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NEW YORK STATE ASSN. FOR RETARDED CHILDREN

March 8, 1976

NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC., et al. and PATRICIA PARISI, et al., Plaintiffs,
v.
HUGH L. CAREY, individually and as Governor of the State of New York, et al., Defendants. UNITED STATES OF AMERICA, Amicus Curiae



The opinion of the court was delivered by: JUDD

MEMORANDUM

 (Review Panel Functions)

 A significant issue arose at the court hearing on February 10, 1976 concerning the function of the Review Panel, whether it is confined to post-audit powers as suggested by defendants, or whether it may function in respect to policies at Willowbrook before they are developed and implemented.

 Facts

 The post-audit question touches on many aspects of the care and treatment available at the Willowbrook Developmental Center, although the issue specifically arose in connection with a recommendation by the Panel that the Department employ an educational consultant. It now appears that the Department subsequently engaged such a consultant without discussion with the Review Panel.

 The functions of the Review Panel are set forth in Paragraphs 7 and 8 of the Final Judgment on Consent dated April 30, 1975, and in various portions of the "Steps, Standards and Procedures" which are annexed to the Judgment. Among other things, the Panel is to receive reports of Willowbrook supervisors pursuant to Paragraph 7(d) of the Judgment and of its own staff pursuant to Paragraph 7(e) of the Judgment. It is authorized broadly to have access to all records and to interview "any member of the class or employee of the defendants . . . to the extent necessary to the discharge of their duties under this judgment." The Review Panel may not only make written recommendations to defendants of steps "deemed necessary to achieve or maintain compliance with the provisions of this judgment" under Paragraph 8(b) of the Judgment, but under Paragraph 8(c) it may also make informal suggestions to the defendant "in whatever form they deem appropriate."

 The retained jurisdiction of the court under Paragraph 9 of the Judgment includes the right to make further orders "necessary or appropriate for the construction of, implementation of, or enforcement of compliance with this judgment or any of the provisions thereof."

 The Review Panel is also authorized to utilize the experience and expertise of the Consumer Advisory Board and the Professional Advisory Board described in the Steps, Standards and Procedures, as well as the advice and assistance of other experts.

 The provisions for the Review Panel were contained in a Judgment agreed upon by the parties after long negotiations. No evidence has been presented concerning the background of the language used, with respect to whether the Panel has only post-audit functions. The court must interpret the Judgment primarily from its language and from the nature of the problems which the court observed during the trial of the case and during the court's visits to the institution.

 Discussion

 A rough pattern for the Review Panel is found in Chief Judge Frank M. Johnson, Jr.'s decision in Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972), affirmed in relevant part sub nom., Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). In that case he appointed "human rights committees" for individual institutions for the mentally ill and directed that they "shall have review of all research proposals and all rehabilitation programs, to ensure that the dignity and the human rights of patients are preserved." 344 F. Supp. at 376. The committees were also authorized to advise and assist patients who alleged that the Mental Health Board had failed to comply with judicially ordered guidelines, and to consult appropriate independent specialists, to be compensated by the defendants in that case. He denied a request for the appointment of a master to oversee the implementation of court-ordered standards because (344 F. Supp. at 377),

 
Federal courts are reluctant to assume control of any organization, but especially one operated by a state.

 saying,

 
Nevertheless, defendants, as well as the other parties and amici in this case, are placed on notice that unless defendants do comply satisfactorily with this order, the ...

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