Appendix — Pennhurst State School and Hospital v. Halderman
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JOINT APPENDIX
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_—————
Supreme Court of the United States
October Term, 1979
No.
by | ave
PENNHURST STATE SCHOOL AND
HOSPITAL et al.,
Petitioners
Vv.
TERRI LEE HALDERMAN , et al.
PENNSYLVANIA ASSOCIATION FOR
RETARDED CITIZENS, et al.
and
UNITED STATES OF AMERICA,
Respondents
On Petitions for Writ of Certiorari to the United
States Court of Appeals for the Third Circuit
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TABLE OF CONTENTS
PAGE
Order Dated November 29, 1976 .............. la
District Court Opinion Dated December 23, 1977 6a
Memorandum Opinion Dated March 17, 1978 .... 76a
Order Dated March 17, 1978 ...........e000.. 79a
Copemeems, COGN OF ADPONIS «wo cece eenee 89a
Dissenting Opinion, Court of Appeals .......... 162a
Rehabilitation Act of 1973, Section 504 (29 U.S.C.
re irre ie Sas Cok k Ee RR OS 197a
Developmentally Disabled Assistance and Bill of
Rights Act:
ee Dg ge Vids oe web es ce ne 198a
ee i ce eae oewe 200a
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aso ek week's osha 204a
GR ol OR > rere 204a
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ee aa sei cake on OR RO 219a
ee a is gk ieee be A Kon 219a
Federal Rules of Civil Procedure, Rule 53 ........ 220a
Pennsylvania Mental Health and Mental Retardation
Act:
Ro ays eu ee hea ho 8 ee os 225a
I I Si cc viv aes 2 eee 0 227a
soe
Fe. See. 458 Ce), AE). oben cvs ee cavers 227a
SO Ps We eT Dk Gh oe be ewes 228a
i ge eR ae ee oe ae 228a
Act of Pennsylvania General Assembly, November
Big Ree Tee PS BE ok 6 GG ebook ees 230a
Title 6100 MH/MR Program, Fiscal Manual for the
County MH/MR Program ................ 239a
li
Order, November 29, 1976 la
APPENDIX
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 74-1345
Terri Lee Halderman, et al.,
Plaintiffs
Vv.
Pennhurst State School and Hospital, et al.,
Defendants
United States of America,
Plaintiff-Intervenor
Pennsylvania Association for Retarded Citizens, et al.,
Plaintiff-Intervenors
ORDER
AND NOW, this 29th day of November, 1976, the
Court having before it a number of motions which have
been filed in connection with the above captioned matter,
anc having considered the pleadings and briefs of the par-
ties, makes the following Orders in connection with said
motions.
2a Order, November 29, 1976
It is hereby ORDERED that:
1. The Motion to Dismiss filed by Commonwealth
Defendants on July 12, 1974 is hereby denied.
2. The Motion to Dismiss Plaintiff-Intervenor, the
United States of America, filed by Commonwealth De-
fendants on September 30, 1975 is hereby denied.
3. The Motion for Leave to File A Second Amended
Complaint, filed by Plaintiffs, Terri Lee Halderman, et
al.,on March 31, 1976, is hereby granted.
4. The Motion to Dismiss filed by Defendants, Rob-
ert Strebl, Earl Baker, Leo McDermott and William A.
McKendry on March 15, 1976, is hereby denied.
5. The Motion to Dismiss Plaintiff-Intervenor’s,
Pennsylvania Association for Retarded Citizens (P.A.-
R.C.) , Complaint in Intervention as Amended by Stipula-
tion of Counsel filed by Commonwealth Defendants on
April 5, 1976 is hereby denied.
5a. The Motion to Dismiss, or In the Alternative, to
Strike the Amended Complaint in Intervention of P.A.-
R.C. filed by the Commonwealth Defendants on April 5,
1976 is hereby denied.
6. The Court, having considered the Motion to Join
Defendant Parties, filed on May 21, 1976 by Plaintiff-
Intervenors, P.A.R.C., determines that said Motion is moot
in that said Defendants will be before the Court after
service of Plaintiffs’ Terri Lee Halderman, et al., Second
Amended Complaint.
7. The Motion to Dismiss filed by Defendants
Frank Rizzo, the City Council of Philadelphia and Leon
Soffer on June 1, 1976 is hereby denied.
Order, November 29, 1976 3a
8. The Motion to hold Commonwealth Defendants
in Contempt of Court filed by Plaintiffs, Terri Lee Halder-
man, et al., on June 9, 1976 is hereby denied.
9. The Motion for a Protective Order to Seal All
Discovery filed by Commonwealth Defendants on June
23, 1976 is hereby denied.
10. The Motion to Stay Discovery filed by Com-
monwealth Defendants on June 25, 1976 is hereby denied.
11. The Motion to Stay Discovery filed by Com-
monwealth Defendants on August 9, 1976, is hereby
denied.
12. The Motion for a Protective Order filed by
Commonwealth Defendants on August 23, 1976, is hereby
denied.
13. The Motion to Compel Plaintiff-Intervenor,
P.A.R.C., to Answer Interrogatories Number 4, 5, 6, 7,
8, 9, 10, 11, 12, 13, 20 and 22 of Commonwealth De-
fendants’ First Set of Interrogatories filed on August 26,
1976, is hereby granted to the extent necessary to verify
paragraph 4 of P.A.R.C.’s Amended Complaint insofar as
the allegations of said paragraph pertain to the class of
persons described in paragraph 15 of this Order.
14. The Motion to Compel Plaintiff-Intervenors,
United States of America, to Answer Interrogatories
Number 2, 3, 5, 6 and 7 of Commonwealth Defendants’
First Set of Interrogatories to Plaintiff-Intervenor, United
State of America, filed on November 28, 1975, is hereby
denied.
15. In accordance with Rule 23(c) of the Fed. R.
Civ. P., the Court determines that this litigation shall be
maintained as a class action pursuant to Fed. R. Civ. P.
4a Order, November 29, 1976
23(b) (1) and (b) (2); the Court having found that: (a)
the class is so numerous as to make joinder of*all mem-
bers impracticable, (b) there are questions of law and
fact common to the class and the claims of the plaintiffs
are typical of the class and predominate over any ques-
tions affecting only individual members, (c) the named
plaintiffs will adequately and fairly protect the interest
of the class, (d) a class action is superior to any other
available method for the fair and efficient adjudication
of the controversy, (e) the prosecution of separate ac-
tions by or against individual members of the class would
create a risk of inconsistent adjudications with respect to
individual members of the class which would establish
incompatible standards of conduct for the party opposing
the class, and (f) defendants have acted or refused to
act on grounds generally applicable to the class thereby
making appropriate final injunctive relief or corresponding
declaratory relief with respect to the class as a whole.
The class shall consist of all persons who as of May 30,
1974, and at any time subsequent, have been or may be-
come residents of Pennhurst State School and Hospital.
The members of the class are persons resident at Penn-
hurst State School and Hospital, persons residing in Bucks,
Chester, Delaware, Montgomery and Philadelphia Coun-
ties who are on a waiting list for placement at Pennhurst
State School and Hospital, and persons residing in Bucks,
Chester, Delaware, Montgomery and Philadelphia Coun-
ties who, because of the unavailability of alternate ser-
vices in the community, may be placed at the Pennhurst
State School and Hospital.
16. This Court’s Order, dated October 4, 1976,
staying discovery pending determination of the above
motions is hereby VACATED.
Order, November 29, 1976 5a
17. It is further ORDERED that counsel for all
parties shall meet in chambers, 10613 United States Court-
house, 601 Market Street, Philadelphia, Pennsylvania, on
Wednesday, December 8, 1976, at 9:00 a. m., for the pur-
pose of determining dates for the completion of a Pre-
Trial Order and the Trial of this case.
(s) Raymond J. Broderick
Raymond J. Broderick, J.
6a District Court Opinion,
December 23, 1977
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 74-1345
Filed Dec. 23, 1977
Terri Lee Halderman, a retarded citizen, by her mother
and guardian, Winifred Halderman;
Larry Taylor, a retarded citizen, by his parents and
guardians, Elmer and Doris Taylor;
Kenney Taylor, a minor, a retarded citizen, by his parents
and guardians, Elmer and Doris Taylor;
Robert Sobetsky, a minor, a retarded citizen, by her
parents and guardians, Frank and Angela Sobetsky;
Theresa Sobetsky, a retarded citizen, by her parents and
guardians, Frank and Angela Sobetsky;
Nancy Beth Bowman, a retarded citizen, by her parents
and guardians, Mr. and Ms. Horace Bowman;
Linda Taub, a retarded citizen, by her parents and guard-
ians, Mr. and Mrs. Allen Taub;
George Sorotos, a minor, a retarded citizen, by his foster
parents, William and Marion Caranfa, all of the above
individually and on behalf of all others similarly situated;
The Parents and Family Association of Pennhurst,
Plaintiffs
District Court Opinion, 7a
December 23, 1977
Pennsylvania Association for Retarded Citizens,
Jo Suzanne Moskowitz, a minor, by her parents and next
friends, Leonard and Nancy Moskowitz,
Robert Hight, a minor, by his parents and next friends,
John and Jeanne Hight,
David Preusch, a minor, by his parents and next friends,
Calvin and Elizabeth Preusch, and
Charles DiNolfi,
On behalf of themselves and all others similarly situated,
Plaintiffs-Intervenors
United States of America,
Plaintiff-Intervenor
V.
Pennhurst State School & Hospital,
Department of Public Welfare of the Commonwealth of
Pennsylvania,
Frank S. Beal, Secretary of the Department of Public
Welfare,
Stanley Meyers, Deputy Secretary for Mental Retardation,
Department of Public Welfare,
Fd
Helene Wohlgemuth, Former Secretary, Department of
Public Welfare,
Aldo Colautti, Executive Deputy Secretary, Department of
Public Welfare,
Wilbur Hobbs, Deputy Secretary for Southeastern Region,
Department of Public Welfare,
8a District Court Opinion,
December 23, 1977
Russell Rice, Jr., Commissioner of Mental Retardation for
Southeastern Region, Department of Public Welfare,
C. Duane Youngberg, Superintendent, Pennhurst State
; School & Hospital,
Robert Smilovitz, Former Assistant Superintendent, Penn-
hurst State School & Hospital,
Joseph Foster, Assistant Superintendent, Pennhurst State
School & Hospital,
Margaret Green, Betiy Uphold, Alice Barton, P. E. Klick,
Dr. Parocca, Helen Francis, employees and agent of Penn-
hurst State School & Hospital,
John Doctor, James Nurse, Jane Aide, Jill Therapist,
Richard Roe, Jane Doe, unknown and unnamed staff,
employees and agents of Pennhurst State School & Hos-
pital, each individual Defendant sued individually and in
his or her official capacity,
George Metzger, Joseph Catania, and Roger Bowers,
Commissioners for Bucks County,
Robert Strebl, Earl Baker and Leo McDermott, Com-
missioners for Chester County,
Faith R. Whittlesey, Charles Keeler, and William Spingler,
Commissioners for Delaware County,
A. Russell Parkhouse, Frank W. Jenkins and Lawrence
H. Curry, Commissioners for Montgomery County,
Mayor Frank L. Rizzo and The City Council of Philadel-
phia, as Authorities for Philadelphia County,
Peter Bodenheimber, Mental Health/Mental Retardation
Administration for Bucks County,
District Court Opinion, 9a
December 23, 1977
William A. McKendry, Mental Health/Mental Retardation
Administrator for Chester County,
P. Paul Burrichter, Mental Health/Mental Retardation
Administrator for Delaware County,
Hermann A. Roether, Mental Health/Mental Retardation
Administrator for Montgomery County, and
Leon Soffer, Mental Health/Mental Retardation Admin-
istrator for Philadelphia County,
Defendants
OPINION
Broderick, J., December 23, 1977.
This is a class action in which the named plaintiffs
are either residents or former residents of Pennhurst State
School and Hospital, now known as Pennhurst Center
(“Pennhurst’’) , an institution owned and operated by the
Commonwealth of Pennsylvania, located in Spring City,
Pennsylvania. These plaintiffs are all retarded persons,
or their representatives, who claim injury based on viola-
tions of certain state’ and federal? statutes as well as viola-
tions of certain constitutional rights’ in connection with
their institutionalization at Pennhurst. The plaintiffs
seek both damages and broad equitable relief including
the closing of Pennhurst, and mandating that the defend-
* 50 P.S. §§4101 et seq., 4507, 4509.
729 U.S.C. §794; 42 U.S.C. §§1983, 1986, 6010.
* First, Eighth, Ninth, and Fourteenth Amendments to the
United States Constitution.
10a District Court Opinion,
December 23, 1977
ants provide them with education, training and care in
their respective communities. ‘Habilitation’ is the term
of art used to refer to that education, training and care
required by retarded individuals to reach their maximum
development.
This matter was tried before the Court, sitting with-
out a jury, over a period of thirty-two days, testimony
being limited solely to the issue of liability. In connection
therewith, the Court makes the following findings of fact
and conclusions of law:
Mental retardation, by definition, is an impairment
in learning capacity and adaptive behavior.* (Roos, N.T.
1-86). Retardation is wholly distinct from mental illness.
Retarded individuals, just as other members of society,
may suffer from mental illness. Mental retardation is
primarily an educational problem and not a disease which
can be cured through drugs or treatment. However, with
proper habilitation, the level of functioning of every re-
tarded person may be improved. (Glenn, N.T. 5-186).
The incidence of mental retardation is about 3% in
the general population. There are four basic levels of
mental retardation: (1) mild (I.Q. 52-69) which com-
prises 89% of the mentally retarded population; (2)
moderate (1.Q. 36-51) which comprises 6% of the men-
* Intelligence is generally measured through intelligence quo-
tient tests (1.Q.), while ability to deal with social environment is
measured through social quotient tests.
® An individual may be functioning at a retarded level due to
lack of education and/or training, and once supplied with that
education and/or training, may be removed from the ranks of
the retarded.
District Court Opinion, lla
December 23, 1977
tally retarded population; (3) severe (1.Q. 20-35) which
in conjunction with (4) profound (1.Q. less than 20)
comprises 5% of the mentally retarded population.
(Roos, N.T. 1-89, 1-90).
Pennhurst, as an institution for the retarded, was on
trial. Recent years have witnessed an assault upon such
institutions.” At issue is whether the residents at Penn-
hurst have been the victims of violations of their statutory °-
Or constitutional rights; specifically whether Pennhurst
as an institution has been violating the statutory or con-:
Stitutional rights of its retarded residents in failing to pro-
vide them with minimally adequate education, training
and care.
History is replete with misunderstanding and mis-
treatment of the retarded. As Wolfensburger points out
in The Origin and Nature of Our Institutional Models 3
(1975):
It is chastening to recall that the retarded in
American history were long grouped with other
types of deviant groups. In early America, the
Puritans looked with suspicion on any deviation from
behavioral norms, and irregular conduct was often
explained in terms of the supernatural, such as
witchcraft. There is reason to believe that retarded
individuals were hanged and burned on this suspicion.
Later in New England, records show that lunatics,
“distracted” persons, people who were non compos
® See, e.g., Mason & Menolascino, The Right to Treatment for
Mentally Retarded Citizens: An Evolving Legal and Scientific
Interface, 10 Creighton L. Rey, 124 (1976) [hereinafter cited as
Mason & Menolascino |}.
12a
District Court Opinion,
December 23, 1977:
mentis, and those who had “fits” were all classed
together, perhaps with vagabonds and paupers thrown
in... . Connecticut’s first house of correction in
1722 was for rogues, vagabonds, the idle, beggars,
fortune tellers, diviners, musicians, runaways, drunk-
ards, prostitutes, pilferers, brawlers—and the men-
tally afflicted. ... As late as about 1820, the re-
tarded together with other dependent deviant groups
such as aged paupers, the sick poor, or the mentally
distracted were publicly “sold” (“bid off”) to the
lowest bidder, i.e., bound over to the person who
offered to take responsibility for them for the lowest
amount of public support. .. .
The 10th (1880) U.S. census first combined
“defectives,” “dependents,” and “delinquents” for
reporting purposes. The Public Health Service com-
bined “criminals, defectives, and delinquents” as
late as the 1920’s.
The National Conference on Charities and Cor-
rection, between about 1875 and 1920, often grouped
the idiotic, imbecilic and feeble-minded with the deaf ‘
dumb, blind, epileptic, insane, delinquent and offend-
ers into one general class of “defectives.” Few of us
today are aware of the fact that the more contem-
porary term “mental defective” was coined to dis-
tinguish the retarded from these other “defectives,”
and it is no coinciden’e that many state institutions
were for both the retarded and the epileptic. Dur-
ing the “indictment period,” discussed later, an in-
credible range of deviances were associated with
retardation; indeed, they were seen to be caused by
it: illness, physical impediments; poverty; vagrancy;
District Court Opinion, 13a
December 23, 1977
unemployment; alcoholism; sex offenses of various
types, including prostitution and illegitimacy; crime;
mental illness; and epilepsy. All these were called
the ‘‘degeneracies.”’
Institutions for a number of “deviant” groups were
‘founded in the United States in the mid-nineteenth cen-
tury for the purpose of making the deviant less deviant.
They were originally relatively small centers, often lo-
cated within the community, in which intensive training
could be concentrated on the deviants. Their emphasis
was on education; they were viewed as temporary board-
ing schools, geared toward returning the individuals to
their family or living group once appropriate skills were
learned. By the late nineteenth century, however, these
schools were replaced by asylums isolated from the com-
munity, where instead of providing the individual with
the education and training necessary to return to the com-
munity, they provided the protection and care it was
thought that these individuals required. The asylum grew
to be viewed as a permanent residential facility for the
deviant. In the more progressive states, the retarded re-
ceived their own facilities separated from other “deviant”
groups. With this concept came increased isolation and
increased size permitting little time for habilitation. See
generally, W. Wolfensberger, supra at 24-56. Pennhurst
was the product of this era.”
