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FREDERICK L. v. DEPARTMENT OF PUBLIC WELFARE

September 5, 2002

FREDERICK L., ET AL., PLAINTIFFS,
V.
DEPARTMENT OF PUBLIC WELFARE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Schiller, District Judge.

MEMORANDUM AND ORDER

Four adult individuals institutionalized at Norristown State Hospital ("NSH") commenced this action against the Department of Public Welfare of the Commonwealth of Pennsylvania ("DPW"), and Feather O. Houstoun, the Commonwealth's Secretary of Public Welfare. Plaintiffs allege that their continued hospitalization at NSH is unnecessary and Defendants' failure to provide them with appropriate services in the community violates Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131, et seq., and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a). After denying Defendants' motion to dismiss in most respects, see Frederick L. v. Department of Public Welfare, 157 F. Supp.2d 509 (E.D.Pa. 2001), I certified this matter as a class action. Beginning May 20, 2002, and this matter was tried without a jury for three consecutive days. I enter the following Findings of Fact and Conclusions of Law as required by Rule 52(a) of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

I. BACKGROUND

A. Plaintiffs and the Class

There are four named plaintiffs in this case: Frederick L., Kevin C., Nina S., and Steven F. Each of the four individual plaintiffs is a current or former resident of NSH. (Stip. Nos. 1 4.)*fn1 The four named plaintiffs bring this suit on behalf of the following class certified pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure:

All persons institutionalized at Norristown State Hospital at any time after September 5, 2000 with the following exceptions: persons who, at the time of final adjudication, are: (1) confined in the Regional Forensic Unit and Juvenile Forensic Unit; (2) are involuntarily committed pursuant to 50 PA. CONS.STAT. ANN. § 7304(g)(2); (3) have criminal charges pending who have been found to be incompetent to stand trial; or (4) otherwise are subject to the jurisdiction of the criminal courts.*fn2

NSH residents, including the named plaintiffs and class members, have serious and persistent mental illnesses. Some NSH residents*fn3 also have brain injuries, mental retardation, and physical impairments such as seizure disorders. (Stip. No. 6.) It is beyond dispute that these disabilities substantially limit one or more major life activities. (Id.) At the time of trial, there were approximately three hundred class members. (Tr. at 1:62.)

B. Defendant DPW

An agency of the Commonwealth of Pennsylvania, DPW is responsible, inter alia, for a variety of programs aimed at providing publicly funded mental health care. More specifically, Pennsylvania's system of publicly funded mental health care rests on the statutory structure established under the Mental Health and Mental Retardation Act of 1966 ("MH/MR Act"), 50 PA. CONS.STAT. ANN § 4101, et seq. Broadly speaking, the MH/MR Act requires DPW "[t]o assure within the State the availability and equitable provision of adequate mental health . . . services for all persons who need them." 50 PA. CONS. STAT. ANN. § 4201(1). DPW receives federal financial assistance, including federal funding for mental health services in the community and at NSH. (Stip. No. 10.)

Within DPW, the Office of Mental Health and Substance Abuse Services ("OMHSAS") is responsible for the provision of mental health services. OMHSAS, in collaboration with other appropriate state and county offices, endeavors to ensure local access to an array of mental health and substance abuse treatment and services that are effectively managed, coordinated, and responsive to a changing healthcare environment. (Stip. No. 9.)*fn4

II. SERVICES AVAILABLE TO PENNSYLVANIANS WITH MENTAL ILLNESS

A. Institutional Services at NSH

In Pennsylvania, individuals with mental disabilities are provided services in many settings, ranging from independent living arrangements, where the individual may reside alone, to institutional psychiatric facilities such as NSH.*fn5 Situated on a 233-acre campus approximately two miles from downtown Norristown in Montgomery County, NSH is one of these psychiatric facilities, serving the five southeastern Pennsylvania counties: Bucks, Chester, Delaware, Montgomery, and Philadelphia. (Stip. Nos. 40, 43.) NSH patients have at least one serious and persistent mental illness. (Stip. No. 6.) Approximately fifty-two percent of NSH patients have schizophrenia, over thirty percent have schizo-affective disorder, and a relatively limited number have been diagnosed with other psychiatric conditions. (Tr. at 1:25; Pls.' Ex. 5.)*fn6

