The opinion of the court was delivered by: WEINSTEIN
This litigation plumbs the despair and guilt of society and of the parents of profoundly retarded children. Mothers and fathers, after courageous struggles to care for their offspring at home, overwhelmed by lack of respite and assistance, felt compelled to turn over responsibility for them to the state. They acted reluctantly in order to save a modicum of sane living for their families and because they believed the state could do more for their deprived youngsters than they could.
Housed at the Suffolk Developmental Center are some twelve hundred clients. Their dismal lives are relieved by the love and devotion of many of the parents and members of the Center's staff. New York (aided by the federal government), while doing less than the Constitution and laws require, has made many millions of taxpayers' dollars available.
The substantial efforts on behalf of these disabled people remind us that ours is fundamentally a compassionate and caring community. Once such people would have been exposed on a mountainside to die or would have been hidden in shame. Now they are kept alive and in view. But the law, expressing the concern of the state and nation for each person, requires that more than existence be preserved. It insists that some degree of humanity and dignity be safeguarded. As indicated below, the state has done less than the Constitution mandates. Accordingly, the courts are compelled to order that it do more.
A class action was commenced on August 23, 1978 by the Society for Good Will to Retarded Children, Inc., the parents' organization at Suffolk Developmental Center (the Center), and 13 mentally retarded individuals on behalf of themselves and more than 1,500 other persons then in residence at, or on the rolls of, the Center. Plaintiffs seek, on various constitutional and statutory grounds, 1) the improvement of conditions at the Center, 2) the expansion of community resources and support services in Nassau and Suffolk counties for the mentally retarded and for their families and 3) transfer of most of the clients at the Center to small community residences.
Defendants, sued in their official capacity, are the Governor of the State of New York and the personnel of the New York State Office of Mental Retardation and Developmental Disabilities. Jurisdiction is not disputed. 28 U.S.C. §§ 1331, 1343.
The Center was opened in 1965. It is a state-run residential institution for the mentally retarded on 465 acres in Melville, Long Island, New York. 1,209 individuals now reside there. Most of the buildings house severely handicapped individuals in wards that generally contain between 20 to 25 beds. Many of the clients are non-ambulatory and physically disabled. There are also eight or nine "cottages" with somewhat smaller wards for less severely retarded clients capable of walking and taking care of some of their own functions. The Center has a "medical-surgical" building (number 16) with one "acute" and three "chronic" wards, as well as two wards housing non-ambulatory clients and a pulmonary unit for 25 clients with upper respiratory problems (building 19). Four buildings (4, 9, 20 and 21) are used exclusively for program activities.
Administrative responsibility for the Center rests with defendant Fred McCormack who, as Director of the Long Island Developmental Disabilities Services Office, is also in charge of the state's community placement in Nassau and Suffolk counties. Mr. McCormack reports to defendant Elin Howe, Associate Commissioner of the New York State Office of Mental Retardation and Developmental Disabilities for the Southeastern County Service Group, answerable (through Deputy Commissioner Samuel Kawola) to defendant Commissioner Zygmond Slezak, who reports ultimately to the defendant Governor. T. of March 8, 1982 at 202-206; Pl. Ex. 1. (T. references are to transcripts of the trial.)
Certified as a class action on May 15, 1980, the case was tried without a jury. Court proceedings included over 21 trial days during March, April, September and October, 1982 in addition to numerous conferences and motions. The Court has heard more than 50 witnesses and received over 300 exhibits. Some 4,000 pages of transcripts were recorded.
On February 24, 1983, following the last of its three visits to the Center, the first in November 1978, and the second and third in February of this year, the Court issued an interim memorandum finding that conditions and treatment at the Center failed to meet the minimum standards required by the Constitution. It ordered the Director to prepare a written four year plan that would meet constitutional standards. See Appendix A. That plan was submitted to the Court on April 24, 1983. See Appendix B.
Public hearings on the plan were held by the Court in June 1983 at the District's Brooklyn and Uniondale courthouses. Parents and spokespersons for private and governmental agencies as well as unions representing workers at the Center appeared. During those hearings the Court issued oral orders to amend the Director's plan. As modified, that plan is now embodied in this Court's decree, infra.
Mental retardation, the basis for residence at the Center, is defined as 1) significantly sub-average intellectual functioning (i.e., two standard deviations below the mean on an intelligence test), 2) combined with significant deficiencies in adaptive behavior (i.e., appropriate exercise of personal independence and social responsibility), and 3) manifested in the individual's developmental period. T. of March 8, 1982 at 29-32.
Of 1,204 Center residents assessed as of March 1982, 11 were considered to be of normal intelligence, 40 to be mildly mentally retarded (IQ 52 to 69), 73 to be moderately retarded (IQ 36 to 51), 147 to be severely retarded (IQ 20 to 35), and 933 to be profoundly retarded (IQ below 20); the functioning level for 17 clients was unknown. T. of March 8, 1982 at 35-36; 209-210; Pl. Ex. 22A. Reduction in population has resulted in leaving the most difficult cases at the Center. Whereas the client population of the Center in 1974 (total 1,774) was 4% borderline or normal, 7% mildly retarded, 13% moderately retarded, 22% severely retarded, and 52% profoundly retarded, the comparable percentages at present are 1% normal, 3% mildly retarded, 6% moderately retarded, 18% severely retarded and 68% profoundly retarded. Approximately 55% of the current population is male; 1% is under age 12; 14% are between ages 13 and 20; 58% between ages 21 and 34; 24% between ages 35 and 64; and 2% are over age 65. Def. Ex. 265; cf. Pl. Ex. 33A. Those who are of "normal" intelligence appear to have been sent to the Center as a result of historical mistakes in classification as in the case of a deaf mute who was thought to be retarded. Many of the clients were kept at home by their parents until, in their early adolescence, they became hyperactive and overwhelmed their families.
In post-medieval times the retarded, together with imbeciles, idiots, madmen, the feeble-minded and the insane, from whom they were not generally distinguished, were viewed as the progeny of the supernatural, and in the last several centuries as agents of the devil. See L. Kanner, A History of the Care and Study of the Mentally Retarded 5-7 (1964); W. Wolfensberger, The Origin and Nature of Our Institutional Models, in Changing Patterns in Residential Services for the Mentally Retarded (President's Committee on Mental Retardation, 1976) 36. Vestiges of that attitude may be found today. Recently, a 14 year old retarded boy was discovered who had been kept a virtual prisoner in his home from birth. The boy's father apparently feared that his son's condition would shame or embarrass the rest of his family. N.Y. Times, October 9, 1982, at 8, col. 6.
Impetus for the institutionalization of the mentally retarded may be traced to the reform impulse in Western social thought accompanying political upheavals at the end of the eighteenth century. The revolutionary legacy resulted in new perceptions of both the potential for human improvement and of the role of the state in providing the necessary services. Compare B. W. Tuchman, A Distant Mirror: The Calamitous Fourteenth Century 108 (Ballantine ed. 1979) ("cure being left to God").
