Appendix — New York State Ass'n for Retarded Children, Inc. v. Carey

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No. s&% 3 ~ 2 Olfice- Supreme Court, U.S,

LED

IN THE AUE 8 1993

Supreme Court of the United Htatesoc>. 5

OCTOBER TERM, 1983 VLERK

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NEW YORK STATE ASSOCIATION FOR

RETARDED CHILDREN, INC.,, et al.,

—and—

PATRICIA PARISI, et al.,

Petitioners,

—_—)V—

HUGH L. CAREY, individually and as Governor

of the State of New York, et al.,

Respondents.

UNITED STATES OF AMERICA,

Amicus Curiae

APPENDIX TO PETITION FOR A WRIT OF

CERTIORARI TO THE COURT OF APPEALS

FOR THE SECOND CIRCUIT

ARCHIBALD R. MURRAY

KALMAN FINKEL

JOHN E. KIRKLIN

RICHARD F. BRAUN

HELEN HERSHKOFF

Legal Aid Society

11 Park Place

New York, New York 10007

(212) 227-2755

Of Counsel:

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON

By: Jonathan D. Siegfried

Elisa M. Rivlin

345 Park Avenue

New York, New York 10154

(212) 644-8277

CHRISTOPHER A. HANSEN

(Counsel of Record)

ROBERT M. LEVY

New York Civil Liberties Union

84 Fifth Avenue

New York, New York 10011

(212) 924-7800

MICHAEL S. LOTTMAN

MURRAY B. SCHNEPS

299 Broadway

Suite 805

New York, New York 10007

(212) 267-0760

WALTER C, REDFIELD

1290 Avenue of the Americas

Suite 4150

New York, New York 10104

(212) 977-9500

TABLE OF CONTENTS

APPENDIX A: Opinion of

the Court of Appeals,

March 31, 1983

APPENDIX B: Denial of

Petition for Rehearing,

May 9, 1983

APPENDIX C: Opinion and

Order of the District

Court, April 28, 1982

APPENDIX D: Relevant

Sections of Final

Judgment on Consent,

April 30, 1975

APPENDIX E: Order of the

District Court, October

22, 1979 (Flower Order)

[CORRECTED COPY]

APPENDIX A

Opinion of the Court

of Appeals, March 31, 1983

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

oe

Nos. 305, 821—-August Term, 1982

(Argued December 16, 1982 Decided March 31, 1983)

Docket Nos. 82-7441, 82-7591

—————

Netw YORK STATE ASSOCIATION FOR

RETARDED CHILDREN, INC., et al,

—and—

PATRICIA PARISI, et al.,

Plaintiffs-Appellees,

—_—Vo—

HUGH L. Carey, individually and as

Governor of the State of New York, et al.,

Defendants-Appellants.

UNITED STATES OF AMERICA,

Amicus Curiae.

Before:

FRIENDLY and NEWMAN, Circuit Judges,

and WyZanskl, District Judge.*

>

Appeal by the Governor of the State of New York and

officials of its Office of Mental Retardation and Develop-

mental Disabilities from orders of the District Court for

the Eastern District of New York, John R. Bartels,

Judge, entered on April 28 and July 13, 1982. The orders

found appellants not to be in compliance with a Consent

Judgment entered on April 30, 1975, between appellants

and a class consisting of residents of Willowbrook State

School, granted modification of the Consent Judgment

more limited than appellants had sought, and appointed a

Special Master to oversee compliance with the Consent

Judgment. Affirmed in part and reversed and remanded

in part,

+

CHRISTOPHER A, HANSEN, New York, NY,

New York Civil Liberties Union, New

York, NY (Robert M. Levy, Diana_ T.

Tanaka), Legal Aid Society, New York,

NY (Archibald R. Murray, Kalman

Finkel), Paul, Weiss, Rifkind, Wharton

& Garrison, New York, NY (Jonathan D.

Siegfried, Helen Hershkoff, Elisa M.

Rivlin), Michael S. Lottman, Murray B.

. United States District Court for the District of Massachusetts, sitting

by designation,

A=-3

Schneps, New York, NY, for Plaintiffs-

Appellees other than New York State As-

sociation for Retarded Children, Inc.

WALTER REDFIELD, New York, NY, for Plain-

tiff New York State Association for Re-

tarded Children, Inc.

TAYLOR R. BricGs, New York, NY, LeBoeuf,

Lamb, Leiby & MacRae, New York, NY

(Richard C, Cole, Kim Hoyt Sperduto,

Joy Feigenbaum, Lawrence W. Pollack),

Robert Abrams, New York State Attor-

ney General (Frederick K. Mehlman,

Assistant Attorney General), for Defen-

dants-Appellants.

EDWARD R. KORMAN, United States Attorney

for the Eastern District of New York,

Wm. Bradford Reynolds, Assistant

Attorney General, J. Harvie Wilkinson,

Deputy Assistant Attorney General,

Brian K. Landsberg, Louise A. Lerner,

Attorneys, Department of Justice, Wash-

ington, D.C., for Amicus Curiae United

States.

FRIENDLY, Circuit Judge:

The present appeal and a companion case, Docket No.

82-7531, are the latest in a long series of decisions'

y Previous reported decisions include New York State Ass'n for

Retarded Children, Inc. v, Rockefeller, 387 F. Supp, 782 (E.D.N.Y.

A-4

spawned by a complaint filed on March 17, 1972, by the

New York State Association for Retarded Children, Inc.

(NYSARC), other voluntary organizations, and individ-

ual mentally retarded persons on behalf of a class of

mentally retarded children and adults residing at what

was then Willowbrook State School for the Mentally

Retarded and is now Staten Island Developmental Center

(Willowbrook), alleging that inhuman conditions there

violated constitutional rights protected by 42 U.S.C.

§ 1983. We provide here only so much background as is

necessary to our decision.

1. FACTUAL BACKGROUND

At the commencement of the action, the resident popu-

lation of Willowbrook was 5,700, or 65% over its official

capacity, reduced from a peak of 6,200 in 1969, and the

facility’s overcrowding, understaffing, and physical

squalor amounted to what one state defendant admitted

was a “major tragedy”, NYSARC v. Carey, 596 F.2d 27,

29-30 (2 Cir.), cert. denied, 444 U.S. 836 (1979). On April

10, 1973, after five days of hearings and a personal

inspection of Willowbrook, the late Judge Orrin G. Judd

held that state officials had violated plaintiffs’ constitu-

tional right to protection from harm in a state institution,

357 F. Supp. 752, 764-65, and granted preliminary relief

ordering immediate hiring of additional staff and im-

1973); New York State Ass’n for Retarded Children, Inc. v. Carey, 393

F. Supp. 715 (E.D.N.Y. 1975); 409 F. Supp. 606 (E.D.N.Y. 1976); 438

F. Supp. 440 (E.D.N.Y. 1977); 456 F. Supp. 85 (E.D.N.Y. 1978); 466 F.

Supp. 479 (E.D.N.Y. 1978), aff'd, 612 F.2d 644 (2 Cir. 1979); 466 F.

Supp. 487 (E.D.N.Y. 1979); 596 F.2d 27 (2 Cir.), cert. denied, 444 U.S.

836 (1979); 492 F. Supp. 1099 (E.D.N.Y. 1980); 492 F. Supp. 1110

(E.D.N.Y.), rev’d, 631 F.2d 162 (2 Cir. 1980); 544 F. Supp. 330

(E.D.N.Y. 1982).

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provement of conditions to attain minimal standards of

health and safety, id. at 768-69. Subsequently plaintiffs,

joined by the United States Department of Justice as

amicus curiae, moved to have several state officials held

in contempt. Settlement negotiations were pursued during

a trial on the issue of noncompliance in late 1974 and

were resumed in 1975 under a new state administration.

These led to the Consent Judgment of April 30, 1975,

which Judge Judd approved, 393 F. Supp. 715.

The 1975 Consent Judgment, reproduced at | Mental

Disability L. Rep. 58 (1976), specified “steps, standards

and procedures necessary to secure the constitutional

right to protection from harm” for members of plaintiff

class, including reduction of Willowbrook’s resident pop-

ulation to 250, all remaining residents to be from Staten

Island homes,* by April 30, 1981. It ordered and enjoined

state officials, “{w]ithin their lawful authority” and “sub-

ject to any legislative approval that may be required” to

“take all actions necessary to secure implementation of”

the detailed “steps, standards and procedures” incorpo-

rated in a lengthy appendix to the Consent Judgment and

to “ensure the full and timely financing of this judg-

ment”. Consent Judgment at 3-4. The court created a

Review Panel to monitor implementation of the Consent

Judgment, as well as a Professional Advisory Board and

a Consumer Advisory Board to assist the Review Panel

and state administrators. Jd. at 5-11. The court retained

jurisdiction to entertain applications for orders constru-

ts

This requirement has been elaborated by the Office of Mental

Retardation and Developmental Disabilities (OMRDD) into a self-im-

posed “County of Origin” Policy by which each class member is placed

in the borough or county from which he or she was originally

committed to Willowbrook.

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ing, implementing, or enforcing compliance with the

provisions of the Consent Judgment. /d. at 11-12.

The Consent Judgment ordered that the plaintiff class

be provided with “the least restrictive and most normal

living conditions possible”. Consent Judgment, Appendix

A at 1. Included among the requirements implementing

this standard were provisions for “clean, adequate and

seasonally appropriate clothing”, “accessible, private and

easily usable toilets and bathing facilities”, and “clean,

odorless, and insect-free” living quarters. Jd. at 1-2.

Residents were to receive individualized care, opportuni-

ties for education and recreation, and adequate medical

services. Jd. at 5-16. Restrictions were placed on use of

physical restraints, experimentation on residents, and

exaction of residents’ labor for the upkeep of the institu-

tion. Jd. at 17-19.

Reduction of Willowbrook’s population from 5700 to

250 was to be achieved by relocation of its residents to

“community placements” designed “to ready each resi-

dent, with due regard for his or her own disabilities and

with full appreciation for his or her own capabilities for

development, for .:2 in the community at large.” Jd. at

28. A “community placement” was defined in the Con-

sent Judgment as

a non-institutional residence in the community in a

hostel, halfway house, group home, foster care

home, or similarly residential facility of fifteen or

fewer beds for mildly retarded adults, and ten or

fewer beds for all others, coupled with a program

element adequate to meet the resident’s individual

needs.

Id. at 27. This restriction placed on the size of community

placements, which we shall call for simplicity’s sake the

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“15 bed/10 bed limitation”, would contribute to the

“normalization” of the lives of plaintiff class members by

approximating as nearly as possible the housing situations

of non-retarded children and adults.

The road to compliance has not been easy and has by

no means reached its end.’ A prior opinion of this court,

596 F.2d 27, 31-36 (2 Cir. 1979), gives a detailed account

of the elaborate enforcement mechanisms set up by the

district court. From 1975 to 1980, the Willowbrook Re-

view Panel issued periodic audit reports on the degree of

compliance with the Consent Judgment and some 25

formal recommendations for the closing of certain facili-

ties, hiring of medical and psychiatric personnel, provi-

sion of educational programming, and similar matters.

Judge Bartels, succeeding Judge Judd in the case, em-

bodied many of these recommendations in orders to the

defendants and conducted hearings on plaintiffs’ motions

of November 11, 1976, and September 9, 1978, for

findings of civil contempt against state officials.

In one such enforcement proceeding, the Willowbrook

Review Panel recommended on May 24, 1979, that in

order to comply with the Consent Judgment, the defen-

dants should provide a group of multiply handicapped

class members transferred to Flower Fifth Avenue Hospi-

tal (Flower Hospital) with “community placements” of

no more than three beds each. Defendants refused to

implement the recommendation unless a court order com-

pelled them to do so. After an evidentiary hearing, “the

parties having agreed in open court on September 11,

One rough measure of the time and energy devoted thus far by the

parties and the district court to the enforcement of the Consent

Judgment is the district court's docket sheet. Twelve pages of closely

= entries precede the notation of final judgment in 1975; 39 pages

ollow it.

A-8

1979, to a resolution of said issue,” the court ordered that

the Flower Hospital group be placed in residential facili-

ties of six beds or less, with the more severely disabled

half of this group placed in facilities of three beds or less

(the “6 bed/3 bed limitation”).

The Willowbrook Review Panel has effectively ceased

to monitor compliance with the Consent Judgment since

the state legislature in March, 1980, refused to appropri-

ate funds necessary to continue its operations. This court

subsequently held that the district court could not compel

the Governor of New York and its comptroller to rein-

state funding for the Review Panel in defiance of the

legislature and of state law, 631 F.2d 162, 166 (2 Cir.

1980). With the demise of the Review Panel, counsel for

the plaintiff class brought charges of noncompliance

directly to the district court’s attention. As of August 31,

1981, 1369 members of the original class remained at

Willowbrook awaiting placement and 999 had been trans-

ferred temporarily to other large institutions. Of the level

of sanitation, resident care, and maintenance at Wil-

lowbrook revealed by audits in March and September,

1981, we shall have more to say hereafter.

Plaintiffs moved on May 22, 1981, for an order de-

claring that the defendants were not in compliance with

provisions of the Consent Judgment relating to clothing,

nutrition, environment, staffing, programs and services,

and community placement, and for an order referring

further issues of compliance with the Consent Judgment

to a Special Master. On the same day, defendants moved

pursuant to F.R.Civ.P 60(b) to modify the 15 bed/10 bed

limitation in the Consent Judgment and the 6 bed/3 bed

limitation in the Flower Hospital Order to a 50 bed

limitation. After extensive discovery and 25 days of

testimony, the district court on April 28, 1982, issued the

decision prompting the present appeal.

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Judge Bartels, while not doubting “the good faith of

the defendants in attempting to comply with the Judg-

ment”, Opinion at 33, found that they had failed to attain

its standards for sanitation, maintenance, clothing, pro-

gramming, special therapies, recreation, nutrition, and

staffing. He ordered defendants to comply in these re-

spects “with all deliberate speed”, but extended the dead-

line for finding community placements for plaintiffs to

April 1, 1985, Opinion at 70. The decision further pro-

vided that a Special Master be appointed, in place of the

defunct Review Panel, to monitor compliance with the

Consent Judgment. Finally, Judge Bartels ordered modi-

fication of the Flower Hospital Order’s 6 bed/3 bed

limitation to a 6 bed/4 bed limitation, but denied defen-

dants’ motion to modify the 15 bed/10 bed limitation in

the Consent Judgment. By order dated July 13, 1982,

Judge Bartels named Dr. Rudy Magnone as Special Mas-

ter and enumerated his duties and powers.

I]. FINDINGS OF NONCOMPLIANCE

Defendants attack the district court’s findings of non-

compliance with the Consent Judgment on two grounds.

First, they charge that the district court’s findings were

based on inadmissible evidence obtained pursuant to a

discovery order so fundamentally unfair to defendants

that it amounted to an abuse of the court’s discretion.

Second, they attack the findings themselves as “clearly

erroneous”. Neither ground warrants reversal of the dis-

trict court’s findings of noncompliance.*

4 Appellants do not challenge this portion of the judgment on the

basis of the Supreme Court's decision in Youngberg v. Romeo, 73

L.Ed. 2d 28, decided on June 18, 1982, subsequent to the district

court's decision. We discuss the effect of Youngberg below.

A-10

The district court’s order of July 7, 1981, made over

defendants’ objection, permitted plaintiffs’ counsel, con-

sultants, and experts to inspect the Willowbrook facili-

ties, “take photographs, make observations, take notes,

form conclusions and interview any class member, staff

member or employee desired outside the presence of

defendants,” their counsel and representatives.° Plain-

tiffs’ representatives were instructed to minimize disrup-

tion of defendants’ operation and to limit the number of

observers On any one inspection to four. Defendants were

instructed to allow their employees to answer all ques-

tions put to them by the visitors. Defendants now charge

that as a result of this order, hearsay statements of

unidentified Willowbrook staff members, unsubstan-

tiated observations of plaintiffs’ expert witnesses, and

prejudicial photographs were admitted into evidence and

were expressly relied upon in the district court opinion.

In challenging the propriety of the discovery order,

defendants rely principally on Belcher v. Bassett Furni-

‘

At the hearing on plaintiffs’ motion for the discovery order, defen-

dants objected especially to plaintiffs’ counsel questioning defendants’

employees without defendants’ counsel present. The circumstances

here, however, are similar to those in Vega v. Bloomsburgh, 427 F.

Supp. 593, $95 (D. Mass. 1977), wherein this practice was approved.

6 Plaintiffs pointed out at the hearing that similar discovery orders

were granted by Judge Johnson in Wart v. Hardin, C/A No, 3193-N

(M.D. Ala., June 21, 1978).

Defendants object particularly to a footnote in Judge Bartels’

opinion, n. 10, mentioning that Dr. Clements observed in the lunch-

room a class member sitting in a puddle of urine and testified to an

out-of-court statement by an unnamed employee that it was not her

job to clean up urine. Dr. Clements then saw the class member drop his

spoon into the puddle, retrieve it, and continue to eat. It is clear,

however, that Judge Bartels relied not upon the truth of the hearsay

statement but upon Dr. Clements’ observation that while he was in the

lunchroom the employee noticed the situation and did nothing to

remedy it.

A-11l

ture Industries, Inc., 588 F.2d 904 (4 Cir. 1978), an

employment discrimination case in which an order per-

mitting inspection of defendant’s plant and questioning

of its employees by the plaintiff's expert was reversed.

