Jackson Ex Rel. Jackson v. Fort Stanton Hospital & Training School

TABLE OF CONTENTS

Pages

Introduction. 1249

I. Institutionalization and Community Services in New Mexico. 1250

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II.History of Litigation. 1251

III. The Parties

A. Plaintiffs. 1252

1. Walter Stephen Jackson. 1253

2. Mildred Tsosie . 1253

3. Clinton Heath. 1253

4. Shawn Heath . 1253

5. Steven Nunez. 1253

6. Mary Katherine Nowak. 1253

7. Andra Martinez. 1254

8. Lillian Willmon. 1254

9. Joseph Gonzales. 1254

10. Alfred Shirley. 1254

11. James Fritche. 1254

12. Sean McHenry. 1254

13. Betty Young. 1254

B. Intervenors. 1254

C. Defendants. 1254

D. The Class . 1257

IV. ICF/MR Surveys and Department of Justice Lawsuit. 1258

V.Findings of Fact. 1259

A. Food. 1259

1. Nutritional Management. 1259

2. Food Temperatures. 1259

3. Food Handling Practices. 1260

B. Clothing. 1260

C. Environmental Conditions. 1260

1. Living Areas. 1260

2. Asbestos. 1260

3. Pest Control. 1261

4. Lighting and Ventilation. 1261

5. Fixtures. 1261

6. Sanitation Practices . 1261

7. Fire Safety. 1261

D. Medical Care. 1261

1. Medical Staff. 1261

2. Infectious Diseases and Mortality Rates. 1263

3. Medications. 1263

4. Dental Care. 1263

5. Medical Records. 1263

E. Habilitation/Active Treatment. 1265

1. Assessments. 1265

2. Interdisciplinary Team (“IDT”). 1266

3. Individual Program Plan (“IPP”). 1266

4. Long-term View. 1267

5. Discharge Plan. 1267

6. Data Collection. 1268

7. Qualified Mental Retardation. 1268 Professional (“QMRP”)

8. Active Treatment. 1269

a. LLH & TS. 1269

b. FSH & TS. 1270

9. Behavior Management. 1271

a. LLH & TS. 1271

b. FSH & TS. 1272

F. Restraints. 1272

1. Chemical Restraints. 1272

2. Physical Restraints. 1273

G. Regression . 1274

H. Safety and Physical Harm . 1275

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1. Abuse. 1275

2. Accident and Injury. 1275

3. Reports. 1276

I. Direct Care Staff. 1276

1. Insufficient Staff and Inadequate Supervision. 1277

2. Staff Training. 1277

a. Preservice Training. 1277

b. In-Service Training. 1278

J. Professional Staff. 1279

1. Insufficient Staff. 1279

2. Professional Staff Training. 1280

3. Rehabilitation Services. 1280

a. Physical Therapy (“PT”). 1282

i. Staffing. 1282

ii. Adequacy of Physical Therapy Services . 1282

b. Occupational Therapy (“OT”).'. 1283

O

AdOOCCTYlOTlfc! 1 /¿X4

4. Speech and Services

5. Adaptive Equipment. 1285

K. Education . 1286

1. School-Age Programs . 1286

a. Public Schools. 1286

b. Special Education Program at LLH & TS. 1287

2. Adult Services Programs . 1287

3. Adequacy of the Facilities’ Programs . 1288

a. Functional and Chronologically Age Appropriate Programs ... 1288

b. Coordination between Cottage and Education Programs. 1289

c. Space. 1290

L. Choice, Privacy, Access to Personal Property . 1290

1. Choice. 1290

2. Privacy. 1290

3. Access to Personal Property. 1290

4. Respect. 1290

5. Access to the Community. 1290

M. Placements. 1291

1. LLH & TS. 1291

2. FSH & TS. 1291

3. Commitment Process. 1292

N. Implementation of Recommendations for Community Placement. 1292

1. IDT Recommendations. 1292

2. Recommendations Based on Availability. 1293

3. State Court Orders for Community Placement. 1294

4. Lack of Available Alternatives to Institutionalization. 1294

VI. Conclusions of Law. 1296

A. Statutory Claims. 1296

1. Rehabilitation Act. 1296

a. Discrimination. 1298

b. Segregation . 1299

2. Social Security Act. 1299

a. Deficiencies. 1300

b. Application of Title XIX. 1301

3. Education of the Handicapped Act. 1302

a. Exhaustion of Remedies . 1303

b. LLH & TS. 1304

c. FSH & TS. 1304

B. Constitutional Claims. 1304

1. Substantive Due Process . 1305

a. Food, Shelter & Clothing. 1305

b. Medical Care. 1306

c. Reasonable Conditions of Safety. 1306

i. Abuse. 1306

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ii.Accident and Injury. 1306

d. Freedom from Unreasonable Restraints. 1307

i. Chemical Restraints . 1307

ii. Physical Restraints. 1307

e. Minimally Adequate Training. 1307

i. IDT Process . 1307

ii. IPPs. 1308

iii. Training Programs . 1308

iv. Implementation of IPPs . 1308

v. Rehabilitation Services. 1308

vi. Professional Staff. 1309

vii. Behavior Management. 1309

f. Regression. 1309

g. Community Placement . 1310

i. IDT Recommendations for Community Placement. 1310

ii. IDT Determinations Based on Unavailability of Community

Services. 1312

iii. No IDT Recommendation for Community Placement. 1312

2. Procedural Due Process. 1313

3. Equal Protection Clause. 1314

C. Claims for Attorneys’ Fees. 1314

VII. Relief. 1315

MEMORANDUM OPINION AND ORDER

PARKER, District Judge.

This is a civil rights action challenging the institutionalization of developmentally disabled

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persons at Fort Stanton Hospital and Training School (“FSH & TS”) and Los Lunas Hospital and Training School (“LLH & TS”), two state-supported institutions for the developmentally disabled in New Mexico. This litigation centers on the area of developing law concerning the rights of the developmentally disabled. It also concerns the constitutional powers of and constraints on federal courts that are asked to grant relief when political branches of state government are perceived as moving too slowly to improve the welfare of the developmentally disabled.

Plaintiffs seek declaratory and injunctive relief. The substantive relief sought arises in the context of the Constitution of the United States

2

and certain federal statutes, including the Rehabilitation Act of 1973, the Education of the Handicapped Act and the Social Security Act.

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In a trial of numerous weeks duration spread over two and one half years, which included several evidentiary hearings on plaintiffs’ requests for expedited, extraordinary relief, plaintiffs challenged the conditions at the institutions. They adduced evidence on a number of specific programs and practices, and seriously called into question the validity of institutional life itself. To that end, plaintiffs offered the testimony of numerous experts on the issue of whether an individual’s habilitation can ever be provided, in a constitutionally permissible manner, in the traditional institutional setting as opposed to a community setting.

The relief that plaintiffs ultimately seek is a determination that their right to habili-tation necessarily requires their receiving habilitation in integrated community settings, because effective habilitation cannot be provided to persons with developmental disabilities unless they are permitted to live in the community with nondisabled persons. While the vast changes plaintiffs seek to make in the lives of the developmentally disabled in New Mexico are highly commendable, some of the relief sought is beyond this court’s constitutional power to order and is being requested from the wrong branch of government.

This court has reviewed the volumes of depositions, exhibits and other evidence in an effort to arrive at a just resolution of the plaintiffs’ claims. Institutional reform cases of this nature require courts to venture into areas foreign to their traditional expertise — including the fields of medicine, psychiatry and education — an excursion which this court takes with some trepidation.

I. Institutionalization and Community Services in New Mexico

The rate of institutionalization in New Mexico is within the national norm. In 1977, an average of 67.42 persons per one hundred thousand resided in large state institutions for the developmentally disabled in the United States. By 1988, the national average was 37.2 individuals per one hundred thousand. By comparison, in 1977, the rate of institutionalization in New Mexico was 48 individuals per one hundred thousand. The rate of institutionalization decreased to 32.7 per hundred thousand in 1988. Tr. 4/10/90 at 59-61 (Sandler); Def. Exh. VVV.

The number of persons with developmental disabilities residing in state-operated institutional facilities across the nation has declined. Between 1984 and 1988, there was a 16.6% decrease in the population of state institutions nationwide. The national census of institutionalized developmentally disabled persons in 1987 dropped below 100,000 to 95,600 for the first time since 1940. In New Mexico, however, the institutional population increased by 1.6% during the same period. Pl.Exh. 365 at 13.

In 1984, New Mexico enacted legislation for the establishment of a system for community care of the developmentally disabled, the “Developmental Disabilities Community Services Act.” § 28-16-1

et seq.

NMSA 1978 (1987 Repl.). The Act contains a separate section which defines the legislative purpose for its enactment as follows:

It is the purpose of the legislature in enacting the Developmental Disabilities Community Services Act ... to authorize the health and environment department to plan and coordinate developmental disabilities community services in the state and to declare that priority shall be given to the development and implementation of community-based services for developmentally disabled minors and adults, which will enable and encourage such individuals to achieve their greatest potential for independent and productive living, which will enable them to live in their own homes and apartments or in facilities located within their own communities and which will assist clients to be diverted or be removed from unnecessary institutional placement.

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§ 28-16-2 NMSA 1978 (1987 Repl.) (emphasis added).

The Developmental Disabilities Bureau of the New Mexico Health and Environment Department is the primary funding source for community programs serving persons with developmental disabilities. Def.Exh. CCC at 3. It contracts with approximately thirty-one private agencies to provide community based services to persons with developmental disabilities. Def. Exh. CCC at 4. During the 1989-90 fiscal year the state of New Mexico served approximately 480 persons in group homes, companion homes, and supported living environments.

Id.

In each of the last several years, New Mexico has increased funding for community programs. Tr. 4/11/90 at 278 (Bergman). In fiscal year 1989, the Developmental Disabilities Bureau received approximately $11 million dollars in funds for community programs. Tr. 4/2/90 at 146 (Foley); Def.Exh. CCC at 68. This figure represents an increase by the legislature of thirty percent from the previous budget. Tr. 4/2/90 at 146 (Foley). Approximately, twenty five percent of the budget is earmarked for residential services. Def.Exh. CCC at 68.

Id.

The funding for the two state institutions has also increased, although the rate of increase has been greater for community programs. Tr. 4/11/90 at 278 (Bergman).

The State of New Mexico continues to provide care in institutional settings for 345 residents of LLH & TS and 149 residents of FSH & TS notwithstanding the preference for community based care expressed by the legislature six years ago.

II. History of Litigation

On July 8, 1987 twenty-one individual developmentally disabled citizens of New Mexico, on behalf of themselves and other similarly situated individuals, and the Supporters of Developmentally Disabled New Mexicans, Inc. commenced this lawsuit “to redress the unconstitutional and illegal conditions” at Fort Stanton Hospital and Training School and Los Lunas Hospital and Training School.

Jackson, et al. v. Fort Stanton, et al.,

No 87-839, complaint at 1-2 (D.N.M. July 8, 1987).

On December 10, 1987, plaintiff Ronald Fuller applied for a temporary restraining order seeking to restrain defendants LLH & TS, Health and Environment Department, Department of Education, and various state officials from preventing plaintiff’s enrollment in Los Lunas Public Schools and directing Los Lunas Public Schools to enroll plaintiff and immediately to devise an appropriate individual education program for him. I held hearings on the application for temporary restraining order on December 11, and December 28, 1987. I entered a restraining order on January 15, 1988 requiring that LLH & TS conduct a comprehensive evaluation and individual assessment of Mr. Fuller by qualified independent evaluators and that Los Lunas Public School District convene an Educational Appraisal and Review Committee meeting to consider whether and to what extent enrollment of Ronald Fuller in the Los Lunas Public Schools could be satisfactorily achieved.

Jackson, et al. v. Fort Stanton Hospital and Training School, et al.,

No. 87-839, slip op. at 15-16 (D.N.M. Jan. 15, 1988).

On February 4,1988, the Los Lunas Public School District agreed by stipulation to integrate Ronald Fuller into the public school environment.

Jackson, et al. v. Fort Stanton Hospital and Training School, et al.,

No. 87-839, slip op. at 15-16 (D.N.M. Feb. 4, 1988). Ronald Fuller has since been discharged from LLH & TS and currently resides with his family in Hobbs, New Mexico. Motions for attorneys fees and costs relating to Ronald Fuller's quest for a public school education remain pending for later determination by this court.

On August 5, 1988, plaintiffs moved to amend the complaint to add the claims of twenty-three individuals who at the time were residents of Las Vegas Medical Center (“LVMC”), a state psychiatric institution. Those twenty-three plaintiffs alleged that they were both developmentally disabled and mentally ill and that LVMC provided for their mental illnesses, but did not provide habilitation and training services

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for their developmental disabilities. I granted the motion and the names of the twenty-three individuals were added to the complaint. These plaintiffs are: Virgil Addison, Roberto Atilano, Felicia Botello, Joseph Baca, Melinda Conway, Daniel Garcia, Viola Gurule, Thomas Harkins, Robert Hynes, Damon Keeswood, Sharon Koons, Garry Martinez, Jose Martinez, Robert McHenry, Marcelino Moya, Ted Nichols, Margaret Romero, Loriann Strickland, Beth Thomas, Albert Vasquez, Edwin Vasquez, Benito Arguello, and Benjamin Romero.

Subsequently, plaintiffs applied for a temporary restraining order on behalf of those plaintiffs who were still housed at LVMC. Hearings were held on the plaintiffs’ application for a TRO on August 8, 9, 10, 12, 13, and 15, 1988, and culminated in the entry of a preliminary injunction on September 23, 1988 requiring defendants within 30 days to perform assessments of all plaintiffs residing at LVMC and within 60 days to prepare individualized treatment plans for every plaintiff determined to be developmentally disabled.

Jackson, et al. v. Fort Stanton Hospital and Training School, et al.,

No. 87-839, slip op. at 15-16 (D.N.M. Sept. 23, 1988).

On November 11, 1988, plaintiffs filed a Motion for an Order to Show Cause and for Further Extraordinary Relief claiming that defendants had failed to comply with the order that had been entered September 23, 1988. After holding evidentiary hearings on December 22, 1988, January 16, 1989, and March 27 and 28, 1989, I denied the motion.

Jackson, et al. v. Fort Stanton Hospital and Training School, et al.,

No. 87-839, slip op. (D.N.M. May 23, 1989). Many of the twenty-three LVMC plaintiffs had been transferred to the New Mexico institutions or to out-of-state facilities for treatment under contractual arrangements with the state of New Mexico. Of the twenty-three plaintiffs who were residing at LVMC in August 1988, twelve have been transferred or otherwise discharged, one is deceased, and the remaining ten continue to reside at LVMC.

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However, the ten remaining at LVMC have presented no further evidence nor have they requested further relief at subsequent hearings.

On October 16, 1989, the main trial on the merits commenced. The main trial was held over an eight week period and proceeded in trial segments as follows: October 16, 1989 — October 19, 1989; October 30, 1989 — November 3, 1989; November 13, 1989 — November 16, 1989; December 12, 1989 — December 15, 1989; January 2, 1990 — January 5, 1990; April 2, 1990— April 27, 1990. In the course of the trial, numerous witnesses testified and over eight hundred exhibits were admitted as evidence. Over 10,000 pages of transcripts were recorded.

Following the trial, I toured LLH & TS and FSH & TS for the second time, from April 30, 1990 through May 4, 1990, with the court-appointed expert. I had visited the facilities for the first time in the early part of August 1989. In June 1990, I also visited and inspected a community program in Durango, Colorado, and a sheltered workshop and a specialized community behavior management program in Albuquerque, New Mexico.

III. The Parties

A.

Plaintiffs

Plaintiffs seek the expansion of community services for the developmentally disabled and the transfer of the residents of LLH & TS and FSH & TS to community residential settings. Evidence was presented on thirteen named plaintiffs who reside at LLH & TS and FSH & TS.

5

These thirteen named plaintiffs will be the representatives of the subclass certified on May 23, 1989 that seeks community placement. The backgrounds of the thirteen named plaintiffs are briefly summarized below.

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1. Walter Stephen Jackson

Walter Stephen Jackson, age 29, is profoundly retarded, has a seizure disorder, and suffers from spastic choreoathetoid quadriparesis. Pl.Exh. 18 at 1-2. Mr. Jackson receives anti-convulsant and anti-seizure medications.

Id.

at 2. Mr. Jackson was admitted to LLH & TS in 1967, at the age of 6, due to his mother’s poor health and a lack of financial resources. Tr. 4/2/90 at 36. He currently resides in Cottage 2. Pl.Exh. at 1. Mr. Jackson’s family would like for him to live in a community setting. Tr. 4/2/90 at 45-46 (Jackson). The interdisciplinary team,

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however, has advised Mr. Jackson’s family that because no suitable alternative exists, it has recommended that he remain at LLH & TS. Tr. 4/2/90 at 78-79 (Jackson).

2. Mildred Tsosie

Mildred Tsosie, age 25, is profoundly retarded, microcephalic, blind and nonambu-latory. She has cerebral palsy, seizures, contractures, and a severe scoliosis with a windswept deformity of her legs and a severe supination of her forearms. Also, she does not speak and she has a moderate hearing loss. Ms. Tsosie is fed by a gas-trostomy tube. Pl.Exh. 21 at 1, 2, 4, 8; Pl.Exh. 96 at 9-10. She was admitted to LLH & TS in 1973 and currently resides in the Chavez West Building.

Id.

at 1. The interdisciplinary team has recommended that other placement be explored for Ms. Tsosie that will meet her overall developmental and medical needs. Pl.Exh. 21 at 10.

3. Clinton Heath

Clinton Heath, age 28, was admitted to LLH & TS in 1971. He is profoundly retarded and nonambulatory, and he has Coffin-Lowry Syndrome

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and a severe, fixed kyphoscoliosis of the spine. Pl.Exh. 16 at 1, 2, 4, 8, 10. Clinton Heath resides in Cottage 2.

Id.

at 2. His interdisciplinary team has not recommended Clinton Heath for community placement. The team determined that Clinton Heath “requires an ICF/MR facility that can meet his medical, self-care and active treatment needs and one that accepts clients who are in wheelchairs and are profoundly retarded.” However, “there are no facilities available in New Mexico to meet his needs. If and when one should become available, Clinton would be considered for referral.” Pl.Exh. 16, IPP of 1/5/89 at 16.