In nineteenth century America the movement to institutionalize the mentally retarded arose in response to several interacting factors. The theoretical groundwork had been laid in France in the mid-eighteenth century, where Jacob Rodrigues Pereire had shown that deaf mutes, thought completely uneducable until then, could be taught to read and communicate through sign language. See L. Kanner, supra, at 11. This led to the view that others, such as idiots who had likewise been thought to be incapable of responding to education, could benefit from it. Jean Marc Gaspard Itard's subsequent work with Victor, the "wild boy of Aveyon," further intensified professional interest in the education of idiots. Victor, an apparently severely retarded child was found in the forest, where he had roamed "wild" for some years, probably after his family had abandoned him. Gaspard taught him to walk upright, speak, feed and dress himself. See L. Kanner, supra, at 12-16; Mason and Menolascino, The Right to Treatment for Mentally Retarded Citizens: An Evolving Legal and Scientific Interface, 10 Creighton L. Rev. 124, 127-28 (1976).
The first school for the feeble-minded was established in Abendburg, Switzerland in the 1840's by Johann Jakob Guggenbuhl. See L. Kanner, supra, at 17-26. It was visited by Samuel Gridley Howe who shortly thereafter began the first publicly supported school for retarded children in Massachusetts in 1848. L. Kanner, supra, at 25, 41. Itard trained the French-born Edouard Onesimus Seguin, who spent 18 months in 1837-38 educating an idiot boy so that he could "make better use of his senses, could remember and compare, speak, write and count." L. Kanner, supra, at 35. Seguin, later came to the United States as a general consultant on the education of idiots. L. Kanner, supra, at 37.
The emphasis accorded education as a means of treatment for the mentally retarded was predicated on an assumption that mental retardation was a disease, like other similarly perceived problems of the mind, such as insanity, and of the spirit, such as criminality. The social reformers' vision of institutionalization of the mentally retarded melded this faith in the curative potential of education, and concomitant assumption that retardation was curable, together with the view that such diseases derived from defects in the environment.
The work of Itard and Guggenbuhl was thought to have demonstrated that the environment could be both the cause of and cure for mental defects. See D. Rothman, The Discovery of the Asylum 131 (1971). Thus, by altering or modifying the environment to purge noxious elements, the mentally retarded person, it was supposed, could be made well. See D. Rothman, supra, at 111. The notion underlying temporary confinement was removal of those unable to cope with the strains and uncertainties of life in the community. Rehabilitation would occur by providing such individuals with an environment of calm and regular routine. D. Rothman, supra, at 133. The first institutions, like many of the later ones, were built away from urban centers and with an architectural emphasis on order and regularity. D. Rothman, supra, at 137-138, 142, 152-153.
The founders' fundamental belief in their institutions as forums of cure was rooted in a vision of their function as one of education, not of custody. During the second half of the nineteenth century, however, it became apparent that the idiocy and feeble-mindedness for which institutional treatment had been prescribed was neither being cured nor made better by the institutions. D. Rothman, supra, at 282. The rationale of rehabilitation gave way to one of custody. D. Rothman, supra, at 265; W. Wolfensberger, supra, at 52. Since institutional residence became permanent rather than temporary, the number of residents grew dramatically. State legislatures' appropriations, however, did not keep pace with the increase in institutional populations resulting in the overcrowding, understaffing, and lack of workshop and programming materials that continue to characterize many large institutions, including the Center. See D. Rothman, supra, at 269-270; W. Wolfensberger, supra, at 53-54.
A parallel pattern of optimism replaced by pessimism characterized the hope for cure that led to the institutionalization of criminals. That vision, however, has left a legacy of overcrowded and often brutal prisons where hope for rehabilitation is almost abandoned. D. Rothman, supra, at 79.
In the twentieth century the environmental theory of the origin of mental defects was replaced by a social Darwinism that recycled the trappings of the reform ideology. D. Rothman, supra, at 260-295. Thus, confinement and physical isolation from the community were perpetuated under a new rationale that sought to protect society from the retarded, and the retarded from society, rather than to educate them for entry into it. See D. Rothman, supra, at 285-286; W. Wolfensberger, supra, at 51-53; L. Kanner, supra, at 85-86.
Fear of the mentally retarded was embodied in the eugenics scare that followed Goddard's publication of the Kallikak monograph in 1912. It traced social immorality and criminality to genetically inherited feeble-mindedness. See L. Kanner, supra, at 130-132; W. Wolfensberger, supra, at 54-58. Politically, that fear was manifested in the enactment of various state statutes preventing marriage with the feeble-minded and insane, see W. Wolfensberger, supra, at 59, and providing for compulsory sterilization to prevent the procreation of more "confined criminals, idiots, imbeciles, and rapists." L. Kanner, supra, at 136; W. Wolfensberger, supra at 59. See generally Cynkar, Buck v. Bell: "Felt Necessities" v. Fundamental Values?, 81 Col. L. Rev. 1418 (1981). In the view of some, the institution became the guardian of preventive segregation. See W. Wolfensberger, supra at 60.
It has now been recognized, both by experts in the field and by Congress, that the premises underlying the reform ideology which gave rise to institutionalization have not proven sound. Mental retardation is not solely the product of social environmental forces gone astray, as the Jacksonians once believed. It is no longer regarded as a disease, curable or otherwise.
The medical model of treatment by passive care is generally being replaced throughout the country by the developmental model. Emphasis is placed upon training to maximize potential for adjusting to as close to a normal existence as is practicable. See D. Rothman, supra, at 11, 115-116, 122. Yet, the Jackson's intuitions were not entirely unfounded. While today education is not regarded as a total panacea for the mentally retarded, it has been recognized
that retarded persons, regardless of the degree of handicapping conditions, are capable of physical, intellectual, emotional and social growth, and . . . that a certain level of affirmative intervention and programming is necessary if that capacity for growth is to be preserved, and regression prevented.
New York State Association for Retarded Children, Inc. v. Carey, 393 F. Supp. 715, 717 (E.D.N.Y. 1975) (approving and quoting from Willowbrook consent judgment). See generally Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L.ED.2d 28 (1982); Association for Retarded Citizens of North Dakota v. Olson, 561 F. Supp. 473 (D.N.D. 1982); Philipp v. Carey, 517 F. Supp. 513, 517-518 (N.D.N.Y. 1981); Kentucky Association for Retarded Citizens v. Conn, 510 F. Supp. 1233, 1245 (W.D. Ky. 1980); Naughton v. Bevilacqua, 458 F. Supp. 610, 615 (D.R.I. 1978), aff'd, 605 F.2d 586 (1st Cir. 1979); Woe v. Mathews, 408 F. Supp. 419, 427-428 (E.D.N.Y. 1976); aff'd sub nom Woe v. Weinberger, 562 F.2d 40 (2d Cir. 1977); see also N.Y. Const. Art. 17 § 4; The Education of the Handicapped Act, 20 U.S.C. § 1400 et seq. (1976 & Supp. V 1981) and S.Rep. No. 168, 94th Cong., 1st Sess., reprinted in 1975 U.S. Code Cong. & Ad. News 1425; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp. V 1981); The Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6000 et seq. (1976 & Supp. V 1981); see generally O'Connor v. Donaldson, 422 U.S. 563, 659, 45 L. Ed. 2d 396, 95 S. Ct. 2486 (1975); Jackson v. Indiana, 406 U.S. 715, 738, 32 L. Ed. 2d 435, 92 S. Ct. 1845 (1972); New Jersey Association for Retarded Citizens v. Human Services, 89 N.J. 234, 445 A.2d 704 (1982).
