# Appendix — Pennhurst State School and Hospital v. Halderman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2214%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1981 - **Citation:** 451 U.S. 1 ## Text JOINT APPENDIX ——— _————— 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 | | 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 eR Fe en ree 202a aso ek week's osha 204a GR ol OR > rere 204a ck k's ke wee one ee 207a ee 215a ee as pie i ee we eR 217a 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) 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 delineatio [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2214%3A02. Public record. Not legal advice.