Garrity v. Gallen

MEMORANDUM OPINION

DEVINE, Chief Judge.

The model of democracy adopted for (both federal and state) governance in the United States provides that the legislative branch shall raise and allocate funds necessary for the common good.

1

Not unusually, there are more competitors for a share of such funds than there are funds to be divided. When, as in the instant litigation, a defined group perceives it is being deprived of what it believes to be an “entitlement”, litigation ensues. This is more particularly true when such group comprises a segment of society which, “because of its position of political powerlessness, is least able”

2

to ensure its right to priority upon the legislative fiscal agenda.

This litigation “inhabits the twilight area of developing law concerning the . . . rights of the . . . mentally retarded”.

3

The named plaintiffs in this class action are residents of Laconia State School & Training Center (hereinafter “LSS”), the only institution of the State of New Hampshire for the provision of services to the mentally retarded.

4

Procedurally the relief sought is injunctive in nature, seeking vindication of the rights of plaintiffs and those of similarly situated mentally retarded citizens of New Hampshire. The substantive relief sought arises in the context of certain federal statutes, including the Developmentally Disabled Assistance and Bill of Rights Act,

5

*the Nondiscrimination section of the Rehabilitation Act of 1973,

6

and the Education for All Handicapped Children Act.

7

Plaintiffs additionally claim relief under the New Hampshire statute entitled “Services for the Developmentally Impaired”,

8

and also claim that the actions complained of have deprived them of their rights pursuant to the Federal Constitution.

9

In a trial of approximately forty days before this Court, plaintiffs attacked the conditions at LSS, adducing evidence about numerous specific programs and practices thereat, and calling into question the validity of institutional life itself. To that end, plaintiffs offered the testimony of a bevy of

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experts on the issue of whether habilitation

10

can ever be provided in the traditional institutional setting as opposed to a setting in the “community”.

11

The ultimate relief which the plaintiffs herein seek is a ruling to the effect that their right to habilitation requires that such be effected in the least restrictive alternative,

i.

e., community placement. As put by plaintiffs’ counsel:

the relief which these parties seek is the creation of a network of community-based services which will provide for and be available to Laconia residents. The reason this case has gone through a prolonged trial is because the parties disagree on one major point: the responsibility on the part of the State of New Hampshire to affirmatively create these community programs.

12

The Court has accordingly been required to review the volumes of depositions, exhibits, and other evidence in an effort to arrive at a just resolution of these contentions. Institutional reform cases of this type require courts to venture into areas foreign to their traditional expertise — including the fields of medicine, sociology, psychiatry, and education — an excursion which this Court undertakes with some trepidation. However, the important constitutional and statutory rights invoked by the parties require that such concerns be addressed.

I.

The Parties

This action was commenced on April 12, 1978, by six mentally retarded residents of LSS (whose backgrounds will be briefly summarized below), joined by the New Hampshire Association for Retarded Citizens (“NHARC”), a non-profit corporation whose members include developmentally disabled persons and parents, guardians, relatives, and friends of mentally retarded citizens in New Hampshire. On November 29, 1978, over the objection of defendants, the Court granted the United States of America leave to intervene in this lawsuit pursuant to Rule 24, Fed.R.Civ.P.; the United States filed its Complaint in Intervention on December 1, 1978.

13

Following extensive discovery by the parties on the issue of class certification,

14

the Court granted plaintiffs’ motion to certify this as a class action, defining said class as follows:

(1) Class

Developmentally disabled persons who are presently residing at LSS or who in the future may be institutionalized or reinstitutionalized at LSS.

(a) Subclass

Persons between the ages of three and twenty-one years who are or in the future may be confined at LSS, and whose rights under the Education of the Handicapped Act, 20 U.S.C. § 1401 ,

et seq.,

may be violated.

In the above class certification Order dated February 22, 1980, the Court emphasized that it construed plaintiffs’ Complaint to challenge only the conditions at LSS itself in an effort to make this lawsuit more manageable and as a signal to the parties that the Court would not entertain a gener

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alized assault on the State of New Hampshire’s mental health and education systems. The above class is represented by six named plaintiffs, whose profiles the Court has set out below.

15

1.

Sandra Garrity

is an eighteen-year-old resident of LSS who was admitted to the School in 1966 at the age of eight by order of the Hillsborough County Probate Court,

16

upon petition by her parents and legal guardians. Although the étiology of her mental retardation is in question, it appears that at the age of nine months she had her first seizure, which was associated with the measles.

17

Since then she has had a history of convulsive seizures, psychiatric impairment, behavioral disorder, and speech impediment, and has been diagnosed as “moderately mentally retarded”

18

as late as May 14,1976, and more recently as “severely mentally retarded”.

19

Ms. Garrity resides in Floyd I and takes frequent vacations with her family.

Plaintiffs allege that since her commitment to LSS, Ms. Garrity has lost communication skills and some of her self-care and toileting skills; that she now walks badly and rocks constantly; that she has sustained numerous bodily injuries because of lack of supervision; that she has been given inappropriate drugs by untrained ward attendants; and that she has been placed in physical restraints, all of which have caused her to regress and deteriorate.

2.

Nancy Haggerty

is a thirty-two-year-old resident of LSS admitted by court order in 1962 at the age of 17 after having spent two years at the New Hampshire Hospital. Her parents are her legal guardians. Although as a child she walked at age nine months and talked at thirteen months, she shortly thereafter developed spinal meningitis and convulsions.

20

She resides at Keyes Building, and visits regularly with her family. Ms. Haggerty’s medical record, which is one of the more inadequate records

21

at the School, reflects that she has been diagnosed as “severely mentally retarded”. As with Sandra Garrity, Ms. Haggerty’s primary problem is maladaptive behavior. Although plaintiffs admit that Ms. Haggerty had maladaptive behavioral problems prior to her commitment to LSS, they allege that defendants have exacerbated the problem by indiscriminately administering psychotropic

22

drugs. The effect of the ingestion of drugs plus a lack of habilitative programs has allegedly caused her to become self abusive as well as unmotivated. Plaintiffs also claim that she has sustained many injuries, either accidentally or otherwise, for which no causes have been documented.

3.

Richard Pond

has lived almost one half of his life at LSS, having been committed by court order in 1961 at the age of 19 when he reportedly had a dramatic change of personality. At the time of the Complaint, Mr. Pond was diagnosed in the “mild” range of mental retardation, although a recent report filed in February

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1980 recommended that his AAMD

23

diagnosis be changed to a higher functioning category, “borderline of intelligence”.

24

Mr. Pond’s abstract reasoning skills are fairly well developed (he enjoys talking politics and is fascinated with the study of American history and electricity), and his self care skills are good. He is afflicted, however, with a psychiatric impairment known as “schizophrenia, simple type”.

25

Mr. Pond is apparently unable to cope with personal pressure, which defendants say accounts for his failure to adjust to three different community placements — at Great Bay Training Center in Portsmouth, New Hampshire; at a foster home; and at a group home in Danbury, New Hampshire. Plaintiffs have alleged that defendants did not adequately diagnose Pond prior to his transfer and that this lack of preparation caused his failure in the community. They claim that LSS defendants regularly administer psychotropic drugs to Pond without his consent and that he has been placed in isolation rooms for punitive purposes. Mr. Pond has no legal guardian.

4.

Debra Roman

is the other named plaintiff who at the time of the Complaint lacked a legal guardian.

26

After entering kindergarten in Lebanon, New Hampshire, at the age of six, Ms. Roman progressed slowly. She was eventually placed in a special trainable class in the Lebanon School, but was admitted to the State School in 1970 at the age of 13 by her parents when her behavior became aggressive. Like Richard Pond, Ms. Roman falls in the upper range of mental retardation (she has been diagnosed as “moderately retarded”). Her health is adequate, except for her problem with obesity, and her self care skills are good. Like Pond, she is severely compromised by her psychotic tendencies, for which she has received medication and for which she has occasionally been transferred to Keyes Building as a disciplinary technique.

During most of her time at Laconia, Ms. Roman has resided in Blood Building, although she spent a short time in Peterson Cottage. Plaintiffs allege that her transfer to the Cottage was without adequate preparation, and that it therefore resulted in her failure to adjust and her subsequent bad reaction. «Plaintiffs also allege that Ms. Roman has sustained a number of injuries at LSS, and has steadily regressed since her entrance to the School.

5.

Janet Smith

is one of three plaintiffs representing the “subclass” of plaintiffs under the age of 21. Her parents and legal guardians had her admitted to LSS at the age of five. An epileptic with severe brain damage, Ms. Smith is blind in the left eye and deaf in the left ear, and has little use of the left side of her body. She has ongoing major motor seizures, for which she receives medication. She reportedly could walk at one time in her life before she arrived at the School, and although defendants once attempted corrective procedures with a leg brace, they later ceased such endeavors.

27

Currently she is non-ambulatory. Ms. Smith resides in Dube C, and is totally dependent on staff members for all of her daily activities. Her parents have requested that she not be allowed to interact with other residents. They frequently visit her and often take her home for what amounts to about four months of each year, which the staff at the School says has a deleterious effect on her habilitation.

Plaintiffs allege that since Janet Smith’s entrance to LSS she has regressed physically, claiming that she has been “irreversibly crippled” by inappropriate posturing and lack of physical therapy.

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6.

Thomas Vaillancourt,

aged 14 at the time of the commencement of this lawsuit, also represents the plaintiff subclass. Mr. Vaillancourt was afflicted with a prenatal brain infection known as “toxoplasmosis”, a diffuse and severe infection of the complete brain, resulting in a profound level of retardation.

28

He is mentally and visually handicapped and has hearing and seizure disorders. He has “spastic quadroplases” (all four limbs are involved), mild cerebral palsy, and curvature of the spine in two different planes.

29

In short, Mr. Vaillancourt has acute and maintenance health needs. He is non-ambulatory, and completely dependent on the staff for care. At the time of the Complaint, he resided in King Building, where plaintiffs allege he is often strapped to a chair or lying on a mat. From 1977 to 1979 Vaillancourt was repeatedly recommended for occupational therapy, but such was never delivered. According to plaintiffs, the lack of habilitation treatment afforded Mr. Vaillancourt has resulted in his regression and debilitation.

Defendants in this lawsuit are several officials of the State of New Hampshire, including the Governor, who have been sued in their official capacities only. Since the original Complaint was filed on April 12, 1978, the State ushered in a new administration; thus, on August 20,1979, the Court granted defendants’ motion to substitute party defendants. The defendants

30

are as follows: The Governor of the State of New Hampshire, Hugh J. Gallen; the Commissioner of the Department of Health and Welfare, Edgar J. Helms; the Commissioner of the State Department of Education, Robert M. Brunelle; the Director of the Division of Mental Health, Gary E. Miller, M. D., Director of the Division of Public Health, Richard G. Lacombe; the Director of the Division of Public Health Services, Maynard H. Mires, M.D.; the Superintendent and Chief Administrator of Laconia State School, Jack E. Melton; the Chief of the Offices of Mental Retardation, Manfred Drewski; members of the State Board of Education, including John Holland, Edward C. Sweeney, Jr., Shirley Ganem, Ivan A. Hackler, George F. Hurt, Betty Anne Lavalle, and Marianne Noyes; and the Chief of the Division of Vocational Rehabilitation of the State Department of Education, Bruce Archambeault.

II. Conditions at Laconia State School

Laconia State School and Training Center, the State’s only public residential facility for the retarded, was conceived by act of the Legislature in 1901 and came into existence in 1903. Once known as the “School for the Feeble-Minded”, the School’s original purpose was to provide special treatment to children, but its scope was soon widened to accommodate “adult defectives” in order to serve the dual purpose of caring for these individuals while at the same time providing a “safeguard[] whereby society may protect itself from the vice, corruption, and licentiousness with which it is threatened when anyone of this defective class is left unrestrained and unprotected in the community”.

31

As societal attitudes have changed and evolved over the ensuing years, LSS has evolved with them. The School has expanded from a singular dormitory building in 1903 to its present physical plant on 437 acres in Laconia, New Hampshire, consisting of twelve living units and twenty-two auxiliary buildings, including a recently constructed training and education center, the Arthur E. Toll Habilitation Complex (hereinafter “Toll”). Likewise, the School’s population has fluctuated between a mere sixty residents in 1903 to a peak population in 1970 of 1167

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residents; at the time of the trial the in-residence population was 564.

32

Approximately eighty of these residents are under the age of twenty-one years, and the rest are fairly evenly distributed in chronological age from twenty-one to sixty-two, with just a few over the age of sixty-two.

33

Fifty-seven percent of the client population has been institutionalized for more than twenty years,

34

thirty-two percent have been in the institution from ten to twenty years, and eleven percent have been at LSS for ten years or less.

35

Admission to LSS is “voluntary”, in the sense that no individual shall be admitted without his or her consent or, in the case of a minor or a legally adjudicated incompetent person, without the consent of his or her parent or guardian. N.H. RSA 171-A:5 (Supp.1979). For those individuals who are incapable of managing their own affairs and who lack guardians, N.H. RSA 171-A:10 II (Supp.1979) requires the administrator of LSS to petition the probate court for appointment of same. The statute provides that prior to admission a comprehensive screening evaluation take place, N.H. RSA 171-A:6 II, and that a hearing be afforded to any applicant who challenges the appropriateness of his or her placement, or whose legal guardian challenges same. The client is entitled to representation by legal counsel at such hearing, and the results are appeal-able to the State’s Superior Court. The admission procedures set out herein are of recent vintage; prior to 1975 individuals could be committed to LSS by court order, as indeed four of the named plaintiffs were.

36

Notwithstanding the change in procedure, several residents at LSS still lack guardians, including named plaintiff Richard Pond.

37

As for termination of services, N.H. RSA 171-A:7 (Supp.1979) indicates that a client is free to withdraw entirely from the service delivery system at any time; however, defendants admitted that if a resident who lacks a guardian was deemed to be incompetent by an interdisciplinary team, the staff might refuse to release him on his own request.

38

As a whole, the population at LSS falls predominantly into the “severe” and “profound” ranges of mental retardation, as defined by the AAMD. A 1980 survey places the population by percentages into the following levels of retardation:

Borderline 2%

Mild 9%

Moderate 19%

Severe 33%

Profound 37%.

The “under twenty-one” category at LSS is even more skewed toward the “profound” range of mental retardation, with fifty-two percent having been diagnosed as falling within the AAMD category of “profound” mental retardation.

39

Most recent admis

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sions to LSS have tended to be in the “severe” and the “profound” ranges, regardless of age. Defendants’ Exhibit 34.

The quality of the living quarters at LSS is inconsistent, at best. Of the twelve buildings, only six

40

are certified by the federal government as Intermediary Care Facilities for the Mentally Retarded (“ICFMR”),

41

and these have a maximum capacity of 276 residents. T. Gunther. It was undisputed at trial that of these six buildings, the four “cottages”, Dube, Peterson, Rice, and Speare, are by far the most desirable residences at LSS, in that they not only have sound structures, but they also provide for at least a modicum of privacy and more pleasant surroundings. The “cottages” accommodate only 110 residents (or twenty percent of the population), and non-ambulatory residents are completely excluded from access to these buildings due to their structural designs.

42

As for the non-ICF buildings, there was little dispute about the need for their renovation. Although defendants did not go so far as to agree with the plaintiffs’ expert that the living quarters reflect “total environmental deprivation”, T. William S. Talley, they did admit severe inadequacies. Most strikingly, many of these buildings have just recently complied with the minimum safety provisions such as sprinkler systems and smoke alarms, crash bars, etc.

43

Because of overcrowding and the lack of partitions in bedrooms and bathrooms, there is little to no privacy in these buildings. T. Jones, Talley, Clements. Often male and female residents use adjoining toilets with no partitions. T. Clements; Plaintiffs’ Exhibit 23, Photograph No. 9. Many of the wards have large open rooms with little furniture or other accouterments, and can only be described as sterile environments. In some, the level of noise is problematic, due to the large open spaces, bare concrete surfaces, and bad acoustics. T. Clements. In short, the residential facilities at LSS are less than optimal.