The new consensus among experts, including those employed by the State of New York, recognizes the priority of the principle of normalization to the extent practicable. See Def. Ex. 53, Part I, page 21. N.Y. Office of Mental Retardation and Developmental Disabilities, Handbook of Staff Training Instructional Material, defining normalization as ". . . making available to the mentally sub-normal, patterns and conditions which are as close as possible to the norms and patterns of the mainstream of society." Most modern authorities envision the placement of mentally retarded individuals in a variety of residential and programmatic settings, selected in accordance with a determination of each person's needs and potential for living as independently and as "normally" as possible.
Increased public attention to the condition of the mentally retarded has led to marked advances in the quality and delivery of services to them. Advocacy efforts of parents' and concerned citizens' organizations such as the National Association for Retarded Children, established in 1950, see H.R. Rep. No. 694, 88th Cong., 1st Sess., reprinted in 1963 U.S. Code Cong. & Ad. News 1060, together with the recommendations of the President's Committee on Mental Retardation, see generally H. Cohen, Trends in Service Delivery and Treatment of the Mentally Retarded, 11 Pediatric Annals 458 (1982), have led Congress to appropriate millions of dollars for research on the causes and prevention of mental retardation, see H.R. Rep. No. 95-1188, 95th Cong., 2d Sess., reprinted in 1978 U.S. Code Cong. & Ad. News 7358-59, to provide access for the handicapped to federally subsidized programs, see Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and to codify findings respecting appropriate treatment and habilitation of persons with developmental disabilities and specify conditions for funding state plans. See the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6010, 6063.
In New York State, there has been similar concern about provision of services for the mentally retarded. The Legislature has specified:
. . . it shall be the policy of the state to conduct research and to develop programs to further the prevention and early detection of mental retardation and developmental disabilities; to develop a comprehensive, integrated system of services to serve the full range of needs of the mentally retarded and developmentally disabled by expanding the number and types of community based services for the mentally retarded and developmentally disabled by serving persons in the community as well as those in developmental centers, by improving the conditions in developmental centers, and by establishing accountability for carrying out the policies of the state with regard to the mentally retarded and developmentally disabled.
To accomplish these goals and meet the particular needs of the mentally retarded and developmentally disabled, a new autonomous agency to be known as the office of mental retardation and developmental disabilities has been established. The office and its commissioner shall plan and work with local governments and voluntary organizations and all providers of services to the mentally retarded and developmentally disabled to develop an effective, integrated, comprehensive system for the delivery of all services to the mentally retarded and developmentally disabled and to create financing procedures and mechanisms to support such a system of services to ensure that mentally retarded and developmentally disabled individuals in need of service receive appropriate care and treatment close to their families and community. In carrying out these responsibilities, the office and its commissioner shall make full use of existing services in the community including those provided by voluntary organizations.
Added L. 1977, c.978 § 11 N.Y. Mental Health Law § 13.01. See also N.Y. Mental Health Law § 13.07 (providing that state Office of Mental Retardation and Developmental Disabilities is responsible for "the development of comprehensive programs and services in the areas of research, prevention, and care, treatment, rehabilitation, education, and training of the mentally retarded and developmentally disabled."); Id. § 13.23 (providing for education and training programs for the mentally retarded); Id. § 13.24 (providing for the funding of sheltered workshops, work activity and day training services); Id. § 33.03 ("each person receiving services for mental disability shall receive care and treatment that is suited to his needs and skillfully, safely, and humanly administered with full respect for his dignity and human integrity"); Id. § 22.11 (retarded children to be provided the same education "they would otherwise be entitled to receive in their local school districts").
New York has given particular attention to the concept of normalization in the least restrictive environment practicable. Thus,
The legislature hereby finds and determines that mentally disabled individuals have the right to attain the benefits of normal residential surroundings. It is further found that the opportunities for mentally disabled individuals will be enhanced, and the delivery of services improved, by providing these individuals with the least restrictive environment that is consistent with their needs, and that such environment will foster the development of maximum capabilities. It is the intention of this legislation to meet the needs of the mentally disabled in New York state by providing, wherever possible, that such persons remain in normal community settings, receiving such treatment, care, rehabilitation and education, as may be appropriate to each individual.
Legislative Findings and Intent, L. 1978, c. 468, § 1, quoted in N.Y. Mental Health Law § 41.34. See also id. community programs and services).
Testing technologies, such as prenatal diagnosis and genetic counseling have become increasingly refined as public awareness of mental retardation grows. Yet most of the causes of retardation are still unknown. Approximately three percent of the population is believed to be affected; of these, 75 percent are mildly retarded, 20 percent moderately retarded, and 5 percent severely or profoundly retarded. Acquired (non-heredity) causes, such as infection, trauma, toxins, hormonal deficiencies, severe sociocultural deprivation, protein malnutrition, and various unknown and known environmental hazards such as radiation, and lead poisoning, account for at least five percent of mental retardation. See Lorincz, Perspectives on Planning for Prevention of Mental Retardation, in Planning for Services for Handicapped Persons 78-79 (1979); Taft and Cohen, Mental Retardation, in Pediatrics 1769 (16th Ed. 1977). Genetic causes, both those known to be due to chromosomal abnormalities, such as Down's syndrome, or genetically determined metabolic disorders, such as Tay-Sachs disease, or endocrine disorders, of which there may be more than a thousand, are probably responsible for another 20 percent. The remainder are classified as polygenic disorders, such as the fairly common neural tube defects in the fetus; they may be caused by some interaction of environmental and genetic factors. See id.
Research in prevention has grown. Close attention is now being accorded prenatal diagnosis, through such means as amniocentesis, pulse-echo sonography (ultrasound), fetoscopy/placental aspiration (analysis of a fetal blood sample), and measurement of fetal protein in the amniotic fluid, particularly with mothers under age 20 and over age 35. See generally Antenatal Diagnosis, U.S. Department of Health, Education and Welfare, April 1979, at 1-10. Emphasis is also being placed on care of the unborn child by discouraging the taking of drugs, smoking and drinking alcohol during pregnancy; the anticipation of "at-risk situations" for women who have previously borne babies with a chromosome abnormality or with an open spine defect, or where one of the parents has a chromosome abnormality; and genetic counseling and screening of the newborn to prevent various retardation-causing diseases, such as hypothyroidism. See Mental Retardation: Prevention Strategies That Work, Report to the President (1980); Mental Retardation: The Leading Edge, Staff Report of the President's Committee on Mental Retardation 68-71 (1978). See generally Prevention Plan, Preliminary Report, New York State, Governor's Conference for the Prevention of Developmental Disabilities and Infant Mortality, May 1981.
