Opinion

United States v. Com. of Pennsylvania

902 F. Supp. 565
1995 U.S. Dist. LEXIS 11861

Court: District Court, W.D. Pennsylvania
Filed: Jul 27, 1995
Status: Published
Author: Smith
On the bench: D. Brooks Smith
Cited by: 8 cases
Authority: More cited than 71.5%

noting that § 1997a(a) contains the elements for the Attorney General’s reasonable cause determination

How later courts described this case

noting that § 1997a(a) contains the elements for the Attorney General’s reasonable cause determination
"Optimal courses of treatment as determined by some expert, while laudable, do not establish the minimal constitutional standard."

Written by the judges who cited it.

The opinion

TABLE OF CONTENTS

Page

I. Introduction.577

II. Standard Of Proof.578

A. CRIPA Actions.578

B. Substantive Due Process Rights of Institutionalized Mentally Retarded Persons.580

C. The Professional Judgment Standard.582

III. Findings of Fact and Conclusions Regarding Liberty Interests at Issue in this Litigation.584

A. The Center’s Structure and Services.584

B. Adequate Basic Care.588

C. Adequate Medical Care.591

1. Neurological Care.591

*577

2. Psychiatric Care. 00 05

a. Psychiatric Assessment Techniques cn

<£>

b. Differential Diagnosis. 05 O

c. Psychiatric Treatment. as O

3. Gastroesophageal Reflux and Aspiration o

4. Nutritional Management. H tH C£)

a. Screening. H i — i

b. Assessment. (M i — l ^

c. Intervention . TP tH d

d. Monitoring. ^ i — l ^

e. Training. LO i — l O

5. Physical Therapy . <© rH

a. Assessment.

b. Wheelchairs. (M

c. Transfers. ^ Cx|

6. General Medical Care.626

7. General Nursing Care.628

D. Adequate Training and Freedom From Undue Restraint.631

E. Reasonable Safety and Protection From Harm.640

IV. CONCLUSION.649

OPINION AND ORDER

D. BROOKS SMITH, District Judge.

INTRODUCTION

This action presents a claim by the Attorney General, on behalf of the United States of America (“United States”), under the Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. §§ 1997 -1997j (“CRIPA”). The United States contends that the Commonwealth of Pennsylvania (“Commonwealth”) and the individually-named defendants (officers of the Executive Branch of the Commonwealth sued in their official capacities) are depriving institutionalized mentally retarded persons at the Ebensburg Center (the “Center”) of rights, privileges or immunities secured by the Constitution of the United States. Complaint (Docket No. 1), ¶¶ 1, 6-11. The United States seeks equitable relief, the sole remedy authorized by CRIPA

(see

42 U.S.C. § 1997a(a)), and asks this Court to enjoin defendants from “continuing the acts, practices and omissions” at the Center which allegedly violate the Constitution, and “to require defendants to take such action as will provide constitutional conditions of care to persons” who reside at the Center. Complaint, p. 5.

The instant CRIPA action was tried before this Court over the course of twenty (20) days. Extensive testimony by lay and expert witnesses was presented, hundreds of exhibits were received into evidence, and this Court conducted a detailed view of the facility in the presence of counsel.

Inasmuch as “[djecisional law interpreting [CRIPA] is virtually nonexistent”

(United States v. Pennsylvania,

863 F.Supp. 217, 218 (E.D.Pa.1994)), and in order to properly evaluate the evidence presented, I will first address the applicable standard of proof. Thereafter, for each alleged constitutional violation, I will discuss the nature of the duty owed, my findings of fact regarding the alleged violative conduct, and my conclusion regarding whether a violation exists.

For the reasons explained below, I find that the residents at the Ebensburg Center are not being deprived of their rights, privileges, or immunities secured or protected by

*578

the Constitution or laws of the United States. Accordingly, the United States’ request for injunctive relief shall be denied.

II.

STANDARD OF PROOF

CRIPA Actions

The Commonwealth submits that the standard of proof in this CRIPA action requires the United States to satisfy five elements set forth in 42 U.S.C. § 1997a. According to the Commonwealth, the United States must demonstrate:

1. egregious and flagrant conditions in a State institution resulting in;

2. a deprivation of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States;

3. said deprivation is pursuant to a pattern or practice of resistance to the full enjoyment of such rights, privileges or immunities; and

4. said deprivation causes;

5. grievous harm to persons residing in an institution.

See

Docket No. 22, pp. 34-35.

The United States argues that the Commonwealth’s extrapolation of these elements from 42 U.S.C. § 1997a is in error because that statute merely establishes the elements of the “Attorney General’s ‘reasonable cause’ determination that conditions at the institution in question merit Department of Justice involvement.” 30/3-4.

None of CRIPA’s provisions specifically address the elements which must be demonstrated by the United States at trial in order to obtain the equitable relief sought.

See

42 U.S.C. §§ 1997—1997j. Section 1997a is entitled “Initiation of civil actions,” and subsection (a)’s caption reads: “Discretionary authority of Attorney General; preconditions.” 42 U.S.C. § 1997a. Subsection (a) provides:

Whenever the Attorney General has reasonable cause to believe that any State ... is subjecting persons residing in or confined to an institution, as defined in section 1997 of this title, to egregious or flagrant conditions which deprive such persons of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States causing such persons to suffer grievous harm, and that such deprivation is pursuant to a pattern or practice of resistance to the full enjoyment of such rights, privileges, or immunities,

the Attorney General,

for or in the name of the United States,

may institute a civil action

in any appropriate United States district court against such party for such equitable relief as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment of such rights, privileges, or immunities ...

42 U.S.C. § 1997a(a) (emphasis added).

The plain language of § 1997a(a) reveals that the statute simply confers standing upon the Attorney General, thereby providing authority for the United States to initiate a lawsuit on behalf of mentally retarded persons, and others, who reside or are confined in an institution.

See Patsy v. Florida Bd. of Regents,

457 U.S. 496, 507-08 , 102 S.Ct. 2557, 2563 , 73 L.Ed.2d 172 (1982) (“The Civil Rights of Institutionalized Persons Act ... was enacted primarily to ensure that the United States Attorney General has ‘legal standing to enforce existing constitutional and Federal statutory rights of institutionalized persons.’ ” (quoting H.R.Conf.Rep. No. 96-897, 9 (1980) U.S.Code Cong. & Admin.News 1980, p. 787, 833);

United States v. Pennsylvania,

863 F.Supp. at 219-20 (“From this language [in § 1997a(a) ] the Court must hold that the Attorney General is vested with the discretion to bring suit whenever she is satisfied that a case is serious enough to warrant federal involvement. Once such a determination is made by the Attorney General, the standard of proof to be borne by the United States at trial must be the same as any other plaintiff.”);

United States v. Ten

*579

nessee,

798 F.Supp. 483 , 488 (W.D.Tenn.1992) (“CRIPA is a standing statute.”).

The five elements identified by the Commonwealth apply only to the Attorney General’s “reasonable cause” determination, which must be made before the Attorney General may properly institute a CRIPA action. 42 U.S.C. § 1997a(a). One court has concluded that this plain reading of the statute is supported by its legislative history.

Inasmuch as I conclude that it is clear from the text that § 1997a(a) is a standing statute, I believe an examination of its legislative history is unnecessary.

As the Supreme Court of the United States has noted, CRIPA is legislation pertaining to “a specific class of § 1983 actions.”

Felder v. Casey,

487 U.S. 131, 148 , 108 S.Ct. 2302, 2312 , 101 L.Ed.2d 123 (1988) (state statute creating exhaustion requirement for § 1983 action held violative of Supremacy Clause).

For

purposes of the instant action, it is important to remember that § 1983 did not

create

any new rights, but was enacted by Congress “to give a

remedy

to parties deprived of constitutional rights, privileges and immunities by an official’s abuse of his position.”

Monroe v. Pape,

365 U.S. 167, 172 , 81 S.Ct. 473, 476 , 5 L.Ed.2d 492 (1961) (emphasis added).

See also Parratt v. Taylor,

451 U.S. 527, 535 , 101 S.Ct. 1908, 1913 , 68 L.Ed.2d 420 (1981)

(Section

1983 provides “a ‘civil remedy’ for deprivations of federally protected rights caused by persons acting under color of state law without any express requirement of a particular state of mind.”).

The Supreme Court has identified “two essential elements” to a § 1983 civil rights action:

(1) whether the conduct complained of was committed by a person acting under col- or of state law; and

(2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.

Id. Accord Shaw v. Strackhouse,

920 F.2d 1135, 1141-42 (3d Cir.1990). Because CRI-PA was enacted to provide standing for the Attorney General to initiate civil rights actions on behalf of institutionalized persons, the “essential elements” that the United States must prove are the same as in any civil rights action.

See United States v. Pennsylvania,

863 F.Supp. at 220 (“[T]he United States has no greater standard of proof than an individual plaintiff would bear in a case alleging the same illegal conduct on the part of a state.”).

In this case, the United States alleges-—and the Commonwealth does not dispute—that “defendants have acted or failed to act ... under color of state law.” Complaint, ¶ 15. The core of the dispute here concerns whether defendants have “deprive[d] residents of Ebensburg of rights, privileges, or immunities secured or protected by the Constitution of the United States.”

Id.,

¶ 21. The individually-named defendants have been sued in their official capacities, which “ ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’ ”

Kentucky v. Graham,

473 U.S. 159, 165 , 105 S.Ct. 3099, 3105 , 87 L.Ed.2d 114 (1985) (quoting

Monell v. New York City Dept. of Social Services,

436 U.S. 658 , 690 n. 55, 98 S.Ct. 2018 , 2035 n. 55, 56 L.Ed.2d 611 (1978)).

Accord Will v. Michigan Dept. of State Police,

491 U.S. 58, 71 , 109 S.Ct. 2304, 2312 , 105 L.Ed.2d 45 (1989) (“Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. As such, it is no different from a suit against the State itself.”).

*580

In an official-capacity suit, a “governmental entity is liable ... only when the entity itself is a ‘ “moving force” ’ behind the deprivation; thus, in an official-capacity suit the entity’s ‘policy or custom’ must have played a part in the violation of federal law.”

Graham,

473 U.S. at 166 , 105 S.Ct. at 3105 (citations omitted). The United States’ Complaint in this action alleges that the Commonwealth’s “policy or custom” as implemented at the Center has violated the residents’ constitutional rights.

See

Complaint, ¶ 21 (“The acts and omissions alleged ... constitute patterns or practices of resistance to the full enjoyment of rights, privileges or immunities secured or protected by the Constitution of the United States, and deprive residents of Ebensburg of such rights, privileges or immunities.”).

Substantive Due Process Rights of Institutionalized Mentally Retarded Persons

The United States contends that the Commonwealth has subjected the residents of the Center to a deprivation of their liberty interests protected by the Due Process clause of the Fourteenth Amendment of the United States Constitution,

because they have not been provided:

a. adequate basic care—in particular, adequate food, shelter, clothing, and hygiene;

b. adequate medical care;

e. freedom from undue restraint, and training programs to ensure freedom from undue restraint; and

d. safe conditions.

Youngberg v. Romeo,

457 U.S. 307, 314 , 102 S.Ct. 2452, 2457 , 73 L.Ed.2d 28 (1982), the Supreme Court considered “for the first time the substantive rights of involuntarily committed mentally retarded persons under the Fourteenth Amendment to the Constitution.” The

Youngberg

Court acknowledged that “[t]he mere fact that Romeo has been committed [to a Pennsylvania state institution] under proper procedures does not deprive him of all

substantive liberty interests

under the Fourteenth Amendment.”

Id.

(emphasis added).

The defendants in

Youngberg

(three administrators of the Pennsylvania institution) “concedefd] a duty to provide adequate food, shelter, clothing, and medical care.”

Id.

at 324 , 102 S.Ct. at 2462. The Supreme Court noted that these duties “are the essentials of the care that the State must provide.”

Id.

Separate and apart from these interests, however, the plaintiff argued that he had “a constitutionally protected liberty interest in safety, freedom of movement, and training within the institution; and that [the defendants] infringed these rights by failing to provide constitutionally required conditions of confinement.”

Id.

at 315, 102 S.Ct. at 2457. The Court’s task, therefore, was to “decide whether liberty interests also exist in safety, freedom of movement, and training,”

*581

and, if so, to “decide whether they have been infringed in this case.”

Id.

The

Youngberg

Court found that the first two claims—safe conditions and freedom from bodily restraint—involved “liberty interests recognized by prior decisions of this Court, interests that involuntary commitment proceedings do not extinguish.”

Id.

(footnote omitted). The plaintiffs other claim—a constitutional right to minimally adequate training—was, in the words of the Court, “more troubling.”

Id.

at 316 , 102 S.Ct. at 2458.

In addressing the asserted right to training, we start from established principles. As a general matter, a State is under no constitutional duty to provide substantive services for those within its border. When a person is institutionalized—and wholly dependent on the State— it is conceded by petitioner that a duty to provide certain services and care does exist, although even then a State necessarily has considerable discretion in determining the nature and scope of its responsibilities. Nor must a State “choose between attacking every aspect of a problem or not attacking the problem at all.”

Id.

at 317, 102 S.Ct. at 2459 (citations omitted). The Court noted that the plaintiffs “primary needs” were “bodily safety and a minimum of physical restraint,” and the plaintiff “clearly claim[ed] training related to these needs.”

