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SOCIETY FOR GOOD WILL TO RETARDED CHILDREN

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK


August 10, 1983

SOCIETY FOR GOOD WILL TO RETARDED CHILDREN, INC., et al., Plaintiffs,
v.
MARIO M. CUOMO, as Governor of the State of New York, et al., Defendants

The opinion of the court was delivered by: WEINSTEIN

MEMORANDUM AND ORDER

 WEINSTEIN, CH. J.:

 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.

 I. PROCEDURE

 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.

 II. MENTAL RETARDATION

 A. Definition

 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.

 B. History

 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.

 C. Current Theory

 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).

 D. Continuing Problem

 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.

 III. FACTS

 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. Staffing

 a. Direct Care Staff

 (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.

 Pl. Ex.8.

 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.?

  

A. Not really no.

  

Q. What about supervision? Are you supervised by team leader or mid-level supervisor on a regular basis in the ward?

  

A. No.

  

Q. Are you shown what to do or told what to do?

  

A. No.

  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?

  

A. No . . . .

  

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 Center. T. of October 21, 1982 at 2610-11. Lack of speech therapists is a serious problem. See infra.

  c. Hiring Process

  Crucial to the staffing problems at the Center are the hiring administrative procedures and policies. These are devised by the state.

  Funds for hiring become available in the following way: The Director of the Center submits a budget request to the Office of Mental Retardation and Developmental Disabilities in Albany which forwards that request as part of its own to the state legislature. Testimony of Robert Norris, First Deputy Commissioner of the New York State Office of Mental Retardation and Developmental Disabilities, T. of October 19, 1982 at 2179-2180. Once the appropriations are made, the State Division of the Budget, which is part of the Governor's Office, has some control over expenditures. Testimony of Zygmond Slezak, Acting Commissioner of the New York Office of Mental Retardation and Developmental Disabilities, T. of April 6, 1982 at 1012.

  Joseph Ryan, Deputy Director of the Center testified that the Center required more staff to maintain an acceptable level of care. T. of October 5, 1982 at 939. He also admitted that there are areas which had no physical therapy staff. T. of October 5, 1982 at 911-13; Pl. Ex. 33, Draft Policy Memorandum on "Physical Therapy Service -- Evaluation Procedure." February 1982. Yet there is a hiring freeze in effect. Testimony of Marvin Colson, Deputy Director of Institutional Administration, T. of October 19, 1982 at 2069. Director Fred McCormack denied that during his tenure there has been a state-imposed hiring freeze -- he referred to the situation as a restriction on hiring he has imposed himself. T. of October 21, 1982 at 2537-38. The effect, however, is the same as a freeze since the purpose of Mr. McCormack's restriction is to avoid the state bureaucracy's penalties for overstepping stringent and apparently inadequate state staffing rations.

  

We haven't been able to hire. . . . I impose it -- very simply the reason for imposing it, the freeze, was that if you go over two pay periods in a row over your authorized staffing basis of 1.78, you get a Division of Budget freeze enforced. And I'd rather have my own restrictions on hiring than have to go through the tremendous bureaucratic procedure to overcome that.

  T. of October 21, 1982 at 2537-38, 2539-40.

  2. Programming

  As already indicated, it is generally accepted among professionals in the field that constant and consistently reinforced programming is necessary for the mentally retarded to acquire those self-care skills essential to the most basic kind of development and human interaction. Testimony of Kathleen Schwaninger, T. of April 5, 1982 at 756; testimony of Joel Levy, T. of September 26, 1982 at 224-25; testimony of Lyn Rucker, T. of September 28, 1982 at 396, 440; testimony of Brian Lensink, T. of October 5, 1982 at 820, 850-51; testimony of Hugh Sage, T. of October 6, 1982 at 1032, 1071-72; testimony of Richard Blanton, T. of October 14, 1982 at 1900-01. The clients' lack of long-term memory requires constant practice of skills in the ward residential setting as well as in the more structured educational sessions. Consistency must be maintained seven days a week, twelve months a year. Every staff and professional person must work towards defined behavior goals if habit patterns are to be formed. Testimony of Kathleen Schwaninger, T. of April 5, 1982 at 753-54.

  The formal aspect of client education and training is mandated by state law. In New York, all clients in state institutions for the mentally retarded are entitled to six full hours of formal programming a day, unless they are specifically designated as medically exempt. T. of March 9, 1982 at 363; T. of October 6, 1982 at 1033; Pl. Ex. 23 at 325. There are between 20 and 50 medical exemptions among the approximately 1,200 clients currently at the Center. Testimony of Judy Walker, T. of October 8, 1982 at 1405.

  Clients under age 21 must be provided "a free appropriate public education which emphasizes special education and related services designed to meet their unique needs." Education for all the Handicapped Act, 20 U.S.C. § 1400(C) (Supp. 1983). See Sherry v. New York State Education Department, 479 F. Supp. 1328, 1335 (W.D.N.Y. 1979). See also Section 504 of Rehabilitation Act of 1973, 29 U.S.C. § 794. At the Center 135 of those clients under age 21 go to county-wide programs for the disabled in the local Half Hollow School District. 94 clients under age 21 cannot go off the grounds for programs. T. of October 13, 1982 at 1746-1747; testimony of Fred McCormack, T. of October 21, 1982 at 2527.

  The majority of Center clients are over age 21 and rely on the Center to place them in programs either on or off the grounds. The stated goal of the administration is to get all of the clients out of their wards and into a different environment for programming. Id. at 1749; testimony of Fred McCormack, T. of October 21, 1982 at 2527. Yet more than 300 clients remain in their wards during the day as well as at night. T. of October 13, 1982 at 1790. Cf. testimony of Fred McCormack, T. of October 21, 1982 at 2527 (985 residents receive programming outside of their residency).

  Whatever the goals of the institution and the requirements of law, programming at the Center falls short. Margie Grant testified that in Building 28, Ward C, where she works, approximately 14 (out of 20) clients that do not leave the building for programming receive no program at all. T. of October 1, 1982 at 607, 608, 609, 616. Brian Lensink said that he saw no programs in any of the residential units. T. of October 4, 1982 at 745. He noted that the direct care staff with whom such residents remain on the wards, as well as those who accompany the residents to their on-ground programs in other buildings, are not trained in educational programming. T. of October 5, 1982 at 813.

  Both on and off the wards, there are simply not enough programs to accommodate all of the residents. Such programming was not available to all residents of the Center in 1978 when this lawsuit began. See testimony of Edward Jennings, T. of March 10, 1982 at 514, 527-528. It is not available to all the residents today.

  Half of the adult residents were not getting six hours per day, on or off campus, in 1980. Pl. Ex. 23, 322-325. Half were not getting six hours when the trial began -- unless they were members of the "Willowbrook class." T. of March 9, 1982 at 311-312. In March 1982, including those involved in the central workshop program, "satellite" workshops, the Building 9 educational and workshop programs, and the living unit classrooms, fewer than 400 of the 1,000 adult residents were participating in any formal program at the facility. T. of April 5, 1982 at 821, 840-841.

  Perhaps 70 to 100 adults went off-campus for day programming, T. of March 8, 1982 at 205. While this practice is recognized as desirable in itself and as preparation for community living, opportunities for such programming are rare in part because of the facility's transportation problems. T. of October 21, 1982 at 2630, 2637. A lack of community resources also contributes to off-campus programming failures. T. of April 5, 1982 at 817-822.

  Parents and relatives who testified unanimously indicated that once their children or siblings passed the age of public school eligibility (if not before), any programming they received was sporadic, inconsistent, and therefore ineffective. T. of March 10, 1982 at 590-591, 596-597, 609-610, 647, 652-653, 690-691, 716; T. of September 25, 1982 at 158, 172-174, 177-178; T. of September 26, 1982 at 268; T. of October 4, 1982 at 689; Pl. Ex. 43, at 40-41, 69, 98, 106. What little these clients did receive was often due to their families' efforts, not the institution's. Several parents used their own or client's funds to hire a tutor to work with the residents. T. of March 10, 1982 at 610, 614, 645, 675, 691, 716; T. of September 25, 1982 at 160, 174; T. of September 26, 1982 at 312; T. of October 4, 1982 at 697; Pl. Ex. 43, at 30, 72-73.

  Resident Laura Knapp went without a program for five years after reaching the age of 21, until suddenly being enrolled in a workshop during the trial. Additionally, she pays for a tutor out of her own funds. T. of September 26, 1982 at 349-350, 352; T. of September 28, 1982 at 424-425.

  In some cases, the Center, as representative payee for the client's Supplemental Security Income or other benefits, makes the decision to use client funds for tutoring programs. T. of October 13, 1982 at 1806-1808. When the client or his or her family lacks the funds, no tutor is available.

  There is no objection to stretching the institution's resources with private funds. But those without funds or caring relatives cannot be denied programming. Differences in affluence which may be acceptable in an open society create severe inequities when imposed on those confined to institutions, with no power or capacity to aid themselves. This is neither equality in fact nor equality of opportunity.

  The quality of existing formal programs at the Center may be described as uneven to inadequate. For example, Dr. Clements saw a program in Building 3 in March 1982, in which six staff tried to work with 21 residents in an atmosphere of noise and confusion, using reinforcement techniques that might have been appropriate for some of the clients but certainly not for all of them. T. of March 8, 1982 at 75-76; Pl. Ex. 13. It could not be immediately determined which approaches would be appropriate for which clients, since the relevant plans and records were inaccessible. T. of March 8, 1982 at 75-76, 82. The Building 3 activities observed by Dr. Clements were examples of group exercises, not the individually designed programs that the clients needed. ID.

  In the Building 16 units, housing "acute" and "chronic" clients, the written program for most consisted of physical therapy. The staff was said to be trained in physical therapy techniques, but when asked for a demonstration, it evinced no familiarity with proper procedure. T. of April 5, 1982 at 777-778.

  In too many cases the lack of programming has resulted in injury to the clients. Testimony of Kathleen Schwaninger, T. of April 5, 1982 at 756; testimony of Lyn Rucker, T. of September 28, 1982 at 398.

  a. Toileting

  Both plaintiffs' and defendants' experts testified to the overwhelming need for toileting programs. Testimony of Richard Blanton, T. of October 14, 1982 at 1942; testimony of Judy Walker, T. of October 8, 1982 at 1445-1446. Brian Lensink saw no toilet training programs during his five days of visits to the Center in February and September, 1982. T. of October 5, 1982 at 863-864. Lyn Rucker was surprised by the great number of individuals in diapers. T. of September 28, 1982 at 389. Marian Ball testified that while she was at the Center many of those who required toileting programs did not receive them. T. of September 26, 1982 at 367-368.

  The Center's "Daily In Patient Census Summary," dated March 5, 1982, shows that of the approximately 1,200 clients, 800 were in need of, and not receiving, toileting programs. See Pl. Ex. 22; T. of April 5, 1982 at 858. Phyllis Killigrew, a member of the direct care staff, testified that she never knew of any "official" toileting programs. T. of October 1, 1982 at 585. When toileting programs did exist, they were implemented sporadically and without the accompanying reinforcement on the ward necessary for them to be effective. Testimony of George Fearing, T. of March 10, 1982 at 674-675. The graphic testimony of parents confirms this failure. Testimony of Evelyn Stutz, T. of September 25, 1982 at 158-159, 173, 178; testimony of Leila Gorelick, T. of March 10, 1982 at 647; testimony of Lita Cohen, T. of March 10, 1982 at 626. See also testimony of Kathleen Schwaninger, T. of April 5, 1982 at 806-807; testimony of Joel Levy, T. of September 26, 1982 at 225; testimony of Brian Lensink, T. of October 5, 1982 at 820; testimony of Hugh Sage, T. of October 6, 1982 at 1071-1072.

  The case of Dennis Silverman illustrates the need for consistent, continued training. He is a 37 year old resident of Building 16, who has gone to a community day program for seven years. He is trained to tell someone when he needs the toilet, and does tell someone at the day program. Yet there is often no one on the ward to hear him so he wets himself. Testimony of Rose Silverman, T. of September 26, 1982 at 296, 302, 303, 309. Recently, his parents in an evening visit found Dennis, wet, near the nurses' station, "sitting on a bed of cockroaches." Id. at 309-310. Silverman's situation is thus not much better than that of Tommy Czerniewicz, who has never been in any toileting program. Testimony of John Czerniewicz, T. of March 10, 1982 at 712-715. Ironically, the widespread implementation of toilet training would benefit the staff, as well as the clients, since it would free them from some of the housekeeping tasks they must now engage in, and give them more time to work with clients. Testimony of Lyn Rucker, T. of September 28, 1982 at 390.

  Skills once acquired are lost at the Center. There was testimony that several clients who were continent at the time they were admitted lost control during the course of their continued residence at the Center. Testimony of Phillip Feibusch, T. of October 4, 1982 at 702; see also testimony of John Czerniewicz, T. of March 10, 1982 at 712; testimony of Lita Cohen, T. of March 10, 1982 at 616-617.

  b. Behavior Modification

  Behavior modification programs at the Center for the large number of clients who require them are inadequate. In 1978, Edward Jennings found that provision of behavior modification programs for residents "was grossly inadequate." T. of March 10, 1982 at 560. He agreed that the absence of such programs, particularly for those residents with self-abusive and self-stimulating behaviors "could be very injurious." Id. at 557-560.

  Marian Ball testified that not all of those who required behavior modification programs received them, and that because programming was insufficient, drugs were often used to control behavior. T. of September 26, 1982 at 367-368, 369-370. Barbara Karp, who has been at the Center since 1972, never received any programming for her hair-pulling and head-banging. Instead, she was given "more and more drugs" and thus "is, to this day, addicted to Valium, and they could not take her off it because she had such tremors you could not touch this child." Testimony of Mildred Karp, T. of March 10, 1982 at 686, 692-693, 696. See also testimony of Dominica Moses, T. of September 26, 1982 at 268 (her sister has been in no program for two years).

  Without adequate training clients can easily develop or aggravate harmful behaviors. Testimony of defendants' expert Richard Blanton, who is responsible for residential programs for the developmentally disabled in Illinois, T. of October 14, 1982 at 1827, 1899-1900. That consistent and reinforced programming is, in fact, crucial, is made plain by the death, already adverted to, of Rose Maggio's son, Michael, one of a number of Center residents who demonstrated pica behavior. Michael was not consistently trained to avoid eating foreign objects. Testimony of Rose Maggio, T. of April 6, 1982 at 888-896; testimony of Lyn Rucker, T. of September 28, 1982 at 440. But see testimony of Anthony Mariano, treatment team leader in Building 28, T. of October 12, 1982 at 1525 (programming has no bearing on pica behavior).

  Kathleen Schwaninger testified that the Center was not providing sufficient training for those with self-abusive behavior. T. of September 25, 1982 at 49. Often the staff did not even interrupt the clients' negative behaviors. T. of April 5, 1982 at 808. Janet Stutz, who screams and bangs her chin, has never received any programming for either behavior. Testimony of Evelyn Stutz, T. of September 25, 1982 at 175-176. Lisa Gorelick has lost all sight in one eye due to a cataract caused by head-banging. Testimony of Leila Gorelick, T. of March 10, 1982 at 645.

  A few clients identified as having behavior problems that would be likely to result in harm to themselves and to other clients have a direct care staff worker assigned to them on a one-to-one basis. Incredibly, staff assigned to this one-to-one duty may not know of the specific behavior problems of their clients; rarely are they informed of any program designed to overcome the problem. T. of September 28, 1982 at 441, 442-443, 446; T. of October 5, 1982 at 820-823. See testimony of Brian Lensink, T. of October 5, 1982 at 825.

  Julie Mary Dean, who throws chairs and otherwise acts in a disruptive manner, has a staff member assigned to her on a one-to-one basis. As expert testified:

  

I asked her [the one-to-one] what her responsibility was and she said it is to -- she is supposed to stop the behavior.

  

She was not trained in how to work with Julie May. She did not know what she was to do for sure other than she was to stop that obnoxious behavior . . . . Even though [Julie] was assigned to the day program her behavior was too obnoxious to allow her to attend and when she did attend [the direct-care staff] didn't know what she did . . . . It is injurious in that she is not getting the training or the benefit in relation to the expenditure that is being made.

  Testimony of Brian Lensink, T. of October 5, 1982 at 828-830.

  The testimony of Maria Saracino, a member of the direct care staff in Building 28, Ward C, confirmed the dangers to clients created by lack of programming and failure to train staff:

  

We have two particular clients that have been constant behavior problems . . . . They have to be under very constant supervision because they are hitters, they're scratchers, they are biters . . . . they have caused a problem on the ward, because our other clients are . . . small in stature, and unable to defend themselves against them . . . . We have repeatedly, every single day, brought this to the attention of the doctor, the nurse, the team leader, the chief of service . . . . Quite often the other clients are bitten to a point that the skin is broken and they have received a bad bruise.

  

They are hit against the wall or knocked off a chair where they are badly bruised.

  

They have been scratched where the skin has been opened up, and badly hurt in that manner . . . . Because we have brought it to the attention of the psychologist and the previous team leader, a program was begun to be worked out.

  

It did not come about because we had a change of team leader, and it has not been yet activated . . . .

  

Q Were you folks trained in how to implement what was written on paper?

  

A No. We were not.

  T. of October 1, 1982 at 636-639. Staff "were not aware of any active programming going on to eliminate those [self-abusive] behaviors." Testimony of Lyn Rucker, T. of September 28, 1982 at 441.

  Even for those clients who began without them, lack of programming may lead to behavior problems. Testimony of Brian Lensink, T. of October 5, 1982 at 849-850. Direct care staff person Elle Ambrose acknowledged that Russell Cohen is not self-abusive when he is kept occupied. T. of October 13, 1982 at 1702-1703. Many clients have developed harmful or inappropriate habits, such as head-banging, eye-gouging and biting themselves, which may be caused by boredom, and an unstimulating environment. Testimony of Kathleen Schwaninger, T. of April 5, 1982 at 780-781.

  The environment of a large institution may exacerbate dangerous behavior because of an "inability to provide enough attention to people and the way people get the attention they seek is acting out behaviors . . .." Id. at 811-812. Moreover, clients will pick up each other's inappropriate behaviors in order to receive attention that would otherwise not be forthcoming. Id. at 809. Thus, the failure to provide a behavior modification or other program for one client with negative behavior, may encourage the acquisition of such behavior by other clients.

  Practically every parent or relative that testified described the serious injuries they found when visiting. For example, Lisa Gorelick

  

has had two broken collarbones, she has had one broken finger when the residents slammed the door on her finger, and she had another finger injury . . . . She was once bitten on the buttocks when the children were showered in an assembly line fashion and she was through being showered . . . . She has had black eyes, she almost always has bruises on her forehead from hanging her head . . . .

  Testimony of Leila Gorelick, T. of March 10, 1982 at 646.

  When Donald Fearing visits the Center he checks his son's body.

  

I have found that invariably he is scratched from head to foot . . . . He . . . had a terrible wound on his elbow . . . . he had a broken nose twice . . . . He has had at least six injuries . . . requiring stitches . . . mainly around his head area . . . . [as a result of] personal attacks by another resident.

  T. of March 10, 1092 at 670-672.

  Barbara Karp

  

suffered a broken upper arm . . . . She has had head injuries, she has had stitches on her head and forehead, scratches around the eyes, bleeding from the ear . . . . and bites.

  Testimony of Mildred Karp, T. of March 10, 1982 at 694.

  Before Michael Maggio died he had a fractured wrist, and many bites on his body. Testimony of Rose Maggio, T. of April 6, 1982 at 884-885. Once Mr. and Mrs. Maggio saw their son naked, being choked by another boy as an attendant sat by and watched. ID. at 886.

  The scene of Nicolina Coster being beaten by a resident while the person on duty watched television has already been described. Testimony of Dominica Moses, T. of September 26, 1982 at 277-278. Nicolina was again hit by a resident the following month. When Mrs. Moses went to see her sister two days later,

  

Her face was covered with black and blue marks. Her chest, upper chest and her back were black and blue. Her front tooth was missing . . . . She was pulling the hair out of her head.

  

As I came in, she jumped up in the seat and she said, "Help me, help me. Please help me." She was also doing that to one of the other workers.

  

Her leg was . . . as big as my entire body. A worker told me that she had not slept since the beating . . . .

  Id. at 279-280. Since then, Nicolina has also had her nose broken. Id. at 283.

  Robert Stutz, who "was constantly being pushed and shoved," has had 31 stitches over his eyes, and now "has so much scar tissue here, that he has lumps over his eyes . . . ." Testimony of Evelyn Stutz, T. of September 25, 1983 at 168-169. See also testimony of Lita Cohen, T. of March 10, 1982 at 594-595. Thus, the result of thee lack of appropriate programming is that many clients, whose negative behaviors harm both themselves and other clients, live in an environment that cannot protect them from harm. Testimony of Brian Lensink, T. of October 5, 1982 at 868.

  Even when a good program is begun it often ends abruptly when funds for personnel are cutback. Where programs do exist, they are often sporadic; they have "started and ended rather abruptly." Testimony of Philip Feibusch, T. of October 4, 1982 at 689.

  c. Feeding

  Equally crucial to safeguarding the life of a client are feeding programs in which appropriate chewing and swallowing behaviors are taught. Without such programs, there is an increased probability that clients will choke. This risk is increased by staff feeding supine clients. When Kathleen Schwaninger visited Wards 3-A and B of Building 16,

  

Staff were not stimulating any swallowing or chewing techniques with clients. They were putting the food in the clients mouths.

  

One client was being fed in a supine position and that is significantly inappropriate for a client with these types of physically disabling conditions . . . . A person is flat on their back, and if they do not swallow or have trouble swallowing they begin choking on their food . . . . A client can aspirate and die, choke and die . . . . What happens is that either the food doesn't go down or the food goes partially down or the food comes back up and starts getting in the client's breathing apparatus . . . . It leads to choking, it leads to the client not being able to get oxygen to breathe.

  T. of April 5, 1982 at 777-779. See also testimony of Kathleen Schwaninger, T. of September 25, 1983 at 146. Neither did Lyn Rucker see any active feeding programs. T. of September 28, 1983 at 454. But see testimony of Thomas Amorillo, T. of October 12, 1982 at 1559 (citing success of program that increased food intake of underweight, multiply disabled resident of the pulmonary care unit).

  There are not enough feeding programs being carried out at the Center. Even in Building 9, one of the buildings specially reconverted for use for education, mealtimes are not learning experiences. Testimony of Kathleen Schwaninger, T. of April 5, 1983 at 804. Ms. Schwaninger observed one exception in which a teacher was working with one client during lunch in the school building to overcome food-grabbing and food-shoveling behaviors. When this same client was observed eating in her residence, Building 26, however, she grabbed and shoveled. Inappropriate eating behaviors are not interrupted by the staff. Id. at 807-808. Without coordination on the ward, the school program is practically meaningless. T. of April 5, 1982 at 805-807.

  There is only one family style eating program at the Center. It involves seventeen clients in Building 2. Testimony of Rosalind Burke, T. of October 13, 1982 at 1808. Only in a few of the buildings do the clients eat off plates. Id. at 1809; testimony of Florence Roukis, T. of October 8, 1982 at 1281. Plates and silverware were first used in Building 30, which houses high-functioning residents, only about a year ago. Most Center residents are fed from compartmentalized trays in which various foods are often mixed together. Testimony of Florence Roukis, T. of October 8, 1982, at 1282-1283.

  d. Speech Therapy

  There are insufficient speech therapy programs at the Center. Neither Robert nor Janet Stutz has ever had any speech therapy. Testimony of Evelyn Stutz, T. of September 25, 1982 at 166, 177. Janet screams, though she is not verbal. Id. at 176-177. Robert has also tried unsuccessfully to communicate. Though Robert is ambulatory, and "can walk perfectly by himself," he spends much of his time sitting, locked into a chair, with a restraining lapboard, in the dayroom of Building 14, Ward 3.

  

Q. Is there any reason that you know of why Robert ought to be locked into a chair?

  

A None . . . . Robert is not verbal but at one time in another ward he picked up his entire chair and put it on his back and proceeded to walk with it on his back. He was trying to tell the staff there I want to get out of his chair but who listened. When I walked in a couple of days later they said to me the first thing -- "You know what you son did?" "No, what?" "He picked up the chair and walked around with it on his back."

  

I said, "Well, he is trying to give you a message, that he wanted to get out of that chair."

  Testimony of Evelyn Stutz, T. of September 25, 1982 at 165-166.

  Barbara Karp, a resident since 1969, has never received any speech therapy. When her mother specifically requested it for her, she was told "there were very few therapists." Testimony of Mildred Karp, T. of March 10, 1982 at 691-692.

  Because of the environment and lack of training, speech skills formerly acquired are lost. Tommy Czerniewicz, who was able to talk and sing before he was institutionalized, now "is virtually mute," in the words of his father. Testimony of John Czerniewicz, T. of March 10, 1982 at 715. In the thirteen years that Tommy has lived at the Center he received no training of any sort until two weeks before his father testified at the trial. Id. at 707, 716.

  When Dennis Sliverman was admitted to the Center he could speak. Nevertheless he was placed in a ward in Building 15 with non-verbal residents. His speech ability declined markedly during the six or seven years he lived there. His mother testified that the doctor in the ward did not even know Dennis could speak.

  

He was in an area where nobody spoke or said anything and had no reason to talk.

  

One day I came into Building 15 and I greeted all the men and I said good morning boys and my child came forward and I said good morning Dennis and he said good morning mommy.