That decision correctly states the standard to be used in

deciding whetner, under F.R.Civ.P. 26(c), a discovery

order such as this one is unduly burdensome: “Under this

subsection, the degree to which the proposed inspection

will aid in the search for truth must be balanced against

the burdens and dangers created by the inspection.” 588

F.2d at 908. The danger, there as here, was that “interro-

gation of the employees, conducted informally” could

amount to “a roving deposition, taken without notice,

throughout the plants, of persons who were not sworn

and whose testimony was not recorded, and without any

right by the defendant to make any objection to the

questions asked. Presumably, on the basis of such interro-

gations, the expert would base his testimony.” Jd. at 907.

The Fourth Circuit found that this danger, combined with

the burden of disruption of defendant's operations, out-

weighed the speculative gains to be derived, in light of the

facts that the complaint in Belcher had alleged no specific

instances of discrimination, the motion for the discovery

order mentioned no specific areas of inquiry, and the

expert witness’s special field of expertise was not

described.

A different balance must be struck in the present case.

Here plaintiff counsel’s claims of noncompliance were

quite specific and their inspections were meant to fill a

gap left by the demise of the Review Panel provided for

in the Consent Judgment. Judge Bartels, calling on his

years of experience with the case, was well able to

determine the value this form of discovery would have in

resolving the controversy then before him. In many re-

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spects the inspection procedure here resembles the place-

ment of experts within Texas Youth Council facilities

permitted in Morales v. Turman, 59 F.R.D. 157, 159

(E.D. Tex. 1972). Mindful of the unique difficulties

presented in post-judgment compliance efforts of the sort

here in question, we do not consider the district court’s

discovery order of July 7, 1981, to have been an abuse of

discretion. Almost all the out-of-court statements by

unnamed Willowbrook employees provisionally admitted

were received for the purpose of enabling plaintiffs’

experts to express an Opinion as permitted by F.R.E. 703.

Moreover, the eyewitness observations to which plaintiffs’

experts testified and the documentary and photographic

exhibits afforded ample basis for the district court's

findings. _

Defendants further attempt to show that the findings of

noncompliance in Judge Bartels’ Opinion and Order of

April 28, 1982, (Opinion) were clearly erroneous. They do

this in the face of a Compliance Report (Report) prepared

by defendant officials of OMRDD in March 1981 admit-

ting noncompliance with 137 of 385 standards embodying

the mandates of the Consent Judgment. Report at 15.

Details of these findings and defendants’ charges of error

follow.

Judge Bartels found that “sanitation at Willowbrook is

totally unsatisfactory and presents a serious health hazard

to the resident population.” Opinion at 10. Rodents and

cockroaches infest the kitchens and dining rooms. Hu-

man feces and urine pollute bathrooms and living areas.

The district judge also found that “[t]he most glaring

maintenance inadequacies,” included blocked plumbing,

broken furniture, and lack of curtains for privacy, “stem

from present, not past neglect.” Opinion at 13. Defen-

dants argue that the judge should have ignored testimony

A-13

of Willowbrook Review Panel chairman Dr. James Clem-

ents and plaintiffs’ photographic evidence in favor of his

own observations during a tour of Willowbrook on the

first day of trial. We find no error in the district court's

reliance on the repeated visists of Dr. Clements. Defen-

dants’ own Compliance Report revealed noncompliance

with 22 of 39 applicable standards in this area, including

those specifying absence of “offensive, irritating odors”

and of food, dirt, and trash of more than one day’s

accumulation. Report at 41-42.

Judge Bartels found that “[s]ome residents at Wil-

lowbrook are partially clothed, others go nude, and many

wear clothes that are ill-fitting, badly torn and stained.”

Opinion at 15. The court noted that toilet training of class

members cannot proceed when they are pinned or tied

into their clothing and thus cannot remove it themselves.

Defendants point to testimony describing improvements

in this area but, despite these hopeful signs, their Com-

pliance Report records that the clothing supply is insuffi-

cient and that clothes are frequently ill-fitting and in

disrepair. Report at 10.

Delivery of programming, that is, formal training or

instruction for the mentally retarded person’s individual

needs, was found seriously deficient. Some residents, due

to lack of transportation or lack of clothing, never arrive

at their programming sessions. Even for those residents

who attend, the court found, “[djefendants have been

remiss in developing and implementing individual devel-

opment treatment plans.” Opinion at 19. Here conflicting

expert testimony permitted the court te conclude, in

accordance with defendants’ Compliance Report, that

“[mJjany recommended programs and services . . . were

not being implemented”; residents instead “were observed

sitting inactively in program areas.” Report at 6.

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Defendants on appeal do not mention the court's

findings on the absence and misuse of equipment for

residents requiring special therapies, enforced idleness

due to lack of any recreation equipment, and failure to

provide special diets for residents who need them. Opin-

ion at 20-22. Defendants do, however, contest vigorously

Judge Bartels’ finding of “serious staff shortages” due to

chronic tardiness, absences, and inefficient deployment of

what would otherwise be adequate numbers of employ-

ees. Opinion at 23-24, Defendants insist that the court

improperly relied upon plaintiffs’ figures based on work-

sheets that did not provide complete records of staff

attendance. Yet defendants’ February 198] Compliance

Report on staffing (Staff Report) revealed the same

conclusions, Full compliance could be shown among

direct staff, at least on weekdays, when all buildings and

shifts were averaged, but “the range of surpluses and

deficits varied considerably among buildings.” Staff Re-

port at 2. Among mid-level supervisors, even the average

attendance in all buildings of the Willowbrook facility

during all shifts, including paydays, did not amount to

full compliance. Staff Report at 3. Neither this nor any of

the findings previously mentioned constitutes the clear

error that would be required for us to reverse the judge's

findings on conditions at Willowbrook.

II]. APPOINTMENT OF A SPECIAL MASTER

Defendants seek to have the district court's appoint-

ment of a special master set aside as an abuse of discre-

tion. Their argument that the present case fails to show

the requisite “exceptional condition” under F.R.Civ.P.

§3(b) is wholly lacking in merit. The monitoring of a

Consent Judgment that mandates individualized care for

A-15

thousands of class members and that entails balancing of

the interests of parties with third-party employees,* school

authorities,” and community groups" is just the sort of

“polycentric problem that cannot easily be resolved

through a traditional courtroom-bound adjudicative

process” for which Judge Weinstein found a Special

Master appropriate in Hart v. Community School Bd. of

Brooklyn, 383 F. Supp. 699, 766 (E.D.N.Y. 1974), aff'd,

$12 F.2d 37 (2 Cir. 1975). See also Gary Wi v. Louisiana,

601 F.2d 240, 244-45 (5 Cir. 1979); Halderman v. Penn-

hurst State School & Hospital, 612 F.2d 84, 111 (3 Cir.

1979)’ and cases cited in these opinions,

*

See NYSARC v, Care), 438 F Supp. 440 (E.D.N.Y, 1977) Goining

the Civil Service Employees Association, Inc. for an ancillary proceed-

ing determining whether a proposed contract between the Department

of Mental Hygiene and United Cerebral Palsy “would infringe on any

rights of the employees at Willowbrook"); 486 F. Supp. 8§ (E.D.N.Y.

1978) (concluding the ancillary proceeding)

9 See NYSARC ¥ Cares, 466 F. Supp. 479 (E.D.N_Y. 1978) (enjoining

city board of education from excluding mentally retarded children

from regular school classes because they carried serum hepatitis),

aff'd, 612 F.2d 644 (2 Cir. 1979)

10 See, ¢.g., People of the State of New York v. 1] Cornwell Co., slip

Ops, at $569 (2 Cir., Nov, 30, 1982) (state suit on behalf of its mentally

retarded citizens against partnership formed by neighbors seeking to

prevent OMRDD from purchasing house as community residence for

the retarded)

NW We are mindful of Justice White's disapproval of use of a Special

Master in the Pennhurst proceeding “to decide which of the Pennhurst

inmates should remain and which should be moved to community-

based facilities", Pennhurst State School ». Halderman, 45\ U.S. |, $4

(1981) (White, J., dissenting in part). A decision presenting that issue

is now before the Supreme Court, Halderman \. Pennhurst Siate

School & Hospital, 673 F.2d 647 (3 Cir.) (en banc) (reinstating judg-

ment on state law grounds), cert, granted, 102 S. Ct. 2986 (1982). The

Special Master in this case has power to monitor and to make

recommendations concerning placement of individuals, but is not

given power to decide

A-16

Underlying defendants’ objection to the appointment js

the apprehension that the Special Master would become

Willowbrook's de facto administrator, intervening at

every decision-making stage and rewarding the exposure

of deficiencies in ways that would be disastrous to staff

morale. An order appointing a special master to oversee a

city’s compliance with the Fair Housing Act, a remedy)

opposed by defendants and plaintiffs, was reversed in

United States v. City of Parma, 661 F.2d 562, 579 (6 Cir.

1981), cert. denied, 102 S. Ct. 1972 (1982), on the ground

of intrusiveness. The limited powers of this Special Mas-

ter, as set forth in Judge Bartels’ Order of July 13, 1982,

assure that this spectre of usurpation is unlikely to mate-

rialize,

Provisions of the July 13, 1982, Order allowing the

Master access to Willowbrook records and buildings,

permitting him to interview class members and defen-

dants' employees, requiring his staff to compile periodic

reports on compliance, and permitting inspection and

copying of such reports by all parties, Order at 3-4, are

taken practically word-for-word from the powers and

duties of the Review Panel set forth in the 1975 Consent

Judgment at 7, as is the provision punishing as contempt

of court any interference with the Special Master or his

staff by any person with notice of the Order. The Order

also reproduces the mechanism by which the Review

Panel made recommendations regarding compliance with

or interpretation of the Consent Judgment, which became

binding on all parties unless written objections are filed

seeking resolution by the court. Order at 4-5; Consent

Judgment at 9. As this court stated in an earlier opinion

dealing with Willowbrook, “the parties knowingly and

intentionally delegated to a panel of chosen experts the

power to make the initial determination on importan’

A-17

matters involving the meaning and interpretation of the

Consent Judgment”, 596 F.2d at 32-33. “[T]hey created

continually evolving enforcement and supervisory mecha-

nisms” thought necessary to “meet evolving conditions

and to resolve differences”, id. at 37. The powers of the

Special Master to inspect, to interview, and to make

recommendations go no further than those agreed to in

the Consent Judgment.

Other powers and duties of the Special Master are more

narrowly circumscribed than those previously possessed

by the Review Panel. The Special Master is directed to

review, integrate, and harmonize the audits conducted by

the many existing monitoring groups, Order at 3, and

may require the defendants to submit “any reports neces-

sary to assist the Master in performing his duties”, Order

at 4, but he and his staff do not have the Review Panel's

blanket power to “conduct any additional inquiries they

deem necessary or appropriate.” Consent Judgment at 8.

The Order contemplates a role for the Special Master at

once less formal and more facilitative than that of the

former Review Panel. While the Consent Judgment

placed little emphasis on the Review Panel’s power to

make “informal suggestions”, Consent Judgment at 8,

the Order in several of its provisions directs the Special

Master to provide assistance and advice to the parties,

report to the parties, consult with the parties informally,

and conduct informal working sessions. Order at 4-5, 7.

Correspondingly, “[djefendants and all of their agents, as

well as public agencies of the State of New York, are

directed to cooperate fully with the Master in order to

accomplish the purposes of this order”. Jd. at 8. The

following provision of the Order had no counterpart in

the Consent Judgment:

A-18

The Master shal] have no authority to exercise any

contro] or management over the operation of any

facility operated or licensed by the State of New

York, but he shall have authority to monitor the

location and acquisition of community placement

facilities in order to meet the placement goals of the

Consent Judgment, and to make a report to the

parties with respect thereto.

The powers granted to the Special Master here comport

with those granted in similar cases by other courts. See

Gary Wi, supra, 601 F.2d at 245 and cases cited therein.

As limited by the letter and spirit of Judge Bartels’ Order

of July 13, 1982, the Special Master’s role does not

threaten usurpation of state functions.’

What we have said largely answers the appellants’

arguments on this aspect of the case based on Youngberg

v. Romeo, 73 L. Ed. 2d 28, decided by the Supreme

Court on June 18, 1982, nearly two months after the

decision here. That case, as it reached the Supreme Court

on certiorari to the Third Circuit, 644 F.2d 147, was a suit

for damages under 42 U.S.C. § 1983 against Pennsylva-

nia state officials by a retarded man who, at his mother’s

12 Defendants also contend that the provision of Judge Bartel’s Order

which taxes them with the necessary expenses for carrying out the

Special Master's duties, Order at 6, violates principles of federalism

The appointment of a Specia] Master clearly was meant to fill the void

left by the state legislature's refusal to fund the Willowbrook Review

Panel, which the district court was powerless to undo. See NYSARC 1

Care), 631 F.2d 162 (2 Cir. 1980). This fact does not itself detract from

the legitimacy of the district court's allocation of costs to defendants

under F.R.Civ.P. $3(a). See Gary WU’, supra, 601 F.2d at 245-46;

Morgan \. Kerrigan, $30 F.2d 401, 427 () Cir.), cert. denied, 426 F.2d

935 (1976). See also Halderman vy. Pennhurst State School & Hospital.

$26 F. Supp. 428 (E.D. Pa. 1981) (proceeds from contempt fines paid

to special master). The federal court in awarding costs may treat the

state “like any other litigant”, Hutto v. Finney, 437 U.S. 678, 696

(1978).

A-19

request, had been committed to the Pennhurst State

School and Hospital. The damages sought were for inju-

ries received as a result of Romeo’s own violence and the

reactions of other residents to him, for unduly prolonged

physical restraints, and for failure to provide Romeo with

appropriate treatment for his mental retardation. The

Court upheld Romeo’s claims to safe conditions and to

freedom from unnecessary bodily restraints. It found his

claim to a “constitutional right to minimally adequate

habilitation” to be “more troubling”, 73 L. Ed. 2d at 37.

Because of what it thought to be a disavowal of broader

claims, 73 L. Ed. 2d at 38-39 & n.23, the Court consid-

ered that Romeo was asserting only a constitutional right

to “minimally adequate or reasonable training to ensure

safety and freedom fromi undue restraint.” 73 L. Ed. 2d

at 39. It sustained this claim and, because of the dis-

avowal, found it unnecessary to consider “the difficult

question whether a mentally retarded person, involuntar-

ily committed to a state institution, has some general

constitutional right to training per se, even when no type

or amount of training would lead to freedom.” Jd. How-

ever, in what for us is the most important passage in the

opinion, the Court endorsed the standard articulated by

Chief Judge Seitz of the Third Circuit as that to be

applied in reviewing state action for the protection of the

involuntarily committed. This was that, 644 F.2d at 178:

the Constitution only requires that the courts make

certain that professional judgment in fact was exer-

cised. It is not appropriate for the courts to specify

which of several professionally acceptable choices

should have been made.

Justice Powell went on to say, 73 L. Ed. 2d at 41-42:

A-20

In determining what is “reasonable’—in this and in

any case presenting a claim for training by a state—

we emphasize that courts must show deference to the

judgment exercised by a qualified professional. By so

limiting judicial review of challenges to conditions in

State institutions, interference by the federal judi-

ciary with the internal operations of these institutions

should be minimized. Moreover, there certainly is no

reason to think judges or juries are better qualified

than appropriate professionals in making such deci-

sions. . . . For these reasons, the decision, if made

by a professional, is presumptively valid; liability

may be imposed only when the decision by the

professional is such a substantial departure from

accepted professional judgment, practice or stan-

dards as to demonstrate that the person responsible

actually did not base the decision on such a judg-

ment.

We are unable to agree with appellants that Youngberg

automatically leads to reversal of what would otherwise

have been an appropriate exercise of the judge’s discre-

tion to appoint a Special Master. What it does do is

Supply a standard that will be relevant to any further

attempts that might be made to modify the terms of the

consent decree, as we hold it to be with respect to this

one. To the extent that the decree leaves room for in-

terpretation, that standard will also have relevance for the

Special Master in making recommendations and for the

district court in ruling upon them. Time may show tha!

because of Youngberg’s restrictive effect upon the scopé

of the review, the Special Master is unnecessary. In tha!

event the defendants are free to move that the appoint:

ment be terminated.

A-21

IV. MODIFICATION OF THE CONSENT

JUDGMENT

Although we have rejected the foregoing challenges to

the action of the district court, we take a different view

with respect to its refusal to modify the Consent Judg-

ment’s 15 bed/10 bed limitation on the size of community

placement facilities for the Willowbrook class and to do

more than slightly modify its Flower Hospital Order from

a 6 bed/3 bed limitation to one of 6 bed/4 bed.

At the hearing before the district court, defendants

made a strong showing that only by modifying the 15

bed/10 bed limitation to one of community placements

up to 50 beds in size'’ could they expeditiously relocate

the remaining 1369 residents of Willowbrook and the 999

class members temporarily residing in other large institu-

tions. They presented testimony of state officials and

expert witnesses that some class members would be better

cared for and better adjusted in facilities of intermediate

size. Defendants also showed that the 6 bed/3 bed limita-

tion on placements for the multiply handicapped residents

of Flower Hospital effectively denied those individuals

the proper medical supervision they require.