Id.

at 317-18, 102 S.Ct. at 2459. The Court therefore held that “[i]n the circumstances presented by this case, and on the basis of the record developed to date, we agree ... that [the plaintiffs] liberty interests require the State to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint.”

Id.

at 319, 102 S.Ct. at 2460.

Significantly, although the Court found that a constitutional liberty interest existed that required Pennsylvania to provide “minimally adequate or reasonable training,” the Court cautioned against adopting an unrestrained notion of liberty interests that would impose additional duties on a State:

It is not feasible, as is evident from the variety of language and formulations in the opinions below and the various briefs here, to define or identify the type of training that may be required in every case. A court properly may start with the generalization that there is a right to minimally adequate training. The basic requirement of adequacy, in terms more familiar to courts, may be stated as that training which is reasonable in light of identifiable liberty interests and the circumstances of the case.

A federal court, of course, must identify a constitutional predicate for the imposition of any affirmative duty on a State.

*582

Id.

at 319 n. 25, 102 S.Ct. at 2460 n. 25 (emphasis added).

After establishing that the plaintiff in

Youngberg

retained “liberty interests in safety and freedom from bodily restraint,” the Court explained the need to set forth a standard to apply in determining whether the State has violated these substantive due process rights of an involuntarily committed mentally retarded individual.

The question ... is not simply whether a liberty interest has been infringed but whether the extent or nature of the restraint or lack of absolute safety is such as to violate due process.

# s}: >}i

[WJhether [the plaintiffs] constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests. If there is to be any uniformity in protecting these interests, this balancing cannot be left to the unguided discretion of a judge or jury.

Id.

at 320-21 , 102 S.Ct. at 2460-61. The Court then held that “ ‘the Constitution only requires that the courts make certain that professional judgment in fact was exercised.

It is not appropriate for the couHs to specify which of several professional choices should have been made.’

”

Id.

at 321, 102 S.Ct. at 2461 (emphasis added) (citation omitted).

With respect to the plaintiffs claim for minimally adequate training, the

Young-berg

Court explained the deference to be shown in applying the “professional judgment” standard:

In this case, the minimally adequate training required by the Constitution is such training as may be reasonable in light of respondent’s liberty interests in safety and freedom from unreasonable restraints. In determining what is “reasonable”—in this and in any case presenting a claim for training by a State—we emphasize that the courts must show deference to the judgment exercised by a qualified professional. By so limiting judicial review of challenges to conditions in state institutions, interference by the federal judiciary with the internal operations of these institutions should be minimized.... [T]he decision, if made by a professional, is presumptively valid;

liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.

Id.

at 322-23, 102 S.Ct. at 2462-63 (emphasis added) (footnotes omitted).

See also Society for Good Will to Retarded Children v. Cuomo,

737 F.2d 1239, 1248 (2d Cir.1984)

(“Youngberg

held that due process is satisfied if restraints are imposed on mentally retarded individuals in accordance with the judgment of qualified professionals and that courts should defer to this professional judgment.”).

The Professional Judgment Standard

The United States contends that the “professional judgment” standard set forth in

Youngberg

is not applicable, but if it is applicable, the standard pertains only to the claim regarding training. 87/30-33.

The United

*583

States’ argument is based on a tortured reading of

Youngberg ,

and completely ignores Third Circuit precedent interpreting

Young-berg,

which is binding on this Court.

See Shaw v. Strackhouse,

920 F.2d 1135, 1146 (3d Cir.1992) (“Absent even a hint that the Court meant to so limit its holding, we must read

Youngberg

at face value and apply the professional judgment standard to all failure to protect, excessive restraint, and failure to habilitate claims brought by mentally retarded persons who are institutionalized, whether such claims are brought independently or in tandem.”).

The United States argues: “As contemplated in

Youngberg ,

safety is an objective standard that can be measured through objective criteria.” 87/30. The United States fails to explain how this novel proposition is “contemplated” in

Youngberg ,

and fails to indicate the source of the “objective standard” that this Court should apply. To the contrary, the Supreme Court in

Youngberg

specifically stated that, in determining whether the constitutional rights of an institutionalized individual have been violated, a court must balance the individual’s liberty interests against the relevant state interests, and that “[i]f there is to be any uniformity in protecting these interests, this balancing cannot be left to the unguided discretion of a judge or jury.” 457 U.S. at 321, 102 S.Ct. at 2461. For this very reason, the Supreme Court set forth the “professional judgment” standard. The United States’ argument must be rejected.

Shaw ,

the Third Circuit attempted to clarify the meaning of the “professional judgment” standard established in

Youngberg ,

and stressed that mere negligence “cannot trigger due process protection.”

Id.

at 1146.

Professional judgment is a relatively deferential standard. It requires

only

that a state actor exercise professional judgment in choosing the appropriate course of action. Negligence, however, imposes on a state official the burden of choosing, from among alternatives, a course of action consistent with the exercise of ‘due care.’ That means, as we see it, rejecting negligent alternatives that might nonetheless satisfy the demands of professional judgment. [Professional judgment] appears to us to be a substantially less onerous standard than negligence from the viewpoint of the public actor. Indeed, in our view, professional judgment more closely approximates — although, as we have discussed, remains somewhat less deferential than — a recklessness or gross negligence standard. Professional judgment, like recklessness and gross negligence, generally falls somewhere between simple negligence and intentional misconduct.

Id.

(emphasis added).

Accord Society for Good Will to Retarded Children,

737 F.2d at 1248 (“ ‘[Professional judgment’ has nothing to do with what course of action would make patients ‘safer, happier and more productive.’ Rather, it is a standard that determines whether a particular decision has substantially met professionally accepted minimum standards.”).

Shaw

and other cases decided since

Youngberg

explain, the “professional judgment” standard

(i.e.,

deciding whether a decisionmaker’s action, or inaction, constituted “such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment,” 457 U.S. at 323, 102 S.Ct. at 2462,) is a less onerous standard for a state actor to meet than that of negligence

*584

or medical malpractice. Optimal courses of treatment as determined by some expert, while laudable, do not establish the minimal constitutional standard.

Society for Good Will to Retarded Children,

737 F.2d at 1248 .

Instead, the factfinder must determine whether the decision made by the professional comports with minimally accepted professional standards.

In making this determination, expert testimony is “relevant not because of the experts’ own opinions — which are likely to diverge widely — but because that testimony may shed light on what constitutes minimally accepted standards across the profession.”

Society for Good Will to Retarded Children, Inc.,

737 F.2d at 1248 .

The role of the experts is only to assist the court in ascertaining what the minimum professional standard is; the ultimate question is whether ‘“professional judgment

in fact

was exercised.’ ” Even if every expert testifying at trial agrees that another type of treatment or residence setting might be better, the federal courts may only decide whether the treatment or residence setting that actually was selected was a “substantial departure” from prevailing standards of practice.

Id.

at 1248-49 (citations omitted).

Accord Society for Good Will to Retarded Children, Inc. v. Cuomo,

902 F.2d 1085, 1090 (2d Cir.1990) (district court erred in finding constitutional violations without first determining whether the conditions and treatment substantially departed from accepted professional judgment; “the district court should use expert testimony to identify ‘substantial departures’, but not to choose from among several professionally acceptable remedies”).

III.

FINDINGS OF FACT AND CONCLUSIONS REGARDING LIBERTY INTERESTS AT ISSUE IN THIS LITIGATION

The United States alleges that four separate categories of “liberty interests” have been violated at the Center. To properly analyze the evidence, I must evaluate (1) the nature of the liberty interests of the residents at issue (and defendants’ corresponding duty to protect those rights); and (2) whether defendants’ official customs and policies, as implemented at the Center, so substantially departed from accepted professional judgment, practice, or standards as to demonstrate that defendants actually did not base their decisions on professional judgment.

This case has been carefully and exhaustively litigated by the United States and the defendants. Constraints of time and space do not permit me to respond to every one of the manifold factual and legal contentions raised by the United States with respect to the liberty interests at issue in this litigation. As the lengthy opinion which follows demonstrates, however, I have attempted to address in detail the more serious issues, while confronting the remaining issues in a general manner. Before addressing the United States’ contentions, a brief overview of the Center’s structure and services is in order.

The Center’s Structure and Services

The Ebensburg Center is an institution operated by the Commonwealth for mentally retarded persons, serving Bedford, Blair, Cambria and Somerset Counties. The Center is licensed as an intermediate care facility for persons with mental retardation and is geared toward caring for individuals with significant behavioral deficits who require assistance to meet their daily needs, and who have been unable to procure like services elsewhere. Exh. 11. The Center has a full operating license under the federal standards of the Title XIX Medicaid Program, which is a prerequisite for participating in the Medicaid Program. 62/158.

The Center was built in the 1950s. Many of the residents were placed at the center as children, and currently the median age of the residents is 32.5 years. 62/163. The Center’s 475 residents live in five buildings or living units, each of which has four separate wings. There are approximately 96 residents to each building or 24 residents to each

*585

wing. 62/140-41; Exh. 608/62.

The Center currently provides four private rooms per unit and plans to increase the number of private rooms available. Exh. 603/104; 63/27.

The living units are the Keystone House, Laurel House, Sunset House, Horizon House, and the Villa House. The Keystone Unit houses the residents who are more profoundly mentally retarded and more physically disabled. Some physically handicapped residents also live in the Laurel, Horizon, Sunset and Villa living units. 34/98. Approximately one third of the residents of the Keystone unit are essentially immobile — meaning that, as a result of their physical handicaps, they have no active movement, except for the ability to move their head, or to slightly move an arm or leg. 34/98. The physical handicaps manifested by the residents at the Center are a result of damage to the brain. 34/107.

Laurel Unit houses mentally retarded women. Some of the mentally retarded men reside in the Sunset House. Horizon House houses residents who are visually impaired or blind. Villa is home for the Center’s higher functioning individuals who are mildly to moderately mentally retarded. 43/81.

The Center has been budgeted a total of 790 full-time staff, which includes direct staff, professional staff and administrative staff. Exh. 601/53, 95. Additional staff may be requested during or before the fiscal year from a pool of staff serving facilities operated by the state. Exh. 600/95-99. Approximately 366 of the Center’s staff are involved solely with direct care. Exh. 600/99.

Alan M. Bellomo was appointed as Director of the Ebensburg Center in 1985 and continues to serve in that capacity. 62/130. As Director, he oversees the total operation of the facility to insure that the residents are receiving adequate services, care and treatment. Exh. 600/51-52. All staff of the Center are ultimately responsible to Mr. Bello-mo. Exh. 600/52. Mr. Bellomo relies in part on the judgments of his division director, disciplinary coordinator, outside reviews, advocacy groups and family association members to keep him updated on the needs of the facility. Exh. 600/63.

Mr. Bellomo reports to Dr. Sneed, who is the Director of the Bureau of Direct Program Operations for the OMR. 63/25. Dr. Sneed supervises the direction of eight other mental retardation facilities and is supervised himself by the Pennsylvania Deputy Secretary for Mental Retardation. Exh. 600/64-67. Dr. Sneed speaks with Mr. Bellomo at least once a week and attends monthly meetings with Mr. Bellomo. Exh. 600/67-73.

Under Mr. Bellomo’s direction, the Center’s Executive Staff perform rounds of the facility to remain abreast of resident’s concerns and care. These rounds give management the opportunity to know the residents personally, provide oversight when there would otherwise be none, and give the employees an opportunity to speak openly with facility management. Exh. 600/11-12; 63/8— 9; 63/59. Management submits weekly observations and criticisms of the facility to Mr. Bellomo for consideration. Exh. 603/10. Mr. Bellomo addresses these concerns as they arise and creates incremental plans to reheve problems. Exh. 600/25-27.

As facility director, Mr. Bellomo also chairs the Executive Staff and Risk Management committees and participates on the Mortality and Morbidity Review and Budget committees. Exh. 600/49. Mr. Bellomo often attends the annual reviews that occur at the facility.

Id.

Additionally, Mr. BeUomo chairs town meetings so that he may address concerns of the residents. Exh. 600/49.

*586

As part of his management and oversight, Mr. Bellomo receives copies of the Center’s incident reports. Exh. 600/42-43; 63/16. Mr. Fulton, the Center’s safety director, also receives copies of the incident reports. As safety director, Mr. Fulton investigates all suspicious injuries, as well as any incident which Mr. Bellomo believes warrants further investigation. Exh. 601/131-35.

Richard G. O’Brien has been Director of Program Services at the Center since 1982. 64/65. As Director of Program Services, Mr. O’Brien is responsible for monitoring discipline coordinators in the areas of psychology, nursing, speech pathology, volunteer resources and social services. He also is responsible for the contract services provided to the Center by Liberty Health Care, Mercy Hospital, Cameo’s physical therapy services, and various laboratory services. In addition, Mr. O’Brien is responsible for the operation of and monitoring of the quality assurance program. 64/66. This program insures that Ebensburg complies with various federal standards and properly implements the standard for Intermediate Care Facilities for the Mentally Retarded (ICFMR). Exh. 600/53.