“From 1860 to 1960 there had been a marked increase in the
number of mentally retarded individuals residing in our nation’s
institutions. Since 1966, this number has been decreasing. In
1966, 99 out of every 100,000 mentally retarded individuals were
institutionalized. By 1976, that number had dropped to 71 out
of every 100,000. In 1976, 154,000 mentally retarded individuals
14a District Court Opinion,
December 23, 1977
I. Procedural History
This action was commenced in May, 1974. On No-
vember 26, 1976, it was certified by the Court as a class
action, with the plaintiff class of retarded persons defined
as: .
All persons who as of May 30, 1974, and at
any time subsequent, have been or may become
residents of Pennhurst State School and Hospital.
The members of the class are persons resident at
Pennhurst State School and Hospital, persons residing
in Bucks, Chester, Delaware, Montgomery and Phila-
delphia Counties who are on a waiting list for place-
ment at Pennhurst State School and Hospital, and
persons residing in Bucks, Chester, Delaware, Mont-
gomery and Philadelphia Counties, who, because of
the unavailability of alternate services in the com-
munity, may be placed at the Pennhurst State School
and Hospital.
On February 4, 1977, by agreement of the parties,
we entered an Order trifurcating the trial. This Order
reads, in pertinent, part, as follows:
Said trial will be bifurcated—the first phase
limited solely to the issue of liability. At such time
as the Court issues its findings of fact and conclusions
of law thereafter, a date shall be set for the second
phase of the trial—to determine what relief, if any,
a federal court can and should grant in this situa-
tion. At the conclusion of the second phase of the
were residing in state public institutions, 32,000 were in hospitals
for the mentally ill and 32,000 were in private institutions of var-
ious kinds. (Roos, N.T. 1-92, 1-93).
District Court Opinion, 15a
December 23, 1977
trial, a date shall be set for the third phase of the
trial, if one is deemed necessary,—to determine dam-
ages due Plaintiffs.
The first phase of this non-jury trial began on April 18,
1977 and ended on June 13, 1977, occupying thirty-two
court days.
Il. The Parties
The original complaint in this action was filed as a
class action by Terri Lee Halderman, a retarded individual
who had been admitted to Pennhurst on the application
of her parents pursuant to 50 P.S. §4402° in 1966. On
550 P.S. $4402 provides:
(a) Application for voluntary admission to a facility
for examination, treatment and care may be made by:
(1) Any person over eighteen years of age.
(2) <A parent, guardian or individual standing in loco
parentis to the person to be admitted, if such person is eigh-
teen years of age or younger.
(b) When an application is made, the director of the
facility shall cause an examination to be made. If it is deter-
mined that the person named in the application is in need
of care or observation, he may be admitted.
(c) Except where application for admission has been
made under the provisions of section 402(a) (2) and the per-
son admitted is still eighteen years of age or younger, any
person voluntarily admitted shall be free to withdraw at any
time. Where application has been made under the provisions
of section 402(a) (2), only the applicant or his successor shall
be free to withdraw the admitted person so long as the admit-
ted person is eighteen years of age or younger.
(d) Each admission under the provisions of this section
shall be reviewed at least annually by a committee, appointed
by the director from the professional staff or the facility
wherein the person is admitted, to determine whether con-
16a District Court Opinion,
December 23, 1977
July 29, 1974, the first amended complaint was filed,
adding as name plaintiffs seven other retarded individuals”
who had been admitted to Pennhurst upon the application
of their parents. The amended complaint also added as
a plaintiff the Parents and Family Association of Penn:
hurst representing 200 parents of retarded residents at
Pennhurst. The Association was organized in 1967 to
protect the rights of retarded citizens at Pennhurst and
Other institutions. (First amended complaint at 4).
On January 17, 1975, the Court granted the United
States of America leave to intervene as a party plaintiff.’
On November 12, 1975, the Court, without opposition,
granted leave to intervene to the Pennsylvania Associa-
tion for Retarded Citizens (“PARC’”’) and four retarded
individuals,’ three of whom were court committed to
tinued care is necessary. Said committee shall make written
recommendations to the director which shall be filed at the
facility and be open to inspection and review by the depart-
ment and such other persons as the secretary by regulation
may permit.
Where the admission is under the provisions of section
402(a)(2), the person admitted shall be informed at least
each sixty days of the voluntary nature of his status at the
facility.
*Larry Taylor, Kenny Taylor, Robert Sobetsky, Theresa
Sobetsky, Nancy Beth Bowman, Linda Taub, and George Sorotos.
*° On November 29, 1976, we denied defendants’ motion to dis-
miss the United States for lack of standing. Defendants’ attempt
to mandamus this Court to dismiss the United States failed. Beal
v. Broderick, F.2d , (3d Cir. 1976), cert. denied, USS.
(1977).
™ Jo Suzanne Moskowitz, Robert Hight, David Perusch, and
Charles DiNolfi.
District Court Opinion, 17a
December 23, 1977
Pennhurst pursuant to 50 P.S. §4406" or an earlier stat-
ute. PARC is a non-profit corporation which was
founded in 1950 (Schmidt, N.T. 14-108) and has mem-
1250 P.S. $4406 provides:
(a) Whenever a person is believed to be mentally dis-
abled, and in need of care or treatment by reason of such
mental disability, and examination of such person has been
made by a physician or physicians, or for any reason the
examination of such person cannot be made, a petition may be
presented to the court of common pleas of the county in which
a person resides or is, for his immediate examination or com-
mitment to an appropriate facility for examination, observa-
tion and diagnosis.
(1) The petition may be made by a relative, guardian,
friend, individual standing in loco parentis, or by the execu-
tive officer or an authorized agent of a governmental or rec-
ognized nonprofit health and welfare organization or agency
or any responsible person.
(2) The petition shall set forth the facts upon which
the petitioner bases his belief of mental disability and the
efforts made to secure examination of the person by a phy-
sician.
(3) Said court upon consideration of such petition shall :
(i) issue a warrant requiring that such person be brought be-
fore said court; (ii) fix a date for a hearing which shall be
as soon as the warrant is executed, and (iii) notify the par-
ties in interest.
(4) After hearing, said court may: (i) order an im-
mediate examination by two physicians appointed by said
court, or (ii) order the commitment of the person believed
to be mentally disabled, to a facility for a period not exceed-
ing ten days for the purpose of examination. If the exam-
ination can be accomplished by partial hospitalization said
court may so direct.
(b) If, upon examination, it is determined that such
person is in need of care at a facility, the examining physi-
18a District Court Opinion,
December 23, 1977
ber chapters in fifty-seven of Pennsylvania’s sixty-seven
counties; its purpose being to advance the interest of re-
tarded persons in Pennsylvania. The members of PARC
include parents, other relatives, guardians, and next
friends of persons residing at Pennhurst, and those in
jeopardy of residing there.
Defendants are: Pennhurst; the Pennsylvania De-
partment of Public Welfare; various state and county"
officials responsible for supervising the Commonwealth’s
and the counties’ retardation programs; and the super-
intendent and various employees of Pennhurst.
III. Education, Training and Care (Habilitation) Af-
forded the Retarded at Pennhurst
Pennhurst, a residential institution for the retarded,
was founded in 1908. It is owned and operated by the
cians or director, as the case may be, shall immediately report
to said court which may order the commitment of such per-
son for care and treatment.
In its order of commitment, said court may permit partial
hospitalization or outpatient care, or if at any time thereafter
the director shall determine such partial hospitalization or
outpatient care to be beneficial to the person so committed,
the same may be permitted by said court upon application
by the director.
The court in Goldy v. Beal, 429 F. Supp. 640 (M.D. Pa.
1976) (three-judge court) found this statute unconstitutionally
vague with respect to the commitment of mentally ill persons.
Pennsylvania’s procedure for the involuntary commitment of
mentally ill persons is now found in 50 P.S. §§7301-7306. The
constitutionality of $4406 as it applies to the retarded is not
challenged in this litigation.
*® Representing Bucks, Chester, Delaware, Montgomery and
Philadelphia Counties.
District Court Opinion, 19a
December 23, 1977
Commonwealth of Pennsylvania, and is located in Spring
City, Pennsylvania about 30 miles from Philadelphia.
Since its founding in 1908, the institution has been over-
crowded and understaffed. (PARC Exhibit 40, R.
Smilovitz, Pennhurst in Perspective: Purpose, Programs,
Possibilities.) The present resident population is approxi-
mately 1,230, reduced from a high of nearly 4,000 in the
early 1960’s. (Youngberg N.T. 22-123). Its staff num-
bers approximately 1,500. All parties concede that the
institution has undergone tremendous improvements since
the 1950’s when, at best, the residents’ treatment could
be described as “‘warehousing’’. Even with these improve-
ments, it was admitted by the defendants that Pennhurst
does not presently meet minimum standards for the
habilitation of its residents. (Rice, N.T. 26-24; Young-
berg, Deposition at 22-31) .”*
Pennhurst must satisfy both federal and state licensing
standards to qualify for federal medical assistance (Title XIX
funds), standards which Dr. Youngberg and Dr. Rice equated
with minimally acceptable professional standards. (Rice, N.T.
27-57; Youngberg, Deposition at 27). Both the individual and
the area in which he or she resides must be certified in order for
the institution to qualify for funds. At Pennhurst only 16 out of
the 40 living areas have been certified, though a majority of these
areas have deficiencies. The deficiencies have either been waived,
or Pennhurst has filed plans for correcting the deficiencies.
(Pool, N.T. 18-27, 28-28). Five hundred fourteen residents live
on these 16 wards and are eligible for funding. Another 600
Pennhurst residents would be eligible were they to reside on a
certified ward. (/d., N.T. 17-209).
To meet medical assistance living standards, the population
of Pennhurst must be reduced to 850 residents. In addition, $1,-
028,327 is being expended to correct Life Safety Code, violations
—the completion date of this project is December 31, 1977 (the
20a District Court Opinion,
December 23, 1977
Approximately half of the residents at Pennhurst have
been admitted upon application of their parents or guard-
tans, while the other half have been committed by a court.
(Youngberg, N.T. 22-122). No distinction is made in the
services extended to either group. The average’ resident
age at Pennhurst is 36, and the average stay at the institu-
tion is 21 years. Forty-three percent of the residents have
had no family contact within the last three years.”
Seventy-four percent of the residents are severely to pro-
foundly retarded.” The average resident has had one psy-
chological evaluation every three years and one vocational
adjustment service report every 10 years. Those residents
who have had more than one Vineland examination (mea-
suring social quotient) during their residency at the institu-
tion, have, on the basis of this test, shown a decline rather
than an increase in social skills while at Pennhurst (they
declined an average of 7.542 points during their residence
at Pennhurst, a loss of .596 points per year.) *®
project was awarded in December, 1975, with an original com-
pletion date of April, 1977).
To meet medical assistance care standards, Pennsylvania is
planning to expend an additional $2,367,500, (Rice, N.T. 26-6).
The institution is presently in ,eopardy of losing its current certi-
fication if the waivers it presently has, contingent on repairs being
made, are withdrawn. (Jd., at 26-13, 26-14).
’. The statistics set forth in this paragraph are taken from a
systematic sampling of 10% of the resident population at Penn-
hurst. (PARC Exhibit 48).
'®Tt is unclear what percentage of the residents have family
members still living.
’ See text following note 5, supra,
'STt appears that the Vineland has an inherent bias against
retarded individuals from age ten through twenty-five, in that
social quotients over this period, as measured by the Vineland,
District Court Opinion, 21a
December 23, 1977
At its best, Pennhurst is typical of large residential
State institutions for the retarded.” These institutions are
the most isolated and restrictive settings in which to treat
the retarded. (Lancaster-Gaye, N.T. 4-79). Pennhurst
is almost totally impersonal. (Jd., N.T. 4-71). Its resi-
dents have no privacy (Roos, N.T. 1-149) —they sleep in
large over-crowed wards (Youngberg, Deposition at 22) ,
spend their waking hours together in large day rooms and
eat in a large group setting. (Clements, N.T. 2-57, 2-
71, 2-72). They must conform to the schedule of the
institution which allows for no individual flexibility.
Thus, for example, all residents on Unit 7° go to bed be-
tween 8:00 and 8:30 p.m., are awakened and taken to
the toilet at 12:00—12:30 a.m. and return to sleep until
3:30 a.m. when they are awakened for the day (Barton,
Deposition at 21-26, 33-34; Roos, N.T. 1-50) , which be-
gins with being toileted and then having to wait for a
7:00 a.m. breakfast.
have a tendency to decline. (Hare, N.T. 8-195, 8-196). This
phenomena ceases once the individual reaches the age of twenty-
five. (Id., N.T. 8-203). An analysis of those Pennhurst residents
who had received at least two Vineland examinations since their
twenty-fifth birthday showed an average regression of 2.3 points.
(Id., N.T. 9-16).
Dr. Gunnar Dybwad, who has visited institutions for the
retarded in 49 states testified that Pennhurst was in the bottom
category of the large residential state institutions for the retarded.
(N.T. 7-62).
*° Pennhurst is organized around the unit system and is com-
posed of nine units, representing various levels of educational and
behavioral development and physical handicap. (United States of
America Exhibit 10).
22a District Court Opinion,
December 23, 1977
A. Staffing
On the whole, the staff at Pennhurst appears to be
dedicated and trying hard to cope with the inadequacies
of the institution. (Hersh, N.T. 13-130). Many of
the problems at Pennhurst result from overcrowding and
understaffing.~ As professionals leave the staff, they are
often not replaced, their jobs being turned over to direct
care staff; thus, in the last two years nineteen professionals
have left the staff without being replaced. (Roos, N.T.
1-153). Nearly every witness who testified concerning
Pennhurst stated that it was grossly understaffed to ad-
equately habilitate the residents. None of the standard
reference sources now generally used by professionals in
the field of mental retardation define the qualifications
and minimal numbers of mental retardation professionals
necessary to provide minimally adequate programs of
habilitation. (Clements Report at 6). However, the
court in Wyatt v. Stickney, 344 F. Supp. 387 (N.D. Ala.
1972), attempted to provide such guidelines. A com-
parison of the Wyatt ratios to those at Pennhurst in 1975”
reveals:
*! As defendants themselves have expressed it: ‘‘The staff
at Pennhurst is a dedicated lot with precious little to work with.’’
Commonwealth Defendants’ Post-Trial Proposed Findings of Fact
and Legal Arguments at 5.
*° In his budget proposal for fiscal year 1977-78, Superinten-
dent Youngberg requested 23 additional ward clerks, 1 additional
unit secretary and 717 mental retardation aides. (Youngberg,
Deposition at 42).
*8 There was no testimony that these ratios have changed dra-
matically in the intervening two years, though 19 professional posi-
tions have been eliminated since Dr. Clements’ tour of Pennhurst.
(Roos, N.T. 1-153).
District Court Opinion, 23a
December 23, 1977
Wyatt Standards Pennhurst
a. Psychologists 23 23
b. Social Workers 40 6
c. Vocational Therapists 5 +
d. Recreation Therapists 23 0
e. Occupational Therapists 18 10
f. Registered Nurses 95 54
g. Physicians 7 6
h. Physical Therapists 14 2
i. Speech and Hearing
Therapists 14 9
j. Dentists 7 +
k. Chaplains 7 4
1. Teachers 51 8
(Clements, N.T. 2-26, 2-27).
No psychologists are on duty at Pennhurst at night
or over the weekend, thus, if a resident has an emotional
crisis, he or she may go without treatment until the next
morning or until the weekend is over. (Riznyk, N.T. 17-
182). Moreover, routine housekeeping services are not
available during evenings and weekends, thus it is common
to find urine and feces on ward floors over these periods.
(Smith, Deposition at 41; Roos, N.T. 1-158).
B. Habilitation at Pennhurst
All parties to this litigation are in agreement that
Pennhurst as an institution is inappropriate and inadequate
for the habilitation of the retarded. It is also admitted
4 In 1975, 206 school age residents were enrolled in the school
program operated by IU teachers. These teachers were excluded
from the calculation.
24a District Court Opinion,
December 23, 1977
that the inadequacies in programming at Pennhurst are
directly attributable to staff shortages. Residents’ records
commonly contain a no.ation that they would benefit from
specific types of programming. However, such pro-
gramming has, for the most part, been unavailable to the
individual because of staff shortages. (Foster, Deposi-
tion at 42; DeAngelis, N.T. 16-49). The average resi-
dent receives only 112 hours of programming per week-
day and no programming on weekends. (Thurman, N.T.
14-60; DeAngelis, N.T. 16-31). No one, except those
in school, gets more than 31 to 4 hours per day. If one
factors out those programs which are not considered bene-
ficial, the average drops to about fifteen minutes per day.
(Thurman, N.T. 14-60).2> Some residents receive no
programming due to their extreme hyperactivity, medical
problems, or their own refusal of treatment. (DeAngelis,
N.T. 16-32; Cooper, N.T. 29-46). Some individuals have
not been accepted into occupational therapy, since only
group programs are available and they require individual
attention. Some Pennhurst residents have been dropped
from existing programs due to lack of progress and mo-
tivation. The record indicates that the residents at Penn-
hurst are made to fit into existing programs, and that the
programs are not altered to fit the needs of the individuals.
*° For example, the programming for residents on Unit 8, the
unit in which the most aggressive residents reside, includes several
hours per day during which the residents watch TV. Mr. Pirmann
the Director of the unit, testified that this was to increase the
residents’ attention span and to teach them to sit and tolerate the
presence of others. (N.T. 19-104, 19-105). ‘*Programming’’ such
as this appears to be primarily for the convenience of the staff,
rather than for the benefit of the residents. (Thurman, N.T. 14-
68).
District Court Opinion, 25a
December 23, 1977
Further, it appears that an individual’s motivation and
not his or her needs determine whether the resident con-
tinues with the program. (Hare, N.T. 8-180, 8-181) .*°
Residents are referred to special programs at Penn-
hurst, but often, due to staff shortages, placements are
not made. (DeAngelis, N.T. 16-40, 16-41). Almost
every service offered at Pennhurst has a long waiting list.