4. Shawn Heath

Shawn Heath, age 27, is Clinton Heath’s brother. He is profoundly retarded and nonambulatory. Like his brother, Shawn Heath was diagnosed as having Coffin-Lowry Syndrome. He also suffers from recurrent conjunctivitis and chronic constipation. Pl.Exh. 17 at 1, 2, 4, 6, 10. Shawn Heath was admitted to LLH & TS with his brother in 1971 because his family was no longer able to care for the boys at home and the cost of outside care placed a financial strain on the family.

Id.

at 1. Shawn Heath also resides in Cottage 2. His interdisciplinary team has not recommended community placement. Pl.Exh. at 16.

5. Steven Nunez

Steven Nunez, age 25, was admitted to LLH & TS in 1973. He is profoundly retarded, and has spastic quadriparesis. In 1987, Mr. Nunez had orthopedic surgery to increase his potential for ambulation and he now ambulates with leg braces and a stride walker. He occasionally experiences problems with rumination, which is addressed in his programming. Pl.Exh. 19 at 1-2, 6-7, 9-10. Mr. Nunez resides in Cottage 2. He has been referred by his interdisciplinary team for community placement.

Id.

at 1, 18.

6. Mary Katherine Nowak

Mary Katherine Nowak, age 34, was first admitted to LLH & TS in 1964 at age

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7.She was subsequently transferred to the Las Vegas Medical Center, a state mental hospital, where she remained until age 22 when she was readmitted to LLH & TS. She currently resides in Cottage 4. Ms. Nowak is moderately retarded with a psychiatric diagnosis of atypical psychosis. PI. Exh. 20 at 1, 6, 7, 8. Her interdisciplinary team determined that Ms. Nowak is capable of doing very well in a group home. Pl.Exh. 20, IPP 7/24/89 at 12.

7. Andra Martinez

Andra Martinez, age 37, resided at the Las Vegas Medical Center from age eleven until her admission to LLH & TS in 1979. She currently resides in Cottage 6. Ms. Martinez is profoundly retarded, has autistic traits, and has a seizure disorder. PI. Exh. 27 at 1, 2, 8. She has been referred by her interdisciplinary team to community residential programs “for possible future opportunity to live in a less restrictive environment as her skills improve.”

Id.

at 8.

8. Lillian Willmon

Lillian Willmon, age 71, was admitted to LLH & TS in 1939. She is profoundly retarded and nonambulatory and she has spastic quadriplegia, kyphosis, arthritis and contractures of all extremities and trunk. Ms. Willmon is considered to be nonverbal although she can vocalize some words. PI. Exh. 22 at 1, 2, 4, 6-10. She currently resides in Seligman Cottage.

Id.

at 1. The interdisciplinary team reviewed Ms. Will-mon’s current placement at LLH & TS and found it to be “the most appropriate available at this time.” Pl.Exh. 22, IPP 7/12/89 at 17.

9. Joseph Gonzales

Joseph Gonzales, age 47, was admitted to FSH & TS in 1985. He was transferred from a group home in Roswell, New Mexico as a result of behavior problems. He is severely retarded and he has an atrophied left arm, cerebral palsy, foot arthrosis and infrequent uncooperative or aggressive reactions. Pl.Exh. 24 at 2. He currently resides in Sierra I Cottage.

Id.

Mr. Gonzales has been referred by his interdisciplinary team for community placement.

Id.

at 3d.

10. Alfred Shirley

Alfred Shirley, age 38, was admitted to FSH & TS in 1981. He is profoundly retarded and is nonambulatory. He has cerebral palsy and Bulbar palsy, a seizure condition. In addition he has a right hemiple-gia which requires a leg brace. He is unable to feed himself and is not toilet trained. Pl.Exh. 26 at 2-3c. Mr. Shirley currently resides in Sierra I Cottage.

Id.

at 2. The interdisciplinary team determined that FSH & TS can best meet the conditions for his treatment and habilitation. However, Mr. Shirley has been referred to two community residential programs in accordance with the terms of a state court order. Pl.Exh. 26 at 7.

11. James Fritche

James Fritche, age 37, was admitted to FSH & TS in 1968. He is profoundly retarded and has cerebral palsy, enuresis, and a club foot. He is not toilet trained. His expressive language skills are nonfunctional. Pl.Exh. 23 at 1, 2, 2b, 2c. He is able to feed and dress himself independently.

Id.

at 2. Mr. Fritche currently resides in Eddy Cottage.

Id.

at 1. His interdisciplinary team has not recommended him for community placement.

Id.

at 6.

12. Sean McHenry

Sean McHenry, age 21, was admitted to FSH & TS in 1984 from Taos Residential Center. He is profoundly retarded and autistic. He has Hodgkins disease, a seizure disorder, and occasional incidents of fevers and elevated white blood cell count of undetermined origin. Pl.Exh. 25 at 1, 2a, 2c, 2d. His expressive language skills are nonfunctional.

Id.

at 2c. Mr. McHenry attends the Capitan Public Schools. Tr. 11/3/89 at

89-90

(Aldaz). He currently resides in Sierra I Cottage.

Id.

at 1. The interdisciplinary team determined that FSH & TS can best meet the conditions for his treatment and habilitation. Mr. McHenry has not been referred to any community residential

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program outside FSH

&

TS. 6. Pl.Exh. 25 at

13. Betty Young

Betty Young, age 33, was admitted to FSH & TS in 1980. She was transferred from LLH & TS and had previously been a patient at LVMC. She is moderately retarded and has organic brain syndrome with hallucinosis and encephalopathy. She is hearing impaired and her expressive language skills are nonfunctional except for some basic sign language. Pl.Exh. 28 at 1, 2, 2a-2e. Ms. Young currently resides at Socorro Cottage.

Id.

at 1. The interdisciplinary team determined that FSH & TS best meets the conditions for her treatment and habilitation. However, she has been referred for placement in community residential programs in accordance with a state court order, but has not yet been placed. Pl.Exh. 28 at 6.

B.

Intervenors

Intervenors are parents and guardians of some of the residents of LLH & TS and FSH & TS. The parents and guardians intervened in the lawsuit seeking to require defendants to bring the institutions into compliance with constitutional and statutory mandates, but they oppose plaintiffs’ efforts to close LLH & TS and FSH & TS and to force the transfer of residents of those institutions into community-based facilities. On June 27, 1988, I granted inter-venors leave to intervene in this action. They filed their Complaint in Intervention on July 6, 1988.

C.

Defendants

Defendants Fort Stanton Hospital and Training School and Los Lunas Hospital and Training School are the only two state operated institutions which are classified as Intermediate Care Facilities for the Mentally Retarded (“ICFs/MR”) under Title XIX of the Social Security Act, and receive federal funds under the act in New Mexico.

LLH & TS was established by act of the New Mexico Legislature on March 20, 1925 as a public residential facility for “any person mentally underdeveloped or faultily developed” who “requires supervision, care and control for his own welfare, or for the welfare of others, or for the welfare of the community.” The institution was named “The Home and Training School for Mental Defectives.” 1925 New Mexico Laws 254, Ch. 133, §§ 1, 2. LLH & TS is located in Los Lunas, New Mexico and currently serves 345 residents. Of those, 193 are in wheelchairs, 226 have a seizure disorder, 77 have a hearing impairment, 109 have a vision impairment, 40 have both a vision and hearing impairment and 72 are on psychoactive medication in conjunction with a behavioral problem. Approximately seventy-two percent (72%) of the population of LLH & TS are profoundly retarded and twenty-one percent (21%) are severely retarded. Tr. 4/27/90 at 17-18 (LaCourt).

FSH & TS is located in rural Lincoln County, New Mexico. It was originally established as a fort for the United States Cavalry in 1855. Some of the original buildings are still standing on the grounds of the institution. Near the end of the nineteenth century the United States Merchant Marines began using the facility as a hospital for the treatment of tuberculosis. Later it was converted to a state public health hospital which continued in the treatment of tuberculosis. In 1966, the facility began to serve the mentally retarded. FSH & TS currently serves 149 residents. Tr. 4/24/90 at 92 (Miller). The majority of the residents admitted to FSH

&

TS have behavior problems. Tr. 11/3/89 at 95, 129 (Aldaz); Pl.Exh. 327 at 98 (Al-daz). Residents are also admitted at FSH & TS through the criminal justice system. Pl.Exh. 327 at 60-61, 63-65. In 1987, approximately sixty-six percent (66%) of the population were severely and profoundly retarded. The remaining thirty-four percent (34%) of the population were moderately or mildly retarded or of borderline intellectual ability. Pl.Exh. 335 at 11.

In 1983, the New Mexico Health and Environment Department decided to phase out FSH & TS as a facility for persons with developmental disabilities and to transfer most of the residents to community-based programs. The Department imposed a

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freeze on admissions to FSH & TS during the fall of 1983 and by 1984 the population of the facility was reduced to 111. Tr. 11/3/89 at 139 (Aldaz); Pl.Exh. 335 at 1-2. In 1984 the New Mexico legislature made the entire Health and Environment Department budget contingent upon full utilization of FSH & TS as a facility for persons with developmental disabilities. This decision by the legislature led to a reversal of the earlier announced decision to close FSH & TS. Tr. 11/3/89 at 141-142 (Aldaz); PI. Exh. 335 at 1, 4.

Following the legislature’s action in 1984, the Health and Environment Department appointed a task force consisting of parents, advocates, state legislators, and state agency personnel to examine the role and function of FSH & TS. The task force concluded that most of the residents at FSH & TS did not need to be there to receive the services that they required, and recommended the immediate development of a plan by the Health and Environment Department to facilitate the movement of residents of FSH

&

TS into community placements. The department did not implement the recommendations. Tr. 4/12/90 at 29 (Jackson).

In 1986, the governor of the state of New Mexico appointed the Developmental Disabilities Planning Council pursuant to the Developmental Disabilities Community Services Act.

8

The council commissioned a study of residential service needs in New Mexico for people with developmental disabilities and held public hearings throughout the state. The council recommended a phase out of FSH & TS, a reduction in the developmentally disabled population at LLH & TS, and a serious commitment to expansion of community-based residential options for persons with developmental disabilities. The plan has not been implemented. Tr. 4/12/90 at 29-30 (Jackson).

Defendant David LaCourt is the administrator of LLH & TS.

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Defendant Ervin Aldaz is the administrator of FSH & TS.

10

They are responsible for the operation, administration and supervision of the facilities, including the custody, care and treatment of all residents admitted, and for insuring compliance by the staff with applicable state and federal laws and regulations. They also have oversight responsibility for the process by which residents are discharged to community-based placements.

Defendant New Mexico Health and Environment Department (“HED”) is the primary executive agency in New Mexico charged with the care and treatment of developmentally disabled persons in New Mexico. It is responsible for the administration, operation and oversight of LLH & TS and FSH & TS, and it contracts with private agencies to provide residential and other services to developmentally disabled persons in community-based settings. HED is also responsible for insuring that LLH & TS and FSH & TS comply with federal ICFs/MR regulations governing those facilities.

Defendant Dennis Boyd is the Secretary of the Health and Environment Department. He is responsible for insuring that LLH & TS and FSH

&

TS are operated in compliance with federal law, for monitoring and evaluating the professional and administrative activities of FSH & TS and LLH & TS, and for consulting with the administrators of those facilities. He has the responsibility of preparing, for submission to the legislature, budget requests sufficient to allow the facilities to carry out their functions in accordance with statutory and con

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stitutional mandates and sufficient to support community-based services.

Defendant New Mexico Department of Human Services is the state agency designated to be responsible for the receipt and appropriate disbursement of funds under Title XIX of the Social Security Act and for the enforcement of the provisions of that Act in New Mexico. The New Mexico Department of Human Services is also responsible for the administration and oversight of all programs to which the waiver of certain Medicaid requirements has been granted by the federal government, and for insuring that such programs comply with federal requirements and with the service plans submitted by the state.

Defendant Alex Valdez is the Secretary of the New Mexico Department of Human Services and as such is responsible for insuring that the department fulfills its obligations under Title XIX of the Social Security Act.

Defendant New Mexico Department of Education is responsible for maximizing the use of community resources in the provision of vocational rehabilitation services, as stipulated by the parties.

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Defendants New Mexico State Board of Education and its individual members are responsible for the formulation and adoption of curricula for the adequate education of all students in the public schools and for establishing and enforcing standards for the identification, evaluation, placement, and service programs of all handicapped children served in all public schools and state supported institutions. Additionally, the board is responsible for carrying out the provisions of the Education of the Handicapped Act within the state of New Mexico including assuring that handicapped students are educated with non-handicapped students to the maximum extent appropriate, as stipulated by the parties.

12

Defendant Alan Morgan is the New Mexico Superintendent of Public Instruction and is responsible for assuring that the policies of the State Board of Education are implemented, applied and carried out. He is also responsible for supervising the Director of the Special Education Unit.

Defendant Jim Newby is the Director of the Special Education Unit within the State Department of Education. He is responsible for regularly monitoring all local public school districts and state supported schools in order to assure that their procedures, programs, and services are in compliance with standards set by the State Board of Education and with the requirements of the federal Education of the Handicapped Act. He is also responsible, with the advice of the State Advisory Panel, for the development and implementation of the state’s plan for participation under the Education of the Handicapped Act.

D.

The Class

Following extensive briefing by the parties on the issue of class certification, on May 23, 1989 I certified a class consisting of all persons who are presently residing at FSH & TS or LLH & TS and have been residents since the date of the filing of the complaint in this action on July 8, 1987; all persons who became or will become residents of the institutions during the penden-cy of the action; and all persons who have been transferred from FSH & TS or LLH & TS to skilled nursing facilities, intermediate care facilities, homes for the aged and similar facilities, and whose services are funded in whole or in part by defendants.

13

*1258

Jackson, et al. v. Fort Stanton Hospital and Training School, et al.,

No. 87-839, slip op. at 8 (D.N.M. May 23, 1989).

Pursuant to Federal Rule of Civil Procedure 23(c)(4)(B), the class was divided into two subclasses to reflect the different relief sought by plaintiffs and intervenors. Accordingly, the thirteen named plaintiffs, whose profiles have been set out above, represent the subclass that seeks community placement and closure of LLH & TS and FSH & TS. Intervenors represent the subclass that opposes closure of the institutions but seeks to upgrade the institutions.

Id.

at 7.

IV. ICF/MR Surveys and Department of Justice Lawsuit

Since LLH & TS and FSH & TS receive federal funds under Title XIX of the Social Security Act, both are regularly surveyed by the Health Care Financing Administration (“HCFA”) to determine whether federal funding should continue.

See e.g.

PI. Exh. 5, 15; Def.Exh. F, EE. The purpose of the ICF/MR standards is to ensure minimally adequate services for residents. Tr. 4/3/90 at 199 (Franczak). The regulations consist of eight “conditions of participation” which cover such major areas as staffing, active treatment and health care services. The surveyors identify deficiencies under the eight “conditions of participation.” Tr. 10/17/89 at 153-159 (Rowe). Each condition of participation has standards which the surveyors use to determine whether there is substantial compliance with the condition of participation.

Id.

14

There are almost 500 standards. Whether a condition of participation is met depends on the severity of the standard-level deficiencies. Tr. 4/16/90 at 72 (Dalessandri). If the facility fails to comply with one or more of the eight conditions of participation, the facility is given a deadline by which to come into compliance before funding is terminated. Tr. 4/16/90 at 72 (Dal-essandri). HCFA has the power to terminate a facility’s funding immediately if HCFA finds that the health and safety of the residents are in jeopardy. Tr. 10/17/89 at 158-159 (Rowe). After every survey, the facility drafts a plan of correction which is a statement of the action that the facility intends to undertake to correct the deficiencies. Tr. 10/17/89 at 163 (Rowe); Tr. 10/30/89 at 30 (Nunn).

Neither LLH & TS nor FSH & TS has been decertified. Pl.Exh. 15; Def.Exh. F, EE, EEE, FFF. However, surveys of LLH & TS in the spring of 1989 determined the facility to be ineligible for continued certification as an ICF/MR. The surveyors found numerous standard-level deficiencies and two condition-level deficiencies — in facility staffing and in active treatment. Def.Exh. F. HCFA set a funding cut-off date of June 15, 1989. Def.Exh. F at 3. Prior to that date the facility was evaluated again. Def.Exh. F at 1-2. LLH & TS was allowed to continue correcting existing deficiencies and developing new plans of correction outlining further steps toward full compliance, after findings by the surveyors that the facility had made progress in these areas and that the residents of the facility were not in imminent danger and their health and safety were not jeopardized.

Id.

HCFA extended the deadline for termination of the facility’s funding to December 31, 1989.

Id;

Tr. 10/30/89 at 31 (Nunn). The surveyors returned to LLH & TS in December 1989 and found the facility had come into compliance with the conditions of participation. The funding cut-off date was revoked. Tr. 12/12/89 at 261 (Brownstein). The facility was again sur

*1259

veyed in March 1990 and found to be in compliance with all conditions of participation. Def.Exh. FFF. Surveys of FSH & TS have also found deficiencies in the past. However, the FSH & TS has never been recommended for decertification. Tr. 10/17/89 at 157 (Rowe); Pl.Exh. 14, 93, 94.

On October 27, 1989, the United States Department of Justice instituted a suit against the State of New Mexico, LLH & TS and various other state defendants for violation of the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997

et seq. United States of America v. State of New Mexico, et al.,

No. 89-1165, complaint (D.N.M. Oct. 27, 1989). The parties entered into a Settlement Agreement, filed on February 2, 1990, which requires that LLH & TS conduct adequate evaluations and training for the residents; that seclusion and bodily restraints be administered only pursuant to the judgment of qualified professionals; that residents be provided medical care; that LLH & TS employ a sufficient number of physicians, registered nurses, licensed practical nurses, psychologists, physical therapists, occupational therapists, and direct care workers; that psychotropic medications be administered only pursuant to the exercise of professional judgment; that the staff be appropriately trained; and that the institution maintain an adequate recordkeeping system.

USA v. State of New Mexico,

No. 89-1165, Settlement Agreement (D.N.M. Feb. 2, 1989). The agreement contemplates that the state will implement all provisions of the agreement on or before December 31, 1990.

Id.

at 17 .