The Center is organized along the lines of a “unit system” — a method of operation that became popular in the 1970s in an effort “to get away from the clearly delineated — what became isolated — roles of different professionals.” 51/17. The unit system strives to better coordinate the services of all the professional disciplines that are provided to the residents, with each unit director or manager administratively supervising the provision of services to his or her residents. 51/17-19.

Under the unit system, all of the living units are served by the Center’s Director of Residential Unit Management (DRUM), David Devine. Mr. Devine supervises each building’s Unit Manager, and Mr. Devine is ultimately responsible for providing adequate residential services and care to the residents of the facility. Exh. 608/22; 63/8. Mr. De-vine’s direct supervisor is Mr. Bellomo. Exh. 608/34.

The Unit Managers run each unit in three shifts. The first shift is supervised by a Residential Service Supervisor (RSS), who is a Qualified Mental Retardation Professional (QMRP). The QMRP is the staff person responsible for a resident’s case management, which includes a ninety-day review to insure that all services are being properly provided. The QMRP also coordinates that resident’s annual staffing and insures that any provider of a program service documents activity in the chart. 64/130. The RSS also supervises the Residential Service Aids (RSAs) who provide direct care to the residents. Exh. 608/190. Residential Service Aide Supervisors (RSAS) and Residential Service Night Aide Supervisors (RSNAS) act as RSA supervisors on the second and third shifts, respectively. Exh. 601/78.

Mr. Devine also is responsible for scheduling staff and meeting direct care employee quotas. Quotas, the minimum number of RSAs allowed for a shift, are set by Mr. Bellomo to insure that residents receive adequate attention and care. Currently, the Center employs approximately 366 full-time and twenty-nine substitute RSAs to meet the existing quotas. Exh. 601/7-8. Professional staff are not included when determining the quota, but the record reveals that approximately 30% of the RSAS’ time per month is spent working in cooperation with the RSA quota, providing hands-on care and at the same time monitoring their staff. Exh. 600/140; Exh. 601/69-71; Exh. 608/97. RSASs are not included in the quota because they also are responsible for administrative tasks, such as assisting in the design and implementation of the residents’ programs. Exh. 601/78.

On occasion, Mr. Devine also uses unit “pulls” to meet his minimum quota. Generally RSAs are “pulled” from one unit to work in another so that both units are able to make quota for that shift. Exh. 601/78-80. Occasionally, Mr. Devine must pull nurses, so that the Registered Nurse Supervisors are properly supported. Exh. 601/80. The Center’s quota mínimums exceed Title XIX’s requirements and are reviewed on a monthly basis by the OMR. Exh. 600/149, 152.

Mr. Devine’s duties also include the supervision of infection control, all staff of the third shift, as well as three nurse supervisors. Finally, as DRUM, Mr. Devine sits on

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the Executive Staff Safety Committee, Risk Committee, Budget Committee, Approved Purchase Committee, Record Committee, Probationary Review, Mortality/Morbidity Committee, and the Policy Committee. Exh. 608/16-18, 188.

Mary Kay Bennett acts as the Center’s guardian officer, and ensures that the residents’ money is safeguarded and reasonably spent. Exh. 603/25, 56. Ms. Bennett is court-appointed and supervised by a western regional officer. Exh. 603/25-26.

The state, through the Pennsylvania Protection and Advocacy Organization (PP & A), also provides some residents with advocates. PP & A is recognized by Pennsylvania’s governor as an advocate for the disabled and occasionally subcontracts its duties with the state Association for Retarded Citizens (ARC). Due to an inadequacy of representation, however, the Center began a program which utilizes citizens from the Ebensburg area as “special friends” and advocates for the residents. The special friends form relationships with the residents, visit on holidays, and attend the residents’ annual care review if possible. Exh. 603/26-27.

The facility also attempts to place residents in the surrounding area so that they have an opportunity to live in a non-institutional community. 63/171. Mr. Bellomo recommends that residents be placed in the community, but the county’s mental health/mental retardation administrator makes final determinations on placement. Exh. 600/81; 63/18. Although the Center has residents who could be placed in the community, no such facilities are currently available. In an effort to ameliorate this unfortunate situation, for those residents who qualify for community placement, the facility awards “grounds privileges,” which allows those residents to walk independently on the grounds or go to the mini-mall located near the facility. 63/160.

The standards of Title XIX require that facilities such as the Center be subjected to an unannounced, annual survey. 62/158. The survey team is present for approximately one week and scrutinizes the Center for its compliance with approximately 475 different standards. 64/42. The survey team then provides a report to the Center listing its concerns, and the Center must provide a plan of correction, which specifies a particular date for compliance. Thereafter, the survey team will return unannounced to ascertain if the various deficiencies previously cited have, in fact, been completely corrected. 64/42.

As a result of a Title XIX survey in October 1990, the Center received a Provisional I license under Title XIX for January 31,1991, to July 31, 1991. 62/144; Exh. 1101. The provisional license was recommended by the Title XIX survey team to the OMR (which is responsible for the licensure process and is under the aegis of the Pennsylvania Department of Public Welfare). 62/144-45. The survey team recommended the provisional license as a result of problematic sexual behavior presented by one male resident, Clifford P. The Title XIX survey team was of the opinion that the Center had to develop a sexuality program to address this problematic sexual behavior before a full operating license could be recommended. 602/113. Significantly, the Title XIX survey team noted “the deficiencies during this survey do not individually or collectively jeopardize client health and safety or seriously impair the facility’s ability to render care.” 62/144. The Provisional I license issued by the Pennsylvania Department of Public Welfare was not equivalent to the decertification process that exists under the Health Care Finance Administration. 62/147.

Subsequently, the Provisional I license was replaced by a full operating license issued by the Pennsylvania Department of Public Welfare. The record contains no evidence of the issuance of any other provisional license. A full operating license under the Title XIX Medicaid Program is not an indication that a facility does not have any deficiencies. In fact, it is rare for a Title XIX survey team not to find some deficiencies in a facility which it has inspected. 64/44.

In addition to the Title XIX Medicaid Program inspection and licensing process, the Center also is subject to the Inspection of Care (IoC) survey process carried out by the Office of Medical Assistance, a division of the Pennsylvania Department of Public Welfare.

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The federal Title XIX survey and the Pennsylvania IoC survey are two separate processes. 62/159;

compare

Exh. 60 (11/92 Title XIX survey) and Exh. 67 (8/92 IOC survey). The IoC surveyors who visit the facility actually go page by page through all records of the Center, noting any deficiency which is apparent. A plan of correction for these deficiencies must be submitted and approved by the Office of Medical Assistance. 62/158-59; Exh. 68. If a plan of correction is not approved and implemented, the Center risks the loss of Medicaid funding. Exh. 63. The record does not contain any evidence of any plans of correction which have not been approved or implemented.

Adequate Basic Care

The United States contends that defendants have failed to provide the residents at the Center with the constitutionally required level of basic care. In particular, the United States alleges that insects have been found on food and on the residents,

the clothing of some residents has been soiled, residents have not been bathed properly, and there is a disregard for the privacy of residents. 87/8-9; 92/22-3.

As noted above, adequate food, shelter and clothing are “essentials of ... care that the State must provide” to the residents of the Center.

Youngberg,

457 U.S. at 324 , 102 S.Ct. at 2462. The United States’ allegations with respect to inadequate food (nutritional management) are addressed below in the discussion concerning adequate medical care, and I limit this portion of the opinion to the right to receive adequate shelter and clothing.

Society for Good Will,

737 F.2d at 1244 , the Court of Appeals for the Second Circuit affirmed a district court’s finding that “the quality of the shelter at [a state operated school for the mentally retarded] did not meet constitutional mínimums.” The Second Circuit noted the conditions of filth, insect and rodent infestation, unsanitary conditions resulting in the transmission of various diseases, and inordinately hot rooms and/or temperature control problems, and held that the record contained sufficient evidence to support the district court’s conclusion that the shelter was constitutionally infirm.

Id.

The court specifically noted that the problems at the facility were pervasive, and were not simply isolated lapses in care — “there was sufficient evidence for the district court to conclude that problems in the living conditions at [the institution] were either not being corrected or were arising on a recurring basis and that these problems caused the living environment to fall below constitutional standards.”

Id.

In this case, the United States has persistently focused on two incidents involving insects as a basis for its assertion that the Center, as an institution, has failed to provide adequate shelter. The first instance involved the discovery of ants on two residents who had been placed on floor mats in the day room to sleep overnight because their rooms were being painted. The staff discovered the ants on their bodies on two separate mornings

(i.e.,

the first resident was discovered with ants on her body on one morning, and the other resident was discovered with ants the following morning). Exh. 87. Thereafter, the staff took steps to exterminate the insects, and the residents’ beds were moved out to the day room for overnight sleeping purposes while the rooms were being painted.

Id.

at 00000918.

The other, more serious incident involved the discovery of an infestation of maggots in a resident’s ear. Exh. 1022. Just how this infestation occurred could not be definitively established, but the Center’s investigation concluded that this resident’s ear most likely became infested as a result of outdoor activity in the grass, which was confirmed by the emergency room physician. 63/77. No other similar incidents were reported.

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These two isolated instances related to insects, without more, are insufficient to demonstrate that the Center provides constitutionally inadequate basic care by tolerating insect infestations. To the contrary, the Commonwealth proffered credible evidence that these incidents were promptly reported by the staff. Upon notification of circumstances warranting attention, professional judgment was exercised; the situations were addressed, and the problems did not recur.

As the Third Circuit in

Shaw

explained (in addressing a claim for alleged inadequate safety), isolated examples of problems, while regrettable, do not establish constitutional violations.

Although the failure to prevent a “pattern of attacks, injuries, or violent behavior” is actionable, “[t]he right to protection is not activated by an isolated mishap, or called into question by each bruise that a patient may suffer.” We do not mean to minimize the seriousness of Shaw’s February 3 injury. We conclude, however, that the failure of the responsible staff member to keep watch over Shaw at the instant he happened to leave or be taken from his ward on February 3 amounts to just such an “isolated mishap.” It cannot amount to more than simple negligence.

920 F.2d at 1143 (citation omitted).

See also

Exh. 67 (Pennsylvania Inspection of Care recommending helmet tolerance in view of three uncontrolled seizures and injuries for resident Glenn A.).

Dr. Alvarez’ opinion that the Center’s care is constitutionally deficient, based on the Center’s alleged failure to use protective helmets, is not persuasive. As with the control of seizures through poly-pharmacy, there are tradeoffs in the use of physical restraints between protection from injury and freedom from restraint. Because helmets are a restrictive measure and constitute an infringement of a resident’s liberty interests if implemented, the right to be protected from harm due to seizure activity requires such protection as may be reasonable in light of the liberty interest in freedom irom unreasonable restraints.

See Youngberg,

457 U.S. at 316 , 102 S.Ct. at 2458 . At the Center, the final decisionmaker with regard to implementing the use of a helmet is the Human Rights Committee — an independent body that conducts an evaluation and either approves or rejects the proposed restrictive device. Exh. 93. Because the Center utilizes this additional step to insure that professional standards are followed before restraining an individual, I do not find the neurological care deficient for those instances when a helmet has not been approved, or approved as quickly as Dr. Alvarez would have liked.

The United States’ arguments with respect to this aspect of the Center’s neurological care suffer from an additional flaw. For a number of reasons, the frequency and severity of injuries sustained by the residents who have seizure disorders — disorders which obviously are difficult to control — cannot of themselves constitute sufficient evidence to establish a lack of professional judgment. The evidence showed that a protective helmet, like a football helmet, will re-

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spond to the impact it receives and cannot provide complete protection. 50/188. The helmet may shift and injuries may occur despite the helmet’s presence. In addition, helmets may not be able to prevent injuries that result from contact with a portion of the head not intended to be protected by the helmet.

See

Exh. 392b, # 00590535 (injury from impact with flat block held by resident at time of seizure).

Seizures by their nature are unpredictable, and injuries can occur when helmets have been removed for reasons of hygiene and for sleeping.

See

Exh. 392b, # 00001073 (seizure occurred in bathroom before bathing). All that Dr. Alvarez’ testimony established was the frequency of injuries. It did not include discussion of either the nature of the injuries or why the Center’s care for those residents failed to meet minimum professional standards.

See

36/92-94. The mere quantification of injuries, without more, does not establish the failure to exercise professional judgment.

2. PSYCHIATRIC CARE

According to the United States, the defendants’ provision of psychiatric services is constitutionally inadequate because the Center: (1) fails to provide adequate psychiatric assessments; (2) fails to provide adequate psychiatric diagnoses; (3) fails to provide adequate psychiatric treatment; and (4) fails to provide adequate monitoring of the psychiatric treatment. 84/IX. The right of an institutionalized mentally retarded person to receive adequate medical care, as acknowledged by the Supreme Court in

Youngberg,

457 U.S. at 315 , 102 S.Ct. at 2457-58 , must include provision for psychiatric care, where needed.

Psychiatric Assessment Techniques

At the Center, psychiatric care is provided by a contract psychiatrist consultant, a psychology department, and the direct care staff. From 1986 to July 1993, Dr. Pauline Goldschmidt was the Center’s contract psychiatrist consultant (Exh. 616, exh. 1; 64/81), and she provided psychiatric services to the Center twice each month during two eight-hour sessions. The services were provided to residents pursuant to referrals from the primary care physicians and the interdisciplinary team. Dr. Goldschmidt’s psychiatric services consisted of psychiatric evaluations, management of psychotropic medications, and supervision of the screening for side effects such as tardive dyskinesia. Exh. 616, exh. 3; 64/80.