(Foster, Deposition at 42). For example, as of April
15, 1977, there were 511 residents on the referral list
for occupational therapy. (Hilker, N.T. 20-43). While
50-60 Pennhurst residents have wheelchairs which have
been individually adapted to meet the individual’s needs,
75-100 residents need such adaptions. (Fekula, N.T. 20-
99). The consequences for the resident not having his
or her wheelchair adapted are especially grave, including:
“6 George Sorotos, a name plaintiff, was enrolled in speech
therapy at the end of 1972. At that time, he was unable to com-
municate, and his program was designed to develop his com-
municative skills. Though initially he made progress, he soon
plateaued. In August, 1973, he was switched to a manual com-
munication program. This continued for six months, again with
some initial success. During each program, he was self abusive,
which the staff attributed to frustration. He was never able to
use these skills for communication. George Sorotos was terminated
from all speech activity because the director of the speech and
hearing department determined that her time would be better
spent with other residents with whom she could accomplish more.
(Riggott, N.T. 20-160 to 20-164). Thus, since George Sorotos did
not respond well and was self abusive, he was denied speech ther-
apy, a skill essential for his habilitation.
Similarly, plaintiff Terri Lee Halderman was initially in-
cluded in speech therapy, but because of abusive tendencies, both
to herself and to others, she was dropped from the program. (Jd.,
N.T. 20-164 to 20-166).
26a District Court Opinion,
December 23, 1977
(1) loss of vital functions; (2) severe muscular contrac-
tions; and (3) loss of ability to be programmed. (Jd.,
N.T. 20-101). While over 300 residents at the institu-
tion have hearing impairments, only 51 have been fitted
with hearing aids. There are 106 residents on the waiting
list for speech therapy, and nearly every resident at Penn-
hurst could benefit from some type of communication pro-
gramming. (Riggot, N.T. 20-155). Three to four hun-
dred residents presently need physical therapy to prevent
physical deterioration, however, only 143 are receiving
this therapy. (Rossi, Deposition at 12, 22) .*
Pennhurst has established a communication center for
22 non-verbal individuals, but the institution has approxi-
mately 300 non-verbal residents. In theory, the residents
in the communication center spend their day in classes
learning signing (i.e., sign language skills), academics,
and self-care skills. However, when there is only minimal
staff coverage, classes are not offered since the steff is
totally occupied with custodial tasks. During the month
of April, 1977, there were 5 days during which there was
minimal coverage on the first shift (7:00 a.m.-4:00
*7 Some residents have been on the waiting list for at least
31/2 years. (Nelson, N.T. 21-27).
“8 Pennhurst does an especially inadequate job for those with
motor disabilities. Dr. Lancaster-Gaye, an expert in, among other
things, the management of services for severely disabled persons
(N.T. 4-69), toured the institution in March, 1977 and reported
that young retarded individuals who suffered from cerebral palsy
were sitting on the floor in positions which would lead to physical
deterioration. He stated that these individuals were receiving little
physical therapy and that without such therapy, the muscles in the
limbs of these youths would contract and become useless. (N.T.
4-74, 4-75).
District Court Opinion, 27a
December 23, 1977
p.m.); 25 days of minimal coverage on the second shift
(4:00 p.m.-11:00 p.m.); and thirty days of minimal
coverage on the third shift (11:00 p.m.-7:00 a.m.) —on
five of these days during the third shift, there was less
than minimum staff coverage. (Nelson, N.T. 21-23, 21-
24).
Not only is the programming at Pennhurst inadequate
to meet minimum professional standards (Rice, Deposition
at 179, 180), but so are the evaluations performed on
the residents to determine what is required to adequately
habilitate the individual. None of the residents at Penn-
hurst had a full multi-discipline assessment as of January,
1977. (PARC Exhibit 53; Flueck, N.T. 4-9). Twenty
and six-tenths percent of the residents have not received
a limited multi-discipline assessment since January, 1975,
and those assessments which have been made are generally
limited to phychological, speech and hearing skills and are
rarely concerned with vocational or self-care skills. (Hare,
N.T. 8-165, 8-166). Proper habilitation cannot be pro-
vided to retarded persons unless those responsible for
providing such programs are aware of the individual’s
needs.
Defendants have not made “full exit plans,” i.e.,
plans delineating: (1) a place for each individual to
live outside of Pennhurst; (2) the daily activity necessary
for each individual living outside Pennhurst; (3) neces-
Sary support services; and (4) the person who would be
responsible for any Pennhurst resident.” Such plans are
*® Sixty and eight-tenths percent of the residents had no men-
tion of the community or of an exit plan in their files, and those
that had some indication that the individual’s eventual exit from
28a District Court Opinion,
December 23, 1977
very important in planning for the resident’s eventua! re-
turn to the community from the institution.
Defendants have also failed to make full “program
plans,” i.e., plans containing: (1) identification of long
and short term goals; (2) specification of the conditions
under which the individual might achieve these goals;
and (3) specification of the criteria to evaluate the in-
dividual’s mastery of the goals, for Pennhurst residents.*°
The record keeping at Pennhurst is also below ac-
ceptable minimum standards. (Clements, N.T. 2-22).
Adequate record keeping is essential for proper habilita-
tion of the residents.** Without such records, the staff
will not know what the individual is already able to do,
what type of care he or she should be receiving, and how
to evaluate progress made by the individual. (Id.)
Pennsylvania’s immediate plans for Pennhurst call for
a reduction of the population at the institution to 850%
the institution had been considered, never specified the type of
placement which would be vequired nor who would be responsible
for the individual. (Hare, N.T.8-167).
3° Twenty-eight and nine-tenths percent had no program plan.
Those that did have some plan rarely had a precise statement of
goals and objectives. (Hare, N.'T. 8-166).
31 An individual’s record should contain: (1) a current com-
prehensive evaluation of the individual; (2) a list of short and
long term goals for the individual; (3) a specific plan outlining
the procedures to accomplish these goals. The program should
also provide for on-going monitoring, periodic re-evaluations of the _
individual, and periodic modifications of the objectives and proce-
dures to reflect the findings of the re-evaluations. (Roos, N.T. 1-
115, 1-116).
32 Decreasing the population to 850 is contingent on an in-
crease in funds appropriated by the Pennsylvania legislature,
District Court Opinion, 29a
December 23, 1977
and to provide, by July 1, 1978, 214 hours of programming
per resident per day. Dr. Rice, the Commissioner of
Mental Retardation for Southeast Pennsylvania felt that
such programming would fulfill the minimum require-
ments to qualify for medical assistance (i.e., federal fi-
nancing). However, he knew of no other set of standards
which would consider this level of programming minimally
acceptable, and personally did not feel that it was ad-
equate. (N.T. 27-28). As a matter of practice, the De-
partment of Mental Retardation for the Southeast Region
will not approve a community living arrangement for a
mentally retarded individual unless it provides for pro-
gramming of at least five and one-half hours per day.
(Rice, N.T. 27-80).
C. Restraints at Pennhurst
At Pennhurst, restraints are used as control measures
in lieu of adequate staffing. (Clements, N.T. 2-82, 2-
84; Roos, N.T. 1-135; Sprague, N.T. 3-44; Hersh, N.T.
13-153, Foster, Deposition at 81). This is not to say that
restraints should never be used in the habilitation of the
retarded. When an individual’s aggressive behavior inter-
feres with his or her ability to take advantage of other
programming which the individual should receive, Or poses
a physical threat to him or herself and others it may be
along with an ambitious placement program—unfortunately much
of this placement is from one institution (Pennhurst) to other in-
stitutions rather than to the community.
33 Restraints can be either physical or chemical, The physical
restraints range from placing the individual into a seclusion room
to binding the person’s hands or ankles with muffs or poseys, and
binding the individual to a bed or a chair. Chemical restraints
are usually psychotraupie (i.e., tranquilizing) drugs.
30a District Court Opinion,
December 23, 1977
proper to restrain that person. Soon, it is hoped, once
the individual has benefited from the other programming,
the restraint will not be needed. (Clements, N.T. 2-86).
It is generally conceded that most, if not all, outbursts of
violence by the retarded can be prevented by adequate
programming.
Seclusion rooms” have been used to punish aggressive
behavior. One eighteen year old individual spent six
consecutive days in seclusion in 1974 for assaulting a
Down’s Syndrome resident. (Lowrie, N.T. 5-6, 5-7).
In 1975, a committee was formed to investigate the use
of seclusion rooms at Pernhurst. It recommended that
seclusion rooms, if they were to be used at all, should be
limited to medical emergencies and should not be utilized
for punishment. (Lowrie, N.T. 5-5). Seclusion rooms
are still in use at Pennhurst (M. Conley, N.T. 16-150;
Boyle, N.T. 17-72, 17-73; L. Miller, N.T. 77-102; Malone,
N.T. 17-140, 17-141; Lowrie, N.T. 5-71), though the
incidence of their use is less than it was in years past.
There is now a policy that seclusion rooms be used only
for medical emergency, when a resident becomes ex-
tremely abusive, and no other alternative will control the
individual. One-to-one interaction with staff members is
often effective in calming the resident and stopping this
maladaptive behavior. However, since normally the
wards are, at best, minimally staffed, there frequently is
34 The seclusion rooms at Pennhurst are small rooms generally
with one window and one door. The walls are masonry, the floors
either tile or terrazzo—both hard surfaces. None of the rooms
are padded. Many have exposed radiators, and other potentials
for danger to the resident placed within it. (Youngberg, Deposi-
tion at 69 ; Lowrie, N.T. 4-183 to 4-190).
~~
District Court Opinion, 3la
December 23, 1977
not a staff person who can be spared to participate in
this intensive interaction. (Lowrie, N.T. 5-9; Miller,
N.T. 17-122). Thus, seclusion is often necessary only
because there is insufficient staff. (Lowrie, N.T. 4-
131).”
Often physical restraints are also used due to staff
shortages. An extreme example is a female resident who,
during the month of June, 1976, was in a physical re-
straint for 651 hours 5 minutes; for the month of August,
1976, was in physical restraints for 720 hours; during
September, 1976, was in physical restraints for 674 hours
20 minutes; and during the month of October, 1976, was
in physical restraints for 647 hours 5 minutes. (Mat-
thews, Deposition at 64-68). This resident was extremely
self-destructive—she totally blinded herself. She was not
enrolled in occupational therapy until early 1977. Once
initiated, her programming has apparently been quite
successful, and she is now able to be out of restraints for
as much as four hours per day. (Foster, N.T. 23-43).
Had this programming been initiated earlier, her self-
inflicted injuries might have been avoided or at least
lessened.
Physical restraints are potentially physically harmful
and can create conditions in which physical injuries are
°° One young male resident had a tendency to run away from
the institution. When he was given one-to-one interaction with
staff, he would not attempt to run away. When the program of
one-to-one interaction was dropped due to staff shortages, he again
began running away. He was warned that he would be put on a
locked ward if his behavior continued, and he became abusive to
staff. As a result of this behavior, he was put into a seclusion
room. (Foster, N.T. 22-44 to 22-46).
32a District Court Opinion,
December 23, 1977
more likely to occur (Clements, N.T. 2-87; Hirst, N.T.
7-131; Roos, N.T. 1-166) ,*° and prevent residents from
learning or exercising self-care skills. (Clements, N.T.
2-87) .
Psychotraupic drugs at Pennhurst are often used for
control and not for treatment, and the rate of drug use
on some of the units is extraordinarily high. (Hersh,
N.T. 13-153). Dr. Sprague, an expert in psycho-
pharmacology,” testifying on behalf of the United States,
conducted a survey of 39 residents at Pennhurst, a group
which he considered to be statistically representative of
the residents at Pennhurst. He found that 51% of the
group were receiving psychotraupic drugs, 35% of the
group were receiving anti-convulsant medication, and
40% were receiving two or more psychotraupic drugs at
one time. (N.T. 3-36). In comparison with similar in-
stiutions throughout the country, Dr. Sprague stated that
36 Tn 1972, an eleven year old child strangled to death when
tied to a chair in ‘‘soft’’ restraints. (Lowrie, N.T. 4-138—4-135).
37 Until March, 1977, Pennhurst had no written policy against
the use of PRN orders (‘‘pro re nata’’ or ‘‘as needed’’) for re-
straints or seclusion. In its most extreme form, a doctor would
prescribe a restraint or seclusion for a patient to be administered
in the discretion of a direct care aide or a nurse. (Boyle, N.T.
17-93, 17-94). At best, the doctor would be called prior to admin-
istration of the drug, but he or she seldom personally visited the
resident either before or shortly after the medication or physical
restraint was administered. (Boyle Deposition at 22).
38 ‘“Psychopharmacology’’ is the area of study dealing with
prescription medicines that are prescribed for mind alteration for
behavior control. (Sprague, N.T. 3-12, 3-13).
District Court Opinion, 33a
December 23, 1977
these percentages were very high, though he said that some
institutions administer comparable levels.*°
Dr. Sprague also found that Pennhurst residents on
drugs were inadequately monitored. Without monitoring,
one cannot determine whether the drug has been effective
and whether it should be continued. Dr. Sprague found
that in only 29% of the cases ir: which a drug was ad-
ministered were its effects on the individual evaluated.
(N.T. 3-45). He further testified that the drug practice
at Pennhurst does not meet minimally professional stan-
dards and is physically hazardous to the residents. (N.T.
3-55, 3-90).
One of the side effects of the use of psychotraupic
medication is that it may make the individual receiving
it lethargic—so much so that the recipient may fall asleep
during school, or during other times when activities and/
or programming are being attempted. (Lowrie, N.T. 5-
22). Other hazardous side effects of these drugs include
hypersensitivity to sunlight; ataxia (inability to maintain
balance and gait); and gingival hyperplasia (gum tissue
condition marked by inflammation, bleeding and increased
growth). (Hedson, Deposition at 59-61). Thus, the
administration of such drugs actually impedes the habilita-
tion of the resident, especially when used as a control
rather than a habilitation device.
8° Dr. Sprague testified that at a state institution in Georgia
serving the most severely retarded individuals, only 25% of the
residents were on drugs. (N.T. 3-38).
34a District Court Opinion,
December 23, 1977
D. Deterioration and Abuse of the Residents at Penn-
hurst
The physical environment at Pennhurst is hazardous
to the residents, both physically and _ psychologically.
(Clements, N.T. 2-59). There is often excrement and
urine on ward floors (Roos, N.T. 1-158; Smith, Deposi-
tion at 41), and the living areas do not meet minimal
professional standards for cleanliness. (Youngberg, Dep-
Osition at 24). Outbreaks of pinworms and infectious
disease are common (M. Conley, N.T. 16-193; Lowrie,
N.T. 4-153; Hedson, Deposition at 122). As Superinten-
dent Youngberg noted:
There is not adequate space for [the residents.
The living areas do] not provide privacy for those
persons who can handle privacy. There does not
seem to be adequate activity areas or program areas
or even general activity areas within the general living
area or even adequate activity program areas away
from the home living area. (Deposition at 23).
The environment at Pennhurst is not only not con-
ducive to learning new skills, but it is so poor that it
contributes to losing skills already learned.‘ (Clements,
N.T. 2-59). For example, Pennhurst has a toilet train-
ing program, but one who has successfully completed the
program may not be able to practice the newly learned
skill, and is therefore likely to lose it. (Clement, N.T.
*° A survey conducted by Dr. Betty Hare revealed that 34%
of the individuals in the group surveyed had some notation of
regression in their records. (PARC Exhibit 53, Hare, N.T. 8-
167). Those ‘‘skills’’ which are learned at Pennhurst are often
antisocial. (Roos, N.T. 1-139; Clements, N.T. 2-84).
District Court Opinion, | 35a
December 23, 1977
2-36, 2-37). Moreover, most toilets areas do not have
towels, soap or toilet paper,’ and the bathroom facilities
are often filthy and in a state of disrepair. Obnoxious
odors and excessive noise permeate the atmosphere at
Pennhurst. Such conditions are not conducive to habilita-
tion. (Dybwad, N.T. 7-52). Moreover, the noise level
in the day rooms is often so high that many residents
simply stop speaking. (Clements, N.T. 2-59).
Meals are eaten in a large group setting, Staff super-
vision is at a minimum, and residents are often free to
steal food from other residents—which results in some
residents not getting enough to eat. (Clements, N.T. 2-
73). Obviously, diet control in such an environment is
almost impossible.
Injuries to residents by other residents, and through
self-abuse, are common. For example, on January 8, 1975,
one individual bit off three-quarters of the earlobe and
part of the outer ear of another resident while the second
resident was asleep. (Matthews, Deposition at 83).
About this same period, one resident pushed a second to
the floor, resulting in the death of the second resident.
(Barton, Deposition at 67, 68). Such resident abuse of
residents continues. In January, 1977 alone, there were
833 minor and 25 major injuries reported.” (Young-
berg, Deposition at 83).
41 Direct care aides testified that there was no soap or towels
in the toilet areas because when placed there, the residents stuffed
them down the toilets. (Roy, N.T. 15-108). These same aides
also testified, however, that no programming had been conducted
to try to negate this behavior. (Jd., N.T. 15-127).
42 This figure includes injuries due to self-abuse and to acci-
dents.
ba
36a District Court Opinion,
December 23, 1977
In addition, there is some staff abuse of residents.
In 1976, one resident was raped by a statf person (Rud-
dick, N.T. 3-115 to 3-117); one resident was badly
bruised when a staff person hit him with a set of keys
(Barton, Deposition at 40); another resident was thrown
several feet across a room by a staff person (Ruddick,
N.T. 3-113; Caranfa, N.T. 12-79); and one resident was
hit by a staff person with a shackle be!t (Bowman, N.T.
13-83; Pirmann, N.T. 19-94). On each occasion, an in-
vestigation was conducted and the staff person responsible
was suspended and/or terminated (Ruddick, N.T. 3-114;
Bowman, N.T. 13-82, 13-83, 13-84; Pirmann, N.T. 19-
94).
Many of the residents have suffered physical dete-
rioration and intellectual and behavioral regression during
their residency at Pennhurst. Terri Lee Halderman, the
original plaintiff in this action, was admitted to Penn-
hurst in 1966 when she was twelve years of age. Dur-
ing her eleven years at Pennhurst, as a result of attacks
and accidents, she has lost several teeth and suffered a
fractured jaw, fractured fingers,-a fractured toe and
numerous lacerations, cuts, scratches and bites.** Prior
to her admission to Pennhurst, Terri Lee could say
“dadda”, “mamma”, “noynoy” (no), “baba” (goodby)
and “nana” (grandmother). She no longer speaks.