Genetic counseling, contraception, abortions and medical advances may, the testimony indicated, reduce somewhat the number of retarded children in the future. But this advance may be more than counterbalanced, it was suggested, by increasing chemical or radiological environmental hazards, as well as by other factors such as the increasing tendency toward child bearing by the very young and by older women. The potential interplay of these demographic, environmental and medical facts is difficult to predict. There was no disagreement, however, that retardation of children will continue to be a problem. With better medical treatment of the retarded, their age span increases.
The result of all these developments is the likelihood that the percentage of mentally retarded and developmentally disabled will probably not decline absolutely or as a percentage of our population. Thus, the legal issues presented by this case are by no means transient or peculiar to the Center. They will be with us for the foreseeable future in many guises.
Litigations of this kind create difficult dilemmas for legislatures, executives and courts. Aiding one group may further disadvantage others. The chairman of the Mental Hygiene Committee of the New York Senate, for example, noted
most of those [severely retarded in boarding schools] should be going to group homes. Instead, these residences are being filled as soon as they open, with adults who have been living in large institutions. Many of these adults are moved because of court orders.
Bill to Help Retarded at Age 21, N.Y. Times, July 24, 1983, § 1, at 23, col. 1. With such problems in mind, the decree has been formulated to permit improved services to those in the Center as well as those outside of it.
What is also clear is that present professional views are not forever fixed. Home or community care is not a panacea, only an improvement in a difficult situation. It follows that professionals and the political system must be afforded considerable flexibility in meeting the new problems that undoubtedly will result from the depopulation of large institutions built when different theories prevailed.
A. Conditions at Suffolk Developmental Center
The Willowbrook Consent Decree requiring major improvements at the Staten Island Developmental Center became final in 1975. See New York State Association for Retarded Children, Inc. v. Carey, 393 F. Supp. 715 (E.D.N.Y. 1975). It was accepted by New York State "as a guidepost to [be extended to] all of our clients across the state." Testimony of Edward Jennings, T. of March 10, 1982 at 534. After the decree was signed, Plaintiffs' witness Edward Jennings became Associate Director of the Willowbrook task force organized to monitor implementation of that decree. T. of March 10, 1982 at 459. Jennings is currently Director of the State Developmental Disabilities Services Office at Letchworth Developmental Center, responsible for all services for the mentally retarded in Rockland, Orange and Sullivan Counties; included in his charge are community-based day and residential programs. His job is equivalent to that of the Director of Suffolk Center. Id. at 432-433.
In August 1978, following the filing of the complaint in this case, Thomas Coughlin, then the State Commissioner of the Office of Mental Retardation and Developmental Disabilities, asked Mr. Jennings to prepare a report evaluating "problems" then existing at the Suffolk Center. Id. at 499. That report was issued in October 1978. Id. at 463. While the report is not in evidence, Mr. Jennings, as a witness, did describe his findings.
Jennings' testimony serves as an introduction to those problems that made conditions at the Center unacceptable in 1978, when this suit was commenced. He found all areas he observed deficient and concluded that the Center was not "appropriate" for its residents. Id. at 552, 555. Although at the time Jennings' investigation was conducted each developmental center in New York State was required to use an Operational Plan for both management and programmatic purposes, the task force found that the Suffolk Developmental Center's operational plan was not being implemented. T. of March 10, 1982 at 491-494. Jennings recommended that the plan be scrapped because "it wasn't a workable document at that time." Id. at 497. Failure of the Suffolk Operational Plan in 1978 was indicative of substantial "management deficiencies." Id. at 499. Those deficiencies suggest far more significant problems that made and continue to make environmental and programming conditions at the Center constitutionally unacceptable.
(1) Lack of Interaction With Clients
In 1978, Jennings observed a substantial lack of interaction between the clients and the direct care staff. T. of March 10, 1982 at 525. He acknowledged the frequency of scenes in which residents were found sitting, rocking, lying on the floor, and generally doing nothing in front of a blaring television set in the dayroom, while the staff watched television. Id. at 525. Similarly, the federal inspection team described in their May 25, 1978 survey:
Weekend of May 20, 21, acute care residents were in day rooms with no organized activities -- merely listening to ball games on the T.V. with one staff member present.
To the survey team's charge that understaffing was responsible for this deficiency (and its recommendation of additional staff and training programs) Center officials responded: "Because of budget limitations, additional staffing beyond what is allocated for each ward, is an impossibility." Pl. Ex. 8, Survey of May 25, 1978.
Lack of interaction between staff and clients still exists. Dr. James Clements, a pediatrician and an expert in mental retardation, who has had responsibility for all mental retardation services in Georgia, first visited the Center in the summer of 1976 as Chairman of the Willowbrook Review Panel. T. of March 8, 1982 at 12-14, 22. On February 6 and 7, 1981, and on March 5 and 6, 1982, a few days before his testimony in this case, he visited the Center again. Clements described his impression from his tours as follows:
I guess the most, all pervasive feeling, impression that I got at Suffolk during this past visit and the other times that I had been there is that it is a place of idleness. In almost every area at Suffolk in which I visited people were sitting and waiting or lying in bed and waiting. There was virtually no organized activity going on in any area of Suffolk Development Center that I visited . . . . It is a place in my opinion that is harmful to every resident who resides there.
T. of March 8, 1982 at 28. See also Pl. Ex. 12, 13 (photographs taken during Clements' February 1981 and March 1982 tours showing barren dayrooms; residents, sometimes unclothed or partially clothed, are lying on bare floors, apparently doing nothing).
George Fearing, whose 36 year old son, Donald, has lived at the Center since 1969, testified that generally when he arrived on Sundays to take Donald out for the day,
I would find him either walking around stark naked, or walking around with a pair of dirty pants.
T. of March 10, 1982 at 661, 674. The staff were not doing anything with Donald; they were "sitting in the dayroom watching television." Id. at 674.
Mildred Karp, another parent who frequently visits her 30 year old daughter, Barbara, on the weekends, had similar observations of her daughter's dayroom in Ward A of Building 21:
. . . there is very little activity other than sitting -- most of the time I find my daughter sitting on the floor, no shoes or socks on Sometimes there are partially disrobed children, adults, they are adults, really most of them. Partially disrobed, doing nothing . . . .