The Center employs Dr. Stratton, a psychologist, as the Director of Psychology. 62/220-21. Dr. Stratton supervises the psychological services provided to the residents by eight psychological service associates (PSAs). 62/220-1; 51/19. Six of the PSAs have master’s degrees and the remaining two have bachelor’s degrees. 37/15-16. The PSAs work Mondays through Fridays during daylight hours and are not available on evenings and weekends. 37/16. Psychological services can be obtained during off hours by contacting the professional on call. 51/20.

The PSAs have varying caseloads. Five have caseloads of forty-eight residents, two have caseloads of seventy-two residents, and one has a caseload of ninety-six residents. 37/15. Some psychological services are performed by nonpsychology staff. 51/135.

The United States contends that accepted professional practice requires the utilization of a disciplined medical approach to the provision of adequate psychiatric care. This approach entails obtaining an assessment of the resident, rendering a diagnosis, formulating a treatment plan, monitoring the treatment plan for its effectiveness, and revising it as indicated. 38/63-64. The United States asserts that the Center’s psychiatric assessments are constitutionally deficient because the Center fails to employ this disciplined medical model. According to the United States’ experts, the behavioral data and information collected by the Center is either non-existent or inadequate, and the psychiat

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ric consults are chaotic, disorganized, undisciplined and too infrequent. 84/IX/4-15.

Dr. Fahs, a neuropsychiatrist who specializes in the psychological care of mentally retarded individuals, testified that the Center’s psychiatric assessments are inadequate because 100% of the records he reviewed were deficient. 38/79, 85, 88. Dr. Fahs explained that a psychiatrist usually sees an individual because of a particular concern which, in a population like that of the Center, is typically labeled as a “target behavior.” In a setting such as the Center, the target behavior “presents” (ie., is manifested) as aggression or self-injurious behavior (SIB). 38/71. In addition to the target behavior, other behavioral difficulties may be present. .38/72. A proper psychiatric assessment involves the collection of information from an interdisciplinary team, including doctors, staff, and other personnel, in an effort to gain a thorough picture of the resident. 38/71. The team should gather information regarding the resident’s symptoms, his behavior and his functioning with others. 49/144-45. Such information should detail the frequency, intensity and duration of the target behavior, as well as any other behavioral difficulties. 38/73. Objective information of this nature is essential for an assessment of a mentally retarded individual, since subjective symptoms may not be communicated effectively. 49/145. An assessment should also include information regarding the resident’s past psychiatric history, past medication history, as well as the individual’s past and present medical history. Such longitudinal data may facilitate the approach to treatment. 38/74. Dr. Fahs claimed that these components of a psychiatric assessment are universally accepted in the psychiatric profession. 38/75.

Dr. Fahs testified that the Center’s assessments are inadequate for a number of reasons. 38/75. First, Dr. Fahs found the assessments deficient in that the Center collects the information for a psychiatric assessment on a universal data collection sheet (UDCS). 38/76. The UDCS is the data collection tool used to chart all behaviors for all of the residents. 38/76. It is designed to collect a single type of interval data; that is, it tabulates the frequency of the target behavior by noting whether the target behavior occurred during a particular hour interval. The UDCS does not necessarily denote the number of times the target behavior occurs during that hour interval, nor does the UDCS account for the intensity or duration of the target behavior. 38/76. Additionally, the UDCS is geared to deal with only one target behavior. As a result, if there is more than one target behavior, or if other behavioral difficulties are present, it is difficult to distinguish this on the UDCS. 38/77.

Dr. Fahs next identified deficiencies with the psychiatric consultations that allegedly contribute to the overall inadequacy of the assessments. He observed some of the psychiatric assessments performed by Dr. Gold-schmidt, and testified that the assessments were chaotic, disorganized and totally lacking in the conveyance of relevant information to the psychiatrist. 38/77. In particular, Dr. Fahs stated that behavioral information that was in the chart was not conveyed to the psychiatrist. 38/78. In addition, according to Dr. Fahs, Dr. Goldschmidt had related that she did not feel that she had sufficient time to complete a psychiatric assessment. 38/82.

Dr. Lubetsky, a psychiatrist and Director of the John Merck Multiple Disabilities Program, testified as one of the Center’s expert witnesses in this area. He also had observed the psychiatric consultations of Dr. Gold-schmidt. According to Dr. Lubetsky, each of Dr. Goldschmidt’s consultations was performed at the resident’s living unit, in the presence of the resident’s psychologist, QMRP, primary care physician (if possible), and a member of the direct care staff. Often these consultations were attended by the Center’s pharmacist. 49/109-10. Dr. Lubet-sky testified further that Dr. Goldschmidt then obtained information from the staff members present concerning the resident’s behaviors, daily activities, and medications. Dr. Lubetsky noted that if Dr. Goldschmidt did not receive enough information, she would ask questions. 49/112-13. In light of these observations, Dr. Lubetsky concluded that the consultations were adequate and satisfied professional standards.

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Dr. Lubetsky agreed with Dr. Fahs that there was room for improvement in two areas. First, he opined that completing the consultation form before the consultation would improve the process. However, he did not believe that this flaw impaired Dr. Gold-schmidt’s ability to make a professional judgment. 49/114. Second, Dr. Lubetsky stated that documentation of the psychiatrist’s “thought processes” during the consultation should be improved. According to Dr. Lu-betsky, the events that occurred at the consult were not well-summarized in the chart. Nevertheless, Dr. Lubetsky concluded that this deficiency did not impair Dr. Gold-schmidt’s clinical treatment or preclude the exercise of professional judgment, and that Dr. Goldschmidt’s reliance on information orally-conveyed at the consultation was not an impediment to the exercise of her professional judgment. He observed that psychiatrists in private practice often rely entirely on such information to render a professional judgment in the treatment of their clients. 49/114-15, 118.

Dr. Lubetsky’s observations were confirmed by Dr. Hauser, another psychiatrist, who explained that the Center utilized an interdisciplinary team approach in providing psychiatric care. 50/27. Like Dr. Lubetsky, Dr. Hauser found Dr. Goldschmidt’s written documentation of her consults to be sparse, and provided the Center with a form that he had created for purposes of documenting his own psychiatric consultations. The Center has since adopted the form and incorporated it into the psychiatric consultations. 50/58-60. Dr. Hauser noted that by providing his own form, he was not implying that the Center’s care was deficient in this regard, but only that it was an area that could be improved. 50/60.

Dr. Hauser also evaluated the collection of data regarding a resident’s target behaviors. He noted that the Center collects some hard data, and that this data is used at the consultations. 50/65. According to Dr. Hauser, hard data is not an essential resource for the psychiatrist because subjective data from the resident and the staff also are obtained at the consultation. Dr. Hauser testified that reliance on subjective data is consistent with acceptable professional standards, because most psychiatrists rarely have hard data available to them. 50/64. Dr. Hauser une-quivocably testified that professional judgment can be exercised without hard data to formulate an appropriate treatment plan, and that Dr. Goldschmidt received sufficient information to enable her to exercise professional judgment. 50/68, 68.

According to Dr. Hauser, the characterization of Dr. Goldschmidt’s consultations as chaotic and disorganized probably resulted from the fact that the resident himself usually was present at the consult. Dr. Hauser, however, did not believe that the consultations were chaotic or disorganized. He noted that the presence of the resident at a consultation may, in fact, be an effective means of understanding the residents’ behaviors. 50/106. Dr. Hauser conceded that the rooms where the consultations occurred were not ideally suited for the procedures, and that staff seemed to be always coming and going, much like consultations he has completed in group homes. 50/107.

Despite these sub-optimal conditions, Dr. Hauser found that Dr. Goldschmidt was able to gather and process data, talk with staff about treatment, and render a recommendation. 50/68-69, 108. He further noted that in his discussion with Dr. Goldschmidt, she reported that she did have an adequate amount of time in which to perform her consultations.

50/68.

Dr. Lubetsky’s and Dr. Hauser’s opinions that the psychiatric assessments at the Center meet acceptable minimum profes

*601

sional standards are persuasive,

I find that accepted professional practice includes use of assessments completed by an interdisciplinary team, collecting both objective data and subjective data. Because psychiatric assessments at the Center are consistent with accepted professional practice, they evidence the exercise of professional judgment, and do not violate the Constitution. 50/27.

Differential Diagnoses

Dr. Fahs also testified that the Center fails to provide adequate psychiatric diagnoses for its residents because it does not properly formulate “differential diagnoses” for the residents. A differential diagnosis is the result of an evaluation which considers information obtained in the assessment phase to identify a resident’s possible disorders. 38/160-61. After identifying the possible disorders, a practitioner then considers which particular disorder is most likely that resident’s actual diagnosis. 50/71; 49/147. That is, the practitioner gives full consideration to the alternative hypotheses and selects the most likely cause for the resident’s problem. 50/71.

The utilization of the differential diagnosis is an accepted practice in psychiatry. 38/85; 50/71. Initially, the process is “mental” in nature. 50/71. After completion of this thought process, however, standard professional practice requires some documentation in support of the diagnosis. 50/71. The United States asserts that the Center’s care is deficient in this regard because the records do not contain documentation concerning the alternative diagnoses and the basis for the selection of the working diagnosis. 38/85. Dr. Fahs testified that Dr. Gold-schmidt’s documentation was too succinct, and that it failed to explain why alternative diagnoses were not applicable and/or why changes were made. Instead, Dr. Fahs found that considerations of the differential diagnostic possibilities were scattered throughout the chart. 38/85-87. The United States points out that Pennsylvania’s Inspection of Care Survey also found this area deficient in its October 21, 1991 survey. 38/90; Exh. 67/2-B.

Dr. Fahs contends that the Center’s failure to employ the differential diagnosis method is evident from the fact that diagnoses are added or changed after treatment already has been initiated. 38/87. According to Dr. Fahs, the diagnosis normally precedes the treatment selection, and a faulty diagnosis results in a high probability that an improper treatment will be selected. 38/87, 89.

Dr. Fahs cited the diagnoses for several residents as examples of diagnoses which substantially depart from accepted professional practice. He pointed to the diagnosis of schizophrenia for one profoundly retarded resident who had self injurious behavior (SIB) and aggressive behavior, and noted that virtually universal agreement exists within the medical community that it is impossible to make a diagnosis of schizophrenia in a profoundly retarded person. 38/102. Dr. Fahs found no support for the diagnosis of schizophrenia in that resident’s record except for his SIB and aggression toward others. 38/103. Another resident, Gary K., “seemed to be depressed,” but had only a “so-called” diagnosis of aggressive behavior. 38/107. Dr. Fahs stated that aggression is not a diagnosis, and that the diagnosis of depression had never been articulated in the resident’s chart. 38/107-08.

The case of Darren W. also was cited as an example of a disorganized diagnostic process. Darren W. was being treated for akathisia

with Inderal. The medication was abruptly discontinued, however, after a diagnosis of

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asthma was made. Dr. Fahs criticized this diagnosis because asthma typically is a childhood disorder. 38/121-28. Darren W.’s condition deteriorated after this abrupt change, and he was then diagnosed with obsessive compulsive disorder (OCD). Dr. Fahs claimed that there was no supporting evidence for the OCD diagnosis. 38/128. He further testified that no supporting evidence existed for the diagnosis of OCD in any of the other residents receiving Anafranil, a medication used to treat OCD. 38/129.

Dr. Lubetsky explained in reply that psychiatric diagnosis of the developmentally disabled is very difficult. 49/119. Indeed, diagnosis of psychiatric conditions is difficult in a population that is

not

developmentally disabled.

See Heller v. Doe,

— U.S. -, -, 113 S.Ct. 2637, 2644 , 125 L.Ed.2d 257 (1993). Dr. Lubetsky explained:

It’s very difficult to use the DSM-3, which is a guideline for making psychiatric diagnoses; ... it is very difficult to use [the DSM-3] in the developmentally disabled population, mainly because of the cognitive impairment, the lower functioning I.Q.s, and the nonverbal nature of many of the clients; so it is very difficult to make a diagnosis.

The best attempt is to utilize those guidelines and see if you can come up with a differential diagnosis which is a variety of considerations. Many times the best you can come up with is looking at the symptoms and attempting to cluster the symptoms to give you some guide to make a choice about medication.

In addition, you’re always working through the diagnostic process. As you are seeing clients over years, your opinion may change about their diagnosis depending on the pattern of their symptoms, the pattern of behaviors. In response to medication. In general, psychiatry — what you’re taught is to try to make the best diagnosis you can and try not to make your diagnosis based on the response to a medication.

But I think most physicians will also agree that they do look at the response to medication to help in re-thinking whether a diagnosis was accurate or whether there’s another diagnosis to consider.

49/119-20.

Taken together, all of the experts’ testimony of Dr. Lubetsky and Dr. Hauser provides strong evidence for the proposition that rendering a differential diagnosis for the mentally retarded is more of an art than a science. Against this backdrop, Dr. Fahs’ specific cases of allegedly flawed differential diagnoses are, at worst, indicative of erroneous psychiatric evaluations, not constitutional violations.