(Halderman, N.T. 9-69, 9-71, 9-78, 9-87, 9-88) .
Plaintiff Charles Dinolfy was admitted to Pennhurst
when he was nine years old; he is now forty-five and has
resided at the institution continually except for short stays
*8 Terri Lee Halderman’s medical records contain a listing of
over forty reported injuries.
District Court Opinicn, 37a
December 23, 1977
at White Haven State School and Hospital. (Hunsicker,
N.T. 9-39). Dorothy Hunsicker, his sister, testified that
whenever she or her family visited him, Mr. Dinolfy had
some type of bandage on. (/d.) Twenty-six years ago
while at Pennhurst, Mr. Dinolfy lost an eye. A Pennhurst
physician told Ms. Hunsicker that Mr. Dinolfy slipped
while taking a shower, and hit the spigot with his eye.
The sight in his remaining eye has been impaired due to
injury. (/d., N.T. 9-46, 9-47). He has only a few teeth
remaining and his nose has been battered. (Jd., N.T. 9-
41).
Plaintiffs Robert and Theresa Sobetsky were admit-
ted to Pennhurst on November 29, 1971.** They were
placed on extremely overcrowded wards where beds were
placed in the aisles. Robert was never assigned to a
particular bed. (Sobetsky, N.T. 9-145, 9-146). During
his residency at Pennhurst, Robert Sobetsky suffered from
bruises, bites, scratches, welts and he smelled of urine.
(Id., N.T. 9-147, 9-148). His record shows a number
of reported injuries, some of which, though labeled minor
injuries, represented bruises that were three to five inches
in length. (/d., 9-151, 9-152). Theresa also suffered
such injuries. (/d., N.T. 9-148).
Plaintiff Robert Hight, born in 1965, was admitted
to Pennhurst in September, 1974. He was placed on a
ward with forty-five other residents. His parents visited
him two and one-half weeks after his admission and
found that he was badly bruised, his mouth was cut, he
*# Since January, 1976, they have been residing at Woodhaven,
a Pennsylvania institution for the mentally retarded run by
Temple University.
38a District Court Opinion,
December 23, 1977
was heavily drugged and did not recognize his mother.
On this visit, the Hights observed twenty-five residents
walking the ward naked, others were~ only partially
dressed. During this short period of time, Robert had
lost skills that he had possessed prior to his admission.
The Hights promptly removed Robert from the institu-
tion, Mrs. Hight commenting that she ‘‘wouldn’t leave a
dog in conditions like that.” (NT. 11-22, 11-23).
Plaintiff George Sorotos entered Pennhurst in 1970
at the age of seven. In the seven years that George has
been at Pennhurst his former foster mother, Marion
Caranfa,” testified that in her weekly visits to Pennhurst
there have been only four occasions when George was not
injured. (N.T. 12-63). During this period, he has suf-
fered from numerous reported injuries, including bites,
scratches, black eyes and loss of teeth. In addition, Mrs.
Caranfa testified that she recently observed what appeared
to be cigarette burns on George’s chest. (N.T. 12-65).
Plaintiffs Larry and Kenny Taylor entered Pennhurst
on February 28, 1961. In the early 1970’s, Mrs. Taylor
questioned the staff about the medication being given to
Larry. He was very lethargic, falling asleep at school
and barely able to walk. (Taylor, N.T. 13-24). The
physician in charge of Larry’s unit, checked Larry’s med-
ical record and found that he was on dilantin, a drug used
*The Caranfas were made George Sorotos’ foster parents
when he was six weeks old. Sometime after he entered Penn-
hurst, the agency which had supervision over George removed
them as his foster parents. They still consider him as one of
their family and have continued their visits. (Caranfa, N.T. 12-
62, 12-105).
7
—-
District Court Opinion, 39a
December 23, 1977
to control epileptic seizures. Mrs. Taylor testified that
Larry had had only one seizure that she knew of and that
had been when he was a baby. Larry was removed from
dilantin and placed on mellaril, a psychotraupic drug.
This, too, made him lethargic. (/d., N.T. 13-26 to 13-
28). Larry and Kenny were transferred to Woodhaven
in 1975 where Mrs. Taylor testified that Larry does not
receive any psychotraupic medication, and is able to walk
independently. (/d., N.T. 13-32). Larry was often in-
jured while at Pennhurst; on one occasion, he was hos-
pitalized for two weeks because of head and face injuries
he received as a result of a beating by another resident.
(Id., N.T. 13-30). Kenny, too, suffered serious injuries -
while at Pennhurst. (/d., 13-29).
Plaintiff Nancy Beth Bowman entered Pennhurst at
the age of ten in 1961. She was placed on a large ward
which had sixty-five residents and often only two child-
care aides in attendance. (Bowman, N.T. 13-71; Pir-
mann, N.T. 19-89). During her residency at Pennhurst
she developed maladaptive behavior, i.e., biting and push-
ing. (Bowman, /d.) As a result of this maladaptive be-
havior she had been placed in seclusion for days at a
time. (Id., N.T. 13-71). While at Pennhurst, she has
lost teeth, been badly bruised and has been abused by the
staff. (Id., N.T. 13-72, 13-73, 13-81). When asked
about her present physical condition, Nancy Beth’s mother
replied, “Nancy Beth will be scarred for the rest of her
life.” (d., N.T. 13-94).
Plaintiff Linda Taub, who is blind in addition to
being retarded, was admitted to Pennhurst in 1966 at
the age of fifteen. Accordins ‘o her father, during her
40a District Court Opinion,
December 23, 1977
nine year residency at Pennhurst Linda received only
custodial care and she experienced regression rather than
growth. (Taub, N.T. 2-170). Time on the ward was spent
sitting and rocking, with few activities. (/d., N.T. 2-
155). During one of their visits in 1968, Linda’s parents
‘ found Linda, a person capable of walking, strapped to
a wheelchair by a straightjacket. A staff member ex-
plained that by strapping her into the chair, they would
know exactly where Linda was. (J/d., N.T. 2-152, 2-153).
While at the institution, Linda was badly bruised and
scarred. (Id., N.T. 2-164).
E. Voluntariness
Approximately 21 of the 45 living units at Pennhurst
are locked (Matthews, Deposition at 34) to prevent in-
dividuals from leaving their living units. (Uphold, Dep-
Osition at 139). Those individuals over the age of 18
who have been “voluntarily” admitted to Pennhurst are
theoretically free to leave the institution at any time.
(Allen, N.T. 21-185). Those admitted on the petition
of their parents are informed by their caseworker when
they reach the age of 18 that they do not have to remain
at Pennhurst. If the residents state that they wish to
leave the institution and the staff determines that there
is no place for them in the community, or believes that
the individuals are not ready to go into the community,
the staff will petition the courts to have the individuals
committed to the institution by a court. (ld., N.T. 21-
186, 21-205). Furthermore, those residents who either
do not understand their alternatives, or are physically
unable to indicate that they wish to leave Pennhurst, will
be deemed to have consented to their continued place-
District Court Opinion, 4la
December 23, 1977
ment at the institution. (Jd., N.T. 21-210). Thus, the
notion of voluntariness in connection with admission as
well as in connection with the right to leave Pennhurst
is an illusory concept. Few if any residents now have,
nor did they have at the time of their admission, any ad-
equate alternative to their institutionalization. As a
practical matter, Pennhurst was and is their only alter-
native.*°
F. Community Services in the Five County Area
Since the early 1960’s there has been a distinct
humanistic renaissance, replete with the acceptance of the
theory of normalization for the habilitation of the retarded.
Mason & Menolascino, supra note 6, at 136. The prin-
ciples of normalization are an outgrowth of studies show-
ing that those in large institutions suffered from apathy,
stunted growth and loss in I.Q., and that the smaller the
living unit on which the retarded individual lived, the
higher the level of behavioral functioning shown by the in-
dividual. (Roos, N.T. 1-96 to 1-104). Under the prin-
ciples of normalization, the retarded individual is treated
as much like the non-retarded person as possible. (/d.,
N.T. 1-106, 1-107). The basic tenet of normalization is
that a person responds according to the way he or she
is treated. (Glen, N.T. 5-186, 5-187). The thrust of
habilitation through normalization is the remediation of
the delayed learning process so as to develop the maxi-
*6 Nearly all the parents of Pennhurst residents who testified
stated that they placed their children in Pennhurst only as a last
resort, and had there been community facilities or aid programs,
their children would not have been placed at Pennhurst. (Sobet-
sky, N.T. 9-142; Hight, N.T. 11-21).
42a District Court Opinion,
December 23, 1977
mum growth potential by the acquisition of self-help, lan-
guage, personal, social, educational, vocational and rec-
reation skills. Mason & Menolascino, supra note 6, at
139-140. The older theories of habilitating the retarded
stressed protecting the individual, and were characterized
by little expectation of growth. Given this lack of ex-
pectation, the individual rarely exhibited growth. How-
ever, once removed from depressing, restrictive routines,
the retarded have been able to accomplish a great deal.
(Dybwad, N.T. 7-160) .”
The environment at Pennhurst is not conducive to
normalization. It does not reflect society. It is separate
and isolated from society and represents group rather than
family living. (Hirst, N.T. 7-124). The principles of
normalization have been accepted by the administration
of Pennhurst and by the Department of Public Welfare,
which is responsible for the administration of programs
for the retarded in the five county area (Youngberg, N.T.
22-171; Rice, N.T. 26-43 to 26-45; Bilyew, N.T. 24-13;
Hirst, N.T. 7-120), and the current intention of the De-
partment of Public Welfare is to transfer all residents
from Pennhurst by the early 1980’s. (Rice, N.T. 28-48).
The five county area (Bucks, Chester, Delaware,
Montgomery and Philadelphia) has some community
*’ Mrs. Grace Auerback testified concerning the changes she
has observed in her son, Sid, since his transfer from Pennhurst
into a community home in 1973. While at Pennhurst, he was
subdued and never talked; now, she testified, you cannot stop
him. He is now able to cook, work and keep his own bank ac-
count. She testified that Sid had learned more in the last 3 1/2
years while in the community than he had in the 38 years that
he had resided at Pennhurst. (N.T. 8-47, 8-48, 8-49, 8-51).
District Court Opinion, 43a
December 23, 1977
facilities providing for the education, training and care
of the retarded covering all ages of retardation, including
the profoundly retarded with multiple handicaps. (Girar-
deau, N.T. 4-140, 4-141). These community facilities
have been an outgrowth of the acceptance of the prin-
ciple of normalization and the rejection of institutions
such as Pennhurst in connection with the habilitation of
the retarded.
Many individuals now living at Pennhurst could be
moved immediately into the community and would be
able to cope with little or no supervision. (Settle, N.T.
6-126; Hirst, N.T. 7-116). All the parties in this litiga-
tion are in agreement that given appropriate community
facilities, all the residents at Pennhurst, even the most
profoundly retarded with multiple handicaps, should be
living in the community. (Dybwad, N.T. 7-68).
The primary limiting factor in the transfer of Penn-
hurst residents to community facilities has been the failure
of the Commonwealth and its subdivisions to provide suf-
ficient living units, vocational and day care facilities and
other support services at the community level. Since
fiscal year 1972, only 186 Pennhurst residents have been
transferred from the institution directly into community
living units (Bilyew, N.T. 24-50); although 176 others
were transferred from Pennhurst to other institutions dur-
ing 1974 and 1975. (Clark, N.T. 21-170).
In November, 1970, Act 256 was signed by the
Governor of Pennsylvania. This legislation appropriated
twenty-one million dollars for the purpose of planning,
designing and constructing community facilities which
would enable 900 Pennhurst residents to be transferred
44a District Court Opinion,
December 23, 1977
to the community. In 1971, the McDowell report was
prepared at a cost of $68,000. It detailed the programs
and services needed to support the 900 Pennhurst resi-
dents in the community and provided a blueprint for the
implementation of the Act. (Samuels, N.T. 23-9, 23-10,
23-55). Though seven years have passed since the Act
was signed, few of the facilities have become operational.
The Department of Public Welfare now expects this pro-
gram to be completed by 1980. (Jd., N.T. 23-44). Over
eighteen million dollars of this fund remains unspent but
is allocated to building these facilities. (Stipulation, N.T.
7-97). As of April 25, 1977, however, only 37 Penn-
hurst residents have directly benefited from the Act.
(Samuels, N.T. 23-80).
Comparable facilities in the community are generally
less expensive than large isolated state institutions. Ser-
vices can be purchased at regular rates, rather than at
rates which must be paid to attract individuals to work
in a setting like Pennhurst. (Conley, N.T. 11-107). The
cost of running Pennhurst in 1976 was $27.8 million
dollars, or $60 per resicent per day. (Id., N.T. 12-28).
This does not include the fair rental value of the build-
ings at Pennhurst (estimated at $3-$4 per day). (ld.,
N.T. 11-114). The statewide cost of community living
arrangements in Pennsylvania for 1976 was $17.64 per
individual per day. (PARC Exhibit 63, 64). Program
services, which 1/3 of mentally retarded individuals
would need, average approximately $10 per individual
per day. (Conley, N.T. 11-116, 11-117). Moreover,
keeping the retarded individual in the community makes
it possible for him or her to get employment. Eighty-
five percent of the mentally retarded can be employed,
District Court Opinion, 45a
December 23, 1977
though not all are capable of competitive employment.
(Settle, N.T. 7-4). The lifetime earnings of a mildly re-
tarded individual often exceeds $500,000. (Conley, N.T.
12-21). For those with an I.Q. between 25 and 50,
45% of men and 12% of women earn about 20% of the
average wage. (/d., N.T. 12-31). When the retarded
can work, the amount of financial support which society
must provide decreases and the individuals may benefit
society with the taxes they pay Furthermore, the invest-
ment per individual at Pennhurst is primarily for ware-
housing and not for the individual’s well-being or future
planning, as is the case with community facilities. (/d.,
N.T. 11-23, 11-24).
G. County Participation
The counties presently have a financial incentive to
send their retarded to Pennhurst rather than provide them
with habilitation within the community. When a retarded
individual is placed in a state institution, such as Penn-
hurst, the Commonwealth Pays 100% of the costs in-
curred in the habilitation of the individual. However,
if the individual receives services within the community,
the county must provide 10% of the funds necessary to
provide some of the services.
Every mentally retarded individual within the Com-
monwealth is assigned to a Base Service Unit (BSU)
which is the county unit responsible for arranging com-
munity and institutional placements and for coordinating
services for the individual. (Rice, N.T. 25-67). Penn-
hurst residents are assigned to a BSU either on the basis
of where they resided prior to admission to the institution,
or where their family presently resides. Almost all of
46a District Court Opinion,
December 23, 1977
the parents of Pennhurst residents who testified stated
that they had little or no contact with their child’s BSU.
(Hunsicker, N.T. 9-49; Taylor, N.T. 13-30). The BSU’s
are invited to attend their residents’ annual program re-
view, but almost never do. (Roy, N.T. 15-134; Hare,
N.T. 8-176). The BSU’s often fail to investigate the least
restrictive alternative for the retarded individual under
their charge. Placement at Pennhurst is often the only
alternative presented to the committing judge at court
commitment proceedings.”
The BSU’s have been doing little to prepare Penn-
hurst residents to leave Pennhurst. Although the Penn-
sylvania Department of Public Welfare, Pennhurst staff
and county officials are in complete agreement that the
residents of Pennhurst should be transferred as soon as
practicable to appropriate community facilities, apparently
no one has taken the initiative to accomplish this objective.
(Hersh, N.T. 13-136). |
The five county defendants are not in compliance
with the Commonwealth’s Community Living Arrange-
ment (CLA) policy that at least 50% of the residents
for these living facilities must be drawn from institutions.
In contrast to other regions in the state, the counties which
Pennhurst serves have a lower percentage of CLA resi-
dents drawn from institutions than from the community.
(Knowlton, Deposition at 52).
48 One Philadelphia BSU made a referral to Pennhurst for a
child it had decided needed a structured environment with one-to-
one interaction, even though it knew that the individual would not
receive such individualized treatment at Pennhurst. (Cooper,
N.T. 29-74).
District Court Opinion, 47a
December 23, 1977
IV. The Merits
This case concerns the constitutional and statutory
rights of retarded persons institutionalized at Pennhurst.
Our discussion herein pertains to the retarded, individuals
who, because of circumstances beyond their control, are
unable te function at the same educational and behavioral
levels as the rest of society. It concerns solely the re-
tarded and not persons who are mentally or emotionally
ill. These are individuals who have not broken any laws,
carry no contagious disease and are not in any way a dan-
ger to society. If anyone is in need of training, education
and care, they are. At issue is whether the Common-
wealth’s system of incarcerating the retarded in an in-
stitution known as Pennhurst in any way violates their
constitutional or statutory rights.
Having concluded the trial phase of the liability por-
tion of this litigation, it has become apparent that by
and large the parties share the same goals: all desire to
improve the education, training and care provided the
retarded in Pennsylvania and believe that Pennhurst
should be closed and that all the residents should be
educated, trained and cared for in the community. All
agree that institutions such as Pennhurst are inappropriate
and inadequate for the habilitation of the retarded. De-
fendants agree with plaintiffs’ contention that the habilita-
tion provided Pennhurst residents does not meet minimally
acceptable professional standards. The Commonwealth
in recent years has been attempting to upgrade Pennhurst
and the education, training and care provided therein to
its retarded residents. Moreover, the Pennsylvania De-
partment of Public Welfare’s current plans call for the
48a District Court Opinion,
December 23, 1977
transfer of all Pennhurst residents from the institution
into the community (though perhaps temporarily into
other institutions) by the early 1980’s. Defendants con-
tend, however, that they are neither constitutionally nor
statutorily mandated to make these transfers or to up-
grade the care, education and training provided at Penn-
hurst. It is their position that no constitutional or statu-
tory rights have been violated. We disagree. Moreover,
defendants’ plans to upgrade and eventually close Penn-
hurst have little, if any, bearing on the issue of whether
the statutory or constitutional rights of Pennhurst’s re-
tarded residents have been, or are being, violated. As
the court in Welsch v. Likins, 373 F. Supp. 487, 498
(D. Mn. 1974), aff’d in part, vacated and remanded in
part, 550 F, 2d 1122 (8th Cir. 1977), stated:
good faith is not at issue here. ‘“‘[R]ather the issue
is of the protection of the constitutional rights’’ of
the residents. ... It does not suffice, therefore, to
show that conditions have been upgraded at [the in-
stitution], that the situation wi.i continue to improve
in the future, and that even more achievements would
be forthcoming were it not for the restrictions im-
posed by the legislature. It is the Court’s duty, un-
der the Constitution, to assure that every resident of
[the institution] receives at least minimally adequate
care and treatment consonant with the full and true
meaning of the due process clause.