  

And a doctor said to me, Mrs. Silverman, I didn't know he knew how to speak.

  

And I said, Doctor, if you said good morning or good night you might know who could speak in this ward.

  Testimony of Rose Silverman, T. of September 26, 1982 at 301-302.

  Donald Fearing who could speak single words, had speech therapy for an hour once or twice a week -- not enough, according to his father, to lead to any improvement in his speech. Testimony of George Fearing, T. of March 10, 1982 at 675. That his speech has now improved is due to Donald's work with a private tutor, paid for out of his social security money, and arranged for by his father. Id. at 676. Mr. Fearing believes that Donald's behavior problems are due to "his inability to express himself adequately." Id. With sufficient speech therapy or training in communication skills, this father believes many of his son's problems would be alleviated.

  Thomas Amorillo, the Chief of Speech and Hearing at the Center, conceded that while 600 clients are presently in speech therapy, not all of those who require this work are receiving it. T. of October 12, 1982 at 1572. Amorillo acknowledged that a lack of communication skills may make a client appear to be less capable than he or she really is. Id. at 1589. The result is reduced expectations and less attention to the client.

  The absence of work on speech of clients is undoubtedly due in part to the lack of therapists at the Center. From 1976 to 1979 when Mr. Amorillo was a staff speech therapist in Building 23, there were generally two speech therapists for about 98 clients. Id. at 1568. As the Chief, Mr. Amorillo now supervises 28 speech pathologists for a client population of 1,200 -- not a significantly different ratio. Id. at 571. At the time he testified, Amorillo acknowledged there were two vacancies for speech pathologists at the Center, for which he was trying to obtain an exemption from the hiring freeze. T. of October 12, 1982 at 1567-1577.

  The lack of enough clinically trained staff adversely affects the clients, who are denied the therapy and evaluation they require. It also has a negative impact on the direct care staff, who "are primarily responsible for the implementation" of speech programs; they are denied the training they need. Id. at 1552.

  e. Physical Therapy

  Physical therapy programs are inadequate. Edward Jennings recalled that in 1978 very few residents were receiving required positioning, necessary to the maintenance of body flexibility for those with severe muscular problems. T. of March 10, 1982 at 553-554. Generally, without such positioning or other physical therapy, muscle problems become worse. Id. at 554. As one expert put it:

  

Well, if you have a physical disability and you are sat on a mat, hopefully on a mat, many other times on the floor of a cottage with 30 other people who have the same disabilities with one or two staff persons, with no orientation to training, . . . there is no way to exercise and to stimulate those limbs in order to prevent the atrophy and the contractors which will become more and more severe the older that person gets . . . . If you take that same child and you start moving those limbs every single day on a regular routine basis, and you start moving the joints and you start getting that person to start standing up and straighten their spine and using the limbs . . . you don't need to have those kinds of crippling disabilities that occur from neglect.

  

Now, once a person has already established that severe handicap it becomes exceedingly difficult to try to correct it. They can be improved over a period of time, but it is very unlikely that it will be corrected.

  Testimony of Brian Lensink, T. of October 5, 1982 at 850-851.

  Both plaintiffs' and defendants' experts reported on the shortage of physical therapists. Hugh Sage, one of the defendants' experts, specifically mentioned the "critical deficiency" of physical therapists. T. of October 6, 1982 at 1015. He noted that the physical therapy treatment activities at the center met neither minimal federal standards nor current professional standards. Id. at 990, 1027. Dr. Sage warned,

  

that the existence of those deficiencies, were they not to be corrected, would have the effect of preventing the development of more normal behavior . . . . I do concede that it probably would prevent the development of a good deal of human behavior which . . . the standards required.

  Id. at 1028.

  Kathleen Schwaninger also observed many clients in need of physical and occupational therapy; she attributed the fact that they were not receiving treatment to the shortage of physical therapy staff. T. of September 25, 1982 at 22-24. Joseph Ryan, the Deputy Director of the Center, acknowledged the difficulty the Center has had in recruiting physical therapists. T. of October 5, 1982 at 908-910. He cited that problem as the explanation for the numerous deficiencies in physical therapy found by various survey teams. Id. at 907. Responding to this deficiency, the Center drafted a policy memorandum, dated February 1982; it has not alleviated the situation. T. of October 5, 1982 at 912-914.

  The impact of the lack of physical therapy and physical therapists on some clients has been disastrous. For example, Dennis Silverman who could walk before he was institutionalized had to have major surgery to release one of his legs. Following the operation, his doctor ordered certain post-operative physical exercises to enable Dennis to move his legs performed at the Center. That therapy was never provided and Dennis' legs remain paralyzed. Testimony of Rose Silverman, T. of September 26, 1982 at 305-307.

  Lyn Rucker saw no physical therapists at all in her tour of the Center. T. of September 28, 1982 at 398. She was told of a formerly ambulatory resident whose hip was not pinned properly following a fracture, and for whom neither corrective surgery nor therapy was planned. Id. at 437. She also mentioned Audrey Rothstein, a resident of Building 26, for whom orthopedic shoes had been prescribed to enable her to walk. However,

  

The indication from the staff, is that she did not have her orthopedic shoes on, for her mother had purchased the shoes for her at a cost of $300, and since she is not toilet trained, she did not have the shoes on because otherwise she would get the shoes messy. She was barefoot.

  

I asked, wasn't it the opinion of the physical therapist, that she be wearing shoes at all times. The indication was that she did not have a physical therapist. They did not know whether she should be wearing them all the time or not . . . .

  Id. at 458.

  Another client, Barbara S., who had been mistakenly identified as non-ambulatory, spent 13 years in a wheelchair at the Center without any therapeutic intervention, before she began to learn to walk again. As a result, she has suffered "significant muscular atrophy." Id. at 861-863.

  Several parents testified to the deterioration in their children's ability to walk. Russell Cohen, Tommy Czerniewicz and Susan Feibusch, who were ambulatory, were placed for a time in non-ambulatory wards. T. of March 10, 1982 at 613, 722; T. of October 4, 1983 at 690. For Tommy, this "meant that he was indoors all of the time and absolutely nothing to do. He was virtually a prisoner." Id. at 722. Although Lisa Gorelick

  

walked into Suffolk Developmental Center fifteen and a half years ago with straight legs, she how is walking on bent legs, unless she has on a pair of full-length braces which [her mother] never sees her wearing.

  T. of March 10, 1982 at 638-639. See also, e.g., testimony of Kathleen Schwaninger, T. of April 5, 1982 at 776-777; testimony of Phyllis Killigrew, T. of October 1, 1982 at 583-585; testimony of Evelyn Stutz, T. of September 25, 1982 at 165-166.

  Restraints which prevent walking reduce the need for supervision, and allow the small number of staff to be spread more thinly. Staff

  

feel it is easier to have a child in a wheel chair [than] running around, because they are going to hurt themselves, because the biggest thing in the institution [is] that the child should never get hurt, because they don't want to explain how it happened.

  Testimony of Phyllis Killigrew, T. of October 1, 1982 at 584.

  f. Education

  1. Prevocational and Workshop

  Vocational habilitation consists of training clients, by stages, to perform work requiring simple skills. During its visits, the Court was struck by the marked improvement of the Center's vocational program between the time of the Court's first visit in November 1978 and in its later visits in February 1983. At trial, however, several experts emphasized continuing substantial deficiencies in the vocational programs.

  Some problems are attributable to conditions at the Center. Many, it seems, result from a lack of client workshop facilities in the Long Island community.

  As described by staff members and visiting experts and as seen by the Court in its later visits to the Center, the vocational program is divided into phases of increasing ability levels. A multi-handicapped client may begin with pre-vocational skill training taught in Buildings 4 and 9. This consists of socialization, body awareness, color discrimination, and various table-top learning games. Testimony of Rosalind Burke, T. of October 13, 1982 at 1737. Clients who have attained simple skills in packaging materials are placed in an upper pre-vocational program such as that conducted in Building 20. Testimony of Rosalind Burke, Deputy Director of Treatment Services, T. of October 13, 1982 at 1737, 1744.

  More advanced clients are placed in workshop programs in Building 17 and various satellite workshops around the campus. In these workshops the clients perform assembly and packaging of materials under contracts with private industry. The tasks require from one to six simple and repetitive operations. For example, one contract consisted of putting face sheets on the cover of notebook binders and then boxing the binders for shipment. T. of April 5, 1982 at 820, 827. Another contract had clients assembling ball point pens for a hotel chain. Clients doing this kind of relatively advanced work earn token piece-work wages.

  The goal of the workshop program at the Center is to train clients for placement in community workshops. Community workshops are operated by private not-for-profit organizations and perform contract work for private industry. The community workshops are subsidized both by the contract work and by the state Office of Mental Retardation and Development Disabilities. To a greater degree than the Center these outside workshops are production oriented. In these shops clients earn income according to their production output. See generally testimony of expert Kathleen Schwaninger, T. of April 5, 1982 at 823-829.

  Expert Brian Lensink on his visit to the Building 20 program in the summer of 1982 noted "a terrible shortage of work . . . . The clients were sitting at the table without any work waiting for something . . . ." At no time did the staff member present leave his desk or otherwise interact with the clients. Lensink was therefore skeptical when staff members told him that they had little time to teach work skills because of the pressure to get work out. T. of October 4, 1982 at 761-763; T. of October 5, 1982 at 809-810.

  Laura Knapp, an impressively articulate young woman with cerebral palsy who lives at the Center, testified that her program began only two weeks prior to her testimony and consisted of three hours a day, though "on and off," of placing nuts and bolts in plastic bags. T. of September 26, 1982 at 351. For someone like Ms. Knapp, who plainly should be living in the community, such a program is unquestionably insufficient and fails to develop her potential.

  A serious continuing problem is the lack of community workshops and the restrictive eligibility criteria of those that do exist. The paucity of workshops in the community forces Center residents to remain in the Center. Some clients residing in the community must return to the Center workshops for their day programs, an undesirable situation. The back-up extends down the line to the prevocational programs, where the clients who are ready to move on to the workshops must remain due to the lack of openings. The result is that at every level there are some clients engaged in inappropriate vocational activity in inapposite settings.

  The lack of community facilities has been attributed in part to the opposition of Nassau and Suffolk county officials. Commissioner Slezak testified, T. of April 6, 1982 at 963-64, that these officials refused to give approval to various workshop and residential proposals made by voluntary agencies, pursuant to state regulatory procedures. See 14 N.Y.C.R.R. §§ 51, 53. The director of the Young Adult Institute, a private agency with extensive experience in serving New York City clients with severe handicaps and behavior problems, testified to the opposition of defendants and other community agencies in Nassau when his organization attempted to establish day and residential programs on Long Island. T. of September 26, 1982 at 219-21, 236, 237-38, 241-42; testimony of George E. Smith, T. Of October 20, 1982 at 2440-41.

  A problem with the existing community workshops is apparently that, with their orientation towards production they will not accept clients who may need major training in order to work or who may exhibit inappropriate behavior. By contrast the Center workshops are able to provide some training and deal with behavioral problems and still get some work out. Expert Kathleen Schwaninger criticized the private agencies and the state office that funds them for not having the community workshops assume more responsibility for education and training. T. of April 5, 1982 at 833-834, 838. The court is not in a position to evaluate these criticisms since the focus of the suit was the Center. Much good work is done in community workshops and other institutions operated by private agencies.

  The vocational program as it is currently conducted at the Center is a positive and hopeful sign, indicative of the improvements that can be implemented at the Center with a dedicated leadership and staff. It also demonstrates how some of the problems of client development may possibly be traced to parochial attitudes and economic and social circumstances in the Long Island community as a whole, not just to the deficiencies at the Center.

  (2) SchooL

  Building 9 houses an on-grounds school program, with 18 classrooms, that serves about 165 clients -- most of whom are over age 21, and therefore no longer eligible for the local public school county-wide program. Id. at 1745-46. The building is divided into two wings, with a gymnasium in the center. The clients are grouped by functioning level, so that

  

One wing houses classrooms for lower functioning clients with emphasis on social skills, training, eating, developing eating skills, developing personal care skills, learning how to dress, comb the hair, wash their hands, go to the bathroom, brush their teeth.

  

Wing B individuals [are a] higher-functioning group of clients, including three vocational and prevocational clients.

  Testimony of Kathleen Schwaninger, T. of April 5, 1982 at 797. See also testimony of Rosalind Burke, T. of October 13, 1982 at 1745. A similar program in Building 21 serves 110 clients. T. of October 13, 1982 at 1746.

  One hundred thirty five Center residents, all under age 32, attend public school programs. 35 Center residents attend community day programs operated by United Cerebral Palsy and the Association for the Help of Retarded Children. Id. at 1747.

  Building 4 opened as a program building on September 15, 1982 -- while this trial was in progress. It serves primarily profoundly retarded, multiply handicapped individuals. Id. at 1736. The program there as described by a staff member,

  

varies with the different groups. From my multi-handicapped group, who are non-ambulatory, we would [do] primarily prevocational skilled training. We do socialization, body awareness, color discrimination. We are also incorporating into this program, this task for these clients. Some of them . . . are not transported, they go by themselves with a staff member with them to the building four program. This means crossing the road.

  

So what we have been trying to do and we are in the process of establishing goals for training so they will learn to look both ways when crossing the road, watch out for traffic. We are working on a signal being placed in that area so they can be aware of stop signs, etc.

  Id. at 1737.

  Despite the defendant's belief that all residents ought to leave their residential buildings for programming because "a change in environment is good for everybody," more than 300 clients, particularly those in wheelchairs, continue to receive their training, if any, in the same buildings in which they live. Id. at 1749, 1792, 1978-90. The educational programs do not accommodate all of the residents who should attend them. Testimony of kathleen Schwaninger, T. of April 5, 1982 at 800. Some of the classrooms, particularly those for clients with orthopedic equipment, in the medical-surgical building, are neither large enough nor adequately equipped with appropriate teaching materials to effectively accomplish the teaching intended. One expert reported only short teaching schedules in inadequately furnished classrooms:

  

There is not room in those classrooms for the respective teachers to be able to take the clients out of their orthopedic equipment and work with them in a motor-development kind of way.

  

It is crowded . . . . In each classroom the way the clients were being worked with was by the teacher placing a different kind of toy or material in front of the clients and then rotating from client to client and working with them -- in working with that particular toy.

  

A second classroom had been set up within the three weeks previous to my visit.

  

That classroom was barren. It was bare. The teacher really didn't have an adequate supply of materials at all.

  

The teacher didn't have a desk . . . . It is a very limited period of time. It is only approximately an hour. There are not enough materials.

  

The teachers are really to be commended for their commitment. They really want to work with the clients and do something for them.

  

But, . . . the teacher, himself, responds to a barren environment . . . . And the clients are not provided with stimulation.

  Testimony of Kathleen Schwaninger, T. of April 5, 1982 at 790-92.

  Neither the school program nor the workshops or prevocational programs provide the full six hour complement of programming, accepted as standard by professionals in the mental retardation field. Cf. Testimony of Brian Lensink, T. of October 4, 1982 at 782 (specifying that eight hours is the accepted standard for workshop programs).

  Brian Lensink testified that Richie, one of the workshop participants in Building 9, could have received at best a maximum program day of "five hours and that was not every day." T. of Otober 4, 1982 at 781. In Building 9, the program day ends at two o'clock, though it is scheduled to end at three o'clock. Testimony of Kathleen Schwaninger, T. of April 5, 1982 at 796. Ms. Schwaninger testified that other clients in Building 10 could be receiving no more than 2-3 1/2 hours of schooling. T. of April 5, 1982 at 848.

  Programs do not operate over the summer. This results in clients losing "skills they possess when school lets out in May, . . . [so] when the students come back in the fall, there is a significant period of time spent in recapping what the clients had when they left the classroom program." Testimony of Katleen Schwaninger, T. of April 5, 1982 at 800. The summer hiatus is apparently due, at least in part, to a bureaucratic entanglement which would require teachers -- who work only during the school year -- in the educational program to be reclassified as Developmental Disability Specialists in order to work during the summer. Id. at 799.

  g. Deaf and Blind Clients

  The Center has no special programs for deaf and blind clients. They are badly needed. Testimony of Maria Saracino, T. of October 1, 1982 at 635.

  3. Individual Developmental Plans

  Center policy as well as federal and state law requires that a written individualized treatment plan setting forth determined goals, with specific programs and therapies to achieve those goals, be developed and maintained, with current records of progress, for each client. An adequately detailed and up-to-date developmental plan is crucial. It is the means by which staff learn what programs have been specifically designed for each client, and how those programs are to be implemented.

  In the prior discussions of "staffing" and "programming " failures were traced in part to lack of programs, lack of staff familiarity with what programs did exist, and inadequate staff training in the implementation of programs. Additionally, the inadequate programming at the Center may be attributed to the deficient condition of many individual plans. Of the 32 plans that Brian Lensink randomly examined during his visit to the Center, none reflected the client's specific or important needs. T. of October 5, 1982 at 811. For example, in September 1982, Mr. Lensink reviewed Russell Cohen's plan and found a goal that stated "Russell will not imbibe any unusual liquids from 6/4/82 to12/4/82." When he mentioned it to the staff, no one knew of any unusual liquids Russell was imbibing. T. of October 5, 1982 at 823-24. In many of the plans, the goals had not been adequately documented, and were out of date. Id. at 784.

  Often, the goals were broadly stated and poorly described, so that they were of no use to the direct care staff charged with carrying them out. Id. at 780; T. of October 5, 1982 at 811. Lensink found percentage goals, though the staff had no means of measuring them. T. of October 5, 1982 at 812. The same goals, on xeroxed forms, were used for many clients even when this uniformity appeared to be inappropriate. Id. at 817. Identical plans did not "appear to be the best way to establish individualized goals." Id.

  Many of the individual treatment plans at the Center are useless. In the case of Richie S., for instance,

  

There really was no program in the [Individual Developmental Plan]. There was lots of papers but no specific program to be worked on. There was no program information available to the [Direct Care Staff person] to follow.

  Id. at 780.

  Though Richie's school teacher had written goals for him they "were kept in a file cabinet in the school and they were not going to the residence and they were not in the" plan. T. of October 4, 1982 at 780. The plans are often descriptive of staff activity rather than client achievement. For example, a typical statement is: "will receive individual care with respect to bathing, feeding, dressing, to maximize health and comfort," with no indication of how these general goals were to be accomplished. T. of October 4, 1982 at 741; T. of October 5, 1982 at 811-812, 818. Even the widely used "canned" plans introduced at trial by defendants (Def. Ex. 239-241) contained goals that were vague, non-behavioral, unmeasurable, and stated in a negative manner -- all contrary to the Center's own training manual. Testimony of Rosalind Burke, T. of October 13, 1982 at 1815-1821; Def. Ex. 25.

  Very few individual development plans, moreover, set forth step-by-step procedures for the staff to follow; they are written so broadly and generally that the staff cannot tell what to do. The result is an enormous amount of paper, but not a specific program for the client focused on his or her most important needs. Testimony of Brian Lensink, T. of October 4, 1982 at 775-777, 779-780. Thus, defendants' ambitious goal plan for correction of one client's "pica" behavior (Def. Ex. 222), turned out to be nothing but a goal -- the necessary baseline information had never been compiled because of a lack of staff. There were no instruction to the staff as to when various activities should occur, and in fact, the plan had never been implemented. Testimony of Lyn Rucker, T. of September 24, 1982 at 548-549.

  Federally mandated independent peer reviews of the Center, including that of May 1982, have consistently criticized the institution's deficiencies in program evaluation, documentation, and record-keeping. Testimony of Stanley Slawinsky, Deputy Director for Quality Assurance at the Center, T. of October 13, 1982 at 1644, 1646, 1649-50; Pl. Ex. 8; Def. Ex. 224. The most recent survey found that half of the psychological evaluations of Building 28 residents had not been updated. T. of October 12, 1982 at 1497. Both the State's own expert, Dr. Hugh Sage, and Joseph Ryan, the Deputy Director of the Center, agreed that adequate documentation was lacking. T. of October 6, 1982 at 1004-1006; T. of October 5, 1982 at 906.

  The most serious problem with the Center's developmental plans is that almost nobody uses them for their intended purpose. As noted above, the plans are inaccessible to the staff who might make use of them. Testimony of James Clements, T. of March 8, 1982 at 82. Almost invariably, when plaintiffs' experts asked employees about the plans for clients in their charge, the staff was unaware of the goals and methods they supposedly contained. Testimony of Lyn Rucker, T. of September 28, 1982 at 441-443, 446; testimony of Brian Lensink, T. of October 4, 1982 at 753, 775; T. of October 5, 1982 at 811-812, 816, 820-823. Even those employees who are aware of the clients' goals are generally so busy with other duties that they have no time to work on them. Testimony of Margie Grant, T. of October 1, 1982. The plans, however good or bad they are, are almost never implemented or even understood by staff. Id. at 741.

  This widespread failure to make use of individual development plans is harmful to the clients. The resulting lack of consistent clues and responses from all staff confuses the clients and inhibits their learning. See testimony of James Clements, T. of March 8, 1982 at 82-84; testimony of Kathleen Schwaninger, T. of April 5, 1982 at 753-754.

  4. Environmental Conditions

  a. Wards

  There are 25 residential buildings at the Center. Aside from the smaller cottages which house higher-functioning clients, they are generally divided into wards of 18 to 25 clients. Each has a dormitory or bedroom area, often kept locked during the day, a dayroom, and a dining area.

  In order to comply with federal requirements, necessary to continued receipt of federal funds, some of the larger dayrooms have been subdivided to function as residential sleeping areas, as well as dayrooms. Partial dividers have been used to separate the dayroom area from eight-bed groupings. This increases the square footage per client bedroom space, and conforms to the eight-bed federal limitation on residential groupings of clients. Testimony of Kathleen Schwaninger, T. of April 5, 1982 at 849-50.

  When Fred McCormack assumed the post of Director in August 1981, he closed three buildings that had been residences because they were not suitable -- the last in May, 1982. T. of October 21, 1982 at 2525-2526.

  Over and over, the same words appear in the trial record to describe the environment in which residents must live: barren, unstimulating, empty, prison-like, and harmful. These observations were made by experts, parents, and some of Center's own direct-care staff about every residential building throughout 1982, and earlier. Testimony of James CLements, T. of March 8, 1982 at 56; testimony of Margie Grant, T. of October 1, 1982 at 620; testimony of Phyllis Killigrew, T. of October 1982 at 587-588; testimony of Brian Lensink, T. of October 4, 1982 at 742-744.

  Residents spend many hours in large dayrooms with few furnishings, toys, personal belongings or decorations. They wander, sit, rock or lie on hard uncarpeted terrazzo floors which magnify the din caused by constantly blaring television sets, radios, and record players, often all going at once. Testimony of James Clements, T. of March 8, 1982 at 28, 58-59, 60, 88-89; testimony of Lita Cohen, T. of March 10, 1982 at 598-599; testimony of Lelia Gorelick, T. of March 10, 1082 at 643; testimony of Mildred Karp, T. of March 10, 1982 at 680; testimony of Evelyn Stutz. T. of September 25, 1982 at 166-167, 181; testimony of Dominica Moses, T. of September 26, 1982 at 270-271; testimony of Lyn Rucker, T. of September 28, 1982 at 436-437; testimony of Phyllis Killigrew, T. of October 1, 1982 at 587-590; testimony of Brian Lensink, T. of October 4, 1982 at 739, 743-744; Pl. Ex. 12, 13; Pl. Ex. 23 at 607; Pl. Ex. 49. The painfully high noise level frustrates any effort that might be made at communication. T. of March 8, 1982 at 60, 88-89; T. of April 5, 1982 at 760. Toys and the like are rarely in evidence because of the overextended staff's fear that some residents would take them apart and perhaps try to eat them. T. of October 13, 1983 at 1696.

  The dayrooms are usually sparsely furnished, with few, if any chairs. Furniture where available is usually inappropriate. For example, in its visit of February 21, 1983, the court observed metal furniture, with sharp edges,, used to separate part of a dayroom in Building 11 that had been converted to a bedroom in order to meet federal requirements.

  Almost without exception, the doors are locked to buildings, to dayrooms within the buildings, to bathrooms, and to sleeping areas. Testimony of James Clements, T. of September 25, 1982 at 46-47; testimony of Judy Walker, T. of October 8, 1982 at 1383, 1447. Thus clients cannot go to the bathroom on their own, even if they are otherwise able to. They cannot relax on their own bed or escape from the tumult of the dayroom. There simply is not enough staff available on the living units to supervise the clients in more than one place at a time. T. of September 24, 1982 at 46-47; T. of October 8, 1982 at 1447-1448.

  In the bathrooms, the toilets often lack partitions between them, as well as toilet paper, towels and soap. T. of October 5, 1982 at 826-827, 836. And in adult wards, the sinks are designed for use by children, so that the residents cannot be taught how to use them. Id. In the East Campus, there are no bathtubs in the residential buildings. T. of October 18, 1982 at 2031. Many clients are subjected to congregate or "gang" showers because of the shortage of staff. T. of March 8, 1982 at 59, 99; T. of October 1, 1982 at 598.

  Several of defendants' witnesses admitted that the situation is not satisfactory. Testimony of Dr. Stanley Slawinsky, Deputy Director for Quality Assurance at the Center, T. of October 13, 1982 at 1687. Dr. Richard Blanton, one of defendants' experts commented that, "[a] lot of doors need to be unlocked, a lot of normalized things need to happen at Suffolk . . ." T. of October 14, 1982 at 1936. And Laurie Schwartz, a Speech Pathologist Supervisor at the Center, agreed that it is inappropriate for both the television set and record player to be on at the same time. T. of October 20, 1982 at 2332-2333.