Each of the five counties served by NSH has entered into a Continuity of Care Letter of Agreement with NSH, outlining the respective responsibilities of the counties and NSH for pre-admission, admission, joint treatment and monitoring, and discharge planning. (Stip. No. 46.) In accordance with the letters of agreement, NSH's Community Clinical Assessment Team and the respective county program offices review all referrals for admission to NSH. (Stip. No. 47.) In determining whether to admit an individual to NSH, they consider treatment recommendations, community treatment alternatives, and anticipated discharge needs. (Id.) Following admission, multi-disciplinary professional assessments are compiled for each resident, taking into account the particular resident's reasons for hospitalization, risk factors, medical needs, pre-discharge treatment needs, and post-hospital service needs. (Stip. No. 51.) This composite assessment serves as the basis for the patient's Individualized Treatment Plan ("ITP") which is overseen by a Treatment Team headed by a psychiatrist. (Stip. Nos. 51-52.) In accordance with the ITPs, NSH residents receive some or all of the following services: psychiatric, medical, and dental care and treatment; nursing care and treatment; psychological services; therapeutic recreation programs; social work services; occupational therapy; physical therapy; education services for individuals under the age of twenty-two; vocational services; and nutritional services. (Stip. No. 53.) Patients at NSH may receive visits from family members and friends during scheduled visiting hours. (Stip. No. 55.) In addition, NSH residents may leave the hospital campus for a variety of reasons. Depending on their clinical and "privilege" status, certain residents may leave the campus for individual and group outings. (Stip. No. 56.) Approximately sixty percent of civil patients are allowed to leave the NSH campus with supervision. (Tr. at 1:58.)

The patient population in the civil section at NSH falls into two categories: those who have been hospitalized for less than two years, and those who have been hospitalized for more than two years. For those in the former category, approximately thirty-two percent of the total population, the average length of stay is 10 months; for those in the latter category, the remaining sixty-eight percent of the population, the average length of stay is 12.5 years. (Tr. at 1:44-45.) Among the NSH long-stay population there are a limited number of patients who have been hospitalized for decades. (Tr. at 3:87.)

B. Community-Based Mental Health Services

1. Overview of Community-Based Health Services in Pennsylvania

Over 200,000 Pennsylvanians with mental illness have received some type of community mental health services funded by the Commonwealth. (Stip. No. 62.) Moreover, there is significant demand for additional community-based services in southeastern Pennsylvania. (Tr. at 1:15455, 177-78, 206-07.) In this regard, DPW has recognized that "[e]valuations of persons in state hospitals show that a substantial percentage of the persons could be treated and served through communitybased services, if they were available." (Stip. No. 12.)

The parties agree that the availability of community mental health services is important for the successful provision of services to individuals with mental illness. (Stip. No. 65.) Under the MH/MR Act, Pennsylvania counties are responsible for developing an array of community mental health services. See 50 PA. CONS.STAT. ANN. § 4301(d). Thus, in addition to the services provided at NSH, community mental health services funded by the Commonwealth may be available to certain Pennsylvanians with mental illness. In the five southeastern Pennsylvania counties, residential mental health services funded by the Commonwealth include some or all of the following: supported and independent living programs; community residential rehabilitation programs ("CRRs"), which can vary in the amount of staff assistance provided; specialized group home-type settings that serve individuals with concurrent disorders or disabilities; and longterm structured residences ("LTSRs").*fn7 (Stip. No. 63.)

Aside from residential programs, in the five southeastern Pennsylvania counties, the Commonwealth also funds an array of non-residential mental health services, including: acute inpatient and extended acute inpatient; partial hospitalization; crisis assessment and intervention; psychosocial rehabilitation; vocational services; intensive case management; peer support; and family support. Not every type of program is available in every county. (Stip. No. 64.)

The rate at which Pennsylvania utilizes state mental hospital beds (Defs.' Ex. 2, at 6) compares favorably to Maryland's, which has been found to be consistent with ADA requirements. See Williams v. Wasserman, 164 F. Supp.2d 591, 636-37 (Md. 2001). Similarly, the rate of community placement in southeastern Pennsylvania is comparable to that in Western Massachusetts, which is regarded as a model system for placing people with mental illness in community settings. (Defs.' Ex. 12, at 8.)

2. CHIPP/SIPP

Along with other mental health programs, DPW funds the Community Hospital Integration Projects Program ("CHIPP"). CHIPP "was designed to promote the discharge of persons with long-term histories of hospitalization or complex service needs who had not previously succeeded in the community." (Stip. No. 139.) The Southeast Integration Projects Program ("SIPP"), is similar to CHIPP and "has an additional focus of addressing the issues specific to the five southeastern counties." (Defs.' Ex. 1, at 18.) Through the CHIPP/SIPP mechanism, DPW allocates funding to a particular county or counties for the specific purpose of developing the resources necessary to discharge residents of those counties from state psychiatric facilities. (Stip. No. 81.) For each community CHIPP/SIPP "slot," a state hospital bed must be closed. (Id.)

Amounts allocated to the counties under the CHIPP/SIPP program are negotiated by OMHSAS and the counties, after the counties submit proposals. The amount of savings that will be realized as hospital beds are closed is a major factor in these negotiations. In order to realize sufficient savings, it may be necessary to close wards and decrease staffing. (Tr. at 2:183; 3:48.)

The parties agree that CHIPP/SIPP has facilitated and accelerated the process of discharging people from state institutions, downsizing state institutions, and developing community services. (Stip. No. 82.) DPW regards CHIPP/SIPP as "a critical component of [its] state hospital downsizing initiative and its expansion supports [DPW's] commitment to planned institutional downsizing." (Stip. No. 83.) Through the 2001-02 Fiscal ...


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