A. Constitutional Right to Minimally Adequate Habilita-
tion
The Supreme Court has not as yet stated that the
retarded have a constitutional right to habilitation. It has,
District Court Opinion, 49a
December 23, 1977
however, discussed the right to treatment of the mentally
ill. O’Connor vy. Donaldson, 422 U.S. 563 (1975).
Donaldson had been civilly committed to a state mental
hospital in 1957 and had remained there involuntarily
for nearly fifteen years. Repeatedly, but without success,
he had demanded his release, contending that he was
neither dangerous nor mentally ill, and that even if he
were mentally ill, that he should be released since the
hospital had not provided him with treatment for his
illness. The Donaldson holding is very narrow: “a
State cannot constitutionally confine without more a non-
dangerous individual who is capable of surviving safely
in freedom by himself or with the help of willing and
responsible family members or friends.” Jd. at 576.
Donaldson allegedly was suffering from “paranoid
schizophrenia’, id. at 565, and was not retarded. When
dealing with the retarded, the concern is for “habilitation”
rather than for “‘treatment’’.””
The use of the concept “habilitation’” instead
of “treatment” in the context of mental retardation
reflects an awareness that “mental illness” is not.
*° Often, those courts which have dealt with mentally ill and
retarded individuals have blurred the issues involved. The **right
to treatment’’ is frequently used in conjunction with the retarded,
when in fact, these individuals are not in need of medical treat-
ment, but of education and training. In part, this blurring is
due to the fact that some of the cases involved several facilities,
some for the retarded and some for the mentally ill, see, e.g.,
Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971) (mentally
ill), 344 F. Supp. 387 (M.D. Ala. 1972) (retarded), and others
involved a single facility serving both retarded and mentally ill
individuals, see e.g., Davis v. Watkins, 384 F. Supp. 1196 (N.D.
Ohio 1974).
50a District Court Opinion,
December 23, 1977
synonymous with “mental retardation.”” Mental ill-
ness concerns an inability to cope with one’s environ-
ment regardless of intellectual level. Mental illness
can occur at any stage of life while mental retarda-
tion is considered to be a developmental disability
beginning in the early years.
Mason & Menolascino, supra note 6, at 147 n. 72 (1976).
Although we are convinced that the concept of “‘habilita-
tion” for the retarded and “treatment” for the mentally
and emotionally ill are separate and distinct concepts
which should never be confused, in dealing with the ques-
tion of the right of the retarded to adequate habilitation
one must consider, to the extent applicable, those cases
which deal with the right to treatment of the mentally
ill.”
A great deal of scholarly and judicial attention has
been focused on the question of a constitutional right to
treatment and habilitation since Dr. Morton Birnbaum’s
seminal work, The Right to Treatment, 46 A.B.A. J. 499
(1960) .”
°° Of course, as the Supreme Court has noted, ‘‘careful atten-
tion must be paid to the differences between mentally ill and men-
tally retarded ....’’ Kremens v. Bartley, US. , 97 S.
Ct. 1709, 1718 (1977). However, as one court has noted: ‘‘ [i]n
the context of the right to appropriate care for people civilly
confined to public mental institutions, no viable distinction can
be made between the mentally ill and the mentally retarded.’’
Wyatt v. Stickney, 344 F. Supp. 387, 390 (M.D. Ala. 1972),
aff’d in part, rev’d in part and remanded in part sub nom. Wyatt
v. Aderholt, 503 F.2d 1305 (5th Cir. 1975).
51 Dr. Birnbaum wrote:
It is proposed . . . that the courts under their traditional
powers to protect the constitutional rights of our citizens be-
~~
District Court Opinion, 5la
December 23, 1977
Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966),
was one of the first federal cases to deal with the right
to treatment. Rouse had been involuntarily committed
to a mental hospital following his acquittal by reason of
insanity of a misdemeanor for which the maximum term
of imprisonment was one year. Rouse filed a petition for
habeas corpus which the district court denied, contending
that he had a right to be released if he was not accorded
adequate treatment. Although the Circuit Court reversed
on the basis of a District of Columbia statute, Chief Judge
Bazelon stated that “involuntary confinement without
treatment is ‘shocking’”’, id. at 455, and noted that the
gin to consider the problem of whether or not a person who
has been institutionalized solely because he is sufficiently
mentally ill to require institutionalization for care and treat-
ment actually does receive adequate medical treatment so
that he may regain his health, and therefore his liberty, as
soon as possible; that the courts do this by means of recog-
nizing and enforcing the right to treatment; and, that the
courts do this, independent of any action by any legislature,
as necessary and overdue development of our present concept
of due process of law.
46 A.B.A. J. at 503.
See, e.g.: Mason & Menolascino, supra note 6; Developments
in the Law—Civil Commitment of the Mentally Ill, 87 Harv. L.
Rev. 1190 (1974); Herr, Civil Rights. Uncivil Asylums and the
Retarded, 43 Cin. L. Rev. 679 (1974) ; Drake, Enforcing the Right
to Treatment; Wyatt v. Strickney, 10 Amer. Crim. L. Rev. 587
(1972) ; Case Comment, Wyatt v. Stickney and the Right of Civilly
Committed Mental Patients to Adequate Treatment, 86 Harv. L.
Rev. 1282 (1973) ; Note, The Wyatt Case: Implementation of a
Judicial Decree Ordering Institutional Change, 84 Yale L. J. 1338
(1975) ; Hoffman and Dunn, Beyond Rouse and Wyatt: An Ad-
mimstrative-Law Model for Expanding and Implementing the
Mental Patient’s Right to Treatment, 61 Va. L. Rev. 297 (1975).
52a District Court Opinion,
December 23, 1977
purpose of involuntary hospitalization is treatment and
not punishment. Id. at 452. He pointed out that a stat-
ute which provides for the mandatory commitment of an
individual acquitted of a criminal offense by reason of
insanity is permissible only because of its “humane ther-
apeutic goals,” and concluded that if treatment were not
required under the statute, the statute might violate the
Due Process, Equal Protection and Cruel and Unusual
Punishment Clauses of the Constitution. Id. at 453.
Civil commitment entails a “massive curtailment of
liberty”. Humphrey v. Cady, 405 U.S. 504, 509 (1972).
The only permissible justifications for committing the
mentally ill are: (1) danger to the individual, (2) dan-
ger to others, and (3) need for treatment. Jackson v.
Indiana, 406 U.S. 715, 737 (1972): Wyatt v. Aderholt,
503 F.2d 1305, 1312 (5th Cir. 1974). Although this
Court entertains serious doubts as to whether retarded in-
dividuals should ever be subjected to “commitment”’, there
is no doubt that under the present case law, the only pos-
sible justification for committing the retarded to an in-
stitution such as Pennhurst is to provide them with habili-
tation, i.¢., education, training and care. Failure to pro-
vide adequate habilitation may well mean commitment
for the life of the retarded individual. Welsch y. Likins,
373 F. Supp. 487, 497 (D. Mn. 1974), aff'd in part and
vacated and remanded in part, 550 F.2d 1122 (8th Cir.
1977). In fact, at Pennhurst the average residency is
twenty-one years.
Moreover, as the Court stated in Jackson v. Indiana,
406 U.S. at 738, “[a]t the least, due process requires
that the nature and duration of commitment bear some
reasonable relation to the purposes for which the individ-
District Court Opinion, 53a
December 23, 1977
ual is committed.”’ Since the only justifiable purpose for
the commitment of the retarded is habilitation, if habili-
tation is not provided, the nature of the commitment
bears no reasonable relation to its purpose and the in-
dividual’s due process rights have been violated. Wyatt
v. Aderholt, 503 F.2d 1305, 1312 (5th Cir. 1974);
Donaldson v. O’Connor, 493 F.2d 507, 521 (5th Cir.
1974) , vacated, 422 U.S. 804 (1975) .”
*2 As heretofore pointed ont, the Supreme Court’s decision in
Donaldson was very narrow; the Court did not pass upon the is-
sue of the right to treatment or habilitation. The Court vacated
the Fifth Circuit’s broad holding and stated: ‘‘[o]f necessity
our decision vacating the judgment of the Court of Appeals de-
prives that court’s opinion of precedential effect, leaving this
Court’s opinion and judgment as the sole law of the ecase.’’ 422
U.S. 563, 577 n. 12 (1975). Prior to the Supreme Court’s deci-
sion, the Fifth Circuit rendered a second right to treatment de-
cision which relied heavily on its Donaldson opinion, Wyatt v.
Aderholt, 503 F.2d 1305 (Sth Cir. 1974), which like Donaldson
was authored by Judge Wisdom. At least one commentator sug-
gests ‘‘that Wyatt is still good law, thus leaving the right to treat-
ment issue where it was before.’’ ‘‘ What More’’: A Constitu-
tional Right to Treatment? 22 Loyola L. Rev. 373, 383 (1976).
In support of this proposition, it should be noted that four days
after deciding Donaldson, the Supreme Court denied certiorari
in yet another Fifth Circuit right to treatment case. The De-
partment of Human Resources of the State of Georgia v. Burn-
ham, 422 U.S. 1057 (1975). In Burnham, the district court had
found that there was no constitutional right to treatment. 349
F. Supp. 1335 (N.D. Ga. 1972). The Fifth Circuit reversed on
the basis of its Donaldson and Aderholt decisions. 503 F.2d 1319
(5th Cir. 1974). Even though the Supreme Court had vacated
the Donaldson decision only four days before, it denied certiorari
in Burnham, apparently allowing Aderholt, with its holding of a
constitutional right to treatment to remain as the law of the Fifth
Circuit.
54a District Court Opinion,
December 23, 1977
In Robinson v. California, 370 U.S. 660 (1962), the
Supreme Court held that incarceration solely on the basis
of an individual’s status constitutes cruel and unusual
punishment. (Robinson was convicted of being a nar-
cotics addict.) As was pointed out in Welsch:
because plaintiffs [retarded individuals] have not
been guilty of any criminal offenses against society,
treatment is the only constitutionally permissible pur-
pose of their confinement, regardless of procedural
protections under the governing civil commitment
statute. ... This argument rests upon the Eighth
and Fourteenth Amendments, relying principally upon
the Supreme Court’s decision in Robinson v. Cali-
fornia.... The plaintiffs in the instant action are
not criminals; they are victims of uncontrollable
“status.”
If they are subject to “detention for mere illness
—without a curative program,” . . . plaintiffs will
be within the ambit of the Robinson proscription.
373 F. Supp. at 496. Thus, commitment of the retarded
can withstand constitutional scrutiny only when it is cou-
pled with minimally adequate habilitation. See United
States v. Jackson, 553 F. 2d 109, 119 (D.C. Cir. 1976).
Of the federal courts which have considered the right
to habilitation issue in connection with involuntarily com-
mitted retarded individuals and the right to treatment of
involuntarily committed mentally or emotionally ill in-
dividuals, only two reported cases have been called to our
attention which denied the existence of such a constitu-
tional right: Burnham v. Department of Public Health
of the State of Georgia, 349 F. Supp. 1335 (N.D. Ga.
1972), and New York State Ass’n for Retarded Children,
District Court Opinion, 55a
December 23, 1977
Inc. v. Rockefeller, 357 F. Supp. 752 (E.D. N.Y. 1973).
Burnham was reversed by the Fifth Circuit, 503 F.2d
1319 (5th Cir. 1974), cert. denied, 422 U.S. 1057
(1975), and the Rockefeller court, in approving a con-
sent decree in that action appeared to be questioning its
earlier finding of no constitutional right to treatment:
Somewhat different legal rubrics have been em-
ployed in [the Donaldson, Wyatt line of] cases—
“protection from harm” in this case and “right to
treatment”’ and “need for care” in others. It ap-
pears that there is no bright line separating these
standards. In the present posture of this case, there
is no need for the court to re-examine the constitu-
tional standard properly applicable to Willowbrook’s
residents. The relief which the parties agreed to will
advance the very rights enunciated in the case law
since this court’s 1973 ruling. ret
New York State Ass’n for Retarded Children, Inc. v.
Carey, 393 F. Supp. 715, 719 (E.D. N.Y. 1975).
The other courts which have examined the issue
have found a constitutional right to treatment or habilita-
tion. See, e.g., Wyatt v. Aderholt, 503 F.2d 1305 (5th
Cir. 1974); Donaldson v. O’Connor, 493 F.2d 507 (5th
Cir. 1974), vacated 422 U.S. 563 (1975); Gary W. vy.
Louisiana, No. 74-2412 at 14 (E.D. La., filed July 26,
1976), modified, October 28, 1976 (involuntarily com-
mitted retarded children have a constitutional right “to
a program of treatment that affords the individual a rea-
sonable chance to acquire and maintain those life skills
that enable him to cope as effectively as his own ca-
pacities permit with the demands of his own person and
56a District Court Opinion,
December 23, 1977
of his environment and to raise the level of his physical,
mental and social efficiency’); Woe v. Mathews, 408
F. Supp. 419, 429 (E.D. N.Y. 1976), remanded in part,
dismissed in part sub nom. Woe v. Weinberger, 556
F.2d 563 (2d Cir. 1977) (‘‘[a]s a tentative formulation
it would seem encumbent upon the State as confiner .. .
to employ whatever means are necessary, including such
care and treatment as are reasonably possible in the cir-
cumstance of the case, to promote the speedy release and
return to liberty of the person confined.”’);Davis v.
Watkins, 384 F. Supp. 1196, 1197 (N.D. Ohio 1974)
(the court, dealing with a state facility apparently serving
both mentally ill and retarded individuals held that “the
State, upon committing an individual ‘until he regains
his sanity’, incurs a responsibility to provide such care
as is reasonably calculated to achieve that goal,”); Saville
v. Treadway, 404 F. Sop. 430 (M.D: Tenn. 1974)
(three-judge court), consent agreement approved, 404 F.
Supp. 433 (retarded individuals in state institutions have
right to habilitative services); Welsch v. Likins, 373 F.
Supp. 487 (D. Minn. 1974), aff’d in part and vacated
and remanded in part, 550 F.2d 1122 (8th Cir. 1977)
(retarded individuals involuntarily committed to state in-
stitutions have a constitutional right to treatment).
The Third Circuit has not yet decided the right to
treatment or habilitation question. However, in Scott vy.
Plante, 532 F.2d 939, 947 (1976) it reversed a district
court’s F. R. Civ. P. i2(b) (6) dismissal of a right to
treatment claim by an involuntarily committed mentally
ill patient, stating:
The Supreme Court did not reach the issue in
O’Connor v. Donaldson, supra. Nor has this court
District Court Opinion, 57a
December 23, 1977
considered it. It is not the kind of issue, however,
which we should attempt to resolve definitively on
the record that is before us.... It suffices for pres-
ent purposes to say that it does not appear to a
certainty that Scott would be entitled to no relief on
his right to treatment claim under any state of facts
he could prove in support of that claim. Thus, a
Rule 12 (b) (6) dismissal was improper.”
We hold that when a state involuntarily commits
retarded persons, it must provide them with such habilita-
tion as will afford them a reasonable Opportunity to ac-
quire and maintain those life skills necessary to cope as
effectively as their capacities permit. See Gary W. y,
°$ The constitutional right to treatment and habilitation has
been extended to include other classes of involuntarily committed
non-criminal offenders: See, e.g., McRedmond v. Wilson, 533 F.2d
797 (2d Cir. 1976) (wayward juveniles who have been institutional-
ized have a constitutional right to treatment); Nelson v. Heyne,
491 F.2d 352, 358 (7th Cir.), cert. denied, 417 U.S. 976 (1974)
(juveniles who were involuntarily committed—one-third for non-
criminal offenses—to a correctional institution have a constitu-
tional right to rehabilitative treatment) ; Pena v. New York State
Division for Youth, 419 F. Supp. 203, 207 (S.D. N.Y. 1976)
(‘‘this court finds that the detention of a youth under a juvenile
justice system absent provision for the rehabilitative treatment of
such youth is a violation of due process rights guaranteed under
the Fourteenth Amendment.’’); see also, Morgan v. Sproat, 432
F. Supp. 1130, 1136 (S.D. Miss. 1977 ); Morales v. Turman, 383
F. Supp. 53, 124 (E.D. Tex. 1974), rev’d on other grounds, 535
F.2d 864 (5th Cir. 1976), judgment of Court of Appeals rev’d and
remanded, U.S. , 97 S.Ct. 1189 (1977) ; Inmates of Boys’
Training School v. Affleck, 346 F. Supp. 1334, 1372 (D. R.I. 1972) ;
Stachulak v. Coughlin, 364 F. Supp. 686 (N.D. Ill. 1973); and
Martarella v. Kelley, 349 F. Supp. 575, 600 (S.D. N.Y. 1972).
58a District Court Opinion,
December 23, 1977
Louisiana, No. 74-2412 at 14 (E.D. La., filed July 26,
1976) , modified, October 28, 1976. On the basis of the
evidence presented in these proceedings, we find that the
retarded residents of Pennhurst have not received, and
are not receiving, minimally adequate habilitation. Fur-
thermore, on the basis of this record we find that mini-
mally adequate habilitation cannot be provided in an in-
stitution such as Pennhurst. As the Court has heretofore
found, Pennhurst does not provide an atmosphere con-
ductive to normalization which is so vital to the retarded
if they are to be given the opportunity to acquire, main-
tain and improve their life skills. Pennhurst provides
confinement and isolation, the antithesis of habilitation.