  Other witnesses testifying for the defendant acknowledged the constant problems with vermin. Testimony of Florence Roukis, Institution Food Administrator for the Center, T. of October 8, 1982 at 1729-1280, 1285. There was a serious rodent infestation netted by the survey team in its May 1982 inspection. T. of September 25, 1982 at 1919; Pl. Ex. 33. Such problems continue today. T. of October 19, 1982 at 2071-1072.

  Some units are not cooled in summer and the hot sun beating down on the unshaded brick buildings raises the temperature to a dangerous level. By contrast, in the winter, the heat in some buildings is insufficient, creating special problems for poorly clothed clients sitting on the terrazzo floors.

  The most recent independent survey of the Center contained 19 pages of life safety code violations and 58 pages of related environmental, maintenance, sanitation, safety, and programmatic violations; included were such problems as timely completion of only 18% of scheduled preventive maintenance. T. of April 6, 1982 at 895-896; T. of September 15, 1982 at 201-204; T. of October 14, 1982 at 1902; Pl Ex. 33. The facility's performance on this review, conducted by the State Office of health Systems Management, was a slight improvement over the 64 pages of deficiencies in October, 1981, and was considerably better than the 99 pages in the 1980 survey. T. of March 8, 1982 at 230-231; 238; T. of March 9, 1982 at 261-262; Pl. Ex. 33.

  Plaintiffs' witnesses concluded that physical conditions alone rendered the Center an unsafe environment for some of its residents. Testimony of Kathleen Schwaninger, T. of September 25, 1982 at 44-45; testimony of Brian Lensink, T. of October 5, 1982 at 868; testimony of Lyn Rucker, T. of September 28, 1982 at 526. Dr. Hugh Sage, one of the defendants' experts, testified that, while in his opinion "overall SDC met minimum requirements," the "substantial physical deficiencies" kept the residences from meeting certain federal standards, to the extent of preventing the clients' development of more normal behavior. T. of October 6, 1982 at 989-990. He testified that conditions at the Center have the potential to be detrimental. Id. at 1067. Sage noted that the Center has been denied accreditation by several boards. Id. at 1092-1093. While another of defendants' witnesses concluded that Center is safe, he did note the risk of harm to which is exposed clients in wheelchairs. Testimony of Richard Blanton, T. of October 14, 1982 at 1917.

  The aspect of the Center's ward environment that was agreed upon by both plaintiffs' and defendants' witnesses was the general idleness and lack of human interaction already referred to which permeates the dayroom areas. Testimony of James Clements, T. of March 8, 1982 at 28, 60-62, 87, 92-95, 108, 111-112, 133, 145-147; testimony of Kathleen Schwaninger, T. of April 5, 1982 at 754, 779-780; testimony of Brian Lensink, T. of October 4, 1982 tt 739-740, 767, T. of October 5, 1982 at 826; testimony of Richard Blanton, T. of October 14, 1982 at 1920-1921; testimony of Mark Davis, Deputy Director for Treatment Services of the East Campus at the Center, T. of October 18, 1982 at 1987-1988; Pl. Ex. 12, photos 17, 18, 24 25, 26; Pl. Ex. 13, photos 20, 26, 27-30; Pl. Ex. 49B, photos 31, 34, 35.

  Clients are herded together in groups of twenty or more, with two or three staff at a time who pay little attention to the residents. Testimony of Lita Cohen, T. of March 10, 1982 at 591-592, 504-605, 612; testimony of Leila Gorelick, Id. at 643-644; testimony of George Fearing, Id. at 672; testimony of Mildred Karp, Id. at 688-689; testimony of John Czerniewicz, Id. at 725; testimony of Evelyn Statz, T. of September 25, 1982 at 166; testimony of Dominica Moses, T. of September 26, 982 at 272; testimony of Rose Silverman, Id. at 315; testimony of Phillip Feibusch, T. of October 4, 1982 at 690-697. They are rarely allowed to go out of doors, even on weekends when the weather is good and there is nothing else to do. T. of March 10, 1982 at 600, 606, 612, 613, 674, 689, 716; T. of September 25, 1982 at 164; T. of Septeber 26, 1982 at 270, 312; T. of September 28, 1982 at 393-394; T. of October 4, 1982 at 697. Particularly for those who remain in the wards all day, the lack of the ability to go outside their locked buildings compounds the effect of the bleak and barren wards.

  b. Lack of Personal Belongings

  Several parents and relatives of clients, regular visitors to the Center, testified that they had never observed any clients' personal belongings, either with the client or in the client's private chest of drawers. Testimony of Dominica Moses, T. of September 26, 1982 at 271; testimony of Rose Silverman, Id. at 315-316. Belongings, such as items of clothing, which they brought to their children or relatives disappeared. Id. In its tour of Building 28, the morning of February 21, 1983, the court observed nothing in the identical chests of drawers assigned to many of the clients.

  5. Inadequate Equipment

  a. Adaptive Equipment

  Appropriately adapted and maintained equipment, particularly wheelchairs and orthopedic carts, is generally lacking at the Center. T. of March 8, 1982 at 64-68; T. of March 9, 1982 at 404; T. of April 5, 1982 at 839-40; Pl. Ex. 6; Pl. Ex. 23 at 320. There has been a five-month delay in repairing broken wheelchairs. T. of March 9, 1982 at 404. Some Suffolk residents spend their day, not in adapted wheelchairs, but in orthopedic carts -- the use of which was condemned by defendants' own expert, Dr. Blanton, as preventing the clients from progressing appropriately and impeding their movement into the community. T. of October 13, 1982 at 1791; T. of October 14, 1982 at 1858, 1936-1937.

  Since the Center lacks sufficient vehicles to transport carts, the lack of adaptive wheelchairs prevents many residents from leaving their wards. At least 284 non-ambulatory clients (in addition to those in Building 19 and the upper floors of Building 16) remain confined to their residential buildings for the entire day, primarily because of transportation problems. T. of October 13, 1982 at 1788-1790.

  b. Motor Vehicles

  Some of the buses and ambulances owned and operated by the Center, and used to transport the clients are not safely equipped or properly maintained. Anthony Adams, a bus driver, told of being ordered to drive a bus which lacked working seat belts to secure the residents' wheelchairs, and of an ambulance with emergency lights that did not function for six months. T. of April 6, 1982 at 899.

  With maintenance problems left unattended for so long, the vehicles frequently break down. T. of April 5, 1982 at 794. The result is that some clients receive a short programming day because they arrive late. T. of October 5, 1982 at 808.

  An even greater risk of harm arises when breakdowns delay transportation to the emergency room of the hospital. T. of October 5, 1982 at 950-954. At the public hearing of June 20, 1983 many parents of Suffolk residents expressed grave concern about the insufficient number and condition of the ambulances.

  c. Adaptive Clothing

  Adaptive clothing is specifically constructed either for those whose physical handicaps require accommodation, or for those who require clothing modifications such as large buttonholes with oversized buttons, or a strip of Velcro in place of a zipper, so that they may dress themselves. Testimony of Kathleen Schwaninger, T. April 5, 1982 at 857-58. Ms. Schwaninger saw no such clothing at Suffolk. T. of September 25, 1982 at 39. If there is adaptive clothing at the Center, there is not enough of it to meet the needs of clients who could probably dress themselves, and more easily engage in other self-care tasks such as toileting.

  Apart from special clothing problems, many residents are not provided with clean, adequate, and appropriate clothing. Sometimes, they are not fully clothed. There are few examples of properly dressed residents in the photographs submitted by the plaintiffs. See Pl. Ex. 12, 13, 49. At the public hearing held June 20, 1983, one mother showed the court a pair of shoes her son had been given; there were many sharp nails sticking far out in the insides of one shoe and the instep was missing. Dennis Silverman, who wears size 42 trousers, has been given clothing so tight, that it was necessary to cut it from him with a scissors. Testimony of Rose Silverman, T. of September 26, 1983 at 316. Unlike normal children and adults, many of the clients cannot complain. They must mutely suffer this pain and indignity.

  Parents and relatives testified that they have spent substantial sums of their own money to buy clothing for the Suffolk residents, only to have it disappear. T. of September 26, 1982 at 271, 315; Pl. Ex. 43 at 42-43. What clothing there is has not been stored in dressers or chests or otherwise made accessible to the clients. T. of March 8, 1982 at 72; T. of March 19, 1982 at 719; Pl. Ex. 42 at 59. There has been little opportunity for Center residents to learn to dress themselves appropriately or to learn to choose their own apparel. T. of September 25, 1982 at 32.

  6. General Problems in Institutional Environments

  Hardly unique to the Center, but nevertheless affecting substantially the lives of some of the residents are environmental problems endemic to large, congregate-care institutions. Much of the testimony produced by both sides supported a professional consensus in favor of smaller facilities. Fred McCormack, the Director of the Suffolk Developmental Center, concurred. T. of October 21, 1982 at 2580.

  The necessities of managing an institution which has more than a thousand clients and thousands of employees preclude many desirable changes. For example, when a few workers attempt to follow and control twenty-four residents, the staff get so involved in simply running after the clients, that ordinary common communication and interaction with them may not occur. Testimony of Kathleen Schwaninger, T. of April 5, 1982 at 866-867; testimony of Lyn Rucker, T. of September 28, 1982 at 453. Even with improved staffing and programming, and a warmer, more personal physical environment, residents of the Center are likely to pick up each other's negative behavior. Id. at 809, 811, 867; see also T. of October 4, 1982 at 768-769.

  The chaos of this institutional environment makes any growth difficult, inhibits the learning process of the mentally retarded, and provides them with little opportunity to meet "normal" persons, or develop close relationships with them. Testimony of Brian Lensink, T. of October 5, 1982 at 851, 860-861. Even where friendships do take root, as between resident Laura Knapp and a staff worker, they are inhibited by institutional policies such as that at the Center which prohibits clients from visiting the homes of staff. Testimony of Laura Knapp, T. of September 26, 1982 at 355.

  Centralization of certain tasks such as cooking and laundering, necessary to the effective operation of a large facility, precludes the clients' opportunities to learn the rudiments of cooking and laundering. T. of October 5, 1982 at 856. Supplies such as toilet paper, soap, linens and toothpaste are often hard to obtain because they are centrally located and kept locked up. Testimony of Margie Grant, T. of October 1, 1982 at 623.

  Brian Lensink summed up the matter by stating that living in a large institution

  

. . . takes away an awful lot of the natural training environment that would be available to people if they were in smaller settings. It is rather overwhelming to deal with your laundry in large commercial type laundry facilities or when there are thirty clients' clothing all sitting there ready to be washed. If you can go into the laundry room or the laundromat with only six residents from a group home you have an environment in which to train a person. That environment is not readily available on one of the wards.

  

It is even more particular with food preparation. All the food preparation is done centrally, brought in in carts. You really have no opportunity to learn how to use any kind of kitchen equipment, how to even return your plates properly to the kitchen after you have eaten. You take away their whole training environment which is necessary for a person to live in a community. There are numerable training environments like that, mowing the lawn, maintaining the yard. Those are not only things that are important to teach a person so they can live in a community, it is also an activity to occupy time in a productive way rather than wandering or occupying a ward, if you could go out and mow the lawn, rake the leaves, shovel the sidewalk, trim the lawn, if you can do those kinds of activities in your home you then occupy your hours with meaningfulness rather than with nothingness. And so you both have a better life in my opinion as well as a better training ground for those people who are learning to do those activities.

  T. of October 5, 1982 at 856-57.

  The restrictive rules of the Center, required by the huge number of people living there, make it impossible for the residents ever to acquire the skills necessary for success in a less restrictive environment. According to one expert:

  

. . . to maintain control over a population that size, over a campus that large, over 900 clients, 1300 clients, to try to meet your obligation to keep people safe, what ends up happening is that people can't be kept safe, first of all, but secondly, restrictions are imposed.

  Testimony of Kathleen Schwaninger, T. of September 25, 1982 at 54-56.

  No state, including New York, builds large institutions for its mentally retarded citizens any longer. Other states are depopulating their large institutions. T. of September 25, 1982 at 59; T. Of September 28, 1982 at 380. See Bogin, Group Homes for Persons with Handicaps: Recent Developments in the law, 5 W. New Eng. L. Rev. 423, 424 (1983). All experts agree that small, community-based residences are better for the client and perhaps cheaper and more efficient for the state. This issue is discussed more fully below under Reduction of Population.

  7. Lack of an Internal Monitoring System

  Less than two months before the trial in this case, an internal monitoring system was finally implemented at the Center. Testimony of Stanley Slawinsky, T. of October 13, 1982 at 1609, 1611. Until that time, there had been no internal monitoring so that many of the problems already discussed -- particularly regarding client care and environmental factors -- were exacerbated. For example, the Incident Review Committee investigates specific instances of client abuse, injury and death, and makes recommendations about them. Until September 1, 1982, there was no specific procedure to follow-up the cases, to determine if recommendations had been carried out. Id. at 1659, 1666. The result, acknowledged by the Deputy Director for quality assurance at the Center as "an ongoing problem," was that the Incident Review Committee had to make the same recommendations over and over again.

  8. Funding

  Funds for the Center are obtained from a number of sources, all of which are channeled through the state. The process calls for the Director of the developmental center to submit a budget request to the state Office of Mental Retardation and Developmental Disabilities in Albany, which in turn uses the information to prepare its own budget request. That budget is submitted through the Governor to the legislature. The legislature then makes its appropriations on the basis of specific requests. There are limitations on the use of monies so that, for example, funds appropriated for physical renovations to bring the Center into compliance with federal standards may not be used to develop community resources for the mentally retarded on Long Island. T. of October 19, 1982 at 2154, 2179-80. See also testimony of Zygmond Slezak, T. of April 6, 1982 at 1012.

  Compliance with federal safety and treatment standards is particularly important because the federal government through the Medicaid program pays fifty percent of the cost per client of those who reside in developmental centers which are certified as meeting federal standards. Federal reimbursement is made to the state, rather than to the individual institution, on the basis of a statewide average rate. In New York in 1982 the federal reimbursement rate per client was over $140 per day, or more than $40,000 a year. Testimony of Zygmond Slezak, T. of April 6, 1982 at 1000. Since the per capita expenditure at the Center for fiscal 1981-82 was $32,100, Pl. Ex. 27, State of New York Executive Budget for Fiscal 1981-82, at p. 148, it appears that the state expends virtually none of its own funds for client care there and that, in fact, some of the federal monies generated by Center residents are used for the benefit of individuals in other institutions. T. of April 6, 1982 at 1001-02. At Willowbrook, the Staten Island Developmental Center, for example, $48,400 was spent per client in fiscal 1981-82. In 1982-83, the per capita cost at Suffolk Center was anticipated at $34,700 while at Willowbrook, the Staten Island Developmental Center, it was estimated at $60,800. Pl. Ex. 27, State of New York Executive Budget, Fiscal 1981-82, p. 148. See T. of October 19, 1982 at 2170.

  Other federal Medicaid funds are available under what is known as the Title 19 waiver provision for family care placements, which can include maintaining the mentally retarded person in his or her own home. See 42 U.S.C. § 1396n(c)(Supp. 1983); T. of September 15, 1982 at 77-79. The Title 19 waiver also provides for a fifty percent federal reimbursement of funds, and may be used to fund cases management, rehabilitation, respite, personal care, and homemaker services. T. of April 6, 1982 at 989. New York State, however, does not participate in the waiver program. T. of September 25, 1982 at 79; T. of October 19, 1982 at 2172. State appropriations for community placements and services for the mentally retarded have been cut back. Testimony of Fred McCormack, T. of October 21, 1982 at 2550; T. of October 5, 1982 at 960-63.

  9. Reduction of Population

  The defendants are aware of professional skepticism regarding the effectiveness of treatment at large institutions. Both plaintiffs' and defendants' experts supported community programming for virtually all retarded individuals. T. of October 6, 1982 at 1021-1022, 1024; T. of October 14, 1982 at 1863, 1893, 1943-1944. Direct testimony on this point was given by Edward Jennings, a professional with vast experience in the New York State system:

  

THE COURT: Given adequate functioning of [personnel,] management, physical facilities and the like, can you set up an institution for 900 people in Suffolk on these premises that can do a decent job for people in the institution?

  

THE WITNESS: I don't believe that there is any historical record at all that that kind of resource, a facility of that kind, can be managed properly.

  

You know, again, I don't believe that we have a record of where a facility of that size, given all that it needs, can be operated successfully.

  

THE COURT: I take it, then, to sum up your view, you think that the probabilities of a more effective treatment are greater in the community-based facility than in a large institution of even 900 beds?

  

THE WITNESS: Without question.

  T. of March 10, 1982 at 583-584; see also T. of March 9, 1982 at 452, 463.

  Of primary importance is the fact that most mentally retarded people cannot generalize sufficiently well to learn in an institutional setting the skills they need to enjoy a more normal and less restrictive existence. According to Ms. Schwaninger:

  

. . . part of the symptomatology of mental retardation is that the mentally retarded person, in his brain, doesn't have the same kind of skills that we have, symbolically in our brains.

  

So it is not easy for a mentally retarded person to see a fake stop sign, walk out onto a real street, see a real stop sigh, and realize that that's just like the fake one that the teacher was talking to me about.

  

Part of the symptomatology is incapacity when it comes to symbolization and generalization and transference from an artificial learning experience to a real experience.

  T. of September 25, 1982 at 56.

  A small setting is also beneficial to retarded individuals because they have difficulty in integrating and discriminating among a large number of impressions or sensations. When there are large numbers of other clients and staff moving in and out of the picture, a retarded person may withdraw from the confusion and turn inward. T. of October 5, 1982 at 835-837. The effects of size explain in part the higher staff morale and retention rates often seen in small community programs. T. of September 28, 1982 at 400-401; T. of October 5, 1982 at 838; T. of October 7, 1982 at 1179.

  Community placement of mentally retarded individuals is further supported by the principle of normalization, a theory particularly attributed to N.E. Bank-Mikkelson in Denmark in 1959, Bengt Nirje in Denmark in 1969, and Wolf Wolfensberger in the United States in 1972. It is now accepted around the world and imparted to all appropriate state employees as part of their training. T. of October 7, 1982 at 1152-1154; Def. Ex. 53. The essence of normalization is the integration of retarded people into society at large by ending their segregation and isolation in large-scale institutions. T. of October 7, 1982 at 1154; Def. Ex. 53.

  According to the State training manual, normalization means, among other things,

  

living in a normal neighborhood [,] not in a large facility with 20, 50, or 100 other people because you are retarded, and not isolated from the rest of the community. Normal locations and normal size homes will give residents better opportunities for successful integration with their communities.

  T. of October 7, 1982 at 1155-1157, Def. Ex. 53. See also testimony of Robert Voss, T. of October 7, 1982 at 1101 (Purpose of staff training at Center "is to assist out clients, to maximize their potential in the least restrictive environment possible").

  Defendants generally share the plaintiffs' view that for the majority of Center residents, placement in some form of a small community based living situation would be more appropriate. Commissioner Slezak testified that New York is committed to "moving towards the community based system of care, and to reducing the populations at its institutional facilities. T. of April 6, 1982 at 1017-18. Judy Walker, the Director of Nursing at the Center said simply, "I don't think any client belongs at the Suffolk Developmental Center. If . . . I could do anything to keep any client from having to be placed, I would be the first one to do it." T. of October 8, 1982 at 1443-44.

  Perhaps the testimony of Fred McCormack, the Director of the Center, was most telling on this point:

  

"We all want the same thing. We . . . would want to place as many possible people as we can. And we're trying like heck to do it. And it takes the Legislature and the State of New York to find the resources to do it."

  T. of October 21, 1982 at 2664. Mr. McCormack also noted that often those placed in the community function at a much higher level than at the Center. Id. at 2651.

  This point is dramatically illustrated by the testimony of Philip Feibusch. his daughter, Susan, spent eleven years at the Center before moving to a group home in Greenport, Long Island. T. of October 4, 1982 at 687-689. The contrast between the Center where staffing problems and anonymity create difficulties in training and the small community residence is striking.

  

But the change that has come over Susan, it's like night and day. In six weeks there was a big change. She does things there that I never thought were . . . possible. I didn't think that Susan could make her bed . . . . She was learning how to dress herself . . . . And she places her clothes and everything away. She takes her own showers. She washes her own hair . . . . She is living like a human being. She even makes her own sandwich and helps with the cooking . . . .

  

Q What about toilet accidents, does she have those any longer?

  

A Not in the house any more, no. She knows where to go . . . .

  

Q Did Susan ever have an opportunity to practice those skills that she may have learned in the day program at AHRC while she was living in the Suffolk County Developmental Center?

  

A . . . No . . . .

  T. of October 4, 1982 at 705-710.

  The population at the Center has not been reduced to the extent all agree it should be. Community residential placements, day programs, and necessary clinical and support services have not been provided in numbers sufficient to meet the needs of those currently at the Center. Nor has adequate aid been given to those mentally retarded persons in Nassau and Suffolk Counties and their families who are not in state custody, but are often without adequate resources. See generally testimony of parent Anthony Santangelo, T. of October 1, 1982 at 646-652; testimony of parent Judy Eisman, id. at 660-681.

  Under the original five-year plan devised by new York State to comply with federal Medicaid requirements, the Center's population was to have been reduced to 907 by March, 1982. Testimony of Zygmond Slezak, T. of April 6, 1982 at 1018; testimony of Joseph Ryan, T. of September 25, 1982 at 197. Yet, on October 21, 1982, the day the trial in this case ended, the Center contained more than 1,200 clients -- 300 more than it should have had. Testimony of Fred McCormack, T. of October 21, 1982 at 2530; T. of April 6, 1982 at 1018-19.

  Not only have the defendants failed to comply with their own five-year plan, they have developed no new plan to replace it. Though Deputy Commissioner Robert Norris mentioned a plan to bring the Center's population to 900 by March 31, 1984, he acknowledged that no written document exists reflecting this goal. T. of October 19, 1982 at 2186, 2202. There is no plan to reduce the population below 900. Id.

  The testimony of Dr. George E. Smith, Director of the Office of Community Services for the Long Island Developmental Disabilities Services Office, revealed that there was no program to place Center residents in the community, other than studies of projected need. See T. of October 20, 1982 at 1451. Though he too testified that there was no specific written plan for reducing the Center's population, T. of October 21, 1982 at 2585, on the last day of trial, Director Fred McCormack produced a table showing projections reducing the population to 1070 by April, 1984; and to 810 by April, 1987. T. of October 21, 1982 at 2551. Those figures were supported by no documents, explaining where and how those placements out of the Center would be accomplished. At the hearings in June on the Director's plan to comply with the court's interim order, a schedule of projected new community centers was revealed for the first time. It reads as follows: PROJECTED SUFFOLK DEVELOPMENTAL CENTER PLACEMENTS Fiscal Year 83/84 (Based on actual census 1,194, 4/1/83) No. of No. of Location SDC Clients Community Client Lattingtown 10 0 East Northport 12 0 Garden City Park 8 0 Upper Brookville 4 4 Eastport 7 0 Farmingdale 10 0 Westhampton 8 0 Plainview 9 0 Wading River A 8 2 Wading River B 8 2 Riverhead 4 4 Setauket 1 0 Melville 1 0 Family Care 27 0 Total 117 12 Fiscal Year 84/85 (Based on projected census 1,077, 4/1/84) No. of No. of Location SDC Clients Community Clients Bayville 0 48 Wantagh 4 4 Woodbury 5 5 Coram 8 4 Smithtown 5 4 Commack A 4 4 Commack B 14 14 Rockville Center 5 5 Dix Hills 4 4 Oakdale 4 4 Family Care 24 0 Total 77 96

  Projected Census 1,000 4/1/85 The following is a listing of potential sites presently under review that may yield additional placements during FY 84/85: Holbrook 8 Yaphank 8 Medford 10 Middle Island 48 (5 acres) North Bellmore 8 Syosset 8 to 10 Wantagh 8 to 10

  From Affidavit of Fred A. McCormack, June 8, 1983.

  These projections are probably the most that can realistically be expected. Dr. Smith, who is responsible for the development of community resources for the retarded in Long Island, testified that he could not plan to develop community sites beyond 1983 because of lack of money:

  

We have experienced cut-backs in that funding. The result is that at present we have no acquisition money for the purchase of new property, and that the first instance money, that is the money that would go to start up or renovations of -- of houses that we could purchase has been drastically reduced. Therefore, . . . we don't really know what the picture looks like. And it's very, very difficult for us to make any kind of firm plans beyond next year.

  T. of October 20, 1982 at 2371-72. See also testimony of Fred McCormack, T. of October 21, 1982 at 2585-86 (could not plan to reduce population by a greater margin in 1984-85 because budget request was not granted).

  Planning is requisite both to guide the placement effort, and to secure adequate funding from the legislature and cooperation from local private and public agencies and private citizens. What is called for is a comprehensive long-term plan which includes an assessment (in the aggregate) of individual client needs, a description of the programs and services required to meet those needs, an inventory of available programs and services and a catalogue of those that must be developed, a description of the administrative measures and procedures that must be followed in order to develop the needed programs and services and a specification of responsibilities for carrying out such measures and procedures, an analysis of potential obstacles and their possible solutions, a statement of the means by which required programs and services will be funded, and a timetable indicating when all necessary events are scheduled to occur.

