affirmed by the Court of Appeals, that the masters' offices were needed to monitor compliance with the Court's Orders and to oversee the orderly transfer of class members from Pennhurst into community living arrangements. The Court levied fines of $ 10,000 per day for each day the Commonwealth refused to comply with the Court's Orders funding the masters' offices. Throughout 1981, the Commonwealth chose to remain in contempt but paid the fine of $ 10,000 each day. Finally, the Court purged the Commonwealth of contempt in view of the fact that the state had paid fines totaling more than $ 1.2 million, an amount in excess of what was needed to fund the masters' offices. Halderman v. Pennhurst State School & Hospital, 533 F. Supp. 641 (E.D. Pa. 1982).

 The county defendants also struggled to comply with the Court's Orders. Placement of class members from Pennhurst into community living arrangements was occurring at a very slow pace. Halderman v. Pennhurst State School & Hospital, 555 F. Supp. 1144, 1145 (E.D. Pa. 1983). In the first two years after the Court's judgment, the population of Pennhurst declined by less than 200 residents. Id. at 1153. Thus, on March 2, 1981, almost three years after the Court had issued its first injunctive relief order, the Court was compelled to enter an order mandating the community placement of sixty-one Pennhurst residents by June 30, 1981 and another 350 residents by June 30, 1982. The Court arrived at these numbers from the defendants' own proposals. Nevertheless, some of the defendants still failed to comply with this most recent order. On September 11, 1981, after appropriate hearings, the Court found defendants Bucks County, Delaware County and Montgomery County in contempt for failing to make their initial placements by June 30, 1981. Halderman v. Pennhurst State School & Hospital, 526 F. Supp. 414 (E.D. Pa. 1981). The Court declined to impose fines, however, since the counties had achieved substantial compliance with the March 2nd Order after a flurry of activity immediately following the contempt hearing. Id. at 422.

 C. The Settlement and Court Decree (1984-1985)

 In 1984, while the case was pending before the Court of Appeals for the third time after the Supreme Court's remand, the parties entered into settlement negotiations. On July 12, 1984, with assistance from the Honorable Max Rosenn of the Third Circuit Court of Appeals, the parties executed a "Final Settlement Agreement." The Court of Appeals remanded the case to this Court for consideration of the class action settlement pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.

 This Court reviewed and approved the settlement and entered a consent decree on April 5, 1985. Halderman v. Pennhurst State School & Hospital, 610 F. Supp. 1221 (E.D. Pa. 1985) (the "Court Decree"). At that time, there were approximately 435 residents remaining at Pennhurst, compared to 1,154 residents when the Court issued its first injunctive relief order on March 17, 1978. Id. at 1226. Under the terms of the settlement, the Commonwealth agreed that it would close Pennhurst by July 1, 1986. In addition, the Court Decree requires the Commonwealth and county defendants to provide community living arrangements to class members, together with such services as are necessary to provide them with minimally adequate habilitation. The Court Decree also requires the defendants to develop and provide each class member with a written habilitation plan, formulated in accordance with professional standards; to provide each class member with an individualized habilitation program which is reviewed annually; and to ...


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