In the first place, New York City’s extremely tight

housing market has slowed down OMRDD’s placement

of class members in community residences within their

home boroughs. OMRDD’s past and present directors of

3 If modification were granted, OMRDD proposed to construct in

fiscal year 1983:

18 community residences of 4-10 beds each;

18 residences of 11-24 beds each;

2 residences of 25-34 beds each; and

3 residences of 35-50 beds each.

Defendants’ Post-Trial Memorandum at 85-86.

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community placement testified to the difficulties encoun-

tered in finding residences of more than 3 or 4 beds in the

city and the greatly increased costs per class member

when residences of such small size are acquired and

adapted for mentally retarded persons. To obtain commu-

nity placements of 8 to 10 beds, OMRDD often must

purchase vacant sites that could accomodate group homes

above the 15 bed/10 bed limit at little additional cost.

Some of the placement difficulties encountered by

defendants can be traced to the time-consuming proce-

dures for dealing with neighborhood opposition, see note

9, supra, under New York Mental Hygiene Law § 41.34

(McKinney Supp. 1982-83). Another obstacle, defen-

dants’ “County of Origin” policy of relocating most

Willowbrook residents in the boroughs in which their

families still reside, represents a further attempt to defuse

neighborhood opposition to “outsiders”. Finally,

OMRDD has had to rule out many 3 to 4 bed apartments

because in order to qualify for federal Medicaid contribu-

tions, community facilities housing individuals incapable

of responding to emergency situations must be adapted to

meet the National Fire Protection Association Life Safety

Code, 42 C.F.R. 442.507-442.508 (1981).

The district court took “judicial notice of the current

housing shortage in New York City” as a temporary

phenomenon but found that “this year 57 new commu-

nity residences designed to accommodate approximatels

450 persons will become available in the New York City

area alone, and another 88 units, housing approximately

700 persons, are anticipated for fiscal year 1982-83”,

Opinion at 57-58. The court based its finding on testi-

mony of OMRDD Special Assistant Cora Hoffman and

Facilities Development Corporation employee Edward R.

Matthews that some 80 sites were “in the pipeline” for the

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coming year. In response to questioning by the court,

however, Hoffman explained that sites “in the pipeline”

had been located but had not been approved or acquired.

“Some of them,” she stated, probably more than half,

“we won't ever get”. This evidence did not warrant the

district court’s converting OMRDD’s sanguine hopes into

realizable facts.

Judge Bartels also found that delays and abandonment

of placement sites due to compliance with the “County of

Origin” policy, New York Mental Hygiene Law § 41.34,

and the federal Life Safety Code were among the “self-

imposed” obstacles making defendants’ placement diffi-

culties largely a problem of their own creation. By

adopting this perspective, however, the district court lost

sight of the interests of third parties and the complex

environment in which OMRDD must operate. On a less

narrow and adversarial view of the evidence, OMRDD’s

difficulties in stemming neighborhood resistance and se-

curing federal funding take on a real and formidable

aspect.

Next to be mentioned is the plethora of expert testi-

mony on the size of the residential facility as a factor

bearing on the care received by mentally retarded persons

and their opportunities for development. Defendants pro-

duced OMRDD Acting Commissioner Sygmond Slezak,

New York State Department of Social Services Commis-

sioner Barbara Blum, former Willowbrook Director of

Medical Services Dr. Philip Ziring, Associate Director of

the Illinois Department of Developmental Disabilities Dr.

Richard Blanton, Harvard Psychiatry Professor and for-

mer Texas Commissioner of Mental Retardation Dr. Sher-

vert Frazier, Boston University Professor of Special

Education Dr. Sue Allen Warren, and Marc Brandt of the

Sullivan County Association for Retarded Children, all of

A-24

whom were in general agreement that a range of facilities

of different sizes up to 50 beds would best serve the

Willowbrook class. The quality of care and relationships

between staff and residents, it was testified, would not

suffer in facilities of larger size. Moreover, community

placements of less than 10 beds, according to Dr. Ziring

and Dr. Frazier, could not each be staffed with physicians

and therapists necessary for disabled class members and

those with special health risks. In particular, Dr. Ziring

considered that ‘he limited access to proper medical care

that multiply handicapped residents of Flower Hospital

would have in community placements of 3 to 6 beds

would amount to “malpractice.”

Against this testimony, plaintiffs’ and amicus curiae’s

expert witnesses, including Massachusetts Assistant Com-

missioner for Mental Retardation Kathleen Schwaninger,

Arizona Assistant Deputy Director Brian Lensink, Chair-

man of the Willowbrook Review Panel Dr. James Clem-

ents, University of Alabama Professor of Medicine Dr.

Andrew Lorincz, and Gerald Provencal aid Lyn Rucker,

both of whom run small group homes in other states,

joined in contending that the size of a residential facility

is the single most important factor in the development of

mentally retarded individuals. Facilities of 10 beds or less,

these experts testified, provide consistency of program-

ming and care as well as the warmth of personal relation-

ships. Plaintiffs’ medical experts concluded that the

medical problems of Willowbrook class members were

exaggerated by defendants’ experts. Even the Flower

Hospital residents, according to Dr. Lorincz, were medi-

cally stable and posed no risks that adequately trained

staff could not handle.

The district court rejected the evidence of defendants’

witnesses and remained convinced “that the needs of the

A-25

Willowbrook class members are better met in small group

homes than in facilities ranging in size from 11 to 50

beds”, Opinion at 47.'* The court noted that defendants

had agreed in 1975 to the 15 bed/10 bed limitation and

thus would have to argue “either that professional knowl-

edge has changed or that practical experience has shown

that the quality of care is the same in facilities sized from

1 to $0 residents”, Opinion at 47-48. In so holding, the

district court allowed one provision of the Consent Judg-

ment, that requiring 15 bed/10 bed community place-

ments, to override the more comprehensive goal of

transferring the population of Willowbrook, whose

squalid living conditions this court has already recited, to

facilities of more human dimension as quickly as pos-

sible.

An injunction, as a final ju gment with prospective

application, may be modified by the court upon motion

by a party and a showing that continuation of the

injunction would be inequitable. F.R.Civ.P. 60(b)(5) ex-

pressly authorizes a district court to relieve a party from a

final judgment if “it is no longer equitable that the

judgment should have prospective application.” The

power of a court of equity to modify a decree of injunc-

tive relief is long-established, broad, and flexible. “A

continuing decree of injunction directed to events to come

14 One of the reasons given by the district court for rejecting defen-

dants’ expert testimony was defendants’ failure to identify specific

individuals within the Willowbrook class whose medical or develop-

mental needs would be better served by placement in facilities of 11 to

$0 beds, Opinion at $52 & n.27. With so many other problems pressing,

defendants could not fairly be expected to devote time and resources to

an assessment of the adaptability of several thousand individuals to

facilities of a size defendants were yet barred from employing. The

modification requested by defendants would not relieve them of the

further duty imposed by the Consent Judgment to evaluate “the

community alternative best suited for each resident”.

A-26

is subject always to adaptation as events may shape the

need. . . . The distinction is between restraints that give

protection to rights fully accrued upon facts so nearly

permanent as to be substantially impervious to change,

and those that involve the supervision of changing con-

duct or conditions and are thus provisional and tenta-

tive.”, United States v. Swift & Co., 286 U.S. 106, 114

(1932) (Cardozo, J.). “Familiar equity procedure assures

opportunity for modifying or vacating an injunction

when its continuance is no longer warranted”, Milk

Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S.

287, 298 (1941) (Frankfurter, J.).

In denying defendants’ motion for modification of the

limitation on the size of community placement facilities,

Judge Bartels relied on other language of Justice Cardozo

in United States v. Swift & Co., supra, 286 U.S. at 119,

quoted here in extfenso:

There is need to keep in mind steadily the limits of

inquiry proper to the case before us. We are not

framing a decree. We are asking ourselves whether

anything has happened that will justify us now in

changing a decree. The injunction, whether right or

wrong, is not subject to impeachment in its applica-

tion to the conditions that existed at its making. We

are not at liberty to reverse under the guise of

readjusting. Life is never static, and the passing of a

decade has brought changes to the grocery business

[the subject of the decree] as it has to every other.

The inquiry for us is whether the changes are so

important that the dangers, once substantial, have

become attenuated to a shadow. No doubt the defen-

dants will be better off if the injunction is relaxed,

but they are not suffering hardship so extreme and

A-27

unexpected as to justify us in saying that they are the

victims of oppression. Nothing less than a clear

showing of grievous wrong evoked by new and un-

foreseen conditions should lead us to change what

was decreed after years of litigation with the consent

of all concerned.

This apparent hardening of the usual standard for mod-

ifying decrees of injunctive relief did not stem from the

fact that in Swift the Court was dealing with a consent

decree. Justice Cardozo explicitly ruled that “[t]he result

is all one whether the decree has been entered after

litigation or by consent” and rejected the argument that

for purposes of modification by the court, “a decree

entered upon consent is to be treated as a contract and

not as a judicial act. . . . The consent is to be read as

directed toward events as they then were. It was not an

abandonment of the right to exact revision in the future,

if revision should become necessary in adaptation to

events to be”, 286 U.S. at 114, 115.'° Rather, the consid-

erations underlying the language just quoted from Swift

were based on the specific facts then before the Court.

The consent decree at issue in Swift had been entered

into by the United States and five major meatpackers in

February, 1920, enjoining the meatpackers from violating

the antitrust laws and from holding any interest in several

lines of business, including the wholesale and retail provi-

sion of other foodstuffs such as fish, vegetables, fruit and

Is This position was reaffirmed in System Federation v. Wright, 364

U.S. 642, 680-52 (1961). Resort to a contractual analogy would be

particularly inappropriate in the present case. This court has noted in a

previous decision with respect to Willowbrook that even for purposes

of interpretation, the “Consent Judgment is no mere contract,” 596

F.2d at 37.

A-28

groceries, as to which the market power arising from

defendants’ domination of the meatpacking business was

thought to give them unfair competitive advantages and

to encourage practices violative of the antitrust laws, 286

U.S. at 111, 115-16. The ink had hardly become dry on

the decree when the meatpackers began to assail it, see

Swift & Co. v. United States, 276 U.S. 311 (1928); United

States v. California Cooperative Canneries, 279 U.S. 553,

555 (1929), the latter of which attempts led to a suspen-

sion of the decree for several years. Not daunted by the

adverse results in these cases, several of the meatpackers

within a year sought major modification in the decree,

which the lower court granted to the extent of eliminating

the prohibitions mentioned above. The modification on

which the Supreme Court passed in Swift would have

robbed the 1920 consent decree of so much of its force

that the Court considered it “revers[al] under the guise of

readjusting”, 286 U.S. at 119.

The Swift decision was analyzed by the Supreme Court

in Chrysler Corp. v. United States, 316 U.S. 556, 562

(1942) and, more particularly, in United States v. United

Shoe Machinery Corp., 391 U.S. 244 (1968). There the

United States, rather than the defendant, sought modifi-

cation of an antitrust decree. The district court read Swift

as limiting its power to modify to cases involving “(1) a

clear showing of (2) grievous wrong (3) evoked by new

and unforeseen conditions”, 226 F.Supp. 328, 330 (D.

Mass. 1967). The Supreme Court held the district court

had read Swift too rigidly. The language we have quoted

in extenso must, the Court said, be read in the light of

context. “Swift teaches that a decree may be changed

upon an appropriate showing, and it holds that it may nor

be changed in the interest of the defendants if the pur-

poses of the litigation as incorporated in the decree (the

A-29

elimination of monopoly and restrictive practices) have

not been fully achieved.” 391 U.S. at 248 (emphasis in

Original).

Our case differs from both Swift and United Shoe

Machinery. Here, as in Swift, the modification is pro-

posed by the defendants. But it is not, as in Swift, in

derogation of the primary objective of the decree, namely,

to empty such a mammoth institution as Willowbrook;

indeed defendants offered substantial evidence that, again

in contrast to Swift, the modification was essential to

attaining that goal at any reasonably early date. To be

sure, the change does run counter to another objective of

the decree, namely, to place the occupants of Wil-

lowbrook in small facilities bearing some resemblance to

a normal home, but any modification will perforce alter

some aspect of the decree. An analogy closer than either

Swift or United Shoe is King-Seeley Thermos Co. v.

Aladdin Industries, Inc., 418 F.2d 31 (2 Cir. 1969). We

there considered a district court’s refusal to modify a

1962 consent decree between two manufacturers regard-

ing use by one, Aladdin Industries, of the generic term

“thermos” in labels and advertising. Aladdin had sought

modification of the decree insofar as it applied to adver-

tising. We noted that the heavy burden applied in Swift

must be read in the context of that case, in which, for

reasons previously outlined, the meatpackers were obliged

“to stake their claim on drastic changes in conditions”,

418 F.2d at 34. When a case involves drawing the line

between legitimate interests on each side, modification

will be allowed on a lesser showing:

While changes in fact or in law afford the clearest

bases for altering an injunction, the power of equity

has repeatedly been recognized as extending also to

cases where a better appreciation of the facts in light

A-30

of experience indicates that the decree is not properly

adapted to accomplishing its purposes.

418 F.2d at 35. We therefore remanded in King-Seeley for

consideration whether, “in the light of experience, the

detailed provisions of the decree seriously and needlessly

impeded [Aladdin’s] exploitation of the generic term and

that modification was necessary to achicve the results

intended, even though this would take the form of reduc-

ing the restrictions imposed upon it”, id. See also SEC v.

Warren, 583 F.2d 115, 119-20 (3 Cir. 1978) (commentary

on Swift and King-Seeley).'®

Two other considerations reinforce our conclusion that

the district court imposed far too drastic a standard upon

defendants’ request for modification. It is well recognized

that in institutional reform litigation such as this judi-

cially-imposed remedies must be open to adaptation when

unforeseen obstacles present themselves, to improvement

when a better understanding of the problem emerges, and

to accommodation of a wider constellation of interests

than is represented in the adversarial setting of the court-

room. In one of the earliest scholarly explications of

institutional reform litigation, Professor Abram Chayes

recognized as its most important characteristic that “the

trial judge has increasingly become the creator and man-

16 Some cases have steadfastly hewed to the Swift line. See, e.g.,

Humble Oil & Refining Co. v. American Oil Co., 405 F.2d 803, 813 (8

Cir.) (Blackmun, J.), cert. denied, 395 U.S. 905 (1969); United States

v. Work Wear Corp., 602 F.2d 110, 112 n. 6 (6 Cir. 1979); Holiday

Inns, Inc. v. Holiday Inn, 645 F.2d 239, 240 (4 Cir.), cert. denied, 454

U.S. 1053 (1981); Roberts v. St. Regis Paper Co., 653 F.2d 166, 174 (5

Cir. 1981).

Other circuits have distinguished the Swift standard in different

ways. See Tobin v. Alma Mills, 192 F.2d 133, 136-37 (4 Cir. 1951);

United States v. City of Chicago, 663 F.2d 1354, 1359-60 (7 Cir. 1981)

(en banc).

A-31

ager of complex forms of ongoing relief, which have

widespread effect on persons not before the court and

require the judge’s continuing involvement in administra-

tion and implementation”, Chayes, The Role of the

Judge in Public Law Litigation, 89 Harv. L. Rev. 1281,

1284 (1976).' A principal advantage of the use of injunc-

tive relief in such cases, Chayes added, is that “[o]ver

time, the parties may resort to the court for enforcement

or modification of the original order in light of changing

circumstances”, id. at 1292.

As experience with this type of litigation increases, a

consensus is emerging among commentators in favor of

modification with a rather free hand. According to one,

the judge who declines to remain involved and to respond

flexibly will fail to “respond to the need, present in most

institutional reform cases, for phased implementation and

small alterations in strategic objectives as new knowledge

is acquired”, Note, Implementation Problems in Institu-

tional Reform Litigation, 91 Harv. L. Rev. 428, 436

(1977).'* Another states that “[g]iven the detail of these

7 Professor Chayes has recently reaffirmed his view that injunctions in

institutiona! reform cases “are not so much peremptory commands to

be obeyed in terms, as they are future-oriented plans designed to

achieve broad public policy objectives in a complex, ongoing fact

situation”, Chayes, The Supreme Court—1981 Term—Foreword:

Public Law Litigation and the Burger Court, 96 Harv. L. Rev. 4, 56

(1982).

18 This commentator goes so far as to suggest that full compliance with

the court's decree as it is initially framed will rarely be achieved. /d. at

431. The writer’s conclusion is that:

when a court determines that the vindication of legal rights of

mental patients requires a mental health system to triple its budget,

double its staff, reduce its institutional population by seventy

percent, and restructure internal administrative patterns and inter-

agency relationships in a few years. . . success on all fronts should

not be expected.

Id. at 434.

A-32

decrees and the lack of judicial expertise, substantive

modification and adjustment are unavoidable and should

willingly be undertaken”, Special Project, The Remedial

Process in Institutional Reform Litigation, 78 Colum. L.