Dr. Hauser explained that it is an accepted national standard in psychiatry that a diagnosis follow the classifications of the American Psychiatric Association’s

Diagnostic and Statistical Manual,

3rd edition revised, DSM-3-R. 50/36. Unfortunately, the DSM-3-R was not designed for specific use with developmentally disabled persons, who often are nonverbal. 50/37. Nevertheless, Dr. Hauser found that pressure exists at the Center to use the DSM-3-R coded diagnoses for purposes of “inspection surveys” which are conducted on a regular basis by the Pennsylvania Department of Welfare and other agencies for purposes of accreditation and licensure (Medicare, Medicaid, etc.). 50/40. The DSM-3-R is the most current DSM, and certain diagnostic terms used in earlier editions of the DSM have become outdated. This outdated nomenclature, however, may continue to be used for certain residents. 50/41.

The allegedly erroneous diagnosis of the resident with schizophrenia, though outdated according to Hauser, was generally consistent with the first

Diagnostic and Statistical Manual

and the liberal application of the diagnosis of schizophrenia for anyone manifesting a psychosis. 50/89-90. That is, the diagnosis is “a fingering artifact of the historical context” of diagnosing patients. 50/92. Dr. Hauser also observed that the persistence in the diagnosis of schizophrenia may be due to the fact that DSM-3-R does not account for persons who no longer can be diagnosed as schizophrenic because of their limited cognitive functioning. 50/90. In any event, Dr. Hauser was not troubled by the persistence of this diagnosis at the Center,

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because the treatment for schizophrenia was appropriate treatment for that resident, who under DSM-3-R would be diagnosed with atypical psychosis. 50/91. The use of the outdated nomenclature, though perhaps not technically accurate, did not detrimentally affect the residents’ treatment.

In contrast to Dr. Fahs’ finding, Dr. Lubetsky testified that Gary K.’s chart

did

include the diagnosis of depression. 49/124. Nevertheless, even if the chart did not include that diagnosis, the documentation of the resident’s behavior was indicative of depression, and he was treated with an antidepressant in a low dose in an effort not to precipitate seizure activity. 49/124-5; 38/189. This course was consistent with Dr. Lubetsky’s observation that, at times, the best that one can do is look at the symptoms, and attempt to “cluster” the symptoms in order to find some guide to selecting a medication to treat that individual. Again, the Center’s

treatment

of the resident was consistent with acceptable psychiatric practice, and the constitutional standard is concerned with the care provided to the residents, not conformity of nomenclature to the latest APA revision of the DSM.

According to Dr. Hauser, Darren W.’s asthma diagnosis and the discontinuation of the medication Inderal was not improper. Typically, asthma is considered a childhood ailment, but the diagnosis actually is consistent with the diagnosis of a bronchospastic condition, regardless of one’s age. As Dr. Hauser explained, Inderal may have the side effect of causing bronchospasms, which would exacerbate an individual’s asthmatic or other bronchospastic condition. As a result, as Dr. Fahs conceded on cross-examination (38/141-42), Inderal should be discontinued to avoid precipitating any bronchospasms, regardless of the risk of any withdrawal reaction that may occur. 50/108-11.

Dr. Hauser also testified that he did not find the diagnosis of OCD for Darren W. or other residents troublesome. While Dr. Fahs claimed that too many residents (although he could not provide the exact number) had this diagnosis (38/165-66), Dr. Hau-ser explained that one of the exciting developments in the field of psychiatry is the increasing recognition of OCD as a disorder affecting millions of individuals. 50/112. Dr. Hauser then explained that if the disorder OCD is widespread in the general population, it is logical that this disorder will be more prevalent among mentally retarded individuals. 50/112-13. Consequently, when Dr. Hauser sees a mentally retarded patient with “ritualistic behavior”

(i.e.,

behavior that occurs over and over again), he is willing to try treatment with a drug used for OCD. 50/114.

I find that it is within acceptable professional practice for a complete differential diagnosis to be constructed from documentation found throughout a resident’s chart. This, in fact, is what Dr. Fahs found: “a piece here in the record, a piece here in the record, a piece here in the record ...” 38/85-6. Moreover, a correct differential diagnosis may be dynamic, initially eluding the practitioner and only becoming clear as time passes and additional data is available to consider. For this reason, treatment may have to be geared to the symptoms presented, as opposed to treatment of a diagnosis consistent with the DSM-3-R.

Documentation alone cannot establish that there is a deficiency that reaches constitutional dimensions. The focus must be on whether professional judgment was exercised, that is, whether the practitioner has considered the options and has made a differential psychiatric diagnosis for a resident that is in keeping with minimal professional standards. I find the Center meets this requirement.

I credit the testimony of Dr. Lubetsky and agree that the thought processes in this area of care at the Center are evident from the live consultations, although those consultations could often be better documented. 49/114. As Dr. Lubetsky pointed out, the

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mini-staffing notes in the charts detail why changes are made, as well as the status of the residents’ care. 49/115. Accordingly, I find that the live consultations and the treatment process itself do not fall below accepted professional standards.

While I agree that the Center’s documentation of the differential diagnosis can and should be improved, the problems with documentation do not prohibit the exercise of professional judgment.

Psychiatric Treatment

The United States alleges that the Center fails to provide adequate psychiatric

treatment

in these respects: (1) the decision-making process for treatment is inadequate because different treatment options are inadequately considered and there is a poor coordination of treatment efforts; (2) inappropriate treatment selection unnecessarily exposes residents to the risks of drug side effects and unnecessary chemical restraint; and (3) the Center fails to provide adequate and appropriate behavioral programs at the treatment stage.

See

83/TX-22-29.

The United States relies heavily upon Dr. Fahs’ testimony in support of its first and third contentions.

Dr. Fahs testified that treatment efforts include behavioral treatment, drug therapy, or manipulation of an individual’s social environment. More than one treatment may be appropriate at any particular time. 38/91. Thus, consideration of the available treatment modalities should result in the selection of the “treatment which has the best benefit to risk ratio.” 38/91. Ideally, treatment changes should not coincide with other changes in a resident’s environment, medication regimen or behavior programming. 38/105-06.

Dr. Fahs claimed that some of the Center’s documentation gave the illusion that different treatment options were weighed, but he found that, generally, this was not the case. 38/92-93. According to Dr. Fahs, behavioral programs were not considered, and drug changes were not coordinated with program changes, and vice versa. 38/93. Dr. Fahs testified that, instead of careful consideration of treatment options, the Center relied on the diagnosis as justifying the treatment. 38/93. He further believed that the residents responded only by luck, and that they would continue to suffer from behavioral difficulties. 3S/93.

Dr. Fahs, Dr. Hauser and Dr. Lubetsky all agreed that non-drug treatment should be provided together with medication in treating psychiatric impairments. 38/113; 50/46; 49/148-49. Dr. Fahs explained that non-drug treatments should be selected before drug treatment if the benefit from each is equal because they do not pose the risk of side effects. 38/92, 169. Dr. Hauser agreed that the premature initiation of medication is a red flag in the field of psychiatry. 50/46.

I find that Dr. Hauser’s testimony about trends in treatment at the Center to be credible evidence of acceptable professional judgment in psychiatric treatment. Dr. Hau-ser testified that the Center was: (1) reducing the number of antipsychotic medications prescribed, as well as reducing the dosage when used, 50/24; (2) administering only those medications which are necessary and avoiding the administration of multiple psychotropic medications, 50/33; (3) prescribing medications in concordance with the diagnosis, 50/36; (4) prescribing alternative medications to treat psychiatric manifestations, 50/26; (5) decreasing the restrictiveness of the intervention used to treat psychiatric impairments, 50/27; and (6) resorting to an interdisciplinary team process to provide

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psychiatric care, 50/27.

The exercise of professional judgment in the selection of the proper treatment for a resident “requires thinking” about the modalities of treatment, and administering treatment that meets minimum professional standards. 38/91. The Center meets this requirement. Its weakness is its documentation of the process, a weakness that is not in dispute. But, even in the face of this shortcoming, the Center still provides psychiatric care that meets minimum professional standards.

As noted above, the United States also contends that inappropriate treatment selection unnecessarily exposes the Center’s residents to the risks of drug side effects. Dr. Fahs testified that accepted professional standards mandate that prescriptions for an-tipsychotic medications should be avoided if they are not indicated. 38/65. Dr. Hauser agreed, and noted that the current trend in the field of psychiatry is to avoid unnecessary antipsychotic medication in order to guard against the development of side effects such as tardive dyskinesia, neuroleptic malignant syndrome, and extrapyramidal syndrome. 50/24.

While the United States contends that residents are unnecessarily exposed to side effects such as neuroleptic malignant syndrome, it fails to cite one example of a resident who developed this syndrome. On the other hand, tardive dyskinesia (TD) is known to afflict some residents at the Center, but the record in this case contains no evidence to suggest that residents actually in need of medication who have this condition became afflicted as the result of the

unnecessary

administration of antipsychotic medication. Instead, the United States’ evidence on this issue pertains solely to the Center’s alleged inadequacy in screening to detect this condition, a matter discussed infra,

Dr. Fahs asserts that a determination regarding the adequacy of the Center’s psychiatric care cannot be based on just the raw percentage of residents on psychotropic drugs. Instead, he believes that the “only way the care could be determined is by looking at each individual, each individual client.” 38/135. Dr. Fahs further testified that the Center’s Behavioral Intervention Committee (BIC) and the 30-day review, elaborate “convoluted mechanisms” established to guard against inappropriate psychotropic drug use, fail to safeguard the residents. These procedural safeguards, according to Dr. Fahs, actually were just rote exercises that entailed minimal review of a resident’s psychological status and the need for chemical treatment. 38/135-37.

Although Dr. Fahs rejected the relevance of the Center’s raw percentage of residents on psychotropic medications, I do not. Dr. Hauser testified that percentages are “just

*606

numbers” which can be misused or taken out of context, but he still believed that there is “some usefulness for looking at frequencies of use of medication or the breakdown of categories of medication.” 50/119. The percentages can serve as “red flags” indicating that something is wrong. 50/120-21. Dr. Hauser related how he initially counted the number of residents on antipsyehotics and antidepressants in order to determine whether the use of these drugs at the Center was “in the ballpark” of what is reported for similar facilities. One of the sources he used was a book authored by Dr. Fahs. 50/120. Dr. Hauser concluded that the overall percentages were consistent with medication management in similar populations. 50/121.

Dr. Lubetsky, agreeing with Dr. Hauser, found that the Center had a “rough average of twenty-five percent of clients on psychotropics,” 49/127, and that this was within the broad range of twenty-five to forty percent use of psychotropics reported in the

American Journal on Mental Retardation.

In addition, Dr. Lubetsky reviewed individual cases and concluded that the Center’s use of psychotropic medications was within accepted professional practice. 49/128. Based upon my review of all of this evidence, I agree with the Commonwealth that its use of psychotropic medications meets constitutional minimum standards.

Finally, the United States argues that the Center fails to adequately monitor the psychiatric treatment provided. Dr. Fahs described this “monitoring” component of the medical approach as an objective weighing of the benefit the person is receiving from the treatment versus the impact of any side effects — or, stated another way, “monitoring” entails an evaluation of whether the drug did what it was prescribed to do, and whether this result can be proved. 38/99. If monitoring demonstrates that the drug did not benefit the resident, then the treatment should be changed. 49/153. Dr. Fahs testified that the Center’s monitoring was inadequate in 100% of the cases he reviewed. 38/101.

The record at trial established that the medical community places great emphasis on monitoring the effects of antipsychotic medications to detect the development of tardive dyskinesia (TD), an irreversible side effect of certain antipsychotic medications. 50/34. TD is a red flag — -it is an area closely scrutinized by the medical community, as well as surveyors, in an effort to reduce its occurrence. 50/34. As a result, a tracking form (the AIMS form

) has been developed by the medical community to screen for TD.

Dr. Fahs opined that the Center’s monitoring efforts in general were inadequate, and he supported his opinion by specifically referencing the Center’s monitoring efforts with regard to TD. Dr. Fahs claimed that the Center had a policy in place requiring the AIMS screening, but he believed that the Center did not engage in a regular, consistent review for side effects, including TD. 38/100.

Dr. Fahs’ testimony also addressed the alleged inadequacy of the Center’s monitoring efforts with respect to chemical restraints. Dr. Fahs defined chemical restraints somewhat loosely as including both the emergency sedation of a resident as well as the administration of medication without any indication of its efficacy. 38/94-95. Dr. Fahs concluded that the emergency chemical restraints at the Center were adequate, but that the Center routinely administered medication that might not be helping the residents, and that this practice resulted in an unnecessary “chemical restraint.” 38/95.

In response to Dr. Fahs, Dr. Lubetsky explained that the AIMS tracking form actually was utilized and could be found in many of the charts. 49/111, 192. Dr. Lubetsky’s observation is corroborated by the Inspection of Care Survey for August 1992, which noted an AIMs form in James R.’s chart. Exh. 6A8D. The evidence also demonstrated that Dr. Goldschmidt consistently made an effort to reduce the overall use of antipsychotic medication by either refusing to prescribe the medication for a resident or reducing the

*607

dosage for a resident who had previously been prescribed the medication. 50/25; Exh. 616\53, 61.