Recently officials in the State of New Hampshire have joined the national trend of paying increased recognition to the care and treatment of the mentally retarded. At the core of this movement is the goal to provide individualized treatment to the mentally retarded in the setting least restrictive of their freedom, yet responsive to their needs. To this end, State officials, health care professionals, and concerned citizens worked for the passage of the above-mentioned statute, N.H. RSA 171-A,

44

which gained legislative approval in 1975 and was amended in 1977. The stated purpose and policy of this statute, which will be discussed more fully in Part III of this Opinion, is “to enable the division of mental health to establish, maintain, implement and coordinate a comprehensive service delivery system for developmentally disabled persons”.

45

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In an attempt to secure the implementation of N.H. RSA 171-A, the Governor of New Hampshire, Hugh J. Gallen,

46

ordered the preparation of a master plan, now known as

“Action for Independence

”.

47

There are three drafts of

Action for Independence,

the last of which was issued on January 3,1980. The document, which sets forth in some detail timetables for the accomplishment of certain goals such as community placement of LSS residents, is explicitly intended to be a “dynamic, living document”, which can be amended as experience dictates. See

Action for Independence

3d Draft, Defendants’ Exhibit 139; T. Shumway.

Action for Independence

sets forth a proposed schedule for deinstitutionalization, calling for a residual population of 155 residents in 1987.

See Action for Independence

3d Draft, Defendants’ Exhibit 139, p. 234. But like many ambitious plans, this too has endured a rocky beginning. The original plan was to complete Individual Service Plans (ISP’s) for each resident by June of 1980, and to deinstitutionalize one hundred people over 1980 and 1981. T. Shumway. As of the date of trial, however, only 366 of 562 (or 65%) of the ISP’s had been completed, making it dubious that an additional 200 would be completed according to schedule. As for the plan of deinstitutionalization, since funding was available for only eighty residents, the figure was revised to thirty residents by June 1980 and fifty residents by June 1981.

Action for Independence

3d Draft, Defendants’ Exhibit 139. At trial, Planning Director Donald L. Shumway testified that due to the unexpected demise of another community project, Guardianship Trust, which created the need for thirty-five additional placements, once again these figures would have to be revised downward. In sum, although the State appears to be committed to its plan of deinstitutionalization, even its short history reveals that the perennial problem of funding looms ahead, presenting a substantial threat to the integrity of the plan.

A. Staff

All parties to this litigation appeared to agree that the staff at LSS is dedicated and does attempt to provide the best care possible under the circumstances that exist at the School. However, it was also undisputed that staff shortages account for many of the problems at LSS. Eighty percent of the total budget at LSS is allocated toward personnel cost; obviously, therefore, the quantity and quality of staff rises and falls with the mercurial budgetary process. More than lack of funding is to blame for staff shortages, however. Although the number of programs which matriculate professionals trained in caring for the developmentally disabled has increased in direct proportion to the rapidly growing awareness of their problems, such is a recent phenomenon, and there is therefore still a nationwide shortage of people in their field. In particular, the dearth of physical and occupational therapists was often cited by experts for both parties. T. Cook, Gross-man, Jones, Melton, and Griepentrog.

48

While recognizing this nationwide scarcity of staff, plaintiffs’ experts indicted the State of New Hampshire for creating a system which exacerbates the problem. They claimed that the State’s ability to recruit staff to LSS is shackled because of the remote location of its institution, and they argued that one way of ameliorating the situation is to provide community settings for these residents to which professionals would be drawn. Plaintiffs also attempted to attribute the problem of staff

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“burnout”

49

to institutional settings, but this claim was successfully refuted by evidence of similar “burnout” in community settings. T. Gold.

Nevertheless, the fact remains that LSS is severely understaffed. T. Melton. Because of the lack of personnel, for example, direct care staff are required to undertake duties not related to their job descriptions, which obviously minimizes the effectiveness of their other efforts. Plaintiffs’ Exhibit 64 represents a census of staff workers taken on two different typical days in 1979, indicating the number of direct care staff positions authorized, the number filled, and the number actually employed on the days in question. On the second shift on February 8, 1979, for example, the count was as follows: number of direct care positions authorized — 167; vacant positions — 44; number of positions filled — 123; number of staff who reported to duty — 72; number of staff on regular days off — 35; number of staff on vacation — 2; number of staff taking personal day — 2; number of staff out sick — 12.

See also

Defendants’ Exhibit 4, which lists for a typical day, broken down by ward, the number of positions filled and vacant in relation to the resident population. Thus, not only were there several positions which were authorized and not filled; of those filled, there were a number who never reported to duty. Melton testified that national accreditation standards call for a staff/resident ratio of two to one. Accordingly 1124 staff members would have been needed to meet that goal as of the time of trial when LSS had a resident population of 564. Yet at the time of trial the number of staff members was set at 875,

50

with a vacancy rate of ten to twelve percent at any given time. In 1977 Melton had requested 276 new staff members from the New Hampshire Legislature. In response, the Legislature appropriated the money for 124 staff people in 1977, 14 in 1978, and 87 in 1979 — a gain of 225 staff members by 1979, when the request had been for 276 in 1977.

An additional problem facing the School is staff turnover, caused by “burnout” and other factors. Melton testified that the turnover rate among direct care staff members is substantial; LSS loses an average of fifty percent of its workers yearly, and this figure has risen as high as ninety percent in the past. T. Brown. The turnover rate overall (for other than direct care staff) is much lower. T. Melton. The consistent vacancy rate of ten to twelve percent at any given time and the difficulty of recruitment pose a major threat to the operation of the School, in that every six months the Legislature abolishes any position which has not been filled within six months. In 1979, for example, a total of one million dollars lapsed.

See

Melton’s Deposition, Vol. 3, pp. 42-43.

In addition to their allegations regarding the minimum numbers of staff, plaintiffs also challenged the adequacy of preparation and training for staff members, citing instances in which workers had been required to undertake duties in areas in which they lacked expertise. Although the evidence supports plaintiffs’ contention of inadequate training in several areas, recently the School has exhibited much improvement in staff training. The Court heard testimony from Frances Cook, who has been director of staff and program development at LSS since 1975. The philosophy of her department is that clients have the right to receive services from competent staff. The eight major functions of the department are: (1) orientation and training of staff, (2) continuing education for staff to maintain competence, (3) incentive and support

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of staff who wish to advance, (4) mandatory training when required, (5) a system of promotional competency-based options, (6) development of affiliations with colleges, (7) coordination of volunteer services,

51

and (8) development of a system of policy development and review. T. Cook. According to Cook, ninety-five percent of the staff completes twenty hours of training in the first month, and most complete one week of basic training, including one day of on-the-job training and four days of classroom training. There is also ongoing training by the supervisors in the buildings. T. Cook. The witness admitted that prior to her arrival in 1975, there was no such orientation, but that now training is a precondition to employment. The major problems Cook has faced in her department during the past few years have been caused by various hiring freezes imposed by the Governor of New Hampshire,

52

forcing staff to venture outside their own areas into areas in which they lack expertise.

In sum, although efforts have been made to improve the quality of staff at LSS, the fact remains that LSS is understaffed. As will be seen from the following descriptions of the various components of the School, this deficit seriously detracts from the operation of almost every program and operating procedure at LSS. Thus, finding a panacea for this problem of lack of staff would contribute immeasurably to overall improvement at the School; however, since staff accounts for eighty percent of the entire budget at LSS, the problem defies easy solutions.

B. Habilitation

“Habilitation” is the term of art used to refer to that education, training, and care required by retarded individuals to reach their maximum development.

See

n. 10, p. 176,

supra.

It is the process by which individuals are assisted in acquiring and maintaining “those life skills which enable them to cope more effectively with the demands of their own persons and of their environment, to be economically self-sufficient and to raise the level of their physical, mental and social efficiency. Habilitation includes but is not limited to programs of formal, structured education and treatment.” N.H. RSA 171-A:2 IX.

Both parties agreed that the linchpin of any habilitation plan is an individual service plan which assesses the present abilities of a given individual, establishes goals to be sought, and diagrams a course of action to meet those ends. Without such a systematic and individualized approach, progress will be sporadic at best. As mentioned above, as of the date of the trial only 366 of 564 residents (or 65%) had completed ISP’s, and despite defendants’ purported intentions, it appeared very dubious that two hundred more would be completed by defendants’ target date of June 1980. Of those residents who had ISP’s, Superintendent Melton admitted that a fair percentage of the goals stated therein could not be met, due to a lack of resources. Notwithstanding this fact, the Court hereby rejects the contention of some of the plaintiffs’ experts that

no

habilitation could occur or is occurring at LSS.

1. Education and Training at LSS

Defendants readily admit that historically education and training services at LSS have been inadequate, having been directed (if at all) toward only the higher-functioning residents. T. Gamache. Today the situation is much brighter. The Education and Training Department (hereinafter “E & T”) has evaluated and serves approximately 350 of the 564 residents. Defendants admit that the two hundred residents not yet evaluated for services are almost all residents of non-ICF facilities (the testimony reflects that the residents of non-ICF’s tend to fall in the more severely retarded range), but at

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trial they fully intended to have all residents evaluated by October of 1980. Of the 350 served by E & T, approximately 260 are adults and 90 are children between the ages of three and twenty-one. There exist separate educational components for adults and children (although they share the same four fields of learning), and the latter are acknowledged to have the more extensive services. Nevertheless, at the time of trial a new “adult curriculum” had just been developed, and defendants planned to continue to improve and expand services for adults as well as children.

a.

Children Aged Three to Twenty-one

As mentioned above, three of the named plaintiffs, Janet Smith, Tommy Vaillancourt, and Sandra Garrity, represent a subclass of those individuals between the ages of three and twenty-one who are asserting their rights to a free and appropriate education, which they claim is mandated under state and federal law. Most of the testimony at trial relative to the State’s education of handicapped children came from Edward DeForrest, Director of Special Education for the State of New Hampshire since 1979, and Peter Gamache, Director of “Therapeutic Services” at LSS.

In order to understand the framework within which LSS provides services to these school-age children, it is essential to provide a brief backdrop herein of the education system in the state. In New Hampshire, education is under the combined jurisdiction of local as well as state agencies, although the public schools are funded primarily by property taxes collected by the towns and cities. The State itself contributes less to education than almost any other state in the Union; nevertheless, it retains control over the localities through its State Board of Education which by statute is given the “same powers of management, supervision, and direction over all public schools in this state as the directors of a business corporation have over its business, except as otherwise limited by law”. N.H. RSA 186:5. Working through a Commissioner of Education (N.H. RSA 186:9), the State Board performs those duties such as supervising the expenditure of all money appropriated for schools within the state and establishing the standards for teacher certification within the state, as well as establishing all minimum standards which local school districts must meet in the various areas of curriculum. N.H. RSA 186:11. Additionally, schools themselves must be approved by the State Board of Education in order for the school district maintaining the school to receive

any

form of aid to education. N.H. RSA 194:23-d. In 1980, the sum of all monies spent for education in New Hampshire was $38.6 million, of which $31.6 million was contributed by the local school districts, $3.2 million by the State, and $3.8 million by the federal government.

From July 1, 1965, to June 30, 1981, the New Hampshire “Program of Special Education” was set forth in N.H. RSA 186-A.

53

Thereunder, the State Board of Education was charged with the maintenance of a “section of special education”, N.H. RSA 186-A:3 (Supp.1979).

54

Additionally, local school boards were made responsible for the identification of handicapped students within their districts, N.H. RSA 186-A.-4 (Supp. 1979), who were to be provided with an approved plan of special education. N.H. RSA 186-A:6 (Supp.1979).

55

If provided without the local district (and LSS is con

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sidered to be an out-of-district placement), the expenses of such special education (including tuition, transportation, and, if necessary, board and room) were limited to “twice the state average cost per pupil” for primary or secondary public schools as estimated by the State Board of Education. N.H. RSA 186-A:8 II (Supp.1979).

Effective July 1, 1981, N.H. RSA 186-A was replaced by N.H. RSA 186-C which, while purporting to diminish the financial obligations imposed on these defendants, otherwise makes no substantial changes in the nature of their duties as previously imposed- pursuant to N.H. RSA 186-A.

56

But the procedures outlined in N.H. RSA 186-C (and formerly contained in N.H. RSA 186-A) do not comprise the exclusive means by which a child aged three through twenty-one can be placed in an “out-of-district” program such as LSS.

In addition to placement by a local education agency, a handicapped child can be placed by the Division of Mental Health, through an “area agency” pursuant to N.H. RSA 171 — A (Services for the Developmentally Impaired). This statute charges the Division with maintaining “a state service delivery system, comprised of a substantial number of programs and services,

including Laconia State School and Training Center,

for the care, habilitation, rehabilitation, treatment and training of developmentally impaired persons. Such service delivery system shall be under the supervision of the director [of the Division of Mental Health]”. N.H. RSA 171-A:4 (Supp.1979) (emphasis added). Although by statute the Director has no obligation to bow to the wishes of the State Board of Education, the staff of the “area agency” is to “take into account the provisions of and services established under N.H. RSA 186-[C] [“Program of Special Education”].” N.H. RSA 171-A:6 II (Supp.1979). The difficulties inherent in these crossed lines of authority will be discussed subsequently; suffice it to say here that New Hampshire maintains parallel systems of responsibility for services to handicapped children.

From 1971 to 1975 there were three hundred school-age children at LSS; today there are only ninety-four children between the ages of three and twenty-one. T. DeForrest.

57

Of these individuals, approximately eighty percent are in the severe and profound ranges of mental retardation. By 1978, each child at LSS had an “Individual Education Program” (hereinafter “IEP”) completed for him or her. Mandated by federal law,

58

the IEP is an individualized evaluation reflecting the educational needs of each child and identifying the appropriate sources for the provision of those services. Despite the establishment and publication of such goals, defendants candidly admitted the improbability of fully attaining same. For the ninety-four school-age children there are six or seven teachers available. Fewer than one half receive the full

5Vt

hours of formal education per day, which is the average amount given a non-handicapped child. More than fifty percent receive about one half a day’s training, and seventeen receive services for only one hour per day. Two of the children have been deemed “medically fragile” and are therefore excluded entirely from those services. T. Gamache.

Since 1975, however, the overall educational services have improved remarkably. Whereas in the past only the higher-functioning children were served, now every individual between the ages of three and twenty-one is served, barring extraordinary

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reasons. Recently inaugurated was a “ward stimulation” program, for example, which is aimed at the profoundly retarded who are medically involved. That is considered the lowest developmental area of a four-part curriculum which was developed by personnel in occupational therapy (“OT”), physical therapy (“PT”), speech, psychological services, and social services. “Ward stimulation” encompasses OT, PT, and medical services, and is designed for individuals who function on a six-to-twelve month chronological age level. Phase two is directed at children in the twelve-to-eighteen month level, wherein there is more group activity and involvement with fine motor skills. The next tier constitutes a “readiness period”, in which students attend group classes in Toll Building, a recently constructed center for education and recreation which is separate from the residential buildings, and thus requires the transportation of many residents in á shuttle-bus. Until recently multiply handicapped residents were excluded from the programs at Toll because the shuttlebus could not accommodate those with physical handicaps. Phase four is “preacademics” for students with a developmental level of up to five years, which includes training in the cognitive and prevocational skills. The ultimate goal is the attainment of skills which allow an individual to participate in vocational programs, including work activity centers, sheltered workshops, or residential work programs, and thus to progress toward economic self sufficiency. All of the above classes take place either in the wards or at Toll. Occasionally some of the residents have field trips into town, at which time they have the opportunity to practice the community skills they have acquired, such as using cross-walks, tendering money, etc.

