The opinion of the court was delivered by: Caldwell, District Judge
Plaintiff, Pennsylvania Protection and Advocacy, Inc., (PP&A), the
entity charged with protecting the rights of institutionalized
Pennsylvanians, filed this lawsuit on behalf of residents of South
Mountain Restoration Center (SMRC), a state-run nursing facility. PP&A
alleges violations of Title XIX of the Social Security Act (the "Medicaid
Act"), 42 U.S.C. § 1396a to 1396v; the Rehabilitation Act (RA),
29 U.S.C. § 794; and The II of the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12131-12134. The Pennsylvania Department of Public
Welfare (DPW) is a defendant, along with certain individuals sued in
their official capacities. The individual defendants are: Mark S.
Schweiker, the Governor of the Commonwealth of Pennsylvania; Feather O.
Houstoun, the Secretary of DPW; Gerald Radke, the Deputy Secretary for
Mental Health and Substance Abuse Services; and S. Reeves Power, the
Superintendent at SMRC. The
complaint seeks only declaratory and injunctive relief.
Plaintiff bases its ADA and RA claims on Defendants' alleged failure to
comply with the integration mandates of those acts by not providing
community-based living programs for SMRC residents and instead limiting
them to the institutional setting of SMRC. As defenses to these claims in
part, Defendants contend that the relief requested would create a
fundamental alteration in the commonwealth's services for those with
mental-health needs by shifting spending to SMRC residents and that SMRC
is the appropriate setting for those residing there, given their physical
and mental needs.
Plaintiff bases its Medicaid Act claims on alleged violations of the
act's requirements: (1) that Defendants provide activities serving the
residents' physical and mental well-being, (2) that Defendants review
annually prescribed antipsychotic medications, (3) that Defendants
provide the services the residents need to attain their highest mental and
psychosocial well-being, (4) that Defendants provide specialized
rehabilitative services for residents, and (5) that Defendants provide
specialized services for residents with mental retardation.
We are considering the parties' cross-motions for summary judgment. We
will evaluate the motions under the well established standard. See
Showalter v. University of Pittsburgh Medical Center, 190 F.3d 231, 234
(3d Cir. 1999).
In connection with their motions, the parties have submitted detailed
and well-organized statements of undisputed material facts (designated
below either as "PSUF" or "DSUF"), and the following background will
sometimes quote language without attribution from the uncontested
statements of either side.
A. Background Primarily Relating to the ADA and RA Claims Based on the
The Commonwealth of Pennsylvania has the following policies. It
provides services for individuals with severe and persistent mental
illness in the most integrated setting appropriate to their needs,
meaning that individuals are (or should be) serviced in a community
setting rather than in an institutional one. (PSUF 22; DSUF 6). It
provides services for persons with mental retardation in the community, if
appropriate. (Plaintiff's exhibit 28 at p. 5; PSUF 24; DSUF 14). It
provides community alternatives to nursing-facility care for
Pennsylvanians who are elderly and/or medically fragile. (PSUF 25).
Many persons with serious mental disabilities who are also elderly
and/or have medical needs can live in their communities with appropriate
residential and nonresidential services and support. (PSUF 30). Some
individuals who meet the eligibility criteria for nursing-facility
services may, with appropriate residential and nonresidential services
and support, be able to live in other, more integrated settings. (PSUF
Plaintiff, PP&A, is a nonprofit Pennsylvania corporation. Pennsylvania
has designated PP&A as the advocate and protector of the rights of
individuals with disabilities, including those who are
DPW is the state agency responsible for providing mental-health and
mental-retardation services to Pennsylvania residents who have mental
disabilities. (DSUF 1). It also administers Pennsylvania's Medical
Assistance program. (Id.) DPW is comprised of various offices, including
the Office of Mental Health and Substance Abuse Services (OMHSAS), the
Office of Mental Retardation (OMR) and the Office
of Medical Assistance
Programs (OMAP). (DSUF 3; PSUF 7).
In addition to SMRC, OMHSAS operates nine psychiatric hospitals and one
juvenile forensic facility. OMHSAS also funds community-based services
for Pennsylvanians with severe and persistent mental illness. OMHSAS has
authority to shift funding, as needed, from institutional to
community-based programs. (PSUF 7(a)). In the Commonwealth's fiscal year
1998-99, some 200,000 persons, including impaired and chronically ill
older persons, received community-based mental-health services designed
to maintain them in the community and delay or avoid institutional care.