The staff "are sitting sometimes, sometimes they are doing paperwork in the office within the ward, sometimes they are doing the laundry or just sitting and watching the television." T. or March 10, 1982 at 688-89. See also, e.g., testimony of parent, Rose Maggio, T. of April 6, 1982 at 877-881.
Dominica Moses related that when she went to visit her sister, Nicolina Coster, at Building 4 on an August evening in 1981:
As I got out of my car at the building I heard screaming, very very loud screaming . . . . As I entered the room, one of the residents was beating my sister. The woman who was on duty was in the front of the room watching television; she never turned her head.
T. of September 26, 1982 at 277-78.
Lyn Rucker, another expert in mental retardation and Director of Retardation Services for sixteen counties in Southeast Nebraska, visited the Center on August 27 and 28, 1982. She observed that:
In the majority of the buildings, the staff were sitting, or standing away from the clients. There were no, or very few contacts between staff and clients.
T. of September 28, 1982 at 397.
Brian Lensink, another mental retardation expert who has directed Arizona's programs and services for the mentally retarded and developmentally disabled for seven years, visited the Center on February 14, 15 and 16, 1982 and on September 2 and 3, 1982. T. of October 4, 1982 at 721-723, 733. Describing various residential buildings he visited during his February 1982 tour, he found:
There was generally sitting around the peripheries of the room rocking, self-stimulating in one way or another.
They were seeking a tremendous amount of attention, coming up to you, wanting to touch and hold. But the idleness was what affected me the most.
T. of October 4, 1982 at 739. See also testimony of parent, Philip Feibusch, T. of October 4, 1982 at 697.
This lack of interaction has an adverse effect on clients. If there were greater staff attention they would be exposed to far less risk of injury. Negative behavior often continues uninterrupted, permitting the clients with behavior problems to harm themselves, as well as other clients around them.
Mental retardation expert Kathleen Schwaninger, formerly responsible for all services to the mentally retarded in Massachusetts and now executive director of a voluntary agency providing programmatic and residential services to the retarded in New York City, testified at length. T. of April 5, 1982 at 737, T. of September 25, 1982 at 11. She most recently inspected the Center on March 17 and April 2, 1982. While there she observed inappropriate behavior in the lunchroom such as clients "getting up from the table and moving around," and "grabbing food." During the meal, "the staff did not interrupt the clients or direct them to a positive meal time behavior . . . ." T. of April 5, 1982 at 807-808.
Clients are denied the opportunity to learn to relate to other human beings. Thus, Brian Lensink noted that the residents
have no opportunity to meet normal people. One of the best training devices we know of is modeling, observing other people's behavior and modeling it, doing it yourself. And we give the people in a large setting like that every opportunity to model inappropriate behavior that we can, and very few opportunities to model appropriate behavior.
T. of October 5, 1982 at 860-61.
A number of factors explain this problem: particularly the insufficient number of staff, the use of a staffing system based on "critical minimum" requirements, and the lack of adequate staff training. One symptom of lack of trained staff is the excessive use of direct care aides known as floaters. They are shifted from ward to ward as shortages of staff develop. The result is that they often do not know the client's needs and it becomes more difficult to maintain any consistent training program. For retarded children, to a far greater extent than in the case of normal children, uniform patterns of conduct and predictable relationships with people that care for them are essential.
These criticisms should not obscure the genuine love, concern, and commitment which a great many of the direct care staff have for the clients and their welfare. Like Margie Grant, many of the staff are hooked on the clients. See T. of October 1982 at 622-25. Considering the obstacles they face, staff members are to be commended for doing as well as they do.
Nevertheless, even the most well-meaning staff cannot be expected to perform adequately when they are insufficient in number, poorly trained and supervised, and unfamiliar with the plans developed for the clients.
(2) Insufficient Number of Staff
(a) The Number of Direct Care Staff
Edward Jennings testified that a minimum staffing ratio of 1.78 to 1 overall was necessary to provide the state-mandated six hours of programming each day to each resident and to insure adequate and appropriate care. T. of March 10, 1982 at 503. According to Mr. Jennings, an optimal ratio would be 2.2 or 2.1 to 1. T. of March 10, 1982 at 505. Fred A. McCormack, Director of the Center, testified that 1.83 "is professionally desirable." T. of October 21, 1982 at 2552-53. He pointed out, however, that the state provided only the 1.78 level. Id. at 2554-55. In 1978 the staffing ratio at the Center was only 1.56 to 1, substantially below what defendants and defendants' experts have testified to be the minimum required for adequate care. T. of March 10, 1982 at 503. And in March 1982, the ratio was 1.72 -- still below that minimum. T. of October 21, 1982 at 2640.
These ratios are more than abstract numbers. An increase of.1 in the staffing ratio translates into an additional 120 staff members since the population presently is roughly 1,200 clients. This number of added workers can have an enormous impact on client care.
Zygmond Slezak, Acting Commissioner of the Office of Mental Retardation and Developmental Disabilities for the State of New York, acknowledged that no developmental center in the State of New York has a lower staff ratio than the Suffolk Center and many have a higher one. Testimony of Zygmond Slezak, T. of April 6, 1982 at 1010.
Plaintiffs' experts, all of whom are qualified professionals in the field of mental retardation, each spent at least two days, usually more, visiting the Center in 1982. They found insufficient direct care staff to meet the needs of the clients, thereby increasing the likelihood of injuries and of the acquisition or aggravation of self-stimulating or other negative behavior. See, e.g., testimony of Kathleen Schwaninger, T. of September 25, 1982 at 13. A direct care staff worker at the Center agreed:
I feel greatly that the amount of staff that has been allocated to us is not sufficient to take care of the amount of residents . . . . They should be receiving better care, and more staff is definitely one way it could be accomplished.
Testimony of Maria Saracino, T. of October 1, 1982 at 641. See also testimony of staff worker, Elle Ambrose, on the need for one more worker at each shift on each ward, T. of October 13, 1982 at 1691, 1723.
For example, Lisa Gorelick, one of the named plaintiffs, a profoundly retarded resident of the Center, has a pair of expensive orthopedic braces, without which she cannot attempt to learn to walk. She is not able to wear her braces because there is not enough staff to make sure she does not fall over when she wears them. Testimony of Kathleen Schwaninger, T. of September 25, 1982 at 148; testimony of Lyn Rucker, T. of September 28, 1982 at 457. The result is that Lisa remains in a wheelchair though she should not.
Joseph Ryan, the Deputy Director of the Center, responsible for its daily operations, acknowledged that more staff is needed to maintain an acceptable level of care. T. of October 5, 1982 at 938-99. See also 1982-83 Budget REquest for Suffolk Developmental Center made by the Office of Mental Retardation and Developmental Disability as Submitted to Executive Department, Pl. Ex. 27, at pp. 1-2.