Rev. 784, 818 (1978). Another observer notes that

“liJmplementation is an incremental, cyclical process of

small steps, each followed by assessment or reaction and

further adjustment. Courts must revise decrees repeatedly

to cc. « unforeseen impediments or adverse conse-

quences , Diver, The Judge as Political Powerbroker:

Superintending Structural Change in Public Institutions,

65 Va. L. Rev. 43, 63 (1979). See also Fletcher, The

Discretionary Constitution: Institutional Remedies and

Judicial Legitimacy, 91 Yale L.J. 635, 640 (1982). The

best statement we have found with respect to the appro-

priate legal standard for evaluating a defendant’s motion

for modification of a consent judgment in institutional

reform litigation is that of Professor Owen Fiss:

The judge must search for the “best” remedy, but

since his judgment must incorporate such open-

ended considerations as effectiveness and fairness,

and since the threat and constitutional value that

occasions the intervention can never be defined with

great precision, the intervention can never be de-

fended with any certitude. It must always be open to

revision, even without the strong showing tradi-

tionally required for modification of a decree,

namely, that the first choice is causing grievous

hardship. A revision is justified if the remedy is not

working effectively or is unnecessarily burdensome.

Citation omitted.]

Fiss, The Supreme Court—1978 Term—Foreword: The

Forms of Justice, 93 Harv. L. Rev. 1, 49 (1979). This

A-33

view has found judicial expression in Philadelphia

Welfare Rights Organization v. Shapp, 602 F.2d 1114,

1120-21 (3 Cir. 1979), cert. denied, 444 U.S. 1026 (1980).

Faced with “a complex ongoing remedial [consent] de-

cree”, the Third Circuit upheld a modification sought by

the defendants, saying:

Where an affirmative obligation is imposed by court

order on the assumption that it is realistically

achievable, the court finds that the defendants have

made a good faith effort to achieve the object by the

contemplated means, and the object nevertheless has

not been fully achieved, clearly a court of equity has

power to modify the injunction in the light of experi-

ence.

Applications to modify a decree such as that in this case

should thus be viewed with generosity.

Here especially great generosity is mandated by the

decision in Youngberg which we have discussed above. In

System Federation No. 91 v. Wright, 364 U.S. 642 (1961),

the Supreme Court held that a consent decree prohibiting

certain acts must be modified when the statutory require-

ment on which the decree was based was amended so as

to permit them. Justice Harlan noted that “the District

Court’s authority to adopt a consent decree comes only

from the statute which the decree is intended to enforce”;

hence the court must “be free to modify the terms of a

consent decree when a change in law brings those terms in

conflict with statutory objectives”, 364 U.S. at 651.

Justice Harlan took as undisputed the proposition that “a

sound judicial discretion may call for the modification of

the terms of an injunctive decree if the circumstances,

whether of law or fact, obtaining at the time of its

issuance have changed, or new ones have arisen”, 364

A-34

U.S. at 647. We can see no reason for a different view

when the requirement is constitutional and a subsequent

decision of the Court has made clear that the court

entering the decree interpreted the requirement too

broadly. Theriault v. Smith, 523 F.2d 601 (1 Cir. 1975).

As his opinion discloses (pp. 47 ef seq.), the district

judge felt free to choose between the different views of

plaintiffs’ and defendants’ experts with respect to the

value of the limitations on the size of the units to which

the residents of Willowbrook were to be transferred. We

now know, as a result of Youngberg, that this was not the

appropriate inquiry. Once the defendants had established,

as they unquestionably did, that abandoning the 15/10

and 6/3 bed limitations in favor of a 50 bed limitation

would facilitate the emptying of Willowbrook and like

institutions, the question was whether, in Chief Judge

Seitz’s phrase, “professional judgment in fact was exer-

cised” or, in Justice Powell’s formulation, “the decision

by the professional is such a substantial departure from

accepted professional judgment, practice or standards as

to demonstrate that the person responsible actually did

not base the decision on such a judgment.” 73 L. Ed. 2d

at 41, 42. We see no merit in the argument of the United

States as amicus curiae (Brief, p. 38) that defendants

irrevocably exercised their professional judgment when

they agreed to the consent here; defendants’ agreement

was premised on their belief, now shown to have been

untenable, that they could find enough small facilities to

empty Willowbrook within a reasonable time. As said in

Swift, supra, 286 U.S. at 115, “[t]he consent is to be read

as directed to things as they were.” Since there is no

suggestion that defendants’ experts testified in bad faith,

we very likely could simply reverse the denial of the

defendants’ request for modification and direct that it be

A-35

granted. However, since Youngberg was not available to

the parties at the time of the hearing or to the district

judge at the time of his decision, fairness seems to make

preferable a remand on the narrow issue whether the

views expressed by defendants’ experts as to the propriety

of the 50 bed limitation constituted “professionally ac-

ceptable choices” or were “such a substantial departure

from accepted professional judgment, practice or stan-

dards as to demonstrate that the person responsible ac-

tually did not base the decision on such a judgment.”"”

The district court’s findings of noncompliance with the

Consent Judgment and its appointment of a Special

Master to monitor future compliance are affirmed. The

district court’s denial of modification of the Consent

Judgment and limited modification of the Flower Hospi-

tal Order are reversed and remanded for further proceed-

ings consistent with this opinion. No costs.

9 In this connection we note that defendants are by no means alone in

contending that placement in small community facilities is not appro-

priate for all mentally retarded persons. Recent decisions in Kentucky

Ass'n for Retarded Citizens v. Conn, §10 F. Supp. 1233, 1250 (W.D.

Ky. 1980), aff'd, 674 F.2d $82, 585 (6 Cir. 1982), and Garrity v. Gallen,

$22 F. Supp. 171, 198 (D.N.H. 1981), recognize the growing perception

among professionals in this field that placement in small group homes

in the community may prove neither the “least restrictive” nor the

safest alternative for some severely and profoundly retarded persons.

See also Diver, supra, 68 Va. L. Rev. at 62; Frohboese & Sales,

Parental Opposition to Deinstitutionalization: A Challenge in Need of

Attention and Resolution, 4 Law & Human Behavior | (1980).

APPENDIX B

Denial of Petition for

Rehearing, May 9, 1983

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United

States Court of Appeals, in and for the

Second Circuit, held at the United States

Courthouse, in the City of New York, on

the ninth day of May, one thousand nine

hundred and eighty-three.

NEW YORK STATE ASSOCI-

ATION FOR RETARDED

CHILDREN, INC., et al., $

and :

PATRICIA PARISI, et al., :

Plaintiffs- :

Appellees,

Vv. 82-7591

HUGH L. CAREY, indi-

vidually and as :

Governor of the State

of New York, et al., :

Defendants- $

Appellants.

UNITED STATES OF AMERICA,

Amicus

Curiae. :

B-2

A petition for rehearing

containing a suggestion that the action

be reheard in banc having been filed

herein by counsel for the plaintiffs-

appellees,

Upon consideration by the

panel that heard the appeal, it is

Ordered that said petition

for rehearing is DENIED.

It is further noted that the

suggestion for rehearing in banc has been

transmitted to the judges of the court in

regular active service and to any other

judge on the panel that heard the appeal

and that no such judge has requested that

a vote be taken thereon.

A. Daniel Fusaro, Clerk

by

Francis X. Gindhart,

Chief Deputy Clerk

APPENDIX C

Opinion & Order of the

District Court, April 28, 1982

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

NEW YORK STATE $

ASSOCIATION FOR

RETARDED CHILDREN, $

INC., et al.

and

PATRICIA PARISI,

et al., $

Plaintiffs, :

: 72 Civ. 356/357

-against- :

HUGH L. CAREY, :

individually and

as Governor of the :

State of New York,

et al., :

Defendants. :

UNITED STATES OF :

AMERICA,

Amicus Curiae.

Appearances:

For Plaintiffs:

NEW YORK CIVIL LIBERTIES UNION

84 Fifth Avenue

New York, N.Y. 10011

CHRISTOPHER A. HANSEN, ESQ.

ROBERT M. LEVY, ESQ.

DIANA T. TANAKA, ESQ.

Of Counsel

PAUL, WEISS, RIFKIND, WHARTON &

GARRISON, ESQS.

345 Park Avenue

New York, N.Y. 10154

JONATHAN D. SIEGFRIED, ESQ.

HELEN HERSHKOFF, ESQ.

ELIZABETH KOLTUN, ESQ.

Of Counsel

MORTON B. DINKER, ESQ.

THE LEGAL AID SOCIETY

11 Park Place

New York, N.Y. 10007

JAMES M. BESLITY, ESQ.

Of Counsel

HENRY WEINTRAUB, ESQ.

THE LEGAL AID SOCIETY

189 Montague Street

Brooklyn, N.Y. 11201

MURRAY 6B. SCHNEPS, ESQ.

MICHAEL S. LOTTMAN, ESQ.

299 Broadway

New York, N.Y. 10007

WALTER REDFIELD, ESQ.

1290 Avenue of the Americas

New York, N.Y. 10104

For Defendants:

LeBOEUF, LAMB, LEIBY & MacRAE, ESQS.

140 Broadway

New York, N.Y. 10005

TAYLOR R. BRIGGS, ESQ.

RICHARD C. COLE, ESQ.

KIM HOYT SPERDUTO, ESQ.

LAWRENCE POLLACK, ESQ.

JOY FEIGENBAUM, ESQ.

Of Counsel

HON. ROBERT ABRAMS

Attorney General of the State of

New York

Two World Trade Center

New York, N.Y. 10047

CAREN S. BRUTTEN, ESQ.

FREDERICK K. MEHLMAN, ESQ.

Of Counsel

Amicus Curiae: UNITED STATES OF

AMERICA

LEONARD RIESER, ESQ.

TIMOTHY COOK, ESQ.

TERISA E. CHAW, ESQ.

Of Counsel

Special Litigation Section

Civil Rights Division

U.S. Department of Justice

Washington, D.C. 20530

BARTELS, District Judge:

This is a motion by plaintiffs to

declare the defendants in non-compliance

C-4

with the 1975 Consent Judgment and to

appoint a Special Master, and a counter-

motion by the defendants to modify the

Consent Judgment and vacate the court's

Order of October 22, 1979.

In 1972 plaintiffs in this action

instituted a suit against the State of New

York alleging that living conditions and

treatment programs at Willowbrook State

School for the Mentally Retarded, now

known as Staten Island Developmental

Center, ("Willowbrook") violated their

constitutional and statutory rights and

seeking at the same time preliminary in-

junctive relief to restrict certain

abuses and to require improved care. In

April 1973 Judge Orrin G. Judd granted

relief to the plaintiffs by means of a

preliminary injunction against the defen-

dants directing certain enumerated items

C=-5

of relief in an attempt to correct

deficiencies in order to protect the

residents from serious physical harm.

NYSARC v. Rockefeller, 357 F. Supp. 752

(E.D.N.Y. 1973). Subsequently, the

United States of America, through its

Civil Rights Division, entered the case

as amicus curiae. Thereafter extensive

negotiations were had between the parties

and after the remaining points of conten-

tion were settled a consent judgment,

approved by the court, was entered in

April 1975. NYSARC v. Carey, 393 F.

Supp. 715 (E.D.N.Y. 1975).

The thrust of the Consent Judgment

provided that defendants would reduce

Willowbrook to an institution housing

no more than 250 residents by April 1,

1981, and that they would transfer class

members into community facilities of no

C-6

more than 10 or 15 beds, depending upon

the particular class member's level of

functioning. The Judgment also required

defendants to make extensive reforms at

Willowbrook with regard to environment,

staffing, programming, and various

types of therapies. The Agreement

included an Appendix A entitled "Steps,

Standards and Procedures" which delin-

eated in detail acceptable institutional

living conditions and community place-

ments, to which reference is hereby

made. As explicated in the Judgment:

[t]he steps, standards and

procedures contained in

Appendix "A" hereto are

not optimal or ideal stand-

ards, nor are they just

custodial standards. They

are based on the recognition

that retarded persons, regard-

less of the degree of handi-

capping conditions, are capable

of physical, intellectual, emo-

tional and social growth, and

upon the further recognition

that a certain level of affirma-

C-7

tive intervention and program-

ming is necessary if that capa-

bility for growth and develop-

ment is to be preserved and

regression prevented.

Subsequently, in October 1979,

Plaintiffs and defendants entered into

an agreement requiring the placement of

half of the multiply handicapped resi-

dents of Flower Fifth Avenue Hospital,

now known as Flower Hospital, into

community facilities of no more than 3

beds and half into residences of no more

than 6 beds.

In the six years since entry of the

Consent Judgment litigation between the

parties has revolved around questions

of interpretation, implementation and

enforcement of the Consent Judgment. On

several previous occasions the parties

have appeared before the court because

the defendant had failed to live up to

C-8

their obligations under the Consent

Judgment ./

The motions presently before the

court once again involve implementation

of the Consent Judgment. Plaintiffs

seek an order holding the defendants in

non-compliance with the Consent Judgment,

specifically those provisions of Appendix

A relating to environment (§§ B, R);

clothing (§ A(7)); programs and services

(§§ B(7), D( 1), (2) (5)- F(1), (8), G1),

(2), J(1), K(1), (2))3 staffing (§§ C(1),

(3), (7), (8), L(1))% nutrition (§ H);

and community placement (§§ A(1), V(2),

(3), (9)). They seek an order demanding

compliance, with all deliberate speed,

with the community placement provisions

of the Judgment, compliance with the

other provisions within six months, and

the appointment of a Special Master who

C-9

would monitor compliance and for whom the

defendants would be ordered to provide

necessary funding.

Simultaneously, defendants seek an

order pursuant to Rule 60(b) of the Fed-

eral Rules of Civil Procedure, modifying

§§ V(1), V(4), and V(7) of Appendix A of

the Consent Judgment and vacating the 3

bed/6 bed Order stipulated to and entered

in this action on October 22, 1979. The

proposed motion for modification would

eliminate the requirements that all class

members who are mildly retarded be placed

in residential facilities of no more than

15 beds, all those who are more than

mildly retarded be placed in residential

facilities of no more than 10 beds, and

that at least half of those class members

residing at Flower Hospital be placed in

community residences of no more than 3

C-10

residents and the remainder in facilities

of no more than 6 residents. Instead the

modification would permit defendants to

develop a range of community~baseec

facilities housing up to 50 residents.

Of a total original class size of

5343 Willowbrook residents, 1108 have

been placed in community residences of

the size mandated by the Consent Judg-

ment, 580 have been placed in family

care, 557 have died, and 730 have been

discharged from state supervision. Of

the remainder awaiting placement, 1369

live at Willowbrook (including the Karl

D. Warner complex) ,2/ and 999 have been

transferred from Willowbrook to other

institutions managed by the State or

Private agencies. Such institutions

include Brooklyn Developmental Center,

a 500-bed institution (including the

50-bed Williamsburg annex) which houses

C-11

383 class members: Bronx Developmental

Center, a 200-bed institution where 57

class members live; Manhattan Develop-

mental Center, in which 107 of its 150

residents are class members; and Bernard

Fineson Developmental Center, which

houses 288 class members and which is

comprised of three units, Corona, Howard

Beach, and Glen Oaks. United Cerebral

Palsy manages two facilities in which

class members reside: Nina Eaton Center,

a 48-bed facility which houses 46 class

members and Castle Hill School, a 53-bed

institution. In addition about 115

multiply-handicapped class members live

at Flower Hospital. The focus of the

plaintiffs' motion is living conditions

at Willowbrook, but evidence of living

conditions at the other above-named

institutions was also presented. The

defendants' proposed modification affects

C-12

class members in any institutional

3/

setting— including the above institu-

tions.

The Court has heard 25 days of

testimony on these two motions. Both

parties and amicus have called upon

an impressive array of experienced

experts and others. Thirty-nine wit-

nesses in all have testified. Plain-

tiffs called as expert witnesses Dr.

James Clements, Chairman of the Willow-

brook Review Panel, member of the Joint

Commission on Accreditation of Hospitals’

Council on Services for the Retarded and

Developmentally Disabled, past Director

of the Georgia Retardation Center and

past president of the American Associa-

tion on Mental Deficiency; Kathleen

Schwaninger, Assistant Commissioner for

Mental Retardation in the Commonwealth

of Massachusetts and former Executive

C-13

Director of the Willowbrook Review Panel;

Lyn Rucker, Executive Director of Region

V Mental Retardation Services in Lincoln,

Nebraska; and Gerald Provencal, Director

of the Macomb-Oakland Regional Center in

Mt. Clements, Michigan. 4/ Just as impor-

tant, the plaintiffs introduced photo-

graphs of the conditions they found when

they visited Willowbrook and related

institutions.

Experts testifying for defendants

included Dr. Richard Blanton, Associ-

ate Director of the Illinois Department

of Developmental Disabilities; Barbara

Blum, Commissioner, New York State

Department of Social Services and former

Director of the Manhattan Placement

Unit; Marc Brandt, Executive Director,

Sullivan County Association for Retarded

Children; Dr. Ella Curry, Director of

Willowbrook; Dr. Shervert Frazier, Pro-

C-14

fessor of Psychiatry at Harvard Univer-

sity and former Texas Commissioner of

Mental Retardation; Dr. Meredith Harris,

Director, Nina Eaton Center; Helen

Kaplan, Executive Director, Nassau

Chapter of New York State Association

for Retarded Children ("NYSARC"); Frank

Padaven, State Senator and Chairman of

the State Senate Committee on Mental

Hygiene; Dr. Sue Allen Warren, Professor

of Special Education at Boston Univer-

Sity; and Zygmond Slezak, Acting Com-

missioner, Office of Mental Retarda-

tion and Developmental Disabilities

("OMRDD" ).2/ Experts called by the

United States of America, amicus curiae,

included George Gray, architect; Dr.