We found that Pennhurst has produced regression and
in many instances has destroyed life skills possessed by
its retarded residents at the time of their admission.™
We are inclined to agree with the following comments of
Mason & Menolascino, supra note 6, at 156-7 (footnotes
omitted) :
Although Wyatt and Welsch are significant in
their recognition of the principles of normalization
and the development model for the factual foundation
of their formulation of the constitutional right to
habilitation, their approach can be considered only
°* There has been no evidence introduced that any of the plain-
tiffs were committed to Pennhurst because they posed a danger to
society, and, thus, we are not faced with that issue in this case.
Moreover, as we have heretofore pointed out, the retarded pose no
danger of physical harm to society. Retarded individuals who
suffer from emotional and mental problems may pose a danger to
society ; however, these are due to mental and emotional problems
which do not come within the purview of this opinion.
District Court Opinion, 59a
December 23, 1977
the rudimentary beginning. The logic of normaliza-
tion and the development model which Wyatt and
Welsch recognized suggests full implementation of
habilitation can only be achieved in a non-institu-
tional setting. Institutions, by their very structure—
a closed and segregated society founded on obsolete
custodial models—can rarely normalize and habilitate
the mentally retarded citizen to the extent of com-
munity programs created and modeled upon the nor-
malization and development approach components
of habilitation. Neither Wyatt nor Welsch fully
implemented the right to habilitaticn in that they
failed to challenge the very existence of the institu-
tion. Consequently, the two institutional character-
istics most antithetical to the application of the nor-
malization principle remain intact: segregation from
the community and the total Sheltering of retarded
citizens in all spheres of their lives.
We wish to make it clear that our finding that the
retarded at Pennhurst are being deprived of their con-
Stitutional right to minimally adequate habilitation is not
limited to those residents who were court committed.
Nearly fifty percent of the residents at Pennhurst did not
go through court commitment procedures. They have
been, and are being, deprived of minimally adequate ha-
bilitation to the same extent as those who were court com-
mitted. Moreover, as we have heretofore found, volun-
tariness in connection with admission and exit from Penn-
hurst is an illusory concept. The record in this case
shows that Pennhurst residents had no practical alternative
at the time of their admission and at the present time,
they have no place else to go.
60a District Court Opinion,
December 23, 1977
No constitutional mandate has been called to our
attention which would require a state to provide habilita-
tion for its retarded citizens. However, whenever a state
accepts retarded individuals into its facilities, it cannot
create or maintain those facilities in a manner which de-
prives those individuals of the basic necessities of life.
In the case of the retarded, this constitutes an obliga-
tion to provide them with minimally adequate habili-
tation. See Welsch v. Likins, 550 F.2d 1122, 1132 (8th
Cir. 1977); Nelson v. Heyne, 491 F.2d 352, 360 (7th
Cir.) , cert. denied, 417 U.S. 976 (1974); Vanderzeil vy.
Hudspeth, No. J76-262(R) at 6 (S.D. Miss., filed Feb-
ruary 11, 1977).
Once admitted to a state facility, the residents have
a constitutional right to be provided with minimally ad-
equate habilitation under the least restrictive conditions
consistent with the purpose of the commitment. Eubanks
v. Clarke, No. 76-2491 at 8 (E.D. Pa., filed July 1, 1977);
J. L. v. Parham, 412 F. Supp. 112, 139 (M.D. Ga. 1976)
(three-judge court), appeal pending wo 5
Ct. 2647 (1977); Gary W. v. Louisiana, No. 74-2412
(E.D. La., filed July 26, 1976), modified, October 28,
1976; Woe v. Mathews, 408 F. Supp. 419, 428 (E.D.
N.Y. 1976) , remanded in part, dismissed in part sub nom.
Woe v. Weinberger, 556 F.2d 563 (2d Cir. 1977); Suzuki
v. Quisenberry, 411 F. Supp. 1113, 1132-33 (D. Hawaii
1976); Lynch v. Baxley, 386 F. Supp. 378, 392 (M.D.
Ala. 1974); Davis vy. Watkins, 383 F. Supp. 1196, 1206
(N.D. Ohio 1974); Saville vy. Treadway, 404 F. Supp.
430, 437 (M.D. Tenn. 1974); Welsch y. Likens, 373 F.
Supp. 487, 502 (D. Minn. 1974), aff'd in part and va-
cated and remanded in part, 550 F.2d 1122 (8th Cir.
District Court Opinion, 6la
December 23, 1977
1977); Morales v. Turman, 383 F. Supp. 53, 124 (E.D.
Tex. 1974), rev’d on other grounds, 535 F.2d 864 (5th
Cir. 1976), judgment of Court of Appeals rev’d and re-
manded, US. » 97 S.Ct. 1189 (1977); Wyatt v.
Stickney, 344 F. Supp. 387 (M.D. Ala. 1972), aff'd in
part, remanded in part and decision reserved in part sub
nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974);
Lessard v. Schmidt, 349 F. Supp. 1078, 1096 (E.D. Wisc.
1972) (three-judge court), vacated and remanded on
ether grounds, 414 U.S. 473 (1974); Dixon vy. Attorney
General of the Commonwealth of Pennsylvania, 325 F.
Supp. 966, 973-4 (M.D. Pa. 1971) (consent decree) , but
see Patton v. Dumpson, 425 F. Supp. 621, 624 (S.D.
NM. 400)
°° The Patton court was troubled by the fact that in Sanchez
v. New Mexico, 396 U.S. 26 (1970), the Supreme Court dismissed
an appeal from a case which had rejected the least restrictive al-
ternative for ‘‘want of a substantial federal question.’’ For the
precedential effect of a summary dismissal for want of a substan-
tial federal question see Mandel v. Bradley, US. , 97 S.Ct.
2238, 2240 (1977) (‘‘Summary actions, however . . . should not
be understood as breaking new ground but as applying principles
established by prior decisions to the particular facts involved.’’)
Moreover, the constitutional right to treatment and habilitation is
a newly developed area of the law. Nearly all of the federal cases
dealing with a constitutional right to treatment for mentally ill
individuals and a constitutional right to habilitation for retarded
individuals have arisen since Sanchez. See, e.g., O’Connor v. Don-
aldson, 422 U.S. 563 (1975); Wyatt v. Aderholt, 503 F.2d 1305
(5th Cir. 1974); Welsch-v. Likins, 373 F. Supp. 487 (D. Minn.
1974), aff’d in part and vacated and remanded in part, 550 F.2d
1122 (6th Cir. 1977). We feel that when the Court next examines
the issue, it will find that there is such a constitutional right.
See Welsch, 378 F. Supp. at 501-2; Lynch, 386 F. Supp. at 392.
62a District Court Opinion,
December 23, 1977
The right to minimally adequate habilitation in the
least restrictive alternative stems from the Supreme Court’s
decision in Shelton v. Tucker, 364 U.S. 479 (1960), in
which the Court, addressing itself to the question of per-
missible abridgment of constitutional liberties, stated:
even though the governmental purpose be legitimate
and substantial, that purpose cannot be pursued by
means that broadly stiffle fundamental personal
liberties when the end can be more narrowly
achieved. The breadth of legislative abridgment
must be viewed in the light of less drastic means for
achieving the same basic purpose.
All admissions to state facilities, be it through court
commitment, or otherwise, entail an infringement on
fundamental rights and freedoms. See Eubanks v. Clarke,
No. 76-2491 at 8 (E.D. Pa., filed July 1, 1977). Because
of this, due process demands that if a state undertakes
the habilitation of a retarded person, it must do so in the
least restrictive setting consistent with that individual’s
habilitative needs. As we have heretofore pointed out,
isolation and confinement are counter-productive in the
habilitation of the retarded. Furthermore, since the law
recognizes that habilitation other than in the least re-
strictive setting is a violation of one’s constitutional rights,
there is no question that Pennhurst, as an institution for
the retarded, should be regarded as a monumental ex-
ample of unconstitutionality with respect to the habilita-_
See also, Developments in the Law—Civil Commitment of the’
Mentally Ill, 87 Harv. L. Rev. 1190, 1247-8 (1974).
District Court Opinion, 63a
December 23, 1977
tion of the retarded. The Commonwealth and its sub-
divisions have a constitutional duty to explore and pro-
vide the least stringent practicable alternatives to con-
finement of retarded individuals at Pennhurst. Welsch
v. Likins, 373 F. Supp. 487, 502 (D. Minn. 1974), aff’d
in part and vacated and remanded in part, 550 F.2d 1122
(8th Cir. 1977). On the basis of this record, we find that
the Commonwealth and its subdivisions did not fulfill and
are not fulfilling its constitutional obligation with respect
to the retarded at Pennhurst.
B. Constitutional Right to be Free from Harm
The retarded at Pennhurst have been physically
abused. Lack of adequate supervision has produced an
atmosphere of danger to the residents. Occasionally,
there have been incidents of Staff abuse of residents, in-
cluding rape and beatings. Hundreds of injuries, both
major and minor, are reported every month.
Residents of state institutions for the retarded have
both an Eighth and Fourteenth Amendment right to
freedom from harm. Spence vy. Staras, 507 F.2d 554, 557
(7th Cir. 1974); Romeo y. Youngberg, No. 76-3429 at
°6 Moreover, habilitation in the least restrictive setting answers
one of Chief Justice Burger’s concerns, expressed in his concur-
rence in Donaldson, with respect to a constitutional right to treat-
ment. His concern is that a state constitutionally might be able
to justify indiscriminate confinement of individuals merely by
providing treatment. O’Connor v. Donaldson, 422 U.S. 563, 589
(1975). Since a state cannot constitutionally confine an individual
in other than the least restrictive setting consistent with that indi-
vidual’s habilitative needs, it cannot confine a retarded person in
a Pennhurst-like institution if that individual could benefit from
habilitation in a less restrictive setting.
64a District Court Opinion,
December 23, 1977
3 (E.D. Pa., filed June 6, 1977); Welsch v. Likin, 373
F. Supp. 487, 502-3 (D. Minn. 1974), aff’d in part and
vacated and remanded in part, 550 F.2d 1122 (8th Cir.
1977); New York State Association for Retarded Chil-
dren Inc. v. Rockefeller, 357 F. Supp. 752, 764 (E.D.
N.Y. 1973). Defendants have argued that the recent
Supreme Court decision, Ingraham v. Wright, US.
, 97 S.Ct. 1401 (1977), limits the applicability of
the Eighth Amendment to those convicted of crimes.
Ingraham held that the use of corporal punishment in
public schools did not violate the student’s Eighth Amend-
ment rights. Jd. at 1409. In reaching this result, the
Court reasoned:
The schoolchild has little need for the protec-
tion of the Eighth Amendment. Though attendance
may not always be voluntary, the public school re-
mains an open institution. Except perhaps when
very young, the child is not physically restrained
from leaving school during school hours; and at the
end of the school day, the child is invariably free
to return home. Even while at school, the child
brings with him the support of family and friends
and is rarely apart from teachers and other pupils
who may witness and protest any instances of mis-
treatment.
The openness of the public school and its super-
vision by the community afford significant safeguards
against the kinds of abuses from which the Eighth
Amendment protects the prisoner. In virtually every
community where corporal punishment is permitted
in the schools, these safeguards are reinforced by
District Court Opinion, 65a
December 23, 1977
the Jegal constraints of the common law. Public
school-teachers and administrators are privileged at
common law to inflict only such corporal punishment
as is reasonably necessary for the proper education
and discipline of the child; any punishment going
beyond the privilege may result in both civil and
criminal liability, ... As long as the schools are
open to public scrutiny, there is no reason to be-
lieve that the common law constraints will not af-
fectively remedy and deter excess such as those al-
leged in this case. Jd. at 1412 (footnote omitted).
The retarded at Pennhurst have none of these safeguards.
Due to their own handicaps, few of the retarded are in
a position to aid or protect their fellow residents, or to
complain about their own treatment. Pennhurst is iso-
lated and segregated from the community. The residents
are not free to leave at the end of the day. In addition,
few, if any, of the physically abusive incidents at Penn-
hurst were committed as disciplinary measures. Further-
more, the Ingraham Court specifically reserved the ques-
tion of the availability of the Eighth Amendment to in-
dividuals confined in “mental” institutions. Id. at 1411
n.
As stated by Judge Judd in New York Association
for Retarded Children, Inc. v. Rockefeller, 357 F. Supp.
752, 764-5 (E.D. N.Y. 1973):
Since Willowbrook [an institution for the re-
tarded] residents are for the most part confined be-
hind locked gates, and are held without the pos-
sibility of a meaningful waiver of their right to free-
dom, they: must be entitled to at least the same living
6a District Court Opinion,
December 23, 1977
conditions as prisoners,... One of the basic rights
of a person in confinement is protection from as-
saults by fellow inmates or by staff... . Another
is the correction of conditions which violate “basic
standards of human decency.”
On the basis of the evidence in this record, we find that
the constitutional right to be free from harm of the re-
tarded residents at Pennhurst has been violated.
C. Constitutional Right to Non-Discriminatory Habilita-
tion
In a three-judge decision emanating from this court,
Pennsylvania Association for Retarded Children v. Com-
monwealth of Pennsylvania, 343 F. Supp. 279 (E.D. Pa.
1972), it was legally recognized for the first time that
the retarded had a constitutional right pursuant to the
Equal Protection Clause of the Fourteenth Amendment
to receive at least as much education and training as was
being afforded by the Commonwealth to others.
As stated by Professor Burt in “Beyond the Right to
Habilitation”, in The Mentally Retarded Citizen and the
Law, 425-32 (1976): ; P
The PARC theory can and should mean that
any state program that segregates mentally retarded
citizens as such from others is highly suspect and
that courts will require states to treat mentally re-
tarded persons indistinguishably from others, except
in ways that are both very limited and very clearly
beneficial to the individual. By this test, segregation
of the mentally retarded in a remote large-scale in-
stitution could never Pass constitutional muster... .
District Court Opinion, 67a
December 23, 1977
[E]xisting large-scale geographically remote in-
stitutions cannot by their nature provide adequate
programs to remedy the intellectual and emotional
shortcomings and the galling social stigma that led
the retarded residents to these institutions. If this
evidence is fully marshaled in litigation, courts can
. rule that present patterns of state segregation
of retarded persons for “habilitation” or “educa-
tional” purposes are impermissible. Courts can . . .
force states to close the Partlows and Willowbrooks
and, even more important, to require alternative pro-
grams for mentally retarded persons which treat them
as indistinguishably as possible from other per-
sons....
A powerful case can thus be mounted that courts
should command states to use extraordinary effort
to avoid institutionalizing retarded citizens. By this
analysis, Wyatt clearly was wrong in failing to ad-
dress directly the adequacy of community alternatives
to geographically remote residential institutional care.
In this analysis, the adequacy of in-community res-
idences is not an afterthought. It is central to the
inquiry into whether separate treatment for the men-
tally retarded person is not inherently unequal just
as racially segregated education was found inherently
unequal in Brown v. Board of Education.
In this record, the evidence has been “fully mar-
Shaled” and we find that the confinement and isolation
of the retarded in the institution called Pennhurst is seg-
regation in a facility that clearly is separate and not equal.
We are convinced that the same equal protection prin-
68a District Court Opinion,
December 23, 1977
ciples enunciated by the court in Pennsylvania Association
of Retarded Children v. Commonwealth of Pennsylvania,
343 F. Supp. 279 (E.D. Pa. 1972), prohibit the segre-
gation of the retarded in an isolated institution such as
Pennhurst where habilitation does not measure up to
minimally adequate standards. As we have heretofore
discussed in this opinion, the retarded at Pennhurst have
been segregated in an institution in which they have been
and are being denied minimally adequate habilitation.
Thus, on the basis of this record we find that the retarded
at Pennhurst have been and presently are being denied
their Equal Protection Rights as guaranteed by the Four-
teenth Amendment to the Constitution.
D. Pennsylvania Statutory Right to Minimally Adequate
Habilitation.
The question has also been presented to the Court
as to whether the residents at Pennhurst have a statutory
right to minimally adequate habilitation. 50 P.S. §4201
Provides in pertinent part:
The department [of public welfare] shall have
power, and its duty shall be:
(1) To assure within the State the availability
and equitable provision of adequate mental health
and mental retardation services for all persons who
need them....
This statute was first interpreted in In Re: Joyce
Z., a minor child, No. 2035-69 (Common Pleas, Alle-
gheny County, filed March 31, 1975). Joyce Z.’s case-
worker petitioned the court, pursuant to 50.P.S. §4406.""
to commit Joyce to a state facility for care.ahd treatment.
57 See supra note 12. :
ae~-
District Court Opinion, 69a
December 23, 1977
The caseworker suggested Western State School and Hos-
pital as a proper facility for Joyce’s commitment. A com-
mitment hearing was held at which all the witnesses, in-
cluding the superintendent of the institution itself, testi-
fied that Joyce would not receive adequate treatment at
Western State School and Hospital. Jd. at 9. In fact,
the Commissioner of Mental Retardation for the Depart-
ment of Welfare, Western Region, testified that if Joyce
were placed in the institution, the regression which she
was presently experiencing would continue because she
would not be able to interact with staff due to staff short-
ages. Id. at 4. In its opinion the court, in construing
50 P.S. $4201, stated:
These are brave words. We mean to see that
the State, acting through the Department of Public
Welfare, abides by them.
Joyce has a right to life given to her by the Con-
stitution of the United States; she has a right to tregt-
ment given to her by the Mental Health and Mental
Retardation Act of Pennsylvania; this court may or-
der that course of treatment best suited to meet
Joyce’s needs.
Id. at 10-11. (Emphasis supplied) .