59

Two children enrolled at LSS attend public schools in the community full time, and seven others attend part time.

Plaintiffs have emphasized that the above four-part curriculum is a very recent addition, and that even now many of the education and training needs of the residents are not being met. Indeed, the record supports their contention that for years few services were afforded the most severely handicapped residents, T. Sontag, and at present they receive much less attention from the E & T Department than do more advanced children. T. Sontag. In addition, a significant number of individuals are denied services because of lack of staff or funding. T. Sontag, Green. Because of the lack of staff, there is very little carryover from the classroom to the wards, an enforcement technique which is particularly needed for the mentally retarded. As mentioned earlier, the greatest deficiencies in staff are in the areas of OT, PT, and speech. One named plaintiff, Janet Smith, whose physical problems are recounted above on pages 10 and 11, was scheduled to have regular OT, but such was canceled in 1976 due to lack of staff. T. Frieda Smith. She received PT from 1966 to 1970, but it too was then canceled and not picked up again until 1980. Doctor Andrews, one of the State’s witnesses, testified that Ms. Smith must receive more PT and that consistent programming is desirable.

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Tommy Vaillancourt, the other representative plaintiff of this subclass, is a severely and profoundly multiply handicapped individual who was repeatedly recommended for OT services from 1977 to 1979, but such were never delivered, presumably because of lack of staff. T. Andrews. The Court heard testimony that at least three other children similarly had planned services terminated. OT was recommended for Mary Beth A. in 1977, 1978, and 1979, but was discontinued because of funding. T. Andrews. Jeffrey, age 18, is a resident who has lived in King I for twelve years. T. Andrews. Three days after his IEP was established, all services were terminated for him. PT was recommended for Mike B., age 15, who lives in Dube C, but he has received no services. T. Andrews.

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Education and training for residents at LSS aged three to twenty-one is limited to 180 days, thé same cycle as in the public schools. The summer program is largely recreational. Although fourteen teachers at LSS take vacation in the summer, seven lifeguards are hired. Approximately 350 residents attend day camp, which consists of trips to beaches at a nearby lake. For one week, residents partake in swimming, boating, arts and crafts, and hiking. Non-ambulatory residents are included on these trips as well. In addition, approximately 100 residents attend other camps in New Hampshire, but the criteria for eligibility are dictated by the camp supervisors who in the past have rejected non-ambulatory and profoundly retarded residents and residents with behavioral problems. During the summer some non-ambulatory residents continue to receive PT and OT.

b. Education and Training for Adults

Of the 350 residents served by the E & T Department, approximately 260 are adults (although only 215 are listed as receiving services [T. Gamache]). The Department is aided in the provision of these services by a new therapeutic recreation staff. As mentioned earlier, the disparity between treatment of ICF and non-ICF residents is striking. Two hundred residents receive absolutely no services from E & T, and not coincidentally each one of those residents lives in a non-ICF unit. Similarly, of the 350 residents who have been evaluated for OT services, all reside in ICF units. T. Talley, York. By October of 1980, each resident, including those in non-ICF’s, was to have been evaluated. T. Gamache. However, the record reflects that a mere evaluation does not assure that the identified needs will be met. Of the 350 residents who were evaluated for OT services, for example, 330 were found to need services. But only seventy are receiving direct OT services, while 260 receive no services or nothing more than some adaptive equipment. T. Talley.

61

Lack of OT can result in dysfunction and contractures. T. Talley. Likewise, the vacancies in the PT staff result in deprivation of services to many in need,

62

which in turn can cause curvatures of the spine, hip dislocation, and problems concerning the upper respiratory tract, among others. T. Green.

One of the major criticisms of the E & T curriculum for adults at LSS is its lack of age appropriateness. T. Brown, Sontag. This is explained in part by the lack of training models for adults. Whereas children can follow traditional developmental guidelines (i. e., reaching stage X by age X), there is no such formula for adults. T. Karan. Perhaps as a result, the new LSS adult curriculum which was published during the course of this trial includes the exact same four phases which are applied to residents aged three to twenty-one: (1) social skills, (2) cognitive skills, (3) prevocational skills, and (4) vocational skills. T. Gamache.

As with the younger residents, the staff at LSS has attempted to devise classes which attempt to prepare adult residents to live in the community. Such activities as handling money, cooking, and field trips into town are aimed at the transition from institution to semi-independent living. Although the efforts in this regard are increasing, the evidence indicates that only a small percentage of residents are afforded these opportunities, and that even for those who receive such instruction there is little carryover into their wards.

The vocational education programs are well developed at LSS, but as in other departments, the program accommodates fewer than one half of the residents

63

due to

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lack of staff, facilities, and in some instances the lack of available work from outside sources. Residents in the non-ICF’s have yet to be evaluated for placement in vocational programs, but officials at LSS hoped to complete this by October 1980. T. Gamache. Recently LSS hired a full-time vocational evaluator (or job developer) and more vocational teachers. Vocational education is divided into four categories: (1) adult vocational classes, (2) work activity centers,

64

(3) residential work programs,

65

and (4) “sheltered workshops”.

66

T. Gamache.

c. Summary of Education and Training

In conclusion, although great strides have been made in the Education and Training Department at LSS, major deficiencies still exist, most markedly in the services to residents of non-ICF buildings and to those who are most severely handicapped. Because of lack of staff and other resources, many residents capable of participating in these programs are excluded. Records (such as IEP’s and ISP’s) have not been completed for many residents, and for others they are very inadequate; as a consequence, residents are not often receiving appropriate individualized services.

67

Those who do receive training inevitably fail to retain skills due to a lack of follow-up in their wards. Physical therapy and occupational therapy, while needed by a significant number of residents, are administered sporadically, if at all. And although much emphasis has recently been placed on preparing residents for a transition to community living, relatively little time is actually spent by many residents outside of the institution, and some residents never venture outside of the institution.

68

The education and training for residents aged three to twenty-one, although not so bleak, represents a marked contrast to the kinds of services which their non-handicapped peers receive in public schools. The majority of these children do not receive the full 5Vi hours of schooling as do their peers in public schools, and their formal education ceases after the requisite 180 days. Even the purely physical needs of some, like named plaintiffs Tommy Vaillancourt and Janet Smith, «are not met.

2. Feeding

The Court heard sharply conflicting testimony regarding the feeding practices at LSS. Whereas one of plaintiffs’ experts opined that 41% of deaths occurring at LSS from 1975 to 1978 were due to aspiration caused by poor feeding techniques, T. Clements, other experts dismissed these findings as alarmist. T. Grossman. The Court finds that many of the findings of Doctor Clements regarding death by aspiration were successfully impeached by other testimony.

(See, e. g.,

T. Dunn.) Nevertheless, deficiencies clearly exist in the food service program at LSS. Because of the lack of staff, residents are often fed too quickly and with not enough care.

69

Plaintiffs’ wit

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ness, staff member Carol Benoit,

70

described being placed in a situation in which she and another attendant were required to feed dinner to approximately twenty residents, four of whom had to be fed by hand. Their attention was necessarily diverted from several of the residents; as a result, a few of the residents sustained injuries, including choking on food. T. Benoit. Another witness testified that because of lack of manpower residents were being spoonfed more rapidly than they could swallow. T. Clements. The most significant problem in feeding appears to derive from the lack of adaptive equipment,

71

which results in poor positioning and body alignment, creating a risk of aspiration. Many residents are fed in a supine position, which exacerbates their problems with swallowing and coughing. T. Clements, Grossman. Finally, it was undisputed that as in many institutions the food at LSS is unattractive and cold, and is often served in barren environments.

3. Medical Care

Laconia State School has no full-time medical director and at the time of the trial had no on-site physicians. However, the School contracts with the Laconia Clinic in Laconia, New Hampshire, for the provision of medical services, and Dr. Craig Markert from that Clinic, who is Board-certified in internal medicine, is the acting medical director. The School also has its own “Administrator of health services”, Mr. Dalback, who has no medical training. Three medical specialists

72

and three pediatricians are on rotating shifts at LSS; one internist and one physician conduct daily rounds in the out-patient department (which is closed on weekends) and in the infirmary, and there is a 24-hour on-call service. Nurse practitioners are employed to extend physician services, a system which seems to be appropriate

73

but which suffers because of a lack of staff. Although there are four positions for nurse practitioners, only two are filled. These two have divided their labors equally between ICF’s and non-ICF’s, and each covers one-half of the entire population (which amounts to approximately 275 residents per person). In addition, LSS maintains positions for thirty-two RN’s (registered nurses), of which eight are vacant; and for eleven LPN’s (licensed practical nurses), in which there is one vacancy.

74

Also providing medical services at LSS are two registered lab technicians, a dentist, a dental assistant, a hygienist, two regular pharmacists, a pharmacy assistant, and a pharmacist on call on weekends, arid approximately seven attendants. T. Lanahan.

The majority of the population at LSS need “little or no nursing intervention”; fifty-three residents need nursing intervention once per day or more, while twenty-nine have a medical condition which inhibits the client’s level of functioning in the activities of daily living.

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As for other disabilities, approximately ten percent of the residents need constant behavioral intervention

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for antisocial or destructive behaviors; seventeen percent have cerebral palsy, but for most not to the extent that it severely limits daily activities and functions; and twenty-nine percent either currently have or have recently had epileptic seizures, but again, for most these seizures are not so severe as to completely prevent the client’s ability to function.

See Action for Independence

3d Draft, Defendants’ Exhibit 139, at 80.

Two groups of residents are cared for in the infirmary:

76

(1) those needing acute medical supervision, and (2) those profoundly impaired persons with medical problems. T. Andrews.

77

Doctor Markert testified that given more staff and resources, the latter group would more appropriately be served in the residential wards. T. Markert.

Experts on both sides agreed that the provision of acute health care (i. e., treating fevers, sicknesses, etc.) at LSS is very adequate with the exception of a few specialties for which the School calls upon consultants; however, long-term health treatment, including developmental programs, suffers because of lack of staff. As mentioned above, an Individual Service Plan (ISP), the precursor of methodical long-range treatment, has been completed for only sixty-five percent of the residents. Although plaintiffs urged that a medical doctor must be a full-time member of any interdisciplinary team which meets to develop the ISP and to evaluate the resident’s progress thereunder, the Court was convinced by other testimony to the effect that full-time attendance by a physician would constitute an unwise use of scarce resources. T. Grossman, Melton. At present, nurse practitioners are called into team meetings at crucial stages. As in many other fields at LSS, an ISP in and of itself guarantees very little. Recommended corrective treatment such as PT, OT, and adaptive equip-' ment (wheelchairs, eyeglasses, hearing aids, etc.) is not always forthcoming, and although surgical intervention has been recommended for certain residents, the School has not followed through on same

78

In conclusion, although at LSS acute medical care for the retarded equals that in some of the best clinics and hospitals in New Hampshire, T. Andrews, Markert, LSS is lacking in some specialties such as ophthalmology, neurology, and developmental medicine.

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Most importantly, LSS lacks a medical director.

4. Drugs

As in many institutions, the administration of drugs constitutes a major part of the medical services, and as in many institutions, the method of prescribing and dispensing drugs has come under fire. Critics have concentrated their attack on psychotropic

80

(or so-called “mind controlling”) drugs, which they claim are utilized all too often as convenient restraints and punishments.

Approximately forty percent of the population at LSS receives psychotropic drugs. T. Lenahan, Sprague;

see also

Plaintiffs’ Exhibit 65,

81

Defendants’ Exhibit 75,

82

and

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U.S. Government Exhibit 3S.

83

However, this percentage is steadily decreasing due to a concerted effort on the part of the School. T. Mason.

LSS has lacked a methodical approach in the past toward the dispensation of psychotropic drugs. Dosages have been unnecessarily high, and there has been no comprehensive review of medication. T. Lenahan, Sprague. Untrained staff members have been charged with the duty of dispensing these drugs. Recently a major effort has been undertaken to reduce dosages of drugs at LSS by making more exact assessments of need; relating the use of drugs with other programs; distributing the drugs carefully by trained personnel; and monitoring the progress of residents on a consistent basis. To this end, medication is reviewed every twenty-five to thirty days by a nurse and an internist (unless there is a manifest problem, in which case the reviews are more frequent). There has been a fifty percent reduction in the total tonnage of dosage of drugs dispensed in the ICF wards. Drugs are dispensed daily in a “unit dosage” system, which means that each tablet has its own packaging with its own dosage level listed to avoid errors in distribution. (LSS has about a one-per-month error rate.) Any problems related to the administration of drugs are brought to the nurse practitioner's attention, who in turn decides whether it is necessary to go to a doctor. Only one percent of the population at LSS receives drugs on a “PRN”,

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or “as needed” basis, a method which gives the person in charge the discretionary authority to administer the requisite amount of drugs. A new policy at LSS dictates that a nurse practitioner screen all psychotropic “PRN’s”.

In conclusion, compared with other institutions, the dosages at LSS are presently not out of line. T. Sprague.

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However, as evidenced by its own reevaluations and corrective measures, many residents have been receiving excess dosages. Once again, the discrepancy between treatment of ICF’s and non-ICF’s is great. At the time of trial the effort to reduce the dosages had taken place only in the ICF’s. In addition, there was evidence that whereas drugs are dispenséd to ICF residents by nurses, in non-ICF units the charge attendants have this responsibility.

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T. Sprague;

see also

U.S. Government’s Exhibit 38. Finally, there was little showing of integration of psychotropic drugs with other ongoing programs, except perhaps the effort that would presumably be made by an interdisciplinary team when formulating an Individual Service Plan.

C. Restraints and Seclusion Rooms

In the past, restraints

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have been used somewhat indiscriminately at LSS with little accompanying documentation of the reasons therefor, T. Melton, Dornin, although it is apparent that at least one reason for their use has been as a control mechanism in the face of staff shortages. Seven different types of restraints are used at LSS: (1) tube restraints which lock elbows; (2) straight jackets; (3) mittens; (4) belt vest restraints to secure people in bed; (5) wheelchair belts; (6) wrist restraints, and (7) helmets. T. Dornin. Although re

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straints serve salutary purposes such as preventing self abusiveness (scratching, banging, etc.) and preventing abuse to others, reports show that residents have been placed in restraints for reasons which are not compelling or appropriate, sometimes for long stretches at a time. For example, because of the lack of adaptive equipment at LSS, residents have been belted into wheelchairs; others have been placed in straight jackets to prevent them from tearing their clothing. T. Dornin; U.S. Government’s Exhibit 20.

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Restraints have been used on many of the named plaintiffs, including Sandra Garrity, Nancy Haggerty, Debra Roman, and Richard Pond.

Currently LSS is attempting to diminish the use of restraints, and has promulgated a policy whereby staff requesting their use must telephone the central office and state the reasons for the request before receiving authorization. Even this new system occasionally lends itself to “rubberstamping”, and apparently there continue to be unauthorized uses at times.

Seclusion rooms

are rooms with an area of ten feet by twelve feet which contain no furnishings and which can be locked from the outside. “Time-out rooms”, of which there are four or five at LSS, are smaller but similar to seclusion rooms. Residents at LSS have been placed in these rooms in the past sometimes for the purpose of punishment and occasionally as part of a plan for behavior modification. Because the staff has occasionally abused this method, LSS has adopted a new policy regulating the use of seclusion rooms. They are used much less frequently now, and only after other methods have been attempted. The current official policy is that no resident is to be placed in a seclusion room without a written program promulgated by an interdisciplinary service team. At present only four residents use seclusion rooms with any regularity, and only two are consistently placed in restraints.

D. Abuse of Residents; Accidents and Injuries

Reports and allegations of staff abuse of residents have recently increased at LSS, but according to Superintendent Melton this reflects heightened awareness of residents’ rights and the consequent willingness to report infractions rather than an increased incidence of abuse. Nevertheless, the types and frequency of abuse are disturbing.