As a result of this lawsuit and the ICF/MR survey inspections and the action instituted by the Department of Justice, LLH & TS has experienced significant changes. These substantial ongoing changes in the institution have made the decision-making process in this case difficult in that evidence presented over a protracted period has, to some extent, become outdated.

V. Findings of Fact

A.

Food

The quality of the food served and the quantity provided to the residents of LLH & TS and FSH & TS are adequate.

15

Plaintiffs challenged, however, the adequacy of nutritional management, the appropriateness of food temperatures and food handling practices.

1. Nutritional Management

Each resident’s food or fluid intake is monitored. The dietician or the nurse is advised of any resident who consistently fails to eat all of his or her food. Pl.Exh. 308 at 27 (Cordova); Pl.Exh. 320 at 18 (Kearns); Pl.Exh. 318 at 27 (Chavez). In addition, the dietician at FSH & TS continuously circulates during meals to monitor the residents’ diets and to get feedback on how residents are eating. Pl.Exh. 320 at 18. The dietician at LLH & TS observes meals in the cottages and classrooms to monitor feeding programs for the various residents. Tr. 4/18/90 at 99 (Gailbraith).

2. Food Temperatures

Plaintiffs’ environmental expert, Mr. Duel, identified problems in maintaining appropriate food temperatures, particularly at LLH & TS. Specifically, both Mr. Duel and the HCFA surveyors noted a failure to maintain food temperatures at levels sufficient to prevent the growth of harmful micro-organisms. Tr. 4/10/90 at 197-198 (Duel); Pl.Exh. 245 at 8. The dietician at LLH & TS had identified the same problem prior to Mr. Duel’s survey and had already requested the purchase of new equipment to correct it. Tr. 4/10/90 at 198 (Duel). The new equipment has been installed and the quality assurance program confirms that the appropriate food temperatures are now being maintained. Tr. 4/18/90 at 96 (Gailbraith).

Plaintiffs’ expert, Mr. Duel, also reported a failure to maintain refrigeration and freezer units at sufficiently low tempera

*1260

tures to safeguard food against spoilage. In addition, Mr. Duel noted a failure to ensure the presence of accurate procedures and equipment to measure those temperatures, particularly at the LLH & TS satellite feeding stations. Tr. 4/10/90 at 199-202 (Duel). The refrigeration units at LLH & TS have an inside thermometer and an outside thermometer gauge that is part of the unit itself. The temperatures are logged from the inside thermometer. Tr. 4/18/90 at 97 (Gailbraith). At the time of Mr. Duel’s survey, the LLH & TS dietician had previously requested the purchase of air cooling equipment for the storage room and it has since been installed. Tr. 4/11/90 at 102 (Duel); Tr. 4/18/90 at 98 (Gail-braith). Mr. Duel found that the temperatures of refrigerators and freezers at FSH & TS were within the ranges recommended by the food service regulations and did not present a health hazard. Tr. 4/11/90 at 67-68 (Duel).

3. Food Handling Practices

The dietician at LLH & TS provides in-service training to the staff on infection control and handwashing practices relating to food service and food preparation. Tr. 4/18/90 at 98 (Gailbraith). The dietician also oversees a quality assurance program which involves randomly visiting the cottages and classrooms to observe meals. Approximately twenty meals are reviewed per week. Tr. 4/18/90 at 99-100 (Gail-braith).

B.

Clothing

The clothing provided to the residents of LLH & TS and FSH & TS is adequate. The clothing is clean, individualized, well-fitting and is not issued from a general clothing store. During my visits to LLH & TS and FSH & TS in May 1990, I observed that the clothing was varied, not uniform. I also observed several residents wearing new high top brand name athletic footwear. All parties also agreed that the residents of both facilities are well-groomed. Tr. 10/31/89 at 203-204 (Haywood); Tr. 4/17/90 at 37, 212 (Peets, Woodhouse); Tr. 4/4/90 at 169 (Crocker); Tr. 10/17/89 at 139 (Rowe).

C.

Environmental Conditions

Experts on all sides, who toured the facilities, agreed that both LLH & TS and FSH & TS are generally clean and well-maintained. Tr. 4/4/90 at 169-170 (Crocker); Tr. 10/17/89 at 94 (Rowe). Plaintiffs challenged, however, some specific aspects of the physical environments at both facilities.

1. Living Areas

LLH & TS and FSH & TS are licensed by the New Mexico Health and Environment Department to house the number of residents who reside at both facilities. Def. Exh. AP, AQ. The licenses state how many beds are allowed in each cottage area. Neither LLH

&

TS nor FSH & TS has exceeded the licensed capacity. Tr. 4/18/90 at 32-33 (Blount).

The bedroom size at LLH & TS and FSH

&

TS is adequate with each bedroom having four or fewer beds, some'with individual beds and many with two beds per room. Tr. 10/17/89 at 140 (Rowe); Tr. 10/30/89 at 125 (Nunn). However, each unit for the medically fragile at LLH & TS — Chavez West, Chavez East and Bashein East— houses more than four residents. LLH & TS has received a waiver for the medically fragile units from the Title XIX authorities on the basis of medical need. Tr. 10/30/89 at 125 (Nunn).

The living areas at LLH & TS and FSH & TS are personalized. LLH & TS has a policy of allowing residents to maintain personal possessions in their living areas. Tr. 10/30/89 at 124 (Nunn). Residents have in their rooms personal possessions such as pictures, mirrors, televisions, and grooming items. Tr. 11/2/89 at 152-53 (Donovan). Residents at FSH & TS also have personal belongings in their rooms, including pictures, prints, rugs and mirrors. Tr. 10/31/89 at 161 (Haywood). The bedding is individualized. Tr. 10/17/89 at 140 (Rowe). Personal items are frequently replaced if damaged or destroyed by the residents. Tr. 10/31/89 at 162 (Haywood).

2. Asbestos

Some items stored at FSH & TS were previously thought to contain asbestos.

*1261

Further investigation proved, however, that most of those items did not in fact contain asbestos. The remaining items that contained asbestos were “abated.” Tr. 11/3/89 at 154 (Aldaz).

3. Pest Control

Plaintiffs’ expert, Mr. Duel, found evidence of vermin, mouse droppings and flies in food service areas at LLH & TS. Tr. 4/10/90 at 207-210 (Duel). He also found dead insects and mouse droppings in food service areas at FSH & TS. The presence of insects in the food service areas raises serious health concerns.

Id.

However, in the opinion of a defense expert witness, the pest control at LLH & TS and FSH & TS is adequate. Tr. 4/18/90 at 27-30 (Blount). LLH & TS and FSH

&

TS provide pest control services on a bimonthly basis in the food service areas. Def.Exh. AN, AO. LLH & TS also has an infection control committee which meets regularly. Tr. 4/11/90 at 103 (Duel). In addition, state inspection reports for the last two years at both facilities do not cite pest or vermin problems in the food service areas. Tr. 4/18/90 at 31 (Blount).

4. Lighting and Ventilation

Lighting in the food service areas, living areas and offices at both FSH & TS and LLH & TS is adequate. Tr. 4/18/90 at 25-27 (Blount). LLH & TS and FSH & TS comply with federal regulations on ventilation systems. Tr. 4/18/90 at 19-24 (Blount).

5. Fixtures

The system of providing and monitoring hot water at LLH & TS and FSH & TS is adequate. Both LLH & TS and FSH & TS supply and monitor hot water through systems of mixing valves, which mix hot and cold water to provide water of a certain temperature at the exit end. The valves are inspected on a regular basis. Tr. 4/18/90 at 54-56 (Blount).

6. Sanitation Practices

The waste disposal facilities at LLH & TS and FSH & TS are adequate. Tr. 4/18/90 at 30-31 (Blount). The garbage collection bin located near Hidalgo Cottage at FSH

&

TS is appropriate. Tr. 4/18/90 at 73-75 (Blount). FSH & TS’s sewage treatment system meets federal requirements regarding the discharge of treated matter and poses no immediate threat to the health and safety of the residents. Tr. 4/11/90 at 47-53 (Duel).

A state agency regularly samples the water supply at FSH & TS for appropriate chlorine levels and has found it to be in compliance with applicable standards. Tr. 4/11/90 at 46-47 (Duel). The laundry facilities at LLH & TS and FSH

&

TS use a sanitizing soap that appropriately disinfects clothes. Tr. 4/18/90 at 36-37 (Blount); Def.Exh. AS.

7. Fire Safety

LLH & TS and FSH & TS are in compliance with the applicable fire safety standards. Tr. 4/18/90 at 42-54 (Blount). FSH & TS is equipped with both a sprinkler system and smoke detectors, although only one is required by fire safety regulations. Tr. 4/18/90 at 82 (Blount). The fire alarm system at FSH & TS is maintained on a regular basis by a contractor. Tr. 4/18/90 at 82 (Blount). Although many doors at both LLH & TS and FSH & TS have panic bars, panic bars are not required. Tr. 4/18/90 at 87-89, 93-94 (Blount).

D.

Medical Care

1. Medical Staff

LLH & TS currently employs four full-time physicians. Tr. 4/23/90 at 15 (Brown).

16

There is regular interaction between the LLH & TS medical staff and the University of New Mexico Medical School. Three out of the four staff physicians at

*1262

LLH

&

TS currently hold appointments at the University of New Mexico Medical School. Dr. Ball has an appointment in the family practice department and Drs. Brown and Witemeyer have appointments in the pediatric department. The fourth physician was recently hired and is expected to receive an appointment to the pediatric department. Tr. 4/23/90 at 29-31 (Brown). Plaintiffs’ expert found the physicians to be generally competent. Tr. 4/4/90 at 169 (Crocker). All four physicians are on-call on a rotating basis so that there is a physician on call 24 hours a day, every day of the week. Tr. 4/23/90 at 15 (Brown). Three of the four physicians reside on the LLH & TS campus while they are on call. The fourth resides in Los Lunas, approximately five minutes from the facility. Tr. 4/23/90 at 17 (Brown). There are also five nursing stations on site at LLH

&

TS. Tr. 4/23/90 at 17 (Brown). Each resident of LLH & TS receives a physical examination at least every six months. Tr. 4/23/90 at 16 (Brown); Tr. 12/15/89 at 8 (Witemeyer).

Dr. Witemeyer is the staff physician responsible for the medically fragile residents at LLH & TS. Dr. Witemeyer visits her patients virtually daily. Tr. 12/15/89 at 8-9 (Witemeyer). In addition, a nurse is present during mealtimes in the medically fragile unit at LLH

&

TS because of the risk of aspiration. Tr. 12/15/89 at 87 (Wi-temeyer).

LLH & TS also makes regular use of medical consultants including specialists in the areas of orthopedics, pulmonary disease, ophthalmology, psychiatry, neurology, dermatology, and gynecology. Tr. 4/23/90 at 22-26 (Brown). LLH & TS contracts with three psychiatrists for approximately 20 hours per week of psychiatric consultation. Tr. 4/23/90 at 22 (Brown). The contract neurologist provides regular on-site neurological consultations as well as off-site evaluations where appropriate, particularly of residents with intractable seizure disorders. Tr. 4/23/90 at 22, 24-25 (Brown). The orthopedist holds an orthopedic clinic at LLH & TS on a monthly basis. Patients are referred to the orthopedist by members of the medical or therapeutic staff. Approximately ten to fourteen cases are presented at each clinic session. 12/15/89 at 106-107 (Sherman). The orthopedist also sees LLH & TS residents regularly on an outpatient basis either to treat fractures or injuries or to perform evaluations, or as inpatients to perform various surgical procedures. 12/15/89 at 108 (Sherman); 4/23/90 at 24 (Brown). Every new resident at LLH

&

TS who is medically fragile or multiple-handicapped is referred to the Orthopedic Clinic, Neurology Clinic, Eye Clinic, Rehabilitation Services and the Speech, Language and Hearing Departments. Tr. 12/15/89 at 7-8 (Witemeyer).

LLH & TS also provides a number of services on site including x-rays, laboratory tests, electrocardiograms and a pharmacy. Tr. 4/23/90 at 18-21. The laboratory employs two full-time technicians who perform microbiology cultures, hematologic studies, and other procedures. A consulting pathologist supervises the lab and promotes quality assurance. Tr. 4/23/90 at 19 (Brown).

The pharmacy is staffed by two full-time pharmacists. The pharmacists review and fill prescriptions, and monitor medication side effects. Tr. 4/23/90 at 19-21 (Brown). In addition, the pharmacists prepare quarterly reports on medication which advise the interdisciplinary teams of all medications prescribed and indicate possible side effects of the medication. The reports are included in the Individual Program Plans (“IPP”). Tr. 4/23/90 at 19-21.

Plaintiffs’ medical expert testified generally that the medical and health services provided at LLH & TS are in accordance with professional standards. Tr. 4/4/90 at 172-73 (Crocker).

FSH & TS employs two full-time resident physicians, who plaintiffs’ expert found to be generally competent. Tr. 4/4/90 at 169 (Crocker). FSH & TS also has regularly scheduled consultations in both psychiatry and neurology. Other medical consultants are available as needed. Def.Exh. P at 4. In addition, FSH & TS provides a number of services at the facility including x-rays, laboratory tests, EKG testing and a phar

*1263

macy. Tr. 4/4/90 at 172-173 (Crocker). The nursing services at FSH & TS comport with professional standards. Tr. 4/4/90 at 171 (Crocker).

2. Infectious Diseases and Mortality Rates

Although plaintiffs’ presented evidence of a lack of general medical care in the past, plaintiffs’ medical expert found that the incidence of infectious diseases at LLH & TS and FSH & TS falls within generally accepted ranges, Tr. 4/4/90 at 176-77 (Crocker), and that the mortality rates at both institutions are also within the expected general range for the populations they serve. Tr. 4/4/90 at 176 (Crocker).

3. Medications

Residents of LLH & TS are regularly monitored for neuromotor side effects of psychoactive medication. Tr. 4/23/90 at 56-58 (Brown). The nurses perform monthly evaluations using a tardive dys-kinesia monitoring scale. These evaluations are performed weekly when the client is first introduced to the medication. Tr. 4/23/90 at 57 (Brown). In addition, the nursing staff performs a quarterly physical examination to screen for possible side effects. Tr. 4/23/90 at 58 (Brown). Plaintiffs’ expert reviewed the thirteen named plaintiffs and found no evidence of tardive dyskinesia or other neuroleptic related movement disorders. Tr. 4/4/90 at 175 (Crocker).

Nationwide, thorazine is a commonly used psychoactive medication. Tr. 4/24/90 at 80 (Brown). Thorazine can cause hyper-pigmentation, a slate-gray darkening of skin color, and corneal deposits. Tr. 4/24/90 at 43, 59 (Brown). Defendants’ expert testified that hyperpigmentation is reversible once the medication is discontinued. Tr. 4/24/90 at 45 (Brown). For many years, a number of residents of LLH & TS had been prescribed thorazine, and many developed hyperpigmentation and corneal deposits. Tr. 4/24/90 at 44, 79-80 (Brown). The medical staff at LLH & TS had discussed the appropriateness of the thorazine and had accepted the recommendation for its continued use made by a consulting psychiatrist who believed that the risks associated with changing the medication outweighed the possible benefit of reversing the hyperpigmentation.' Tr. 4/24/90 at 46-47 (Brown); Tr. 4/23/90 at 114 (Brown). It was only after a different consultant, Dr. Gualtieri, later recommended that thora-zine be discontinued that the residents’ tho-razine medication was changed to another psychoactive medication that had the same behavioral effects but did not have the side effect of hyperpigmentation. Tr. 4/24/90 at 45-46 (Brown); Tr. 4/23/90 at 114 (Brown). At the end of trial in April 1990, the hyperpigmentation among residents had not completely reversed although there had been improvement. Tr. 4/24/90 at 45 (Brown).

A limited number of residents at FSH & TS are receiving psychoactive medication. Both the staff physicians and the consulting psychiatrist regularly review medication decisions. There appears to be a policy to use such medication at the lowest effective dose. Def.Exh. P at 5. A number of residents at FSH & TS are also receiving seizure medication. Dosages are lowered and even discontinued after a specified period during which no seizures are observed. Def.Exh. P at 5.

4. Dental Care

The dental services at LLH & TS and FSH & TS are more than adequate. Tr. 4/4/90 at 172 (Crocker). LLH & TS employs a full-time dentist, Dr. Ray Lyons. Tr. 4/24/90 at 258. Generally, Dr. Lyons conducts clinical examinations, including cleanings, for each resident every six months at LLH & TS. Tr. 4/26/90 at 272 (Lyons). Oral hygiene is assessed on a monthly basis in the cottage living areas. Tr. 4/26/90 at 271; Def.Exh. FO at 12-13. Also, Dr. Lyons has performed an oral function assessment on each named plaintiff at LLH & TS. Def.Exh. FO at 8.

5. Medical Records

Plaintiffs' medical expert found that the medical records at FSH & TS and LLH & TS are inadequate. The medical records

*1264

are sparse and nonanalytical; they tend to deal with the more immediate or obvious elements. Tr. 4/4/90 at 93 (Crocker). The records lack a broad description of clinical status.

Id.

at 93-95 . They often reflect “automatic thinking”, i.e. medical entries are made without investigation or reflection, and contain repetitive listings which suggest insufficient analysis.

Id.

at 95-96 . These matters affect residents’ health and their long-range outlook.

Id.

at 95 .

The following are examples of inadequate medical analysis. Plaintiff Walter Stephen Jackson’s IPP of August 8, 1989 indicates that his last seizure occurred in March 1987. Pl.Exh. 180; Tr. 4/4/90 at 118 (Crocker). Plaintiffs’ medical expert noted, however, that Mr. Jackson was on multiple anti-eonvulsant medications. Tr. 4/4/90 at 119 (Crocker). Subsequently, a consulting neurologist recommended a gradual reduction followed by discontinuation of the medication. Tr. 4/4/90 at 120; Pl.Exh. 181.

Plaintiffs Clinton and Shawn Heath were diagnosed as having Coffin-Lowry Syndrome. Their medical records, however, lack any discussion of or supporting data for the diagnoses. Tr. 4/4/90 at 98-102 (Crocker).