Walter Hillabrant, psychologist; Brian

Lensink, Assistant Deputy Director of

the Arizona Department of Economic

Security in charge of Arizona programs

C-15

for the mentally retarded; Dr. Andrew

Lorincz, physician and Professor of

Medicine at the University of Alabama;

and Raymond Watts, Registered Sanitarian

and environmental health consultant.

Pretrial depositions and hundreds of

exhibits, including illustrative photo-

graphs, have been entered as part of

the record, and affidavits, briefs, and

memoranda of law have been submitted.

The record raises four main issues which

the court will address seriatim: (1)

Non-compliance with the Consent Judgment;

(2) appointment of a Special Master; (3)

modification of the Consent Judgment; and

(4) Vacation of the 3 bed/6 bed Order

of October 22, 1979.

I

The non-compliance charge against

the defendants involves a number of

C- 16

vital areas enumerated below with

respect to which the court, after due

consideration, has made the findings

set forth in the following subheadings.

Sanitation

Section B(3) of the Consent Judg-

ment requires that the living quarters

and program areas be kept clean, odor-

less and insect-free at all times. £/

Contrary to that provision, sanitation

at Willowbrook is totally unsatisfactory

and presents a serious health hazard to

the resident population. Of particular

concern is the filthy condition of the

kitchens and bathrooms. Both the main

kitchen, where the residents' food is

prepared, and the satellite kitchens,

where the residents' food is served,

are filthy and infested with rodents

and cockroaches. Cups, bowls,

C-17

Silverware. and pots and pans are

improperly cleaned and often caked with

food from past meals. Food is served to

residents at inappropriate temperatures

that encourage food spoilage and the

growth of microorganisms, and food

storage areas are dirty and foul-

smelling. (See, e.g., T. 2034-2089,

2091-92, 2095-96; P. Exs. 143, 146,

148).

Sanitation of the bathrooms in

virtually every residential building

at Willowbrook is grossly inadequate.

Human feces and urine commonly soil

bathroom floors, walls, toilets and

shower stalls. Non-operational and

unflushed toilets filled with human

excrement are frequent occurrences,

as are cracked and missing toilet

seats and bathrooms without toilet

tissue, towels and soap. Mold and

C-18

mildew, indicative of long-term neg-

lect, grow on many shower surfaces and

none of the shower areas are being

properly sanitized.// (See, e€.g.,

T. 90, 113, 127-130, 1311, 1850-51,

2124, 2133, 2181; P. Exs. 70A-2, 70A-3,

70A-14, 70C-167, 123, 153, 154, 156,

158).

These types of unsanitary condi-

tions permeate the residents' entire

living space. 2/ Residents, many of

whom are nonambulatory, must eat in

dining rooms infested with insects and

rodents, sit and lie on floors that are

dirty, not uncommonly with human excre-

ment, and sleep in bedrooms reeking of

urine. Lo/ Their clean clothes and

dirty laundry are intermingled, and

trash, food, and clothing litter the

floors. (See, e.g., T. 97-100, 116-

130, 2107, 2132-33, 4914, 4918; P. Exs.

C-19

1, 153, 154, 161, 165, 258, 70A-4,

70A-9).

Defendants have made some efforts

to improve sanitation. During her 14-

month tenure, Dr. Curry has closed six

buildings and increased in-service

training efforts. Clearly, however,

defendants have not done enough. The

evidence shows that during the last

two years at Willowbrook, sanitation

in the remaining buildings, rather than

improving, has steadily deteriorated.

(See, e.g., T. 109, 494, 3368-72,

5675).

Sanitation at other related

facilities where class members have

been transferred is not markedly better

than that at Willowbrook. The Bronx

Developmental Center has a serious

infestation problem, and bedrooms,

dining rooms and bathrooms there are

C=-20

dirty. At Brooklyn Developmental Cen-

ter the most serious sanitation prob-

lems result from its location next to

a dump. Smells from the dump waft over

the institution, debris floats onto the

grounds and flies swarm throughout the

buildings. Moreover, the residential

areas there are unclean. The level of

Sanitation in residential areas at Glen

Oaks and Nina Eaton Center is also

unsatisfactory. (See, e.g., T. 131-34,

151-52, 161, 500-502, 540, 1204-1209,

5813; P. Exs. 70A-15, 70OA-16, 70A-95,

70C-142, 70C-145, 82, 97, 98).

Maintenance-//

Part of the maintenance problems

at Willowbrook, a 50-year-old complex,

results from the fact that for years

virtually no capital was poured into

the physical plant, and until recently

C-21

no preventive maintenance measures were

taken. The most glaring maintenance

inadequacies, though, stem from present,

not past, neglect. For instance,

throughout the institution shower fix-

tures lack vacuum breakers which are

easy to install and necessary to pre-

vent the transmission of contaminated

water. Water control boxes are left

open, allowing residents access to the

control of the facility's water tem-

perature. Most of the sleeping areas

lack curtains, wall decorations, and

other personalizing touches. In almost

every building there are numerous exam-

ples of torn and broken furniture,

ripped and broken screens, missing

bathroom tiles, nonworking toilets and

walls with gaping holes. In many resi-

dential areas furniture is sparse and

the noise level piercing. (See, e.g.,

C-22

T. 312, 648, 1262, 1544, 2099, 2125-27,

5666, 5673; P. Exs. 70B-101, 160, 258).

According to the state's own audit-

ing teams, Willowbrook's maintenance

deficiencies are extensive. The March

1981 audit conducted by OMRDD's Audit

Compliance Task Force indicated that

the level of compliance with the Con-

sent Judgment's "physical environment"

requirements was 43.6%. Deficiencies

included lack of privacy in bedroom and

bathroom areas, poor lighting, a dearth

of decorations, curtains and furniture,

and broken water faucets. (P. Ex. 1).

Six months later the deficiencies, as

measured by the September 1981 audit

conducted by Willowbrook's Quality of

Life Committee, were even more wide-

spread. A greater number of areas

lacked decorations and bedspreads,

fewer soap dispensers were available,

C-23

and insects and rodents, reportedly

under control in March, infested 75% of

the buildings. in addition, there was

an absence of bathroom safety devices

in 68.75% of the buildings, 75% of the

buildings had windows and screens that

were dirty, broken, and in disrepair,

68.75% of the buildings provided

inadequate lighting and 62% had broken

sinks. (P. Ex. 253).

Maintenance at Brooklyn and Bronx

Developmental Centers, Glen Oaks and

Williamsburg presents a similar

scenario. The most common problems

are poorly maintained and nonworking

bathrooms, holes in the walls and

barren living spaces. Many of the

residents' rooms at Nina Eaton

Center are decorated, and it is a

pleasanter atmosphere, but there

too room repairs are not kept current.

C-24

(See, €.ge, Te 158-160, 175-81, 500-01,

536-43, 668, 722, 1077, 1126, 1598-99,

4936; P. Exs. 70A-17, 70A-22, 70A-33,

70A-35, 82, 98).

Clothing

It is overwhelmingly evident that

defendants have not fulfilled their

agreement to provide class members with

"clean, adequate and seasonally appro-

priate" clothing. +2/ Some residents

at Willowbrook are partially clothed,

others go nude, and many wear clothes

that are illfitting, badly torn and

Stained. Shoes are broken and torn,

and in winter many of the residents

are outfitted in summer attire. In

most of the residential buildings

clothing is inadequately stored and

sorted, residents are not provided

with individualized dress, and the

C-25

clothing supply is chronically short.

(See, O.ge, T. 218-225, 494-95, 508,

1819, 3249-3258, 3433-3439, 5666; P.

Exs. 70A-45, 70A-46, 70A-49, 70A-62,

70A-63, 70A-66, 70A-68, 135).

The insufficient supply of cloth-

ing has an adverse effect on residents'

programming. The court adopts the con-

clusions of Mary Sullivan, Manhattan

Borough Representative of the Consumer

Advisory Board ("CAB"), that a major

programming problem at Willowbrook is

residents not attending programming

because they have nothing to wear.

The court also accepts the testimony

of Albert Pfadt, the Administrator of

the Willowbrook toilet-training pro-

gram, that his efforts are seriously

hampered by the frequent unavailability

of clothing changes and illfitting

clothes that are pinned shut so resi-

C-26

dents cannot take off their clothes

independently.

Certain difficulties are endemic

to the population at Willowbrook .+2/

Some residents tear their clothing and

disrobe. Incontinent class members need

frequent changes, and a few with neu-

rological problems cannot be toilet-

trained. Most residents, though, can

be taught not to disrobe or rip their

clothes and most can be trained to use

the toilet. In any event, as Dr. Curry,

the Director of Willowbrook, acknowl-

edged, the task of providing enough

Clean, decent clothing to the popula-

tion at Willowbrook is not insurmount-

able. (T. 3260).24/ The fact that

a job is difficult does not excuse its

nonperformance.

Residents of the Brooklyn Develop-

mental Center, the Bronx Developmental

C-27

Center and Nina Eaton Center are also

improperly dressed. At the Bronx

Developmental Center there often is not

enough underwear, so residents go to

programs without it. Outer clothing is

in short supply, so residents either go

Out in public in inappropriate or frayed

clothing or have to remain on their

unit. For example, in January 1981 one

class member, J.D., missed participat-

ing in the New York State Special Olym-

pic Games because he lacked winter

clothing. (See, e.g., T. 217-218,

241, 521-22, 1117-1119, 1875-76; P.

Exs. 70A-56, 70A-57, 70A-59, 70A-60,

70C-141, 82, 132, 135).

Programming

Mentally retarded individuals,

even those severely and profoundly

retarded, are capable of growth. If

C-28

a mentally retarded individual is to

develop, though, he must be provided

with programming that is geared to meet

his individual needs at his own level of

development. To that end the Consent

Judgment requires the formulation of an

individual program plan for each class

member and the provision of six hours of

formal programming each weekday .1>/

There are four major program areas

at Willowbrook. In the Elizabeth

Connelly Center (Building 8) the lowest

functioning residents receive program-

ming in the areas of sensory stimuli,

body awareness, personal hygiene and

activities of daily living. Those

clients who do not need basic skills

training are taught conceptual skills

in the Education Building (Building 3).

In the Work Activity Center (Building

61) the highest functioning resi-

C-29

dent s+6/ work on contracts, in five

different work areas of varying dif-

ficulty, in exchange for compensation.

In addition, 39 residents who suffer

from both visual and aural deficiencies

participate in the Deaf-Blind Program

(Building 2), the goal of which is to

help them become as self-sufficient as

possible.

Although the Willowbrook adminis-

tration has constructed a commendable

framework in which to provide program-

ming, serious deficiencies exist in the

delivery of programs. Residents rarely

receive six hours of appropriate pro-

gramming. Often they arrive late at

the program area or do not arrive at all

because of lack of transportation or

clothing. At least five residents in

Building 21 do not attend any program-

ming outside of their residence, and

C-30

there is no indication that their resi-

dence provides them with any structured

activity. Even when residents do arrive

at the programs, they receive little

actual instruction. Residents sit idly,

walk about aimlessly, self-stimulate

and sleep. They are frequently left

unattended, and even when staff is

present, interaction between staff and

residents is minimal. While some pro-

gramming at Willowbrook, notably the

Deaf-Blind program, is first rate, pro-

gramming compliant with the Consent

Judgment is the exception rather than

the rule. (See, e.g., T. 259-60, 274-

75, 1416-25, 5533-43; P. Exs. 1, 70A-

78, 70A-80, 70D-158, 70D-160, 117, 118,

119, 123).

A contributing factor to the low

quality of programming at Willowbrook

is deficiencies in program design.

C-31

Defendants have been remiss in develop-

ing and implementing individual develop-

ment treatment plans, as prescribed by

the Consent Judgment. The individual

plans, developed at case conferences by

an interdisciplinary team, are dependent

upon written staff evaluations and staff

participation at the meetings. Written

evaluations are consistently missing,

and staff attendance at the conferences

is deplorably low. Because of

inadequate staff input, the interdisci-

Plinary team is unable to develop an

accurate assessment of clients' needs

and cannot establish effective program

goals. Often the resultant program

plans are neither comprehensive nor

accurate. They do not address the whole

range of the residents' needs, and they

prescribe goals that are inappropriate

Or have already been attained. Even

C-32

when program plans are up-to-date and

complete, direct care staff is often

unaware of what the treatment plan and

goals are and fails to implement the

program prescribed by the treatment com-

mittee.

While programming at Flower Hos-

pital and Nina Eaton Center appears to

be satisfactory, programming efforts at

the Bronx, Brooklyn, and Manhattan

Developmental Centers mirror those at

Willowbrook. (See, e.g., T. 528, 1459,

1870-72, 5688-89, 5706-07; P. Exs. 70-

C-151, 82, 98, 135).

Special Therapies+8/

Many Willowbrook residents diag-

nosed as needing recreational, occupa-

tional, physical, speech and psycholog-

ical therapy are not receiving these

services. Although a large number of

C-33

residents have serious behavior dis-

orders, no behavior modification pro-

gram was established at Willowbrook

until September 1981, and then it was

only made available to four residents.

Adaptive and positioning equipment is

critical for many Willowbrook class

members. If used correctly, it can

prevent the progression of such debili-

tating conditions as scoliosis, curva-

ture of the spine and other severe

orthopedic handicaps. If the equipment

is not used, though, or if it is mis-

used, individuals who require it can

suffer further deformities and can

develop acute medical problems. The

lack of and misuse of adaptive and

positioning equipment at Willowbrook

is widespread. Dr. Lorincz, a physi-

cian who toured Willowbrook for amicus,

testified that he did not see one

C-34

instance of appropriately used adaptive

equipment. The court adopts his char-

acterization of Willowbrook's misuse

of adaptive and positioning equipment

as a medical emergency. (See, e.g.,

Recreat ion2/

Life in the residential units

of Willowbrook, Bronx Developmental

Center, Brooklyn Developmental Center,

Manhattan Developmental Center, Nina

Eaton Center and Glen Oaks is sterile,

dreary and one of enforced idleness.

Contrary to the Consent Judgment's

requirement of two hours of recreation

daily, most class members, when not in

their program areas, have nothing to

do. There is virtually no recreation

equipment, toys or games on their units,

and very little organized leisure-time

C-35

activity occurs. In fact, the high

incidence of behavior problems among

institutionalized class members is

at least partially attributable to the

residents' long hours of idleness.

The residents' idleness is also

counterproductive to their learning of

new skills. In order for profoundly

and severely retarded individuals to

benefit from programming, the skills

they learn must be constantly reenforced.

Staff on residential units must support

and provide continuity for daytime pro-

gram efforts, such as teaching residents

to brush their teeth, to toilet and

dress themselves and to refrain from

self-abuse. Regrettably, however, on

none of the residential units does there

appear to be any carryover of daytime

skills training. (See, e.g., T. 1544,

C- 36

1821-22, 5629-30, 5545-46; P. Exs.

1, 128).

Nutrition20/

The Willowbrook diet card system,

established to ensure that residents who

require special diets receive them, is

not being properly administered. Most

residential buildings lack current diet

cards, and when they are available,

staff does not always consult them.

Consequently, residents who need special

diets do not consistently receive them.

At least one Willowbrook resident choked

to death as a result of being served an

improper aiet.21/

Only two residential buildings at

Willowbrook provide residents with

feeding programs, as prescribed by the

Consent Judgment. Moreover, the only

utensils given to most residents,

regardless of their functioning level,

C-37

are spoons, and often there are not

even enough of them to go around. The

Bronx Developmental Center, Brooklyn

Developmental Center and Nina Eaton

Center similarly fail to provide resi-

dents with feeding programs and ade-

gQuate utensils. (See, e.g., T. 538-40,

694, 1121-23, 5691-92, 5701, 5787; P.

Ex. 102).

Staffing Ratios

The Consent Judgment mandates mini-

mum staffing requirements for direct

care staff and mid-level supervisors .+4/

The aggregate number of staff employed

at Willowbrook is sufficient to comply

with the staffing requirements of the

Consent Judgment. Yet, defendants con-

sistently fail to provide class members

with the required level of supervision.

Part of the problem is lack of staff

C-38

training. lack of staff dedication, and

staff negligence. Even when enough

employees are on duty, residents are

frequently left unattended or attended

by fewer than the mandated number of

employees. Even when sufficient staff

members are present, they often ignore

residents, depriving class members of

the "appreciable and appropriate atten-

tion by direct care staff" as required

by the Consent Judgment. The difficulty

in terminating civil service employees

could be one explanation. Another ex-

planation is the failure of management

to provide direct care staff consistent

enough supervision. Moreover, because

of absenteeism and lateness, which are

chronic problems at Willowbrook, many

employees must work overtime. Working

long tours with severely retarded

clients creates a considerable strain

C-39

on employees and contributes to their

poor attention to residents' needs.

Staff deployment at Willowbrook is

also deficient. As defendants note,

Willowbrook is compliant with direct

care and mid-level staffing requirements

measured on a weekly and institution-

wide basis. The Consent Judgment, how-

ever, requires compliance by building.

Just because sufficient staff is on duty

on an institution-wide basis does not

mean that employees are properly deployed

to each building, so that all class

members receive adequate care. Moreover,

measuring compliance on a weekly basis is

misleading, and it does not adequately

further the Consent Judgment's goal of

providing class members with appropriate

care. If the institution has a shortage

of staff some days of the week and a

Surplus other days of the week - such as

C-40

often occurs on paydays - the average

for the week may come out even and the

days out-of-compliance may be hidden,

and the problem of understaffing ignored.