The Court heard testimony from Government witness Christopher Laird Dornin, a second-shift supervisor at LSS whose job is to investigate alleged abuses at LSS and to report accidents and injuries. During his tenure of four years at the School, Dornin has investigated forty serious cases of abuse, of which thirty (although not all proven) are in his opinion bona fide. For example, in 1979 an employee abused three residents, hitting one in the stomach and kicking another for being wet with urine. He was fired. (T. Dornin.) One resident was found with a long abrasion from a belt tied to a stick; although the staff members were never proved guilty, they resigned. Another resident was discovered with a broken leg in the middle of the night, but there was a delay of twenty-four hours before medical help arrived, which Dornin attributed to lack of cooperation on the part of the staff. Two residents reported having had sexual relations with a staff member who had taken them home for the night. One employee was terminated for poor attendance; in cleaning out his personal effects, LSS officials discovered three hundred empty beer bottles and an abusive instrument. And a doctor was terminated from LSS because he had a practice of suturing injuries (especially facial) without anesthesia. T. Dornin.

89

Dornin estimated that only fifty percent of staff abuses result in discipline because of the difficulty of persuading people to

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report their fellow staff members. But, as mentioned above, the trend has been toward increased reporting.

Accidents and Injuries

Because of a shortage of staff, Melton testified that “[t]here are far too many accidents for which no known cause can be cited”. T. Melton. Reported accidents and injuries are documented in Government Exhibit 20, a twenty-four-hour log kept by Supervisor Dornin and his counterparts on other shifts. A typical entry in the log reflects the following, except that causes are sometimes listed with more frequency:

Monday, October 1, 1979. 12:30 p. m., Keyes: Ruth H. bitten on arm by Nancy K.; Bruce G. found with 3 large bruises on left eye.

October 2, 6:30 a. m., Baker: John D. found with several scratches on lower back, cause unknown. 9:30 á. m., King: Deborah B. found bruised on left hip, cause unknown. 4:20, Joseph D., bruise 3" on hip, cold compress. 8:00 p. m., Keyes: resident found with bruise on left corner of eye.

Throughout the trial the Court also heard testimony regarding accidents and injuries to the named plaintiffs.

Dornin expressed the opinion that there was a lack of systematic training of the staff to deal with aggressive residents at LSS, although he conceded that while training could prevent some of these mishaps, in many instances the injuries cannot be attributed to lack of diligence or training on the part of staff. As an example, he cited the accidental drowning of one resident, Richard B., in a pond outside Dube building, for which he attributed absolutely no staff neglect. Because the staff recognizes the importance of affording a certain degree of freedom to residents', many of the ambulatory residents are allowed to roam around the grounds.

In conclusion, it is clear that among any large population, accidents and injuries are inevitable.

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The Court finds, however, that this problem at LSS is exacerbated by the lack of supervision of residents because of staff shortages. In addition, one need not be trained in psychiatry to conclude that staff shortages lead to increased anxiety and frustration among employees which can ultimately lead to resident abuse.

E. Community Placements

Much of the testimony in this trial focused on various community programs for the mentally retarded throughout the country. To describe the myriad of programs nationwide herein would be unproductive; suffice to say that many of these placements accommodate people of all levels of retardation, providing them with residential and day programs which are in some cases far superior to institutional settings. New Hampshire too has joined the national trend of developing community placements for the mentally retarded, about which the Court heard extensive testimony.

New Hampshire maintains an array of residential community placements including group homes, foster homes, and semi-independent apartments, as well as day program components, in which several residents have been placed over the years. Every year an increased percentage of clients on the rolls of LSS are placed in these programs,

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and as elsewhere referenced the State’s present goal is eventually to deinstitutionalize all but a small residual population at LSS. (Defendants’ Exhibit 139,

Action for Independence,

proposes that no more than 155 residents remain at LSS as of 1987. T. Melton.) At the time of trial, of 686 on the rolls of LSS, 564 were in residence and 122 were in community placements.

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Although defendants’ present official policy would exclude no resident from consideration for placement, history reflects that such was not always the case. For example, defendants’ “Act to Improve Services for the Mentally Retarded”, promulgated in 1978, stated that defendants had “identified approximately 320 Laconia State School residents (clients), that can be appropriately programmed in a less restrictive environment”, and another 280 who were “too fragile for community placement”. Defendants’ Exhibit 103, pp. 7, 9. Similarly, Dr. Gary Miller, Director of the Division of Mental Health, in 1979 instructed that lists should be made of those who could and could not be placed. Government’s Exhibit 91. T. Shumway.

At the present time the LSS clients in community placement fall predominantly into the ranges of mild and moderate retardation; rarely is a severely or profoundly retarded resident so placed. The State’s current policy is to include people of all levels of mental retardation in their future deinstitutionalization plans so that only the most medically fragile will remain at LSS. This latter population will itself be transient as new and better alternatives are devised.

Although experts on both sides endorsed the general concept of community placement for the retarded given the appropriate resources, there was not unanimous agreement that community placement (versus an institution) is the least restrictive alternative or the safest environment for all residents. Defendants’ experts, for example, pointed to the limited recreational facilities in some towns, the absence of public transportation, the lack of peer interaction, the lack of around-the-clock medical help, and the difficulties faced by those mentally retarded people who often encounter hostile reactions from the members of the community which they have joined.

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Although these reservations on the part of defendants’ experts have validity, the Court recognizes if assimilation of the mentally retarded into the mainstream of society is the ultimate goal, there is no substitute for community placement. However, recognition of the value of such placement does not necessarily translate into a legal entitlement thereto. It is to the resolution of this key issue that we now turn our attention, commencing our analysis with the statutes hereinabove referenced in accordance with the mandate imposed upon federal courts.

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III. The Statutory Claims

A. The Developmental Disabilities Assistance and Bill of Rights Act of 1975

In late 1977 the Eastern District of Pennsylvania had before it for resolution a case similar in many respects to the instant litigation. At issue therein (following extensive discovery and a thirty-two-day trial) were the legal rights of the residents of Pennhurst State School and Hospital (“Pennhurst”), a state-operated facility for the care and treatment of the mentally retarded. Of the approximately 1200 residents at Pennhurst, one half had been admitted upon application of their parents or guardians and the remainder by virtue of court order.

In a thoughtful and compassionate opinion, the Court (Raymond J. Broderick, J.) held that the conditions of confinement at Pennhurst violated the rights of its residents under the Eighth and Fourteenth Amendments of the United States Constitu

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tion, state law,

94

and the Rehabilitation Act of 1973, 29 U.S.C. § 794 . The subsequent relief order required the eventual closing of Pennhurst in favor of community living arrangements for its displaced residents.

95

Halderman v. Pennhurst State School and Hospital,

446 F.Supp. 1295 (E.D.Pa.1978).

On appeal, the United States Court of Appeals for the Third Circuit substantially affirmed the orders of the District Court,

96

but eschewed the constitutional ground, choosing to rest its decision on a favorable construction of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6000 ,

et seq.

(“DD Act”).

97

Halderman v. Pennhurst State School and Hospital,

612 F.2d 84 (3d Cir. 1979) (en banc). Finding that the “bill of rights” provision of the DD Act, 42 U.S.C. § 6010 (1) and (2) granted mentally retarded persons a right to “appropriate treatment, services and habilitation”, in the setting that is least restrictive of personal liberty, the Court found that plaintiffs possessed an implied cause of action under the statute which permitted them to enforce such rights.

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With the state of the law interpreting the DD Act in the position hereinabove described, the parties plaintiff herein urged upon this Court at trial their right thereunder to habilitation in the least restrictive environment. The DD Act was passed in 1975 as an amendment to the Developmental Disabilities Services and Facilities Construction Act, 42 U.S.C. §§ 2661-2666 and 2670-2677c, whereunder funds were provided for the construction of health care facilities and the development of community-based programs was encouraged. The “bill of rights” section of the DD Act, 42 U.S.C. § 6010 ,

99

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had been construed, prior to the decision of the Third Circuit, to vest in retarded persons statutory rights enforceable by private factions in federal courts.

Naughton v. Bevilacqua,

458 F.Supp. 610 (D.R.I.1978),

aff’d

605 F.2d 586 (1st Cir. 1979).

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In a pretrial Opinion and Order (February 22, 1980, pp. 2-8) this Court, in reliance on the Opinions in

Halderman v. Pennhurst, supra,

and

Naughton v. Bevilacqua, supra,

denied the defendants’ motions to dismiss such of the plaintiffs’ claims as were grounded upon the DD Act.

On April 20, 1981, the United States Supreme Court, holding that 42 U.S.C. § 6010 created no substantive rights for the developmentally disabled, reversed and remanded to the Third Circuit for further proceedings.

Pennhurst State School and Hospital v. Halderman,

- U.S. -, 101 S.Ct. 1531 , 67 L.Ed.2d 694 (1981). Concluding that the general structure of the DD Act proved it to be similar to other federal-state grant programs in which “the States are given the choice of complying with the conditions set forth in the Act or foregoing the benefits of federal funding”,

id.

at -, 101 S.Ct. at 1536 (citations omitted), the Court appointed to a “variety of conditions” outlined in other sections of the Act with which states must comply as a condition of the continuing receipt of federal largesse.

101

Id.

at-, 101 S.Ct. at 1537-38 .

Further noting that § 6010 sharply contrasted with those sections of the DD Act which contained such conditions precedent,

id.

at -, 101 S.Ct. at 1538 , the Court focused attention on the constitutional source of statutory enactment, ruling that the DD Act had been enacted pursuant to the Spending Power

102

rather than § 5 of the Fourteenth Amendment.

103

Id.

at -, 101 S.Ct. at 1538-40 .

104

Finding it ambiguous, both as to specific language and legislative history,

id.

at-, 101 S.Ct. at 1540 , the Court went on to state that § 6010 “in no way suggests that the grant of federal funds is ‘conditioned’ on a state fund

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ing the rights described therein.”

Id.

at -, 101 S.Ct. at 1542 . In summation of its principal holding to the effect that § 6010 created no substantive right, the Court concluded

Congress in recent years has enacted several laws designed to improve the way in which this Nation treats the mentally retarded. The Developmentally Disabled Assistance and Bill of Rights Act is one such law. It establishes a national policy to provide better care and treatment to the retarded and creates funding incentives to induce the States to do so. But the Act does no more than that. We • would be attributing far too much to Congress if we held that it required the States, at their own expense, to provide certain kinds of treatment.

Id.

at -, 101 S.Ct. at 1547 (footnote omitted).

Having held that 42 U.S.C. § 6010 created no substantive rights, the Supreme Court found it unnecessary to reach the question of whether a private cause of action existed thereunder or under 42 U.S.C. § 1983

105

to enforce those rights.

Id.

at-, n.21, 101 S.Ct. at 1545, n.21 . However, the Court outlined certain issues to be addressed on remand, and, as this Court must resolve such issues in the context of the instant litigation, it now directs its attention thereto. Initially, these issues arise from the claim that sections of the DD Act other than 6010 may be enforced by suit.

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A brief overview of those sections must therefore preface further analysis.

Section 6005 conditions the provision of assistance under the DD Act on the taking of affirmative action by each recipient of such assistance to hire and promote qualified handicapped individuals. Under § 6009, each state must, again as a condition of assistance, submit to the Secretary of Health and Human Services a time-phased plan for the implementation of a comprehensive system for the evaluation of services provided the developmentally disabled. After October 1, 1982, in conjunction with any such plan, the states must also provide “assurances satisfactory to the Secretary that the State is using such a system”.

Id.

Detailed habilitation plans are required by § 6011 (as a condition of funding), and such plans are to be annually reviewed.

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Section 6012 conditions aid on a state’s promise to “have in effect a system to protect and advocate the rights of persons with developmental disabilities”. § 6012(aXl). Such advocacy system must

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“have the authority to pursue legal, administrative, and other appropriate remedies to ensure the protection of the rights of such persons who are receiving treatment, services, or habilitation within the State”. § 6012(aX2)(A). Additionally, the advocacy system must “not be administered by the State Planning Council”, § 6012(a)(2)(B), and it must “be independent of any agency which provides treatment, services, or habilitation to persons with developmental disabilities”. § 6012(a)(2)(C).

States receiving assistance under the DD Act must establish a “State Planning Council”, at least half of whose members should either be developmentally disabled persons or be their parents, relatives, or guardians. 42 U.S.C. § 6067 . The functions of such council include joint development with state agencies of the state plan required by the pertinent sections of the DD Act (§§ 6061,

et seq.)

and the monitoring of the plan’s implementation. § 6067(b)(1), (2).

The hereinabove described sections of the DD Act derive their substance from the funding provisions set forth in §§ 6061 through 6063. The authorization of specific amounts of appropriation is detailed in § 6061, and the formula for allocation to the various states is detailed in § 6062. A condition precedent to allotment of any funds under the DD Act is the submission by each participating state to the Secretary of Health and Human Services of a detailed plan setting out specific objectives to be achieved thereunder. § 6063(b)(2)(A). Services furnished under such plan must be consistent with standards prescribed by the Secretary, § 6063(b)(5)(A)(i), and be provided in an individual manner consistent with § 6011. § 6063(b)(5)(B). The plan must also be supported by assurances that any program receiving assistance is protecting the human rights of the disabled consistent with §6010. § 6063(b)(5)(C).

108

The Secretary may disapprove a state plan, § 6063(c), and, should a state fail to satisfy the requirements of § 6063, the Secretary may terminate or reduce its federal grant. § 6065. Judicial review for states dissatisfied with the actions of the Secretary is vested in the United States Courts of Appeal. § 6068.

1. Does the DD Act Create a Private Cause of Action?

The Supreme Court in its

Pennhurst

decision focused on the provisions of §§ 6011 and 6063(b)(5)(C) in reviewing the issue of whether the plaintiffs could claim a private cause of action under the DD Act. Recognizing that the recent decision of

Maine v. Thiboutot,

448 U.S. 1 , 100 S.Ct. 2502 , 65 L.Ed.2d 555 (1980), held that 42 U.S.C. § 1983 provides a cause of action for state deprivations of any rights secured by all laws of the United States, the Court outlined various factors which it felt bore upon the application of

Thiboutot

to the case before it. The first of these is whether the interest of the

Pennhurst

plaintiffs in claiming that the state plan had not provided adequate “assurances” to the Secretary constituted a “right secured” by the laws of the United States within the meaning of 42 U.S.C. § 1983 .

Pennhurst State School and Hospital v. Halderman,

supra,-U.S. at -, 101 S.Ct. at 1545 . Turning to the suggestion in Justice Powell’s dissent in

Thiboutot

that § 1983 would not be available where the “governing statute provides an exclusive remedy for violations of the Act”, 448 U.S. at 22, n.11 , 100 S.Ct. at 2513 , n.ll, the

Pennhurst

Court expressed doubt whether the express remedy contained in the DD Act was exclusive. Id.-U.S. at -, 101 S.Ct. at 1545 . Turning, then, to §§ 6011 and 6063(b)(5)(C) of the statute, the Court stated that these referred only to “programs assisted” under the DD Act, and because Pennhurst received no federal funds under the Act, it was arguably not a “program assisted.”

Id.

at-, 101 S.Ct. at 1545 . Accordingly, the Court stated that there may be no obligation on the state pursuant to § 6011 to assure the Secretary that each Pennhurst resident had a habilita

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tion plan or to assure the Secretary under § 6063(b)(5)(C) that Pennhurst residents were being provided services consistent with § 6010.

Id.

at-, 101 S.Ct. at 1545 .

Turning to the question of remedy, the Court then suggested that relief might well be limited to enjoining the Federal Government from providing funds to Pennsylvania pursuant to the doctrine outlined in

Rosado v. Wyman,

397 U.S. 397, 420-21 , 90 S.Ct. 1207, 1221-22 , 25 L.Ed.2d 442 (1970).

Id.