17

The medical records of Clinton Heath for December 1986, January 1987, June 1987, December 1987 and June 1989 also contained a diagnosis of spastic qua-driparesis, a central nervous system disorder. Tr. 4/4/90 at 102-110 (Crocker); PI. Exh. 176. In October 1989, however, shortly after plaintiffs’ medical expert had questioned the accuracy of this diagnosis in a deposition, the physician’s progress notes indicated that no spasticity was noted and that the diagnosis of spastic quadriparesis would be removed. Pl.Exh. 176 at 7; Tr. 4/4/90 at 109 (Crocker).

Clinton Heath was also diagnosed as having spina bifida, an incomplete fusion of portions of a bone spine. Tr. 4/4/90 at 110 (Crocker); Pl.Exh. 176. Plaintiffs’ medical expert questioned the diagnosis after reviewing a normal x-ray report of his spine.

Id.

at 111, 113 ; Pl.Exh. 177. A radiology report of December 1989 identifies spina bifida occulta, a minor variation in the integrity of the formation of the spinal arch, which carries an insinuation of low importance. Tr. 4/4/90 at 114-115 (Crocker); Pl.Exh. 178.

The medical records of plaintiff Mildred Tsosie show a progressive loss of movement between 1973 and 1987. Plaintiffs’ medical expert found that the documentation was inadequate in that it lacked discussion, explanation or analysis of the condition by the medical staff. Tr. 4/4/90 at 122-127 (Crocker); Pl.Exh. 183. The medical records of plaintiff Lillian Willmon also document a loss of movement. In 1980, Ms. Willmon walked fairly well with her walker. Tr. 4/4/90 at 127 (Crocker). Between 1980 and 1989, Ms. Willmon developed progressively worsening contractures which impaired her walking ability and ranges of motion in her joints. Ultimately, Ms. Willmon lost the ability to walk. Tr. 4/4/90 at 127-135 (Crocker). Plaintiffs’ medical expert again found that the records failed to adequately discuss or analyze Ms. Willmon’s condition. Tr. 4/4/90

Id.

Plaintiff Alfred Shirley’s medical records also reflect the loss of his ability to walk at some undefined point between 1981, when he was admitted, and 1988. The cause for the regression is unknown. Tr. 4/4/90 at 138-144 (Crocker); Pl.Exh. 188, 189.

The HCFA surveyors found that the individual resident records were not functionally accurate representations of a resident’s current status. The LLH & TS’ plan of correction indicates that the facility will be taking a number of steps to assure a recordkeeping system that results in a functionally accurate representation of each resident’s current status, including more frequent audits of the resident’s records and an eleven month schedule for chart and quality assurance reviews.

Id.

*1265

E.

Habilitation/Active Treatment

Habilitación or active treatment generally refers to programs for the mentally retarded which focus primarily on training and the development of needed skills.

Youngberg v. Romeo,

457 U.S. 307 , 309 n. 1, 102 S.Ct. 2452 , 2454 n. 1, 73 L.Ed.2d 28 (1982). ICF/MR regulations require, as a condition of participation, that “each [resident] receive a continuous active treatment program, which includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services ... that is directed toward the acquisition of the behaviors necessary for the [resident] to function with as much self-determination and independence as possible and the prevention or deceleration of regression or loss of current optimal functional status.” 42 C.F.R. § 483.440 (a); Pl.Exh. 15, Tag #196.

Each resident must have an individual program plan (“IPP”) developed by an interdisciplinary team (“IDT”) based on an assessment of the individual needs of the resident. 42 C.F.R. § 483.440 (c)(3). The plan must identify the specific objectives necessary to meet the resident’s needs and a planned sequence for dealing with the objectives, and must be implemented by all staff who work with the resident. 42 C.F.R. § 483.440 (c)(4), (d)(3).

1. Assessments

The ICF/MR standards require that the facility conduct a comprehensive functional assessment of the resident’s abilities across many areas of the resident’s life and in the appropriate environment. Pl.Exh. 15, Tag ## 211-225, 249. Defendants testified that prior to the annual interdisciplinary team meeting, the appropriate professionals at each facility assess the residents in the following areas: health and nutritional status; physical development; affective development; auditory functioning; sensory and motor development; communication; cognitive development; social skills; recreational skills; vocational skills; self-care skills; and other independent living skills. Tr. 10/30/89 at 36-40 (Nunn); Tr. 4/3/90 at 195-197 (Franczak).

Every resident of LLH & TS is evaluated using the Comprehensive Functional Assessment (“CFA”). Tr. 10/30/89 at 34-35 (Nunn); Def.Exh. G. The CFA’s individual sections are completed by all appropriate professionals as well as by direct care staff. Tr. 10/30/89 at 37-39 (Nunn); Tr. 4/26/90 at 187 (Nunn). Plaintiffs’ expert testified that if the CFA were competently and accurately performed, the CFA would meet professional standards. Tr. 10/17/89 at 226-227 (Rowe).

However, at LLH & TS in May 1989 the surveyors reviewed seventeen charts and found that comprehensive functional assessments contained only reports of scores of functional age levels and lacked descriptions of specific developmental strengths and needs. Seven of the seventeen charts reviewed stated that some assessments were “not available at this time.” Four records lacked assessments of physical development and health. Five of the comprehensive functional assessments lacked nutritional status, and two of the remaining twelve lacked up-to-date assessments to reflect the residents’ current needs. Eight comprehensive assessments lacked assessments of sensory motor development. All seventeen records lacked developmental assessments and an assessment in vocational skills. Pl.Exh. 5 at 29-32.

In June 1989 the surveyors found that the “comprehensive assessments lack salient information in all areas and did not reflect how all pieces relate or build on each other.” They do not identify all of the residents’ specific developmental strengths. In accordance with the plan of correction, LLH & TS completed comprehensive functional assessments for all residents on August 25, 1989. Def.Exh. F at 34-36; Tr. 10/30/89 at 40 (Nunn).

See also

McAllister Depos. at 10-11.

FSH & TS uses different assessment tools to evaluate residents, including the Functional Skill Screening Inventory. PI. Exh. 310 at 48-49.

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2. Interdisciplinary Team (“IDT”)

Adequate habilitation requires interdisciplinary team planning of the overall services provided to persons with developmental disabilities. ICF/MR standards require that an IDT represent the professions, disciplines or services relevant to identifying the residents’ needs and to designing programs that meet those needs. Pl.Exh. 15, Tag #206. Accordingly, the professional program staff must participate as members of the IDT in relevant aspects of the active treatment process. Pl.Exh. 15, Tag # 168. The appropriate facility staff must also participate in the IDT meetings. Pl.Exh. 15, Tag # 207. However, “[tjhere is no correct number of individuals who comprise the interdisciplinary team.” Pl.Exh. 15, Tag # 206, Guidelines. Participation by the resident and the resident’s parent or guardian is required unless the participation is unobtainable or inappropriate. Pl.Exh. 15, Tag # 209.

LLH & TS and FSH & TS use an interdisciplinary team approach to program planning. Tr. 11/3/89 at 90-91 (Aldaz); Tr. 10/30/89 at 36-40 (Nunn). Physicians are members of the IDT. They, together with the nurse and pharmacist, provide health care information at the IDT meetings. Tr. 4/23/90 at 33 (Brown); Def.Exh. P at 4-5. The physicians generally attend IDT meetings unless a medical emergency or other circumstance prevents their attendance. Physicians at LLH & TS attend IDT meetings approximately 90 to 95% of the time. Tr. 4/23/90 at 32-33 (Brown). Other professional staff, including teachers, therapists and nurses participate in the IDT meetings. Def.Exh. P at 12; Tr. 12/14/89 at 48 (Attermeier).

Residents and their families and/or guardians are encouraged to attend the team meetings and to participate in the IDT process. Tr. 4/3/90 at 187 (Nunn); Tr. 4/3/90 at 236 (Franczak); Tr. 10/17/89 at 141 (Rowe).

See e.g.

Tr. 4/13/90 at 188-189 (Downey). In addition, each resident is represented at the team meeting by the resident’s qualified mental retardation professional (“QMRP”). Tr. 4/26/90 at 187-188 (Nunn); Tr. 10/17/89 at 141 (Rowe).

3. Individual Program Plan (“IPP”)

ICF/MR standards require that the IDT prepare for each resident an individual program plan within 30 days after admission. Pl.Exh. 15, Tag # 226. The IPP must set forth measurable objectives for habilitation necessary to meet the resident’s needs as identified by the comprehensive assessment and a planned sequence of interventions for meeting those objectives. Pl.Exh. 15 at 227-228; Tr. 4/4/90 at 72 (Crocker). The objectives must be expressed in behavioral terms that provide measurable indices of performance and must be assigned a projected completion date. The “projected date of completion” for an IPP objective should not be the same as the annual review date. Pl.Exh. 15, Tag # 230, 231, Guidelines.

The members of the IDT review the assessments of a resident and derive from them a list of the resident’s particular strengths and needs. From the strengths and needs, the team determines the resident’s prioritized goals and an IPP is developed. Tr. 10/30/89 at 34 (Nunn); Tr. 4/26/90 at 186 (Nunn); Tr. 4/3/90 at 196 (Franczak). Each resident’s IDT reviews the IPP at least annually. The plan is revised as needed, for example, if there is an indication that the plan is not working, or if the client has had a change in his or her status. Tr. 10/30/89 at 120 (Nunn); Tr. 11/3/89 at 90-91 (Aldaz); Tr. 4/3/90 at 288-289 (Franczak). In addition, LLH & TS uses a quality assurance audit system to review each IPP for appropriateness. Tr. 10/30/89 at 41, 46, 97; Def.Exh. J.

In 1989, the surveyors found that the IPPs at LLH & TS failed to specify the interventions needed to support the person toward independence; to provide training in personal skills; to identify the mechanical supports needed to achieve proper body position, balance or alignment as well as the reasons for each support; and also failed to include opportunities for resident choice and self-management. Def.Exh. F at 51-55; Pl.Exh. 5 at 31-32; Tr. 10/16/89

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at 178 (Rowe). In reviewing forty-two IPPs, the surveyors found that the stated completion date for objectives was “within one year,” or “by the next annual review.” Pl.Exh. 5 at 32; Tr. 10/16/89 at 225-226 (Rowe).

See e.g.

Pl.Exh. 293, IPP 7/27/89 at 14.

In addition, the surveyors also observed that the “IPPs had a predictable sameness about them.” Pl.Exh. 14 at 14. IPP objectives for residents of LLH & TS are not individualized. For example, many of the residents in Cottage 9 have the same objective and written training program for recreation and leisure skills. Pl.Exh. 293, IPP 7/27/89, Objective #5; Pl.Exh. 296, IPP 8/11/89, Objective # 5; Pl.Exh. 297, IPP 8/25/89, Objective #5; Pl.Exh. 298, IPP 8/1/89, Objective #4; Pl.Exh. 299, IPP 2/7/90, Objective #7, IPP 8/23/89, Objective # 7; Tr. 4/16/90 at 147, 151, 154 (Thompson).

18

LLH & TS’ plan of correction indicated that new individual program plans would be developed and implemented for all residents of the facility, which would include relevant interventions to support the individual toward independent functioning, and appropriate objectives in personal skills development, and would identify any needed mechanical supports and specify the situations in which those supports are to be applied. Def.Exh. F at 51-54. In addition, new policies and procedures were implemented to address the support of individual resident interventions toward independence and to provide for resident choice and self-management. Def.Exh. F at 55. In accordance with the plan of correction, new IPPs were formulated for all residents of LLH & TS by September 30, 1989. Def. Exh. F at 49; Tr. 10/30/89 at 97 (Nunn).

4. Long-term View

ICF/MR regulations require that the program plan objectives “[b]e organized to reflect a developmental progression appropriate to the individual.” The guidelines to surveyors provide that the facility “consider the outcome it. projects the individual will be able to accomplish in the long-term.” Pl.Exh. 15, Tag # 232. The ICF/MR regulations do not define “long-term.” Tr. 4/5/90 at 187 (Foster). The program plans are developed for a twelve month period. Tr. 4/5/90 at 187 (Foster).

Plaintiffs’ experts found that there is no explicit long-term view of what would be achieved for the residents of FSH & TS and LLH & TS in the next three to five years. Tr. 10/17/89 at 6 (Rowe); Tr. 4/6/90 at 35 (Franczak). However, plaintiffs’ experts also recognized that the ICF/MR regulations do not require that the residents’ IPPs have a three to five year view. Tr. 4/3/90 at 198 (Franczak).

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5. Discharge Plan

The program plans developed at LLH & TS in the summer of 1989 do not have a discharge plan. The IPPs lack a projected discharge date and there are no established criteria for discharge. A new IPP format was developed in the fall of 1989 which includes a discharge transfer plan, with a projected date of discharge. Tr. 10/30/89 at 136-138 (Nunn).

A formal discharge plan format exists for residents of FSH & TS. However, a typical discharge plan requires that the resident meet numerous goals in the IPP, including such goals as increasing attention span, before the resident can move to another setting.

See

Pl.Exh. 24, IPP 1/31/89 at 7; Pl.Exh. 25, IPP 6/30/89 at 6; Pl.Exh. 26, IPP 11/17/88 at 7. For example, plaintiff James Fritche’s IDT determined that “[t]he criteria for [Mr. Fritche’s] release to a less restrictive setting for treatment or habilitation is that [he] meet his goals for improving ADL skills, fine motor skills, pre-academics, socialization skills, RLS, and

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improving attention span, receptive language skills, reducing tactile defensiveness and drooling, increasing range of motion, balance, and coordination, the guardian approve of the placement, and the program meets the needs listed above.” Pl.Exh. 23, IPP 5/30/89 at 6.

Despite the lengthy criteria, however, a representative of FSH & TS testified that the residents of FSH & TS are not required to meet all of their programmatic goals listed in the discharge plans before the interdisciplinary teams at FSH & TS will recommend placement in an alternative setting. The criteria are merely “suggested” criteria. Tr. 4/25/90 at 142 (Dooley).

6. Data Collection

Proper habilitation requires the collection of data adequate to measure an individual’s progress toward the stated objectives. ICF/MR standards require collection of data with sufficient frequency and content to measure appropriately a resident’s progress toward the targeted IPP objective. Pl.Exh. 15, Tag # 237, Guidelines. Data showing progress, regression or no change are vital and necessary information for staff to be responsive to the changing needs of individuals with developmental disabilities. Pl.Exh. 15, Tag # 111, Guidelines.

Direct care staff at both facilities take data on the resident’s goals. Staff receive training on how to collect and chart data at the new employee orientation program as well as during in-service training. Then qualified mental retardation professionals review the data to determine whether changes in the IPPs should be recommended. Pl.Exh. 318 at 42-43; Pl.Exh. 315 at 29-31, 88-91; Pl.Exh. 320 at 66-67, 74.

In May 1989 the surveyors found that although LLH & TS had data collection methods in place, there was no assurance that the data was collected. During interviews the direct care staff indicated that they were unsure of how to collect the data. Pl.Exh. 5 at 32. In June 1989, the surveyors concluded that the IPPs at LLH & TS did not contain objectives expressed in behavioral terms that provide measurable indices of performance, and did not specify the type of data and frequency of data collection necessary to assess progress toward the desired objectives. Def.Exh. F at 49-50.

See also

Tr. 11/13/89 at 174 (Cox).

The plan of correction for LLH & TS indicates that the residents’ objectives would be expressed in behavioral terms that provide measurable indices of performance, and that living unit personnel and other program staff would receive training in writing objectives. In addition, staff training was implemented to ensure that all staff gather data with sufficient frequency and content to measure progress towards each objective. Def.Exh. F at 49-50.

At FSH & TS the assessment data varies with the person gathering the data. PI. Exh. 320 at 70-72. In addition, plaintiffs presented testimony that the occupational therapist at FSH & TS does not collect baseline data, without which progress, regression or change cannot be monitored. Tr. 11/16/89, Vol. I at 93 (Spencer).

7. Qualified Mental Retardation Professional (“QMRP”)

ICF/MR standards require that each resident’s active treatment program must be integrated, coordinated and monitored by a qualified mental retardation professional. Pl.Exh. 15, Tag # 159. In June 1989, the surveyors found that QMRPs were not monitoring the delivery of services to residents of LLH & TS. For example, a resident was fed breakfast by the staff in less than four minutes. Another resident who was “to eat slowly and put his spoon down after bites,” ate his breakfast in 2.5 minutes. Methods to achieve objectives for the residents of Woolston adult services were not provided to the staff. A resident was observed outside without his communication board. The communication board was in the office area of the cottage. Def.Exh. F at 11-14.

In December 1989, the surveyors found that the QMRP notes in one resident’s records indicated that the resident had achieved a 75% to 100% level of success on

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each objective, indicating successful completion of all her objectives. However, the record lacked recommendations that the plan be continued, discontinued or changed, or that new objectives be developed. Def. Exh. EEE at 4 If 2.

The plan of correction for LLH & TS indicates that the facility had revised the functions of the QMRP by placing new emphasis on the role of the QMRP in integrating, coordinating and monitoring each resident’s active treatment program. In addition, QMRPs received training in the IDT process, CFAs, behavioral objectives and the implementation of active treatment. Def.Exh. F at 11; Tr. 10/30/89 at 53 (Nunn).

At FSH & TS, serving as a QMRP is not a primary duty assignment. Pl.Exh. 228 at 169.

8. Active Treatment

Adequate habilitation requires that the programs, plans and professional recommendations developed for a person actually be implemented. ICF/MR standards require that as soon as the IDT has formulated a resident’s IPP, the resident must receive a continuous active treatment program consisting of needed interventions and services in sufficient number and with appropriate frequency to support the achievement of the objectives identified in the IPP. Pl.Exh. 15, Tag #249.

The reports of the state surveyors show that LLH & TS and FSH & TS have failed to provide continuous active treatment programs.

a.

LLH & TS

Surveys of LLH & TS in February, May and June 1989 found the facility ineligible for certification as an ICF/MR because the surveyors found, among other things, a condition-level deficiency in active treatment. Def.Exh. F at 3; Pl.Exh. 5.