Measured on a daily, building-by-

building basis defendants do not con-

sistently provide class members with

the direct care and mid-level staffing

ratios mandated by the Consent Judgment.

Plaintiffs introduced a series of charts

showing defendants' level of non-com-

pliance for direct care staff for the

day and evening shifts at Willowbrook,

Bronx Developmental Center, Glen Oaks,

Brooklyn Developmental Center and the

Corona unit of the Bernard Fineson

Developmental Center and showing mid-

level staffing on the day and evening

shifts at Willowbrook and the Bronx

Developmental Center. (P. Ex. 61).

These charts show serious staff short-

C-41

ages. For example. out of a total

of 665 shifts on a building basis at

Willowbrook, on only 26 shifts were

all of the buildings in compliance.

The defendants challenged the

plaintiffs' findings of Willowbrook

direct care staffing deficiencies on

the ground that the underlying data,

the "Daily Compliance with Staffing

Ratios" forms, which were prepared by

Willowbrook staff, cannot be used to

measure staffing compliance unless

three adjustments are made. (1) the

factoring out of level of staffing

compliance in the so-called shared-

staff buildings, managed for the state

by United Cerebral Palsy; (2) an adjust-

ment of staffing requirements to account

for residents who are away from their

buildings, who are "on leave;" (3) an

adjustment for the availability on a

C-42

building-wide basis for staff members

assigned on a one-to-one basis to par-

ticular class members. James Walsh,

Willowbrook Deputy Director of Institu-

tional Administration, interpreted

Section C(4) of the Consent Judgment

as permitting that type of averaging.

That section provides for lower ratios

in certain living units within a build-

ing to provide higher staff-to-resident

ratios in another living unit in the

same building "provided that such

deviation is not regular, chronic or

permanent... ."

The court agrees that in order to

accurately measure Willowbrook's direct

care staffing levels, plaintiffs' charts

must be adjusted to account for residents

on leave. If residents are absent from

a building, naturally the number of staff

required in that building decreases pro-

C-43

portionately. The defendants' other

adjustments, though, clearly lack merit.

The first adjustment, that the staffing

deficiencies in the shared-staff build-

ings must be ignored, is invalid. Defend-

ants cannot avoid accountability under

the Consent Judgment by contracting for

services with private agencies. More-

over, in the buildings at Willowbrook

managed by United Cerebral Palsy, direct

care staff are state employees, and

although United Cerebral Palsy schedules

shifts, the state is responsible for

staff assignments there and for sending

the shared-staff buildings "pool" employ-

ees to cover staff shortages.

Defendants' contention that they

should not be penalized for providing

enriched, i.e., more intensive, staffing

than is required by the Consent Judgment

is also unpersuasive. As defendants

C-44

acknowledge, Willowbrook residents are

generally assigned one-to-one staffing

because they have severe behavior prob-

lems. Willowbrook's enriched staffing

program appears to the court to be a

diluted form of behavior modification

program prescribed by the Consent Judg-

ment. In any event, it is clear that

employees assigned to enriched staffing

are not available to supervise other

residents. The result of defendants'

Suggested adjustment to the staffing

requirements would suggest approval of

inadequate staffing for many class mem-

bers not on enriched staffing. Section

C-4 of the Consent Judgment does not

condone that type of statistical jug-

gling. Its purpose is merely to permit

defendants some flexibility in dealing

with unusual staffing demands that are

not "regular, chronic or permanent."

C-45

The one appropriate adjustment to

defendants' compliance forms - to com-

pensate for residents on leave - does

modify plaintiffs' claims. However,

even after making this adjustment, the

court must conclude that defendants

generally are not in compliance with

the Consent Judgment staffing require-

ments. In particular, on the evening

shift and on weekends few residents are

on leave, and the charts' showing of

consistent noncompliance with respect

thereto remains virtually unaltered.

For example, on the August 1, 1981 day

shift, which was a Saturday, the adjust-

ment for residents on leave does not

change staff requirements, as measured

by the plaintiffs' chart, in any build-

ing, except two, whose requirements are

reduced by one employee.

C-46

Accordingly, the direct care staff defi-

cit on that date is 27 as opposed to a

deficit of 29, as claimed by plaintiffs.

Defendants also challenge the mid-

level staffing deficits at Willowbrook as

submitted by plaintiffs. They contend

that plaintiffs should have counted on-

duty nurses as supervisors in order to

offset mid-level supervisory shortages.

Section C(7) of the Consent Judgment

does contemplate nurses serving as mid-

level supervisors under certain circum-

stances. Defendants' forms which plain-

tiffs utilized in preparing their charts

indicate those tours when a nurse is

so utilized. Since the plaintiffs did

count Willowbrook nurses as supervisors

when defendants' forms indicated that

that was their function, this objection

by defendants is groundless.

C-47

Another inadequacy in staffing is

the failure of the defendants to provide

class members with an adequate number of

case managers. On September 9, 1980 the

court issued an order requiring the

state to provide one case manager for

every 20 class members. The state has

not complied with this order. Eight

case managers in the Bronx with class

members on their caseload carry more

than 20 clients; in Manhattan one case

manager carries more than 20 clients

and. moreover, 9 class members have no

case manager: and in Queens County 9

case managers have caseloads greater

than 20. The state made no effort to

obtain a stay of this order but instead

flagrantly disregarded it until the

order was affirmed by the Court of

Appeals on June 30, 1981.

C-48

Based upon the foregoing, the court

finds non-compliance by the defendants

with the provisions of the Consent

Judgment above mentioned.

II

In 1975, when Judge Judd signed

the Consent Judgment, it was apparent

to all that some type of monitoring of

the state's obligations was necessary.

Accordingly, the parties agreed to the

appointment of a Review Panel (Consent

Judgment #4 9 et seq.). The record shows

that the progress made by the defendants

in the first four and a half years after

the entry of the 1975 Consent Judgment

was in no small degree due to the moni-

toring, reporting and recommendations

of the Review Panel. In 1979, however,

the New York State Legislature deleted

from the budget the funding provision

c-49

for the Review Panel in the Consent

Judgment and thereby for all intents

and purposes removed the Review Panel

from its monitoring position. Since

that time, as might have been expected,

conditions at Willowbrook have materi-

ally deteriorated. Consequently, the

crucial issue which is now presented to

the court is how can the court fashion

a remedy to enforce compliance with its

decree.

The court has always had the equity

power to fashion the relief necessary to

protect its judgment against future vio-

lations. Cooper v. Aaron, 358 U.S. 1

(1958); Brown v. Board of Education, 349

U.S. 294 (1955); Hart v. Community School

Board of Brooklyn, 383 F.Supp. 699, 755

(E.D.N.Y. 1974), aff'd, 512 F.2d 37 (2d

Cir. 1975). This power arises equally

from consent judgments as well as final

c-50

judgments following trials. Beloit

Culligan Soft Water Service, Inc. v.

Culligan, Inc., 274 F.2d 29 (7th Cir.

1960), Aspira v. Board of Education

of City of New York, 423 F.Supp. 647

(S.D.N.Y. 1976). As stated by this

Circuit: "(T]he district court [has]

not only the power but the duty to en-

force a settlement agreement which it

[has] approved..." Meetings & Expo-

sitions, Inc. v. Tandy Corporation, 490

F.2d 714, 717 (2d Cir. 1974). Accord-

ingly, plaintiffs now move for the

appointment of a special master to

guarantee future compliance with the

Consent Judgment.

Rule 53 of the Federal Rules of

Civil Procedure expressly authorizes

this procedure by the appointment of a

special master as an exception to the

general rule. Similar to the case at

C=-51

bar is Gary W. v. State of Louisiana

601 F.2d 240 (5th Cir. 1979), involving

the level of care the State of Louisiana

was providing its developmentally dis-

abled citizens who found themselves in

Texas institutions. In approving the

district court's subsequent appointment

of a Rule 53 special master, the court

remarked that the appointment of a

special master was not extraordinary,

citing many cases involving similar

facts and problems. Finally, the court

observed:

These proceedings have now been

pending for over four years and

a significant number of the

children involved still have

not been accorded the relief

ordered. These two unfortunate

facts belie the appellants'

claim that the District Court

abused its discretion in

ordering the appointment of

a Special Master.

Id. at 245. We have an almost identical

Situation here. Considering the past

C-32

violations of the Consent Judgment

there is more than ample precedent to

find exceptional circumstances justi-

fying the appointment of a special

master to protect the class members

from harm.

But the court need not rely solely

on Rule 53 for its equity power to pro-

vide itself with the appropriate instru-

ment to enforce its decree. In the

early case of Ex Parte Peterson, 253

U.S. 300, 312-13 (1920), the Supreme

Court, through Mr. Justice Brandeis,

pointed out that this power derives

from the courts'

inherent power to provide them-

selves with appropriate instru-

ments required for the perform-

ance of their duties...

and

to aid judges in the performance

of specific judicial duties, as

they may arise in the progress of

a cause. From the commence-

ment of our Government, it

has been exercised by the

federal courts, when sitting

in equity, by appointing,

either with or without the

consent of the parties,

special masters, auditors,

examiners and commissioners.

To the same effect is Schwimmer v.

United States, 232 F.2d 855, 865

(6th Cir.), eert. Genied, 352 U.S.

833 (1956), where the court said:

Beyond the provisions of

Rule 53, Federal Rules of

Civil Procedure, 28 U.S.C.A.,

for appointing and making

references to Masters, a

Federal District Court

has "the inherent power

to supply itself with

this instrument for the

administration of justice

when deemed by it essential.”

(Citations omitted. )

Consequently, either under Rule 53 or in

accordance with the court's inherent

power to provide equitable relief, this

court is able to appoint a special master

to ensure compliance with its judgment.

C-54

The defendants offer many argu-

ments why a special master should not

be appointed predicated upon (i) their

good faith and substantial performance;

(ii) impossibility of performance

because of changed conditions; (iii)

creation of adversary relationships;

(iv) duplication of efforts since

Willowbrook is already monitored by

fourteen separate agencies; and (v)

violation of established principles

of federalism.

The court has no doubt about the

good faith of the defendants in attempt-

ing to comply with the Judgment, but the

court does not find substantial perform-

ance. Good faith and efforts, however,

are no excuse for failure to comply

with provisions so necessary for the

protection of the handicapped clients.

Rozecki v. Gaughan, 459 F.2d 6, 8

C-55

(1st Cir. 1972); Gautreaux v. Chicago

Housing Authority, 384 F.Supp. 37, 38

(N.D. Ill. 1974). Defendants cite

Panitch v. State of Wisconsin, 451

F.Supp. 132, 133-34 (E.D. Wis. 1978),

in support of their contention. Panitch

presents an entirely different factual

pattern than the situation here. In

that case, involving an injunction

compelling education of handicaped

children, the School District had

eliminated the backlog of handicapped

students awaiting placement and also

reduced the number of such students

awaiting evaluation. In other words,

there was substantial improvement and

progress. In all events, such progress

and improvement does not exist in this

case. See Welsch v. Likins, 373 F.Supp.

487 (D.Minn. 1974); United States v.

Dothard, 373 F.Supp. 504 (M.D. Ala. 1974).

C-56

As discussed under heading III

below, performance is not impossible

becaue of changed conditions. The claim

of adversary relationships resulting

from the appointment of a special master

is simply not supported by evidence or

experience.

It is true that Willowbrook is now

monitored by fourteen different agencies,

five of which existed before the entry

of the Consent Judgment. The only two

bodies which perform any monitoring

against the decree, the Willowbrook

Quality of Life Monitors ("QLM") and

OMRDD's Consent Decree Office Audit

Compliance Task Force ("CDO") consist

entirely of defendants' employees. QLM

monitors only Willowbrook, not the other

facilities or homes, and CDO performs

its monitoring function only once a

year. Moreover, despite the existence

C-57

of these fourteen monitoring groups,

they have failed to adequately super-

vise or in any way enforce full compli-

ance with the Consent Judgment. What

is needed is an independent body for

compliance purposes which can orient

and co-ordinate the reports and programs

of the present agencies. In the suc-

cessful performance of his services the

special master would hasten the day

when the Consent Judgment will be fully

implemented. The role of the master

would be to act "as an arm and as the

eyes and ears of the court." Palmigiano

v. Garrahy, 443 F.Supp. 956, 986 (D.R.I.

1977). His duties would go beyond those

of the present monitoring agencies. As

a matter of fact, if the special master

were satisfied with the accuracy and

objectivity of the data now collected by

OMRDD and the other monitoring bodies,

C-58

there would be no necessity for him to

engage in their particular activities.

His task would be to integrate and

harmonize that data for the purpose of

implementing and enforcing compliance

with the Consent Judgment, a task which

none of the other bodies monitoring

Willowbrook and related facilities can

accomplish. Predicated upon her experi-

ence with a special master in Massachu-

setts, Commissioner Schwaninger recom-

mended the appointment of a special

master for the purpose of enabling the

New York Commissioner to "respond to

the needs of our mentally retarded popu-

lation in a more timely way." (T. 5822).

Finally, defendants charge that the

appointment of a special master under

these circumstances would violate certain

fuindamental precepts of federalism, thus

rendering such appointment unconstitu-

C-59

tional. This argument may be divided

into two contentions: the appointment

would unconstitutionally interfere with

New York State's right to direct its own

affairs; and a mandate to New York to

assume responsibility for compensating

such a master would unconstitutionally

interfere with New York's sovereign

right to allocate its own tax dollars.

As to the first part of the argu-

ment, Rule 53, as heretofore pointed

out, specifically authorizes the appoint-

ment of a special master and the cases

are clear that such powers of monitor-

ing by a special master are within the

limitations of Rule 53. Taylor v.

Perini, 413 F.Supp. 189 (N.D. Ohio 1976);

Costello v. Wainwright, 387 F.Supp. 324

(M.D. Fla. 1973), aff'd, 489 F.2d 1311

(Sth Cir. 1974). See Gary W. v. Louis-

iana, Supra; Amos v. Board of School

C-60

Directors of Ccity of Milwaukee, 408

F.Supp. 765 (E.D.Wis.), aff'd sub nom.

Armstrong v. Brennan, 539 F.2d 625 (7th

Cir. 1976), vacated on other grounds,

433 U.S. 672 (1977); Pennsylvania Ass'n

for Retarded Children v. Pennsylvania,

334 F.Supp. 1257 (E.D.Pa. 1971), modi-

fied, 343 F.Supp. 279 (1972). See also

Note, 91 Har.L.Rev. 428 (1977).

The court, of course, recognizes the

delicate balance between the judiciary,

Legislature and the Executive. Dimarzo

v. Cahill, 575 F.2d 15 (ist Circ. 1976).

Since the effect of the appointment of a

special master would be prospective, it

is not forbidden by the Eleventh Amend-

ment. In fact, since the defendants

have consented to this Judgment, it is

difficult to see how they can interpose

that bar. Indeed, Edelman v. Jordan,

415 U.S. 651, 667-68 (1974), recognizes

C-61

that such relief is available without a

violation of the Eleventh Amendment even

though the decree imposes financial bur-

dens and will have fiscal consequences

to a state treasury as the necessary

result of compliance. See Vecchione v.

Wohlgemuth, 558 F.2d 150, 158 (3d Cir.),

cert. denied, 434 U.S. 943 (1977). By

appointing a special master the court

does not control, manage or supervise

the operation of Willowbrook. It simply

seeks a tool by which it may monitor and

enforce the state's performance of its

obligations.

As for the second aspect of defen-

dants' challenge, the court is aware of

the fact that the specific allocation of

state resources among its conflicting

needs is a political matter to be

resolved by the Legislature. Jefferson

v. Hackney, 406 U.S. 535 (1972); New York

State Association for Retarded Children

v. Carey, 631 F.2d 162 (2d Cir. 1980),

Evans v. Buchanon, 582 F.2d 750 (3d Cir.

1978). It does not follow from this

principle, however, that plaintiffs'

constitutional rights or their right

to full compliance with a consent judg-

ment can be violated or ignored. If

compliance requires the expenditure of

funds the court thereby does not allo-

cate the state's resources. It is the

duty of the court to attempt to enforce

its judgments. There are innumerable

cases supporting the proposition that

permits the assessment of costs against

defendants for compensating a special

master. Milliken v. Bradley, 433 U.S.

267 (1977); Rhem v. Malcolm, 507 F.2d

333 (2d Cir. 1974); Welsch v. Likins,

C-63

Supra; Hart, Supra; Gary W., Supra.

Moreover, Rules 53 and 54, F.R.Civ.P.,

specifically authorize the assessment

of such costs against the defendants

in these circumstances.

The court has decided to appoint a

special master with full powers afforded

under Rule 53, F.R.Civ.P. The appoint-

ment will not permit the special master

to assume the operation of the Office

of Mental Retardation and Developmental

Disabilities nor to decide disputes

between the parties. However, the

master's efforts will be directed to

the development of a plan to eliminate

widespread violations of the Consent

Judgment at Willowbrook and related

facilities; to report periodically non-

compliance with the provisions of the

Consent Judgment; to assist in the

C-64

accomplishment of the community place-

ment provisions of the Consent Judgment;

and finally, to monitor the implementa-

tion of the provisions of the Consent

Judgment. Before such appointment, how-

ever, the court invites both parties to

submit on or before the 14th day of May,

1982, two (2) names each of eligible

persons for the appointment of a special

master and to file with the court a plan

suggesting the delineation of the duties

and obligations of the special master

and the funding necessary for his compen-

sation and for an adequate staff and an

adequately equipped office.