The presence of TD in residents, some of whom may have developed TD before the medical profession began screening and prevention measures, does not of itself indicate that the Center has failed to exercise professional judgment in monitoring the usage of antipsychotic medications. To the contrary, the record evidence indicates that when Dr. Goldschmidt began treating the Center’s residents in 1986, she noticed that a number of individuals already had TD as a result of the long-term administration of an-tipsychotics. Exh. 616\53, 102. As a result, Dr. Goldschmidt insisted that the Center monitor residents for this very condition in an attempt to avoid the development and/or exacerbation of side effects. Some residents continued to receive antipsychotics because the benefit derived outweighed the detriment of discontinuing the medication. 50/35. At least since 1986, professional judgment has been exercised in monitoring for TD.

Dr. Hauser described the emergency sedation aspect of chemical restraint, and explained that “chemical restraint” may also be found when medication is chronically used to restrain an individual. Signs of this type of chemical restraint are use of high doses of antipsychotic medications which cause stiffness, rigidity, and a blank facial expression in residents. 50/122. Dr. Hauser testified that he did not observe

any

chemical restraint of this nature at the Center.

I find Dr. Hauser’s testimony persuasive in determining whether the Center meets the minimum standard of professional judgment in avoiding unnecessary chemical restraints that would result in stiffness, rigidity, and the constraining of one’s movement.

See Sabo v. O’Bannon,

586 F.Supp. 1132, 1140 (E.D.Pa.1984) (“Because the use of ‘soft’ restraints was found to implicate a liberty interest in

Youngberg ,

it can scarcely be doubted that the use of drugs in order to restrain a patient must activate a similar interest.”). As Dr. Hauser explained, the Center has consistently endeavored to reduce the dosage of antipsychotics and thereby avoid unnecessary chemical restraints.

In summary, the psychiatric care provided satisfies constitutional requirements. The Center’s weak point is its documentation, but this deficiency does not preclude the exercise of professional judgment. The assessment and treatment routines established at the Center are not “substantial departures” from accepted professional standards.

3. GASTROESOPHAGEAL REFLUX AND ASPIRATION

Dr. Sulkes, one of the United States’ experts, testified that the Center fails to provide appropriate medical care to residents with gastroesophageal reflux (GER) and/or who are at risk of aspiration, because the Center fails both to identify the residents who have GER and/or are at risk of aspirating, and fails to provide a proper medical “work-up” and treatment of the residents.

Aspiration is the “inspiratory sucking into the airways

[i.e.

lungs] of fluid or [a] foreign body....”

Stedman’s Medical Dictionary

143 (25th ed. 1990). GER is the escape of the stomach contents into the esophagus, 41/88, a condition which afflicts approximately 10-15% of developmentally disabled children and adults. Crocker, Allen C., and Rubin, I. Leslie,

Developmental Disabilities: Delivery of Medical Care for Children and Adults

178-79 (1989). Individuals with GER are at risk of aspirating because the stomach contents may travel backward from the esophagus into the pharynx and enter the trachea and lungs, 41/88, which predisposes the person to developing pneumonia. Reflux into the esophagus also causes discomfort because the stomach contents are normally very acidic, and over time, may erode the mucosa of the esophagus and precipitate bleeding. 41/89-90.

The United States contends that in “several cases, individuals had documented reflux and nevertheless were continuing to suffer bouts of aspiration pneumonia.” 84/X-10,

citing

34/107. The United States asserts that most of the residents reviewed

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by Dr. Sulkes died at some point from 1988 to 1992. The occurrence of aspiration pneumonia, or even deaths without evidence that it was the result of medical treatment which substantially deviated from accepted professional practice, however tragic a loss, does not compel a finding that the constitution was violated.

Dr. Sulkes reviewed the care of Margaret D., who died in January 1992. Dr. Sulkes testified that her condition of reflux was known since at least 1979. 41/114. Treatment in 1991 included prescriptions of anti-reflux medication and iron for anemia. Margaret D. also received postural drainage and percussion on a regular basis. Despite these treatments, seven months later, she developed problems with mucous and choking after eating. Margaret D.’s physician noted that she experienced the excess mucous and choking only after eating, and he questioned whether she had an allergic rhinitis. He started treatment with an antihistamine, but did not order any further evaluation of the reflux. 41/115.

Two months later, Margaret D. was hospitalized for aspiration pneumonia. Her sixty-day nursing note after this hospitalization indicated that the same treatment was to continue. Tussi-organidin, an expectorant, was added to her medication regime. Exh. 331aa, # 00523176. Antibiotics were instituted when it was discovered that her mucous had pus in it. Thereafter, Margaret D. lost weight, and she continued to produce large amounts of thick mucous. At some point, the Center initiated manual suctioning of the mucous secretions to aid Margaret D.’s breathing. Exh. 331AA. No other intervention was initiated despite persistent documentation of chronic congestion and coughing. 41/119. In January 1992, during treatment for postural drainage, Margaret D. died. 41/120. According to Dr. Sulkes, there was a “lack of close monitoring and lack of a sufficiently aggressive work up early on, diagnostically, which might have led to some medical interventions, that might have prevented all of this ...” 41/120.

The record at trial revealed, however, that the Center exercised professional judgment consistent with accepted medical practice in the treatment of Margaret D. The Center staff documented her persistent trouble with coughing and mucous production, monitored her condition, and treated her with anti-reflux medications. 34/82.

Steven S. died in May 1991 due to complications resulting from GER. Dr. Sulkes opined that Steven S. needed aggressive management of GER early on and did not receive it. He further testified that, in his opinion, Steven S. entered a “pipeline that ... carried him inexorably on to his death. All the way along, interventions might be available, but nobody thinks about them until it’s way too late for them to do any good.” 41/121.

The record reveals that the Center was aware of Steven S.’s GER since at least 1989.

Id.

In November of 1990, a gastrostomy tube was inserted into his stomach. This procedure had little effect, according to Dr. Sulkes, and emesis was discovered in Steven S.’s mouth as early as November 13, 1990. In December of 1990, blood was discovered in the emesis. Later that month, Steven S. was hospitalized for pneumonia. 41/122.

Dr. Sulkes lamented that this resident could have received fundoplication surgery up to two years before his death, but that he never did. 41/123. Fundoplication, using a cuff of the stomach muscle to wrap around the bottom of the esophagus as support for a weak gastroesophageal sphincter, could have prevented the escape of stomach contents into the esophagus when the stomach muscle contracted, 34/69, but the mortality rate for this surgery approaches fifty percent. 34/71. Fundoplication is major surgery, however, and the decision whether to perform this procedure is largely dependent upon the individual’s health. The physician must assess the risks of additional surgery against the possible medical benefits to be obtained. 34/69.

Steven S.’s physicians were aware of his condition and treated it by surgically inserting a gastrostomy tube. Unfortunately, Steven S.’s gastrostomy tube did not remedy the problem. Whether to proceed with fundoplication surgery was highly dependent upon Steven S.’ individual medical condition,

*609

and was a matter to be resolved pursuant to the sound discretion of the professional. 81/157. Experts in the field of gastroenterol-ogy for mentally retarded persons remain divided over the benefits of gastrostomy alone, as opposed to gastrostomy coupled with fundoplication surgeries.

See

Exh. HEL, Bui, Hum D.,

et al., Does Gastrostomy and Fundoplication Prevent Aspiration Pneumonia in Mentally Retarded Persons,

94 American Journal on Mental Retardation 16-19 (1989). Accordingly, I find that the Center’s decision not to perform fundoplication surgery on Steven S. does not fall outside the realm of acceptable medical practice.

Keith T. also had GER and died. Keith T. had spastic quadriparesis, profound mental retardation and a history of problems -with aspiration. 41/125-26. Dr. Sulkes noted that Keith T. had respiratory problems dating back to a respiratory arrest in 1986, and had been hospitalized repeatedly for aspiration pneumonia. In April of 1991, documentation indicated that Keith T. had reflux when he was sleeping which precipitated bronchospasms. One of his anti-reflux medications was increased at that time, 41/126, and he was continued on antacids, 41/127. The Center’s care for Keith T.’s GER included well-recognized treatments in this field: anti-reflux medications, antacids, and even fundoplication surgery. 34/77, 82-83. Once fundoplication surgery is performed, positioning therapy and medications remain the only viable treatment options for such an individual.

See

81/155.

Dr. Sulkes testified that at least some of Keith T.’s hospitalizations, as well as his death, were preventable. 41/128. Dr. Sulkes found it problematic that Keith T. had never had an evaluation for feeding problems, never had an evaluation to determine whether he had reflux, and had no records showing consults with a gastroenterologist. 41/126.

In rendering his opinion concerning the acceptability of care provided to this resident, however, Dr. Sulkes failed to acknowledge that Keith T. had undergone fundoplieation surgery. This omission is particularly glaring in light of the importance placed on this surgical procedure by Dr. Sulkes in rendering his opinion regarding the acceptability of Steven S.’s care. The record is clear that fundoplication surgery is complicated and could not have been performed by the Center’s medical staff. Gastroenterological consults necessarily occurred to determine that such surgery was warranted, in light of Keith T.’s compromised medical status.

See

34/55. I find that the Center rendered care which was consistent with accepted professional standards in the case of Keith T.

Jeff K. also died of aspiration pneumonia. Dr. Rubin, an expert pediatrician retained by the United States, noted that Jeff K. had a seizure disorder which required multiple medication changes. He then developed pet-it mal seizures which increased in frequency. Thereafter, Jeff K. became very difficult to feed, and he sustained a significant weight loss'. A gastrostomy tube was placed, and he continued to lose weight while he was hospitalized. 81/109. Subsequently, he died.

Dr. Rubin opined that the medical care Jeff K. received was not consistent with accepted professional standards of care because it is well recognized among surgeons and gastroenterologists that a gastrostomy should not be done in individuals who have GER. The procedure, he testified, increases the risk of vomiting and aspiration because large amounts of food may be put into the stomach over a short amount of time. 81/109-10.

Dr. Rubin formulated his opinion regarding Jeff K.’s care after reviewing several documents, including a “Mortality and Morbidity” report prepared after his death. Jeff K.’s physician detailed in the report the patient’s increasingly uncontrolled seizure disorder, and how the side effects from the anticonvulsant medication and the frequent petit mal seizures interfered with his ability to eat. As a result, a gastrostomy tube was placed to feed Jeff K. He then received his nutritional feeding continuously over a twenty-four hour period

(not

large servings over a short period of time, as Dr. Rubin erroneously assumed). Exh. 1108.

I find that Jeff K.’s care was consistent with accepted professional standards.

*610

His treating physician was very familiar with his seizure disorder and its refractory nature. She also recognized that his seizure medications produced viscous secretions that affected his ability to swallow. As a result, a gastrostomy tube was used to avoid aspiration while eating. Exh. 1108.

While Dr. Rubin contends Jeff K. should not have had a gastrostomy tube to feed him in light of his reflux, I have not been able to find any reference in his record to GER or reflux. Rather, it appears from the record that the complications and risk of aspiration resulted from the thickness of his oral and pharyngeal secretions, factors which made the safe feeding of Jeff K. more complicated. Furthermore, Dr. Rubin’s opinion regarding the inadequacy of Jeff K.’s care is undermined by his statement that he was impressed by the thoughtfulness that the staff had given to the Mortality and Morbidity report. 81/105-06. This thoroughness, I believe, more accurately reflects the quality of care that Jeff K. received at the Center.

The United States also challenged the care of three other residents: Sam B., James O., and Bobby Y. Sam B. died of aspiration pneumonia in April 1993 after a diagnosis of reflux esophagitis in 1980 and recurrent pneumonias thereafter. 41/132-33. Dr. Sulkes contended that after ten years of warnings, in March of 1993, Sam B. experienced increased difficulty swallowing and aspirated barium when a diagnostic procedure was being performed. 41/132. Despite this incident, the Center failed to request a respiratory evaluation.

James O. was hospitalized twenty-three times before his death in 1989. At no point in time did James O. have a swallowing work-up or a gastrointestinal or respiratory evaluation. Rather, his sixty-day medical note consistently noted as the plan of treatment “continue present therapy and care.” 41/139.

Bobby Y. also died of aspiration pneumonia in December 1988. 41/139. Dysphagia had been diagnosed eleven years earlier, but his medical record revealed only two corresponding interventions.

Id.

I cannot, based on the trial record, determine whether the care Sam B., James O., and Bobby Y. substantially deviated from accepted medical practice. The particulars of their care, despite the diagnosis of GER or the identification of the risk of aspiration, are absent. Nevertheless, Dr. Sulkes concluded that the Center’s care was constitutionally inadequate because these residents died of aspiration pneumonia without the benefit of certain evaluations. I will not find constitutional violations merely on the basis of the unfortunate fact of their deaths and Dr. Sulkes’ conclusory statements that are not supported by the record.

Finally, the United States cited the treatment of several current residents in support of its contention that the Center’s medical care of GER is inadequate. For example, Dr. Sulkes disagreed with the Center’s treatment of Patricia W. In response, the Commonwealth submitted testimony by a pulmo-nologist who examined her and concluded that “[g]iven her severe kyphoscoliosis, she will inexorably progress to chronic respiratory failure as a result of her respirative lung disease and repetitive pulmonary infections. Your current therapy is just about optimal, given her inability to cooperate.... I think her survival to this time is a testimony to the care you have provided her.” 34/38. The pulmonologist’s opinion supports a determination that the Center’s care met the constitutional minimum.