Residents spend long periods of time self-stimulating (typically rocking or finger-tapping), waiting to go from one activity to another, or simply doing nothing. Staff fail to interact with residents and to administer active treatment. On February 8, 1989, the surveyors observed no interaction between staff and residents for a thirty-five minute period. Again on February 14, 1989 the surveyors observed, for twenty-five minutes, eleven residents in wheelchairs in a room. One resident was in a bed. One staff member was on the phone. She stated that she was on the switch board during break. One staff member was in the kitchen, and one staff member was in the laundry room. There was no interaction with residents. Pl.Exh. 5 at 23 ¶¶ B, C;

See also

Pl.Exh. 5 at 23 11 A, 24 11D, 26 11 1, 27 11114, 6.

IPPs are not implemented. In reviewing a psychology assessment for one resident, the surveyors noted that he needed improved socialization capability. On February 8,1989 the resident was observed in his cottage rocking back and forth. The following day he was observed in the gym, sitting alone and rocking back and forth. On both occasions there was no interaction with staff. Pl.Exh. 5 at 21 ¶ E;

See also

Pl.Exh. 5 at 23 1111F, G, H, 25 1111D, F.

In May 1989, the surveyors found that one resident’s IPP dated 4/5/89 had not been implemented in adult services as of 5/5/89. Pl.Exh. 5 at 27 11 5. Another resident in Cottage 5 who had an IPP dated 4/5/89 had an objective to sort laundry and to prepare Sunday breakfast, but the program had not begun as of 5/5/89. The IDT had also recommended a vision exam, but none was scheduled. The same resident was to receive active treatment for socialization at supper, but none was observed. Pl.Exh. 5 at 26 112. A resident in Cottage 8 had no schedule of daily activities. His staffing summary specified a low bed with a mat beside it, but no mat was observed. His diet included six teaspoons of polyglucose with meals, but this was not provided until the surveyor inquired about it. Pl.Exh. 5 at 26 H 3. A certain resident’s IDT strongly recommended individual speech therapy; however, the resident was receiving therapy only in a group setting. Pl.Exh. 5 at 14 11 A. Another resident’s IDT recommended that the speech language therapist administer diagnostic therapy for a three to six month period; but the surveyors found no documentation

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that this was being done. This client’s record indicated a one year regression in her communication skills. The IDT stated that a specific communication goal was not recommended because the resident’s daily routine would focus on strongly reinforcing appropriate speech. It was observed throughout the survey, however, that this resident did not receive speech reinforcement according to her IPP. Pl.Exh. 5 at 14 11B.

On May 4, 1989, the surveyors observed ten residents in adult services with two staff from 9:45 a.m. to 10:30 a.m. The residents were running around the room, self-stimulating, screaming, and hitting each other. One blind resident sat on the floor the entire time self-stimulating. PI. Exh. 5 at 27 ¶ 6.

In June 1989, the surveyors observed one blind resident sitting at a table while the other residents were playing bingo. There was no staff intervention or contact with the resident for over 20 minutes, and he was offered no alternative activity. The same blind resident was observed the following evening. He sat outside for 25 minutes at a picnic table while the other residents and staff were playing baseball. The staff did not interact with the resident or provide active treatment. Def.Exh. P at 28-29 11 1;

See also

Def.Exh. F at 8, 11, 14, 29 11112, 3, 4, 5. HCFA surveyors also observed a female resident in adult services standing and leaning over the back of a wheelchair for fourteen minutes. The staff stated that the program plan was gross motor skills and then went on to say that in this instance the resident was engaged in an extra leisure skill of standing. In fact, the program plan objective was walking. Def.Exh. F at 30, H 8;

See also

Def.Exh. F at 30 1111 6, 7, 31 U 11.

In December 1989, the surveyors reviewed a resident’s record which indicated that the resident was to receive individual speech therapy beginning in May 1989. There was no documentation in the record indicating that the resident had received speech therapy since the time it was recommended. Def.Exh. EEE at 4. A resident was observed flicking his fingers and rocking back and forth. Staff did not redirect the resident as indicated by the IPP. Def. Exh. EEE at 12 11 2.

See also

Def.Exh. EEE at 11, 12, 13.

The LLH & TS dietician recommended as part of a resident’s nutritional assessment that he be fed smaller meals more frequently, i.e. that he be given half of his regular portion at mealtime, the remainder two hours later, and a supplement two hours after that. The resident has a gastric reflux problem. As of January 1990, the recommendation had not been implemented and the resident was still being fed his entire meal at the regular mealtime. Ogle Depos. at 10-13 and Ogle Depos.Exh. 2; Def.Exh. AW, IPP 7/25/89 at 6.

In March 1990, the surveyors found that the deficiency for program implementation continued. They observed five residents and two staff members in a day room. One resident was engaged in a project on the sofa and two residents were being attended by the staff on a floor mat. One resident stood on one side of the room, rocking back and forth and flicking his fingers. Six other residents and two staff members returned from an activity away from the cottage, and then interacted with the other residents except for the resident who was rocking back and forth. The self-stimulating resident did not receive the attention and interventions appropriate to address his needs. Def.Exh. FFF at 11.

b.

FSH & TS

Similarly, at FSH & TS the surveyors have found deficiencies in active treatment at least since 1984 and 1985, although the HCFA surveyors have never recommended FSH & TS for decertification. Tr. 11/3/89 at 123-126 (Aldaz); Pl.Exh. 14, 93, 94. The surveyors found throughout FSH & TS, both in the living units and day programs, that consistent and continuous provision of functional activities and competent interactions was not taking place. Specifically, surveyors found groups of residents sitting in the living units with no staff attending them. Pl.Exh. 14 at 11 11 A. In another instance, residents sat without any competent, consistent interaction with others and/or staff. When the staff was asked

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about this, they indicated that it was not active treatment time. Pl.Exh. 14 at 13 11 G. During mealtimes, the surveyors noted that there “was no observable active treatment taking place.” Pl.Exh. 14 at 8 KB, 11 11 A(2), 42 11 A(2). Quite to the contrary, the surveyors observed that staff did not demonstrate skills and techniques to promote socialization; residents were not encouraged, permitted and reinforced to be independent during meals; residents were rushed through meals; and the eating programs were not being implemented. PI. Exh. 14 at 24, Hit A, B, C, D. Plaintiffs’ and defendants’ experts also observed almost no training during meals. Tr. 10/18/89 at 109-110 (Brown); Tr. 4/20/90 at 47 (Reid). The surveyors also tracked fifteen residents and found that the tasks being done during the scheduled active treatment time did not follow the residents’ IPPs. Pl.Exh. 14 at 12 11B. The staff could not identify the objective for any activity as it related to a certain resident’s IPP. Pl.Exh. 14 at 32.

9. Behavior Management

a.

LLH & TS

Every resident of LLH & TS receives an annual psychological assessment. In addition, psychological evaluations

20

are conducted every three years on residents under the age of 18, and every five years on residents age 18 or older. Tr. 4/27/90 at 28-30 (LaCourt). Behavior management programs at LLH & TS focus on the reduction of maladaptive behavior through a positive intervention approach such as positive reinforcement, rather than punitive or aversive intervention. Tr. 4/20/90 at 78, 90-92 (Reid).

ICF/MR standards require that staff be able to demonstrate the skills and techniques necessary to administer interventions to manage the inappropriate behavior of residents. Pl.Exh. 15, Tag # 193. Psychologists train direct care staff at LLH & TS and FSH & TS in the implementation of individual behavior management programs. Pl.Exh. 310 at 140; Tr. 10/30/89 at 77-78 (Nunn).

However, in March 1988, defendants’ expert, Dr. Haywood, found that the behaviorist system at LLH & TS “needed review and fine tuning.” Dr. Haywood testified that the behavioral data charts he reviewed at LLH & TS were not instructive because the categories of behavior reported in the charts were quite gross. For example, the chart for one resident merely described high frequencies of “inappropriate behavior” during February and March. Defendants’ expert testified that staff efforts to apply behavioral programs to such generally described behaviors would be ineffective because so many different acts can be included in this broad category. Def.Exh. P at 13. In April 1990, another defense expert testified that a resident’s behavior program indicated that data should be collected without further detail or specification. Tr. 4/26/90 at 11 (Reid).

Defendants’ expert, Dr. Haywood, also found that staff relied on “contingent reinforcement” techniques of behavior management. Although the techniques are immediately effective, Dr. Haywood saw little effort expended toward generalizing the immediate effects of reward or punishment. The pressing situation was met but staff members did not seem to be concerned with or to know how to accomplish a longer-term and nonsituational generalization of acceptable and appropriate behavior. Def.Exh. P at 16.

Defendants’ expert also testified that there seemed to be a reluctance to change behavioral programs once they were established. He recommended that an attitude be fostered of constant monitoring and revision where necessary and useful. Dr. Haywood further testified that often behavioral programs are established on an empirical basis, which to be successful require staff members to be willing and able to change the programs when they are not yielding the results they were intended to

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achieve. Def.Exh. P at 15. Plaintiffs’ expert, Dr. Franczak, also found that behavioral programs are not changed as conditions require. Tr. 4/2/90 at 258 (Franc-zak).

In March 1990, the administrator of LLH & TS testified that his observations were consistent with those of the surveyors in that direct care staff did not consistently and effectively intervene in instances of inappropriate behavior. Tr. 4/27/90 at 157-158 (LaCourt).

In April 1990, Dr. LaCourt testified that LLH & TS is progressing in a continuum toward implementation of behavior management plans in a consistent manner. Tr. 4/27/90 at 158-159 (LaCourt). However, Dr. LaCourt had observed only one instance of a behavior management plan being implemented from beginning to end. Tr. 4/27/90 at 159-160 (LaCourt).

b.

FSH & TS

Behavior modification programs at FSH & TS are developed through the IDT process. Pl.Exh. 310 at 139-140. Before designing a behavior modification program, the psychology staff at FSH & TS reviews the type of behavior, frequency of behavior, duration and intensity of behavior, as well as any relevant environmental factors. Pl.Exh. 315 at 76. The psychologists work together with the consulting psychiatrist at FSH & TS to evaluate, plan and implement appropriate behavior modification plans and to discuss, recommend and prescribe appropriate medications. Pl.Exh. 315 at 92-93. In the fall of 1989, FSH & TS began a peer review system for behavior management plans. Pl.Exh. 315 at 70, 72. As part of the peer review, the staff psychologists meet once a month to review three to five behavior plans. Pl.Exh. 315 at 74.

Defendants’ expert, Dr. Haywood, testified that the behavior management programs at FSH & TS contain the requisite components for effective behavior management programming. These basic components include investigating the etiology of residents’ behavior problems, collecting data to evaluate the occurrence or nonoccurrence of the problem and the intervention, and intervening in a manner that does not rely heavily on aversive procedures. Behavior management programs at FSH & TS rely a positive intervention approach. Tr. 4/20/90 at 89-91 (Reid).

However, defendants’ expert, Dr. Reid, found that although the basic components of a behavior management program were in place, the facility needed considerable improvement to bring behavior management programs up to state of the art. Tr. 4/20/90 at 91 (Reid).

F.

Restraints

1. Chemical Restraints

Chemical restraints generally refer to the administration of medication solely for the purpose of tranquilizing or rendering an individual more manageable. Tr. 4/23/90 at 38-39 (Brown). Psychoactive medication is medication prescribed and administered for the purpose of affecting behavior, or alleviating symptoms of psychiatric illness. Def.Exh. BX at 1.

There are seventy-two residents at LLH & TS on psychoactive medication. Tr. 4/27/90 at 31. Defendants’ expert testified that the medication is prescribed pursuant to consultation with a psychiatrist, Tr. 4/23/90 at 23 (Brown), that each resident on psychoactive medication has a psychiatric diagnosis, Tr. 4/23/90 at 41 (Brown), and that each resident on psychoactive medication has a behavior management plan.

Id.

LLH & TS has written and implemented policies and procedures pertaining to the use of psychoactive medication which proscribe the use of such medication for punishment, or for the convenience of staff, or as a substitute for habilitative programs. Def.Exh. BX at 1. LLH & TS policy also requires that the informed consent of the resident’s guardian be obtained prior to the administration of psychoactive medication. Def.Exh. BX at 3, 6-7.

The review mechanism in place at LLH & TS for the use of psychoactive medication is twofold. First, the IDT of each resident reviews the use of psychoactive medication at least annually. Tr. 4/23/90 at 44-45

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(Brown). Part of the IDT, described as “the core”, which includes the Qualified Mental Retardation Professional (“QMRP”), a psychologist, a nurse, and a physician, reviews the psychoactive medication regime at least quarterly. Tr. 4/23/90 at 45 (Brown). At these quarterly reviews, the psychologist provides data summaries of selected targeted behaviors over the preceding three months and the QMRP provides an overview of the client’s progress and behavior. Tr. 4/23/90 at 46 (Brown). Reduction of psychoactive medication is regularly considered on an individualized basis in consultation with the psychiatrist, the primary physician and other observers. Tr. 4/23/90 at 53-54 (Brown); Def.Exh. BX at 3.

There are additional reviews by two review boards; the Technical Review Board (“TRB”) and the Institutional Review Board (“IRB”). Def.Exh. BX at 2; Def. Exh. BY. The TRB consists of representatives of each of the pertinent disciplines, including a social worker, psychologist, cottage supervisor, QMRP, nurse, special education teacher, 'chaplain and physician. The TRB reviews aversive behavior programs and the use of psyehoactive medication at least every six months. Tr. 4/23/90 at 48-49 (Brown).

The IRB members include an attorney, the head of the parents committee, a clinical psychologist, a chaplain and the medical director. Tr. 4/23/90 at 50 (Brown). The IRB reviews any proposed treatment program involving the use of psychoactive medications, physical restraints or time out procedures. Tr. 4/23/90 at 50 (Brown); Def.Exh. BY at 6. The IRB reviews are conducted prior to the implementation of the program and at least every six months thereafter. Def.Exh. BY at 6.

At FSH & TS, the Behavioral Review Committee, which consists of the psychology staff, medical staff and consulting psychiatrist, reviews the use of psychoactive medications and behavior modification programs. Pl.Exh. 315 at 70-75. In addition, all behavior modification programs at FSH & TS are reviewed by the Human Rights Committee, whose members include an attorney, a diagnostician and a priest. PI. Exh. 327 at 95.

As a general matter, plaintiffs’ medical expert did not find any inappropriate chemical restraints at either FSH & TS or LLH & TS. Tr. 4/4/90 at 174 (Crocker). He found the use of psychoactive medication at the facilities to be strikingly low for the population served. He did not find any evidence of inappropriate polypharmacy being practiced in regard to the thirteen named plaintiffs. Tr. 4/4/90 at 173-174 (Crocker); Pl.Exh. 168 at 2.

2. Physical Restraints

Aversive programming is the use of unpleasant stimuli to decrease behavior that is undesirable. Tr. 10/31/89 at 190-191 (Haywood). In May 1988, 39 residents at LLH & TS were on a list of those receiving aversive programming. Def.Exh. P at 17. Of the 39 residents so listed, only two actually received aversive stimulation: one was exposed to ammonia odor and the other was exposed to water mist. Def.Exh. P at 17. The other 37 residents on the list were subject to the use of mechanical restraining devices, including the papoose board, exclusionary time out, the camisole or straight jacket, the Mandt hold, a wheelchair, and certain protective devices such as mittens and helmets. Def.Exh. P at 17.

The most frequently used restraint in May 1988 was the papoose board. This is a restraining device that consists of a flat board with velcro-closing fabric “arms” on which residents are placed with their extremities immobilized. Def.Exh. P at 17. The use of a restraint for a long period of time results in an imbalance of muscle development. Tr. 4/27/90 at 58 (LaCourt). Defendants’ expert, Dr. Haywood, found that time out was used as punishment rather than as a training mechanism, and that papoose boards were an unnecessary restraint. Tr. 10/31/89 at 190 (Haywood).

In March 1990, LLH & TS dismantled all time out rooms. Tr. 4/27/90 at 33 (LaC-ourt). LLH & TS has also eliminated the use of aversive stimuli, Tr. 10/30/89 at 201 (Haywood), and there are no residents at LLH & TS who have four- or five-point

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restraint as part of their behavioral programs. Only one resident at LLH

&

TS has the use of a camisole or straight jacket as part of his program. Tr. 4/27/90 at 33-34 (LaCourt). The use of the camisole with this resident has been reviewed and a professional determination made that it is appropriate. Tr. 4/27/90 at 34 (LaCourt).

LLH & TS has also eliminated papoose boards as a component of behavioral programming. However, papoose boards continue to be used in connection with dental treatment. Tr. 10/31/89 at 201 (Haywood). ICF/MR standards require that facilities “employ physical restraint only as a health-related protection prescribed by a physician, but only if absolutely necessary during the conduct of a specific medical or surgical procedure, or only if absolutely necessary for client protection during the time that a medical condition exists.” PI. Exh. 15, Tag # 297. The dentist at LLH & TS, Dr. Lyons, testified that the papoose board is employed pursuant to an individual determination that a restraint is the least restrictive means available to ensure the safety of the client. The dentist's recommendation concerning the use of the papoose board is reviewed by the IDT and is present in the IPP of a resident when it is required. Tr. 4/26/90 at 260 (Lyons); Tr. 4/3/90 at 43-44 (Franczak).

21

Plaintiffs’ expert in behavioral psychology testified that the use of a papoose board for dental care is unnecessarily restrictive and violates ICF/MR standards. Tr. 4/3/90 at 43 (Franczak). Plaintiffs’ expert conceded, however, that he is not an expert in dental techniques, that he did not speak with any dentists at the facility, and that he had no knowledge of desensitization techniques employed by the dental staff. Tr. 4/4/90 at 8-9 (Franczak).

Evidence was presented concerning the use of restraints which are not part of a resident’s IPP. A report of uncorrected deficiencies noted that on February 17, 1989, the HCFA surveyors observed five residents of LLH & TS seat-belted (restrained) to toilets. This was not part of toilet training programs set forth in their IPPs. Pl.Exh. 5 at 5. On May 3, 1989, the surveyors again observed residents of LLH & TS seat-belted to toilets because only one staff member was available to assist six residents.

22

Id.

FSH & TS has never used physical restraints as part of a behavioral program and has used them less than five times on an emergency basis. Tr. 4/24/90 at 153 (Miller); Tr. 4/20/90 at 143 (Reid). There has never been a time out room at FSH & TS. Tr. 4/24/90 at 151 (Miller); Tr. 4/20/90 at 143 (Reid). There is no evidence of the use of aversive programming at FSH & TS.

G.