C-65

III

A

Defendants have moved for modifi-

cation of paragraphs V(1), V(4) and V(7)

of the Consent Judgment on the ground

that such modification is necessary in

order to realize the goal of community

placement for Willowbrook class members.

In support of their motion they rely on

Rule 60 of the Federal Rules of Civil

Procedure. Rule 60(b) provides that the

court may relieve a party from a final

judgment, order, or proceedings for the

reasons set forth in subdivisions (5) and

(6) as follows:

(5) the judgment has been

satisfied, released, or

discharged, or a prior judg-

ment upon which it is based

has been reversed or otherwise

vacated, or it is no longer

equitable that the judgment

should have prospective

application; or (6) any other

reason justifying relief from

the operation of the judgment.23/

C-66

Defendants claim that the above

sections of the Consent Judgment are no

longer adapted to accomplish their

purpose because of the housing shortage

in New York City and the other obstacles

mentioned by them which militate against

community placement of non-ambulatory,

non-self-preserving Willowbrook clients.

The issue is whether “it is no longer

equitable that the judgment should have

prospective application.”

The defendants' argument for modi-

fication is two-pronged. They contend,

first, that size limitation is not that

important a consideration for the Willow-

brook population and that class members

can be served as well - and in some cases

better - in facilities that accommodate

between 11 and 50 residents. Second,

they argue that the interplay of current

housing conditions in New York City with

C-67

the Consent Judgment's rigid size re-

strictions has caused Willowbrook class

members to remain in an institutional

environment an unnecessarily long time.

Consequently, they say, §§ V(4) and V(7)

24/

of the Consent Judgment— are not

properly adapted to accomplishing their

purpose of providing class members with

the least restrictive and most normal

living conditions possible, and they

should be abandoned.

We turn first to the argument

that facilities accommodating between 11

and 50 residents provide as good - and in

some instances better care - than the

smaller community facilities presently

mandated by the Consent Judgment and by

the 3 bed/6 bed Order. The thrust of

most of defendants' testimony was that

size is not a critical factor in deter-

mining the best community placement for

C-68

profoundly retarded persons. Professor

Sue Allen Warren expressed the opinion

that the compassion of staff, not the

size of a facility, is the significant

factor and that a mentally retarded

person's developmental needs can be cared

for as well in a 50-bed facility as ina

10-bed facility. In fact, in her opin-

ion, a larger facility has important

advantages: it can more easily obtain

the necessary professional staff, there

is less professional isolation, and

mentally retarded individuals there have

greater opportunities to develop friend-

ships than they do in small facilities.

Citing the work of Professor Landesman-

Dwyer, she concluded that there is not

enough clinical data to support the ef-

ficacy of the court's present size limi-

tations, and that a range of community-

based facilities should be developed.

C-69

Dr. Blanton stated that a range of

facilities housing up to 100 mentally

retarded individuals would be appropri-

ate. He testified that while size is one

factor to consider in developing commun-

ity placements, location, availability of

services and orientation of the community

are more important. Commissioner Slezak

concurred that a range of facilities

should be developed. He testified that

mental health practitioners should not

force individuals into small units

because of an illfounded preconception

that smaller units are less restrictive,

and that facilities larger than 10 beds

are particularly appropriate placements

for severely handicapped individuals who

require nursing care or who have special

disabilities such as behavior problems.

In his opinion, residences housing up to

50 individuals can be home-like and can

C-70

provide excellent care.

Ms. Blum agreed that a range of

facilities should be considered for

certain individuals. She continued that

for those who are multiply handicapped or

severely emotionally disturbed, both

small and moderate-sized facilities are

appropriate placements. Moreover,

because intermediate-sized facilities are

vastly superior to Willowbrook, diffi-

cult-to-place clients should be sent to

them rather than just left to deteriorate

at Willowbrook. Transitional placements

in intermediate-sized facilities are also

useful for assessing residents' abilities

and needs before their final placement.

Such assessments, she believes, cannot be

done as expeditiously in the community as

in intermediate-sized facilities, and they

are not done adequately at Willowbrock.

Marc Brandt also endorsed the view

C-71

that 35- and 50-bed facilities can be

very humane and therapeutic. He stated

that as transitional facilities they

provide excellent alternatives to the

institutionalized environment of Willow-

brook, and they are good permanent homes

for individuals who have such severe

medical problems that they need continu-

ous monitoring in a specialized facility.

Two of defendants' witnesses empha-

sized the medical barriers to placement

in small facilities. Dr. Philip Ziring

testified that the approximate 300

multiply handicapped residents at Willow-

brook and the 115 residents at Flower

Hospiral require 24-hour access to

medical experts. He opined that commun-

ities are not presently capable of

providing adequate medical care, and

therefore that multiply handicapped class

members should not reside in facilities

C-72

of 10 beds or fewer. Dr. Shervert

Frazier agreed. Focusing on Flower

Hospital residents, he testified that

they have special needs that require

immediate access to trained medical

personnel. To justify the continuous

presence of experts, physicians and

therapists at any given facility, he

believes, there must be a "critical mass"

of disabled individuals, which a facility

of 50 beds, but not a residence of 10

beds, can provide.

Experts for plaintiffs and amicus

disagreed sharply with defendants. They

testified that the size of a residence is

the most critical factor in ensuring the

growth and development of Willowbrook

class members and that even individuals

with behavior problems and medical

disabilities benefit from placement in

facilities of 10 residents or fewer. The

C-73

reason size is so important, they assert-

ed, is because of the severe developmen-

tal handicap of class members. Severely

and profoundly retarded individuals, who

comprise 85-90% of the Willowbrook

population awaiting placement, have

developmental levels between that of an

infant and a two-year old. Commissioner

Schwaninger, Dr. Clements and Commis-

sioner Lensink contended that because of

the class members' limited intelligence

they can develop only if their program-

ming and care are extremely consistent.

Commissioner Schwaninger explained that

the development of one or two close

emotional relationships is vital for

these individuals, for people who are so

profoundly retarded start developing and

growing at the basic level of emotional

relationship. She added that although,

theoretically, in a 35- or 50-bed facil-

C-74

ity, one staff person could be assigned

permanently to 4 or 5 residents and a

close emotional relationship could

develop, because of the sheer demands of

numbers, that does not occur.

Dr. Clements emphasized that

consistency of programming is vital for

these clients. The larger the facility

the larger the number of employees who

have to become totally familiar with an

individual's program in order to deliver

it in a consistent manner and the less

likely appropriate programming will

occur. Commissioner Lensink added that

profoundly retarded individuals have a

great deal of difficulty generalizing and

intergating new skills. Consequently, in

order for them to learn they must be in

a small setting where they do not have to

contend with a distracting panoply of

activity. Small community residences are

C-75

also better at reinforcing basic skills,

such as tooth brushing, in an appropriate

place, at an appropriate time, and with

the undistracted attention of staff, so

that the retarded individual can truly

grasp what he is learning.

Barbara Gacek, who runs six small

group homes and two satellites, agreed

that the type of individualized program

necessary for the severely retarded can

best be accomplished in a facility for 10

residents. She testified:

We really feel that the small

Placement of ten is ideal to

create a home-like environment

for these children, to person-

alize their individual atten-

tion, to allow the staff to

know each client, not just as

a name but as a person with

individual likes and dislikes,

feelings and idiosyncracies,

so if in our concept you are

increasing the numbers, you

are decreasing the ability to

provide that kind of philoso-

phy....

One of the things that we are

C-76

very insistent on is that our

children's mental age is at

best between 12 months and 3

years. They are, therefore,

on a preconcrete or concrete

level of development. If you

are going to teach a skill you

are going to have to teach it

in the appropriate place at

the appropriate time. The

finger painting is, as an

example, you cannot do finger

painting in a dining room at

4:00 and then expect the

children at 5:00 not to finger

paint with their chocolate

pudding. They can't make that

kind of an association. You

have to make sure that the

arts and crafts, every other

skill, is done in the appro-

priate place.

Witnesses for plaintiffs and

amicus agreed that small settings are

particularly important for class members

with behavior problems, for their prob-

lems are aggravated by larger groupings.

They also challenged defendants' asser-

tion that class members with medical

problems cannot be placed in small

community residences. Dr. Lorincz

C-77

testified that less than a dozen Willow-

brook residents needed hospital-style

care. He explained that while multiply

handicapped residents at Willowbrook are

physically dependent, they are medically

Stable, and if staff has been trained to

cope with their handicaps, these indi-

viduals' needs can be better met in a

small group home than in a 20- or 50-bed

facility. Lyn Rucker, who toured Flower

Hospital, echoed his testimony, and

Stated that she saw only four Flower

Hospital residents who needed long-term

placement in a hospital and for whom a

small community placement might be

inappropriate. Commissioner Schwaninger,

Commissioner Lensink, Lyn Rucker, and

Gerald Provencal all testified that as

directors of state community placement

efforts, they had placed physically

handicapped clients with the same types

C-78

and degrees of handicapping conditions as

those residents at Willowbrook and Flower

Hospital into the community.

After serious consideration of all

the evidence the court is persuaded by

the plaintiffs' witnesses and is con-

vinced that the needs of the Willowbrook

class members are better met in small

group homes than in facilities ranging in

size from 11 to 50 beds. It should be

noted that this conclusion is not the

first determination in this case of the

most appropriate placement for these

individuals. After three years of

litigation both plaintiffs and defendants

agreed in 1975 that the objectives of

integration and normalization were best

accomplished for profoundly and severely

retarded individuals by placement into

facilities of 10 beds or fewer. Plain-

tiffs, as well as defendants, made

C-79

concessions to obtain this agreement,

which Judge Judd signed as a Consent

Judgment. Then, in 1977 this court

disapproved establishing Bronx Develop-

mental Center as a transitional placement

for class members, and in 1978, after a

hearing, the defendants once again agreed

with plaintiffs that small placements are

important for the retarded, in that

instance for the 115 multiply handicapped

residents at Flower Hospital.

The thrust of defendants' current

argument seems to be either that profes-

sional knowledge has changed or that

practical experience has shown that the

qualilty of care is the same in facili-

ties sized from 1 to 50 residents, with

the exception that for certain individ-

uals, facilities larger than 10 beds are

even better. Defendants have not demon-

Strated that professional opinion dis-

C-80

counts size as an important factor in

developing quality community placements.

On the contrary, those experts with

direct experience in placing clients

Similar to Willowbrook Class members -

including defendants' witness Dr. Blanton

- concur that the trend throughout the

country is toward smaller residences.

It is true, as defendants point out, that

from 1960-1970 Scandinavia developed

numerous 40-60 bed facilities, but the

result of that experience has been that

professionals there are unhappy with the

care provided in those facilities and

want to replace them with smaller resi-

dences.22/

It is clear to the Court that an

essential purpose ofthe Consent Judgment,

placement in small community facilities,

is still an important goal. This is

because residents in small community

C-81

residents receive the type of individ-

ualized and consistent care necessary for

them to develop to their full potential

and because there they benefit from a

setting that best approximates the way

most non-retarded people live. The

upward limit of 10 is based upon exper-

ience and embodies the parties' agreement

as the best way to ensure that community

facilities will provide a nurturing home-

like environment.

The evidence clearly demonstrates

that institutions larger than 10 beds do

not provide class members with as good

care and as nromalized an environment as

do homes designed for 10 residents or

fewer. Witnesses for both plaintiffs and

defendants agree that the small group

homes presently operating in New York

State provide class members with excel-

lent care. The evidence shows that the

C-82

care provided in larger facilities, like

Nina Eaton Center, Sullivan County ARC,

Glen Oaks and Williamsburg, is non-indi-

vidualized and regimented. In fact, as

demonstrated above, most of these facil-

ities fail, in important respects, to

provide class members with the most basic

services mandated by the Consent Judgment.

In addition, the evidence shows

that group homes of 10 or fewer are

better integrated into the community than

facilities larger than 10. The rationale

of the Consent Judgment's requirement

that class members shall move from

"segregated from the community to inte-

grated with the community living and

programming" is that retarded individuals

model their behavior more appropriately

from the example of and through access to

nonretarded individuals and they learn

more readily and develop more fully from

C-83

exposure to normal everyday living.

Residents in group homes spend more time

in the community than do residents in

larger facilities. For example, in

contrast to residents in small group

homes, who do out to the community for

programming on a daily basis, only two of

the 35 Sullivan County ARC residents go

out for programming and only 12 of the 48

Nina Eaton residents program outside of

ths institution.

By the same token, the larger the

facility the less likely it is that

residents will become part of the commun-

ity and will be accepted by their neigh-

bors. Larger community facilities

exacerbate community opposition to and

fear of the retarded. This is because

neighbors have more difficulty adjusting

to a large group of individuals who

appear to be different, and have more

C-84

difficulty in breaking down stereotypes

in order to see these residents as

individuals who happen to be retarded.

In other words, their retardation contin-

ues to stigmatize residents in larger

facilities, which can affect the way they

view themselves, and the way neighbors,

staff, and even their familities, treat

them.

Although the level of care at

certain of the moderate-sized institu-

tions is superior to that presently

provided at Willowbrook, it is still

inadvisable and unwise to develop these

facilities as transitional placements.

Four years ago the parties fully liti-

gated the wisdom of developing transi-

tional facilities when the state proposed

to use the Bronx Developmental Center for

such a purpose. At that time this court

concluded that such a transitional

C-85

placement would simply delay community

placement and frustrate one of the chief

Purposes of the Consent Judgment.

(Order, June 10, 1977). Experience since

then has re-enforced that conclusion.

Class members who were transferred to the

Bronx Development Center, pursuant to

Parental approval, were promised that

they would be placed in the community

within six to eight months. Of the 93

individuals placed in the Bronx Develop-

mental Center since 1977, 63 are still

there and one has diea,26/ The

defendants' additional arguments in favor

of transitional placements - that certain

individuals should acquire skills in a

moderate sized facility or should be

tested in such a facility before they are

placed in small residences - are unper-

Suasive. The evidence shows that the

same skills can be taught just as well,

C-86

if not better, in group homes as in

larger facilities. Because class members

have great difficulty generalizing skills

they have learned in one environment to

apply them in a different environment,

placement in a transitional facililty

may, in fact, retard their development.

Defendants have failed to show that

the special needs of any group of class

members cannot be best served in facili-

ties of 10 beds or fewer. Their main

argument is that approximately 400

persons, who constitute about 17% of the

class members still residing in institu-

tions, cannot be placed because of severe

medical problems necessitating special

placement arrangements. Defendants have

not offered any individualized medical

evaluations of these class members to

justify this statement. Indeed, they

concede that no such assessments have

C-87

7/

been done. Rather they make sweep-

ing unsupported generalizations of the

medical needs of all the multiply handi-

capped persons at Willowbrook and at

Flower Hospital.

The facts show, however, that

almost all of these clients are not

precluded from placement in small com-

Munity settings. Many of the multiply

handicapped residents at Willowbrook are

so classified because of physical handi-

caps, such as blindness, epilepsy, non-

ambulation or deafness. As defendants

admitted, class members with these types

of physical handicaps already reside in

the community. Almost all of the other

medically involved residents have medical

conditions that can be controlled in a

community setting. Common complications

are seizures, cardiac problems, scolio-

sis, contractures, cerebral palsy,

C-88

chewing and swallowing difficulties and

respiratory problems. As defendants

acknowledge, persons with similar medical

problems have been successfully placed in

group homes in New York, as well as in

other states.

The court recognizes that there are

class members who, like anyone else, may

need hospitalization from time to time or

who, because of an illness or medical

complication, may need longterm hospital

care. Dr. Lorincz identified less than a

dozen of such individuals at Willowbrook,

and the Deputy Director of Willowbrook

agreed than only a “handful” of residents

were unsuited for community placement.

Lyn Rucker saw four individuals in that

category at Flower Hospital, and Dr.

Kugei, the Director of Flower Hospital,

Opined that perhaps fifteen Flower

Hospital clients should not be placed.

C-89

It is a huge and unwarranted leap,

however, to conclude that unspecified

medical complications that may preclude

immediate placement of a few individuals

should justify defendants' sweeping

modification of placements for all 2400

institutionalized class members.

From the testimony, the court

concludes that the overwhelming percent-

age of multiply handicapped clients who

are not in need of hospitalization would

not benefit from placement in moderate

sized facilities instead of community

group homes of 10 or fewer. Their spe-

cific medical needs can be met just as

well in the community. Often, as Dr.

Lorincz testified, their medical needs

can be met relatively easily by training

direct care staff or by providing the

home with adaptive equipment. Some

clients need regular visitation by

c-90

medical personnel, and in a few limited

cases the provision of staff with medical

qualifications. In light of the better

care and better staff accountability in

small group homes and the clients'

greater opportunity there for enriched

living experiences, the multiply handi-

capped clients should be placed in small

residential settings.

Individuals with behavior problems

including violent and self-abusive

clients and those who chronically run

away from home, can also benefit from

placement in small community settings.

Providers in New York, as well as pro-

viders in other states, routinely place

these clients in the comunity. In fact,

these types of clients are better served

in small community settings, for staff

there can give them more concentrated

attention, and their problems are not

C-91

further aggravated by their being kept in

large groupings. Intensive behavior

modification programs, as illustrated by

Lyn Rucker's videotape of such a program

in Nebraska, can be set up very appro-

priately in a community setting.