(DSUF 17 and Plaintiff's response).
OMR operates seven state centers for persons with mental retardation.
OMR also funds community-based services for Pennsylvanians with mental
retardation. (PSUF 7(b)). OMAP operates the Medical Assistance Program,
which funds physical and behavioral health services in nursing facilities
and in the community. (PSUF 7(c)).
SMRC is a "psychiatric transitional facility" located in South
Mountain, Franklin County, Pennsylvania. (PSUF 11; DSUF 5). It is the
only nursing-type facility operated by the Commonwealth of Pennsylvania.
(PSUF 12; DSUF 5).
As of August 31, 2001, SMRC had 175 residents. (PSUF 13). This is a
downward trend from 1,091 in 1969 and about 800 in 1985. (DSUF 22). The
median age of a resident is 75. (DSUF 23). Over 90% of them were admitted
from state psychiatric facilities and the remainder from Pennhurst State
School and Hospital, local or state prisons, community hospital
psychiatric units or nursing facilities. (PSUF 15). Many SMRC residents
had been institutionalized for decades in state-operated facilities,
including many years at SMRC. Approximately forty SMRC residents have
been institutionalized for more than fifty years. (PSUF 16).
The residents suffer from serious mental and physical ills. Virtually
all have multiple, significant physical impairments that require regular
monitoring by physicians and nursing staff. (DSUF 28). These ailments
include cardiopulmonary disease, epilepsy, and osteoporosis that
significantly limit one or more of the residents' major life activities.
(PSUF 20). Over 90% of them have an active diagnosis of schizophrenia,
schizoaffective disorder, bipolar disorder, personality disorder, or a
history of such diagnoses. (PSUF 18; DSUF 25). Over 60% of them have
dementia. (DSUF 27). There were fourteen with mental retardation. (DSUF
Each resident is supervised by a core interdisciplinary treatment
team, consisting of the attending physician (the team leader), the nurse
supervisor (the team coordinator), the charge nurse and a social worker,
which meets to discuss the needs of a resident and develop a plan of care
("POC") for the resident designed to address those needs. The treatment
team also determines if the resident is appropriate for discharge. (DSUF
31). Using a standard of whether a resident "could handle and benefit
from a transfer", in March and April 2002, the treating physicians and
the treatment teams decided that only thirteen residents could possibly
benefit from a transfer. (DSUF 89). This position was buttressed by
defense experts Marie Boltz and Susan Renz but was contradicted by
B. Background Primarily Relating to the Title XIX Activities Claim.
SMRC has a Therapeutic Activities Service Department which has ten
full-time staff members in addition to the Department's director and an
additional supervisor. (DSUF 179). The ratio of activities staff to
residents is approximately one to sixteen which is far above the average
ratio of 1:52 or 1:66 for the average nursing facility with 120 to 150
beds. (DSUF 181).
The Joint Commission on the Accreditation of Hospitals (JCAHO) inspects
and certifies hospitals and nursing facilities. (DSUF 38). The
certification is voluntary on the part of the health-care facility. (DSUF
40). In March 2000, JCAHO inspected SMRC and gave it a score of 97 out of
100, finding a deficiency only in activities for residents. (DSUF 41,
After the JCAHO report, SMRC personnel developed a plan of correction
which included identifying times of inactivity in each living area,
creating an activity schedule for every floor, and hiring additional
staff. (DSUF 44). Nursing staff were assigned to all lounges to interact
with nonambulatory residents or engage them in an activity. (DSUF 44).
SMRC provides a program of activities seven days per week from 8:00
a.m. to 9:00 p.m. (DSUF 186). Defense expert, Karla Dreisbach, a nursing
facilities activities expert, noted the number of activities,
(Defendants' exhibit A-6 at pp. 11-15), which includes an ongoing music
therapy program and a "multisensory environment program." (DSUF 190). The
staff tracks resident participation in activities by computer. (DSUF
187). Residents can also go on regular trips outside SMRC, about
twenty-four per month. Additionally, there are over 200 volunteers and
142 groups who spend time with the residents. (DSUF 197).