  T. of September 25, 1982 at 71, 74. No single one of the defendants' plans, or even all of them, taken together, contained all of the necessary elements. T. of April 6, 1982 at 1014-1016; T. of September 25, 1982 at 72; Def. Ex. 22, 23, 24, 143, 149.

  B. Lack of Adequate Services and Programs in the Community

  The state is doing relatively little to encourage the development of small-scale settings and to provide the necessary home and community support facilities.

  1. The Retarded at Home

  The overwhelming majority of the approximately 18,000 mentally retarded and developmentally disabled in Nassau and Suffolk Counties live at home. The Long Island agency of the state Developmental Disabilities Service Office whose responsibilities include coordination of all services to this constituency is housed at the Suffolk Developmental Center. T. of October 20, 1982 at 2337, 2341, 2446. Retarded citizens living at home are not members of the certified class. Nevertheless, some appreciation of their problems is necessary for an assessment of realistic remedies for the certified class in this case.

  At the trial, parents who have chosen to keep their severely handicapped children at home testified to the lack of available local community residences and day programs and the extraordinary strains placed on the other members of the family by keeping the child at home. One father asserted, however, that he would rather see his son dead than at the Center. T. of October 1, 1982 at 652. Others, parents and relatives of current Center residents testified that they felt compelled to institutionalize their children or siblings because no community services or programs were available that would permit them to remain at home. T. of September 26, 1982 at 269, 298-299.

  Aa noted above, the professional consensus endorsed by the defendants is that residence in the community is the most effective, appropriate form of treatment for most mentally retarded individuals, including those with severe psychological and physiological disorders. See T. of September 25, 1982 at 97; T. of September 28, 1982 at 393, 409-414, 416, 430-433, 439, 445-556; testimony of Fred McCormack, T. of October 21, 1982 at 2583. It would be expected then that the defendants would support all efforts to maintain those already living in the community, in their homes -- the most "normal" situation of all -- by making available the necessary doctors, psychiatrists, psychologists, case workers, social workers, physical therapists, occupation therapists, speech therapists, and respite and homemaker services for the families. As one expert pointed out, many families do not need to place their retarded children outside the home if they are provided appropriate support. Testimony of Brian Lensink, T. of October 5, 1982 at 848.

  Nevertheless, the state provides almost no funds to maintain clients in their homes. Testimony of Zygmond Slezak, T. of April 6, 1982 at 951. It has not, as pointed out above, applied for federal funds to do so under the Title 19 waiver provision, 42 U.S.C. § 1396 n(c), which provides funding for a wide variety of habilitation services for mentally retarded individuals in any type of community setting, including their own homes, with 50% federal reimbursement. T. of April 6, 1982 at 988-989; T. of September 25, 1982 at 78-80, 148; T. of October 19, 1982 at 2150.

  2. Existing Community Residential Alternatives

  Community residences are operated by the state and by private not-for-profit voluntary agencies, with whom the state contracts. In Long Island, the state provides four types of community residential alternatives -- supportive living arrangements, family care placements, community residences, and intermediate care facilities. Testimony of George E. Smith, T. of October 20, 1982 at 2346.

  Supportive living arrangements are for generally high functioning individuals who can live independently in an apartment with little supervision. Currently, there are 59 clients in Nassau and Suffolk counties in supportive living arrangements. Id. at 2348.

  In a family care situation, a family, called a provider, takes a mentally retarded or developmentally disabled individual into its home to live as a family member. Id. at 2349. The providers are given a 16-hour training session, after which they are licensed by the state. There are 212 clients in Long Island in family care. Id. at 2355. In 1982, only 15 family care placements were made in Long Island. Id. at 2356.

  In explaining the low number of Long Island Family care placements, Dr. Smith mentioned that his office had encountered recruitment problems in locating family care providers. T. of October 20, 1982 at 2350. There may be other explanations as well. For example, New York has no system of variable rates for family care providers, so that those providing for more handicapped individuals receive the same rate, about $300 per client per month, as those providing for the less handicapped, though the former may well require more time and attention. See T. of April 6, 1982 at 946-947; T. of October 14, 1982 at 1891; T. of October 19, 1982 at 2232-2235; T. of October 20, 1982 at 2476. The rate for family care in Arizona, by contrast, ranges from $200 to $900 per month. Defendants' expert, Dr. Blanton, uses a variable rate structure in Illinois and would recommend it for New York as well. T. of October 14, 1982 at 1891.

  Defendants acknowledge that it is harder to place the more handicapped clients in the community. See testimony of Fred McCormack, T. of October 21, 1982 at 2534. New York's use of a flat rate may therefore account in part for the low number of family care placements in Long Island.

  Personal care providers give services to more handicapped clients, who have both medical and behavioral problems. T. of October 20, 1982 at 2352. They function much like family care providers, but receive additional training and a supplementary reimbursement. There are no personal care placements on Long Island. Id. at 2355-2356.

  A community residence is generally a single family dwelling with 4 to 14 clients. Id. at 2361-2362. Althouth clients are supervised, either by live-in house parents, or by rotating shifts of staff, clients usually prepare their own meals, keep their own belongings and go out together to shop for food and clothing. Id.

  There are 177 clients from Nassau and 135 from Suffolk in community residences. T. of October 20, 1982 at 2362. By contrast, in Westchester County, which is roughly comparable to Nassau in size, population and socioeconomic factors, there are 606 retarded individuals living in community residences. N.Y. Times, June 26, 1983, § 11 (Westchester Weekly), at 4, col. 3.

  All community residences on Long Island are run by private, voluntary agencies. None are presently operated by the state. T. of October 20, 1982 at 2363; testimony of Fred McCormack, T. of October 21, 1982 at 2636. The residences house only ambulatory clients, even though non-ambulatory clients who can maneuver their own wheelchairs could be accommodated in a community residence setting. T. of October 20, 1982 at 2362-63.

  A fourth type of community setting found on Long Island is the intermediate care facility. This is similar to a community residence, but provides greater supervision for those clients with more substantial medical and behavioral needs. T. of October 20, 1982 at 2364, 2479. There are 333 clients in intermediate care facilities on Long Island. Id. at 2365. Seven such facilities are operated by the state. Others are operated by private agencies. The state also runs several free-standing intermediate care facilities that adjoin the Suffolk Developmental Center. Id. at 2366.

  All residents of the state-run intermediate care facilities have come from the Center. Clients housed in the state facilities are those with the more serious problems because the private agencies are hesitant to assume the care of clients with severe behavioral problems. Id. at 2367-68, 2440.

  As the experience with community residences and intermediate care facilities indicates, the voluntary agencies that now operate residence programs on Long Island do not, with the possible exception of the United Cerebral Palsay Association, serve clients who are severely or profoundly retarded and wheelchair bound, or difficult to manage behaviorally. T. of March 9, 1982 at 380-387, 423-424; T. of October 1, 1982 at 651, 662; T. of October 20, 1982 at 2440; T. of October 21, 1982 at 2571-2571. There was testimony that non-Nassau-Suffolk voluntary agencies wishing to open residences and operate programs that would service the more handicapped clients were not welcomed. T. of September 26, 1982 at 226-232, 236-238, 241-244. See also T. of September 26, 1982 at 94-98; T. of October 21, 1982 at 2598-2604, Pl. Ex. 54. To sum up a total of 916 Nassau-Suffolk County clients have been placed in some community residential alternative as follows: Placements Alternative 59 supportive living 212 family care 0 personal care 312 community residences 333 intermediate care facilities 916

  While these figures seem impressive many of them reflect placements of Willowbrook class members mandated by the terms of the Consent Judgment. Also included are placements of other clients who were never at the Center.

  Both state and privately operated community residences are funded by a combination of federal social security and state payments; each generally accounts for 50% of the cost. Testimony of Zygmond Slezak, T. of April 6, 1982 at 934. Intermediate care facilities are funded on a rate system, under which federal Medicaid monies pay for 50% of the cost, and state and local funds each contribute 25%. Id. at 936. For those clients who have lived in a state institution for five or more years, the state pays a larger share of the cost. Id. at 936-37. According to all the testimony on the point, the overall cost of care for a client living in the community was never more than, and is generally significantly less than, that in an institution such as the Center. Defendants' expert, Dr. Blanton, testified that ninety percent of the current Center population could be readily moved into the community within five years, and that the cost of maintaining them there would be less than if they stayed at the Center. T. of October 14, 1982 at 1947-50; testimony of Robert Norris, Deputy Commissioner, T. of October 19, 1982 at 2165. A letter from Commissioner Slezak to the Deputy Majority Leader of the New York State Senate, states that "the overall costs for all community residential options is about 50% the cost of a developmental center." Pl. Ex. 53 at p. 6. See T. of October 19, 1982 at 2167. The letter, dated October 14, 1981, gave the following overall per client cost figures: Voluntary operated community residences $ 22,700 State operated community residences $33,000 Voluntary operated intermediate care facilities $46,400 Developmental Centers $53,200 Family Care Homes $14,200 Family Care, personal care $16,200

  Pl. Ex. 53, p.6. (Emphasis supplied.) See T. of October 19, 1982 at 2167. These disparities in cost, while striking, probably do not fully reveal overall costs including capital, support facilities and administrative supervision. Moreover, it must be remembered that the most difficult cases, on the average, remain at the Center. The figures do suggest, however, that compelling a reduction in Center population will not place an impossible financial burden on the state.

  3. The Process of Developing Community Sites and Services

  The bureaucratic maze, community pressures and practical problems all present barriers to providing community residences for the mentally retarded. The Office of Mental Retardation and Developmental Disabilities works directly with nineteen voluntary agencies in Long Island. Testimony of George E. Smith, T. of October 20, 1982 at 2376-77. Before a voluntary agency opens a community residence or program, it first sends a letter of intent to the Associate Commissioner. Id. at 2388. The agency must then comply with the state determination of need, called a Part 51 process for establishing day treatment programs, and a Part 53 process for the development of community residences. Id. at 2379; T. of April 6, 1982 at 963. See 14 N.Y.C.R.R. §§ 51, 53. This calls for proof of need for the program, of the competence of the agency to operate it, of financial responsibility, and of conformity to state and federal standards. T. of October 20, 1982 at 2380. A 60-day review period follows the agency's filing of a Part 51 or Part 53 application, during which representatives of the county certify it; if it does not receive county certification, the application is returned to the agency for modification. Id. at 2382. Once certified by the county, the application is reviewed by the regional office of the federal Health Planning Commission, and again by the County Mental Health department, both of which must also approve the application.

  If the application is disapproved by the County, the Commissioner has the power to override the disapproval, though there has never been an override in Nassau or Suffolk. T. of April 6, 1982 at 963-964; T. of October 20, 1982 at 2383. Both Nassau and Suffolk have denied approval on numerous occasions. Testimony of George E. Smith, T. of October 20, 1982 at 2384; testimony of Zygmond Slezak, T. of April 12, 1982 at 963.

  Need may also be established through the state's initiative. It publishes a request for a proposal, making known the need for programs or services to serve a certain category of the handicapped. See T. of October 20, 1982 at 2378.

  If the plan for a community residence or intermediate care facility is approved, the state Facility Development Corporation works with a local site development unit to locate an appropriate house. Id. at 2389-90. When a potential site is found, the town receives notice of the intent to establish a residence. See N.Y. Mental Health Law, § 41.34. At that point, the town has three options: it may either approve the site, offer an alternative site, or reject the site but only on the basis of saturation. See N.Y. Mental Health Law § 41.34; T. of October 20, 1982 at 2390-2391.

  With purchase negotiations, physical construction and renovations, and medical-safety certification, it takes about 19 months from the time of the initial site selection for a home to open. T. of October 20, 1982 at 2396. Purchase negotiations may be complicated and drawn out. Unlike some other states, New York does not guarantee mortgages for the voluntary agencies so that they can more easily secure mortgages and purchase the home themselves. Testimony of Fred McCormack, T. of October 21, 1982 at 2627-2628.

  Defendants relied heavily on community opposition to community residences in explaining their lack of success in developing community placements in Long Island. See testimony of Zygmond Slezak, T. of April 6, 1982 at 990-991; testimony of George E. Smith, T. of October 20, 1982 at 2401. To counter such opposition, the state maintains offices of Public Education and of Public Relations which staff various speakers bureaus throughout the state's twenty regional Developmental Disabilities Services Offices. Def. Exs. 244A-G; 246, 247, 248, 249A, B, C, D. In Long Island there are two full-time people assigned to public education. T. of October 20, 1982 at 2504-2505. They rely on various forms of the media as well as on speeches and face-to-face discussions with opponents. Testimony of Margaret McGraw, Director of Legislative Community Relations, Office of Mental Retardation and Development Disabilities, T. of October 19, 1982 at 2203-2204; testimony of George E. Smith, T. of October 20, 1982 at 2415.

  Though community opposition has apparently led to three instances of arson in Long Island, no client has ever been harmed. T. of October 19, 1982 at 2207. A state study indicated that community resistance derives from, first, fear that a neighborhood's property values would be diminished if a community residence were established, and, second, from fear of the mentally retarded -- as violent, dangerous, unfriendly persons. Id. at 2208. Both of these fears appear to be unfounded.

  One state study demonstrated that the presence of a community residence in a neighborhood had no effect on property values. Def. Ex. 245, "Group Homes for the Mentally Retarded: An Investigation of Neighborhood Property Impacts;" see T. of October 19, 1982 at 2209; T. of April 6, 1982 at 993. Fear of mentally retarded persons may in part be attributed to the public's confusion of the mentally ill with the mentally retarded. Testimony of George E. Smith, T. of October 20, 1982 at 2410-2411. As Gary Shaw, who once led the opposition to a community residence that was established in his neighborhood in Valley Stream, Long Island, explained:

  

We were afraid of any sort of mental handicap. We didn't know that there was any difference. We were thinking of child molesting; I have eight nieces and nephews and I swore that the first one who ever came through the bushes in my parents' yard, I would shoot.

  

[The community residence] is directly across the street from a school, and we were afraid, being adult bodies with children's minds, they would have problems of playing with kids.

  T. of September 26, 1982 at 336.

  Both plaintiffs and defendants agreed that such fear is best refuted by the community's experience with their retarded neighbors. Testimony of Zygmond Slezak, T. of April 6, 1982 at 997; testimony of George E. Smith, T. of October 20, 1982 at 2429-2430. Gary Shaw now regards his retarded neighbors as his friends; he visits them in their home, and they visit him in his. The property value in his neighborhood has increased. Moreover, Shaw works with other communities in Nassau and Suffolk who are resisting group homes. "I would tell the people, I know where you are coming from, I know what you are afraid of, I went through it, and you don't have to worry." T. of September 26, 1982 at 341.

  Julia Benjamin, who lives next door to a group home in Greenport, Long Island, considers the home a benefit to her community. T. of October 1, 1982 at 558-559, 565. She testified because she thought

  

this case would affect people that are at Suffolk Developmental Center now, possibly, and I see the way that the people next door are, and I feel that they have a nice life, and they have improved, and [are] doing well, and I think everybody should be able to.

  Id. at 575.

  IV. LAW AND ITS APPLICATION

  Plaintiffs based their claims on several legal theories, invoking the federal and New York State constitutions, the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6011 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and various provisions of the New York Mental Hygiene Law. They argue that deficiencies in the physical environment, number and training of staff, substance and implementation of therapies and of developmental plans, and in the amount and nature of the programming make the Center incapable of providing adequate care, treatment and habilitation to its residents, of protecting them from harm, and of preventing their regression. For these reasons, they maintain that community placement of all the residents of the Center is the most appropriate form of relief.

  A. Due Process Right to Minimally Adequate Care and Treatment

  In Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982), the Supreme Court held that the "liberty interests" protected by the Due Process Clause of the Fourteenth Amendment provide mentally retarded persons in state institutions substantive rights to conditions of reasonable care and safety, freedom from undue restraint, and to that level of "minimally adequate or reasonable training [necessary] to ensure safety and freedom from undue restraint." 102 S. Ct. at 2458-2463.

  Constitutionally "reasonable care" requires that the state provide adequate food, shelter, clothing, and medical care. 102 S. Ct. at 2462. The right to freedom from undue restraint means that the state "may not restrain residents except when and to the extent professional judgment deems this necessary to assure such safety or to provide needed training." Id.

  The level of training required places the state under a duty to provide a retarded client "such training as an appropriate professional would consider reasonable to ensure his safety and to facilitate his ability to function free from bodily restraints." Id. Although the Court found that no question of a general constitutional right to "habilitation" was presented, 102 S. Ct. at 2429, and thus declined to address the issue, it noted that "it may well be unreasonable not to provide training when training could significantly reduce the need for restraints or the likelihood of violence." Id. at 2462-2463. Specifically it indicated that respondent Romeo had been denied training, including self-care programs, that professional experts agreed were needed to reduce his aggressive behavior. Id. at 2459.

  Justice Blackmun's concurrence, joined by two other members of the Court, elaborated on the minimal level of training called for. It pointed out that the Constitution requires that an institutional resident be provided with "such training as is reasonably necessary to prevent a person's pre-existing self-care skills from deteriorating because of his commitment." Thus,

  

The Court makes clear . . . that even after a person is committed to a state institution, he is entitled to such training as is necessary to prevent unreasonable losses of additional liberty as a result of his confinement -- for example, unreasonable bodily restraints or unsafe institutional conditions. If a person could demonstrate that he entered a state institution with minimal self-care skills, but lost those skills after commitment because of the State's unreasonable refusal to provide him with training, then, it seems to me, he has alleged a loss of liberty quite distinct from -- and as serious as -- the loss of safety and freedom from unreasonable restraints. For many mentally retarded people, the difference between the capacity to do things for themselves within an institution and total dependence on the institution for all of their needs is as much liberty as they ever will know.

  102 S. Ct. at 2464.

  Inherent then in the Supreme Court's vision of that level of training to which mentally retarded residents of state institutions are constitutionally entitled is a recognition that such basic self-care skills as the ability to dress oneself and attend to one's own hygiene needs are requisite to any exercise of those "liberty interests" protected by the Due Process Clause. 102 S. Ct. at 2464. All of the qualified professionals, both plaintiffs and defendants, who testified in this case agreed that the denial to a resident with the capacity to do so of the opportunity to learn to speak and to toilet, to dress and feed himself would constitute a professionally unacceptable restraint.

  In accordance with the Court's instruction in Romeo that deference be paid to the judgment of qualified professionals, 102 S. Ct. at 2461-62, the testimony and other proof dictate that training in basic self-care skills be provided as a constitutional right. See Association for Retarded Citizens of North Dakota v. Olsen, 561 F. Supp. 473, 487 (D.N.D. 1982):

  

. . . training in walking or basic communication would be required if the resident could benefit therefrom, since these skills enable the exercise of basic liberties.

  

Further, the right to minimally adequate training can be reasonably construed to grant a right to reasonable training which enables the resident to acquire or maintain minimum self-care skills -- skills in feeding, bathing, dressing, self-control, and toilet training . . . . Given the great difference that minimum self-care skills make in the life of most mentally retarded persons, this court regards the acquisition and maintenance of those skills as essential to the exercise of basic liberties.

  (Emphasis in original.) Cf. O'Connor v. Donaldson, 422 U.S. 563, 569, 95 S. Ct. 2486, 2490, 45 L. Ed. 2d 396 (1975) (finding unconstitutional confinement of nondangerous individual capable of surviving safely on own where "confinement was a simple regime of enforced custodial care, not a program designed to alleviate or cure his supposed illness"); Jackson v. Indiana, 406 U.S. 715, 738, 92 S. Ct. 1845, 1858, 32 L. Ed. 2d 435 (1972) ("At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.").

  Courts "must show deference to the judgment exercised by a qualified professional." Romeo, 457 U.S. 307, 102 S. Ct. 2452, 2461, 73 L. Ed. 2d 28. Such judgments by those qualified through training "or experience," 102 S. Ct. at 2462, are to be treated as presumptively valid; "liability may be imposed only when 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 the judgment." Id. at 2462.

  Although Romeo was decided in the context of an involuntarily committed mentally retarded person, the constitutional protections it describes embrace residents of state institutions for the retarded, including those whose commitments may have been technically voluntary. See Association for Retarded Citizens of North Dakota v. Olsen, 561 F. Supp. at 485 ("An individual's liberty is not less worthy of protection merely because he has consented to be placed in a situation of confinement."); Garrity v. Gallen, 522 F. Supp. 171, 239 (D.N.H. 1981); Philipp v. Carey, 517 F. Supp. 513, 518-519 (N.D.N.Y. 1981); Kentucky Association for Retarded Citizens v. Conn, 510 F. Supp. 1233, 1248 (W.D. Ky. 1980); New York State Association for Retarded Children v. Carey, 393 F. Supp. 715, 718 (E.D.N.Y. 1975).

  Particularly where, as in this case, those unable to care for their retarded relatives at home have no real option but to place their children and siblings at the Center, the distinction between the voluntarily and involuntarily committed is meaningless. The defendants do not disagree. As the Director of the Center stated at the close of the trial, "the role of the state residential facility is to be the court of last resort for those people who can't be served any place else." T. of October 21, 1982 at 2580. So far as the client is concerned, he or she has no say in the matter. The mentally retarded client's stay in the institution must be deemed involuntary.

  Romeo interprets the Fourteenth Amendment as guaranteeing four specific sets of rights to the residents of the Center. These may be characterized as follows:

  1. A right to adequate food, shelter, clothing and medical care;

  2. A right to reasonably safe conditions;

  3. A right to freedom from restraint, except insofar as professional judgments determine such restraints necessary to assure a resident's safety or to provide needed training; and

  4. A right to such training as professional judgment determine is reasonable to ensure a resident's safety and to facilitate his or her ability to function free from bodily restraints.

  From 1978 when this case began through the present, these rights have been and continue to be denied the residents at Suffolk Developmental Center.

  1. Right to Adequate Food, Shelter, Clothing and Medical Care

  a. Adequate Food

  In some cases, the Center has not provided constitutionally adequate food to its residents. The problem, generally, is not the quality of the food itself, but understaffing and program deficiencies which effectively permit certain residents with aggressive behaviors to grab food from others, who thus do not receive enough. Russell Cohen, for example, developed regurgitating behavior while a resident of Building 26, Ward B, because, according to the diagnosis of an outside hospital, he was not receiving enough food. Since food was being served, the staff in that ward concluded that the grabbers took Russell's food. Testimony of Lita Cohen, T. of March 10, 1982 at 601. After Susan Gorelick was admitted to the Center, her parents found her "about half the weight she was and completely limp." They immediately brought her to an outside hospital, which diagnosed her condition as dehydration, and kept her for treatment for two weeks. Testimony of Leila Gorelick, T. of March 10, 1982 at 641-642.

  b. Adequate Shelter

  In the most recent report of May 1982, the survey team found 58 pages of environmental, maintenance, sanitation, safety, and programmatic violations, and timely completion of only 18% of scheduled preventive maintenance. T. of September 25, 1982 at 201-208; T. of October 5, 1982 at 895-896. The Center is faced with constant problems with its air conditioning and heating systems, T. of March 9, 1982 at 438-441, T. of March 10, 1982 at 720, T. of September 26, 1982 at 316, T. of October 1, 1982 at 620, Pl. Ex. 6; with recurrent invasions of rodents and cockroaches, T. of March 8, 1982 at 238-239, Pl. Ex. 6, 11, 33; with transportation and equipment breakdowns, T. of April 5, 1982 at 794, T. of April 6, 1982 at 898-924, T. of October 1, 1982 at 621, T. of October 5, 1982 at 808; with shortages of supplies such as bed linens and toothpaste, T. of October 1, 1982 at 623; and with periodic outbreaks of shigella, hepatitis and other infectious diseases. Testimony of Judy Walker, T. of October 8, 1982 at 1365-66.

  One of the defendants' experts testified that with regard to the physical plant, "there are substantial deficiencies which don't quite reach the minimal standards that are now in effect by the Federal Government." Testimony of Hugh Sage, T. of October 6, 1982 at 990. For substantial periods and for substantial numbers of residents, defendants are not providing constitutionally required adequate shelter.

  c. Adequate Clothing

  Residents are not consistently provided with clean, adequate and appropriate clothing. Occasionally, they are not clothed at all. Pl. Ex. 12, 13, 49. See, e.g., testimony of Rose Silverman, T. of September 26, 1982 at 315; testimony of Dominica Moses, Id. at 271, Pl. Ex. 42 at 42-43.

  With some exceptions such as the residents of Building 19 (the pulmonary unit), clients seen by plaintiffs' experts were not dressed appropriately, but rather wore dirty, torn and ill-fitting garments. Testimony of Kathleen Schwaninger, T. of September 25, 1982 at 31; T. of September 26, 1982 at 316. Nor is enough adaptive clothing currently provided at the Center to meet the constitutional minimum. Testimony of Kathleen Schwaninger, T. of September 25, 1982 at 39. Not only does the failure to provide such clothing contravene the state's constitutional duty, but it also denies to those clients needing such clothing that level of training constitutionally required for the maintenance or acquisition of such fundamental self-care skills as dressing and toileting.