We address the defendants' second

argument. They claim that the scarcity

of available property in New York City

makes the task of developing enough

community placements, as currently

defined by the Consent Judgment, over-

whelmingly difficult, if not impossible,

and that the pace of community placement

is therefore unconscionably slow. It is

the obligation of the Facilities Devel-

opment Corporation ("FDC") and the New

York City County Services Group of OMRDD

to search for property that OMRDD can

acquire, lease, or on which OMRDD can

construct facilities. As a consequence

C-92

of the extreme housing shortage in New

York City, the available sites these

organizations have been able to find for

class members have dropped markedly. In

the past three years OMRDD has opened

only 131 of the 262 sites it had planned

for New York City. Defendants point out

that at the current rate of placement,

community placement of remaining class

members will take twenty years. They are

bold enough to assert that under the

present circumstances Section V(4) of the

Consent Judgment has become an “instru-

ment of wrong."

Upon this point defendants contend

that the search for community residences

for non-ambulatory non-self-preserving

class members has been particularly dif-

ficult. Most of the state's community

residences are constituted as intermed-

iate care facilities for the mentally

C-93

retarded ("ICF/MR's") under Title XIX of

the Social Security Act of 1935, as

amended, 42 U.S.C. § 1396 ("Medicaid

program"). Under the Medicaid program

the federal ~*.ernment pays 50% of the

cost for community residences and the

State and/or locality pays the balance.

The difficulty is that in order to obtain

federal funds, community residences with

less than 15 beds, housing any individual

28/

incapable of self preservation,— must

meet the stringent requirements of the

institutional section of the National

Fire Protection Association Life Safety

Code. Most apartments and homes are not

designed to house these types of individ-

uals, and accordingly most small resi-

dences do not meet the stringent insti-

tutional code standards. According to

the defendants, the FDC's search for

facilities of 10 or fewer beds for the

C-94

non-ambulatory non-self-preserving

population therefore has been routinely

unsuccessful. Although all facilities

that house more than 15 individuals must

also meet the stringent institutional

code requirements, regardless of the

capacities of the residents, the defend-

ants contend that the larger facilities

are more likely to be compliant with code

standards.

Additional difficulties in placing

class members cited by defendants are

community opposition and restrictions

imposed by New York Mental Hygiene Law

§ 41.34 (McKinney Supp. 1981-82), common-

ly known as the "“Padavan Law." Many

neighborhoods oppose the development of

community facilities for the retarded

because of unfounded fears of child

safety and a possible negative impact on

local property values. Expression of

C-95

these fears has caused OMRDD to lose

several sites already acquired. The

Padavan Law provides a mechanism by which

communities can voice opposition to

community facilities of 14 residents or

fewer, first via Community Planning

Boards, then to the Commissioner of OMRDD

and finally in the state courts. While

the defendants acknowledge that the law

is helpful in providing a mechanism for

dealing with community resistence, they

complain that the procedures outlined in

the Law further slow the time-consuming

process that the state undergoes in

opening each community facility .22/

The court agrees with their complaint,

but notes that the Padavan Law is a

self-imposed delay.

The court likewise takes judicial

notice of the current housing shortage in

New York City and recognizes that defend-

C-96

ants have recently encountered some

difficulties in obtaining sites because

of that shortage. A modification of the

time schedule for community placement to

account more realistically for impedi-

ments to placement is warranted. Accord-

ingly, the court will extend the deadline

for transferring Willowbrook class

members to community facilities from

April 1, 1981 to April 1, 1985.

The effect of the housing shortage

has not been as devastating as defendants

claim, however, and in part defendants

have brought their difficulties upon

themselves. Consequently, current

circumstances do not present such hard-

ship as would warrant modifying the

Consent Judgment's 10-bed/15-bed commun-

ity placement size limitation.

Defendants have introduced no

evidence to show that the housing short-

C-97

age in New York City is a permanent

impediment. In fact, the only evidence

submitted suggests either that the

housing shortage is easing somewhat or

that OMRDD is already managing to over-

come its effects. In the past fiscal

year OMRDD located only 28 residences.

In this year 57 new community residences

designed to accommodate approximately 450

persons will become available in the New

York City area alone, and other 88 units,

housing approximately 700 persons, are

anticipated for fiscal year 1982-83. For

the first time in the New York City area,

construction of new group homes on vacant

sites, which is not necessarily more

expensive or time-consuming than leasing

or acquiring existing facilities, is

being tried by defendants. They have

begun as program to construction 10-bed

group homes for non-self-preserving

C-98

individuals, which will accommodate at

least 80-100 residents and possibly as

many as 170-180. Defendants acknowledge

that the program can and should be

expanded. Moreover, the housing shortage

is not as far-reaching as is claimed.

According to past-Commissioner James

Introne there are enough or nearly enough

residential sites "in the pipeline” to

meet the court's community placement

requirements in Staten Island and Brook-

lyn and probably enough in Queens. (T.

2781). The only real crunch in housing

is located in Manhattan and the Bronx

which the defendants could alleviate, as

discussed infra, by relaxation of the

state's "County of Origin" rule. The

defendants have also introduced no

evidence to show that they cannot obtain

sites for self-preserving clients, who

under the Medicaid program do not require

C-99

community residences meeting the insti-

tutional Life Safety Code. In fact,

Commissioner Introne acknowledged that

housing is available for these individ-

ual. (T. 2780-81).

It seems clear that the shortage

of sites does not result solely, or even

primarily, from the Consent Judgment's

size limitation. To a significant extent

defendants have unnecessarily created

their own obstacles to placement as

outlined below.

1. Creation of unnecessary size

prescriptions. Defendants have limited

the focus of their search to houses and

apartments capable of accommodating 8-10

clients, concededly much more difficult

to find than properties in the 4-6 bed

range.

2. Failure to hire sufficient

site selection staff. Defendants have

C-100

only two full-time site searchers for all

of New York City. Hiring only two

sire-searchers is not a concerted enough

effort to conclude that appropriate sites

cannot be found, considering that two

years ago for a brief period defendants

hired six site searchers.

3. Failure to explore adequately

the possibility of an equivalency system

as a method of procuring funds for resi-

dences for non-self-preserving clients.

Defendants claim that the population must

difficult to place is the non-self-pre-

serving. In light of the significance

they attach to this assertion, the court

is disappointed that defendants have

failed to identify the number of non-

self-preserving clients remaining to be

placed .22/ However, based on the

severity of retardation and the serious

physical handicaps of many class members,

C-101

the court is willing to accept the

defendants' claim that the number of

institutionalized non-self-preserving

class members is large. It does not

follow, though, that the Consent Judg-

ment's size limitation blocks these

individuals' placement. The National

Bureau of Standards of the United States

Department of Commerce has developed a

fire safety equivalency system for use

in group homes as an alternative to the

more rigid proscriptions of the National

Life Safety Code. Instead of automatic-

ally applying the strict institutional

code to residences housing non-self-pre-

serving clients, the equivalency system

takes into account the characteristics of

Clients housed in the residence -- for

instance, the mix of non-ambulatory and

ambulatory clients -- and the response

capability of staff. The equivalency

C-102

system is available for New York State to

adopt, with or without any changes the

state may believe appropriate, and after

obtaining the approval of the Department

of Health and Human Services, to utilize

for certification of Medicaid-funded

facilities. The importance of this

system is that its use permits certifi-

cation of a greater number of facilities

for non-self-preserving clients.

The defendants maintain that they

are interested in the possibility of

using the equivalency system, but they

assert they cannot use it at the present

time and consequently are using a more

limited "waiver" system. Even assuming

that defendants are correct, their

contention that the Life Safety Code

presents a permanent impediment to

developing group homes is erroneous. The

most that can be said for this argument

C-103

is that the Code presents a temporary

stumbling block and no more. Therefore,

modification of the Judgment on this

ground would be premature until the

defendants have fully explored the

usefulness of the equivalency system.

Even without the equivalency system,

Medicaid-certification of group homes for

non-self-preserving clients is not

impossible. In a survey defendants

conducted for United Cerebral Palsy, they

were able to certify approximately 64 of

90 3-bed apartments. Moreover, as

defendants concede, a construction

Program is a viable alternative, and they

are able to construct apartments for

non-self-preserving residents that pass

muster.

4. Failure to consider alterna-

tives to Medicaid funding. Defefndants'

concerns about Medicaid requirements are

C-104

primarily financial. The Life Safety

Code applies only to facilities federally

funded. If defendants allocated certain

State funds to cover the cost of facili-

ties for non-self-preserving clients,

they could develop their own equivalency

system that would not need federal

approval.

Surprisingly enough, defendants

were unaware of other avenues of federal

Support besides Medicaid funding. They

did not know that federal funds are

available under § 2176 of the Omnibus

Budget and Reconciliation Act of 1981, 42

U.S.C. § 1396 n(c), to provide for

personal care, case management, home

habilitation, respite care and other

services for severely handicapped clients

in virtually any community setting

provided that those clients would need an

ICF/MR level of care without such ser-

C-105

vices. For example, these funds could be

used to expand the state's family care

31/

program.—

5. Failure to relax the State's

"County of Origin" Rule. OMRDD operates

under a self-imposed "County of Origin"

rule which mandates that clients will

only be placed in the borough or county

from which they were originally committed

to Willowbrook. Although the rule has

the salutory effect of dissipating

community opposition to placement,

relaxation of the rule, particularly for

clients originally from Manhattan and the

Bronx, seems imperative. Placement in

these boroughs is much more difficult

than in other areas in the state, and the

"County of Origin" rule makes no intrin-

sic sense for many class members, as for

example, non-correspondent clients (those

who have no active family members to

C-106

represent their interest) or those whose

family members have moved from the area

or are willing to have them placed further

away in return for better care. While

community opposition is a problem that

must be faced, the court does not believe

the opposition is sufficiently pervasive

to preclude placement of Bronx and

Manhattan class members into areas where

there has been no substantial difficulty

in extablishing community residences.

Relaxation of the "County of Origin"

rule, like the other untried alterna-

tives, should be attempted before any

drastic modification of the present

Judgment.

Costs of community placement are

not an issue here. Although defendants

seem to emphasize costs in support of

their claim, it is sufficient to point

out that the defendants have failed to

C-107

show that the cost of placement in

facilities with 10 beds or fewer is

unreasonable or burdensome. In fact,

Commissioner Slezak acknowledged that

cost is not a problem confronting OMRDD

in developing community placement for

class members. Moreover, it has been

established that community placement in

either size facility is cheaper than

keeping class members in institutions.

B

In view of the evidence adduced,

the legal requirements for the modifi-

cation of the Consent Judgment, as

requested by the defendants, simply do

not exist. The standard for modification

is a finding of changed and unforeseen

conditions creating a grievous wrong.

The leading authority is United States v.

Swift & Co., 286 U.S. 108 (1983). In

C-108

that case the defendants sought a modifi-

cation of an injunction prohibiting them

in an antitrust suit from engaging in

the sale of mea* or groceries. The modi-

fication would have permitted the compan-

ies to re-enter the grocery business.

Mr. Justice Cardozo, in reversing the

lower court's order granting the modifi-

cation, said:

No doubt the defendants will

be better off if the injunc-

tion is relaxed, but they are

not suffering hardship so

extreme and unexpected as to

justify us in saying that they

are the victims of oppression.

Nothing less than a clear

showing of grievous wrong

evoked by new and unforeseen

conditions should lead us to

change what was decreed after

years of litigation with the

consent of all concerned.

Id. at 119. And again:

What was then solemnly

adjudged as a final composition

of an historic litigation will

not lightly be undone at the

suit of the offenders, and the

composition held for nothing.

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Id. at 120. Under similar circumstances

the Court reaffirmed the teaching of

Swift in United States v. United Shoe

Machinery Corp., 391 U.S. 244, 248

(1968), where it said:

a decree may be changed upon

an appropriate showing, ...

[but] that it may not be

changed in the interests of

the defendants if the purposes

of the litigation as incorpo-

rated in the decree ... have

not been fully achieved.

Subsequently, in 1977, the Second Circuit,

citing Swift, held that to succeed the

movant must show that the decree is not

properly adapted to accomplish its

purpose and "that under no circumstances

can a constitutionally valid plan be

wrong" from the decree. Chance v. Board

of Examiners, 561 F.2d 1079, 1086 (2d

Cir. 1977). If would seem to be elemen-

tary that a party cannot show changed

conditions created by his own misconduct,

C-110

or by a change in its own theory or

thinking as justifying modification. The

Third Circuit said in Mayberry v.

Maroney, 558 F.2d 1159, 1163 (3d Cir.

1977):

The Commonwealth may not now

artificially create its own

"changed circumstances," and

thus relieve itself from a

free, calculated and deliberate

choice, by offering a substi-

tute remedy which provides a

lesser safeguard against

the injuries complained of on

behalf of the class. Obviously

this alternative remedy would

be more convenient for the

Commonwealth.

Nor have the defendants, as suggested by

them, shown an impossibility of perform-

ance in support of their claims. Final-

ly, as stated in Ackerman v. United

States, 340 U.S. 193, 198 (1950), a party

to a judgment cannot be relieved

because hindsight seems to

indicate to [it] that [its]

decision ... was probably

wrong. ... There must be an

end to litigation someday, and

C-111

free, calculated, deliberate

choices are not to be relieved

from.

The court concludes that the

defendants have failed to show excep-

tional circumstances or any grievous

wrong as a basis for relief. Conse-

quently, the motion for modification of

the Consent Judgment will be denied.

IV

Closely allied to their motion to

modify the Consent Judgment is the

defendants' motion to vacate this court's

Order of October 22, 1979, which, in

relevant part, reads as follows:

that the defendants shall

place the Gouverneur transfer-

ees presently residing at

Flower Fifth Avenue Hospital in

the community in residential

facilities of no more than six

(6) residents each; and it is

further

ORDERED, that commencing Sep-

tember 11, 1979, at least

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one-half (1/2) of all Gouver-

neur transferees residing at

Flower Fifth Avenue Hospital

who are placed in the commun-

ity shall be placed in resi-

dential facilities of no more

than three (3) residents each;

and it is further

ORDERED, that this Order shall

be re-evaluated by the parties

not later than September 11,

1980, with respect to its

appropriateness for and effects

upon said Gouverneur transferees ...

Approximately two and a half years

later 110 to 115 class members still

remain at the Flower Hospital and only 26

have been moved to valid community

facilities. It must be emphasized that

all the parties agreed to this October

22, 1979 Order. In asking the court to

relieve them of the obligation they

assumed, the defendants emphasize their

concern about the medical risks of small

Placements for Flower Hospital clients

and their inability to find suitable

sites. As discussed previously, the

C-113

court rejects the claims that the medical

needs of Flower Hospital clients require

placements in larger facilities. On the

contracry, the court finds that the

Flower Hospital clients can best be

served in facilities of 6 beds or fewer.

As for the unavailability of sites, the

defendants' efforts have been unimpres-

Sive. In their short-lived search for

3-bed and 6-bed units, defendants looked

only in the Bronx and Manhattan, the two

boroughs with the fewest number of

available sites, and they confined their

search to a radius of one-quarter mile

from six hospitals, which, as established

by expert testimony, was unnecessarily

restrictive. Moreover, contributing to

defendants' failure was Commissioner

Introne's memorandum of February 20,

1981, which illegally ordered a halt to

OMRDD's efforts to develop 3-bed units.

C-114

Defendants claim that the testimony

at the hearing demonstrates that the

3-bed/6-bed Order is no longer "properly

adapted to accomplishing its purposes,"

citing King Seely Thermos Co. v. Alladin

Industries, Inc., 418 F.2d 31 (2d Cir.

1969). That case, which involved a

trademark infringement consent judgment,

is inapposite because it does not refer

to changed conditions. There the orig-

inal judgment contained two conditions

which were unnecessary at the time to

accomplish its purposes of protecting the

plaintiff. Accordingly those conditions

were removed. King Seely did not elimi-

nate the ex post facto "grievous wrong”

requirement of Swift, supra. Here the

conditions of the October 22, 1979 Order

are necessary to accomplish the purposes

of the Order and of the Consent Judgment

and these purposes have not been accom-

C-115

plished as they had been in King Seely.

Flower Hospiral class members are pro-

foundly retarded, non-ambulatory and

subject to a wide variety of other

handicapping conditions. There has been

no change in the circumstances or any

exceptional conditions justifying the

vacation of this Order. The court notes,

however, that a recent change in Medicaid

reimbursement disallows federal funding

for facilities that have fewer than four

beds. 42 C.F.R. § 435.1009(e). To

Permit defendants to receive such federal

assistance, the court modifies the second

paragraph of the October 22, 1979 Order

by substituting "four (4)" for "three

(3)".

The foregoing constitutes the

court's findings of fact and conclusions

Of law pursuant to Rule 52 of the Federal

Rules of Civil Procedure.

C-116

Conclusion

In summary, the court (1) declares

the defendants in non-compliance with the

terms and conditions of the Consent

Judgment and hereby orders them to comply

with all of said terms and conditions

with all deliberate speed, and extends

the deadline for compliance with the

community placement provisions from April

1, 1981 to April 1, 1985; (2) will

appoint a special master to monitor

compliance; (3) denies defendants'

motion

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