It is abundantly clear that the Mental Health and
Mental Retardation Act, 50 P.S. §§4201 et seq., grants
to the retarded in Pennsylvania the statutory right to
minimally adequate habilitation. See Eubanks v. Clarke,
No. 76-2491 at 6 (E.D. Pa., filed July 1, 1977); In Re
Joyce Z.”* Furthermore, it is equally clear that the Com-
8 Cf. Janet D. v. Carros, 240 Pa. Superior Ct. 291, 362 A.2d
1060 (1976) (Juvenile Court Act, 11 P.S. §$§50-101 et seq., pro-
vides civilly committed juveniles a right to treatment).
70a District Court Opinion,
December 23, 1977
monwealth and the counties have been charged under the
Act with the responsibility of providing such minimally
adequate habilitation to the retarded. The Act envisions
a comprehensive cooperative State-county (or multi-
county) program for the care, treatment and reha-
bilitation of persons who are .. . mentally re-
tarded .... The State, through the Department of
Welfare, is responsible for the overall supervision
and control of the program to assure the availability
of and equitable provision for adequate . . . mental
retardation facilities, and the counties, separately or
in concept, are assigned responsibilities as to par-
ticular programs. Hoolick v. Retreat State Hospital,
24 Pa. Cmwlth. 218, 221-22, 354 A.2d 609, 611
(1976). See also, 50 P.S. §4201 (8) .”
On the basis of this record, we find that both the
Commonwealth and the counties have violated their statu-
tory obligation to provide minimally adequate habilitation
to the retarded residents at Pennhurst. In particular, the
Commonwealth has violated the statutory mandate to
supervise and control the program of minimally adequate
habilitation to these individuals.
E. Federal Statutory Right to Non-Discriminatory Ha-
bilitation
The question has also been presented whether Sec-
tion 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§794, grants federal statutory rights to the retarded resi-
»° The counties also have the power to establish ‘‘[a]ny other
service or program designed to prevent . . . the necessity of ad-
mitting or committing the mentally disabled to a facility.’’ 50
P.S. §4301(e) (3).
District Court Opinion, 7la
December 23, 1977
dents at Pennhurst which have been violated. Section
504 provides:
No otherwise qualified handicapped individual
in the United States, as defined in section 706 (6)
of this title, shall, solely by reason of his handicap,
be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial
assistance.
There is no question that the retarded are “handicapped
individuals” within the meaning of the act; 42 Fed. Reg.
22678; cf. Rhode Island Society for Autistic Children v.
Board of Regents for Education for the State of Rhode
Island, No. 5081 at 8 (D. R.I., filed August 1, 1975),
nor is there any question that Pennhurst is a “‘program
or activity receiving Federal financial assistance.”
In enacting Section 504 of the Rehabilitation Act of
1973, Congress has in effect codified the constitutional
right to equal protection. Section 504 was originally
introduced in 1971-72 as a bill to include the handicapped
in the Civil Rights Act of 1964. Introducing the bill in
the Senate on January 20, 1972, Senator Humphrey, its
primary sponsor there, said:
I introduce ...a bill . . . to insure equal op-
portunities for the handicapped by prohibiting need-
less discrimination in programs receiving Federal fi-
nancial assistance .... The time has come when
we can no longer tolerate the invisibility of the handi-
capped in America. ... I am calling for public at-
tention to three-fourths of the Nation’s institutional-
ized mentally retarded, who live in public and pri-
72a District Court Opinion,
December 23, 1977
vate residential facilities which are more than 50
years old, functionally inadequate, and designed sim-
ply to isolate these persons from society. ... These
people have the right to live, to work to the best
of their ability—to know the dignity to which every
human being is entitled. But too often we keep chil-
dren, whom we regard as “different” or a “disturbing
influence” out of our schools and community activi-
ties altogether .... Where is the cost-effectiveness
in consigning them to .. . “‘terminal’ care in an
institution?
These are people who can and must be helped
to help themselves. That this is their constitutional
right is clearly affirmed in a number of recent deci-
sions in various judicial jurisdictions. 118 Cong.
Rec. 525 (1972).
In view of our finding that the Equal Protection Clause
of the Fourteenth Amendment prohibits the segregation
of the retarded in an isolated institution such as Penn-
hurst where the habilitation provided the retarded does
not meet minimally adequate standards, consistency re-
quires that we find that the Pennhurst residents’ federal
statutory right to habilitation in a non-discriminatory
manner has been violated. See Nettie T. v. Charles E.
Holladay, No. DC 75-31-S (N.D. Miss., filed July 20,
1977). We hold that Section 504 confers a private right
of action; that it imposes affirmative obligations on state
and local governmental officials and that under Section
504 unnecessarily separate and minimally inadequate
services are discriminatory and unlawful. Lloyd vy. Re-
gional Transportation Authority, 548 F.2d 1277 (7th Cir.
District Court Opinion, 73a
December 23, 1977
1977); Barnes v. Converse College, No. 77-1116 (D. S.C.,
filed July 12, 1977); Gurmankin v. Castanzo, 411 F.
Supp. 982 (E.D. Pa. 1976) aff’d, 556 F.2d 184 (3d Cir.
1977); 42 Fed. Reg. 22687 (1977); cf. Lau v. Nichols,
414 U.S. 563 (1974). On the basis of this record, we
find that the rights of the retarded at Pennhurst under
Section 504 of the Rehabilitation Act of 1973 have been
and are being violated.
V. Liability of the Individual Defendants
Plaintiffs Terri Lee Halderman, Larry Taylor, Kenny
Taylor, Robert Sobetsky, Theresa Sobetsky, Nancy Beth
Bowman, George Sorotos, and Linda Taub” are retarded
individuals who resided at Peinhurst. They seek mone-
tary damages for injuries received while at the institu-
tion from the following defendants: Frank S. Beal (Sec-
retary of the Pennsylvania Department of Public Wel-
fare); Stanley Meyers (Deputy Secretary for Mental Re-
tardation, Pennsylvania Department of Public Welfare) ;
Helen Wohlgemuth (former Secretary of the Pennsylva-
nia Department of Public Welfare); Aldo Colautti (Ex-
ecutive Deputy Secretary, Pennsylvania Department of
Public Welfare); Wilbur Hobbs (Deputy Secretary for
Southeastern Region, Pennsylvania Department of Public
Welfare) ; Russell Rice, Jr. (Commissioner of Mental Re-
tardation for Southeastern Region, Pennsylvania Depart-
ment of Public Welfare); C. Duane Youngberg (Super-
intendent of Pennhurst); Robert Smilovitz (former As-
sistant Superintendent of Pennsylvania); Joseph Foster
°° Mr. Taub testified that neither he nor his daughter, Linda
seek monetary damages despite the allegation in the complaint to
the contrary.
74a District Court Opinion,
December 23, 1977
(Assistant Superintendent of Pennhurst) ; Margaret Green
(employee at Pennhurst); Betty Uphold (a supervisor on
Unit 9 at Pennhurst); Alice Barton (a supervisor on Unit
7 at Pennhurst); P. E. (Pauline) Klick (charge aid on
suffer serious injury during their residence at Pennhurst.
physician) and Helen Francis (Director of Nursing at
Pennhurst) .
As the Court heretofore found, these plaintiffs did
suffer serious injury during their residents at Pennhurst.
However, there was no evidence introduced at trial that
any one of the above named defendants was, in any way,:
personally involved with the physical abuses inflicted upon
these residents. To the contrary, the evidence shows that
the defendants acted in the utmost good faith and that
they did not know nor reasonably should have known
that the action which they took, or failed to take, within
the sphere of their official responsibilities were in any
way violative of the rights of the retarded residents at
Pennhurst. For the most part, the evidence showed that
those affiliated with the administration of Pennhurst were
dedicated and sincere in their efforts to habilitate the re-
tarded who came within the sphere of their supervision.
They apparently took every means available to them to
reduce the incidents of abuse and injury, but were con-
stantly faced with staff shortages. In addition, as we
have already found, the administration at Pennhurst was
saddled with an institution which by its very nature pro-
duced an atmosphere conducive to injury. The Court,
therefore, finds that the defendants have met their burden
of convincting us by a preponderance of the evidence that
they are entitled to the good faith immunity from damages
afforded to such officials in connection with the injuries
District Court Opinion, 75a
December 23, 1977
suffered by the name plaintiffs. O’Connor v. Donald-
son, 422 U.S. 563, 576-77 (1975); Wood v. Strickland,
420 U.S. 308 (1975); Thompson v. Burke, 556 F.2d 231,
239-40 (3d Cir. 1977); Skehan v. Board of Trustees of
Bloomsburg State College, 538 F.2d 53, 59-62 (3d Cir.
1976). We find that the individual defendants are ded-
icated professionals in the field of retardation who were
given very little with which to accomplish the habilitation
of the retarded at Pennhurst.
Accordingly, we find that there is no basis for award-
ing monetary damages in this case.
VI. Conclusion
This opinion is in lieu of Findings of Fact and Con-
clusions of Law, pursuant to Rule 52(e) of the Federal
Rules of Civil Procedure. As we have attempted to make
clear, our Findings and Conclusions pertain solely to the
retarded at Pennhurst.
For the reasons heretofore enunciated, the Court
finds that the retarded at Pennhurst have been and are
presently being denied certain constitutional and statu-
tory rights in connection with their institutionalization
at Pennhurst.
In an Order filed this date, we have scheduled a
hearing for Friday, January 6, 1978 at 9:00 a.m. in Court-
room 10-B of this United States Courthouse, 601 Market
Street, Philadelphia, Pennsylvania for the purpose of deter-
mining the appropriate relief to be granted.
76a Memorandum Opinion, March
17, 1978
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 74-1345
Terri Lee Halderman, et al.,
Plaintiffs
Pennsylvania Association for Retarded Citizens, et al.,
Plaintiff-Intervenors
United States of America,
Plaintiff-Intervenor
V.
Pennhurst State School and Hospital, et al.,
Defendants
MEMORANDUM
BRODERICK, J., March 17, 1978.
In an opinion filed on December 23, 1977, this
Court made findings of fact and conclusions of law in
this matter. Upon its findings, the Court held that the
constitutional and statutory rights of the retarded at Penn-
hurst State School and Hospital (“‘Pennhurst’”’) had been
and are being violated. Some of the determinations made
by the Court in its opinion were:
1. That when a state institutionalizes individuals
because they are retarded, the United States Constitution
Memorandum Opinion, March 77a
17, 1978
(Eighth and Fourteenth Amendments) and the laws of
Pennsylvania (50 P.S. §§4101 et seq.) require the state
to provide such minimally adequate habilitation as will
afford a reasonable opportunity for them to acquire and
maintain such life skills as are necessary to enable them
to cope as effectively as their capacities permit.
2. That the Rehabilitation Act of 1973, 29 U.S.C.
§794, grants rights to the retarded residents of Pennhurst,
which rights have been and are being violated.
3. That the retarded at Pennhurst are not receiving
minimally adequate habilitation and that such minimally
adequate habilitation cannot be provided at Pennhurst be-
cause it does not provide an atmosphere conducive to
normalization, which the experts all agree is vital to the
minimally adequate habilitation of the retarded.
Having concluded the liability phase of this litiga-
tion, we must now determine the appropriate relief. In
view of the Court’s finding that institutionalization at
Pennhurst is not conducive to normalization, which is
vital to the habilitation of the retarded, our Order must
provide that immediate steps be taken to remove the re-
tarded residents from Pennhurst. Great caution and care
must be exercised, however, to make certain that each
and every retarded resident who is moved from Penn-
hurst can be accommodated in a community facility which
will provide minimally adequate habilitation. Further-
more, the Court’s Order shall not be construed to limit
in any manner the use of the Pennhurst facilities from
any other purpose in the future.
A hearing was held on january 6, 1978, at which
the Court requested that the parties meet and attempt to
78a Memorandum Opinion, March
17, 1978
agree upon a Court Order which would be acceptable to
all the litigants. After meeting, the parties informed the
Court that they had been unable to agree and would never
be able to agree. The Court then directed that the par-
ties submit proposed Orders detailing their views as to
the appropriate relief for the Court to grant together with
a memorandum pointing out what they considered un-
acceptable in their opponent’s proposed Order.
The Order submitted by the Commonwealth defend-
ants contained a plan which was essentially the same plan
introduced by them at the trial in May, 1977. As was
pointed out in this Court’s opinion, the Commonwealth
defendants agreed that the retarded should be removed
from Pennhurst and readily admitted that the only rea-
son that the litigation was necessary was because they
wished to accomplish the closing of Pennhurst as a resi-
dence for the retarded, pursuant to their own schedule
which was vague and indefinite.
A final hearing was held on January 16, 1978, at
which time the parties informed the Court that they did
not intend to introduce any additional evidence. All the
parties agreed that the record in this case contained all
the evidence necessary for the Court to formulate its Or-
der.
Accordingly, we shall this date enter an Order of
judgment in favor of the plaintiffs and against the de-
fendants, and shall mandate the appropriate injunctive
relief necessary to remedy the constitutional and statu-
tory violations which the Court in its Opinion of
December 23, 1977 found are being suffered by the re-
tarded residents at Pennhurst.
Order, March 17, 1978 79a
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 74-1345
Terri Lee Halderman, et al.,
Plaintiffs
Pennsylvania Association for Retarded Citizens, et al.,
Plaintiff-Intervenors
United States of America,
Plaintiff-Intervenor
V.
Pennhurst State School and Hospital, et al.,
Defendants
ORDER
AND NOW, this 17th day of March, 1978, pursuant
to findings of fact and conclusions of law made by the
Court in an Opinion filed December 23, 1977, it is hereby
ORDERED that judgment is entered in favor of the plain-
tiffs and against the defendants, and injunctive relief is
ORDERED as follows:
1. Commonwealth and county defendants, their
successors, and their officers, agents, servants, employees,
attorneys and all persons in active concert or participation
with them are permanently enjoined to provide suitable
community living arrangements for the retarded residents
80a Order, March 17, 1978
of Pennhurst, and those retarded persons on its waiting
list, together with such community services as are neces-
sary to provide them with minimally adequate habilita-
tion until such time as the retarded individual is no
longer in need of such living arrangement and/or com-
munity service.
2. Commonwealth and county defendants, as afore-
said, are permanently enjoined to develop and to provide
a written individualized program plan, formulated in
accordance with professional standards (Opinion, page
25; Roos N.T. 1-115, 1-116, Hare N.T. 8-168) to each
member of plaintiff class, to provide to each an indi-
vidualized habilitation program, to provide annual peri-
odic review thereof and the opportunity to each member
of plaintiff class and to his or her next friend to be heard
thereon.
3. Commonwealth and county defendants, as afore-
said, are permanently enjoined to provide all necessary
and proper monitoring mechanisms to assure that com-
munity living arrangements and other community ser-
vices of the necessary quantity and quality are provided
and maintained.
4. Commonwealth and county defendants, as afore-
said, are permanently enjoined to implement with dis-
patch Act 256 of the 1970 Pennsylvania General As-
sembly, the specific schedule to be set by further Order
of this Court upon recommendation of the Master as set
forth in paragraph 6 (a) below.
5. The Court, on the basis of nine weeks’ testimony
in this case and the submissions of all parties, finds that
the implementation of this Order will be impossible with-
Order, March 17, 1978 8la
out the appointment of a Special Master, and, therefore,
pursuant to Rule 53, Fed. R. Civ. P. and in the exercise
of the Court’s equitable powers, the Court shall appoint
a Special Master with the power and duty to plan, or-
ganize, direct, supervise and monitor the implementation
of this and any further Orders of the Court. Common-
wealth and county defendants, their successors, officers,
agents, servants, employees, attorneys and all persons in
active concert or participation with them shall provide
the Master with access to all premises, records, documents
and personnel and residents and with every other coopera-
tion and service necessary to the discharge of the Master’s
duties and shall make available to the Master all profes-
sional and other resources of the Department of Public
Welfare, the Pennhurst State School and Hospital, the
County Offices of Mental Retardation and the Base Ser-
vice Units as may be necessary to execute this Court’s
Orders.
6. This Special Master shall prepare and present
to this Court for its approval and Order a Plan of Imple-
mentation which shall include the following:
(a) A plan specifying the quantity and type of
community living arrangements and other community
services necessary for the habilitation of all plain-
tiffs in the least separate, most integrated, least re-
strictive community setting, taking into account the
existing community services in the five county area
and including, by county, specification of the resi-
dential, program and staffing patterns necessary, the
delineation of responsibility for their creation and
maintenance, their funding and a specified time
frame for their provision.
82a
Order, March 17, 1978
(b) A report specifying resources, procedures,
and a schedule for individual evaluations and the
formulation of individual exit and community pro-
gram plans required for the habilitation of each
member of plaintiff class and for their periodic re-
view.
(c) A plan for the recruitment, hiring and
training of a sufficient number of qualified com-
munity staff to be detailed to each Base Service Unit
to manage the preparaticn of individual exit and
community program plans for each member of plain-
tiff class and upon completion of such plans to assist
in the execution of the responsibility to create, de-
velop, maintain, and monitor the community living
arrangements and other services required.
(d) A plan for the creation, development and
maintenance of mechanisms to monitor a system of
community services to assure that community living
arrangements and other community services of the
necessary quality and quantity are continuously pro-
vided to retarded persons in the least separate, most
integrated, least restrictive community setting, which
pian shall include but shall not be limited to the pro-
vision of friend-advocates to assist in the protection
of the rights of each member of plaintiff class.
(e) A plan to provide retarded people, mem-
bers of the class, with continuing information con-
cerning the effect and the implementation of the
Court’s decision, concerning the plans to provide all
necessary community living arrangements and other
community services to their relative and any other
general or specific information regarding the condi-
Order, March 17, 1978 83a
tions necessary to habilitation of retarded persons
and to provide for consultation with them.
(f) A plan to provide parents and family of
the members of the class with continuing informa-
tion concerning the effect and the implementation
of the Court’s decision, concerning the plans to pro-
vide all necessary community living arrangements
and other community services to their relative and
any other general or specific information regarding
the conditions necessary to habilitation of retarded
persons and to provide for consultation with them.
(g) A plan to provide opportunities for alter-
native employment to each employee of Pennhurst
State School and Hospital, including employment in
community programs and otherwise. :
7. Within not more than sixty (60) days after ap-
pointment, the Master shall file with this Court the reports
required at paragraphs 6(a) and (b) above and 11 be-
low. A hearing will then be scheduled by the Court
within fifteen (15) days from the date of their filing.