That residents have died or sustained recurrent pneumonias does not support a conclusion that the Center is violating their constitutional rights to adequate medical care. Dr. Sulkes focused his analysis and testimony on the residents at Keystone, who are the most medically compromised at the Center. It is well-recognized that “[t]he life expectancy of people with mental retardation is shorter than that of the general population.” Exh. HH, Eyman, Richard K.,

et al., The Life Expectancy of Profoundly Handicapped People with Mental Retardation,

The New England Journal of Medicine 584 (1990). Life expectancy in that population is further decreased if motor disability is present. 34/60. Consequently, it is to be expected that some of the Keystone residents, who are

*611

severely and profoundly retarded and physically disabled, may become ill at times and not recover, even though advanced medical care is being provided. GER by its nature is chronic, and it is accepted that non-surgical medical management should be attempted before resorting to surgical interventions. 81/155. During that period of non-surgical management, it is to be expected in some cases that the condition may worsen, and even if surgery can be performed, it is not a cure-all. 81/155. I find that the Center follows accepted medical principles in treating GER and the risk of aspiration.

4. NUTRITIONAL MANAGEMENT

The United States contends not just that the Center fails to provide adequate nutritional management to its residents, but that nutritional management does not even exist at the Center. 84/X-41. In particular, the United States asserts that the Center (1) fails to identify residents who are nutritionally at risk; (2) fails to assess residents with regard to their nutritional management needs; (3) fails to adequately and appropriately intervene at mealtime for residents with nutritional management needs; (4) fails to adequately monitor mealtime intake and interventions; (5) fails to provide adequate staff training in how to implement feeding plans; and (6) fails to insure that its professional staff is adequately trained in nutritional management. 8 4/X.

Youngberg

establishes that the Center has a duty to provide food for its residents. Food is “an essential of the care that the State must provide.” 457 U.S. at 324, 102 S.Ct. at 2462. There is no dispute that the Center provides food portions which are generous. 35/104. But the provision of food in a disabled population is not met simply by preparing food and presenting it at mealtimes. Consequently, the Center must provide for the management of the nutritional status of its residents pursuant to the exercise of professional judgment which is consistent with accepted professional standards of practice. 457 U.S. at 323, 102 S.Ct. at 2462.

Screening

The United States’ expert witness, Ms. McGowan, testified that the Center fails to identify residents who are nutritionally at risk. Such identification is the first element in any adequate nutritional management system. 35/159-60. Residents at risk include those with feeding, swallowing and oral motor disorders, in addition to those residents who have any history of choking. 35/159. The constitutional flaw, according to the United States, is that the Center does not have any screenings for these disorders, and even when screening devices are prepared, the devices are inadequate and screenings are not completed as quickly as they should be. The United States points to the facts that dysphagia screening has been completed only in the Laurel unit and that the Keystone unit was in the process of screening as late as July 1993. The Center now plans to incorporate aspiration screening into each resident’s care at the annual review, Exh. 637/42, but, the United States contends that the Center’s efforts to identify residents who are nutritionally at risk has been too little, too late.

Ms. McGowan testified that identification of residents who are at risk nutritionally should be accomplished by identifying

people that look like they might be in trouble, then you go on to some more in-depth type of assessment, so that you can both figure out if, in fact, your screen produced persons who really were having difficulties, and then you actually go in some depth, take a look at what real kind of problems they’re having, because they are not always what they seem.

35/160. Dr. Sheppard, the Commonwealth’s witness, did not dispute that identification of potential nutritional problems by screening is important. 61/100. I conclude that accepted professional practice requires some type of screening mechanism to determine which residents are nutritionally at risk.

The Center has attempted to implement screening of residents at risk, by implementing an aspiration screening procedure, Exh. 855. The Center’s dysphagia team has developed a dysphagia screening to be conducted on all residents, and has responded to

*612

weaknesses noted by Dr. Sheppard and has developed a swallowing and screening tool. 61/102.

On direct examination, Dr. Sheppard was asked if the Center met accepted professional standards

prior

to the implementation of its screening tool for swallowing and screening. Dr. Sheppard hedged her response and opined:

[Tjhere was an aspiration screening tool that had been developed by the nursing staff, and there was good attention to individuals who were more severely involved, who were at risk for aspiration. I think most of the individuals in the Keystone Unit had been evaluated by the dysphagia team, and individuals who had had choking episodes were evaluated by the team following any choking episode; so individuals who were more impaired, who had a greater degree of dysphagia were being attended to; and certainly acceptable professional standards were being met in that area. It was the individuals who were less impaired that were not being — getting the attention that they needed; and also there was nothing in place that would track the deterioration with age of these individuals. Those individuals have marginal skills, so in that sense it was a needed component to make the program good; but I must say that there are not many institutions that have these things in place that I’ve been in, and so I think they were doing a job that was certainly acceptable by general practice.

61/103-04.

In light of Dr. Sheppard’s demeanor during her testimony and the context of her opinion, I conclude that there were deficiencies in identifying residents who were nutritionally at risk prior to the development of the various screening mechanisms. However, since Dr. Sheppard’s inspection, the Center has developed various screening devices, and is in the process of implementing and revising them. I therefore find that no deficiencies remain to be remedied.

Assessment

The United States also asserts that the Center fails to assess residents with regard to their nutritional management needs. In February of 1990, it notified the Center that it failed “to ensure that all residents’ nutritional needs are met.” Exh. 637, exh. 50, p. 3. Ms. McGowan testified that the assessment phase is an interdisciplinary process that evaluates the resident and how his nutritional status is impacted by his neurological system, medications, psychiatric factors, gastrointestinal conditions, respiratory status, and musculoskeletal considerations (such as positioning). 35/161-64. She opined that the Center focuses on “what happens during the actual meal time_ [But,] they are missing many of the real important components of this process.” 35/164.

As explained above, the Center’s efforts to identify residents who are nutritionally at risk were inadequate until it developed and implemented better screening procedures. Following this development and implementation by the Center, however, Dr. Sheppard concluded that residents “who presented with a problem [were] being attended to.” 61/104. Dr. Sheppard’s review of John B.’s chart illustrated her opinion. She noted how this resident had a problem with weight loss associated with a refusal to eat. The annual review noted the following: his loss of weight; that he was essentially a dependent eater; he had a body mass index of nineteen; his weight was adequate although it was the low range of normal; he had a pureed diet with double portions; he had good lip and jaw closure, but was practically edentulous; and his response with efforts to encourage independent feeding. Dr. Sheppard further noted input from the following disciplines regarding John B.’s nutritional status: dietary, nursing, OT, pharmacy, and the physician. 61/94-95. She opined that John B. had a moderate problem in light of the fact that his nutrition was fairly good, he was still eating, and he was not showing any compromise of his respiratory system. Dr. Sheppard concluded that the Center’s nutritional management for this resident was appropriate and adequate. 61/96.

I am persuaded by Dr. Sheppard’s testimony and find that the nutritional assessments performed by the Center satisfy

*613

accepted professional standards. Although the annual review is not labeled “Nutritional Assessment,” it satisfies the interdisciplinary process which is required by the accepted professional standards and addresses the acuity of the problem and the necessary interventions. The adequacy of the nutritional assessments performed by the Center is further supported by the fact that the assessments regarding physical therapy (PT), psychiatric issues, and neurologic care, all of which affect nutrition and feeding, have been found constitutionally sound.

The United States attempts to undermine Dr. Sheppard’s testimony regarding nutritional assessments by pointing out the fact that Dr. Sheppard recommends utilizing the “body mass index” (BMI)

as a gauge of nutritional health and the fact that the BMI for the majority of the Keystone residents was below the normal range. Exhs. 967, 970. This statistic in and of itself has no bearing on the sufficiency of the assessment. Rather, it is a confirmation of the fragility of the population of the Keystone unit and the prevalence of dysphagia. 65/67.

The United States asserts that the inadequacy of the Center’s assessments is evident in not only those assessments completed by the dysphagia team, but also those which the team has failed to conduct. The dysphagia team was created approximately in June of 1990. Exh. 641/12. The team includes the following: Kathleen Wagner, a speech therapist; Mary Frye, a Licensed Occupational Therapy Aide (LOTA); Karen Fulton, a registered dietician; and Marcia Stiles, a registered nurse (RN). Exh. 641/17. This team was created in response to what was perceived as the fragmented way dysphagia and swallowing difficulties were being managed, not because of any one incident that had occurred. Exh. 641/21. A regular scheduled meeting time was established in October of 1992. Exh. 641/26.

The dysphagia team first received referrals in January of 1991, Exh. 641/48, and the number of referrals has increased each year since then. Exh. 641/51. As of January 1993, the team relied exclusively on referrals in determining which residents to evaluate. Exh. 641/44. Any resident that had a choking episode was referred to the dysphagia team. Exh. 641/47; 35/166. The dysphagia assessment focused on the resident’s ability to swallow. 35/165.

Since the team’s inception, the basis for seeking dysphagia assessments has expanded. Dysphagia assessments increased over time as they were deemed necessary due to feeding problems or residents who were at risk of aspirating. Subsequently, a “meal observation” form was created as a means of identifying unsafe eaters. Exh. 637, exh. 16. This tool was to be completed by direct care staff. Subsequently, the team developed a dysphagia screening tool which was applied on a unit wide basis starting in April of 1993 in the Laurel unit. 61/130. The dysphagia screenings were then conducted at Keystone.

Id.

The United States submits that the nutritional assessments which have been completed are inadequate. It notes that Dr. Sheppard agreed that the dysphagia evaluations need to include contributing causes and information regarding oral anatomy, 61/199, and points out that the team does not evaluate the effect of the resident’s medication regimen.

These contentions do not alter my previous conclusion. Nutritional assessments are addressed by an interdisciplinary approach. Undoubtedly, there are ways to improve these assessments, but they meet professional standards.

Dr. Sheppard explained:

[T]here is a range of dysphagia problems that can be managed with fairly routine modifications and meal time procedures, and elaborate evaluations are not truly needed in those individuals. The — many of the mildly and moderately impaired individuals can be managed with limited assessment information.

It’s when you have the severely involved individual who is eating at the very limits

*614

of their capability, and eating poorly, that having total information may be more critical because there may be things in it that you — that it would lead you to do that, would help this individual continue to be able to eat orally; and it’s in those individuals that a — a — the most comprehensive evaluation is useful.

61/201. I credit this opinion, which sheds light on the constitutional minimum required in this area. The record reveals that the Center’s nutritional assessments meet the needs of the residents (ie., the basic evaluation is in place, which can be augmented when the need arises).

Intervention

The United States asserts that the Center’s mealtime interventions for nutritional management are inadequate. To the extent this contention raises the issue of unsafe feeding by the staff, that issue is addressed in the section regarding unsafe staff actions, under the duty to provide reasonable safety, and will not be repeated herein.

See infra

at § III.E.

The thrust of the United States’ position, however, is that the Center failed to develop feeding plans for each resident who must be fed by staff (i.e., those requiring assistance) until after Ms. McGowan’s tour in 1992. Even though such feeding plans were then developed, the United States contends that this last minute effort is deficient because the feeding plans devised do not adequately address proper positioning and feeding techniques.

See

84/X-56.

Ms. McGowan noted that the Center developed supplemental procedures for most of the individuals in Keystone which related to feeding techniques. 35/148. She reviewed the supplemental procedure for all 94 residents of the Keystone unit and found 25 of them to be “completely inappropriate.” 35/149. That is, the photographs incorporated in the supplemental procedure showed heads in extension, poor positioning, and staff pushing the head back into extension.

Id.

She further opined that the feeding plans devised after her first tour of the Center were deficient because they did not detail “where to put the food in the mouth, what kinds of pressure needs to be applied, how then to pull the spoon out of the mouth, what things not to do in terms of scraping the face; and so there are — that needs to be very specific for direct care staff, because they — they can’t generalize those instructions to the very specific and very individual requirement of many of these individuals.” 36/31-32.

Dr. Sheppard agreed that a feeding plan should address proper positioning and bolus presentation. 61/201. Dr. Sheppard noted that there are “specific components to bolus presentation; and for any one individual, fewer or more of those elements may be needed in the descriptives. Usually you only include in the prescription those elements that are special for this individual.” 61/202. Dr. Sheppard concluded that the Center’s feeding plans include the elements “as is appropriate, those items that are considered to be modified for this individual and need to be special_” 61/203.

My review of some of the supplemental procedures reveals that the Center included specific components regarding bolus presentation. For example, James M.’s supplemental procedure directed that “[f]irm pressure is applied on midline of tongue with spoon.” Exh. 137. Tim P.’s procedure addressed the feeder’s positioning during the meal, presentation of the spoon and the manipulation of the spoon.

Id.

Moreover, the Center included components as appropriate for the individual. For example, Michael F.’s procedure notes that he will cooperatively open mouth and swallow when the food is placed on the tongue. Common sense dictates that the plan for this resident need not include any components regarding how to apply pressure to open the mouth, prompt the swallow, or remove the spoon. Accordingly, upon my review of the Center’s plans and the testimony of both experts, I find that the Center meets the minimum professional standards in this regard. The Center’s feeding plans include the elements appropriate for each individual.