  In some cases, the failure to supply special clothing, or to provide access to that special clothing provided by the resident's parent or relative, may endanger the resident's health. Nicolina Coster, for example, a 50 year old resident of Building 2, suffers from lymphatic anemia, a blockage of the lymph glands, in her right leg. As a result, if she does not wear orthopedic shoes and special bandages, her leg becomes infected. Although Nicolina came to the Center with two pairs of the shoes and several bandages, she does not wear them. Testimony of Dominica Moses, T. of September 26, 1982 at 273-274.

  d. Adequate Medical Care

  There are not enough doctors, dentists and nurses to provide adequate medical care to all of the residents. One or two doctors on call at night and on the weekends for a population of 1,200, many of whom have substantial medical problems, are not enough to meet constitutional minima. T. of October 8, 1982 at 1444; see also testimony of Philip Feibusch, T. of October 4, 1982 at 715 (lack of sufficient dental care caused daughter's gums to deteriorate, necessitating the surgical removal of nine of her teeth). It is plain that resident Dennis Silverman's right to adequate care was violated when the post-operative therapy ordered by his doctor to prevent the paralysis of his legs was not performed. T. of September 26, 1982 at 307. The continued failure to repair ambulances prevents the provision of adequate medical care outside the institution. Testimony of Anthony Adams, T. of April 6, 1982 at 901-902.

  The inability of the clinical staff to provide adequate medical care is compounded by the general shortage of direct care staff. Staff on the wards may be so overburden, or tired due to long shifts, that they may not know a resident has been injured, and thus be unable to provide necessary medical care. Testimony of Rose Maggio, T. of April 6, 1982 at 884 (Michael had fractured his wrist, though the staff was unaware of this). Use of floating staff, who are not familiar with the clients, necessitated by the staffing shortage, as well as by administrative staffing policies, has led to certain residents, mistaken for others, being given the wrong medications.

  2. Right to Reasonably Safe Conditions

  The state's denial of adequate food, shelter, clothing and medical care has the effect of violating the residents' constitutional right to safe conditions. These factors in combinations with the problems of understaffing, floating staff, lack of programs and adequate treatment plans, and lack of staff familiarity with such plans, create an environment that cannot protect, within constitutional minima, residents from harm.

  Without direct care staff that is adequately trained in programming, or aware of treatment plans, that level of training which is necessary to preserve the physical safety of the residents, cannot be provided. Testimony of Kathleen Schwaninger, T. of September 25, 1982 at 48. The absence of programs and adequate treatment plans for those with negative behavior that cause injury both to themselves, and to other residents, and lack of staff familiarity with, or access to, such plans or programs where they do exist, together with the fact that clients often receive little attention due to general understaffing and concomitant staff fatigue, the use of a critical minimum policy and of floating staff, and lack of adequate staff training and supervision, have led to many incidents, accidents, and epidemics at the Center, often resulting in serious injury and, occasionally, death. See, e.g., Michael Maggio died from swallowing plastic gloves, T. of April 6, 1982 at 872-877, 881-884, 886; Eileen S., 26, died of scalding burns, T. of October 5, 1982 at 942-944; Pl. Ex. 6; Wayne W., bilateral pneumonia of nine-year old, T. of October 5, 1982 at 945-948, Pl. Ex. 6; Robert M., 34, dead from an apparent seizure after abnormal brain wave pattern was ignored, T. of October 5, 1982 at 948-950, Pl. Ex. 6, 7; James P., 30 years old, who was placed in a locked "time-out" room alone in violation of Center policy and fell out of a first-floor window, breaking his arm, T. of October 5, 1982 at 950-954, Pl. Ex. 7; "F. F.," 16, and Teresa, 27 years old, banged their heads on unprotected cribs or carts without any intervention by nearby staff, T. of March 8, 1982 at 132-134, T. of September 28, 1982 at 450-452, Pl. Ex. 12, picture 9; Lisa Gorelick, 22, blinded in one eye because of uncontrolled head-banging, T. of March 10, 1982 at 645-646; T. of September 28, 1982 at 456-457; Robert Stutz, 36 year-old man, 17 stitches over one eye and 14 over the other, T. of September 25, 1982 at 160-161, 168-171; Nicolina Costa, 50, repeatedly beaten by another resident while the staff person on duty continued to watch television, T. of September 26, 1982 at 272-274, 277-281; and Dennis Silverman, 37, sitting on a bed of roaches, T. of September 26, 1982 at 305-311. See also T. of March 10, 1982 at 595, 616, 670-672, 694-695; T. of September 28, 1982 at 437; T. of October 4, 1982 at 689-690, 715, 717; Pl. Ex. 6, 7, 26; Pl. Ex. 43, at 54-56, 63, 94, 105.

  Other types of safety hazards include defective fire alarms, T. of March 9, 1982 at 399, Pl. Ex. 6. At the June hearing the Director admitted that the hot water safety valves were not operating properly, increasing the possibility of scalding in showers.

  The persistent practice of feeding non-ambulatory residents in a supine position is an improper and dangerous technique that can cause aspiration of food into the lungs, resulting in pneumonia, scarring, decreased lung volume, reduced life span and even death. T. of March 8, 1982 at 136-138, 140-141; T. of April 5, 1982 at 777-779; T. of September 25, 1982 at 15. In one month, November 1981, three of the four deaths occurring at the Center were linked to aspiration of pneumonia, while the fourth was traced to intestinal obstruction and fecal impaction, related to ingestion of inedible objects or neglect of client needs. T. of March 9, 1982 at 437, Pl. Ex. 6.

  Prevalent at the Center are epidemics of such serious diseases as shigella, hepatitis, diarrhea, pneumonia, chicken pox, measles, and mumps. T. of March 9, 1982 at 417-418; T. of October 1, 1982 at 612, T. of October 8, 1982 at 1365-1366, 1412. Shigella, which results in diarrhea, bloody stool, and fever, is transmitted by fecal contamination; hepatitis, a liver infection, can be airborne or, in the case of hepatitis B., spread through fecal matter or some type of intimate contact such as biting. T. of March 9, 1983 at 141-145, T. of October 8, 1982 at 1438-1439. Both can be prevented by basic sanitary and housekeeping measures and by proper supervision of clients. Such diseases are less likely to be found in small community residences serving the same type of clients. T. of March 8, 1982 at 143, 145; T. of September 26, 1982 at 220, 255.

  The Center's system for reviewing and preventing incidents and injuries by the Incident Review Committee has admittedly been ineffective. T. of October 13, 1982 at 1661-1662. Until September 1, 1982, there was no formal system consistently monitoring the follow-up recommendations made by the Incident Review Committee. T. of October 13, 1982 at 1661; T. of October 12, 1982 at 1503-1507. Thus, in defendants' own example of the operation of the Incident Review Committee regarding a client (Joseph S.) who fell and cut his chin because of a seizure, Deputy Director Stanley Slawinski, the administrator responsible for institutional monitoring, could not say, 16 months after the incident occurred, whether Joseph ever was given the chin guard or the barrel chair recommended by the Committee. T. of October 13, 1982 at 1635, 1657.

  All of the experts but one agreed that in some respects the Center is not providing its residents safe conditions. Testimony of Kathleen Schwaninger, T. of September 25, 1982 at 44-45; testimony of Lyn Rucker, T. of September 28, 1982 at 526; testimony of Hugh Sage, T. of October 6, 1982 at 990, 1027-1028, 1066-1068, 1085-1086; testimony of Brian Lensink, T. of October 5, 1982 at 868. Even the one witness offered by defendants who testified that the Center did provide a safe environment for its clients, was dubious about many aspects of the Center's activities. Testimony of Richard Blanton, T. of October 14, 1982 at 1839, 1901, 1904-1905, 1917-1918. The consensus of the qualified professionals then, is that the Center does not provide its clients conditions of reasonable safety, contrary to what is constitutionally required under Romeo.

  The long list of institutional deficiencies is not due to any professional judgment. The Director and staff are not callous or indifferent. They know that they are not supplying the services their training and roles require. Substantial departures from acceptable standards "demonstrate" that they do not base their decisions to deprive their clients on their professional "judgment," 102 S. Ct. at 2462, but rather on the failure of the state to provide funds and freedom of action.

  Lack of personnel capable of exercising professional judgment in many individual cases itself represents a failure to provide constitutionally safe conditions. In Romeo, the Supreme Court specified that "long-term treatment decisions normally should be made by persons with degrees in medicine or nursing, or with appropriate [clinical] training . . ."; ". . . day-to-day decisions regarding care -- including decisions that must be made without delay -- necessarily will be made in many instances by employees without formal training but who are subject to the supervision of qualified persons." 102 S. Ct. at 2462 n. 30. At the Center, both long-term and day-to-day decisions are often made by persons who do not meet the Supreme Court's standard. This failure increases the probability that the decisions made for and about the residents may not guarantee their constitutional level of safety.

  The lack of enough clinical staff means that long-term treatment decisions may be made by those without sufficient training or that such decisions may never be made. See, e.g., Pl. Ex. 33, T. of October 5, 1982 at 911-913 ("the annual P.T. evaluation could not be done due to a lack of Registered Physical Therapy staff."). The effect is to deny residents a plan or program for long-term treatment, as well as the right to adequate medical care and the right to that minimally adequate or reasonable training guaranteed by the Constitution.

  Without adequately updated psychological evaluations, long-term psychological treatment decisions cannot be appropriately made. T. of October 5, 1982 at 915 (recent survey found that half the records reviewed in Building 28 lacked updated psychological evaluations). Inadequate training and supervision of direct care staff mean that many "day-to-day decisions" may not be made by those who are professionally competent to make them. Shortage of staff and the critical number policy often result in low staff morale and fatigue, which are increased by too few breaks and shifts that can range up to 16 hours. Testimony of Joseph Ryan, T. of October 5, 1982 at 930. These may affect client safety and may contribute to client abuse. See, e.g., T. of April 6, 1982 at 915-917 (beating by member of the staff observed by another member; no action taken to prosecute); testimony of Rose Silverman, T. of September 26, 1982 at 303-304 (bootmarks found on her son's body matching boots of the shower attendant).

  3. Right to Freedom from Undue Restraint

  Unnecessary restraints are placed on the residents. The most obvious example is the locking of otherwise ambulatory persons into wheelchairs with confining lapboards. T. of September 25, 1982 at 165; testimony of Phyllis Killigrew, T. of October 1, 1982 at 583-584 (residents in Building 10, Ward B, where she was a direct care worker "could have been ambulatory had they been allowed to be."); T. of March 10, 1982 at 648-649 (failure to put on braces required for walking).

  The absence of safely equipped vehicles to transport those who cannot walk, and are confined in wheelchairs or cars, unnecessarily curtails their opportunities to participate in programming and other activities both on and off the grounds of the Center. Lack of enough appropriately equipped vehicles operates as an undue restraint on both the ambulatory and non-ambulatory, since it deprives them of the freedom to make personal choices of what to wear, and what to eat by preventing them from visiting shops, restaurants, and recreational facilities. See Association for Retarded Citizens of North Dakota v. Olsen, 561 F. Supp. at 486 ("This right [to freedom from undue restraint] obligates the state to provide capable retarded citizens with reasonable opportunities to make trips into the outside communities."). See also Note, Beyond Youngberg: Protecting the Fundamental Rights of the Mentally Retarded, 51 Fordham L. Rev. 1064, 1072-1074 (1983). Clients are restrained by drugs, which have been used, according to the Director of Nursing, instead of treatment plans. T. of October 8, 1982 at 1434. The fact that there are so many locked doors to buildings, to dayrooms within the buildings, to bathrooms, and to sleeping areas functions as another restraint. See T. of September 25, 1982 at 47-47; T. of October 8, 1982 at 1447-1448.

  Plaintiffs' experts were in agreement that the living environment at the Center had a harmful, negative effect on the residents and created a situation in which learning was not possible. T. of March 8, 1982 at 28, 63, 72-73, 116; T. of September 25, 1982 at 46-47, of September 28, 1982 at 526, T. of October 5, 1982 at 838-839. The very restrictiveness of the Center setting, necessitated by the number of people living there, makes it impossible for the residents to acquire the skills necessary for success in a less restrictive environment. T. of September 25, 1982 at 54-56.

  The physical restraints that necessarily result from understaffing and those inherent in institutional life, are heightened by the absence of consistent reinforcing programming. If each client were receiving individual programming appropriate to his or her needs, then not all of a group of clients would need to be restrained on account of a few individuals.

  Some residents, such as Laura Knapp, are unduly physically restrained by living in the Center. T. of September 26, 1982 at 345-359. They are capable of much freer and more productive activities in small group community based homes. For these individuals, the Constitution mandates placement in a group home, or in some other situation in the community, where they can effectively exercise their proven ability to live independently. As resident Laura Knapp put it so poignantly:

  

I have been living in institutions, various institutions, for most of my life and I would like to go and see what it's like to live at somebody's house and be, like you know, once in a while, to get that kind of love that other kids get.

  T. of September 26, 1982 at 355.

  In Romeo, as noted above, the Supreme Court did not decide whether the Due Process Clause embraces a general right to habilitation. See 102 S. Ct. at 2459. Lower courts, however, have supported the theory of a right to a least restrictive alternative requiring some habilitation. See generally Philipp v. Carey, 517 F. Supp. 513, 518 (N.D.N.Y. 1981) (mentally retarded residents of state-run Syracuse Developmental Center have Due Process claim "to treatment in settings that pass muster under an appropriate least restrictive alternative inquiry"); Welsch v. Likins, 373 F. Supp. 487, 501-502 (D. Minn. 1974), vacated in part and remanded in part, 550 F.2d 1122 (8th Cir. 1977) (Due Process Clause requires state to "make good faith attempts to place [mentally retarded] persons in settings that will be suitable and appropriate to their mental and physical conditions while least restrictive of their liberties"); cf. Wyatt v. Stickney, 344 F. Supp. 387, 390 (M.D. Ala. 1972), aff'd sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974).

  In the case before us we need not find any abstract constitutional right to a least restrictive environment. That entitlement is accepted as professionally required by the testimony and is implied in the explicit right to care and treatment provided by state law. See Project Release v. Prevost, 551 F. Supp. 1298, 1305 (E.D.N.Y. 1982); Woe v. Mathews, 408 F.Supp, 419, 428 (E.D.N.Y. 1976); aff'd sub nom. Woe v. Weinberger, 562 F.2d 40 (2d Cir. 1977); New York mental Hygiene Law §§ 15.01, 15.03, 33.03(a). Community placements for those current institutional residents who can adjust outside the institution is required by New York law. See New York Mental Hygiene Law § 33.03(a).

  Deference to the judgment of a qualified professional, Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 2641, 73 L. Ed. 2d 28, also and plaintiffs", agreed that many clients of the Center could be safer, happier and more productive outside the institution in small community residences. Their professional judgment was that transfers should be made as soon as the facilities could be made available and, that the state was capable of providing them in large numbers relatively quickly. The Constitution mandates community placement for those who have been adjudged by qualified professionals to require a community setting in order to exercise basic liberty interests, which would otherwise be denied them by what are for them the undue restraints inherent in institutional life. See Association for Retarded Citizens of North Dakota v. Olson, 561 F. Supp. 473, 486.

  All of the residents of the Center have been referred for placement in the community. Testimony of Rosalind Burke, T. of October 13, 1982 at 1811-1812. There was much testimony that physical and behavioral handicaps are not barriers to such placements. E.g., testimony of Lyn Rucker, T. of September 28, 1982, at 412-416. Defendants' expert Richard Blanton testified that, with the appropriate arrangements, 90% of the current Center population could be served in the community. T. of October 14, 1982 at 1945. By failing to provide enough community placements, and accompanying educational or workshop day programs, the defendants have unduly restrained many residents for whom institutional life precludes the exercise of basic liberties.

  4. Right to Minimally Adequate Training

  Under Romeo, the Constitution requires that a state institution provide that level of training which is determined by a qualified professional to "be reasonable in light of [the resident's] liberty interests in safety and freedom from unreasonable restraints." 102 S. Ct. at 2452. As noted earlier, the Court's analysis of constitutionally reasonable training, as highlighted in Justice Blackmun's concurrence, included a requirement that minimum self-care skills be maintained. See 102 S. Ct. at 2462-2465; Association for Retarded Citizens of North Dakota v. Olson, 561 F. Supp. 473, 487 (D.N.D. 1982). In the case of an individual who entered an institution with self-care skills lost due to the state's failure to provide training, this right, Romeo indicates, would be violated. See 102 S. Ct. at 2464. Similarly, the Constitution requires the institution to provide the resident with training to acquire such self-care skills, since this "is as much liberty as they will ever know." Id.

  The record contained numerous examples of precisely the sort of regression condemned in Justice Blackmun's concurring opinion. Loss of skills was caused by programming deficiencies. E.g., testimony of Lita Cohen, T. of March 10, 1982 at 616-618; testimony of Leila Gorelick, T. of March 10, 1982 at 638-639; testimony of John Czerniewicz, T. of March 10, 1982 at 712, 714, 716; testimony of Dominica Moses, T. of September 26, 1982 at 272; testimony of Elle Ambrose, T. of October 13, 1982 at 1713. The Center has not provided its residents with the minimal training required by the Constitution. This conclusion is supported by the testimony of the qualified professionals presented by both plaintiffs and defendants, of parents and relatives of residents, as well as by numerous citations in the survey reports.

  Nor has the Center provided the training to enable those capable of learning basic self-care techniques to acquire them. Toilet training of many is inadequate or nonexistent. T. of March 9, 1982 at 255, T. of April 5, 1982 at 859-860; T. of September 28, 1982 at 389-390, 393-394; T. of October 1, 1982 at 585, 609-610, 635; T. of October 5, 1982 at 860, 863, 865; T. of October 8, 1982 at 1383, 1446; T. of October 14, 1982 at 1941-1943; T. of October 18, 1982 at 2004-2005. Absence of feeding and physical and speech therapy programs prevents many residents from feeding and expressing themselves and moving independently -- basic skills essential to the exercise of the most fundamental liberties. See Note, Beyond Youngberg: Protecting the Fundamental Rights of the Mentally Retarded, 51 Fordham L. Rev. 1064, 1080-1085 (1983).

  The absence of behavior modification programs, and other therapies designed to treat self-abusive and other maladaptive behaviors also contravenes the residents' constitutional guarantee of training under Romeo. It denies to them the protection of their liberty interests in safety and freedom from undue restraint. Without appropriate programs individuals with such behaviors will harm both themselves and other residents, and may be, as they have been, subjected to control by otherwise unnecessary psychotropic drugs which can cause or aggravate the behaviors they are supposed to eliminate. E.g., T. of October 8, 1982 at 1441.

  The record proves that while at the Center many clients have developed harmful or inappropriate habits (such as head-banging, feces eating, eye-gouging, and biting), which at least in part may be attributed to the effects of their unstimulating environment. T. of March 8, 1982 at 52-57; T. of April 5, 1982 at 780-781. The Center lacks resources to deal adequately with these and other inappropriate behaviors. Among the other ill effects of the failure to deal with these problems, is that they can delay or impede a client's movement into the community, and thereby further restrain him or her unnecessarily. T. of March 9, 1982 at 253; T. of April 5, 1982 at 781.

  There were no behavior modification programs available at the Center between 1978 and 1980. T. of March 10, 1982 at 556-560; Pl. Ex. 23, at 488, 592). None existed in late 1981. T. of March 9, 1982 at 252-253; T. of October 13, 1982 at 1794-1795; Pl. Ex. 6. Although some clients now receive one-to-one staff attention, Def. Ex. 110, the employees assigned to these clients are usually nonprofessionals who are unaware of the contents or existence of the required programs for dealing with this behavior. T. of September 28, 1982 at 441, 442-443, 446; T. of October 5, 1982 at 820-823. There is a general absence of programs to deal with clients who bang their heads, bite, scratch, kick others, and engage in other forms of self-stimulation and self-abuse. T. of October 1, 1982 at 618-620, 638-639; T. of October 4, 1982 at 737. Without a staff that knows how to implement such programs where they do exist, clients are denied the minimal programming to which they are constitutionally entitled.

  Failure to provide adequate programming has created a vicious cycle. Clients learn inappropriate behavior in the institution. T. of October 4, 1982 at 769. This gives rise to or increases their need for behavioral programming. When this programming is not forthcoming, the clients continue to deteriorate, to the point where they suffer serious intellectual, emotional, and physical damage and, at some point, an irreversible loss of potential. T. of March 10, 1982 at 557-559, 564-565.

  The testimony of the qualified professionals bears out the inevitable conclusion that the residents of the Center are denied that training requisite to the maintenance and acquisition of basic self-care skills, as well as that necessary to ensure their safety and freedom from undue restraint. Conditions at the Center meet none of the constitutionally minimal standards set forth in Romeo.

  Plaintiffs have argued that the Equal Protection Clause of the Fourteenth Amendment entitles them to the same treatment as members of the Willowbrook class. New York State Association for Retarded Children, Inc. v. Carey, 393 F. Supp. 715 (1975); New York State Association for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752 (1973). They note that more money is spent per capita on the Willowbrook class than on Center residents, T. of October 5, 1982 at 958-959; Pl. Ex. 27; that the former class receives more programming, T. of March 90, 1982 at 311-312; and a higher staff ratio, id. at 369-372, T. of April 6, 1982 at 999-1002, Pl. Ex. 27, 40; and that placement of the Willowbrook class in community facilities is proceeding at a more rapid rate. T. of April 6, 1982 at 984; T. of September 25, 1982 at 73; Pl. Ex. 23, at 576-578; Pl. Ex. 30, 31; Pl. Ex. 20, 21; T. of March 9, 1982 at 299-300; T. of April 6, 1982 at 963-964, 985-986; T. of October 20, 1982 at 2383. Conditions at Willowbrook were more deficient than they are now at the Suffolk Center. Improvements to correct the Willowbrook class' prior deprivations, do not necessarily set a standard required to be followed in every state institution. See New York State Association for Retarded Children v. Carey, 393 F. Supp. 715, 717 (1975). It follows, therefore, that the programming and staffing requirements of the Willowbrook Consent Decree need not necessarily be afforded residents of the Suffolk Center.

  B. Federal Statutes

  The plaintiffs' claims for improved conditions are supported by federal statutory law. While the Supreme Court held in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981), that section 6010 of the Developmentally Disabled and Bill of Assistance Act, 42 U.S.C. § 6001 et seq., setting forth "Congressional findings respecting the rights of the developmentally disabled," did not create substantive entitlements, 451 U.S. at 11, 19, 101 S. Ct. at 1536, 1540, the court's decision did not preclude the possibility of statutory liability arising from violations of other sections of the act.

  The Court's finding that the section 6010 bill of rights provisions were "hortatory, not mandatory," 451 at U.S. at 24, 101 S. Ct. at 1543, was based on the absence of language specifying compliance as a condition for the grant of federal funds. See 451 U.S. at 22-27, 101 S. Ct. at 1542-1544 (specifically distinguishing section 6063(b)(5) from section 6010 in that it imposes a "specific condition"; and noting that in regard to "the well-settled distinction between Congressional "encouragement" of state programs and the imposition of binding obligations on the State," the crucial inquiry is "whether Congress spoke so clearly that we can fairly say that the State could make an informed choice.").

  Other provisions of the act, such as Section 6011 require individual written habilitation plans containing specific statements of long-term and immediate objectives, expressed in behavioral or otherwise measurable terms, and implementation strategies for each developmentally disabled person. Unlike Section 6010, Section 6011 was enacted by Congress under the Spending Power. See Pennhurst, 451 U.S. at 23, 101 S. Ct. at 1542. Compliance with its enumerated conditions is obligatory. See Pennhurst, 451 U.S. at 27-29, 101 S. Ct. at 1545-1546. As detailed in the discussion of individual treatment plans above, the treatment plans at the Center do not meet the statutory requirements for individualized habilitation plans set out in 42 U.S.C. § 6011. See also Garrity v. Gallen, 522 F. Supp. 171, 213-215 (D.N.H. 1981) (holding that Section 504 of the Rehabilitation Act, 20 U.s.C. § 794 is "predicated upon the need for individualized treatment," and thus requires an adequately documented individualized treatment plan for each resident of the state institution for the mentally retarded). Discussion of funding and of inspections and certifications by federal authorities demonstrate that federal statutory authority and funding is intended to ensure that the rights of Center residents under federal statutes are enforceable.

  Nevertheless, the decree is based upon constitutional, not statutory, rights. Thus it is not necessary to decide the precise reach of federal statutes under Pennhurst.

  C. State Law

  No state policy need be balanced against the constitutional command since the state's statutes support and go further than what the Constitution requires. The New York State Hygiene Law explicitly provides mentally retarded and developmentally disabled citizens with a right to care and treatment. The state legislature specifically delegated to the State Office of Mental Retardation and Developmental Disabilities

  

the responsibility for seeing that mentally retarded and developmentally disabled persons . . . are provided with care and treatment, that such care and treatment is of high quality and effectiveness, and that the personal and civil rights of persons receiving care and treatment are adequately protected.

  New York Mental Hygiene Law § 13.07(c). See 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 Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 31, 101 S. Ct. 1531, 1546, 67 L. Ed. 2d 694 (1981) (right to treatment secured by state law may provide an independent and adequate ground to support lower court's order for community placement of residents of state institution for the mentally retarded).

  Other provisions of the Mental Hygiene Law require humane treatment, New York Mental Hygiene Law §§ 13.21(b), 33.03(a), written treatment plans with a statement of treatment goals and of the appropriate programs to be undertaken to meet such goals, Id. § 29.13(a), (b), and an appropriate free public education for mentally retarded and developmentally disabled children between ages five and twenty-one. Id. § 33.11, cf. The Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401 et seq. An institutional resident's right to custody of his or her personal property is specified. New York Mental Hygiene Law § 33.07. The state legislature has been particularly concerned about providing for the development of community residences for the mentally disabled. L. 1978, c. 468, § 1, New York Mental Health Law §§ 41.33, 41.34.