(b) Impact on the Clients
Direct care staff must often devote their limited time to various housekeeping tasks such as laundry and making beds, so that even though they are present on the wards, they are prevented from interacting with the clients. The result is that staff does not have the time to actively teach clients self-care skills such as toileting and how to wash, dress and feed themselves. As Margie Grant, a mental hygiene therapy aide testified, rather than teaching a client to brush his or her teeth, the staff person does it, because there is no time for the patient training that is required. T. of October 1, 1982 at 616-19. She testified as follows:
Q Have you ever been trained in techniques to teach residents who can't dress themselves, to do any of those skills?
A No . . . . We don't have time with the number of staff to give the clients time to learn, or even to do it . . . . How can you do that in a given time, hand him the toothbrush, and give him the toothpaste, and wait. You must be patient in this job. But what you do, you end up brushing the teeth themselves, because they get brushed that way . . . .
Q Is that the same situation with bathing them, combing their hair?
A Absolutely. There is not sufficient time to do that . . . .
Q You indicated that you knew of some goal plans?
A Yes, but they were never worked on.
T. of October 1, 1982 at 616-17, 628-29.
The staff's role is generally to do for the clients, rather than to teach and help the clients do for themselves. As expert Kathleen Schwaninger noted:
Q Is there a difference between training or programming on the one hand and doing for the client on the other hand, dressing the client, feeding the client?
A There is much difference between that, and it is probably best described as analogous as to how we raise our own infants . . . . That same kind of teaching pattern applies to mentally retarded individuals . . . .
Q If retarded people are not divided into the kind of programming that you just described, in your opinion what would be the effect on them?
A They will not develop to their full capacity . . . . Typically they will lose skills.
T. of April 15, 1982 at 754-756. See also testimony of Lyn Rucker, T. of September 28 at 397.
Thus, the lack of enough staff often denies the clients the most effective kind of learning experience for the acquisition of self-care skills in such basic areas as toileting, eating, washing and dressing. Such opportunities are particularly crucial in the learning process of mentally retarded persons,
because the symptomatology of mental retardation is that the individuals learn much slower . . . . In other words, if you put one shoe on a mentally retarded individual and he learns to tie that particular shoe and a week later you place a different shoe on his foot, most of the time the individual will not make the association with being able to tie his shoe . . . .
Because, one of the symptoms of mental retardation is the presence of short-term memory. In order to compensate for these folks not being able to remember as well as we do, and retain it, practice and a great deal of practice for retention purposes is necessary.
Testimony of Kathleen Schwaninger, T. of April 5, 1982 at 753.
Without consistent reinforcement in the residential context of the skills acquired at day programs, the skills are generally lost. Testimony of Kathleen Schwaninger, T. of April 5, 1982 at 849; testimony of expert Lyn Rucker, T. of September 28, 1982 at 396 (noting that loss of skills will occur without reinforcement of weekday program over the weekend). See also testimony of expert Joel Levy, director of a private voluntary agency providing residential and day program services to the mentally retarded, including the multiply handicapped and profoundly retarded, in New York City and Westchester County, T. of September 26, 1982 at 225
("Without the day treatment program the residential program would be doomed to failure. Without some support at home, whether it is in the home with the parents or within the residential program [the day program] also would be doomed to failure."). Such opportunities for consistent practice of self-care skills are built into the community living environment. Testimony of Kathleen Schwaninger, T. of April 5, 1982 at 549.
Phyllis Killigrew, a member of the direct care staff at the Center since the spring of 1981, described the work of the direct care staff generally as ". . . more like custodial care -- baby-sitting." T. of October 1, 1982 at 591.
When Kathleen Schwaninger spoke to the direct care staff on her visits to the Center, they "reported consistently that their job is to take care. In other words, wash people. Clean people up. Toilet them. Not train them." T. of April 5, 1982 at 846-47. Ms. Schwaninger attributed this custodial view to a number of factors: 1) staff members are not given training that will equip them to teach the clients; 2) insufficient staff leaves no free time to devote them teaching clients; 3) staff does not recognize that it is expected to teach; 4) there is a widespread perception that only the professional staff are capable of training the clients; and 5) there is a natural inhibition against communicating with clients who themselves are non-verbal. T. of April 5, 1982 at 758-61.
There is also the self-fulfilling prophecy of client incapability. As expert Brian Lensink commented,
I looked at a lot of residents and I was informed that the vast majority of the people there were profoundly retarded. The numbers, in fact, were 900 profoundly retarded; 250 severely retarded; 100 moderately; and 50 mildly . . . . I felt most of those folks had more potential than what was indicated from the figures. [But t]he staff has expectations established for them that I think are much lower than could be established.
T. of October 4, 1982 at 765.
On many occasions even the custodial function goes unfulfilled. This is evident in Lyn Rucker's description of the lunchroom in Building 28 on a Saturday in late August, 1982:
I think this is one of the hardest experiences for me on this particular tour, in that you had 84 individuals in a lunchroom trying to eat, staff that were trying to assist as best they could; but I saw no active feeding programs . . . . And there were other people making attempts to feed themselves, and the staff person was standing there doing nothing. And then they grab the hand and shove it up to their mouth and say eat . . . . I felt sorry for everybody in that room, and especially the gentleman with the pureed food being slapped into his face.
T. of September 28, 1982 at 454-55.
Mrs. Rucker also described another scene, in Building 27, in which she observed and heard through a glass wall a sixteen year old hydrocephalic resident in a cart with wooden sides banging her head, very severely, against the cart. The staff did nothing to stop this potentially very harmful behavior until the official with whom Ms. Rucker was touring interceded. T. of September 28, 1982 at 449-51.
Until recently, psychotropic drugs and various kinds of physical restraints were used, and misused, to control behavior since there was not enough staff to work with clients on behavior modification programs. T. of September 26, 1982 at 369-70. Judy Walker, who has worked at the Center for over fifteen years, and is currently the nursing program coordinator, testified that in 1978 residents were being regularly given Thorazine and other drugs for behavior control purposes. T. of October 8, 1982 at 1432. Drugs were used she said, "because we had no other alternatives. Right now we can afford and we do take clients off medication because we have treatment plans. Then we didn't have treatment plans. We didn't have intervention." Id. at 1434. Today there are still between 600 and 900 Center clients out of a population of 1,200 who receive some form of psychotropic drug. T. of October 8, 1982 at 1431. Liver damage has been detected in several residents due to the large amounts of medication given them. T. of October 5, 1092 at 830.
Ambulatory clients are still locked into wheelchairs or confined in them by tabletop lap boards. T. of September 25, 1982 at 165. Lyn Rucker testified, based on her visit to the Center in late September 1982, that clients are subjected to an unnecessary degree of physical restriction. T. of September 28, 1982 at 526. Brian Lensink agreed with Ms. Rucker and added:
You probably would not need the medications or the other kinds of restraint programs if you were to give the person the programming in the first place. Occupy his time and give him something productive with his time. Many of these behaviors are for the opportunity to get attention. They become quite well learned and extremely difficult to deal with when they have been reinforced or not dealt with in the appropriate manner in the first place.
