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NEW YORK STATE ASSN. FOR RETARDED CHILDREN

April 10, 1973

NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC., et al. and Patricia Parisi, by her mother Lena Steuernagel, et al., Plaintiffs,
v.
Nelson A. ROCKEFELLER, Individually and as Governor of the State of New York, et al., Defendants


Judd, District Judge.


The opinion of the court was delivered by: JUDD

MEMORANDUM

JUDD, District Judge.

 Willowbrook State School for the Mentally Retarded has been characterized by Dr. Herbert J. Grossman, expert consultant for the defendants, as "based on the wrong concept in the wrong place with the wrong plan." Plaintiffs, representing the residents of Willowbrook, have asked this court to require the defendants to institute programs which will raise the conditions at Willowbrook to a level approaching the ideals stated in recently formulated national accreditation standards. The official defendants question the power of a federal court and also the necessity of any action, in the light of the efforts which are currently being made to improve the conditions at Willowbrook.

 The present state of the case requires the court's decision on a motion for a preliminary injunction, after a week of hearings. A federal court, as will appear, cannot grant relief to the extent requested by the plaintiffs.

 Dr. Grossman in the final affidavit submitted by the defendants stated that "from a professional point of view, improvement is necessary in every aspect of care and in every building which I visited." However, he identified overcrowding as the most critical problem, and endorsed the plans of the Department of Mental Hygiene as a logical and systematic way to deal with problems which "are longstanding and enormously complex."

 Summary of Facts

 From the testimony received at five days of hearings, a sheaf of exhibits, a folder of photographs, and hundreds of pages of affidavits considered as part of the record, plus this court's visit to the Willowbrook State School for the Mentally Retarded, it appears and the court finds that:

 Willowbrook consists of approximately 43 buildings with a resident population of 4,727 on December 10, 1972, reduced from a high of 6,200 in 1969 and from a total population of approximately 5,700 at the beginning of this action. Over three-quarters of the residents are profoundly or severely retarded with intelligence quotients below 35, approximately one-third suffer from epileptic seizures, and over half have been in Willowbrook over 20 years.

 In spite of legislative reports dating from 1964, which complained of overcrowding and inadequate staffing at Willowbrook, conditions are still inhumane. The institution has not yet recovered from a hiring freeze which prevented even the replacement of departing staff members from December 1970 until November 1971 and prevented the hiring of any additional staff until January 1972.

 Only 27 per cent of the residents at Willowbrook are there on voluntary application. These are not treated any differently from those who are there under court order. Even those who are there on voluntary application (usually of their parents or guardians) have no other place to go.

 Testimony of ten parents, plus affidavits of others, showed failure to protect the physical safety of their children, and deterioration rather than improvement after they were placed in Willowbrook School. The loss of an eye, the breaking of teeth, the loss of part of an ear bitten off by another resident, and frequent bruises and scalp wounds were typical of the testimony. During eight months of 1972 there were over 1,300 reported incidents of injury, patient assaults, or patient fights.

 The number of ward attendants is below the level which even the Director of Willowbrook thinks proper, and unauthorized absences worsen the shortage. There are only half the number of doctors that are needed, and nurses, physical therapists, recreation therapists, and other professional staff are in short supply. For many of the professional groups, the salaries offered are not competitive with those available in other more desirable places of employment in the community. The turnover of present staff is almost 40 per cent a year for ward attendants and 18 per cent a year for the rest of the staff.

 Physical maintenance is poor, with a backlog of 750 work orders and at least one toilet inoperative in every battery of toilets.

 These conditions are hazardous to the health, safety, and sanity of the residents. They do not conform with the standards published by the American Association on Mental Deficiency in 1964, or with the proposed standards published on March 5, 1973 by the United States Department of Health, Education and Welfare. A most striking deficiency is the inadequate coverage of dayrooms, where the ratio is frequently 15 or more residents per attendant on duty even for profoundly or severely retarded residents.

 Over three-fourths of the residents of Willowbrook are profoundly or severely retarded, and would require resident care personnel in the ratio of 1:5 for the first shift, 1:7 for the second shift, and 1:15 for the third shift, to comply with the 1964 A.A.M.D. Standards.

 More detailed standards, set forth as optimum goals, were prepared in 1971 by the Accreditation Council for Facilities for the Mentally Retarded (A.C.F.M.R. Standards), but at the time of the hearings only one facility had been accredited as meeting these standards.

 Defendants have taken significant steps during 1972, by closing admissions to Willowbrook, by appointing a qualified new Director and a highly experienced new Deputy Director for Institutional Administration, by creating a ward service career ladder, and by plans to subdivide the institution into manageable units, among other things. These steps have been inadequate, however, to assure the safety of the residents up to the present time. Efforts to reduce the population and to increase the staff are continuing, but the number of new professionals hired during 1972 has been minimal, largely because of the inadequacy of salaries in relation to the problems facing the staff.

 The Legislature has now provided additional funds, and the Director and Deputy Director have been assured that there will be money to pay for anyone that they can hire and to purchase a reasonable amount of necessary equipment.

 Approximately half the budget of Willowbrook is reimbursed by the United States Department of Health, Education and Welfare, which rates Willowbrook as an intermediate care institution.

 Requests for Relief

 In their post-trial memorandum, plaintiffs suggest 26 appropriate forms of relief:

 1. Immediate steps to employ 134 more nurses, 125 mid-level supervisors, 25 more maintenance workers, and more personnel employees.

 2. Employment of enough attendants within 30 days to provide at least one for every 10 residents during the first and second shifts.

 3. Immediate steps to employ enough attendants (after 30 days) to have one for every 8 or 9 residents on the first and second shifts.

 4. Notices to forbid the use of seclusion.

 5. Preparation of evacuation plans and conducting a fire drill within 30 days.

 6. Subsequent employment of enough attendants to assure a 3-shift ratio of 1:6, 1:6, and 1:12.

 7. Steps to recruit a total of 422 English speaking nurses.

 8. Immediate steps to recruit a physical therapy staff of 50 to 60 persons.

 9. All steps necessary to hire an additional 21 full-time M.D. physicians.

 10. Immediate steps to develop an orientation program for resident-care attendants.

 11. Immediate steps to assign named residents to named resident-care attendants.

 12. Immediate steps to subdivide large dayroom areas into smaller sections.

 13. Immediate steps to make maximum use of presently unused space.

 14. Repair of all defective toilets, health and safety hazards, etc.

 15. Immediate provision of adequate cleaning equipment, etc.

 16. Immediate steps to hire sufficient maintenance personnel.

 17. All steps necessary to eliminate improper physical and chemical restraints.

 18. All steps necessary to eliminate cockroaches, rodents, and other pests.

 19. All steps necessary to provide adequate clothing and bedding.

 20. All steps necessary to provide adequate toilet and personal hygiene supplies.

 21. Immediate steps to provide regular outdoor exercise.

 22. Immediate steps to initiate completion of medical screening of all residents by July 31, 1973.

 23. Immediate steps to contract for acute medical and surgical services from a fully accredited hospital within 60 days.

 24. In the alternative, immediate steps to implement each of the recommendations of Dr. Clements and Dr. Roos.

 25. Immediate submission to the Legislature of a supplemental budget request, if necessary.

 26. Direction to request any necessary exemptions from the state Civil Service law in respect of salary levels, ...


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