Periodic reports within SMRC from July 6, 2000, through March 13,
2001, indicate that on particular days staff had not observed residents
participating in activities. (Doc. 87, Plaintiff's opposition brief at
pp. 15). "Facility Quality Indicator Profiles" also show SMRC with a low
percentile rank averaging 75% compared to other commonwealth nursing
facilities. Additionally, SMRC "Performance Improvement/Risk Management
Committee Meeting Minutes," ranging from June 28, 2001, through January
31, 2002, indicate problems with resident participation. (Plaintiff's
reply exhibit 7). Plaintiff experts, Neal G. Ranen, M.D., and G. David
Smith, have both observed a lack of participation by residents while they
were inspecting SMRC.
C. Background Primarily Relating to Mental-Health and
Over 90% of SMRC residents have an active diagnosis of serious and
persistent mental illness or a history of such a diagnosis. (PSUF 18). And
96% of the residents are taking one or more psychoactive medications.
(Plaintiff's reply exhibit 4).
In July 2000, SMRC contracted with Summit Behavior Health for the
following mental-health services. James Hegarty, M.D., a psychiatrist,
visits SMRC about a half day twice per week, and two
consultants visit for a half day each for a total of eight hours per
week. (Plaintiff's motion, Exhibit 17, Power deposition at pp. 285-86;
exhibit 56, Christie deposition at pp. 40, 49; exhibit 49, Newcomer
deposition at p. 11). Neither Dr. Hegarty nor the consultants are
personally involved in developing the plans of care for the residents,
though the treatment team may review information provided by the
consultants. (Plaintiff's motion, Exhibit 30, Saweikis deposition at p.
12; exhibit 49, Newcomer deposition at p. 37).*fn1
The behavioral-health consultants examine residents who have been
referred for consultations, usually the same week. However, if there are
too many referrals, the reviews are delayed. Thereafter, the consultants
see the residents quarterly. (Plaintiff's motion, Exhibit 46, Christie
deposition at p. 50; exhibit 49, Newcomer deposition at pp. 12, 24-25).
The consultants review about eight residents a week and saw about eighty
residents in their first year of consulting. (Plaintiff's motion, Exhibit
49, Newcomer deposition at pp. 16-17, 23).
SMRC staff did not always follow the consultants' recommendations. In
about September 2000, it was noted that the consultants were "not seeing
evidence that their recommendations [were] being consistently followed."
(Plaintiff's reply brief, exhibit 6, minutes of executive staff
meeting). On June 28, 2001, Dr. S. Reeves Powers, SMRC superintendent,
noted his concern that behavioral-health consults were "not always
reviewed by all of the team members who should see them." (Plaintiff's
reply brief, exhibit 7, "Performance Improvement/Risk Management
Committee Meeting Minutes," dated July 26, 2001). The solution was to
note the recommendations in the resident's chart and have the treatment
team review them for possible incorporation in the plan of care.
(Plaintiff's motion, exhibit 56, Christie deposition at pp. 55-54)
Rebecca Newcomer, one of the behavioral consultants, stated that there
was a short time lag in the process before their recommendations were
placed in the plans of care, but that their recommendations were generally
being followed. (Plaintiff's motion, exhibit 49, Newcomer deposition at
D. Background Primarily Related to the Administration off Psychotropic
SMRC residents are seen by the behavioral consultants who make
recommendations concerning behavioral issues that might impact on use of
drugs. Psychotropic medications are prescribed using the lowest effective
doses of the safest and best-tolerated agents. They are tapered downward
when appropriate. (DSUF 217). As Dr. Hegarty elaborates in his report, by
September 2001 57% of the 76 residents on the older antipsychotic drugs
had been switched from them to the newer, safer, so-called "atypical"
agents, and 75% of residents on antipsychotic drugs are now receiving the
newer drugs. (Defendants' exhibit A-9, Hegarty report at p. 5). Further,
administration of some of these medications in a dose greater than the
recommended maximum dose simply reflects the need of the individual
patient, as determined by his treating physicians,
for a greater dose, and
such use of the medication is supported by the medical literature. (DSUF
221, citing Defendants' exhibit ...