T. of October 5, 1982 at 831-32.
(c) Use of the "Critical Minimum" and of "Floating" Staff
The Center Policy Manual defines "Critical Staffing Numbers":
Each ward has been assigned a specific number of employees that must be on duty to maintain life and safety standards of the clients. When staffing falls below this critical number, pool staff and/or overtime shall be used . . . . No unit shall schedule staff at or below critical numbers.
Pl. Ex.5, pp. 1-2. Marian Ball, who was Acting Director of the Center from February through August 1980 understood that
the critical number was to be that number of employees on duty at any particular building or ward, it would be the bottom line, no more or less. That is the least amount of employees that should be on duty.
T. of September 26, 1982 at 263. See also testimony of Brian Lensink, T. of October 4, 1982 at 785.
Though intended only for emergency situations, or as a last resort, the wards at the Center are often staffed only by the critical minima. Testimony of Judy Walker, T. of October 8, 1982 at 1428. Brian Lensink testified that "most cottages were at critical minimum when we asked." T. of October 4, 1982 at 785.
Deputy Director Ryan agreed that the Center often has a hard time providing the requisite critical numbers. T. of October 5, 1982 at 937. Use of 16 hour shifts were, as a result, not uncommon. Id. at 930. He claimed that those who work such shifts "are not completely exhausted." Id. at 930-31. Nevertheless, it can come as no surprise that there are substantial morale problems among the direct care staff at the Center. T. of October 1, 1982 at 611; T. of September 26, 1982 at 364; T. of October 7, 1982 at 1168. As Kathleen Schwaninger observed,
the staff gets very tired. Staff has to work overtime, can work two shifts, or are asked to work two shifts. Consequently, their interest and their desire for their effectiveness in working with clients is compromised. Sometimes staff will even fall asleep . . . .
T. of September 25, 1982 at 15-16. See also testimony of Fred McCormack, T. of October 21, 1982 at 2545 (referring to the continuing problems of staff attendance and overtime). Defendants' experts, all qualified professionals, testified that the use of critical numbers staffing for extended periods of time is harmful.
Critical minima were not always met. Two or three staff workers for 24-30 residents was a situation observed by several of the clients' relatives who testified. See testimony of Philip Feibusch, T. of October 4, 1982 at 697. This low ratio was noted by some of the experts who asserted that there was not enough staff to provide even minimal care. Testimony of defendants' expert Hugh Sage, superintendent of a state developmental center in Nebraska, T. of October 6, 1982 at 1085-1086.
Staff absences and high turnover continue to be a significant problem. Testimony of Brian Lensink, T. of October 4, 1982 at 736; testimony of Fred McCormack, T. of October 21, 1982 at 2545. Floating staff, that is staff that is not assigned to the particular ward and is unfamiliar with the residents, must frequently be employed to make up the critical minimum. The use of floating staff is almost constant in some wards. T. of October 1, 1982 at 595, 610-11, 631; T. of October 4, 1982 at 784; T. of October 13, 1982 at 1706.
The effect of such transient workers can be dangerous, leading to situations in which floating staff, unfamiliar with a ward's residents, will mistakenly give medications intended for one client to another. T. of September 25, 1982 at 17. Since floaters are usually unfamiliar with the ward's residents, client interaction and effective implementation of programming becomes more difficult and less likely to occur. As Margie Grant, a member of the Center's direct care staff for three and a half years, testified, floating
is demoralizing, because you go on a ward where you don't know the clients, and they don't know you . . . . They get, like, hyper if you have floats . . . . The work is not kept up.
T. of October 1, 1982 at 611-12. See also T. of Sept. 26, 1982 at 363-64.
Use of floating staff makes it difficult to create an environment in which learning can occur. The practice generally undermines any possibility of effective programming or reinforcement of skills. Brian Lensink commented adversely on the use of floaters to make up the critical minimum:
There is no way they will have the time to brief themselves on a plan if they can find a plan on what they should be doing with those residents . . . . There is no way that they [the critical minimum staff] can spend any time trying to stimulate or educate or train or even attend the residents when there are that many.
T. of October 4, 1982 at 786-88.
As noted, the mentally retarded have a greater need for consistency in the way they are taught. "The retarded person has a harder time picking it up in the first place, and could forget it much easier if it's not reinforced." Testimony of Brian Lensink, T. of October 4, 1982 at 749. Not only does this require residential reinforcement of what is taught at the day program, but it also necessitates consistency of staffing so that in carrying out the hands-on training by which many self-care skills are taught, hands are laid on in the same way. Testimony of Kathleen Schwaninger, T. of September 25, 1982 at 18. Floaters generally cannot work with the clients on reinforcement of the skills taught in the day programs because they are not familiar with those programs, or the goals and methodologies described in each client's developmental plan. Id. at 16-17.
(3) Inadequate Staff Training
Most programming is devised by clinicians such as psychiatrists, doctors, physical therapists, speech therapists and occupational therapists. Implementation, especially in the most basic areas -- toileting, eating, washing and dressing -- is largely the responsibility of the direct care staff. Testimony of Thomas Amorillo, Center Chief of Speech and Hearing, T. of October 12, 1982 at 1552; testimony of Ann Gilmore, Mid-level Supervisor in Building 23, T. of October 8, 1982 at 1294, 1298; testimony of Elle Ambrose, Center direct care staff worker, T. of October 13, 1982 at 1691-92. When direct care staff lacks the time, the familiarity with residents and the interest to effectively implement such programming, it cannot succeed.
An equally critical factor undermines staff efforts at programming, even among those who care about the clients for whom they are responsible and who would like to work with them. Simply put, many, if not most, direct care staff have not received sufficient training.
All newly-hired direct care staff at the Center now receive some 200 hours of classroom orientation. Testimony of Robert Voss, Director of Education and Training, T. of October 7, 1982 at 1102-03. That training, according to one member of the staff who recently received it, includes "very, very little" hands on training. Testimony of direct care worker Phyllis Killigrew, T. of October 1, 1982 at 580. Although she characterized her class work as "adequate," she felt that it did not prepare her for the reality on the ward.
Everything was not the way it was supposed to be. I wasn't able to do all the things that I was taught in orientation . . . . I was being frustrated at every turn. These people that I work with on ten-B -- need a spokesman, someone to say that the quality of life and conditions on this ward -- and I speak for this ward, are horrendous.
T. of October 1, 1982 at 582-83.
Another direct care staff person who spoke positively of the orientation, described it "like fantasy" compared to what she later found on the ward. Testimony of Margie Grant, T. of October 1, 1982 at 615. Ms. Grant who has worked on Ward C, Building 28 for the last two years, and who has been at the Center for four years, testified that she had never been trained to teach residents to dress themselves, or to perform any other basic self-care skills. T. of October 1, 1982 at 616-617. Judy Walker, the nursing program coordinator, agreed that the direct care staff has never been taught to institute toilet training programs. T. of October 8, 1982 at 1446.