Regression

Plaintiffs’ medical expert, Dr. Crocker, found the residents whose records he reviewed to be medically stable, with no notable deterioration in their conditions. Although Dr. Crocker believed that more analysis should have been given to the cases of plaintiffs such as Ms. Willmon, Ms. Tsosie and Mr. Shirley, he testified that he could not say that the therapeutic outcome would have been different. Tr. 4/4/90 at 209-210 (Crocker);

see also

Tr. 12/14/89 at 74-75 (Attermeier). Inadequate documentation and the absence of baseline data make it impossible in many instances to determine whether residents of LLH

&

TS and FSH & TS have progressed, regressed or experienced no change. Tr. 11/16/89, Vol. I at 93, 96-97, Vol. II at 128-129 (Spencer); Tr. 12/12/89 at 139 (Beckman); Tr. 11/13/89 at 157 (Cox); Tr. 12/14/89 at 170-174 (Attermeier).

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H.

Safety and Physical Harm

ICF/MR regulations require a facility to ensure that residents are not subjected to physical, verbal, sexual or psychological abuse. Pl.Exh. 15, Tag # 127. Plaintiffs’ experts determined that there are no life threatening conditions or situations at either LLH & TS or FSH & TS. Tr. 4/4/90 at 168 (Crocker); Tr. 10/17/89 at 107 (Rowe); Def.Exh. F at 1-3. However, a record review shows that residents of both facilities have been victims of abuse and injury.

1. Abuse

The threat of abuse for the residents of LLH & TS and FSH & TS as compared to other segments of society is increased to the extent that there are a large number of people in those institutions with dependent needs. Tr. 4/20/90 at 53 (Reid). In 1986, four residents of Bashein Cottage at LLH & TS suffered abrasions and puncture wounds to the head. Another resident was sexually assaulted and died two days later. These acts of abuse and/or neglect were unexplained and unaccounted for by the institution. Pl.Exh. 85. More recently, an employee of LLH & TS, who abused a resident by repeatedly kicking him, was merely suspended, although staff are frequently dismissed for excessive absenteeism. Pl.Exh. 328 at 187-191 (Brownstein).

2. Accident and Injury

It is not uncommon for persons with developmental disabilities, such as those at FSH & TS and LLH & TS, to sustain injuries. Many of the residents’ injuries result from seizures which cause them to fall and injure themselves. Physical disabilities that diminish motor skills often cause residents to fall and stumble. In addition, in congregate care settings such as LLH & TS and FSH & TS residents with maladaptive behavior will injure other residents. Tr. 4/20/90 at 53-56 (Reid). Defendants’ expert found 57 residents of FSH & TS with at least a moderately serious propensity for hurting others. Tr. 11/1/89 at 103 (Haywood).

The records show that residents of LLH & TS and FSH & TS have sustained injuries. On October 5, 1985, plaintiffs Clinton Heath and Walter Stephen Jackson ingested oven cleaner from a juice cup and each suffered severe burns of his esophagus. Tr. 4/4/90 at 117 (Crocker); Pl.Exh. 179. The medical records for Clinton Heath document approximately one half-dozen lacerations per year between 1984 and 1987. Tr. 4/4/90 at 116 (Crocker). The medical records also indicate that plaintiff Walter Stephen Jackson’s left arm was fractured in 1976 and again in 1980, the last fracture requiring internal fixation with a plate. Tr. 4/4/90 at 120-122; PI. Exh. 182.

More recently, at LLH & TS plaintiffs’ expert found that thirty injuries — many from human bites — were reported for a single resident “R” between 12/4/88 and 2/27/90. Forty injuries were reported for resident John from 7/10/89 to 2/2/90. Sixty-five accidents were reported for resident George for the period of 2/16/89 to 2/10/90. Tr. 4/2/90 at 253-254 (Franczak).

See also

Tr. 4/16/90 at 132 (Sullivan); PI. Exh. 332.

23

Over the three month period from September to November 1989, George’s behavioral episodes escalated and included hitting, kicking, slapping, property destruction, noncompliance and inappropriate sexual behavior. In December 1989, George committed two rapes. The administrator of LLH & TS testified that George’s behavior demonstrated a need for additional intervention. In January 1990, a staff person was assigned to George on a one-to-one basis. Tr. 4/27/90 at 144-145 (LaCourt).

At FSH & TS, 47 incident reports were filed relating to 20 individuals who lived in Socorro Cottage between July and December 1989. Of those incident reports, 33 were filed between October 9 and November 1, 1989. One resident inflicted 747 batteries in a six month period. Tr. 4/2/90

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at 254 (Franezak). The medical staff at FSH

&

TS treats residents for lacerations, human bites, bruises, wounds requiring sutures, and broken bones. In 1989, Patricia L. had the following visits to the infirmary: two for self-abusive behavior; nine for human bites; three for battery by others; two for mashed fingers; and one admission overnight because another resident had sprayed deodorant in her eyes. Pl.Exh. 332.

Plaintiffs presented no evidence that the rate of injury at either LLH & TS or FSH & TS is excessive for the population they serve or that the residents experience a higher rate of injuries and accidents than do persons who reside at other facilities or in non-institutional environments. Tr. 4/3/90 at 245-247 (Franezak); Tr. 4/4/90 at 205-206 (Crocker). The question, however, is not whether other facilities or non-institutional environments would be safer, but whether the state facilities in this case have unsafe conditions. Plaintiffs’ expert testified that there are a number of injuries occurring repeatedly with no attempt by the IDTs to make any changes in the plans to prevent further injuries. Descriptions of the causes of injuries are confusing. Most were described as being “witnessed by staff” but of “unknown cause.” Generally, descriptions of the incidents were vague, not identifying the individuals involved or the places the incidents occurred. Even when specific information is available there is no attempted pattern analysis. Tr. 4/2/90 at 255-256 (Franzeak).

For at least the last three years, the Director of Nursing at LLH & TS collected the information and looked for trends or unusual constellations of injuries associated with a particular time, place or resident. Tr. 4/23/90 at 60-62 (Brown); Tr. 4/27/90 at 138 (LaCourt). This was a hand-generated system in which the Director of Nursing entered the information on a graph which was kept on a legal-size piece of paper.. Tr. 4/27/90 at 138 (LaCourt). A computerized system of pattern analysis was not instituted at LLH & TS until April 1990. Tr. 4/27/90 at 137-139 (LaCourt).

3. Reports

The ICF/MR standards require facilities to ensure that all allegations of mistreatment, neglect, abuse and injuries of unknown sources are reported immediately to the administrator and are thoroughly investigated; and that investigation results are reported to the proper authorities within five working days of the incident. Pl.Exh. 15, Tag ## 153, 154, 156.

LLH & TS has established policies and procedures for documenting all injuries suffered by residents. Tr. 4/23/90 at 60-61 (Brown); Def.Exh. BZ. Direct care staff investigate the circumstances of an injury. All injuries are then reported to the nurse assigned to the cottage in which the resident lives and also to the resident’s physician. Tr. 4/23/90 at 60-62 (Brown).

The staff at FSH & TS complete incident/accident reports and abuse, neglect and mistreatment reports and maintain behavioral summaries of all behavioral incidents. Tr. 4/24/90 at 102-103 (Miller); Tr. 4/20/90 at 69-70 (Reid); Def.Exh. BU, EO, EP. In addition, all allegations or suspected incidents of abuse or neglect at FSH & TS are reported to the New Mexico Human Rights Service Department. Pl.Exh. 327 at 97-98.

24

I.

Direct Care Staff

The ICF/MR standards require that each staff member be trained in, and able to demonstrate the competencies, skills and techniques necessary to implement the IPPs of the residents for whom that member is responsible. Pl.Exh. 15, Tag

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# 189-194. The evidence presented showed that there is not enough direct care personnel, that staff supervision is inadequate, and that existing staff members lack sufficient training.

The experts agreed that the staff members at LLH & TS and FSH & TS are caring, dedicated and sincere in their efforts to provide the best care possible under the circumstances that exist at the institutions. Tr. 4/4/90 at 168 (Crocker); Tr. 10/17/89 at 135, 137 (Rowe); Tr. 4/3/90 at 235 (Franczak); Tr. 4/17/90 at 166-167 (Romero). However, even the most well-meaning care providers cannot be expected to perform adequately when they are insufficient in number, poorly trained and supervised, and unfamiliar with the plans developed for the residents.

1. Insufficient Staff and Inadequate Supervision

The HCFA surveyors found there were insufficient numbers of direct care staff and inadequate staff supervision of FSH

&

TS and LLH & TS residents.

Defendants’ expert, Dr. Haywood, recommended the addition of direct care staff at FSH & TS. Tr. 10/31/89 at 164 (Haywood). The surveyors have found numerous deficiencies in facility staffing at FSH & TS, although the HCFA surveyors have never recommended FSH & TS for decerti-fication. Pl.Exh. 14, 93, 94. Most recently, the surveyors found the number of staff too few to provide the assistance and training that the residents require, particularly residents who are severely and profoundly retarded. Also, the staff was too small to manage and supervise residents in accordance with their IPPs; to afford the residents choices during their recreation; to provide supervision, individualized assistance and personal care training in privacy; or to implement successfully the program plans in the living units for the severely and profoundly retarded residents. Def. Exh. EE at 3-5, 18;

see also

Pl.Exh. 14 at 8, 10; Tr. 10/17/89 at 71 (Rowe); Def.Exh. EEE at 6.

FSH & TS has added sixteen direct care staff positions and was authorized to add four more. Tr. 10/31/89 at 164-165 (Haywood). In addition, the defendants’ plan of correction indicates that the residential service director will hire ten additional staff and that the administrator of the facility will present to the Health and Environment Department a request for additional staff to be hired in phases. Def.Exh. EE at 4.

Surveys of LLH & TS in February, May and June 1989 found the facility ineligible for certification as an ICF/MR in part because of insufficient staffing. Def.Exh. F at 3; Pl.Exh. 5. Specifically, the surveyors found that staff in the cottages and in adult services did not adequately provide supervision, assistance and training to the residents. The surveyors observed residents seat-belted to toilets because only one staff member was available to assist six residents. Some residents urinated and defecated in their pants while waiting their turn. At the gym the surveyors observed two female staff members sitting at a table talking to each other for ten minutes while five other staff members attended to thirty-six residents in various activities. In adult services, surveyors saw residents self-stimulating, running around the room, screaming and hitting each other, when there were ten residents but only two staff members present. Pl.Exh. 5 at 5, 11, 27. By the time of trial, LLH & TS had added eighty-eight positions for direct care staff and sixty-one additional support personnel since the HCFA surveys found deficiencies. Tr. 10/30/89 at 51-52, 213 (Nunn).

2. Staff Training

a.

Preservice Training

A significant number of direct care staff presently employed at LLH & TS and FSH & TS received only two days of preservice training. Tr. 10/30/89 at 83 (Nunn); Tr. 10/16/89 at 179-180 (Rowe); Tr. 4/4/90 at 275-276 (Beauregard).

25

As of April 1989,

*1278

newly hired direct care staff personnel LLH & TS received two weeks of employee orientation. Tr. 4/4/90 at 274-275 (Beauregard). However, in mid-1989 employee orientation was reduced from two weeks to two days to accommodate the increase in new hires.

Id.

at 276 . Over two hundred employees received the two day training session between May 1989 and January 1990.

Id.

at 282 .

The staff development director at LLH & TS testified that in the course of the two-day orientation, new employees underwent training in behavior management techniques, restraint practices, data collection procedures, active treatment, the individual program plan process, physical management and positioning of residents, handling residents with seizure disorders, feeding residents who need assistance, infection control, fire safety, and incident reporting. They also received an introduction to developmental disabilities. In addition they received information concerning employee insurance benefits, parking at the facility, personnel rules and institutional policies and procedures. Tr. 4/4/90 at 276-278 (Beauregard). Direct care staff are not provided instruction in first aid, CPR, or mandt training.

26

Tr. 4/4/90 at 278-279 (Beauregard). Plaintiffs’ expert, Dr. Rowe, testified that the two-day training is inadequate, particularly for individuals without prior training or experience in developing services for and providing services to people who are developmentally disabled. Tr. 10/16/89 at 180 (Rowe).

At the conclusion of the two-day training session, the employees were tested. If an employee did poorly in a particular area, that person would receive additional training in that area, after beginning work. Tr. 4/4/90 at 281-282 (Beauregard). The staff development director could not recall any instance where an individual who had received the two days of training did so poorly on the test that LLH & TS refused employment. Tr. 4/4/90 at 282 (Beauregard).

b.

In-Service Training

Staff at LLH & TS and FSH & TS receive ongoing training. Tr. 10/30/89 at 60-63 (Nunn); Def.Exh. K; Pl.Exh. 310 at 38; Tr. 4/19/90 at 243 (Reid). Defendants testified that the professional staff at LLH & TS train the direct care staff on implementation of the program plans. Tr. 10/30/89 at 52, 77, 85 (Nunn). However, direct care staff are not adequately trained to implement the residents’ individual program plans.

Staff are assigned to work with residents who have complex needs prior to receiving training in the residents’ programs. Plaintiffs presented the testimony of a direct care staff member at LLH & TS who had been employed at the facility for a year and a half. She was transferred from Chavez East to Cottage 2, where she had been working for eleven days at the time she testified. The residents of Cottage 2 were a new group of residents. Tr. 4/13/90 at 214 (Gutierrez). The staff member testified that she participated in the feeding of the residents of Cottage 2 and that some of the residents experienced difficulty swallowing and keeping down food. She said, however, that she was waiting for a supervisor to begin her in-service training on feeding the residents of that cottage. Tr. 4/13/90 at 216-217 (Gutierrez).

Direct care staff at LLH & TS are not familiar with the residents’ IPPs. In February 1989, after observing various activities throughout the facility, the surveyors found that the staff could not identify the objective for a particular activity as it related to each individual’s IPP. Pl.Exh. 14 at 14. The surveyors interviewed two staff members who were responsible for sixteen residents. When the staff members were asked about the residents’ IPPs, a staff member responded “Don’t ask me, I don’t know.” One staff member indicated that she had been employed for two weeks; the other staff member had been employed for approximately two months. Pl.Exh. 5 at

*1279

21, 11 C. The surveyors also observed staff placing a resident on a papoose board. That resident’s behavior modification program required staff to ignore the resident’s tantrums, but the staff was unaware that this was part of the program. Pl.Exh. 5 at 20, U A. In another instance, a resident’s physician instructed that the resident wear a cap due to the side effects of a medication. This instruction was not followed. Pl.Exh. 5 at 20, ¶ B.

See also

Tr. 4/13/90 at 196 (Baca).

The Adult Service Program Specialist at LLH & TS testified that she routinely teaches sign language classes at the training school in a formal manner. Tr. 11/2/89 at 20 (Donovan). However, in June 1989, the surveyors observed two residents in adult services who had a verbal and signing program that had not been implemented because the staff did not know sign language and was not familiar with this IPP objective. In another instance, staff members stated that they were not familiar with the residents’ IPP objectives and methods. Def.Exh. F at 15,17. A resident was observed merely sitting in a chair for fifteen minutes in front of a wooden stand from which bells were hanging on three different colored strings. The resident’s IPP stated that in this exercise she was to choose an item presented to her within five seconds. Not only was this not occurring, when asked what the resident was supposed to be doing, the staff gave a nonsensical explanation that the resident was working on expressive language. Def.Exh. F at 31 118;

See also

Def.Exh. F at 31 ¶ 10, 32 1112.

In November 1989, the surveyors observed a resident who had turned away from leisure time activity and was chewing on the back of her chair. A staff member was asked what objective was being worked on for this resident and the staff member responded “I don’t know.” The staff member continued to work with other residents without redirecting the resident. Def.Exh. EEE at 8.

In March 1990, the surveyors found that the deficiencies in staff training continued. They observed a resident, in a group of six residents and two staff members, who had removed the shoelace from one of his shoes and was repeatedly putting the shoelace entirely into his mouth, chewing on it, removing it and chewing it again. Staff did not redirect the resident from this behavior, nor did they appear even to notice the resident’s behavior. Def.Exh. FFF at 7.

See also

Def.Exh. EEE at 8-9.

Direct care providers at LLH & TS testified regarding their training and interaction with residents. One staff member testified that she had been trained on a resident’s behavior modification program by the psychologist technician. She was not aware, however, that the resident’s IPP asked that environmental conditions be assessed to determine if they contributed to the resident’s inappropriate behavior. Tr. 4/16/90 at 145-146 (Thompson); Pl.Exh. 299, IPP 3/14/90 at 27.

See also

Tr. 4/16/90 at 152 (Thompson).

J.

Professional Staff

A foundation of competent professional knowledge is necessary to provide adequate habilitation. ICF/MR standards require that each resident receive the professional program services needed to implement the active treatment program defined by the resident’s IPP. Pl.Exh. 15, Tag # 164, Guidelines. A facility must have available enough qualified professional staff to carry out and monitor the various professional interventions in accordance with the stated goals and objectives of every IPP. Pl.Exh. 15, Tag # 167.

1. Insufficient Staff

Since May 1988, FSH & TS has added two master level psychologists and has begun the recruiting process for an additional Ph.D. psychologist. Tr. 10/31/89 at 163-164 (Haywood). FSH & TS also employs a full-time chief psychologist, Dr. Ortega. Pl.Exh. 315 at 2. Defendants’ expert, Dr. Reid, concluded the number of psychologists on staff at FSH & TS is appropriate to provide professionally adequate services. Tr. 4/20/90 at 151 (Reid).

However, at LLH & TS there were a number of professional staff vacancies at

*1280

the time of trial. In 1988, defendants’ expert, Dr. Haywood, recommended that LLH & TS add a clinical psychologist as chief psychologist to supervise and train the existing staff in assessment and treatment strategies. Def.Exh. P at 16. The chief psychologist position was also required by the Settlement Agreement with the Department of Justice. The position, however, is still vacant. The administrator of the facility is serving as chief psychologist until the position is filled. There are a number of additional vacancies in psychological services. In April 1990, 3 out of the 10 psychology positions at LLH & TS remained vacant. Tr. 10/30/89 at 54, 213 (Nunn); Tr. 4/27/90 at 21, 37 (LaCourt).