- U.S. at -, 101 S.Ct. at 1545-46 . Pointing out that there had been instances of departure from the

Rosado

rule, but stressing that in no cases had it required the provision of funds to plaintiffs or requirements that a state “take on such open ended and potentially burdensome obligations as providing ‘appropriate’ treatment in the ‘least restrictive’ environment”, the Court remanded these issues under the DD Act to the Court of Appeals.

Id.

at-■, 101 S.Ct. at 1546 .

More recently, the Supreme Court has stated that its

Pennhurst

decision constituted the recognition of two exceptions to the application of § 1983 to statutory violations. In

Middlesex County Sewerage Authority, et al v. National Sea Clammers Association, et

al,-U.S.-,-, 101 S.Ct. 2615, 2625-26 , 69 L.Ed.2d 435 (1981), the Court stated these exceptions to be (1) whether Congress had foreclosed private enforcement of the statute at issue in the enactment itself, and (2) whether the statute at issue was the kind that created enforceable “rights” under 42 U.S.C. § 1983 . The Court also, however, reviewed its well established and often recurring factors bearing on the issue of whether Congress intended to create a private right of action under a federal statute without saying so explicitly.

Id.

at -, 101 S.Ct. at 2621-22. As we deem it clear that

Maine v. Thiboutot, supra,

did not overrule the requirement that we consider those factors as outlined in the seminal decision of

Cort v. Ash,

422 U.S. 66 , 95 S.Ct. 2080 , 45 L.Ed.2d 26 (1975),

109

we now direct our attention to such factors.

110

In our consideration of the first factor cited in

Cort v. Ash,

422 U.S. 66, 78 , 95 S.Ct. 2080, 2088 , 45 L.Ed.2d 26 (1975),

i. e.,

whether plaintiff is “ ‘one of the class for whose

especial

benefit the statute was enacted,’ . . . —that is, does the statute create a federal right in favor of the plaintiff?” (citations omitted) (emphasis in original), we note the statement of the Supreme Court in its

Pennhurst

decision that the “overall purpose” of the DD Act, as amended in 1978, is:

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To assist

the states to ensure that persons with developmental disabilities receive the care, treatment, and other services necessary to enable them to achieve their maximum potential through a system which coordinates, monitors, and plans and evaluates those services and which ensures the protection of the legal and human rights of persons with developmental disabilities.

42 U.S.C. § 6000 (b)(1), as quoted in

Pennhurst State School and Hospital v. Halderman,

- U.S. at-, 101 S.Ct. at 1537 (1981) (emphasis supplied by the Court).

The Court also cited the specific purposes of the Act as outlined in § 6000(b)(2)

111

and stressed that the DD Act was a federal-state grant program designed to financially assist states in planning for and creating comprehensive services for the developmentally disabled.

Id.

at -, 101 S.Ct. at 1536. Unlike § 504 of the Rehabilitation Act, 29 U.S.C. § 794 (hereinafter discussed) and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 , which are modeled on Title VI of the Civil Rights Act of 1964, and which also regulate the states’ use of federal funds, the DD Act does not speak in terms of personal rights but focuses rather on the obligations of the recipient states. But even though the states are the primary and direct beneficiaries of federal funds under the Act, it is clear that developmentally disabled persons derive benefits from the statute; and the Court therefore concludes that plaintiffs are among “the class for whose especial benefit the statute was enacted”.

112

However, the right enjoyed by plaintiffs is a limited one, which does not even come into existence unless and until the state decides to accept funds from the federal government. At the point of such acceptance, it can be implied from the Act that a developmentally disabled person has a limited right to assure that the Secretary of Health and Human Services performs his statutory duty in enforcing the Act. By way of example, pursuant to 42 U.S.C. § 6065 , plaintiffs have the right to assure that the Secretary will withhold funds from the state if the Secretary finds that the state has:

(1) failed to comply substantially with any of the provisions required by section 6063 to be included in the State plan; or

(2) failed to comply substantially with any regulations of the Secretary which are applicable to this subchapter.

While the foregoing analysis of the nature of the rights conferred on these plaintiffs under the DD Act may appear to confuse the question of (1) the rights created by the statute with (2) the remedies available thereunder,

113

it is impossible to answer

*202

the first question without taking into account the second. As outlined in our subsequent discussion of the question whether the DD Act provides an “exclusive remedy”, it would clearly be a distortion of the statute to describe such rights as the instant plaintiffs possess under the DD Act without the above built-in limitation.

2. Does the DD Act Provide an Exclusive Remedy for Any Violations of Its Provisions

?

As we have previously discussed, the DD Act, similar to other statutes which create federal-state grant programs, contains a preliminary statement of purpose (§ 6000) and Congressional goals (here, the “bill of rights” contained in § 6010), but the bulk of the Act mandates a list of conditions with which the states must comply as a basis for the receipt of funding. The statute also sets forth in detail a system of enforcement by the agency (Health and Human Services) which administers the Act. The keystone of the funding scheme in keeping with the goal of comprehensive planning is the state plan approved by the Secretary. Section 6063(a) states that: “Any State desiring to take advantage of this subchapter must have a State plan submitted to and approved by the Secretary under this section.”

The Secretary is charged with the responsibility of monitoring the implementation of the numerous elements of the state plan, and if there is a failure “to comply substantially” with same, or if there is a failure of the state “to comply substantially” with any applicable regulations promulgated thereunder, the Secretary “shall notify such State Council and agency or agencies that further payments will not be made to the State” pursuant to § 6062, “or shall limit further payment under section 6062” to such state to activities in which there is no such failure. 42 U.S.C. § 6065 . Thus, to the extent that the Secretary has full power to decide when the state has complied or failed to comply substantially with its state plan or the regulations of his Department, the Secretary has been vested with considerable discretion under the DD Act.

The delegation of such discretion to an administrative' agency by Congress is a typical — and this Court believes sensible — arrangement under a complex federal-state funding scheme, of which the DD Act is a prime example. This permits the administrative agencies the flexibility to implement an ongoing review process and allows the Secretary in effect to engage in continuing dialogue with the states, issuing directives to them and listening to their complaints regarding the feasibility or lack thereof of any of the agency regulations. Additionally, the Secretary may urge the states to amend procedures where necessary and can compel compliance with his mandates through the withholding of all or part of the federal funding.

It should be noted, however, that the Secretary’s power is not unlimited. Although possessed of the discretion to decide whether or not the state has substantially complied with the statute, once having reached the decision that the state has failed to comply, the Secretary “shall make no further payment to the State under section 6062” or shall limit further payment under section 6062 to “activities in which there is no such failure”. § 6065. It is here that the limited right of the plaintiffs under the DD Act which we have above discussed, /. e., the right of plaintiffs to assure that the Secretary performs his mandatory duties under the statute, comes into play. To that point, the Act contemplates that the Secretary shall exercise wide discretion in order to assure flexibility, but thereafter, the language is clear and unmistakable: The Secretary

must

perform his statutory duties.

Accordingly, the Court finds and rules that pursuant to the DD Act the plaintiffs herein have an implied private right of action against the Secretary of Health and

*203

Human Services for the purpose of compelling him to perform his mandatory statutory duties. The implication of this limited private right of action is consistent with the DD Act and furthers its purposes, whereas permitting action against the state or its employees pursuant to 42 U.S.C. § 1983 would serve only to undermine the carefully formulated regulatory scheme created under this federal-state cooperative program. Additionally, policy reasons abound as to why the Secretary and not the state or its employees should be made to answer under the DD Act.

114

In the case at hand, the Secretary has continued to place his imprimatur on the State of New Hampshire’s state plan required by the Act, and has apparently determined that New Hampshire substan-tially complies with the Act, for there is no indication that the Secretary has ever withheld — or threatened to withhold — funds from the State. It would be anomalous indeed for this Court to enjoin the State of New Hampshire to comply with a federal-state grant program administered by the Secretary when the Secretary himself has already deemed — either explicitly or implicitly by approval of the state plan and the forwarding of funds to the State — that the State is in compliance. In the event that the Secretary has failed to comply with the statutory duties, then the Secretary should be made to defend his action (or inaction) in court.

We are not unaware of the political unsavoriness of exercising the sanctions provided for in the statute. However, this Court refuses to save the Secretary from the “pain of decisionmaking” by allowing him to shift the battle to federal court and to have it waged against the states in a § 1983 action. Without the Secretary as a party the Court is unable to extract vital information from the party charged with enforcing the program, and will therefore be hampered in its efforts to develop an adequate record on which to base its decision. Significantly, the more a Court exercises the power entrusted to administrative agencies, “the more we encourage the responsible public officials to default in their obligations.”

Robinson v. Pratt,

497 F.Supp. 116, 121 (D.Mass.1980).

There is much pressure on our courts to find a remedy for every wrong, to fill vacuums in political and executive leadership. The temptation to intervene is strong. To do so, however, is only to encourage further abdication.

Id.

at 120 .

115

Additionally, this Court does not believe that its decision precluding a private right of action against the State under § 1983 is contrary to the Supreme Court’s holding in

Rosado v. Wyman,

397 U.S. 397 , 90 S.Ct.

*204

1207, 25 L.Ed.2d 442 (1970), that “[i]t is . . . peculiarly part of the duty of this tribunal, no less in the welfare field than in other areas of the law, to resolve disputes as to whether federal funds allocated to the State are being expended in consonance with the conditions that Congress has attached to their use”.

Id.

at 4221-23, 90 S.Ct. at 1222-23 , as cited in

Pennhurst State School and Hospital v. Halderman, supra,

-U.S.-, 101 S.Ct. at 1558 (White, J., dissenting).

In

Rosado ,

plaintiffs sued the Commissioner of Social Services of the State of New York, challenging a state statute which they claimed was inconsistent with the federal Social Security Act.

116

Aside from its inconsistency with the regulatory scheme provided for under the Act, the New York statute was attacked as violative of the Equal Protection Clause. The Supreme Court held that New York’s statute was incompatible with § 402(a)(23) of the Social Security Act and that petitioners were entitled to an injunction by the district court against the payment of further federal monies should the State not develop a conforming plan within a reasonable time.

Rosado, supra,

397 U.S. at 420 , 90 S.Ct. at 1222 . However, recognizing what a massive undertaking it would be for New York to comply with the federal statute, the Supreme Court remanded the case to the district court to allow New York the option of either complying by a certain date or declining to accept funds altogether.

The instant challenge under the DD Act is distinguishable from that under the Social Security Act in

Rosado

for two major reasons. First, unlike the DD Act, the Social Security Act is an entitlement statute. Federal money is funneled through the states to individuals who meet the specific federal requirements and qualifications enumerated under the Act. Under the DD Act sums are allotted to the states based on their populations, financial need, and the extent of need for services and facilities for persons with developmental disabilities,

see

42 U.S.C. § 6062 (Supp.1981), and the states are allowed much discretion in deciding how to apply these funds.

117

Second, in

Rosado

plaintiffs’ attack against the state focused on a specific state statute which they claimed was inconsistent with the federal statute. In the instant case against officials of the State of New Hampshire, plaintiffs cite no state statute or regulation which conflicts with the DD Act, but merely allege

generally

that the State is not complying with conditions under the Act. The judicial task of resolving whether a particular state statute is at loggerheads with a federal statute is far more manageable than reviewing whether a state is in “substantial” compliance with a federal-state cooperative program, the enforcement of which is entrusted to the Secretary. The very conditions said to be violated by the State of New Hampshire are those which the Secretary has deemed that the State has fulfilled. We note the dissent’s warning in

Rosado v. Wyman, supra,

about the problems of courts becoming entangled in federal-state regulatory schemes.

I regret that I cannot join an opinion which fails to give due consideration to the unmistakable intent of the Social Security Act to give HEW primary jurisdiction over these highly technical and difficult welfare questions, which affirms what is to me a clear abuse of discretion by the District Court, and which plunges this Court and other federal courts into an ever-increasing and unnecessary involvement in the administration of the Nation’s categorical assistance programs administered by the States.

Rosado v. Wyman,

397 U.S. 397, 431 , 90 S.Ct. 1207, 1227 , 25 L.Ed.2d 442 (1970) (Black, J., dissenting) (footnote omitted).

*205

Because of the nature of the statute, the prudential limitations described above weigh even more heavily against court intervention in the administration of the DD Act than the Social Security Act. As 42 U.S.C. § 1983 is not available where the “governing statute provides an exclusive remedy for violations of the Act”,

Pennhurst State School and Hospital v. Halderman, supra,

- U.S. -, 101 S.Ct. at 1545 , 67 L.Ed.2d 694 ,

citing Maine v. Thiboutot,

448 U.S. at 22, n.11 , 100 S.Ct. at 2513 (1980) (Powell, J., dissenting), and as review of the enforcement mechanisms incorporated into the DD Act reveals that the remedies therein provided are exclusive, we conclude that plaintiffs herein are precluded from proceeding with a § 1983 suit against the defendants herein named. Inasmuch as the Secretary of Health and Human Services, against whom the Court finds and rules such limited right of enforcement exists, is not before the Court and could not be sued pursuant to § 1983, it is accordingly ruled that within the context of the instant litigation plaintiffs are entitled to no relief under the DD Act. Having so ruled, it becomes unnecessary for us to address the question of whether Laconia State School is a “program assisted” under the statute.

118

B. The Non-Discrimination Section (§ 504) of the Rehabilitation Act of 1973, 29 U.S.C. § 794

Recognizing the parallels between the discrimination suffered by the handicapped and other minority groups, manifested particularly through their segregation from the rest of society,

119

members of Congress sought to combat the problem through a remedy which had proven successful in the past, civil rights legislation. Introduced in the House on December 9, 1971, and in the Senate on January 20, 1972, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (hereinafter “§ 504”) was framed initially as an amendment to the Civil Rights Act of 1964. Although it was ultimately adopted as part of a separate Act, its language is patterned after other civil rights legislation, including Title VI of the Civil Rights Act of 1964,

120

42 U.S.C. § 2000d, and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 .

121

The statutory mandate of § 504 is found in one deceptively simple sentence:

No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .

29 U.S.C. § 794 (1980 Supp.).

Unfortunately Congress apparently relied on the assumption that § 504 would be enforced as had previous civil rights legislation, and therefore set forth no language in the statute itself requiring rule making. On April 28, 1976, President Ford ordered the then Department of Health, Education and Welfare (now Health and Human Services; “HHS”) to “establish standards for determining who are handicapped individuals and guidelines for determining what are discriminatory practices within the meaning of § 504”.

122

The President’s Executive Order charged HHS with coordinating and implementing § 504, and required other fed

*206

eral agencies to issue § 504 regulations consistent with HHS standards. However, it was not until May 4, 1977, and then only pursuant to a federal district court order that such regulations issue without “further unreasonable delay”,

123

that such regulations were finally promulgated.

124

While bureaucratic lethargy may have contributed to delay, another obvious factor accounted for the failure of HHS to expedite promulgation of the § 504 regulations. Contrary to the assumption of Congress, the Title VI and Title IX models were not automatically adaptable to the problem of discrimination against the handicapped, but involved a very different analytical undertaking. Indeed, attempting to fit the problem of discrimination against the handicapped into the model remedy for race discrimination is akin to fitting a square peg into a round hole, as revealed by the regulations’ numerous exceptions and exemptions to the sweeping non-discrimination statute. We turn to a brief discussion of the two major elements contributing to the analytical divergence between race discrimination and discrimination against the handicapped.

First, unlike classifications based on race, there are no readily apparent divisions among the handicapped. Rather, mental and physical handicaps cover a continuum, from color-blindness or forgetfulness on the one hand to total spasticity or profound mental retardation on the other. In relation to other human beings, we are all handicapped to a certain degree, however insignificant or debilitating that handicap may be.