Following the adoption of any plan by Order of the Court,
it shall be implemented forthwith.
8. The Master shall engage such staff of his or her
own as he or she finds necessary, subject to the approval
of the Court. The Master and his or her staff shall be
compensated by commonwealth defendants at a rate to
be set by the Court; the expenses of the mastership shall
be borne by the commonwealth defendants. The Mas-
ter shall promptly submit to the Court a form of Order
with respect to these matters.
9. County defendants, as aforesaid, are hereby en-
joined from recommending or in any way counselling that
84a Order, March 17, 1978
any individual be committed to Pennhurst, and from peti-
tioning for the commitment of any individual to Penn-
hurst, and from advancing in any way any application
for admission to Pennhurst, and are herewith enjoined
from participating in any program or activity in connection
with the placement in the future or commitment in the
future of any retarded person at Pennhurst.
10. Commonwealth defendants, as aforesaid, are
hereby enjoined from recommending or in any way coun-
selling that any individual be committed to Pennhurst,
and from petitioning for the commitment of any indi-
vidual to Pennhurst, and from advancing in any way
any application for admission to Pennhurst, and are here-
with enjoined from participating in any program or ac-
tivity in connection with the placement in the future or
commitment in the future of any retarded person at Penn-
hurst. Commonwealth defendants are further enjoined
from providing a residence and/or habilitation to any
retarded person who is not as of this date a resident at
Pennhurst.
11. The Special Master, as aforesaid, shall prepare
and present to the Court for its Order a plan for the
interim operation of Pennhurst pending its prompt replace-
ment by community living arrangements and other com-
munity services. The plan shall address, but need not
be limited to, the matters referenced in paragraphs 12-19
below, any other condition at Pennhurst which threatens
the life, safety or well-being of any Pennhurst resident,
and measures to assure that the interim operation of Penn-
hurst, including all activities therein, contributes to the
prompt provision of services in the community necessary
to the habilitation of each Pennhurst resident.
Order, March 17, 1978 85a
12. Commonwealth defendants are hereby man-
dated to take every precaution to prevent the physical or
psychological abuse, neglect or mistreatment of any Penn-
hurst resident. Each and every alleged incident of abuse,
neglect or mistreatment shall be promptly investigated.
The manner and mechanisms of such investigations shall
be developed and established by the plan referenced in
paragraph 11.
13. Commonwealth defendants are hereby enjoined
to exert the maximum effort in enforcing the following
Department of Public Welfare regulations on the “Use of
Restraints in Treating Patients/Residents” and ‘‘Personnel
Rules and Institutional Policy on Acts of Abuse Against
Patients/Residents’” (promulgated in 7 Pennsylvania Bul-
letin 3199 (October 29, 1977)) which include inter alia
the following requirements:
a. That mechanical restraints controlling in-
voluntary movement or lack of muscular control due
to organic conditions be employed only as part of an
individual program plan, upon a finding of the pro-
gram team trained in the use of such restraints, and
only when necessary to 1) prevent injury to self or
others, or 2) promote normative body positioning
and physical functioning.
b. That restraints shall be used to control acute
or episodic, aggressive behavior only when a resi-
dent is acting in such a manner as to be a clear and
present danger to self or others and only when less
restrictive measures and techniques have been proven
to be less effective.
c. That mechanical restraints may be used only
upon the order of a qualified mental retardation
86a Order, March 17, 1978
professional for a period not to exceed two hours;
that the resident must be checked every fifteen min-
utes and must be examined by a physician before the
initial order is renewed.
d. That chemical restraints may be admin-
istered cnly upon the order of a physician.
e. That seclusion (practice of placing a resi-
dent alone in a locked room) is prohibited in all
cases except where it is apparent that there exists a
clear and present danger to the resident, other resi-
dents or staff and all other less restrictive methods
have failed or have been deemed inappropriate.
(Title XIX—ICF-MR 249.13 and State Agency
Letter No. 77-30 issued December 14, 1977.)
f. That individual program plans shall require
and document that all possible attempts be made at
preventing assaultive behavior by positive, construc-
tive intervention.
g. That acts of abuse by employees directed at
residents are absolutely prohibited and are cause for
disciplinary action including dismissal.
h. That an abusive act is any action which may
cause or causes physical or emotional harm or injury
and includes any willful action which violates the
regulations on use of restraints.
14. Commonwealth defendants are hereby enjoined
from:
(a) Administering excessive or unnecessary
medications to class members;
(b) Using medication as punishment, for the
convenience of the staff, as a substitute for program-
Order, March 17, 1978 87a
ming, or in quantities that interfere with a Pennhurst
resident’s functioning;
(c) Failing to ensure that only appropriately
trained staff are allowed to administer drugs to resi-
dents;
(d) Failing to provide training programs to
staff who administer drugs to residents. The nature
of such training programs, and the qualifications to
be required of staff members who administer drugs
to residents shall be established in the plan;
(e) Administering drugs to residents on a p.r.n.
basis. Written policies and procedures governing
the safe administration and handling of medications
shall be established pursuant to guidelines developed
in the plan;
(f) Failing to monitor and to provide for at
least monthly reviews by a physician of each resi-
dent’s medications.
15. Commonwealth defendants are enjoined from
failing to provide a program of medical and health related
services for residents which provides accessibility, quality
and continuity of care for physical illness or injury. The
plan of implementation shall develop and establish de-
tailed standards for the provision of adequate medical and
health related services to residents.
16. Commonwealth defendants are hereby enjoined
from failing to provide individualized adaptive wheel-
chairs to each physically handicapped resident who needs
them. Each and every individual resident shall be im-
mediately evaluated to ascertain the need for such equip-
ment.
88a Order, March 17, 1978
17. Commonwealth defendants are hereby enjoined
from feeding any resident in the supine position or in any
position less than the maximum upright position consistent
with their capabilities and handicaps.
18. Commonwealth defendants are hereby enjoined
from denying any resident programmed activities as
punishment.
19. Commonwealth defendants are enjoined to take
every precaution to keep every Pennhurst building cur-
rently housing residents clean, odorless and insect-free at
all times.
20. All bulletins, memoranda, directives of official
policy issued by the defendants in connection with the
implementation of this Court’s Order, shall, upon issuance,
be sent to counsel for each of the plaintiffs.
21. Jurisdiction is retained by this Court until fur-
ther Order.
(s) Raymond J. Broderick
Raymond J. Broderick, J.
Opinion, Court of Appeals 89a
UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT
Nos. 78-1490, 78-1564 and 78-1602
Terri Lee Halderman, a retarded citizen, by her mother
and guardian, Winifred Halderman; Larry Taylor, a re-
tarded citizen, by his parents and guardians, Elmer and
Doris Taylor; Kenny Taylor, a minor, a retarded citizen,
by his parents and guardians, Elmer and Doris Taylor;
Robert Sobetsky, a minor, a retarded citizen, by his par-
ents and guardians, Frank and Angela Sobetsky; Theresa
Sobetsky, a retarded citizen, by her parents and guardians,
Frank and Angela Sobetsky; Nancy Beth Bowman, a re-
tarded citizen, by her parents and guardians, Mr. and Ms.
Horace Bowman; Linda Taub, a retarded citizen, by her
parents and guardians, Mr. and Mrs. Allen Taub; George
Sorotos, a minor, a retarded citizen by his foster parents,
William and Marion Caranfa, all of the above individually
and on behalf of all others similary situated; The Parents
and Family Association of Pennhurst
Pennsylvania Association for Retarded Citizens, Jo Su-
zanne Moskowitz, a minor, by her parents and next
friends, Leonard and Nancy Moskowitz, Robert Hight, a
minor, by his parents and next friends, John and Jeanne
Hight, David Preusch, a minor by his parents and next
friends, Calvin and Elizabeth Preusch, and Charles Di-
Nolfi, On behalf of themselves and all others similarly
situated,
Plaintiffs-Intervenors
90a Opinion, Court of Appeals
United States of America,
Plaintiff-Intervenor
vs.
Pennhurst State School & Hospital, Department of Public
Welfare of the Commonwealth of Pennsylvania, Frank
S. Beal, Secretary of the Department of Public Welfare,
Stanley Meyers, Deputy Secretary for Mental Retardation,
Department of Public Welfare, Helene Wohlgemuth,
Former Secretary, Department of Public Welfare, Aldo
Colautti, Executive Deputy Secretary, Department of
Public Welfare, Wilbur Hobbs, Deputy Secretary for
Southeastern Region, Department of Public Welfare,
Russell Rice, Jr., Commissioner of Mental Retardation
for Southeastern Region, Department of Public Welfare,
C. Duane Youngberg, Superintendent, Pennhurst State
School & Hospital, Robert Smilovitz, Former Assistant
Superintendent, Pennhurst State School & Hospital, Jo-
seph Foster, Assistant Superintendent, Pennhurst State
School & Hospital, Margaret Green, Betty Uphold, Alice
Barton, P. E. Klick, Dr. Parocca, Helen Francis, em-
ployees and agent of Pennhurst State School & Hospital,
John Doctor, James Nurse, Jane Aide, Jill Therapist,
Richard Roe, Jane Doe, unknown and unnamed staff,
employees and agents of Pennhurst State School & Hos-
pital, each individual Defendant sued individually and
in his or her official capacity, George Metzger, Joseph
Catania, and Roger Bowers, Commissioners for Bucks
County, Robert Strebl, Earl Baker, and Leo McDermott,
Commissioners for Chester County, Faith R. Whittlesey,
Charles Keeler and William Spingler, Commissioners for
Delaware County, A. Russell Parkhouse, Frank W. Jen-
kins and Lawrence H. Curry, Commissioners for Mont-
gomery County, Mayor Frank L. Rizzo and The City
Opinion, Court of Appeals 91a
Counsel of Philadelphia, as Authorities for Philadelphia
County, Peter Bodenheimber, Mental Health/Mental Re-
tardation Administrator for Bucks County, William A.
McKendry, Mental Health/Mental Retardation Admin-
istrator for Chester County, P. Paul Burrichter, Mental
Health/Mental Retardation Administrator for Delaware
County, Hermann A. Roether, Mental Health/Mental Re-
tardation Administrator for Montgomery County, and
Leon Soffer, Mental Health/Mental Retardation Admin-
istrator for Philadelphia County, Commonwealth of Penn-
sylvania Defendants Pennhurst State School & Hospital,
Department of Public Welfare of the Commonwealth of
Pennsylvania, Frank S. Beal, Stanley Meyers, Helene
Wohlgemuth, Aldo Colautti, Wilbur Hobbs, Russell Rice,
Jr.. C. Duane Youngberg, Robert Smilovitz, Joseph
Foster, Margaret Green, Betty Uphold, Alice Barton, P. E.
Klick, Dr. Parocca, and Helen Francis,
Appellants in No. 78-1490
George Metzger, Joseph Catania, and Roger Bowers,
Commissioners for Bucks County, and Peter Bodenheim-
ber, Mental Health/Mental Retardation Administrator for
Bucks County, Robert G. Strebl, Earl M. Baker, and Leo
McDermott, Commissioners for Chester County, and Wil-
liam A. McKendry, Mental Health/Mental Retardation
Administrator for Chester County, Faith Ryan Whittlesey,
Charles C. Keller, and William A Spingler, Commissioners
for Delaware County, and P. Paul Burrichter, Mental
Health/Mental Retardation Administrator for Delaware
County and A. Russell Parkhouse, Frank W. Jenkins, and
Lawrence H. Curry, Commissioners for Montgomery
County, and Hermann A. Roether, Mental Health/Mental
Retardation Administrator for Montgomery County,
Appellants in No. 78-1564
92a Opinion, Court of Appeals
Mayor Frank L. Rizzo, The City Counsel of
Philadelphia, and Leon Soffer,
Appellants in No. 78-1602
On Appeal From the United States District Court for
the Eastern District of Pennsylvania
(D.C. Civil No. 74-1345)
Argued: January 9, 1979
Before: Seitz, Chief Judge, Gibbons and
Higginbotham, Circuit Judges
Reargued en banc September 6, 1979
Before: Seitz, Chief Judge, Aldisert, Gibbons,
Rosenn, Hunter, Weis, Garth,
Higginbotham and Sloviter, Circuit Judges
(Opinion Filed December 13, 1979)
Norman J. Watkins (Argued), Deputy Attorney
General, Chief, Civil Litigation.
David Ferleger, Esq. (Argued), 37 S. 20th Street,
Suite 601, Philadelphia, Pa. 19103, Attorney for Appel-
lees, Terri Lee Halderman, et al.
Robert B. Hoffman, Deputy Attorney General;
Gerald Gornish, Acting Attorney General, Pa. Department
of Justice, Capitol Annex Building, Harrisburg, Pennsyl-
vania 17120, Attorneys for Commonwealth Appellants.
Thomas M. Kittredge, Esquire (Argued), Morgan
Lewis & Bockius, 2107 The Fidelity Building, Philadel-
phia, Pennsylvania 19109, Attorney for the Suburban
County Appellants.
Opinion, Court of Appeals 93a
Robert N. DeLuca, United States Attorney; Drew S.
Days, III (Argued), Ass’t Attorney General; Brian K.
Landsberg, Frank D. Allen, Jr., Arthur E. Peabody, Jr.,
Attorneys, Department of Justice, Washington, D.C.
20530, Attorneys for United States.
Jaime Fernandez, Attorney, Office of General Coun-
sel, Department of Health, Education and Welfare,
Washington, D.C. (Of Counsel) .
Sheldon L. Albert, City Solicitor; Theodore H.
Lunine, Deputy City Solicitor; Joseph M. Davidson, As-
sistant City Solicitor; Marc H. Myers (Argued), Assistant
City Solicitor, 801 U.G.I. Building, 1401 Arch Street,
Philadelphia, Pa. 19102, Attorneys for Appellants, 78-
1602.
Stephens A. Sheller, Esquire (Argued); Bruce M.
Ludwig, Esquire, 1515 Locust Street, 7th Floor, Phila-
delphia, Pennsylvania 19102, Attorneys for the Pennhurst
Parents-Staff Association, et al.
Thomas K. Gilhool, Esquire (Argued); Frank J.
Laski, Esquire, Edward A. Stutman, Esquire, Public In-
terest Law Center of Philadelphia, 1315 Walnut Street,
Suite 1600, Philadelphia, Pa. 19107, Of counsel: Michael
Churchill, Esquire, James J. Raggio, Esquire, Attorneys
for Appellees Pennsylvania Association for Retarded
Citizens, et al.
James D. Crawford, Esquire (Argued); Schnader,
Harrison, Segal & Lewis, 1719 Packard Building, Phila-
delphia, Pennsylvania 19102, Attorney for Amici Curiae.
Richard Kirschner, Esquire, Robert C. Cohen, Es-
quire, Markowitz & Kirschner, 1500 Walnut Street, Phila-
delphia, Pa. 19102, Attorneys for Amicus Curiae.
94a Opinion, Court of Appeals
OPINION OF THE COURT
GIBBONS, Circuit Judge, Filed Dec. 13, 1979.
This is an appeal from an order granting class action
injunctive relief against the continued maintenance of
Pennhurst State School and Hospital (Pennhurst), a fa-
cility for the care and training of persons suffering mental
retardation. Location in Spring City, Pennsylvania, Penn-
hurst is operated under the direction of the Pennsylvania
Department of Public Welfare. The appellants are Penn-
hurst, its superintendent and various other officials of the
Commonwealth of Pennsylvania responsible for the op-
eration of Pennhurst (the Commonwealth defendants) ,
and five counties in southeastern Pennsylvania from which
mentally retarded persons are admitted to Pennhurst (the
County defendants) .' The appellees are the original and
intervening plaintiffs, described more fully below. We
affirm the trial court’s finding of liability, and modify in
part the court’s decree.
I. PROCEEDINGS BELOW
The action commenced on May 30, 1974, when
Terri Lee Halderman, a minor retarded resident of Penn-
hurst, for herself and all other Pennhurst residents, filed
1The Commonwealth defendants are appellants in No. 78-
1490. Appellants in No. 78-1564 include Bucks, Chester, Dela-
ware and Montgomery Counties. Philadelphia is appellant in No.
78-1602. In a related case, No. 78-1999, disposed of separately,
Pennhurst Parents-Staff Association appeals from the denial of its
motion to intervene.
Opinion, Court of Appeals 95a
a complaint against the Commonwealth defendants. The
complaint alleged that the residents, all of whom are men-
tally retarded, live in inhumane and dangerous conditions,
are subjected to unnecessary physical restraints, are given
unnecessary and dangerous medication, are consigned to
lives of idleness because of lack of habilitative programs,
and are subjective to numerous physicai injuries resulting
from a lack of adequate supervision. The complaint fur-
ther charged that the regimen of Pennhurst caused Halder-
man and her class to deteriorate and regress emotionally,
intellectually and physically. The conditions to which
residents were subjected, she claimed, denied the class
members due process and equal protection of the law,
and inflicted on them cruel and unusual punishment.
Halderman sought both injunctive relief against the condi-
tions at Pennhurst and money damages for past injuries.
In November 1974, the United States moved pursu-
ant to Rule 24, Fed. R. Civ. P. 24, to intervene as a plain-
tiff. Its complaint sought injunctive relief against the
Commonwealth defendants, citing the same conditions
about which Halderman had complained. The Common-
wealth defendants opposed intervention by the United
States, but it was granted on January 17, 1975.”
On June 3, 1975, the Pennsylvania Association for
Retarded Citizens (PARC) and several additional men-
tally retarded residents of Pennhurst moved to intervene.
Like the United States, PARC and the additional indi-
The Commonwealth defendants thereafter sought a writ of
mandamus from this court to compel the district court to dismiss
the United States as a party. The writ was denied, and petitions
for certiorari and for a stay of this court’s order were denied by
the Supreme Court. Beal v. Broderick, 431 U.S. 933 (1977).
96a Opinion, Court of Appeals
vidual plaintiffs sought only injunctive relief and pro-
ceeded only against the C
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