In addition, defendant’s expert, Dr. Haywood, found that LLH & TS did not have a “psychologist capable of the most up-to-date and sophisticated psychoeducational and behavioral pediatric assessments” and that there were “no psychologists who [were] competent in psychological treatment modes beyond behaviorism such as cognitive and/or psychodynamic approaches to treatment of the psychological problems of retarded persons.” Tr. 10/31/89 at 187-188 (Haywood); Def.Exh. P at 16.

2. Professional Staff Training

ICF/MR standards require that professional staff work directly with residents and with paraprofessional, nonprofessional and other professional staff who work with residents. Pl.Exh. 15, Tag # 165, 166. The surveyors found that the professional staff at LLH & TS fail to work with paraprofessional and nonprofessional staff to implement each resident’s active treatment program. Def.Exh. F at 15, 17.

See also

Pl.Exh. 318 at 44 (Chavez).

As part of the plan of correction, LLH & TS requires that psychologists, social workers and speech pathologists provide direct services to residents and direct care staff in the living units and program areas for fifty percent of their work time. Professional staff are also required to provide on-site training and demonstration for direct service workers in the implementation of the programs and the collection of data. Def.Exh. F at 15, 17; Tr. 10/30/89 at 52, 205 (Nunn).

3. Rehabilitation Services

A person with a severe developmental disability, who does not have the opportunity to move, may become worse without intervention. Tr. 12/14/89 at 135-136 (At-termeier). The inability to move normally associated with developmental disability can cause risks to health and development, including osteoporosis, contractures, kidney stones, digestive difficulties, circulatory problems, respiratory problems and lack of normal function, growth, and sensory development. Tr. 12/14/89 at 131-136 (At-termeier); Tr. 11/3/89 at 13 (Cox); Tr. 12/15/89 at 55 (Witemeyer). The influence of gravity on an immobile body can also cause deformities. Tr. 11/3/89 at 17 (Cox); Tr. 12/14/89 at 142 (Attermeier). Developmentally disabled persons need physical therapy and the need is even greater for persons who are severely retarded. Tr. 4/4/90 at 222-223 (Crocker); Pl.Exh. 319 at 33; Tr. 11/3/89 at 20 (Cox).

For almost three of the last six years, no physical therapists were employed at LLH & TS. In November and December 1988, LLH & TS provided only 39 hours of physical therapy time under contract. No physical therapy treatment was being conducted. The 39 hours were spent performing evaluations and paperwork. Tr. 12/15/89 at 55-56 (Witemeyer); Tr. 11/13/89 at 42 (Cox). In addition, LLH & TS had no physical therapy aides. Tr. 11/13/89 at 17 (Cox).

In September 1989, only seven residents of LLH & TS were receiving direct physical therapy treatment. Direct care staff were providing indirect therapy services such as positioning and ambulation programs. Tr. 12/14/89 at 15-16 (Attermeier). The therapists were spending most of their time performing evaluations, doing in-services for the staff and working on wheelchair adaptations. Tr. 12/14/89 at 149-151 (Atter-meier); Tr. 11/13/89 at 118-121 (Cox); Tr. 12/12/89 at 212 (Brownstein). In August 1989, there were two occupational thera

*1281

pists at LLH & TS. Tr. 11/16/89, Vol. II at 105-106.

There are currently over five full-time equivalent (“FTE”) physical therapists

27

and five full-time equivalent occupational therapists. Tr. 12/12/89 at 213 (Brown-stein); Tr. 11/13/89 at 116 (Cox); Pl.Exh. 313 at 7; Tr. 12/13/89 at 144 (Hacker). LLH & TS has been authorized to employ five OT/PT aides, three of whom have been hired. Tr. 12/12/89 at 214 (Brownstein). Maintenance of wheelchairs is performed by the adaptive equipment specialist, a full-time staff position at LLH & TS. Pl.Exh. 316 at 33.

LLH & TS now assigns every resident of the facility a physical therapist and an occupational therapist. Each cottage has a physical therapist or an occupational therapist assigned to it as the primary therapist. If the cottage has a physical therapist as the primary therapist, the occupational therapist serves as the secondary therapist, and vice versa, but the physical therapist still addresses the physical therapy needs for each resident and the occupational therapist addresses the occupational therapy needs. Tr. 12/12/89 at 209 (Brownstein); Tr. 12/13/89 at 144-45 (Hacker); Pl.Exh. 313 at 7-8.

Since May 1989, LLH & TS has required that all occupational and physical therapists spend at least fifty percent of their time working directly with the residents or training staff to perform indirect rehabilitation services. The therapists at LLH & TS are also required to perform assessments, to make recommendations for rehabilitation services to every resident’s IDT, and to develop a written plan to address those recommendations. The therapists are then required to train staff on the written training plan. Tr. 12/12/89 at 209-210 (Brownstein); Pl.Exh. 313 at 8. In addition, therapists monitor the rehabilitation programs by observing at least monthly the staff responsible for carrying out the plan. Pl.Exh. 313 at 8-9, 22.

LLH & TS provides ambulation programs and positioning programs for those residents who need them. As a general rule, residents including those positioned in foam inserts, are repositioned at least once every two hours. Tr. 12/15/89 at 9, 14 (Witemeyer); Pl.Exh. 313 at 10; Pl.Exh. 319 at 30-31; Pl.Exh. 316 at 91-93. When a physician writes an order for 24-hour positioning, the rehabilitation staff will provide in-service training to the direct care staff on the program plan. Pl.Exh. 313 at 9. Direct care staff are also trained to recognize skin breakdown in residents resulting from improper positioning. Pl.Exh. 308 at 80-81.

LLH & TS also operates an orthopedic clinic and a wheelchair clinic. Tr. 12/12/89 at 216 (Brownstein); Tr. 11/13/89 at 157-158 (Cox). The orthopedic consultant at LLH & TS regularly prescribes physical therapy services to selected residents of LLH & TS, including range of motion, seating devices, orthotics, ambulation, and gait training. Tr. 12/15/89 at 108 (Sherman). The rehabilitation staff consults with the orthopedic surgeon on an as-needed basis concerning the use of foam inserts for the wheelchairs. Pl.Exh. 316 at 91.

In addition to the rehabilitation department, LLH & TS has various other means of addressing gross motor needs of the residents. Many residents have an adaptive physical education program which includes aquatics and whirlpool; the recreation and education departments offer gross motor activities such as swimming and dancing. Tr. 12/15/89 at 9 (Witemeyer).

FSH & TS currently employs one physical therapist and was in the process of hiring a therapy aide in July 1989. Pl.Exh. 314 at 8. The physical therapist has been trained in the physical therapy needs of the developmentally disabled and has experience working with the developmentally disabled outside FSH & TS. Pl.Exh. 314 at 5-6. She also conducts in-service training for the staff. Pl.Exh. 314 at 10.

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In August 1989, FSH & TS had one part-time occupational therapist on staff. Def.Exh. QQ. The occupational therapist was working only 16 hours a week. Tr. 12/13/89 at 155 (Hacker). There were no occupational therapy aides. Pl.Exh. 317 at 15.

a.

Physical Therapy (“PT”)

i. Staffing

Plaintiffs’ experts presented conflicting testimony on the number of physical therapists needed to adequately serve the residents at LLH & TS. Plaintiffs’ expert, Eileen Cox, expressed her opinion that the number of FTE physical therapists is inadequate to serve the population. She testified that the professionally accepted ratio of physical therapists to nonambulatory persons is 1 to 24. Applying this ratio to the population of approximately 250 wheelchair users at LLH & TS would indicate that at least ten physical therapists are required. She also opined that at present physical therapy caseloads are unacceptably large. Tr. 11/13/89 at 115-117, 155 (Cox). Plaintiffs’ expert, also testified that a ratio of one physical therapist to two physical therapy aides is appropriate for the severely disabled, and she believed approximately sixteen physical therapy aides are needed for the LLH & TS residents who use wheelchairs. Tr. 11/13/89 at 117— 118 (Cox).

Plaintiffs’ expert, Allen Crocker, testified that in order to provide adequate physical therapy services at the institutions, there should be a ratio of one to one-and-a-half physical therapists per one hundred individuals. Based on a population of 350 individuals, this suggests that LLH & TS should have a staff of at least five or six physical therapists. Dr. Crocker thought that additional support staff such as adaptive physical education and physical therapy aides are also needed. Tr. 4/4/90 at 179 (Crock-er).

Defendants’ experts found that the number of rehabilitation professionals at LLH & TS, including OTs, PTs and OT/PT aides is adequate to provide professionally acceptable services. Tr. 12/13/89 at 149 (Hacker); Tr. 12/14/89 at 38-39 (Attermeier).

ii. Adequacy of Physical Therapy Services

Plaintiffs’ and defendants’ experts also presented conflicting testimony concerning the adequacy of physical therapy services at the institutions. Plaintiffs’ physical therapy expert, Eileen Cox, testified that the physical therapy services at LLH & TS are inadequate. She found, among other things, that there is little individualized positioning equipment available for residents of LLH & TS, that residents are not appropriately positioned in wheelchairs, and that foam inserts hold residents in deformed positions. Tr. 11/13/89 at 44-49, 81-82, 129, 138-139 (Cox).

She also testified that persons with physical disabilities will regress without active intervention to help them use the skills they have and that everyone, regardless of the level of disability, can make progress. Tr. 11/13/89 at 20, 28-29 (Cox). She stated, for example, that wheelchair inserts and other therapeutic equipment should be used to correct spinal deformities. Tr. 11/13/89 at 22-23 (Cox). However, plaintiffs’ experts recognized that there are some conditions which are progressive and will result in a loss of function which is not necessarily attributable to a deficiency in the care the resident receives. Tr. 11/14/89 at 81-82 (Cox); Tr. 1/5/90 at 163 (Klein).

Defendants’ expert, Dr. Attermeier, determined that the physical therapy services provided at LLH & TS conform to professionally acceptable standards and are adequate to prevent regression or deterioration insofar as it is possible to do so. Tr. 12/14/89 at 20-22 (Attermeier). She believed that the supply of positioning equipment at LLH & TS, including sidelyers, wedges, walkers, crutches, foam inserts and wheelchairs is adequate. Tr. 12/14/89 at 48-49 (Attermeier). She testified that she did not see anyone who she thought was “really poorly positioned” in a wheelchair. Tr. 12/14/89 at 50 (Attermeier).

Defendants’ experts further testified that physical deformities, such as a fixed

*1283

scoliosis, are not amenable to correction by physical therapy and that the use of adaptive equipment to correct deformities is not only ineffectual but could be potentially dangerous. Tr. 12/15/89 at 11-12 (Witemeyer); Tr. 12/15/89 at 113 (Sherman).

With respect to FSH & TS, plaintiffs’ physical therapy expert testified that she did not see enough of the facility to form a general opinion about the quality of physical therapy services at FSH & TS. Tr. 11/14/89 at 53 (Cox). However, she found that Alfred Shirley, Joe Gonzales and James Fritche are not receiving enough physical therapy to meet the objectives set forth in their IPPs. Pl.Exh. 96 at 12-13, 14, 15.

Defendants’ expert concluded that the physical therapy services at FSH & TS are adequate and appropriate. FSH & TS does not have many residents with very serious neuro-medical problems. Tr. 12/14/89 at 121-123 (Attermeier). Alfred Shirley, Joe Gonzales and James Fritche have been evaluated by a physical therapist and they receive direct physical therapy services recommended by that therapist. Pl.Exh. 314 at 19, 24-28, 30-31, 37-38, 40-41.

b.

Occupational Therapy (“OT”)

Occupational therapy encompasses a therapeutic approach to improving function or skill through activity. Occupational therapists assist people with disabilities to master the functional activities of everyday living and to meet the demands of their environment. The three major role areas that concern occupational therapists are work or school, recreation and leisure, and self-care. Tr. 11/16/89, Yol. I at 55-56; Tr. 12/13/89 at 106-107 (Hacker).

For the developmentally disabled population, there is considerable overlap between the rehabilitation services provided by the occupational therapists and the physical therapists, Tr. 12/14/89 at 30-31 (Attermeier); Tr. 11/16/89, Vol. I at 55-56, Vol. II at 61-62 (Spencer). This is particularly so at LLH & TS where many of the residents are nonambulatory and have significant physical impairments. Defendants’ experts felt that the overlap of occupational and physical therapy services at LLH & TS is appropriate. Tr. 12/14/89 at 31 (Attermeier); Tr. 12/13/89 155-156 (Hacker).

Plaintiffs’ expert, Karen Spencer, concluded that the occupational therapists at LLH & TS were competent. Tr. 11/16/89, Vol. II at 105 (Spencer). The occupational therapists have educational backgrounds and experience in the delivery of occupational therapy services to the developmentally disabled. Pl.Exh. 319 at 3-4. The occupational therapists perform evaluations, implement IPPs, fill wheelchair prescriptions and adaptations, and give in-service training to staff. Pl.Exh. 309 at 14-15.

Defendants’ expert, Bonnie Hacker, testified that in 1988, LLH & TS was not providing minimally acceptable professional OT services to the residents. There were only two occupational therapists on staff. Tr. 12/13/89 at 250 (Hacker). The occupational therapists were not involved in helping residents with their daily living skills or providing vocational training. Tr. 12/13/89 at 251-252 (Hacker). They were not sufficiently involved in the feeding program or the augmentative communication field. Tr. 12/13/89 at 253 (Hacker).

Prior to August 1989, LLH & TS had begun to fill some of the staff needs by hiring contract staff. In August 1989, the therapists were spending most of their time completing comprehensive functional assessments for all of the residents, which defendants’ expert found to be an appropriate use of their time and a way to lay a foundation for intervention. Tr. 12/13/89 at 248 (Hacker).

At the time of trial, defendants’ expert testified that the OT services provided at LLH & TS were more than adequate. Tr. 12/13/89 at 251, 254 (Hacker). The comprehensive functional assessments met basic standards of adequacy. Tr. 12/13/89 at 203 (Hacker).

In the summer of 1989, defendants’ expert found that the OT services at FSH & TS did not rise to acceptable levels. Tr. 12/13/89 at 246 (Hacker). The residents at FSH & TS were receiving training in self-

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help skills and vocational training. Tr. 12/13/89 at 245-46 (Hacker). The occupational therapist was evaluating all residents, providing direct therapy services, training staff, and monitoring all programs. Pl.Exh. 17 at 15, 25-26. She also worked with residents on feeding programs and ordered adaptive equipment as appropriate. Pl.Exh. 317 at 23-25; Pl.Exh. 320 at 60, 64, 65, 75-76.

However, defendants’ expert concluded that the range of OT services at FSH & TS was limited and she made several recommendations for improvement. Tr. 12/13/89 at 246 (Hacker).

First, defendants’ OT expert recommended that the occupational therapy staff be increased to at least one full-time occupational therapist and one full-time certified occupational therapy assistant to enhance and expand the services of the occupational therapist. Tr. 12/13/89 at 155-156 (Hacker). HED has authorized one full-time occupational therapist and one full-time certified occupational therapist assistant for FSH & TS. At the time of trial, FSH & TS had begun the recruiting process to fill these positions. Tr. 12/13/89 at 156-157 (Hacker); Def.Exh. QQ.

Second, defendants’ expert expressed concerns about the vibration programs at FSH & TS and suggested that they be carefully reevaluated. The occupational therapist at FSH & TS began the vibration therapy program in June 1989. Pl.Exh. 317 at 18. Plaintiffs’ expert believed the use of vibration therapy to be extremely unprofessional. Plaintiffs' expert testified that it appeared to be applied randomly and globally to the residents of FSH & TS. The persons who administered the therapy did not have the ability to evaluate it, or to monitor the residents’ responses to it or to determine whether it was making any difference. Tr. 11/16/89, Vol. I at 60-61 (Spencer). Subsequently, the vibration therapy was canceled for all residents. In the future, if a resident is to receive vibration therapy, the therapy will be administered only after the resident has been reevaluated and will only be administered by an occupational therapist or certified occupational therapist assistant. Def.Exh. QQ; Tr. 12/13/89 at 156 (Hacker).

Third, defendants’ expert recommended that the records more carefully reflect the reasons for selecting and instituting programs for certain residents, the manner by which residents had been evaluated and the purpose of the programs. This is now being done at FSH & TS. Tr. 12/13/89 at 156 (Hacker).

Finally, defendants’ expert recommended that FSH & TS use interdisciplinary clinics, particularly in the areas of feeding and oral motor skills, and augmentative communication. These are existing needs that should be addressed. Tr. 12/13/89 at 157 (Hacker).

These recommendations have been accepted by FSH & TS. Tr. 12/13/89 at 247 (Hacker). Defendants’ expert testified that the program that should develop as a result of her recommendations would be adequate. Tr. 12/13/89 at 158 (Hacker).

c.

Assessments

During the summer of 1989, the rehabilitation professionals at LLH & TS assessed the OT and PT needs of every resident with the Comprehensive Functional Assessment. Tr. 4/27/90 at 163 (LaCourt); Def.Exh. G; Tr. 12/14/89 at 13 (Attermeier). Prior to the summer of 1989, comprehensive functional assessments had not been performed. Tr. 12/13/89 at 248 (Hacker). The relevant portions of the CFA were subsequently revised in the fall of 1989 and have been in place since January 1990. Tr. 12/12/90 at 210-212 (Brownstein).

All residents will have been reevaluated with the new rehabilitation assessment instrument by June 30, 1990. Tr. 4/27/90 at 164-165 (LaCourt); Tr. 12/12/89 at 210-212 (Brownstein); Tr. 12/14/89 at 150-151 (Attermeier); Tr. 12/13/89 at 200 (Hacker); Def.Exh. NN. The assessments have been scheduled to allow the therapy staff to conform to the requirement that they spend fifty percent of their time either directly performing services or training staff to perform those services. Tr. 12/12/89 at 212-213 (Brownstein).

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Defendants’ PT expert, Dr. Attermeier, thought the original rehabilitation section of the CFA was “ridiculous and not helpful.” Def.Exh. UU at 2; Tr. 12/14/89 at 25 (Attermeier). However, she felt that the CFA, as subsequently revised, was professionally adequate to monitor either the progress or deterioration in residents at LLH & TS and to evaluate generally the PT needs of LLH & TS residents. Tr. 12/14/89 at 26 (Attermeier); Def.Exh. NN.