  Many of the residents of the Center are not receiving the care and treatment to which they are entitled under state law. The testimony from both plaintiffs' and defendants' witnesses established that the Center does not provide each resident with programming of "high quality and effectiveness;" some receive no programming at all. Nor do all the treatment plans conform to the requirements of state law. Frequently, the residents' rights to personal property is not respected, in contravention of state law. E.g., testimony of Dominica Moses, T. of September 26, 1982 at 271-272; testimony of Rose Silverman, id. at 315-316.

  Finally, defendants' failure to develop community placements and services thwarts state legislative intent, as well as denying many of the state's mentally retarded citizens, what defendants say everyone should have, -- "the opportunity to live life to the fullest." Def. Ex. 248, Script for "Right at Home, Right in the Neighborhood," p. 8. It is a waste of human potential to keep people in institutions if they can live and develop better in the community." Id. at p. 5. As the Supreme Court once mused:

  

For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide: "That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent . . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.". . . . Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution.

  Meyer v. Nebraska, 262 U.S. 390, 401-402, 67 L. Ed. 1042, 43 S. Ct. 625 (1923) (emphasis added).

  V. SUMMARY OF CONSTITUTIONAL FAILURES

  There is no doubt that the initiation of this lawsuit, together with Director Fred McCormack's stewardship of the facility, has led to better conditions at the Center. The quality of life has been improved in the last few years. The fact remains, however, that continued residence at the Center is harmful to many of the residents. Defendants' failure to expeditiously develop enough appropriate day and residential programs in the community for the current population at the Center also amounts to a constitutional deprivation of many of their rights. See Youngberg v. Romeo, 102 S. Ct. at 2462.

  Plaintiffs and defendants are both to be commended for their efforts in improving the environment at the Center. Yet staffing and other factors endemic to the management of a large facility make it an environment that fails to protect the safety of its residence, to prevent their regression, and to provide an opportunity to acquire those skills requisite to self protection and development.

  In assessing remedies the court must be aware that funds necessarily expended for those who are members of this class may affect funds made available to those residing in their families home. In this case, the dilemma is not as exquisite as it might have been were budgeted amounts for one group to be shifted by the executive to meet the demands of a decree. In any event, lack of funds for one group is not an excuse for denying constitutional rights to another. See Welsch v. Likins, 550 F.2d 1122, 1132 (8th Cir. 1977), aff'g, 373 F. Supp. 487, 497-498 (D. Minn. 1974); Lapeer Oakdale Parents Ass'n for Retarded Citizens v. Ochberg, 492 F. Supp. 1035, 1037 (E.D. Mich. 1980); Lora v. Board of Education of New York, 456 F. Supp. 1211, 1292-1293 (E.D.N.Y. 1978), vacated and remanded on other grounds, 623 F.2d 248 (2d Cir. 1980); Wyatt v. Stickney, 344 F. Supp. 373, 377 (M.D. Ala. 1972), aff'd sub nom; Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974).

  VI. PROPOSED PLAN OF DIRECTOR

  In its interim order of February 24, 1983, this court found that conditions at the Center did not meet constitutionally minimal standards. See Appendix A. It ordered the Director to submit a plan correcting constitutional deficiencies.

  On April 24, 1983, the plan was submitted. See Appendix B. This plan lacked detailed steps, timetables, specific numbers of clients to be served, dollars involved, and explicit implementation.

  Defendant McCormack has noted that he was constrained by fiscal and other policy determinations by the state. Such constraints cannot justify the continued constitutional deprivations to which New York State has subjected the residents of the Center. See Arthur v. Nyquist, 712 F.2d 809, slip op. at 5362 (2d Cir. 1983) ("a court is entitled to require money for programs that materially aid the success of the overall desegregation effort."); Lapeer Oakdale Parents Ass'n for Retarded Citizens v. Ochberg, 492 F. Supp. 1035, 1037 (E.D. Mich. 1980); Welsch v. Likins, 373 F. Supp. 487, 498 (D. Minn. 1974) ("It does not suffice . . . to show that conditions have been upgraded at [the state institution], that the situation will continue to improve in the future, and that even more achievements would be forthcoming were it not for the restrictions imposed by the legislature. It is the Court's duty under the Constitution, to assure that every resident . . . receives at least minimally adequate care and treatment consonant with the full and true meaning of the due process clause."), aff'd, 550 F.2d 1122 (8th Cir. 1977); id. at 1132 ("If [the state] chooses to operate hospitals for the mentally retarded, the operation must meet minimal constitutional standards, and that obligation may not be permitted to yield to financial consideration."). See also Sherry v. New York State Educ. Dep't, 479 F. Supp. 1328, 1339 (W.D.N.Y. 1979); Lora v. Bd. of Educ. of New York, 456 F. Supp. 1211, 1292-1293 (E.D.N.Y. 1979), vacated and remanded on other grounds, 623 F.2d 248 (2d Cir. 1980).

  The Director's plan was analyzed in detail at public hearings held on June 20 and 23, 1983. Witnesses were heard. The court, after consultation with the parties, made line by line changes in the Director's proposals. These decisions are embodied in the decree.

  VII. DECREE

  A. Supervision

  Plaintiffs ask that a master or committee on the Willowbrook model be appointed to supervise execution of the decree. See, e.g., Halderman v. Pennhurst State School & Hosp., 446 F. Supp. 1295, 1326-1328 (E.D. Penn. 1977) (appointing and specifying tasks of special master), aff'd in part and rev'd and remanded in part, 612 F.2d 84 (3d Cir. 1979), rev'd and remanded, 451 U.S. 1, 67 L. Ed. 2d 694, 101 S. Ct. 1531 (1981), aff'd on other grounds, 673 F.2d 647 (3d Cir. 1982), modified, 545 F. Supp. 410 (E.D. Penn. 1982); Hart v. Community School Board. 383 F. Supp. 699 (E.D.N.Y. 1974), aff'd, 512 F.2d 37 (2d Cir. 1975); NYSARC, Inc. v. Carey, 357 F. Supp. 752 (E.D.N.Y. 1973), 393 F. Supp. 715 (E.D.N.Y. 1975). See generally Society for Good Will to Retarded Children, Inc. v. Carey, 466 F. Supp. 722, 725-728 (E.D.N.Y. 1979).

  There is no necessity for such close supervision. New York's executive and legislative departments have generally recognized their responsibilities towards clients at the Center; there is little reason to believe they will flout this court's decree. The striking improvements in the Center made under the leadership of the present Director in just a few years as well as his obvious competence and integrity give high promise of compliance without outside supervision. To assist the Director in monitoring the decree and in making required reports to the court, the decree directs him to appoint a high level assistant to help him comply.

  A number of factors strongly suggest that the Director must be afforded maximum flexibility in fulfilling his obligations under the decree. Professional standards and practice are changing; theory is still in a state of flux. The Director of Suffolk Development Center must lead a large professional staff with many specialties and prerogatives. He must train lay workers in new techniques and inspire them to do demanding and often demeaning work with little financial reward. He must deal with unions and rigid state-wide labor agreements. He must meet the demands of officials and bureaucratic regulations at the municipal, county, state and federal levels. He must gain the confidence and support of families of clients. He must overcome the understandable reluctance of local residents who oppose community residences out of ignorance rather than malice. He must induce many private agencies to provide services throughout Nassau and Suffolk counties. Moreover, he must consider not only the needs of those at the Center, but the much larger group of retarded persons living with their families who should be supported in their homes or who should go directly to community centers. Having lawyers and the court constantly looking over this shoulder in one burden that should be minimized. Cf. Arthur v. Nyquist, 712 F.2d 809, slip op. at 5359, 5362 (2d Cir. 1983) (reliance upon "good faith" of officials in charge of program and "deference" to them). Having been given the power and facilities he sought, there is no reason the Director of the Center should not comply with the decree in all particulars.

  The court retains jurisdiction to make further orders in enforcing the decree. It urges the parties to work with each other in a spirit of helpfulness in order to avoid the need for further litigation. The primary responsibility for operating the Suffolk Developmental Center and for caring for the welfare of its clients must rest with the state and its officials, not the courts. The Director has been given the maximum possible authority and aid to enable him to do his constitutional and professional duty. He should be allowed to do his important and difficult work with a minimum of interference from the law.

  B. Terms

  1. Defendants shall implement the annexed Plan; and

  2. In order to advise plaintiffs, defendants and the Court as to defendants' progress with compliance and failures to comply with the annexed Plan, defendants shall hire a reporting officer and one secretary forthwith. The reporting officer shall be an appropriate professional in the field of Mental Retardation and Developmental Disabilities and shall regularly report to the Director of Suffolk Developmental Center and the defendants. The reporting officer shall issue written reports to the Court, with copies to counsel for plaintiffs and defendants on September 1, 1983, and every April 1 and September 1 for the years 1984, 1985, 1986 and 1987. These written reports shall address defendants' compliance and failures to comply with each of the items set forth in the annexed Plan. The reporting officer shall be accessible to plaintiffs, but need not furnish plaintiffs with any written materials other than the biannual written reports specified herein, and

  3. The Court retains jurisdiction until further order. GOAL I: To Assure Proper Programming, Particularly for those Over the Age of 21 Not Educated in the Public School System OBJECTIVE ACTIONS 1. To reorganize the delivery 1. By September 1, 1984, organize services by of treatment services so client abilities, grouping them in specific that it more effectively residential areas for the enhancement of develops the client in his programming, facilitating access to program environment of Suffolk service space, and reducing the need for a Development Center, and in complex transportation system. Grouping will a more normalizing manner reflect treatment services needed and provide provides better staffing for planned upward mobility, with the ideal coverage and consistency in result being the placement of appropriate the delivery of clinical clients into the community. services. The above relocation which is limited to and applies only to the placement of clients into the community and not for any other reason will be accomplished by the following: a) Identify clients with similar abilities and group them in residential clusters. b) Identify existing and projected program space that will accommodate these clusters and be in closest proximity to their assigned residential area, especially for: 1. Non-Ambulatory 2. Blind 3. Geriatric c) Refine program curricula for the areas identified utilizing new and age appropriate technologies. d) Develop the necessary training and support systems to facilitate achieving the objective. 2. To improve the existing goal 1. By September 1, 1984, reassess existing oriented programming for programs of the over age 21 population residents over the age of 21. to determine if they are meeting individual clients needs and where they are not, revise curricula to encompass the whole client and improve his skills in real life. 2. a) An upwardly mobile continuum of services will be developed to provide training to clients having from the least to the greatest abilities. This continuum will begin with basic living skills (including grooming, toileting, eating), and move into more advanced living skills (such as domestic activities). The next step will focus on the development of prevocational skills (e.g., motor development, coordination, and vocational readiness) and terminate in vocational habilitation (including such activities as landscaping assistance, housekeeping assistance). Throughout the entire continuum, attention will be paid to socialization and deinstitutionalization. 2. b) By July 1, 1984, Program Center(s) will be designed to modify maladaptive behaviors which would prohibit clients from progressing through the programming continuum and may inhibit eventual placement, provided that the establishment of such center(s) shall not reduce the level of care provided to other clients below the minimum levels required under this decree. 3. Provide goal oriented 1. By July 1, 1984, all residents age programming to all residents 21 and under shall receive school age 21 and under. education programming on a full year (12-month) basis. 4. Improve upon existing systems 1. By September 1, 1984, on a five day to assure that clients of Suffolk per week 12 month per year basis, six Developmental Center receive hours of active, structured programming programs that meet their needs. shall be made available to each client in addition to recreation and leisure activities unless medically, socially or psychologically contraindicated as shown by the certification of a QMRP (Qualified Mental Retardation Practitioner) having a State certificate, but lack of resources shall not be the basis for such certification; provided, however, that each client has the right, after being fully advised, to refuse any such programming. 2. Develop a training program to facilitate the success of program philosophy and goals. 3. Streamline the current record keeping system to permit therapists more time for direct client contact. 4. Provide realistic and less time consuming client coordinator functions. a) Develop a more simplified client coordinator system that can be managed by direct care staff under the supervision of a Qualified Mental Retardation Practitioner (QMRP); one that will meet the mandates of all regulatory agencies. 5. Make more meaningful a quality assurance system that will assure clients are receiving programs which best meet their demonstrated needs and evaluate their mobility or fixation at an appropriate level; e.g., assuming no inhibiting neurological impairment client program will be altered if it is not successfully addressing a lack of toileting skills. 6. By September 1, 1984, an appropriate toilet training program shall be made available to all clients not presently toilet trained, unless such program is medically or physiologically contraindicated as shown by the certification of a QMRP (Qualified Mental Retardation Practitioner) having a State certificate. GOAL II: An Increased Direct Care Staff Ratio at the Ward Level and Dormitory Care Level, as well as in Various Professional Specialties OBJECTIVE ACTIONS 1. To maintain an overall staff to 1. By November 1, 1983, an overall staff client ratio of no less than to client ratio of no less than 1.78 to 1.78:1 and allow for various 1 shall be met and maintained within administrative flexibilities and 1%. To meet this objective, the prerogatives, until August 31, Director shall have the authority and 1987. be required to fill and refill any vacant position without regard to any budgetary restrictions or other limitations, unless otherwise ordered by the Court. At the end of fiscal year 83-84, the impact of this ratio shall be assessed and an amended staffing ratio for fiscal year 84-85 may be established upon a further order of the Court. 2. On an as needed basis, increase the fill level in selected direct care and clinical care titles and/or lay off in titles determined to be in excess and redeploy these resources to functional areas to augment services, within a 10% variation on fill levels, subject to the provisions of statute and collective bargaining agreements. 3. On an as needed basis, utilize split items for part-time employment, stipend employment, traineeships, etc., to the extent of the Director's present authority. 2. To create an alternate resource 1. By March 1, 1984, defendants shall to employees removed from establish a fifty (50) person item assigned duty for training pool, over and above the 1.78:1 staff purposes. to client ratio, within a 6% variation. 3. To increase direct care staff available in the ward at times 1. Review all direct care assignments and, of maximum activity. based on proposed program changes, develop a correct distribution for each client area for each shift, subject to the provisions of statute and collective bargaining agreements, unless modified by the consent of affected unions and employees. 2. Continually review and readjust direct care assignments and schedule based upon client needs, program, and residential goals, subject to the provisions of statute and collective bargaining agreements, unless modified by the consent of affected union and employees. 3. Utilize all new employees and returning leave employees to fill in identified gaps by centralizing these items for deployment, subject to the provisions of statute and collective bargaining agreements, unless modified by the consent of affected unions and employees. 4. Utilize staff from areas vacated by clients going to day program to assist in other direct care or program areas, subject to the provisions of statute and collective bargaining agreements, unless modified by the consent of affected unions and employees. 5. Request that OMRDD assess the current utilization of housekeeping personnel with an eye toward increasing their effectiveness on the living unit, thereby increasing direct care staff availability to clients. Assessment should include the use of part-time, flex-time, and other alternate work schedules when filling housekeeping vacancies, subject to the provisions of statute and collective bargaining agreements, unless modified by the consent of affected unions and employees. 6. Utilize the incontinent pads or disposable diapers to free direct care staff from the "folding and sorting" activity or provide additional staff to fold cloth diapers. 7. All clients whose program plans indicate that they can benefit by leaving the center to shop for clothing shall be given the opportunity to do so. Those clients for whom outside shopping trips are medically, socially or psychologically contraindicated as certified by a QMRP (Qualified Mental Retardation Practitioner) having a State certificate shall have their clothing ordered via vendor or catalog, so long as the absence of vehicles or staff for off-campus shopping is not the basis for the denial of client shopping trips. 8. With such training as is required, food service personnel will more actively participate in meal time programming and thereby supplement direct care staff involvement, subject to the provisions of statute and collective bargaining agreements, unless modified by the consent of affected unions and employees. 9. Request that all parents/guardians, relatives and friends of Suffolk Developmental Center clients, as well as members of the community, volunteer to give assistance towards client service, as is frequently the practice in voluntary and religious agencies. 10. Increase volunteer programs and encourage older parents and members of the community to become Foster Grandparents or Senior Companions. 11. Reinforce performance standards and, through the performance evaluation system, reinforce direct care responsibilities to client assignments, subject to the provisions of statute and collective bargaining agreements, unless modified by the consent of affected unions and employees. 12. Restructure current performances evaluations to continue to reinforce supervisory responsibilities of mid-level supervisors and nurse administrators in supervising direct care to insure maximum utilization of therapy aides, subject to the provisions of statute and collective bargaining agreements, unless modified by the consent of affected unions and employees. 13. Expand the utilization of former Suffolk Developmental Center staff as per diem employees (substitute roster), subject to the provisions of statute and collective bargaining agreements, unless modified by the consent of affected unions and employees. 14. Explore executive initiative to rehire early retirees, subject to the provisions of statute and collective bargaining agreements, unless modified by the consent of affected unions and employees. 4. To increase the provision of 1. Cluster professional personnel in needed clinical support services relation to client needs as reflected to clients. by client abilities grouping. 2. Continually review the utilization and need for specific clinical titles. Adjust clinical assignments and/or employment levels as required by changing client needs. 3. The assignment of clinician duties will place a priority on service delivery as opposed to record keeping; and this will be documented through the performance evaluation system. 4. Expand performance standards and review the organizational placement of discipline coordinators. 5. Expand performance standards for clinical personnel to include the training and supervision of direct care staff, on all shifts, in the program skills and activities. 6. Seek the involvement of professional schools by providing clinical field experience at Suffolk Developmental Center campus. 7. Until September, 1987, where vacancies in professional staff have not been filled after good faith efforts to do so, equivalent personnel shall be made available by contracting for part-time services and other devices not inconsistent with statute or collective bargaining agreements, and funds may be shifted from line budget items for this purpose. 8. Continue the planning and expedite the development of training programs for high school and undergraduate students giving them the opportunity to work part time at Suffolk Development Center during peak client activity times, subject to the provisions of statute and collective bargaining agreements, unless modified by the consent of affected unions and employees. 9. Continue to plan and enter into agreements with SUNY at Stony Brook School of Medicine and Allied Health Services, for a closer relationship which could lead to a revised system of providing medical services at Suffolk Developmental Center, including the possibility of SUNY taking over the management of medical and medical ancillary services as well as the utilization of physician extenders, subject to the provisions of statute and collective bargaining agreements, unless modified by the consent of affected unions and employees. GOAL III: Develop an Improved Training Program for Those Charged With Care of Clients so That Necessary Program Activities are Incorporated in the Context of Clients' Daily Living OBJECTIVE ACTIONS 1. To increase the relevancy of 1. Increase decentralization of Staff training for staff charged Development and Training Services by with care of clients. assigning total responsibility for the management of all aspects of training to a Staff Development Specialist for a designated residential programming area. 2. Establish a residential Training Unit/Assessment Center to be utilized for assessing staff competencies, for staff training and for field placement of students from academic institutions. 3. Utilizing adult-learning theory, this unit will increase efforts to provide total competency-based training by: a) Identifying basic and site specific competencies expected in job performance. b) Developing realistic assessment methods; c) Having staff who demonstrate competency in any conceptual or skill area exempted from training in that content area. Life safety skills will be assessed every six months and retraining required as indicated by skill assessment, within applicable federal and state regulations. d) Revising present curricula and developing new ones as necessary to reflect changing client needs to assure relevancy of training. e) Incorporating evaluations of training into the curriculum revision process. 4. An additional fund of up to $25,000 shall be established to permit contracts for outside consultants to train Long Island DDSO trainers when changing client needs require staff training beyond the scope of the expertise of employees. 5. utilizing affirmative action practices, staff above-named training unit with a team of employees who demonstrate the ability to provide client care meeting all applicable standards, and can serve as a model for training and retraining. No more than five persons may be assigned to this unit without regard to classification, notwithstanding seniority or other contractual requirements, after consultation with the appropriate labor unions. Any persons other than these five must be assigned to this unit in accordance with the provisions of the applicable collective bargaining agreement. 6. Establish an "Ad Hoc" training advisory committee with representation from Staff Development and Training, Suffolk Development Center Client Services, state-operated community-based services, voluntary agencies, public relations certification unit, all labor organization and the Society for Good Will to Retarded Children, Inc. This committee will provide input into the planning, implementation, and evaluation of training. 7. Revise the training delivery model to include the appropriate use of: a) Onsite, hands on, experiential learning. b) Role modeling in the training unit utilization a "buddy system". c) Centralized classroom learning. 8. Expand the training of client care work teams from residential units and program areas in team process, communication skills, awareness, and continuity of client care by intergrating direct care staff of all three shifts, mid-level supervisors, professional staff, treatment team leader, parents and support service personnel. 9. Revise delivery of community training programs so that staff identified for transition into community settings are trained for community-specific competencies while working with clients at Suffolk Developmental Center who are identified for placement by incorporating such training into the job descriptions for community residence positions. 2. To expand the availability of 1. Through the use of existing training Staff opportunities for staff. resources, create a floating pool of 50 staff to be utilized for releasing unit staff for training. 2. Conduct feasibility study and cost analysis for developing a training resources library within the "Training Unit/Assessment Center" to facilitate self-paced learning and provide availability to staff on all three shifts. 3. Expand the pool of trainers by: a) Eastablishing a mechanism of sharing trainer resources within the Southeastern County Service Group and New York City. b) Developing a training consortium with voluntary agencies in the Long Island DDSO catchment area. c) Utilize more parents and guardians of clients in training programs. 4. a) Continue to negotiate academic credit (extending beyond life-experience credit) for training received at Suffolk Development Center. b) Negotiate increased numbers of university affiliations for: - Student field placement at Suffolk Developmental Center in exchange for academic faculty offering staff training at Suffolk Developmental Center. - Academic programs (degree and certificate bearing) at Suffolk Developmental Center. 3. To increase the application of 1. Establish a mechanism for evaluation knowledge and skills acquired the effectiveness of training and through training to job application on-the-job in both performance. residential and treatment areas which feeds back to Staff Development and Training Department to be utilized in revising training programs. The evaluation process will include both trainees and supervisors. GOAL IV: Proper Repairs to Buildings, Particularly as to Heating and Air Conditioning OBJECTIVE ACTIONS 1. To reorganize the delivery of 1. Establish the Environmental Systems maintenance and environmental Department. services. 2. Until September, 1987, on a temporary basis, reclassify Plant Superintendent position from "B" to "A". 3. Until September, 1987, on a temporary basis, reclassify two selected items to a "B" grade level or environmental engineer and a sanitarian to direct and work respectively with the Environmental Systems Department. 4. Shift and reclassify selected vacant items to create additional supervisory titles in various maintenance departments, excluding the Environmental System's Department. 2. To reduce the number of 1. Expand the "Swat Team" repair concept repairs required. of performing comprehensive repairs on a scheduled basis in one building at a time, to include the prevention maintenance of non-specialized equipment. 3. To improve the quality and 1. Develop and implement a work production quantity of work production. standards reference manual. (The intent of this manual is to give the maintenance supervisors work production and quality standards by which to gauge the productivity of their subordinates, include these standards in the performance evaluation system.) 2. Develop and implement a formal training program for maintenance and environmental systems staff. 3. Negotiate with BOCES and private trade schools the use of Suffolk Developmental Center as a practical training site for their students (with particular emphasis toward affirmative action programming), and arrange for slots in those schools for selected Suffolk Developmental Center Plan Engineering staff to learn new skills or upgrade present ones. 4. Contract with private tradesmen perform specific maintenance and environmental systems functions, subject to the provisions of statute and collective bargaining agreements, unless modified by the consent of affected unions and employees. 5. Initiate a study to determine the feasibility and benefits of paying plant engineering personnel wages comparable to the State University System. 6. Hold production contests. 7. Establish a "Quality Circle" concept in Plant Engineering with a view toward more timely, effective, and positive resolution of maintenance problems. 8. Change existing staff pass days and work hours by introducing flextime, subject to the provisions of statute and collective bargaining agreements, unless modified by the consent of affected unions and employees. This would result in greater maintenance coverage over an expanded workday. 9. On or before June 1, 1984, an additional fund of up to $35,000 shall be established to hire as temporary civil service summer employees (high school and college students and selected clients) to function as helpers for grounds, maintenance and environmental systems assistance, subject to the provisions of statute and collective bargaining agreements, unless modified by the consent of affected unions and employees. 10. Improve risk management efforts within the Maintenance Department in order to reduce the legitimate use as well as the abuse, of workmen's compensation. 11. Utilize a facility-wide "long-term leave pool," subject to the provisions of statute, and collective bargaining agreements, unless modified by the consent of affected unions and employees. 4. To improve the responsiveness 1. Establish realistic in-service training and efficiency of Work Control. for supervisory personnel, specific to job title. 2. Computerize the central mechanical stores inventory. 3. Formulate for shop distribution, a plant engineering parts catalog, which will allow for faster identification of parts that must be ordered. 4. Increase the minimum and maximum stock levels, especially for those specialty parts that are difficult to locate or have manufactured. 5. Purchase appropriate equipment (to include those that save labor and manpower) and parts to make proper repairs. 6. Continue the fabrication or purchase and installation of room numbers for all rooms in all buildings at Suffolk Developmental Center. This will allow for faster identification of problem areas for repair purposes. 7. Clearly identify capital construction issues, e.g. roofing, fail safe valves and systems, heating, and air conditioning, for inclusion in capital budget request so that this major, time consuming work is not handled by local staff, by default. Fail safe valves and systems must be installed and operational on or before July 1, 1984. 8. Consider maintenance and support services, transportation needs in facility-wide transportation study to include the purchase of electric vehicles, a parts delivery truck, and additional mobile radios so as to speed delivery of workmen and materials to work sites. 5. To improve environmental 1. By September 1, 1983, all buildings conditions in all buildings at must meet federal ICF/MR standards the facility. of safety and habitability, and shall be made fully safe and habitable including repairs of all leaky roofs, broken or missing windows, full operation of all air conditioning units, heating systems and other known problems with the physical plant. 6. To expand utilization of 1. Assign project to Quality of Work Life existing rest and recreational Committee to determine what additional facilities. facilities are required and can be developed within existing resources. (Subdivisions client and staff, C & S). a. Subdivision C (Client) will utilize parent participation to plan for additional client lounges and family visitation areas. b. Subvision S (Staff) will utilize union and management participation to develop staff lounges, activity center(s), and quiet areas for personnel. c. Subdivision C & S (Client & Staff) will combine to formulate plans to develop the grounds of Suffolk to meet environmental needs and to stimulate the increased use of outdoor areas for client programming and recreation. 2. Expand Volunteer Services capabilities to enlist aid from local schools, fraternities, scouting organizations, civic groups, etc., to aid in grounds beautification projects and to provide outdoor recreation areas, etc. GOAL V: Every Client is provided, as Required, Adequate Prosthetic Devices; Special Clothing Where Required; Specialty Designed Wheelchairs and Carts Where Required, and Sufficient Numbers of Vehicles to Transport Them; and Furniture Necessary and Appropriate for Clients. OBJECTIVE ACTIONS 1. To refine the existing system 1. Screen and monitor, through reports to further ensure clients" by staff and visitors and a computerized needs are met. reporting system, clients at least semi-annually to determine continued appropriateness of special furniture, clothing, wheelchairs, and adaptive devices. 2. Recruit additional qualified professionals needed to deliver services to all clients with a documented need for special adaptive (physical and occupational therapy) services. 3. By July 1, 1984, properly adapted wheelchairs and sufficient special equipment shall be provided to all clients, within a 5% variation in prescription. Such equipment shall be provided to persons newly admitted to the center within six months, and six months shall be allowed for new equipment when a change in prescription occurs. This requirement shall be accomplished without regard to any obstacles. 4. Expand adaptive equipment shops, including the supply of parts and materials, for construction of adaptive devices and special clothing. 4. Involve skilled parents and guardians and other volunteers in the work of the adaptive equipment shops. 5. By July 1, 1984, the facility shall have in place sufficient furniture adapted and suitable to the needs of clients; any state regulations which would impede the acquisition of such furniture are superseded. 6. a) Expand contracts with minority firms, county, State, and Federal correction agencies, for the manufacture of adaptive devices, furniture, equipment, and other specialty items. b) Develop a demonstration project with furniture companies to manufacture more appropriate and durable furniture, e.g. chairs, couches, tables, etc. c) Until September, 1987, any State regulations which restrict the purchase of furniture for client areas based on cost or other factors are lifted so that such furniture may be selected on the basis of safety, durability and comfort. 7. Expand the utilization of existing tickler systems to monitor timely arrival of items as ordered. 8. Develop a larger number of pilot test programs. For example: a) A unit serving the wheelchair bound population develops a contract with a vendor to provide, on a pilot basis, prone and side layer chairs in place of currently used multi- position chairs. b) Develop a request for proposal (RFP) for a research project to more expeditiously, safely, and humanely move groups of clients in wheelchairs over short distances. c) Expand university affiliations to enable students to pilot test innovative techniques and programs with wheelchair bound clients. 9. Decrease the need for wheelchair repair by, e.g.: a) Attempt to permanently seal a larger number of wheelchair parts to limit accessibility to vermin. b) Attempt to more securely affix a larger number of wheelchair parts to minimize parts falling off and becoming lost or misplaced. 10. Develop a contract with wheelchair vendor to maintain an outlet at Suffolk Developmental Center with sales salesperson and repairperson scheduled regularly, but failure or inability to develop such contract shall not excuse compliance with goal V, objective 1, action 3. 11. Continue to expand the appropriate utilization of clothing wardrobes in accordance with client ability. 12. By December 1, 1983, all clients shall he provided with such special and other clothing and footwear as may be required by professional staff members, and all limitations on state purchasing of such clothing are suspended until September, 1987. Any clients newly admitted to the facility shall be provided with such special and other clothing and footwear within 45 days of admission. 13. Defendants shall develop an improved system for the marking and segregating of individual client clothing. 14. By December 1, 1983, all clients shall be provided with such prosthetic devices including footwear as may be required by professional staff members. Any clients newly admitted to the facility shall be provided with such prosthetic devices including footwear within 90 days of admission. 2. To refine the existing 1. By December 1, 1984, the facility shall transportation network for provide sufficient safe and appropriate transferring clients, transportation to meet the programmatic particularly the non- and other needs of all clients, ambulatory, to all services on and off the grounds of the including day program and facility. leisure activities. 2. By December 1, 1984, the facility shall purchase a new ambulance, while maintaining its existing ambulance in good repair. 3. Involve parents, guardians, and volunteers in escorting clients, particularly the non-ambulatory. 4. Refine the existing system in order to provide clients' programs in close proximity to residential building. 5. Revise and expand client "travel training" programs to increase clients independence in traveling between residential and program buildings. 6. Continue to seek alternate means to establish a transportation schedule for clients' programs with consideration given to: a) Flexibility in scheduling vehicles throughout the clients' waking hours. b) First transporting clients traveling the longest distances to off-grounds and on-grounds programs. c) Making a minimum of stops in each residential area. 7. On a pilot basis, purchase buses or trams designed with minimally inclined non-electric boarding platforms. (Design may include wide doorways to board several non-ambulatory clients simultaneously and to accommodate multi-position wheelchairs.) GOAL VI: An Increased Rate of Transfer from the Central Suffolk Developmental Facilities to Residential or Other Small Community Facilities. OBJECTIVE ACTIONS 1. To continue to maximize existing 1. By March 31, 1987, 400 clients from procedures and develop new Suffolk Developmental Center shall be concepts for obtaining suitable placed in community placements of one residential sites for the (1) to ten (10) bed size, with a few of purpose of developing community such 400 clients placed in community placements. placements of up to fifteen (15) bed size which, however, will be the exception. It is further provided that the average size of each community residential facility shall be 8.5. These placements shall include the development of community residences and intermediate care facilities at least as follows: By March 31, 1984: 10 units By March 31, 1985: 8 units By March 31, 1986: 11 units By March 31, 1987: 11 units These requirements shall not limit the placement of other class members in larger community facilities. All clients placed in such community placements shall receive 6 hours of active, structured programming per day, on a five day per week 12 month per year basis, unless medically, socially or psychologically contraindicated as shown by the certification of a QMRP (Qualified Mental Retardation Practitioner) having a State certificate, but lack of resources shall not be the basis for such certification; provided, however, that each client has the right, after being fully advised, to refuse any such programming. Such clients shall also receive all medical and other support services necessary. 2. The implementation of an investor program to facilitate property lease and acquisition. 3. The construction of homes for specific populations whose needs cannot be met by existing housing stock, such as the non-ambulatory, geriatric, and sensory impaired. 2. To increase recruitment efforts 1. Improve recruitment efforts utilizing for family care (foster care) such strategies as radio and TV, print and personal care providers. media, and continuous, widespread contact with charitable, religious, and service organizations to recruit potential providers of service. 3. To develop an approach which 1. Conduct a feasibility study to would facilitate natural determine the degree of parental families accepting their interest in becoming involved in such a offspring back into their program. homes. 2. On a pilot demonstration basis, to be evaluated after one year's duration, sufficient funds shall be made available to: a) provide a stipend to twelve (12) families which would cost less than the equivalent of 1.78 staff per client. b) Increase the availability of existing in-home support, such as homemaker services. c) Utilize existing resources to provide respite services to prevent burn-out and recidivism within these twelve (12) families. 4. To improve and expand the net- 1. Make available community-based day work of other than residential programs such as education, day services to ensure that client treatment, and day training to placements are qualitatively accommodate the needs of the client maintained. population to be placed in the various residential programs. 2. Make available to residential providers and their clients the means to access necessary support services, with specific reference to medical and dental services. 3. Provide case management services to the client population placed on the basis of individual client need, for the purpose of monitoring the quality of that placement, and wherever necessary, provide technical assistance to the client for the purpose of accessing needed services. 5. To better utilize client need as 1. Expansion of the request for proposal the determinant for the type of process whereby clients are grouped community resource selected. according to specific representative characteristics, e.g., self-preservation, functioning level, age, in preparation for placement in community-based living situations. 2. Clients to be placed in a given fiscal year are designated prior to the beginning of that year so that residential resources such as family (foster) care, personal care homes, community residences, intermediate care facilities, and skilled nursing facilities can be made available to meet client needs. none