Most citizens would be handicapped in playing baseball as compared to Carl Yastrzemski, in singing as compared to Beverly Sills, in abstract thinking as compared to Albert Einstein, and in the development of a sense of humor as compared to Woody Allen. Human talent takes many forms, and within each talent is a continuum of achievement. While one individual might be on the high end of the scale of achievement in one area, that same individual might rank very low in another area. Woody Allen will probably never win the Triple Crown, and Carl Yastrzemski is not likely to perform “Aida”. In sum, the identification of various gradations of handicap is not an easy task, especially if such is attempted in a vacuum. Assessing the capability of various individuals to perform without knowledge of the particular task under consideration and its various requirements, or without an individualized determination of their strengths and weaknesses would appear to be impossible. In fact, it was partly in recognition of this fact that Congress passed § 504 — to encourage treatment of the handicapped on the basis of individualized assessment of ability; ironically, however, the legislation has had the effect of forcing federal courts (at least in class actions of the type herein) to draw broad and imprecise classifications

125

of handicaps,

i.

e., non-ambulatory, profoundly retarded, etc., for the purpose of testing legal violations.

Even if it were possible to discern clear-cut classifications of handicaps, there is a second reason why the racial discrimination model falters in this context. Whereas the American system of justice is “colorblind”, operating on the assumption that the question of one’s race is completely irrelevant to and separate from the question of one’s ability, handicap and ability are inextricably linked. Indeed,

certain

handicaps bear no relationship to

certain

tasks, but the very existence of a “handicap” implies a deficiency in some ability. While individuals can in many instances overcome their handicaps to perform equally with others, they are by definition at an initial disadvantage as to certain tasks. To ignore this reality and to apply the racial discrimination model remedy to this problem could cause one of two extreme results.

*207

First, as in the consideration of questions of race, courts could insist on blindness to all handicaps, allowing (or requiring) all individuals, regardless of their handicaps, to succeed or fail on the basis of their ability, with no special help from external sources. Such a system harkens back to Social Darwinism. On the other extreme, the law could require equality of results among all handicapped and nonhandicapped persons. This second scenario would call for an unlimited amount of resources for special aids and individualized training, and could produce such absurd results as blind bus drivers.

Obviously, both of these interpretations of § 504 are unworkable, and presumably neither was intended by Congress. In the regulations which provide the flesh to the bareboned § 504,

126

HHS has attempted to avoid these extremes by qualifying the statute with numerous exclusions and exemptions. The flat statutory ban has been modified, for example, to require recipients of federal funds to make “reasonable accommodation” to the handicapped

“unless

the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program”, 45 C.F.R. § 84.12 (emphasis added). Thus, unlike the rules prohibiting discrimination on the basis of race, from which we do not tolerate a deviation based on anything less than a “compelling state interest”, the rules under § 504 governing discrimination against the handicapped appear to be governed by a “reasonableness” standard. Federal courts are therefore entrusted with the unenviable task of divining that which is reasonable and unreasonable under this open-ended statute. Given a single plaintiff alleging discrimination in a single program, the task seems manageable. But the difficulty of the task increases exponentially when a court is confronted with class-wide allegations involving innumerable programs and activities.

In

Southeastern Community College v. Davis,

442 U.S. 397 , 99 S.Ct. 2361 , 60 L.Ed.2d 980 (1979), the plaintiff sought enrollment in a college nursing program but was rejected because the College, following interview and physical examination of plaintiff in consultation with the executive director of tbe state board of nursing, concluded that plaintiff had a serious hearing disability, which made it impossible to safely participate in the normal clinical training program or to safely care for patients. The College’s justification was accepted by the district court in plaintiff’s subsequent suit brought pursuant to § 504, but the Court of Appeals for the Fourth Circuit reversed on the ground that pursuant to the regulations promulgated under § 504, the plaintiff’s application was to be considered without regard to her hearing ability and that inquiry was to be confined to plaintiff’s academic and technical qualifications. In turn, the Supreme Court reversed, holding specifically that “an otherwise qualified” person within the statutory language of § 504 is “one who is able to meet all of a program’s requirements in spite of his handicap”.

Id.,

442 U.S. at 406 , 99 S.Ct. at 2367 .

127

The Court additionally held that the defendant College was not required to undertake affirmative action,

i. e.,

to adjust its programs to accommodate the plaintiff, particularly as “nothing less than close, individual attention by a nursing instructor would be sufficient to ensure patient safety if respondent took part in the clinical phase of the nursing program”,

id.,

442 U.S. at 409 , 99 S.Ct. at 2368 . The Court expressed awareness of the fact that “situations may arise where a refusal to modify an existing program might become unreasonable and discrimina

*208

tory”,

id.,

442 U.S. at 412-13 , 99 S.Ct. at 2370 , but made clear that as to the plaintiff Davis,

Moreover an interpretation of the regulations that required the extensive modifications necessary to include respondent in the nursing program would raise grave doubts about their validity. If these regulations were to require substantial adjustments in existing programs, beyond those necessary to eliminate discrimination against otherwise qualified individuals, they would do more than clarify the meaning of § 504. Instead, they would constitute an unauthorized extension of the obligations imposed by that statute.

Id.,

442 U.S. at 410 , 99 S.Ct. at 2369 .

On April 29,1981, the Supreme Court had before it for decision another case brought pursuant to the provisions of § 504. In

University of Texas v. Camenisch,

the Fifth Circuit, 616 F.2d 127 (1980), had upheld the granting of preliminary injunctive relief to the plaintiff, a deaf graduate student at Texas University, who had sought relief on the ground that the University had discriminatorily refused to pay for a sign-language interpreter for him. The preliminary injunction which had been awarded had required plaintiff to post a bond pending the outcome of the litigation. By the time the Court of Appeals had entered its rulings, the University had obeyed the injunction of the district court and had paid for plaintiff’s interpreter, and plaintiff had graduated. Holding that the Court of Appeals was correct in ruling that the case as a whole was not moot,

University of Texas v. Camenisch,

-U.S.-, 101 S.Ct. 1830, 1833 , 68 L.Ed.2d 175 (1981), the Court remanded to the district court for trial on the merits the remaining issue as to whether the University or the plaintiff should ultimately pay for the interpreter.

Id.

at -, 101 S.Ct. at 1835.

Although the Supreme Court was careful to rule that until the trial on the merits had been completed “it would be inappropriate for this Court to intimate any view on the merits of the lawsuit”,

id.

at-, 101 S.Ct. at 1835, the Chief Justice, concurring, saw fit to caution the trial court as to the scope of the relief to be afforded pursuant to § 504 and its regulations.

The Court’s opinion, of course, is not to be read as intimating that respondent has any likelihood of success on the merits of his claim. The Court holds no more than that, since there has been no trial, respondent has a right to present evidence in support of his claim. The trial court must, among other things, decide whether the federal regulations at issue, which go beyond the carefully worded

nondiscrimination

provision of § 504, exceed the powers of the Secretary under § 504. The Secretary has no authority to rewrite the statutory scheme by means of regulations.

Southeastern Community College v. Davis,

442 U.S. 397, 410 , 99 S.Ct. 2361, 2369 , 60 L.Ed.2d 980 (1979); see also

Pennhurst State Hospital v. Halderman,

- U.S. -, -, 101 S.Ct. 1531, 1540 , 67 L.Ed.2d 694 (1981) (“[I]f Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.”).

Id.

at-, 101 S.Ct. at 1835-36 (emphasis in original).

The regulations to which the Chief Justice makes reference are to be found in 45 C.F.R. § 84.44 (d), which provides as follows:

§ 84.44(d)(1): Auxiliary aids. (1) A recipient to which this subpart applies shall take such steps as are necessary to ensure that no handicapped student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination under the education program or activity operated by the recipient because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills.

§ 84.44(d)(2): Auxiliary aids

may

include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments, readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar services and actions.

Recipi

*209

ents need not provide attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature.

(Emphasis added.)

A fair reading of the emphasized portion of these regulations would seem to indicate that,

as to the relief sought

by litigants under § 504, there is, as very recent decisions have indicated, no statutory or regulatory mandate to states and their agencies to expend substantial funds or assume excessive administrative burdens for the purpose of removing barriers to the handicapped.

Dopico v. Goldschmidt,

50 U.S.L.W. 2061 -63 (S.D.N.Y. July 24, 1981);

American Public Transit Association

v.

Lewis,

49 U.S.L.W. 2756 (D.C.Cir. May 26, 1981).

128

It accordingly appears, and the Court finds and rules, that the concurring opinion of the Chief Justice in

Camenisch, supra,

and the decisions in

Dopico, supra,

and

American Public Transit Association, supra,

indicate that if the plaintiffs herein are entitled to relief by way of a private action pursuant to § 504 (a matter hereinafter discussed), such relief will be limited in scope to requiring the imposition of reasonable funding and administrative burdens upon the defendants herein. Indeed, the dissenters in the Third Circuit

Halderman decision

129

put the matter in what this Court believes to be the proper narrow focus.

One of the clear purposes of these grants was to offer states financial incentives to deinstitutionalize the mentally retarded.

See, e. g.,

118 Cong.Ree. 32,305 (Sept. 26, 1972) (remarks of Senator Javits);

id.

at 36,414 (Oct. 14, 1972) (remarks of Congressman Badillo).

... I do not believe that there should be read into section 504 ... a legislative mandate for deinstitutionalization. The carefully tailored system of programs and grants in the legislation as a whole belies any congressional intention to impose an absolute duty to provide the least restrictive treatment.

Halderman,

612 F.2d at 120-01 (dissenting opinion).

In short, while the Court is aware that the Fifth Circuit,

see Camenisch v. University of Texas, supra,

616 F.2d 127 (5th Cir. 1980);

Tatro v. State of Texas,

625 F.2d 557 (5th Cir. 1980) (catheterization constitutes “related service”, which must be provided elementary school child pursuant to § 504);

Baker v. Bell,

630 F.2d 1046 (5th Cir. 1980) (remanding to district court for determination whether mobility-disabled plaintiffs’ claim for alleged discrimination in mass transit advanced pursuant to § 504 was meritorious and holding that plaintiffs were entitled to adduce evidence in support of such claims and were not limited by previous administrative record), in well-reasoned opinions has advocated an expansive interpretation of § 504 and the regulations promulgated thereunder as to the relief to be afforded, the Court is persuaded that there are stringent limitations upon such relief for the reasons outlined in the authorities which it has hereinabove cited.

See also Upshur v. Love,

474 F.Supp. 332 (N.D.Cal. 1979);

Kentucky Association for Retarded Citizens v. Conn.,

510 F.Supp. 1233 (W.D. Ky.1980).

Turning to the § 504 claim in the instant case, same is set forth by plaintiffs in paragraph 83 of their Complaint of April 12, 1978, wherein it is alleged,

In denying plaintiffs and members of the classes they represent federally assist

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ed services and programs at LSS and in the community defendants have denied plaintiffs and members of the classes they represent their rights secured by the Rehabilitation Act of 1973.

Neither in their complaint nor throughout the forty days of trial in this case did plaintiffs provide the Court with a detailed list of (1) the programs or activities at LSS; (2) the admission criteria of those programs or activities; (3) the particular individuals who were being excluded from those programs and activities; (4) the capabilities of each individual in relation to the requirements of the program or activity from which he or she was excluded. Without such specific information it is difficult indeed for a court to determine and rule that as to a certain program or activity a certain individual is an “otherwise qualified individual” against whom § 504 proscribes discrimination. To state that this is a class action accounts for plaintiffs’ lack of individualized proof but does not eliminate the difficulty of applying a statute such as § 504, the very premise of which is the need for individualized treatment. It is anomalies such as this, no doubt, which provoked one writer to state:

We should consider very carefully the fact situations in the cases that are involved in class suits. Generally speaking, they represent an attempt to provide something in the nature of a mass production remedy. That offends the sense of individualization that is very important in the administration of justice. It is incongruent with the sense of scale that we are used to as lawyers. It calls on the courts to confront matters in a dimension of social consequence that perhaps we would rather not deal with. Thinking of “class” legal problems is a disconcerting intellectual, social and moral responsibility. It raises difficult questions about the role of judges and lawyers, not only in the narrow ethical sense, but in the larger sense of our professional office and function.

But if all that is true, it is also true that the occasions generating the class suits were themselves mass production events.

130

In its Order of February 22, 1980, this Court certified this action as a class action under Rule 23(b)(2), having determined that plaintiffs represented a class of people who shared common legal claims and whose joinder as individual plaintiffs in a lawsuit would be impracticable. Although recognizing at that time that any class action calling for institution-wide reform would present judicial management problems, the Court nevertheless determined that such an action would best serve the interests of justice. Today we reaffirm that principle, but candidly admit that in construing § 504 we necessarily paint with a broad brush, in the same way that plaintiffs were forced to present their proof at trial.

Three preliminary issues arise in considering the applicability of § 504 to plaintiffs. First, does § 504 provide a private right of action? Second, must plaintiffs exhaust their administrative remedies prior to filing suit in federal court? Third, even if plaintiffs have properly brought suit herein, are the programs under attack “recipients” of federal funds within the definition of § 504?

1. Private Right of Action

As we have hereinabove indicated,

see

n.127, the Supreme Court in its

Davis

decision did not reach the issue as to whether § 504 creates a private cause of action. Similarly, and for somewhat parallel reasons, the Court of Appeals for the First Circuit has not reached this issue.

Massachusetts Coalition of Citizens With Disabilities v. Civil Defense Agency, et al.,

649 F.2d 71 , 75, n.6 (1st Cir. 1981). However, support for such cause of action may be found in

Cannon v. University of Chicago,

441 U.S. 677, 706-08, n.41 , 99 S.Ct. 1946, 1962-63, n.41 , 60 L.Ed.2d 560 (1979), wherein the

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Court held that a private right of action should be implied under § 901(a) of Title IX of the Education Amendment of 1972, 20 U.S.C. § 1681 ,

et seq.

(hereinafter “Title IX”). We note that the language of § 504 parallels the language of Title IX,

131

and that the regulations of HHS promulgated pursuant to § 504 adopt Title VI enforcement procedures,

132

i. e.,

the same administrative mechanism used to enforce Title IX.

133

Analyzing the four factors of

Cort v. Ash,

422 U.S. 66 , 95 S.Ct. 2080 , 45 L.Ed.2d 26 (1975), the Court found that (1) Title IX confers a benefit on persons discriminated against on the basis of sex; (2) the history clearly indicates that Congress intended to create a private cause of action; (3) implication of a private remedy would not frustrate the underlying purposes of the legislative scheme but would assist in achieving said purpose; and (4) the subject matter involved is not of the type traditionally left to the states, but to the contrary, federal courts have been the “ ‘primary and powerful reliances’ in protecting citizens against such discrimination”, 441 U.S. at 708 , 99 S.Ct. at 1963. Since we find that the discussion in

Cannon

is applicable to § 504, we need not at this juncture engage in a lengthy review of the legislative history of § 504. We note, however, two aspects of the legislative history of this Act which lend credence to a finding of a private right of action.

First, as stated in a report

134

of the Senate Labor and Public Welfare Committee, § 504 was patterned after Title VI and Title IX, and less than a year prior to the writing of that Report the Supreme Court had held in

Lau v. Nichols,

414 U.S. 563, 566 , 94 S.Ct. 786, 788 , 39 L.Ed.2d 1 (1974), that Title VI created a private cause of action. The same Report stated that § 504 “would ensure administrative due process (right to hearing, right to review), provide for administrative consistency within the Federal government, as well as relative ease of implementation, and permit a judicial remedy through a private action.” 1974 U.S.Code Cong. & Ad.News, p. 6391. Second, in 1978 the Rehabilitation Act was amended to provide the following two provisions:

§ 794a Remedies and attorney fees.

(2) The remedies procedures and rights set forth in title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under § 794 of this title.

(b) In any action or proceeding to enforce or charge a violation of a provision of this subehapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.

29 U.S.C. § 794a(2), § 794a(b). That Congress specifically provided for private attorney’s fees under § 504 certainly indicates that it intended private litigation under the Act.