4. Speech and Language Services (“SPL”)

Communication services are an important component of active treatment. There are currently eight full-time equivalent speech and language therapists at LLH & TS. Tr. 12/12/89 at 223 (Brownstein).

28

The duties of the speech and language therapists are similar to those of the physical and occupational therapists. SPL therapists are required to spend at least fifty-percent of their time working directly with the residents or training staff to perform rehabilitation services. They are required to complete assessments, participate in the IDT process, complete IPP objectives, and train staff on any written training plans they formulate. Tr. 12/12/89 at 216 (Brown-stein).

LLH & TS operates a dysphagia clinic and feeding programs that consult a dietician, SPL, direct care staff, physicians and dentist. Tr. 12/15/89 at 75-76 (Witemeyer); Tr. 12/12/89 at 216 (Brownstein). Plaintiffs’ experts decided that the dyspha-gia clinic was professionally appropriate. Tr. 12/12/89 at 135-136 (Beckman); Tr. 12/13/89 at 149 (Hacker).

Prior to December 1989, there was one full-time speech and language pathologist on staff at FSH & TS. FSH

&

TS subsequently hired an additional part-time speech and language pathologist. Def. Exh. QQ.

29

FSH & TS operates a feeding program for residents who have difficulty eating. Pl.Exh. 317 at 25-26.

While plaintiffs’ expert was highly critical of past practices, neither plaintiffs nor intervenors presented evidence that the current speech and language services provided to the residents at either LLH & TS or FSH & TS are inadequate. Plaintiffs’ expert visited LLH & TS in August 1989. She did not review the comprehensive functional assessments or current IPPs of any resident, with the exception of Andra Martinez. Tr. 12/12/89 at 180-183 (Beckman).

5. Adaptive Equipment

Adaptive equipment is an important area for occupational therapists, physical therapists and speech and language pathologists. Adaptive equipment can facilitate a developmentally disabled person’s mobility, communication and self-care skills. Tr. 11/16/89, Vol. I at 106-107 (Spencer); Tr. 12/13/89 at 150 (Hacker). To utilize effectively adaptive equipment, a resident must be able to exercise some control over a body movement and to understand the effect of the movement. Tr. 11/2/89 at 158 (Donovan); Tr. 12/13/89 at 153-154 (Hacker).

Adaptive equipment such as electronic switches, communication aids, adaptive feeding equipment, including built up spoons and plates with raised edges, positioning equipment and equipment for mobility are available at LLH

&

TS. Tr. 11/2/89 at 158-159, 162-85 (Donovan); Tr. 11/16/89, Vol. II at 87 (Spencer); Tr. 4/19/90 at 223, 242-43 (Reid). Adaptive equipment is also available in the library to be checked out to residents. Different equipment can be sampled by residents before a determination is made as to what equipment is most useful and meets the

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needs of the particular resident. Tr. 12/13/89 at 151 (Hacker).

Plaintiffs’ experts found that little adaptive equipment is in use at LLH & TS. Residents of LLH & TS are not provided with adequate individualized adaptations, such as head pointers, electric correlators, and feeding devices. Tr. 10/18/89 at 169-170 (Brown); Tr. 11/16/89, Yol. I at 108-111 (Spencer). Adaptive equipment, such as switching devices, that is used for training in the classroom are not available in the living units, where they could be used to control radios, doorways, locks or wheelchairs. Tr. 11/16/89, Vol. I at 110-112 (Spencer). Defendants’ expert also found that LLH & TS needed a wider use and availability of adaptive devices. Tr. 4/20/90 at 126 (Reid).

In 1989, the HCFA surveyors observed that a resident was to use a communication board, but the board was not with him during outdoor activities. The surveyors also noted that a resident’s records indicated that the resident would benefit from a language board; however, there was no language board available in the resident’s cottage. In another instance the surveyors noted that a resident’s IDT recommended that he be assessed for a communication board. There was no indication in the records that the assessment had been conducted and there was no communication board in the resident’s cottage setting. Def.Exh. F at 29, 115; Pl.Exh. 5 at 24, H E, G.

In addition, no resident at LLH & TS has an electric wheelchair. Pl.Exh. 316 at 106-107. An occupational therapist at LLH & TS testified that in her three years at LLH & TS she has never evaluated a resident for whom she thought an electric wheelchair was appropriate. It was unclear from her testimony whether she had never performed such evaluations or whether her evaluations indicated that an electric wheelchair was inappropriate for any of the residents she considered. She also testified, in a somewhat flippant manner, that wheelchairs “do not hold up well at all in an institutional setting. They require almost constant maintenance and are out of service almost as much as they are in service.” Pl.Exh. 316 at 106-107.

K.

Education

1. School-Age Programs

Every school-age resident, i.e. a resident under the age of twenty-two, at LLH & TS and FSH & TS is evaluated by an Educational Appraisal and Review Committee (“EAR”). That committee determines, much like an IDT does, what the educational needs are of an individual resident and whether, based on those needs, the individual should attend public school in the community or a special education program at the facility. Pl.Exh. 310 at 76-77; Tr. 4/27/90 at 196 (LaCourt); Tr. 4/19/90 at 224-226 (Reid).

There are five or six residents at FSH & TS who are of school age. They all attend the Capitan Municipal Public Schools for a full school day. Tr. 11/3/89 at 89 (Aldaz); Pl.Exh. 327 at 184 (Aldaz). This lawsuit was among the catalysts that led to full-time public school education for the school-age residents of FSH & TS. Pl.Exh. 327 at 185 (Aldaz).

LLH & TS currently has approximately 67 school-age residents. Tr. 4/27/90 at 195 (LaCourt); Tr. 11/2/90 at 114 (Donovan). Of these 67 residents, eight attend public school in the City of Los Lunas. Tr. 4/27/90 at 195 (LaCourt). The remaining fifty-nine attend the special education program at the facility. Tr. 4/27/90 at 161 (LaCourt). When asked whether many of these individuals could receive services at least as effective in the public school system, the administrator of LLH & TS testified that “[f]or many of [these] individuals ... there are equivalent services in the public schools.” Tr. 4/27/90 at 161 (LaCourt).

a.

Public Schools

There is coordination of services between the institutions and the public schools. For example, LLH & TS trains public school teachers in the IPPs of the LLH & TS residents attending the public schools and invites representatives of the public schools to participate in the IDT process. Staff at

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LLH & TS visit the public schools to monitor residents in their public school programs and public school teachers are invited to attend EAR committee meetings. Occasionally, psychologists and other professionals accompany residents to the public schools. Tr. 11/2/90 at 135-136 (Donovan); Tr. 10/30/89 at 48-49 (Nunn).

The administrator of FSH & TS attends all EAR committee meetings. FSH & TS also assigns a liaison to the Capitan public schools. The liaison attends EAR committee meetings and FSH & TS invites school representatives, including teachers and counselors, to attend the residents’ IDT meetings. The Capitan schools receive copies of the residents’ IPPs; and FSH & TS receives copies of the residents’ Individual Education Plans which are drafted by the school. Tr. 11/3/89 at 89-90 (Aldaz); PI. Exh. 310 at 75-76, 78-81.

b.

Special Education Program at LLH & TS

LLH & TS has a special education program which is accredited by the New Mexico Department of Education. Accreditation requires that the special education unit of the Department of Education review LLH & TS’ special education program to ensure compliance with both federal laws and state regulations governing appropriate education. Tr. 11/2/89 at 115 (Donovan).

FSH & TS has not had a special education program since 1986. During the summer months, when the Capitan public schools are not in session, school-age residents of FSH & TS receive habitation services at the facility in accordance with their IPPs. Currently, at FSH & TS there are two teachers certified in special education and two teachers who are one course short of being certified in special education. Pl.Exh. 310 at 70-74.

2. Adult Services Programs

LLH & TS and FSH & TS both provide adult services programming. LLH & TS offers both a full-day of programs in the adult services area (“full-day program”) and a program which is conducted half-time in the adult services area and half-time in living units or other areas throughout the facility (“half-day program”). The decision of whether to place a resident in the full-day program or half-day program is made by the adult service program staff and members of the IDT. Often a formal recommendation will be made by the team. The adult services program at LLH & TS currently serves approximately 280 adults. Approximately 104 residents are in the full-day program. Tr. 11/2/89 at 41-43, 47-48, 214 (Donovan).

The Work Activity Center (“WAC”) is part of the LLH & TS adult services program. It is certified by the Department of Labor on an annual basis. To receive certification, LLH & TS is required to demonstrate that it follows all federal rules and regulations regarding employment for persons with handicaps, complies with the Fair Labor Standards Act, and pays residents a fair and commensurate wage rate. Tr. 11/2/89 at 49-50 (Donovan). The WAC offers a variety of employment activities including refinishing furniture, janitorial work, constructing pizza boxes for Pizza Hut, paper and can recycling, paper shredding, arts and crafts work, and assembling mud mats. Tr. 11/2/89 at 50-51, 54 (Donovan). ' Approximately 55 to 60 residents in the adult services program at LLH & TS participate in the WAC.

Id.

at 49 .

At the time of trial, LLH & TS had a newly designated position for a full-time employee whose primary job is the development of employment opportunities both within the facility and in the community. In the past, the staff person responsible for obtaining off-campus employment for residents of LLH & TS devoted little time to this activity because she had many other job responsibilities. Tr. 11/2/89 at 245-246 (Donovan).

Prior to authorizing the new position, LLH & TS had never made a systematic attempt to develop employment opportunities for the residents. Tr. 4/27/90 at 194-195 (LaCourt). Of the approximately 280 residents in the Adult Services Program, only four worked within the campus community, in the barber shop, canteen, laundry, the dining areas, or in classrooms as developmental disabilities technicians. Tr. 11/2/89 at 51, 229 (Donovan); Pl.Exh. 311

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at 39. Since April 1988, LLH & TS has only placed seven residents into work positions in the community. These job placements include Pizza Hut, a hardware store and a thrift shop. Tr. 11/2/89 at 64 (Donovan).

FSH & TS provides every resident with a day program in at least one of the following areas: activities of daily living, attention span, fine motor skills, and discrimination skills in Curry School and Lea School; independent living skills and socialization skills in the Transitional Program; greenhouse, gardening, and working with animals in the Farm Program; academic skills and computers in Otero School; attention span, pre-vocational skills, vocational skills, socialization skills and fine motor skills in ceramics and wood shop; and gross motor skills, endurance, and flexibility in physical education. Pl.Exh. 310 at 82-88.

No residents of FSH & TS have paying jobs at the facility. Four residents of FSH & TS have on-the-job training programs. Two individuals are working in the canteen, one works in the dietary program and one works in maintenance. Pl.Exh. 310 at 91. No residents of FSH & TS have jobs in the community. Pl.Exh. 320 at 89.

Lincoln House at FSH & TS is a transitional program for a small group of higher functioning men who live together in a house on the campus. It offers opportunities to develop independent living skills. The residents prepare meals and do household chores. FSH & TS has no plan for an equivalent transitional living program for females. Pl.Exh. 310 at 97-98. FSH & TS does offer a transitional day program with similar opportunities for developing independent living skills.

Id.

at 88 .

3. Adequacy of the Facilities’ Programs

30

a.

Functional and Chronologically Age Appropriate Programs

The experts agreed that the education and training programs at LLH & TS and FSH & TS have adequate staff ratios. Tr. 10/18/89 at 181-182 (Brown); Tr. 4/19/90 at 227 (Reid). Plaintiffs’ and defendants’ experts also agreed that it is especially difficult for developmentally disabled persons to learn how to do things from simulated activities. The more disabled an individual is, the more problems the individual has generalizing or transferring skills. Developmentally disabled persons learn best within the context of the actual activities themselves and not in a simulated way. They require concrete and tangible situations. Tr. 10/31/89 at 182 (Haywood); Tr. 10/18/89 at 106-108, 160-65 (Brown). Defendants’ expert, Dr. Haywood, therefore recommended that more training take place in the settings in which the behavior being developed is normally appropriate. Aggregating residents in school rooms and adult activity rooms can provide one kind of training; however, this does not satisfy the need for training in relevant settings. Tr. 10/31/89 at 182 (Haywood).

Plaintiffs' expert, Dr. Brown, found that the education and training programs at FSH & TS do not adequately teach functional skills. Tr. 10/18/89 at 167-168 (Brown). Defendants’ expert, Dennis Reid, agreed that the instructional strategies at FSH & TS needed to have a more functional approach. Tr. 4/20/90 at 127 (Reid). The curriculum of the education program at FSH & TS includes learning to open and close artificial zippers on a board; placing nuts on bolts and taking them off; working on form boards by inserting and removing figured shapes; sorting objects by shape, color, and size; lacing shoe laces on a board and buttoning buttons on a board. Tr. 10/18/89 at 104-105 (Brown); Pl.Exh. 320 at 23, 31 (Kearns). Residents also stack plastic bowls, sort them by color, put loops on pegs, sort toy silverware, and fold washcloths that are then immediately un

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folded by the instructor. Vol. I at 122-123 (Spencer). Tr. 11/16/89,

An observer described a resident’s program at FSH & TS as follows:

On both days of the observation she was stringing beads in the cottage both in the early morning when I came to see her and in the evening before dinner and then after dinner. That was the majority of the habilitation that I saw. I didn’t see the implementation of the behavior plan because, I guess, because they didn’t have the jumpsuit as the staff person indicated so even though she has a plan and the staff are aware of what to do, I did not observe that piece of habili-tation.

I didn’t observe anything to do with trimming her nails or washing her hands or any of those things, I, or shaving her legs, although I was there during the time that she was getting ready for bed and when she woke up in the morning, but I just saw her stringing beads, and I saw her do that independently for literally hours on end without any staff intervention that I saw by staff and it’s documented in the record is once she completed a necklace, the staff person came over, undid it, emptied all the beads out and told her to start again.

Ogle Depos. at 63-64.

In 1989, defendants began the process of revising the curriculum in one of the schools at FSH & TS to incorporate more functional programming. Pl.Exh. 310 at 61-62, 85 (Kearns).

Similarly, Dr. Brown found that the education and training programs at LLH

&

TS do not adequately teach functional skills and are not chronologically age appropriate. Tr. 10/18/89 at 167-168 (Brown). Defendants’ expert, Dennis Reid believed that LLH & TS needed improvement in the use of functional teaching activities. Tr. 4/20/90 at 125 (Reid). The curriculum of the education program at LLH & TS utilizes preschool materials such as pegboards, blocks, colored puzzles and simulated materials such as flashcards or audio tapes of a telephone ringing, doors opening and closing, and people playing the drums. Even in the cottages, residents use simulated training materials, such as silverware. Tr. 4/13/90 at 201-201 (Baca). Residents also use nuts and bolts and pegboards. Tr. 10/18/89 at 142-143, 145-147 (Brown); Tr. 4/13/90 at 191-194 (Baca). In 1989, the HCFA surveyors noted that one adult services program required residents with many behavioral problems to watch a movie for 90 minutes. Def.Exh. F at 31, 11 9.

When asked by the court to identify nonfunctional materials, the Adult Service Program Specialist at LLH & TS testified that one of the most nonfunctional training materials is a pegboard. She also identified simulated telephones, sorting boxes, form boards, zipper boards, and blocks as nonfunctional materials. Tr. 11/2/89 at 18, 107-108 (Donovan). In 1989, LLH & TS began working on substituting materials used in the education programs. Tr. 11/2/89 at 104 (Donovan). Nonfunctional equipment is no longer being ordered although this type of equipment had been ordered in the past. Tr. 11/2/89 at 106 (Donovan).

b.

Coordination between Cottage and Education Programs

Defendants testified that cottage staff are made aware of the content of the adult services programs. Cottage staff assist teachers and technicians in carrying out the programs. Tr. 11/2/89 at 94 (Donovan). The professional staff person responsible for drafting a training program trains direct care providers on the program plan. In addition, there is ongoing in-service training for people in the residential living units. Tr. 11/2/89 at 95 (Donovan); Tr. 10/30/89 at 77 (Nunn).

Plaintiffs’ expert determined that there is little communication and coordination between the educational programs and the cottages at both LLH & TS and FSH & TS. Tr. 10/18/89 at 114, 121-122, 141, 176 (Brown). For example, some of the residents were learning as part of their educational programs to set a table, but during meals in the cottages the staff provided the residents with utensils instead of allowing the residents to do this. Residents of the institutions who received training in activi

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ties of daily living such as tooth brushing, cannot practice those skills in the cottages because materials such as toothbrushes and toothpaste are not consistently available to the residents in their cottages. Tr. 10/18/89 at 110-112 (Brown); Pl.Exh. 14 at 3 ¶ A; Pl.Exh. 5 at 9 ¶ B. Residents who are taught to cook in the day program, are not encouraged to cook in their cottage settings. Pl.Exh. 5 at 32 ¶ A.

c.

Space

Defendants’ expert expressed concerns about the limited space for the education programs at FSH & TS and LLH & TS. Tr. 4/20/90 at 127-129 (Reid); Pl.Exh. 368. Plaintiffs’ expert, Dottie Rowe, also testified that the physical space available for adult education and training activities at FSH & TS was overcrowded and inadequate for habilitation or active treatment. Tr. 10/17/89 at 12 (Rowe).

L.

Choice, Privacy, Access to Personal Property

1.Choice

Defendants’ experts testified that residents of LLH & TS and FSH & TS who are able to exercise choices, are permitted to choose their own clothing, their own bedtime provided their health is not jeopardized, leisure-time activities, food at the canteen provided it is consistent with their dietary requirements, roommates, and programmatic activities. Tr. 4/26/90 at 183-185 (Nunn); Tr. 4/24/90 at 100-101 (Miller); Tr. 11/2/89 at 54 (Donovan). In addition, the parent of a resident of Lincoln House, the transitional living house at FSH & TS, testified that her son’s preferences are taken into consideration and that he has both freedom to choose and privacy. Tr. 4/17/90 at 141-142 (Hammond). Nonetheless, the HCFA surveyors found that the residents of Lincoln House did not have free access to money or the freedom to go shopping for items they wanted. Pl.Exh. 14 at 3. The surveyors also concluded that residents of LLH & TS are not encouraged to choose activities in the living units, to choose foods or to visit with residents in other cottages. Pl.Exh. 5 at 33.

2. Privacy

The staff at LLH & TS and FSH & TS have failed to safeguard the privacy of the residents. In Feb

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