Nor is there any requirement of in-service staff training, despite the defendants' seemingly impressive array of course offerings. See, e.g., Def. Ex. 29 (Suffolk Developmental Center 1981 Catalogue of Education and Training Programs). As the 1980 Bureau of Staff Development & Training Management Plan put it:
Perhaps the major flaw in defining the legal basis of training is the total absence of a rational, comprehensive organizational policy regarding staff development. The policy directives cited in the report deal with two isolated issues. There is no written (policys) regarding: (a) the scope of responsibility for training both at the central office and facility level, (b) the procedures and mechanisms to be utilized in order to properly carry out these responsibilities, and (c) the coordination of central office and local level activities for staff development. Such a policy is essential and should be written . . . . The lack of a rational, overall OMRDD policy regarding staff development is an extremely unfortunate situation.
Def. Ex.58 at 77-78. Only thirteen Center employees have actually availed themselves of in-service courses. T. of October 7, 1982 at 1140.
In any event, it is questionable whether an institution already as understaffed as the Center could actually spare its badly needed staff for in-service training. As Judy Walker commented:
We are a big institution and we can't stop and freeze and say to a group of old employees and new employees we will take you out as a group and sit and train you . . . . Who is going to take care of the client?
T. of October 8, 1982 at 1396.
For those members of the direct care staff who either received no training or were trained under the "medical model," using physiological therapy and designed to keep the client relatively passive, programming, intended to actively train the client for as normal a life-style as possible, may be an unfamiliar concept and, therefore, even more difficult to implement. Judy Walker who has trained therapy aides and the nursing staff for fifteen years at the Center noted:
. . . We have some problems with [staff training] . . .. We have therapy aides who have been with us a very long time -- since we first opened . . . . We have a core of therapy aides who started out in the very beginning when we had this medical [model] knowledge . . . . I never trained them in this developmental model and then we have some who came halfway between when we were making the change. And we have some new therapy aides who come out of class fully convinced that the developmental model is the only one and they are right . . . .
T. of October 8, 1982 at 1380-82.
Mark Davis, Deputy Director for Treatment Services of the East Campus at the Center, admitted that it will take at least two more years to sufficiently train the staff in new methods of programming. T. of October 18, 1982 at 2047-51. Fred McCormack, the Director, similarly acknowledged that staff attitudes, though improving, still have some way to go:
They're doing more things for clients at this point. They're still not where they would like to be. There is more interaction. There's more expectation of people participating in programming. And they're beginning to do more things . . . . They're still not there.
T. of October 21, 1982 at 2541.
(4) Lack of Adequate Staff Supervision
The effect of inadequate staff training is intensified by a lack of adequate staff supervision. As a new staff member, Phyllis Killigrew testified:
Q. Since the completion of your orientation, have you had additional training from any supervisor or anyone else at S.D.C.?
Q. What about supervision? Are you supervised by team leader or mid-level supervisor on a regular basis in the ward?
Q. Are you shown what to do or told what to do?
T. of October 1, 1982 at 590.
This failure is probably due in part to the inadequate number of mid-level supervisors and clinicians. Like the direct care staff, clinicians' responsibilities are spread thin, leaving them little time for staff supervision and training. Maria Saracino, a direct care staff person in Building 28, Ward C, testified:
Q. Do you have a supervisor that works with you on a regular basis in your ward?
Q. How frequently would you say a team leader or therapist is with you . . . on the ward?
A. A few minutes maybe, on a given day; sometimes not that much.
T. of October 1, 1982 at 641.
(5) Lack of Staff Familiarity With, or Access to, Individual Plans of Clients
When particular programs (DVPs) and strategies of goal-implementation have been devised for individual clients, many direct care staff workers are unaware of them. Expert Lyn Rucker testified that,
When asking the direct care staff, what type of programmatic interventions . . . were taking place, or if they had access in one particular case to a physical therapist, whether a person should be wearing the orthopedic shoes, the response in both those cases, it was, no; they did not have access and there were no programs.
T. of September 28, 1982 at 399. See also T. of October 4, 1982 at 753. And even when the staff did know that specific programs for certain clients existed, the programs were frequently inaccessible and thus of little value.
When I was in the workshops I asked could I see a copy of the client's DVP so I knew what was supposed to be working in the workshop environment, and except for on a rare occasion they always said the DVP is in the residence and we don't have a copy of it here, and therefore you will have to go to the residence to find out what the person's goals were.
Well, it didn't do very much good in the residence because a program that was being operated was in the workshop or the educational program . . . ., but when I ask the direct care staff [in the residence], almost without exception they didn't know what the plans were anyway. If they did, they said they were carrying it on in the workshop. It was a very confusing process that seemed to be of little benefit to either location.
Testimony of Brian Lensink, T. of October 4, 1982 at 777.
Staff that is not trained in programming cannot work with the clients to develop basic skills. This failure, in turn, increases the risk of harm to the client. Defendants' expert Richard Blanton testified that the implementation of programming for some clients "is a life or death matter." T. October 14, 1982 at 1900. Without the necessary programming, clients may develop destructive behaviors. Id. at 1901. Rose Maggio's son, Michael, who was never provided a program to curb his pica behavior -- an abnormal craving to eat non-foods -- died from ingesting plastic gloves left around the ward. T. of April 6, 1982 at 890, 894-97. Without a staff that has been trained and has the time to implement such programs, they cannot be implemented.
b. Inadequate Clinical Staff
The inadequacy of the direct care staff training is in part explained by the fact that there is not enough clinical staff to train them. Both plaintiffs' and defendants' experts, as well as the clients' parents, agreed on the shortage of clinical staff, and particularly of physical, occupational, and speech therapists.
Based on interviews with staff, Kathleen Schwaninger testified that the shortage of physical and occupational therapists prevented many clients who needed various therapies from receiving them. T. of September 25, 1982 at 24. See also testimony of defendants' expert, Hugh Sage, T. of October 6, 1982 at 1015 ("In some instances there were staff shortages and critical deficiencies in some kinds of disciplines"); testimony of Mrs. Stutz, a parent, T. of September 25, 1982 at 159.
Lyn Rucker never saw any doctors or therapists on the wards in visiting nine buildings over two days in August, 1982. T. of September 28, 1982 at 384-85, 398. Judy Walker, the head of nursing at the Center, stated that there is only one doctor on call for the entire Center at night; only two on weekends. T. of October 8, 1982 at 1444. For many years there was only one dentist. Only recently was a second dentist added to care for the 1,200 client population. Testimony of Philip Feibusch, T. of October 4, 1982, at 715.
Anthony Mariano, a treatment team leader in Building 28, said there was an inadequate ratio of one psychiatrist for 82 clients in Building 28 and that no more had been requested. T. of October 12, 1982 at 1465, 1496-97. Despite this, the Director, Fred McCormack, acknowledged that there are immediate plans to terminate at least nine psychiatrists currently working at the ...