  (EDITOR'S NOTE: The following court provided text does not appear at this cite in 57 F. Supp.]

  The Suffolk Developmental Center is a state institution in Melville, Long Island, housing some 1,200 clients -- most of them profoundly retarded -- ranging from young children to adults in their sixties. This class action, commenced in August 1978, seeks, on constitutional and various statutory grounds, to improve conditions at the Center and to provide small residential facilities for most of the clients.

  Over the course of more than four years of litigation the court has heard more than 50 witnesses, received over 300 exhibits, and listened to 21 full days of testimony embodied in almost 4,000 pages. It has made three visits to the Center, one in November 1978 and two in February of this year.

  Pending the issuance of a full opinion, the court makes the following interim findings of fact and law:

  1. In 1978 the care provided in the Center failed to meet the minimum standards required by the Constitution, thus depriving many clients of their basic constitutional rights.

  2. In the last four years conditions at the Center have improved markedly. In part favorable changes have been ue to fine institutional leadership, devoted professional and lay staff, lessons learned from the Willowbrook experience (see, e.g., New York State Association for Retarded Children, Inc. v. Carey, 393 F. Supp. 715 (E.D.N.Y. 1975)), help from volunteers and relatives, and state and federal assistance. In large measure, however, the current positive situation results from the pressure of this lawsuit and evidence adduced by experts and other witnesses.

  3. The constitutional rights of many of the Center's clients are still being denied. Further substantial progress is required as a matter of law.

  The United States Supreme Court has recently described the minimum standards for institutions of this type mandated by the Due Process Clause of the Fourteenth Amendment. See Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982). A state must provide each client with conditions of reasonable safety and freedom from undue restraint, adequate food, shelter, clothing and medical care, and "such training as an appropriate professional would consider reasonable to ensure his safety and to facilitate his ability to function free from bodily restraints." Id. at 2462.

  The Court specified that these standards are to be determined by the judgment of "appropriate" qualified professionals; "courts must show deference to the judgment exercised by a qualified professional" as long as it is reasonable. Id. at 2461. The decision made by a qualified professional in charge of the institution "is presumptively valid. . . ." Id. at 2462. The Court noted that

  treatment decisions normally should be made by persons with degrees in medicine or nursing, or with appropriate training in areas such as psychology, physical therapy, or the care and training of the retarded.

  Id. at n. 30.

  This substantive rule of deference to on-the-scene professionals may present substantial difficulty in application at the trial level. Experts disagree. More important, perhaps, experts charged with administration of the institution may not feel free to exercise untrammeled professional judgment since they are part of a team and statewide structure. The desire to comply with budgetary pressures and statewide standards may cause a yielding of professional judgment to personal career perspectives. Should these pressures cause the professional in charge to neglect his professional duty to his clients, the court will step in and provide guidance. As the Supreme Court noted, the trial court may impose its own plan

  when 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.

  Id. at 2462.

  This case has already been long in resolution. Rather than delay it further while clients continue to suffer constitutional deprivations, the court issues this interim memorandum and order.

  Fred A. McCormack, Director of the Suffolk Developmental Center and Director of the Long Island Developmentally Disabled Services Office, is a competent professional. Within sixty days he shall provide the court with a written four year plan for improvement of the Center to the point where every client receives at least the minimum care required by the Constitution. The plan shall specify for each year commencing September 1, 1983, a program indicating the following in sufficient detail to permit appropriate budgeting, personnel, training and other decisions:

  1. An increased rate of transfer from the central Suffolk Developmental facilities to residential or other small community facilities.

  2. An increased direct care staff ratio at the ward and dormitory care level, as well as in various professional specialties.

  3. An improved training program for those charged with care of clients so that necessary program activities are incorporated in the context of the clients' daily living.

  4. Proper repairs to buildings particularly as to heating and air-conditioning, and provision of adequate recreational and rest facilities for clients and staff.

  5. Adequate prosthetic devices; special clothing where required; specially designed wheel chairs and carts where required, and sufficient numbers of vehicles equipped to transport them; and furniture necessary and appropriate for clients with disabilities of the types involved here.

  6. Proper programming, particularly for those over 21 who are not being educated in the public school systems.

  The plan shall not be limited by budgetary restraints presently in effect or proposed. The Director may consult with counsel, supervisory personnel, experts or others. The court desires a plan to be embodied in a decree which will insure compliance with the professional standards required by the Supreme Court. This is essentially a medical-managerial judgment, not one for lawyers. See id. at 2461-62.

  Within thirty days of receipt of the plan, the court will schedule a further hearing and argument. At that time any of the parties may submit oral or written materials supporting or opposing the plan generally or in any of its details. No further oral testimony will be taken. Experts, if any, will give their opinions by written statements.

  APPENDIX B

  A PLAN TO IMPROVE SUFFOLK DEVELOPMENTAL CENTER

  Submitted to United States District Court

  Eastern District of New York

  April 24, 1983

  Fred A. McCormack

  Director

  Suffolk Developmental Center

  A PLAN TO IMPROVE SUFFOLK DEVELOPMENTAL CENER

  Introduction

  By Interim memorandum and order (78 Civ. 1847) of the United States District Court, Eastern District of New York, a plan for Suffolk Developmental Center has been developed to improve existing services in six (6) specific areas of facility operation.

  As directed by the Court the plan which follows is intended for implementation as soon as approved. I am proposing that its specifics be renegotiated on an annual basis, or more frequently if necessary. In this way, this plan does not become staid and can be continually upgraded to reflect current realities, as well as recent experience and changing needs.

  The Court further directed that this plan be written from the perspective of a "competent professional" and in so doing, identified me as that person with the responsibility of operating the facility in question. It must be remembered that I am a mental retardation professional and an administration professional. These two roles are not mutually exclusive or in conflict with one another; in fact, they merge into the legitimate and recognized profession of human services administrator. These two roles cannot, nor should they, be separated. My perspective must be viewed as a synthesis of clinician/administrator.

  The Court, in recognizing that experts disagree, must become aware of some assumptions underlying the plan. These assumptions represent my sincere and long-standing professional beliefs associated with planning for the care and treatment of disabled persons, particularly those at Suffolk Developmental Center.

  While I personally believe Suffolk Developmental Center is currently providing more that what is minimally required by both Federal and State regulations in those areas identified by the Court, as well as meeting the minimal requirements for client safety and habilitation, this is not to say that there are not deficiencies in each operational area or improvements in services to clients that cannot be made. These improvements to existing services form the basis upon which this plan is formulated.

  As I see it, the planning process is an evolving one which traditionally begins with the general and, through continued refinement, generates the specific. Such is the case with the Suffolk plan. This document represents the initial effort in a four-year planning and implementation process, which by necessity, establishes a general direction for our activities. It does, however, address the Court's directive for sufficient detail, in that this plan presents information in appropriate areas which is sufficient to initiate cost analyses, resource requests, and allocations. Clearly, this plan will have an impact on the entire New York State system and may establish precedents but, as with the plan itself, there is neither the time nor the ability at Suffolk Developmental Center to generate this level of specificity.

  One further assumption I have is any plan which is viewed as the plan, without a built-in ability to renegotiate and modify its contents is doomed to failure. Therefore, I feel that we must commit to both continually refining the plan's detail and renegotiating its basic premises as dictated by changing realities and needs.

  I believe that the Court wants to see a plan which is implementable, one which will, in fact, lead to improvements in existing services to clients. The plan is a real, rather than a utopian one. In good professional conscience, I could not develop a plan which would irresponsibly mislead consumers and providers alike by establishing unrealizable expectations.

  Finally, I am convinced that improved services to clients does not necessarily correlate directly with increased resources, a mistaken assumption frequently made by those who have not managed large residential facilities. The quick and simple answer is too often, "more money and more staff". The Willowbrook experience, among others, has demonstrated the fact that after a certain point additional monies and/or personnel create excessive supply and lead to counterproductive effort of inefficient resources management.

  To summarize and emphasize, I developed "A Plan to Improve Suffolk Developmental Center" from the perspective of avoiding such common pitfalls to successful planning as: 1) writing a plan which did not assume as its base those more than acceptable services currently being delivered at Suffolk Developmental Center; 2) utilizing limited planning time to attempt a level of detail which has both poor validity and poor reliability; 3) suggesting a plan which is inflexible and unresponsive to change over time; 4) oversimplifying by naively basing improvements on massive influxes of additional resources. (On this latter point, the prime motivator behind my planning effort has been to attack the attitudes of "But we've always done it this way," and "we tried it before, it didn't work," and "more is better," by exploring more effective and creative ways of delivering needed services. What must now be faced in the even more challenging implementation phase, is the attitude of "But it can't be done.") 5) last but clearly the most critical, is the avoidance of a plan which, at the outset, is recognized as unrealistic and unworkable over time.

  Format of the Plan

  Each of the operational areas identified by the Court has been designated as a GOAL. For each goal, there are a number of OBJECTIVES which must be met in order to achieve the goal. In most instances, the objectives are very broad and will, themselves, become goals as further and continuing refinement of the plan takes place. Each objective is followed by a series of ACTIONS, which, from my perspective as an administrator, become the most critical part of the plan. These represent the actual activity required to meet the objective and, in some cases, these will be followed by a corresponding POTENTIAL OBSTACLE. A potential obstacle has been an obstacle to quick and easy implementation; or where implementation is not under the complete authority of the author. Where no potential obstacle exists, it is implied that we will be able to implement the required actions locally and without additional resources. Where a potential obstacle has been listed, every effort has been made to suggest ALTERNATIVES aimed at removing the obstacle.

  The operational areas identified by the Court (goals) are presented in the following order, an order which implies both priority and process.

  1. The development of the client through programming.

  2. Staffing to facilitate programming.

  3. Training for those staff.

  4. The maintenance of the residential and program environments.

  5. The acquisition and maintenance of specialized equipment.

  6. The community placement of those clients who are both appropriate and ready for deinstitutionalization.

  Themes

  Although the following plan has been presented in six separate and distinct sections, there are a number of themes which weave their way through the entire plan. These themes form the operational philosophy upon which this plan was built and are listed below in an effort to summarize management's intent over the next four years:

  All operations take their direction from the developmental needs of the client. This can be seen in such major areas as: the way in which treatment services are organized; the format upon which staff are allocated; the process by which community placements are acquired; and the priority through which maintenance occurs.

  The client is viewed as a part of a social network which includes the natural family and the community. Throughout the plan, parental involvement appears as an integral part of programming, training, and placement alternatives. More importantly, families are viewed as a resource as is the community in which they live.

  Constant refinement and change is a prime ingredient in, not only the planning process itself, but also in the clients' movement through the programming continuum; the staff person's development of more sophisticated knowledge and skill; and the free flow of interaction between clients and staff, consumer and provider, labor and management, supervisor and subordinate, etc.

  Resource deficiencies are addressed through their more effective utilization as opposed to a simple increase in their numbers. Examples are: staff are trained only in skills that they currently do not possess but will be required to perform; staff are more actively and effectively supervised; expertise is used where it is most needed as opposed to where it is traditionally assigned; and managerial flexibility stimulates creativity and resourcefulness.

  GOAL: To Assure Proper Programming, Particularly Over the Age of 21 Not Educated in the Public School System GOAL I OBJECTIVE ACTIONS 1. To reorganize the delivery of 1. Organize services by client abilities, grouping treatment services so that it them in specific residential areas for the more effectively develops the enhancement of programming, facilitating client in his environment at access to program service space, and reducing Suffolk Developmental Center, the need for a complex transportation system. and in a more normalizing Grouping will reflect treatment services needed manner provides better staffing and provide for planned upward mobility, with coverage and consistency in the the ideal result being the placement of delivery of clinical services. appropriate clients into the community. The above will be accomplished by the following: a) Identify clients with similar abilities and group them in residential clusters. b) Identify existing and projected program space that will accommodate these clusters and be of closest proximity to their assigned residential area, especially for: 1. Non-Ambulatory 2. Blind 3. Geriatric c) Refine program curricula for the areas identified utilizing new and age appropriate technologies. d) Develop the necessary training and support systems to facilitate achieving the objective. 2. To improve the existing goal 1. Reassess existing programs of the over age 21 oriented programming for population to determine if they are meeting residents over the age of 21. individual client needs and where they are not, revise curricula to encompass the whole client and improve his skills in real life. 2. a) An upwardly mobile continuum of services will be developed to provide training to clients having from the least to the greatest abilities. This continuum will begin with basic living skills (including grooming, toileting, eating), and move into more advanced living skills (such as domestic activities). The next step will focus on the development of prevocational skills (e.g., motor development, coordination, and vocational readiness) and terminate in vocational habilitation (including such activities as landscaping assistant, housekeeping assistant, etc.). Throughout the entire continuum, attention will be paid to socialization and deinstitutionalization. 2. b) Program Center(s) will be designed to modify maladaptive behaviors which would prohibit clients from progressing through the programming continuum and may inhibit eventual placement. 1. Provide goal oriented 1. Assist outside agencies in the process of programming to all residents obtaining program continuance during summer age 21 and under. session to facilitate the retention of learned skills. 4. Improve upon existing systems 1. Develop a training program to facilitate the to assure that clients of Suffolk success of program philosophy and goals (c.f. Developmental Center receive training). programs that meet their needs. 2. Streamline the current record keeping system to permit therapists more time for direct client contact (c.f. staffing). 3. Provide realistic and less time consuming client coordinator functions, (c.f. staffing). 3. a) Develop a more simplified client coordinator system that can be managed by direct care staff under the supervision of a Qualified Mental Retardation Practitioner (OMRP); one that will meet the mandates of all regulatory agencies. 4. Make more meaningful a quality assurance system that will assure clients are receiving programs which best meet their demonstrated needs and evaluate their mobility or fixation at an appropriate level; e.g. assuming no inhibiting neurological impairment client program will be altered if it is not successfully addressing a lack of toileting skills. OBJECTIVE POTENTIAL OBSTACLES 1. To reorganize the delivery of 1. The extreme complexity of treatment services so that it this task. more effectively develops the client in his environment at Suffolk Developmental Center, and in a more normalizing manner provides better staffing coverage and consistency in the delivery of clinical services. a) Transient emotional trauma to clients resulting from disruption of living environment. 2. To improve the existing goal 1. Unrealistic time frames if oriented programming for imposed. residents over the age of 21. 2. a) Complexity of task. 2. b) None 1. Provide goal oriented 1. a) BOCES schools operate on programming to all residents a ten month school age 21 and under. calendar. b) Funding mechanism not readily available to continue education through the summer. 4. Improve upon existing systems 1. None to assure that clients of Suffolk Developmental Center receive programs that meet their needs. 2. Op. cit., c.f. staffing 3. Ibid 4. None OBJEC TIVE SUGGESTED ALTERNATIVES 1. To reorganize the delivery of 1. Sufficient time to enable this treatment services so that it action to be implemented in more effectively develops the a carefully planned and well client in his environment at executed manner. Suffolk Developmental Center, and in a more normalizing manner provides better staffing coverage and consistency in the delivery of clinical services. a) Sufficient time will be required to enable staff to desensitize and counsel clients prior to and following relocation. 2. To improve the existing goal 1. Assessment, and, if needed, oriented programming for revision of existing programs residents over the age of 21. for a limited segment of the population. 2. a) Sufficient time to plan and implement. 2. b) None 1. Provide goal oriented 1. a) BOCES teachers hired for programming to all residents a full year (12 months). age 21 and under. b) Seek a funding mechanism through OMRDD and Division of the Budget. c) Explore family court funding. 4. Improve upon existing systems 1. None to assure that clients of Suffolk Developmental Center receive programs that meet their needs. 2. Op. cit., c.f. staffing. 3. Ibid 4. None