Monitoring

The United States also asserts that the Center fails to adequately monitor mealtime

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intake and interventions. It contends that the Center did not have any system in place in living units other than Keystone to record the amount of food that residents consume until October 1993. The United States submits that it is accepted professional practice to have some type of mechanism to monitor how well residents eat at mealtimes. 61/133.

The Center has a policy regarding meal refusals by residents. The policy was documented in August of 1992 after Ms. McGowan’s evaluation of the Center revealed there was no written policy. Prior to the approval of this written policy, however, the Center had been “doing exactly what the policy said for many, many, many years ... it was well understood by all staff that this was the procedure to be followed.” Exh. 637/11. A “Meal Checklist” form was also generated in October of 1992 after Ms. McGowan’s evaluation of the Center. Exh. 673, exh. 16. This checklist is completed daily for each resident and indicates the quality of the resident’s intake. All forms are forwarded to the Unit Manager on Fridays after review by the nurse.

Id.

Although the checklist was generated in October of 1992, “the nurses have always summarized appetite or lack of appetite or an individual’s preference for foods.” Exh. 637/21.

I find that the Center has in place an adequate mechanism for monitoring how well residents eat at mealtimes as evidenced by the “unwritten policy,” which was eventually memorialized in Ebensburg Center Policy # 356, as well as the long-standing nursing practice of documenting in a resident’s summary the status of his or her appetite. These practices are consistent with accepted professional practice, which requires some mechanism for tracking meal times. 61/133-34.

The United States, however, contends that even these policies are flawed because they do not address liquids. It points out that policy # 356 states: “when an individual refuses a meal, or a substantial portion of a meal, staff are to notify the nurse on duty. When an individual has refused three consecutive meals, the nurse will notify the physician. Liquid supplements are not considered an individual’s meal.” Exh. 637, exh. 15. This policy refers to refusals, and it is logical that a refusal of liquid

supplement,

an addition to one’s regular meal, would not constitute a meal refusal. Consequently, this policy has no relevance to the Center’s practice of monitoring the liquid intake at a meal.

As further support for its argument that the Center fails to properly monitor liquid intake, the United States asserts that Ms. Sponsky, the Director of Nursing, does not “consider liquids as part of a meal.” Exh. 637/13. Ms. Sponsky’s indication that liquids are not considered part of the meal was not emphatic. She admitted that she could not say whether a failure to take in liquids during a meal would be reported to the nurse and she did not know how the staff actually implemented the policy. Dr. Sheppard noted, however, that liquids are addressed in some of the units. She described how Keystone documents intake for food and liquids, and that the assessment of the meal in the Laurel unit included liquid intake as a component of the meal in its entirety. 61/135-36. She specifically recalled documentation noting “liquids refused” and her observations of mealtime intake, including liquids, were 100% congruent with the documentation of the feeders. 61/137.

The United States further contends that the Center’s nutritional care is flawed because no formal policy exists for summarizing the information from the meal checklist. Dr. Sheppard noted that the information is conveyed to the physician after three meal refusals and to the QMRP after four fair intakes,

ie.,

50% to 74% of meal, and asserted that she was not sure that a written policy is so important. 61/139;

see

Exh. 637, Exh. 16. Dr. Sheppard’s opinion is persuasive. At some point, the utility of a “summary of summaries” is questionable. I find professional judgment was exercised in monitoring mealtime intake which was consistent with accepted standards of practice.

Training

The United States’ next contention is that the Center fails to adequately train staff to implement feeding plans. Ms. McGowan testified that staff training is key to ensuring

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adequate nutritional management. 35/161— 61. Ms. McGowan claimed that competency-based training should be part of feeding training. 34/28. Such training not only addresses general principles, but also gears the training for each feeder to the unique needs of each individual. 35/161-2. The United States contends that even the Center’s expert, Dr. Sheppard, agreed that staff need frequent training that is specific with respect to the residents for whose feeding they are responsible. 84/X-60.

Dr. Sheppard’s actual testimony, however, recognizes that professional literature regarding effectiveness of staff training and repetition is not extensive. In her opinion, staff training needs must be based on an assessment of the staffs abilities, how well feeding procedures have been retained and how effectively such skills have been implemented to determine how frequent training must be provided. 65/18. Dr. Sheppard then noted that although there had not been any formal training sessions by the dyspha-gia team, numerous mini-staffings are given every time a special procedure is developed or changed. Dr. Sheppard specifically opined that “there were professional judgments involved in determining how the program was to proceed.” 65/20.

The United States submits, however, that Dr. Sheppard’s opinion is not credible because the method utilized to train the direct care staff was nothing more than reading the supplemental procedure books for feedings. 65/21. I am not persuaded by this assertion in light of Velda Malloy’s deposition testimony. Ms. Malloy is an RN who has worked at the facility since 1963 and served as a supervisor and QMRP in the Keystone unit since 1992. Exh. 622/8. Ms. Malloy noted that she feeds residents in Keystone and had been trained in the supplemental procedure. She further explained that she helped write the procedures after first discussing the specific needs of each individual with the OT (Lois Graham), a speech therapist (Kathy Wagner), and the direct care staff. In addition, Ms. Malloy actually observed the staff feeding every individual. Exh. 622/84. Ms. Malloy explained that the direct care staff consult the special procedure books and ask questions of the professional staff that are always present in the dining room. Exh. 622/89. She further noted that if staff are feeding inappropriately, they are approached immediately by a professional to address the proper method of feeding. Exh. 622/95-96.

I find the Center’s efforts to provide adequate staff training to implement the feeding plans satisfies the accepted professional practice described by both Ms. McGowan and Dr. Sheppard. In light of the staffs knowledge base in feeding the residents, training need not start at square one. Day-to-day assessments of actual feedings by the professionals present in the dining room provide ample opportunity for additional training to correct deficiencies or reinforce the proper method. Professional judgment is exercised.

The United States’ final claim of deficiencies in the nutritional area is that the Center fails to insure that its professional staff is adequately trained in nutritional management. The evidence offered by the United States in support of this contention is nothing more than a list of training that the professionals at the Center would like to receive. That the Center’s professionals desire additional training hardly proves a constitutional violation.

5. PHYSICAL THERAPY

The United States contends that the Center’s physical therapy (“PT”) services

are a substantial deviation from acceptable professional practice because the Center allegedly: (1) fails to conduct proper PT assessments; (2) fails to develop and provide adequate physical management for residents with physical disabilities; (3) fails to provide acceptable wheelchairs; (4) fails to properly handle, lift and transfer residents; and (5) fails to adequately train its staff in the physical management of its residents. 84/XIV.

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The United States argues that the Constitution requires the Center to provide physical therapy services which enhance the residents’ capacity to function,

i.e.,

help the residents to live as safely and as independently as possible. The United States believes that physical therapy, a professional discipline concerned with maintaining, restoring and/or acquiring one’s maximum range of motion, should achieve the following benefits for the residents: (1) enable them to move more easily and efficiently; (2) avoid the development of contractures, deformities, and acute curvatures of the spine due to scoliosis; and (3) provide them with the opportunity to learn functional skills to enhance their independence. In effect, the United States argues that the Constitution requires the Center to provide residents not just maintenance to avoid or minimize loss, but also the therapy necessary to reach their maximum potential.

In support of this proposition, the United States cites the analysis of District Judge McCalla as set forth in his supplemental findings of fact in

United States v. Tennessee,

No. 92-2062-M1/A (February 17, 1994), ¶¶ 113-14

(see

92/Exh. A for the full text of Judge McCalla’s supplemental findings of fact). As pronounced by Judge McCalla, the constitutional duty to provide physical therapy is quite far-reaching, and entails the provision of services at an institution in an effort to obtain the greatest possible amount of movement for the residents, resulting in their greatest possible independence.

Although mentally retarded individuals do not lose their liberty interests simply by virtue of their institutionalization,

Youngberg,

457 U.S. at 315-16 , 102 S.Ct. at 2458 , the Supreme Court in

DeShaney

cautioned against an overly-expansive interpretation of the Due Process Clause, and clarified that the Clause “generally eonfer[s] no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” 489 U.S. at 196, 109 S.Ct. at 1003 . As the

DeShaney

Court explained,

Youngberg

stands for the simple, albeit important, proposition “that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.”

DeShaney,

489 U.S. at 199-200, 109 S.Ct. at 1005 .

This constitutional obligation, however, differs dramatically from the type of affirmative duty that the United States seeks to place upon the Commonwealth here—to actually

improve

the condition of the residents by means of its physical therapy services. Justice Blackmun’s concurrence in

Youngberg ,

joined by Justice Brennan and Justice O’Connor, suggests that the failure of a State to

preserve

self-care skills acquired before institutionalization (an issue that was not before the Court in

Youngberg)

may present a question of whether there has been a constitutional deprivation. 457 U.S. at 329, 102 S.Ct. at 2465 (Blackmun, J., concurring). Consistent with the reasoning of Justice Blaekmun’s concurrence in

Youngberg ,

I hold that the constitution imposes a duty upon the Commonwealth, pursuant to the exercise of professional judgment, to provide PT services at the Center which maintain the residents’ maximum ability to move, but not a duty to achieve some optimal level of performance.

Stated differently, an infringement of a mentally retarded resident’s liberty interests may occur if a loss in movement results from the Center’s failure to provide necessary physical therapy training and/or services, but not every instance where there is a loss of movement indicates that a constitutional violation has occurred. The failure of the Commonwealth to provide training at

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the Center which

improves

the residents’ basic care skills, absent proof that the failure to provide training results in the loss of a recognized liberty interest

(e.g.,

minimally adequate or reasonable training to ensure safety and freedom from undue restraint, as recognized in Youngberg), does not implicate constitutional Due Process concerns.

Where the state does not provide treatment designed to improve a mentally retarded individual’s condition, it deprives the individual of nothing guaranteed by the Constitution; it simply fails to grant a benefit of optimal treatment that it is under no constitutional obligation to grant.

Society for Good Will,

737 F.2d at 1250 .

As explained below, pursuant to the foregoing standards, I find that the Center provides a broad spectrum of physical therapy services, and that professional judgment is exercised in an effort to preserve and/or maintain the residents maximum ability to move. Accordingly, I find no constitutional deprivation.

Most of the physical therapy services provided at the Center are rendered to residents who have a physical handicap. The Keystone unit is home to most of the residents who have one or more physical handicaps that impair their ability to move. Some physically handicapped residents also live in the Laurel, Horizon, Sunset and Villa living units. 34/98.

Approximately one-third of the residents of the Keystone unit are essentially immobile because of their physical handicaps. They have no active movement except for the ability to move their head or an arm or a leg slightly. 34/98. Another one-third of the residents of the Keystone unit have significant limitations. They may be able to perform a functional skill such as rolling over or sitting up, but not the host of functional skills that would enable them to move independently. 34/98. The other one-third of the residents of the Keystone unit have limitations of a minimal to moderate degree in their ability to move. Their physical handicaps impair but do not preclude independent movement. 34/98.

The physical handicaps manifested by the residents at the Center are the result of damage to the brain early in their lives, in almost all eases before preschool age. 34/107. As the residents age, they progress through three stages of development. The first stage is consistent with neuroplasticity, and involves a period of growth in response to abnormal neurological influences and secondary muscle imbalances. This stage lasts until approximately age seven. During this first stage, deformities actually begin to develop, and PT intervention is useful in order to prevent or limit their development. 52/45-47.

The second stage is that of skeletal maturation. This period spans from approximately age seven until skeletal maturity has been attained, and intervention efforts are geared toward retarding any progression of deformities that developed during the neuroplasticity stage. 52/45-47.

The third and final stage begins after skeletal maturity has been attained. At that point, the Center’s intervention efforts focus on attempting to prevent the further progression of deformities, maintaining comfort, and providing positioning that is conducive to general health considerations. 52/45-47, 58.

The residents at the Center who have physical handicaps have attained skeletal maturity. 52/60-61. As a result, the physical handicaps arising from the structural deformities are fixed and cannot be reversed. 52/60-61. These residents have a corresponding limitation in movement, and they have been in the positions they present for fifteen to twenty years. 32/151-52. The United States’ PT expert, Ms. McAllister, and the Commonwealth’s PT expert, Mr. Arnall, are diametrically opposed on the possibility of reversing postural deformities after skeletal maturity. My conclusion from hearing them testify is that Ms. McAllister may be on the leading edge of the PT field, but that Mr. Arnall represents the mainstream school of thought. The constitutional duty imposed by

Youngberg

and

Shaw

does not require the Center to embrace an unorthodox method, even if it is promising.

For these residents, maintenance of maximum movement has several benefits: (1) it

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prevents a loss of mobility and skills associated with that movement; (2) it prevents a loss of strength; (3) it prevents the development of pressure areas, since movement can be effected to eliminate pressure; and (4) it can slow the progression of osteoporosis. 34/149-50. In short, preservation of a resident’s maximum ability to move prevents or delays the development of osteoporosis or contractures, which, in conjunction with the structural deformity, may contort the body and affect the internal organs. 34/149.

The Center contracts for the services of a licensed physical therapist (LPT) to oversee the provision of PT services to Center residents.

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