The courts that have squarely faced the issue as to whether § 504 provides a private right of action have held that the statute does afford such relief.

See Kling v. County of Los Angeles,

633 F.2d 876 (9th Cir. 1980)

135

;

Camenisch v. University of Texas,

616 F.2d 127 (5th Cir. 1980);

NAACP v. Medical Center, Inc.,

599 F.2d 1247 (3d Cir. 1979);

Davis v. Southeastern Community College,

574 F.2d 1158 (4th Cir. 1978),

rev’d on other grounds,

442 U.S. 397 , 99 S.Ct.

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2361, 60 L.Ed.2d 980 (1979);

Leary v. Crapsey,

566 F.2d 863 (2d Cir. 1977);

United Handicapped Federation v. Andre,

558 F.2d 413 (8th Cir. 1977);

Lloyd v. Regional Transportation Authority,

548 F.2d 1277 (7th Cir. 1977);

Upshur v. Love,

474 F.Supp. 332 (N.D.Cal.1979);

Boxall v. Sequoia Union High School District,

464 F.Supp. 1104 (N.D.Cal.1979). Believing that the better-reasoned rule is as set forth in this weight of authority, the Court rules that the plaintiffs herein possess a private right of action which may be enforced pursuant to § 504.

136

2. Exhaustion of Administrative Remedies

In relying, as has this Court, on

Cannon v. University of Chicago,

441 U.S. 677, 706-08, n.41 , 99 S.Ct. 1946, 1962-63, n.41 , 60 L.Ed.2d 560 , many of the courts which have upheld the existence of a private right of action have similarly held it unnecessary that plaintiffs exhaust their administrative remedies prior to maintenance of their respective litigation. Inasmuch as § 504 utilizes the same enforcement provisions as does Title IX,

137

the reasoning of the

Cannon

Court has equal application to the administrative enforcement procedures available under § 504.

Kling v. County of Los Angeles,

633 F.2d 876, 879 (9th Cir. 1980);

Camenisch v. University of Texas,

616 F.2d 127, 135 (5th Cir. 1980);

Upshur v. Love,

474 F.Supp. 332, 341, n.23 (N.D.Cal.1979);

Whitaker v. Board of Higher Education of City of New York,

461 F.Supp. 99, 108 (E.D.N.Y.1978). The Court accordingly here rules that plaintiffs need not have exhausted any administrative remedies pri- or to the filing of the instant litigation.

3. Are the programs under attack “recipients’' of federal funds and thus subject to § 504?

The provisions of § 504 apply only to “recipients of federal funds”. HHS regulations under § 504 define the term “recipient” as

any state or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance.

45 C.F.R. § 84.3 (f). Defining the scope of the “recipient” under attack in any given case is essential, especially in light of the fact that the ultimate remedy for a violation under § 504 is a cut-off of all federal funds flowing to the recipient. Thus, whether the violator is viewed as the entire State of New Hampshire (in which case the State could lose millions of dollars in federal aid) or merely a small program within one of the State’s schools (which might lose a negligible amount of federal aid) is a crucial distinction.

In the case at hand, plaintiffs have sued various officials of the State of New Hampshire for alleged violations at Laconia State School. Thus, in determining the “recipient” for § 504 purposes the Court could take an overly broad view, construing the attack as one against the entire State,

138

or an overly narrow view, finding the “recipients” to be only those specific programs or activities within Laconia State School itself which plaintiffs have proven are sustained by federal funds. Neither of these constructions is satisfactory. The first would expand this lawsuit far beyond its original

*213

purpose,

139

and the second would put an intolerable burden on plaintiffs to identify precisely which federal funds flow to which activities and programs within Laconia State School. The difficulty of tracing federal funds from their original source to their ultimate destination is best exemplified by defendants’ answer to plaintiffs' interrogatory requesting a breakdown of public and private funding for LSS, including state, federal, and local sources. Defendants responded as follows:

Laconia State School and Training Center is a general fund agency. As a result, all funds received for the School must pass through the General Fund of this state; the funding source of the school is therefore, without exception, the State of New Hampshire.

140

Although defendants’ subsequent answers elaborate on the various federal funds received by the State, they do not specify the various components within LSS which benefit from these funds.

The Court therefore finds that the “recipient” for purposes of this lawsuit is Laconia State School. Plaintiffs have established that LSS receives and benefits from a variety of federal funds, which subjects it to the dictates of § 504. Having discussed these preliminary questions, we now turn to a discussion of what those dictates are, and whether the recipient LSS is in violation of same.

4. Defendants’ violations under § 504

As in the

Halderman

case, the major thrust of plaintiff’s argument under § 504 is that institutions such as Laconia State School are discriminatory in that they unnecessarily separate mentally retarded individuals from the rest of society, and such segregation prohibits these individuals from partaking in federally funded programs available to other members of the community. This Court subscribes to Judge Seitz’s dissenting opinion in

Halderman,

612 F.2d 84, 119-21

(see

p. 95 of this Opinion). For the reasons therein stated, and in consideration of the Opinion of the Court in

Southeastern Community College

v.

Davis, supra,

the concurring opinion of the Chief Justice in

University of Texas v. Camenisch, supra,

and the previously-cited recent decisions in

American Public Transit Association v. Lewis,

and

Dopico v. Goldschmidt,

both

supra,

we agree that § 504 cannot be construed so broadly as to require deinstitutionalization. Nor do we think that the Department of Health and Human Services envisioned such an interpretation of § 504, as evidenced by the following provision in the regulations thereunder, which obviously contemplates the continued existence of institutions.

§ 84.54

Education of Institutionalized persons.

A recipient to which this subpart applies and that operates or supervises a program or activity for persons who are institutionalized because of handicap shall ensure that each qualified handicapped . person, as defined in § 84.3(k)(2), in its program or activity is provided an appropriate education, as defined in § 84.33(b). Nothing in this section shall be interpreted as altering in any way the obligations of recipients under Subpart D.

Therefore, insofar as plaintiffs request us to rule that defendants are required under § 504 to provide community placements to all mentally retarded citizens, this Court denies such relief. Defendants have, however, violated § 504 in several other aspects, which we now address.

As we have emphasized in our above discussion, § 504 is predicated upon the need for individualized treatment. For only by evaluating and treating people on an individual basis will we avoid discrimina

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tion based on generalized assumptions and prejudices. In recognition of this, the State has undertaken to provide residents at LSS with individual service plans (ISP’s) which assess the present abilities of a given individual, establish goals to be sought, and diagram a course of action to meet those goals. All parties agreed that the ISP provides the starting point for the education, training, and care (i. e., for the “habilitation”) of each individual, and it is this blueprint to which defendants refer in their efforts to maximize the potential of each individual. Notwithstanding the conceded importance of this document, at the time of trial defendants had completed ISP’s for only 366 of 564 residents, or 65% of the population at LSS. Moreover, Superintendent Melton admitted that even as to those who had ISP’s, a large percentage of the services planned for therein would never be provided due to lack of resources. Nor have defendants decided through an individualized process or a methodical system of any kind whatsoever which residents would receive ISP’s. Instead, defendants have drawn two seemingly arbitrary classifications: (1) those residents who reside in ICF buildings, and (2) those residents who reside in non-ICF buildings. Thus, the determination of whether a resident at LSS has an ISP depends largely upon the type of building in which that resident happens to be located. The 350 residents who have been evaluated and are being served by the Education and Training Department (E&T) at LSS are almost all from ICF buildings, T. Gamache; of the 350 residents who have been evaluated for occupational therapy services, almost all reside in ICF units, T. Talley, York;

141

only ICF residents have been evaluated for vocational programs; the effort to reduce dosages of drugs has occurred only in ICF units; and whereas in ICF units nurses dispense drugs, charge attendants have this responsibility in non-ICF’s.

This Court finds and rules that defendants have violated § 504 by according to certain individuals and by denying to others the benefit of the all-important ISP. Inasmuch as § 504 mandates individualized treatment wherein the ISP is the cornerstone, the relief the Court will afford plaintiffs herein pursuant to § 504 will require completion of an ISP for each resident of LSS.

The record reflects that in addition to the distinctions drawn between ICF and non-ICF residents at LSS, defendants have practiced another form of discrimination at LSS which is prohibited under § 504. Defendants have often made placements and disbursed services based not on an individual assessment of the abilities and potentials of each resident but on the generalized assumption that certain

groups

of people (e.

g.,

profoundly retarded or non-ambulatory people) are unable to benefit from certain activities and services. This kind of blanket discrimination against the handicapped, and especially against the most severely handicapped, is unfortunately firmly rooted in the history of our country, and more particularly in the history of LSS. A Laconia policy and procedure manual points out that in the past:

the prevailing concern was one of protection of society. Mental retardation was viewed primarily as a static condition. Not only were mentally retarded individuals generally considered incapable of profiting from instruction, they were often looked upon as dangerous and in need of confinement. For those individuals clearly not a danger to themselves or others, they were euphemistically characterized as ‘better off with their own kind’, and subsequently also deposited in institutions.

142

Although defendants have proved that for the most part attitudes as archaic as those described above disappeared long ago at LSS, defendants and their predecessors have nevertheless clung to certain discrimi

*215

natory practices until very recently, and even today vestiges of that discrimination remain.

Defendants admitted at trial that until very recently only the higher functioning residents had been served by the E&T Department,

143

presumably either on the assumption that the lower functioning residents could not benefit therefrom or that the net gain by the higher functioning residents would be greater. Thus, profoundly retarded residents were completely denied such services (including physical therapy) until about a year ago, when the E&T Department initiated its “ward stimulation” program, encompassing OT, PT, and medical services. This discrimination against the most severely mentally handicapped has not been confined merely to the academically oriented programs, but it extends to recreational programs as well. The testimony reflects that although some residents participate in frequent off-campus field trips to such places as MacDonald’s and bowling alleys, there are many residents — notably, the elderly and the most severely retarded — who are rarely if ever afforded this privilege.

144

Moreover, although LSS annually sends approximately one hundred residents to independent summer camps in New Hampshire, profoundly retarded and non-ambulatory residents are excluded from this group, due to the eligibility requirements imposed on LSS by the camp supervisors.

145

As a final example of the discrimination practiced at LSS against the severely retarded, we note that until recently only the mildly and moderately retarded were considered for comfnunity placement, although the evidence at trial convinced the Court that severely and profoundly retarded individuals are capable of benefitting from such placements.

146

Recently defendants’ presumptive policy against deinstitutionalization of severely and profoundly retarded residents has changed, as reflected in their document, Action for Independence, Defendants’ Exhibit 139, which reflects the State’s new non-exclusionary policy.

As reflected above, residents are denied access to programs on the basis of physical as well as mental handicaps. In the former category, the Court notes that until recently non-ambulatory residents were excluded from classes in Toll Building as well as field trips into town because the campus shuttle-bus could not accommodate those with physical handicaps. Even today non-ambulatory residents are precluded from living in the four “cottages”, acknowledged to be the best living accommodations at LSS, because the cottages lack wheelchair ramps and other amenities necessary to accommodate the physically handicapped. Thus, plaintiffs succeeded in proving at trial not only that certain categories of individuals such as the profoundly retarded have, as a group, been discriminated against in the past, but that certain assumptions about their inability to learn and develop are inaccurate. The Court viewed photographic slides and heard testimony about many severely and profoundly retarded individuals across the country who, although at one time were cast aside as “untrainable”, have through habilitation learned to care for themselves and in some instances to acquire vocations.

Section 504 and the HHS regulations thereunder prohibit discrimination based on generalized assumptions about the abilities (or disabilities) of handicapped people. The pertinent regulations ( 45 C.F.R. § 84.4 ,

et seq.)

provide:

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Subpart A

— General

Provisions

§ 84.4 Discrimination prohibited.

(a)

General.

No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives or benefits from Federal financial assistance.

(b)

Discriminatory actions prohibited.

(1) A recipient, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap:

(1) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

(iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective as that provided to others;

(iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;

(v) Aid or perpetuate discrimination against a qualified handicapped person by providing significant assistance to an agency, organization, or person that discriminates on the basis of handicap in providing any aid, benefit, or service to beneficiaries of the recipients program;

(vii) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service.

(2) For purposes of this part, aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons, but must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs.

Subpart C

— Program

Accessibility

§ 84.21 Discrimination prohibited.

No qualified handicapped person shall, because a recipient’s facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity to which this part applies.

§ 84.22 Existing facilities.

(a)

Program accessibility.

A recipient shall operate each program or activity to which this part applies so that the program or activity, when viewed in its entirety, is readily accessible to handicapped persons. This paragraph does not require a recipient to make each of its existing facilities or every part of a facility accessible to and usable by handicapped persons.

(b)

Methods.

A recipient may comply with the requirements of paragraph (a) of this section through such means as redesign of equipment, reassignment of classes or other services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of health, welfare, or other social services at alternate accessible sites, alteration of existing facilities and construction of new facilities in conformance with the requirements of § 84.23, or any methods that result in making its program or activity accessible to handicapped persons. A recipient is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with paragraph (a) of this section. In choosing among available methods for meeting the requirement of paragraph (a) of this section, a recipient shall give priority to those methods that offer programs and activities to handicapped persons- in the most integrated setting appropriate.

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Subpart F

— Health,

Welfare and Social Services

§ 84.52 Health, welfare and other social services.

(a)

General.

In providing health, welfare, or other social services or benefits, a recipient may not, on the basis of handicap:

(1) Deny a qualified handicapped person these benefits or services;

(2) Afford a qualified handicapped person an opportunity to receive benefits or services that is not equal to that offered nonhandicapped persons;

(3) Provide a qualified handicapped person with benefits or services that are not as effective (as defined in § 84.4(b)) as the benefits or services provided to others;

(4) Provide benefits or services in a manner that limits or has the effect of limiting the participation of qualified handicapped persons; or

(5) Provide different or separate benefits or services to handicapped persons except where necessary to provide qualified handicapped persons with benefits and services that are as effective as those provided to others.

(d)

Auxiliary aids.

(1) A recipient to which this subpart applies that employs fifteen or more persons shall provide appropriate auxiliary aids to persons with impaired sensory, manual, or speaking skills, where necessary to afford such persons an equal opportunity to benefit from the service in question.

Not only must recipients refrain from discriminating against handicapped individuals, they must also take an active role in assuring that persons with impairments are afforded “appropriate auxiliary aids”, 45 C.F.R. § 84.52 (d). Although the regulations specify that aids and services are not required to achieve “identical result[s]” among all people, they must nevertheless “afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs”. 45 C.F.R. § 84.4 (b)(2).

Our ruling that § 504 requires the formulation of ISP’s for each resident of LSS puts in focus that an individual assessment of each resident’s needs is essential. The pattern of excluding entire categories of retarded residents, such as the profoundly mentally retarded and the multiply physically handicapped, from entire categories of services and activities (e.

g.,

E&T, recreational trips off campus, etc.), without first accommodating them with appropriate auxiliary aids and without then making an

individualized

determination of their ability to participate, must cease. LSS need not make each of its existing facilities or every party of an existing facility accessible to or usable by all handicapped persons; nevertheless, all of the programs and activities at LSS,

when viewed in their entirety,

must be readily accessible to all handicapped persons, 45 C.F.R. § 84.22 (a). LSS cannot, therefore, absolutely deny certain services to individuals without providing them equivalent services. For example, profoundly retarded residents must be afforded E&T services to the same extent as mildly retarded residents, even though the teaching methods might be different.

While the regulations require recipients to provide equivalent services to all residents, they nevertheless permit recipients to comply with this mandate by redesigning programs so that physically handicapped residents can be served in existing accessible buildings; however, “in choosing among available methods ... a recipient shall give priority to those methods that offer programs and activities to handicapped persons in the most integrated setting appropriate”, 45 C.F.R. § 84.22 (b). We cite two examples wherein LSS would not meet the statutory mandate of making its programs accessible “in its entirety” simply by redesigning its programs.

First, it is conceivable that by reassigning classes and all other services to the residential building of a non-ambulatory person, that individual would technically be receiving “equivalent” services. Yet certainly

*218

there is a wide discrepancy between the qualitative experience of a non-ambulatory retarded resident who is confined to one building all of his life and a retarded individual who leaves his residence to ride the shuttlebus to classes in Toll, to take an excursion to a baseball game in town, etc. Second, although a non-ambulatory resident of King Building could be said to have the same basic provisions, i. e., beds, bureaus, etc., as a resident of the four cottages (which at the time of trial were inaccessible to non-ambulatory residents), defendants readily admit that the living conditions in the cottages, taking into account privacy, ambience, etc.) are far superior to King. While § 504 does not require that identical living facilities for all people be provided, the spirit of the law is violated when certain residents are afforded qualitatively different and better facilities than their more profoundly handicapped peers.

For the reasons hereinabove indicated in Part III.B.l. through 4. of this Opinion, the Court finds and rules that the plaintiffs herein are entitled to relief pursuant to § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 , the details of which relief will be set forth subsequently in the Orders for Relief at the conclusion of this Opinion.

5. Section 504; Subpart D

— Preschool,

Elementary and Secondary Education ( 45 C.F.R. § 84.31 , et seq.).

Because the provisions of Subpart D of § 504 are so closely aligned with the provisions of the Education for All Handicapped Children Act, 20 U.S.C. § 1401 ,

et seq.,

and with the provisions of N.H. RSA 186-C, we have consolidated our discussion of these statutes in the following section of this Opinion.

C. Education for All Handicapped Children Act, 20 U.S.C. § 1401 , et seq. (“EHCA”); Subpart D of § 504, Rehabilitation Act of 1973 ( 45 C.F.R. § 84.31 , et seq); New Hampshire “Special Education” Statute, RSA 186-C.

The subclass in this lawsuit consists of “[p]ersons between the ages of three and twenty-one years who are or in the future may be confined at LSS, and whose rights under the Education for All Handicapped Children Act, 20 U.S.C. § 1401 ,

et seq.,

may be violated.”

147

The three named plaintiffs representing the subclass are Janet Smith, Tommy Vaillaneourt, and Sandra Garrity, aged sixteen, fourteen, and eighteen respectively at the time of the filing of the Complaint. They allege that they and members of their subclass have been denied a “free and appropriate education” as required under the EHCA, under which the State of New Hampshire receives funds.

148

Since Subpart D — “Preschool, Elementary, and Secondary Education” — of § 504 of the Rehabilitation Act of 1973 is subsumed in the EHCA,

149

we will refer only to the provisions of the latter statute. The Court also addresses in this section New Hampshire’s “Special Education” statute, RSA 186-C,

150

*219

a state statute that tracks much of the language of the EHCA, and that was clearly designed to implement the provisions of the EHCA.

1. EHCA

As with the DD Act, the EHCA is a federal-state funding Act under which the state educational agencies receive federal funds in exchange for their commitment to fulfill certain duties imposed by the Act.

Ezratty v. Commonwealth of Puerto Rico,

648 F.2d 770 (1st Cir. 1981). The underlying purpose of the Act is to assure that all handicapped children are provided a “free appropriate public education”, 20 U.S.C. § 1412 (1),

151

and its various provisions specify the procedures which must be followed to that end. For example, the State must file a plan with the Secretary setting forth a timetable for and description of its program to provide all children between the ages of three and twenty-one

152

full educational opportunity. 20 U.S.C. § 1412 (2)(B). This assistance is to be made available to children in private as well as public schools “at no cost to their parents or guardian”. 20 U.S.C. § 1413 . Each child who falls within the provisions of the Act is to be provided with an “individualized education program” (IEP), which consists of a written statement outlining (1) the present levels of educational performance of the child; (2) a statement of annual goals, including short-term instructional objectives; (3) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs; (4) the projected date for initiation and anticipated duration of such services; and (5) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. 42 U.S.C. § 1401 (19). Participation in the formulation of the IEP is to be afforded to the local education agency,

153

the parents or guardian of the child, the child’s teacher, and the child also where appropriate. 20 U.S.C. § 1401 (19). As a condition to the receipt of federal funds, the State must provide “procedural safeguards” by which a parent can obtain review of the IEP. If the child’s parents or guardian is unavailable, or if the child is a ward of the State, the State must establish procedures by which to appoint a “surrogate parent”, which individual “shall not be an employee of the State or local education agency”. . 20 U.S.C. § 1415 (bXl)(B). If the parent, guardian, or surrogate parent objects to the IEP which the State has devised for his child, he or she is entitled to “an impartial due process hearing” provided by the state (or local) agency, but conducted by someone other than “an employee of such agency or unit involved in the education or care of the child”. 20 U.S.C. § 1415 (b)(2). If the par

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ent, guardian, or surrogate parent is “aggrieved by the findings and decision” made by the independent hearing examiner, he or she may bring an action in any state court of competent jurisdiction or in a district court of the United States, which court “shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate”. 20 U.S.C. § 1415 (eX2). If the State fails to comply with these or other statutory requirements, the Department of Education is instructed to withhold federal funds from the State. 29 U.S.C. § 1416 . Thus, it is clear that unlike the DD Act, judicial review (at least of a limited nature) is specifically provided for in 20 U.S.C. § 1415 (e)(2).

2. Exhaustion of Administrative Remedies

Although conceding that a private right of action exists, defendants nevertheless insist that plaintiffs must exhaust their administrative remedies before invoking this court’s jurisdiction. In general, defendants are correct.

Ezratty

v.

Commonwealth of Puerto Rico,

648 F.2d 770, 774 (1st Cir. 1981),

citing Myers v. Bethlehem Shipbuilding Corp.,

303 U.S. 41, 50-51 , 58 S.Ct. 459, 463-64 , 82 L.Ed. 638 (1938). But such is not always the case under the EHCA, as the First Circuit points out in Ezratty: “When the various interests pull in the direction of exhaustion, it is required, but where they pull in different directions, analysis of the particular case at hand is necessary.”

Ezratty, supra,

648 F.2d at 775 ,

citing

K. Davis, Administrative Law of the Seventies 446 (1976).

Thus, not surprisingly, the exhaustion doctrine ‘is not to be applied inflexibly,’

McGee v. United States,

402 U.S. 479, 483 , 91 S.Ct. 1565, 1568 , 29 L.Ed.2d 47 (1971);

United States

v.

Newmann,

478 F.2d 829, 831 (8th Cir. 1973), and courts are free to use their discretion,

United States Ex Rel. Marrero

v.

Warden, Lewisburg, Pen.,

483 F.2d 656, 659 (3rd Cir. 1973),

rev’d on other grounds,

417 U.S. 653 , 94 S.Ct. 2532 , 41 L.Ed.2d 383 (1974), applying the doctrine, or not, in accordance with its purposes.

McKart v. United States,

395 U.S. [185] at 193, 89 S.Ct. [1657] at 1662 [ 23 L.Ed.2d 194 ], Indeed, the legislative history of the Act reflects the understanding that exhaustion is not a rigid requirement.

Ezratty, supra,

648 F.2d at 774 (footnote omitted).

Upon review of the evidence here presented, this Court reaffirms its earlier decision (February 22, 1980, at pp. 9-11) that plaintiffs were not required to exhaust their administrative procedures under the EHCA. The reasons for this ruling are, first, that administrative procedures which existed in the State of New Hampshire were and are defective and, second, and more fundamentally, many of the members of the subclass had no access to same, in that they have lacked available parents and/or guardians, and the State has failed to provide them with either such guardian or a surrogate parent.

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Accordingly, exhaustion of administrative remedies is found by this Court to be futile, and the Court follows the well-reasoned decisions of a number of lower courts that in such circumstances exhaustion of administrative remedies is not required.

Sessions v. Livingston Parish School Board,

501 F.Supp. 251, 254 (M.D.La.1980);

Monahan v. State of Nebraska,

491 F.Supp. 1074,1086 (D.Neb. 1980);

Doe v. Roger,

480 F.Supp. 225, 228 (N.D.Ind.1979);

Armstrong v. Rline,

476 F.Supp. 583, 601-02 (E.D.Pa.1979),

remanded on other grounds,

629 F.2d 269 (3rd Cir. 1980);

Harris v. Campbell,

472 F.Supp. 51, 53-54 (E.D.Va.1979);

Loughran v. Flanders,

470 F.Supp. 110, 112 (D.Conn.1979);

Campochiaro v. Califano,

No. H-78-64, slip op. at 4 (D.Conn., May 18,1978);

New York State Association for Retarded Children, Inc. v. Carey,

466 F.Supp. 479 , 486 (E.D.N. Y.1978),

aff’d

612 F.2d 644 (2d Cir. 1979).

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Moreover, as the

Ezratty

Court has indicated, the legislative history of the Act reflects the intention of Congress that exhaustion not be required in these circumstances. Senator Harrison Williams, author of the Senate bill containing the EHCA, stated the following during a debate on the matter:

Mr. President, with regard to the complaints, I want to underscore that exhaustion of the administrative procedures established under this part should not be required for any individual complaint filing a judicial action in cases where such exhaustion would be futile either as a legal or practical matter.

121 Cong.Rec. 37416 (1975),

cited in Ezratty, supra,

648 F.2d at 774, n.5 .

In conclusion,, although in the case at hand we are in no position to evaluate the substance of the IEP’s for individual members of the subclass because we have no administrative record to review, we are, however, in a position to rule on the adequacy of the procedural safeguards afforded same.

Loughran v. Flanders,

470 F.Supp. 110, 113 (D.Conn.1979);

Monahan v. State of Nebraska, supra,

491 F.Supp. at 1086 .

3. The New Hampshire “Special Education” Statute, RSA 186-C

The “hybrid” composition of the law governing the educational rights of handicapped children comprises an amalgam of elements of both federal and state law.

Monahan v. State of Nebraska,

491 F.Supp. 1074, 1080 (D.Neb.1980). N.H. RSA 186-C is the State counterpart to the EHCA, and represents the State’s plan to ensure compliance with the federal mandates. The “special education” statute was approved by the Governor of the State of New Hampshire on June 22, 1981, and its effective date was July 1, 1981. Thus, RSA 186-C was not in effect at the filing of the complaint in this lawsuit, nor during the trial itself. Nevertheless, for the purposes of injunctive relief, the Court applies the law presently in effect,

Bradley v. Richmond School Board,

416 U.S. 696 , 94 S.Ct. 2006 , 40 L.Ed.2d 476 (1974). We note that the new statute, RSA 186-C, does not substantially change the nature of the duties which were placed on defendants under its predecessor, RSA 186-A;

155

this is not a case, therefore, in which “manifest injustice” would result from retrospective application of a change in law because of new and unanticipated obligations placed on a party,

Bradley, supra,

416 U.S. at 720 , 94 S.Ct. at 2020 . In fact, the new statute actually diminishes the duties imposed on defendants. As with other recent statutory enactments, both state and federal, the passage of RSA 186-C (and the repeal of its predecessor, RSA 186-A) were triggered by a desire on the part of legislators to cut back on the obligations of government in funding human services.

156

Thus, whereas 186-A required the State to pay the local school districts for any special education programs which exceeded two and one-half times the average state tuition (and thus created open-ended liability for the state), the new statute places a ceiling on the amount of state liability.

The policy behind RSA 186-C is stated in its preamble, which tracks the language of the federal statute:

It is hereby declared to be the policy of the state that all children in New Hampshire be provided with equal educational opportunities. It is the purpose of this chapter to insure that the state board of education and the school districts of the state provide a free and appropriate public education for educationally handicapped children.

RSA 186-C:1. Under the legislative scheme the State Board of Education through its Special Education Administrative Unit “shall adopt rules establishing

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standards for the approval of programs of education that are maintained by school districts, regional special education centers, and private organizations

or state institutions

for the benefit of educationally handicapped children .. . . ” RSA 186-C:5 (emphasis added). “However, the development of an individualized education plan for each educationally handicapped child shall be the responsibility of the school district in which such child resides or of the school district which bears financial responsibility

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for the child’s education.” RSA 186-C:7. Each child between the ages' of three and twenty-one who has been determined by the local school district to be “educationally handicapped” is entitled to attend an approved program which can implement his or her IEP. RSA 186-C:9. If the school district is unable to accommodate the child within its jurisdiction it “shall pay tuition to such an approved program maintained by another school district or by a private organization”. RSA 186-C:10.

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Thus, “[a]ll expenses incurred by a school district in administering the law in relation to the education for all educationally handicapped children shall be paid by the school district in which such child resides”, RSA 186-C:13, with the caveat that

[f]or an educationally handicapped child placed in a home for children, health care facility or state or private institution, all expenses for special education or special education and educationally related services

159

shall be the liability of the district in which the child last resided before placement in a home for children, health care facility or state or private institution.

RSA 186-C:13 II. The above provision was obviously included so that taxpayers within school districts such as the Laconia School District would not be disproportionately burdened by the fortuitous location of an institution within their jurisdiction.

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RSA 186-C:13 II is consistent with RSA 126-A:49, which explicitly excludes educational expenses from the expenses otherwise recoverable from relatives and other persons charged with support of residents at LSS under RSA 126-A:46:

Educational Expenses.

Educational expenses of any resident or patient, who is capable of being benefited by instruction and who is between 6 and 21 years of age, as required under statute and incurred in the institutions named in or at the direction of the commissioner of health and welfare, in any public or private institution or elsewhere, shall be recovered from the school district in which the patient’s or resident’s parents or legal guardian reside on the January first preceding the recovery up to the state average elementary cost per pupil, as determined by the state board of education for the preceding school year. The liability

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of the school district for such expenses shall precede that of the persons or estates named in RSA 126-A:46 and RSA 126-A:47, which are hereby relieved of liability for such expenses to the extent of the school district’s liability.

RSA 126-A:49 (Supp.1979).

Under RSA 186-C:15, the local school district is financially responsible not only for the regular school year for an educationally handicapped child; it “shall provide an approved program for an extended period when it can be demonstrated by a preponderance of the evidence, in accordance with rules adopted by the state board of education, that interruption of the program of an educationally handicapped child would result in severe and substantial harm and regression and would have the effect of negating the benefits of such educationally handicapped child’s regular special education program.” RSA 186-C: 15. As mentioned above, the recently enacted version of the special education statute, 186-C, sets a ceiling on the amount of state aid to be appropriated for each fiscal year. The somewhat complex formula for computing the per-pupil rate is found in 186-C: 18 II and III.

The State Board of Education is charged with the duty of adopting rules, pursuant to RSA 541-A, the state Administrative Procedure Act, relative to the following: developing individualized education plans, approving special education programs, reporting the number of educationally handicapped children in a school district, appealing school district decisions regarding individualized education plans, determining eligibility for participation in approved programs, appointing surrogate parents, determining the length of the school year for handicapped children, and other matters related to complying with provisions of the statute. RSA 186-C:16 I — VIII. Presently under consideration by the State Board of Education pursuant to this mandate are detailed rules which are contained in a 137-page document entitled “New Hampshire Standards for the Education of Handicapped Students”. (We hereinafter refer to this document as

“Standards

”.)

Two sections of

Standards

specifically refer to LSS. Under the section entitled, “Placement of Educationally Handicapped Students”, Article IX dictates the following: (a) that it shall be the responsibility of the administration of LSS to refer to the school district of residence all admittees for whom an educationally handicapping condition is suspected; (b) that the school district shall process all such referrals according to their usual procedure; (c) that if the district determines that the LSS admittee is eligible for special education or special education and necessary related services, it shall be the responsibility of the district to develop an IEP for that child; and (d) that the district of residence shall have financial liability for educationally handicapped students at LSS retroactive to the date the person began receiving special education and necessa

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