  GOAL: An Increased Direct Care Staff Ratio of the Ward Level and Dormitory Care Level, as well as in Various Professional Specialities GOAL II OBJECTIVE ACTIONS 1. To maintain an overall staff to 1. On an as needed basis, immediately backfill client ratio of no less than selected vacancies in direct care and clinical 1.78:1 and allow for various areas. * administrative flexibilities and prerogatives, until August 31, 1987. (NOTE: At the end of fiscal year 83-84, assess the impact of this ratio and these flexibilities on improved on- duty staffing levels, appropriate staffing for clients in program, etc.; and utilize 2. On an as needed basis, increase the fill level in this data to generate fiscal selected direct care and clinical care titles. * year 84-85 staffing request, as well as to assess continuance of these specific actions). 3. On an as needed basis, lay off in titles determined to be in excess and redeploy these resources to functional areas to augment services. * * The Director currently has the 4. On an as needed basis, internally redeploy staff ability to request these actions but and reclassify to appropriate titles. * not the authority to locally implement them without each action being subjected to 5. On an as needed basis, alter work schedules, centralized review and approval. including the use of flex-time, split-shifts, This plan requires the delegation of etc. * approval authority to the Director and implies centralized responsi- bility for post facto oversite review only. 6. On an as needed basis, utilize split items for part-time employment, stipend employment, traineeships, etc. * 2. To create an alternate resource 1. To establish a fifty (50) direct care item pool, to employees removed from over and above the 1.78:1 staff to client ratio. assigned duty for training purposes. 3. To increase direct care staff 1. Review all direct care assignments and, based available in the ward at times on proposed program changes, develop a correct of maximum activity distribution for each client area for each shift. (c.f. programming) 2. Continually review and readjust direct care assignments and schedule based upon client needs, program, and residential goals. 3. During times of maximum client activity (e.g., bathing, meals, transportation to programs, etc.) utilize part-time, flex-time, and variable work weeks to increase the staff available. 4. Utilize all new employees and returning leave employees to fill in identified gaps by centralizing these items for deployment. 5. Utilize staff from areas vacated by clients going to day program to assist in other direct care or program areas. 6. Request that OMRDD assess the current utilization of housekeeping personnel with an eye toward increasing their effectiveness on the living unit, thereby increasing direct care staff availability to clients. Assessment should include the use of part-time, flex-time, and other alternate work schedules when filling housekeeping vacancies. 7. Utilize the incontinent pads or disposable diapers to free direct care staff from the "folding and sorting" activity. 8. Unless program plans indicate clients can benefit by leaving the center to go shopping, all clothes will be ordered via vendor or catalog, freeing direct care from long shopping hours out of the Center. 9. Food service personnel will more actively participate in meal time programming and thereby supplement direct care staff involvement. 10. Op. cit., #3 above applied to food service personnel. 11. Request that all parents/guardians of Suffolk Developmental Center clients volunteer to give 8 hours/week toward client service, as is frequently the practice in voluntary and religious agencies. 12. Increase volunteer programs and encourage older parents to become Foster Grandparents or Senior Companions. 13. Reinforce performance standards and, through the performance evaluation system, reinforce direct care responsibilities to client assignments. 14. Restructure current performance evaluations to continue to reinforce supervisory responsibilities of mid-level supervisors and nurse administrators in supervising direct care to insure maximum utilization of therapy aides. 15. Propose that shift differential should be based on client abilities and the hours during each day that clients needs are met. 16. Expand the utilization of former Suffolk Developmental Center staff as per diem employees (substitute roster). 17. Explore executive initiative to rehire early retirees. 4. To increase the provision of 1. Cluster professional personnel in relation to needed clinical support services client needs as reflected by client abilities to clients grouping (c.f. programming) 2. Continually review the utilization and need for specific clinical titles. Adjust clinical assignments and/or employment levels as required by changing client needs. 3. The assignment of clinician duties will place a priority on service delivery as opposed to record keeping; and this will be documented through the performance evaluation system. 4. Expand performance standards and review the organizational placement of discipline coordinators. 5. Expand performance standards for clinical personnel to include the training and supervision of direct care staff, on all shifts, in the program skills and activities. 6. Seek the involvement of professional schools by providing clinical field experience at Suffolk Developmental Center campus. 7. Propose the upgrading of specific titles (e.g., occupational therapy, physical therapy, nursing) to allow recruitment efforts to meet with a degree of success. 8. Continue the planning and expedite the development of training programs for high school and undergraduate students giving them the opportunity to work part time at Suffolk Developmental Center during peak client activity times. 9. Continue to plan with SUNY at Stony Brook School of Medicine and Allied Health Services, a closer relationship which could lead to a revised system of providing medical services at Suffolk Developmental Center, including the possibility of SUNY taking over the management of medical and medical ancillary services as well as the utilization of physical extenders. OBJECTIVE POTENTIAL OBSTACLES 1. To maintain an overall staff to 1. Request denied by OMRDD client ratio of no less than and/or control agencies. 1.78:1 and allow for various administrative flexibilities and prerogatives, until August 31, 1987. (NOTE: At the end of fiscal year 83-84, assess the impact of this ratio and these flexibilities on improved on- duty staffing levels, appropriate staffing for clients in program, etc.; and utilize 2. Ibid this data to generate fiscal year 84-85 staffing request, as well as to assess continuance of these specific actions). 3. Ibid 4. Local labor agreements. * The Director currently has the Denial by control agencies. ability to request these actions but not the authority to locally implement them without each action being subjected to 5. Ibid centralized review and approval. This plan requires the delegation of approval to the Director and implies centralized responsibility for post facto oversite review only. 6. Op. cit., #1 above. 2. To create an alternate resource 1. Ibid to employees removed from assigned duty for training purposes. 3. To increase direct care staff 1. None available in the ward at times of maximum activity. 2. Current local union agreements. 3. Ibid. 4. Ibid 5. Ibid. 6. Ibid 7. The current OGS rules regarding purchase and bidding. 8. Ibid. 9. Op. cit., #2 above. 10. Op. cit., #3 above. 11. Response of parents to such a request may be negative. 12. None. 13. None 14. None 15 . Proposal rejected. 16. Subject to availability and interest of former employees. Possible labor resistance. 17. Ibid. 4. To increase the provision of 1. None needed clinical support services to clients. 2. Denial of proposed actions by labor unions and/or control agencies. 3. OMRDD denial of proposed reductions in record keeping involvement (c.f. programming). 4. None 5. None 6. None 7. Rejection of proposal. 8. None 9. Staff resistance, conflict with union agreements, denial of contractual arrangements. OBJECTIVE SUGGESTED ALTERNATIVES 1. To maintain an overall staff to 1. Maintain the current staff client ratio of no less than census of 2,103 throughout 1.78:1 and allow for various the fiscal year, removing 50 administrative flexibilities and items in order to create a prerogatives, until August 31, training pool, leaving 2,053 1987. items for ongoing facility (NOTE: At the end of fiscal operations (as client run down year 83-84, assess the impact occurs, the net effect will be of this ratio and these to increase the availability of flexibilities on improved on- direct and clinical staff). duty staffing levels, appropriate staffing for clients in program, etc.; and utilizes 2. Ibid. this data to generate fiscal year 84-85 staffing request, as well as to assess continuance of these specific actions). 3. Ibid. * The Director currently has the 4. Ibid. ability to request these actions but not the authority to locally implement them without each action being subjected to 5. Ibid centralized review and approval. This plan requires the delegation of approval authority to the Director and implies centralized responsibility for post facto oversite review only. 6. Ibid. 2. To create an alternate resource 1. Ibid to employees removed from assigned duty for training purposes. 3. To increase direct care staff 1. None available in the ward at times of maximum activity. 2. Encourage union participation in resolving obstacles and seeking alternatives. 3. Ibid 4. Ibid 5. Ibid 6. Ibid 7. Assign function to night shift. 8. Request OMRDD to discuss with OGS the feasibility of having vendors actually on site with set store hours. 9. Op. cit., #2 above. 10. Op. cit., #3 above. 11. Increase involvement of Suf- folk Developmental Center staff and of the Society for Goodwill in working with parents to extend parental involvement with clients. If resistance cannot be over- come then only parents/guardians of new admissions will be encouraged to give time. 12. None 13. None 14. None 15. El iminate action. 16. Offer part-time employment to those full-time Suffolk Developmental Center employees wishing to work more than a forty (40) hour week; negotiate alternatives with labor organizations. 17. Ibid 4. To increase the provision of 1. None needed clinical support services to clients. 2. Negotiate alternative assign- ments and/or fill levels. 3. Omit action to the serious þ361750002-opinion-11">11 detriment of maximizing professional services. 4. None 5. None 6. None 7. De lete action, severe recruitment difficulties would continue. 8. None 9. Revise or delete action.

  GOAL: Develop an Improved Training Programming for Those Charged With Care of Clients so That Necessary Program Activities are Incorporated in the Context of Clients' Daily Living GOAL III OBJECTIVE ACTIONS 1. To increase the relevancy of 1. Increase decentralization of Staff Development training for staff charged with and Training Services by assigning total care of clients. responsibility for the management of all aspects of training to a Staff Development Specialist for a designated residential and programming area. 2. Establish a residential Training Unit/Assess- ment Center to be utilized for assessing staff competencies, for staff training and for field placement of students from academic institu- tions (c.f. staffing). 3. Utilizing adult-learning theory, this unit will increase efforts to provide total competency- based training by: a) Identifying basic and site specific competencies expected in job perform- ance. b) Developing realistic assessment methods; c) Staff who demonstrate competency in any conceptual or skill area will be exempt from training in that content area. Life safety skills will be assessed every six months and retraining required as indicated by skill assessment. d) Revising present curricula and developing new ones as necessary to reflect changing client needs to assure relevancy of training. e) Incorporating evaluations of training into the curriculum revision process. 4. Contract for outside consultants to train Long Island DDSO trainers when changing client needs require staff training beyond the scope of the expertise of employees. 5. Utilizing affirmative action practices, staff above-named training unit with a team of em- ployees who demonstrate the ability to provide client care meeting all applicable standards, and can serve as a model for training and retraining. 6. Establish an "Ad Hoc" training advisory committee of representation from Staff Develop ment and Training, Suffolk Development Center Client Services, state-operated communitybased services, voluntary agencies, public relations certification unit, all labor organizations and the Society for Good Will to Retarded Children, Inc. This committee will provide input into the planning, implementation, and evaluation of training. 7. Revise the training delivery model to include the appropriate use of: a) Onsite, hands on, experiential learning. b) Role modeling in the training unit utiliz- ing a "buddy system". c) Centralized classroom learning. 8. Expand the training of client care work teams from residential units and program areas in team process, communication skills, awareness, and continuity of client care by integrating direct care staff of all three shifts, mid-level supervisors, professional staff, treatment team leader, parents and support service personnel. 9. Revise delivery of community training pro- grams so that staff identified for transition into community settings are trained for community- specific competencies while working with clients at Suffolk Developmental Center who are identified for placement (c.f. staffing). 2. To expand the Through the use of availability of 1. existing staff resources, training opportunities for staff. create a floating pool of 50 staff to be utilized for releasing unit staff for training. (c.f. staffing) 2. Conduct feasibility study and cost analysis for developing a training resources library within the "Training Unit/Assessment Center" to facilitate self-paced learning and provide availability to staff on all three shifts. 3. Expand the pool of trainers by: a) Establishing a mechanism of sharing trainer resources within the Southeastern County Service Group and New York City. b) Developing a training consortium with voluntary agencies in the Long Island DDSO catchment area. c) Utilize more parents and guardians of clients in training programs (c.f. staffing). 4. a) Continue to negotiate academic credit (extending beyond life-experience credit) for training received at Suffolk Developmental Center. 4. b) Negotiate increased numbers of university affiliations for: Student field placement at Suffolk Devel- opmental Center exchange for academic faculty offering training at Suffolk Developmental Center (c.f. training) Academic programs (degree and certifi- cate bearing) at Suffolk Developmental Center. 3. To increase the application of 1. Establish a mechanism of evaluating the knowledge and skills acquired effectiveness of training and application on-the- through training to job perfor- job in both residential and treatment areas mance. which feeds back to Staff Development and Training Department to be utilized in revising training programs. The evaluation process will include both trainees and supervisors. OBJECTIVE POTENTIAL OBSTACLES 1. To increase the relevancy of 1. None training for staff charged with care of clients. 2. None 3. None c) Specific content areas and/or specific numbers of training hours are required by OMRDD policy and/or state and federal standards and regulations. Present manual record keeping system is costly in man-hours for tracking competencies and training for employees. Information is not easily retrievable. d) None e) None 4. No funding mechanism. 5. Labor/Management local agreement does not allow for selection of staff on basis of competency alone. 6. None 7. None 8. None 9. Perso nnel hiring practices af- fected by local labor/manage- ment agreement. 2. To expand the availability of 1. C.F. staffing training opportunities for staff. Requires maintenance of 1.78 staff/client ratio at Suffolk Developmental Center. 2. None a) None b) Implementation depends on interest and resources of voluntary agencies. c) C.F. staffing. 4. a) None 4. b) Lack of interest and/or resources in the academic community. 3. To increase the application of 1. None knowledge and skills acquired through training to job perfor- mance. OBJECTIVE SUGGESTED ALTERNATIVES 1. To increase the relevancy of 1. None training for staff charged with care of clients. 2. None 3. None c) Negotiate acceptance of doc- umented competency in lieu of hours of attendance in training. Computerize employee rec- ords under Human Resource Development and Manage- ment to include documenta- tion of both training and competency demonstration. d) None e) None 4. Negotiate exchange of services between Suffolk Developmental Center and other agencies. Establish a budget allocation for Staff Development and Training Department to be managed by the Department Director. Labor/Management negotia- tions at Statewide level for joint union-state monies as in current PDQ programs. Write grant proposal for con- sultant trainer monies. 5. Encourage union participa- tion in resolving obstacles and seeking alternatives. 6. None. 7. None 8. None 9 . Renegotiate local labor/man- agement agreements in order to do the following: a) Projected personnel re- quirements for staffing community-based resi- dences on annual basis. b) Synchronize client identi- fication for placement, site development, staff hiring, and staff training. 2. To expand the availability of 1. C.F. staffing training opportunities for staff. Approval to maintain 1.78 ratio. 2. None a) None b) Delete Action. c) C.F. staffing. 4. a) None 4. b) Delete Action. 3. To increase the application of 1. None knowledge and skills acquired through training to job perfor- mance.

  GOAL: Proper Repairs to Buildings, Particularly as to Heating and Air Conditioning GOAL IV OBJECTIVE ACTIONS 1. To reorganize the delivery of 1. To establish the Environmental Systems maintenance and environmental Department. services. 2. Recla ssify Plant Superintendent position from "B" to "A". 3. Reclassify selected items to a grade level appropriate to the hiring of an environmental engineer and a sanitarian to direct and work respectively with the Environmental Systems Department. 4. Shift and reclassify selected vacant items to create additional supervisory titles in various maintenance departments, excluding the environmental system's department. 1. To reduce the number of 1. Expand the "Swat Team" repair concept of repairs required performing comprehensive repairs on a scheduled basis in one building at a time, to include the prevention maintenance of non- specialized equipment. 1. To improve the quality and 1. Develop and implement a work production quantity of work production. standards reference manual. (The intent of this manual is to give the maintenance supervisors work production and quality standards by which to gauge the productivity of their subordinates, include these standards in the performance evaluation system. 2. Develop and implement a formal training program for maintenance and environmental systems staff (c.f. staffing). 3. Negotiate with BOCES and private trade schools the use of Suffolk Developmental Center as a practical training site for their students (with particular emphasis toward affirmative action programming), and arrange for slots in those schools for selected Suffolk Developmental Center Plan Engineering staff to learn new skills or upgrade present ones. 4. Contract with private tradesman to perform specific maintenance and environmental sys- tems functions. 5. Initiate a study to determine the feasibility and benefits of paying plant engineering personnel wages comparable to the State University System. 6. Hold production contests. 7. Establish a "Quality Circle" concept in Plant Engineering with a view toward more timely, effective, and positive resolution of maintenance problems. 8. Change existing staff pass days and work hours by introducing flextime. This would result in greater maintenance coverage over an expanded workday. 9. Hire summer employees (high school and col- lege students and selected clients) to function as helpers for grounds, maintenance and envir- onmental systems assistance. 10. Improve risk management efforts within the Maintenance Department in order to reduce the legitimate use as well as the abuse, of workmen's compensation. 11. Utilize a facility-wide "long-term leave pool." (Experience at other NYS facilities has shown that a centralized leave pool can result in employees more rapid return to work since reassignment to a particular work site is not guaranteed.) (c.f. staffing) 4. To improve the responsiveness 1. Establish realistic in-service training for and efficiency of Work Control. supervisory personnel, specific to job titles. 2. Computerize the central mechanical stores in- ventory. 3. Formulate for shop distribution, a plant engineering parts catalog, which will allow for faster identification of parts that must be ordered. 4. Increase the minimum and maximum stock levels, especially for those specialty parts that are difficult to locate or have manufactured. (c.f. staffing) 5. Purchase appropriate equipment (to include those that save labor and manpower) and parts to make proper repairs. 6. Continue the fabrication or purchase and installation of room numbers for all rooms in all buildings at Suffolk Developmental Center. This will allow for faster identification of problem areas for repair purposes. 7. Clearly identify capital construction issues, e.g. roofing, fail safe valves, heating, and air conditioning, for inclusion in capital budget request so that this major, time consuming work is not handled by local staff, by default. 8. Consider maintenance and support services, transportation needs in facility-wide transportation study (c.f. Section 4,005.2 action 1), to include the purchase of electric vehicles, a parts delivery truck, and additional mobile radios so as to speed delivery of workman and materials to work sites. 5. To expand utilization of exist- 1. Assign project to Quality of Work Life ing rest and recreational Committee to determine what additional facilities. facilities are required and can be developed within existing resources. (Subdivisions client and staff, C & S). a) Subdivision C will utilize parent participation to plan for additional client lounges and family visitation areas. b) Subdivision S will utilize union and management participation to develop staff lounges, activity center(s), and quiet areas for personnel. c) Subdivision C & S will combine to formulate plans to develop the grounds of Suffolk to meet environmental needs and to stimulate the increased use of outdoor areas for client programming and recreation. 2. Expand Volunteer Services capabilities to enlist aid from local schools, fraternities, scouting organizations, civic groups, etc., to aid in grounds beautification projects, provide outdoor recreation areas, etc. 6. To properly identify (label) all 1. Fabricate and/or purchase and install staff rest and recreational international symbols on all client areas. facilities. 2. Label all staff rest and recreational areas. OBJECTIVE POTENTIAL OBSTACLES 1. To reorganize the delivery of 1. None maintenance and environmental services. 2. Requires OMRDD, Division of the Budget, Department of Civil Service classification approval. 3. Ibid 4. None 1. To reduce the number of 1. None repairs required. 1. To improve the quality and 1. None quantity of work production. 2. None 3. a) Present labor contract b) BOCES and the various private trade schools ac- ceptance of the concept. 4. a) Denial from the Depart- ment of Civil Service and/or the Division of the Budget. b) Local union agreements. 5. None 6. None 7. None 8. Statewide and local union agreements. 9. Division of Budget denial of necessary funds. 10. None 11. Staff and local labor unions resistance. 4. To improve the responsiveness 1. None and efficiency of Work Control. 2. None 3. None 4. None 5. Non e 6. None 7. None 8. a) Complexity of transport- ation study (c.f.) b) Insufficient funding. 5. To expand utilization of exist- 1. None ing rest and recreational facilities. 2. None 6. To properly identify (label) all 1. None staff rest and recreational facilities. 2. None OBJECTIVE SUGGESTED ALTERNATIVES 1. To reorganize the delivery of 1. None maintenance and environmental services. 2. Delete action, with serious negative implications in relation to the ability to improve plant services. 3. Provide environmental engi- neer and sanitarian on a contractual basis. 4. Op. cit. Number 2 above. 1. To reduce the number of 1. None repairs required. 1. To improve the quality and 1. None quantity of work production. 2. None 3. a) Renegotiate both the local contract and, with Office of Employee Rela- tions assistance, State- wide union agreements. b) Delete action. 4. a) Selectively backfill cur- rent vacant positions in the Work Control Envi- ronmental Systems De- partment with specialized personnel. b) See 3a above 5. None 6. None 7. None 8. Renego tiate statewide and local union agreements. If agreements cannot be reached, future staff hired will be deployed on shift and days required. 9. Attempt to achieve action through the use of volun- teers. 10. None 11. Encourage union participation in resolving obstacles and seeking alternatives. 1. None 4. To improve the responsiveness and efficiency of Work Control. 2. None 3. None 4. None 5. Non e 6. None 7. None 8. a) (c.f.) b) Reallocate OTPS funds within existing budget. 5. To expand utilization of existing rest 1. None and recreational facilities. 2. None 6. To properly identify (label) all 1. None staff rest and recreational facilities. 2. None

  GOAL: Every Client is Provided as Required Adequate Prosthetic Devices; Special Clothing Where Required; Specialty Designed Wheelchairs and Carts Where Required, and Sufficient Numbers of Vehicles to Transport Them; and Furniture Necessary and Appropriate for Clients. GOAL V OBJECTIVE ACTIONS 1. To refine the existing system to 1. Screen and monitor, through a computerized further ensure clients' needs reporting system, clients at least semi-annually are met. to determine continued appropriateness of spe- cial furniture, clothing, wheelchairs, and adaptive devices. 2. Recruit additional qualified professionals need- ed to deliver services to all clients with a documented need for special adaptive (physical and occupational therapy) services. 3. Expand adaptive equipment shops, including the supply of parts and materials, for construction of adaptive devices and special clothing (c.f. physical plant). 4. Involve skilled parents and guardians in the work of the adaptive equipment shops (c.f. staffing). 5. Review the contract process to create a greater selection of specialty items for the multiply handicapped and wheelchair bound clients, e.g. wheelchairs, clothing, furniture and equipment. 6. a) Expand contracts with minority firms, county, State, and Federal correction agencies, for the manufacture of adaptive devices, furniture, equipment, and other specialty items. b) Develop a demonstration project with furniture companies to manufacture more appropriate and durable furniture, e.g. chairs, couches, tables, etc. c) Obtain more latitude in the purchase of furniture for client areas, so that pro- ducts are selected on the basis of safety, durability, and comfort rather than cost factors alone. 7. Expand the utilization of existing tickler sys- tems to monitor timely arrival of items as ordered (c.f. physical plant). 8. Develop a larger number of pilot test programs. For example: a) A unit serving the wheelchair bound population develops a contract with a vendor to provide, on a pilot basis, prone and side layer chairs in place of currently used multi-position chairs. 8. b) Develop a request for proposal (RFP) for a research project to more expeditiously, safely, and humanely move groups of cli- ents in wheelchairs over short distances. c) Expand university affiliations to enable students to pilot test innovative tech- niques and programs with wheelchair bound clients. 9. Decrease the need for wheelchair repair by, e.g.: a) Attempt to permanently seal a larger number of wheelchair parts to limit ac- cessability to vermin. b) Attempt to more securely affix a larger number of wheelchair parts to minimize parts falling off and becoming lost or misplaced. 10. Develop a contract with wheelchair vendor to maintain an outlet at Suffolk Developmental Center with salesperson and repairperson sche- duled regularly. 11. Continue to expand the appropriate utilization of clothing wardrobes in accordance with client ability. 2. To refine the existing transportation 1. Conduct a comprehensive study to determine network for transferring the most efficient alternatives for transporting clients, particularly the non- large numbers of non-ambulatory clients distan- ambulatory, to all services ces ranging from a few to several miles. including day program and lei- sure activities. 2. Involve parents, guardians, and colunteers in escorting clients, particularly the non-ambula- tory (c.f. staffing). 3. Refine the existing system in order to provide clients' programs in close proximity to residen- tial building (c.f. programming). 4. Revise and expand client "travel training" pro- grams to increase clients independence in tra- veling between residential and program buil- dings. 5. Continue to seek alternate means to establish a transportation schedule for clients' programs with consideration given to: a) Flexibility in scheduling vehicles through- out the clients' waking hours (c.f. physical plant). b) First transporting clients traveling the longest distances to off-grounds and on- grounds programs. c) Making a minimum of stops in each resi- dential area. 6. On a pilot basis, purchase buses or trams de- signed with minimally inclined non-electric boarding platforms. (Design may include wide doorways to board several non-ambulatory clients simultaneously and to accommodate multi-position wheelchairs.) OBJECTIVE POTENTIAL OBSTACLES 1. To refine the existing system to 1. None further ensure clients' needs are met. 2. Continued inability to recruit appropriate professionals based on: a) Current salary scale. b) Perceived nature of client population. c) Labor union's current position of limiting facili- ty's ability to contract for services otherwise un- available. d) Stringent State licensing requirements in selected disciplines (physical ther- apy and occupational therapy). e) Stringent New York State Education law require- ments limiting the num- ber of individuals one may supervise, e.g., registered physical therapists can only supervise up to four physical therapy assis- tants. 3. None 4. None 5. Conti nuation of the presently cumbersome system of the Office of General Services for the purchase of non-contract items. 6. a) None b) Lack of interest on the part of manufacturers. c) Denial by control agen- cies. 7. None 8. a) inability to attract firms to develop pilot programs. 8. b) Pilot programs are at times very costly. 9. a) None b) None 10. Refusal by vendor. 11. None 2. To refine the existing transportation 1. Complexity of problem and network for transferring potential solutions. clients, particularly the non- ambulatory, to all services including day program and lei- sure activities. 2. None 3. None 3. None 4. None 5. None 6. Most reasonable estimates for this design is too costly. OBJECTIVE SUGGESTED ALTERNATIVES 1. To refine the existing system to 1. None further ensure clients' needs are met. 2. a) Increase salary base of selected professionals to compete with other Human Service Agencies. b) In order to encourage re- cruitment of appropriate professionals, increase the number of university students in training by providing grants and im- proved job incentives. c) Negotiate with Labor Unions to establish con- tracts for provision of services otherwise un- available. d) OMRDD provides incen- tives for the relocation to Suffolk Developmental Center of currently em- ployed professionals in other Developmental Centers where the need for selected services may be diminished, e.g., physi- cal therapists. e) Work with the New York State Education Depart- ment to study the re- quirement in hopes of in- creasing the ratio of registered staff to assis- tant therapists. 3. None 4. None 5. a) OMRDD suggests legisla- tion to provide tax abate- ments to companies manufacturing specialty items for the develop- mentally disabled. b) Office of the State Comptroller refines the current system to reduce delays in payment to ven- dors, thereby encouraging business involvement with State agencies. c) OMRDD seeks to develop a sharing system for iden- tifying excess/unused in- ventory in health care agencies in New York State and throughout the country. 6. a) None b) Delete action. c) Delete action with ob- vious consequences. 7. None 8. a) Make the offer more luc- rative by providing tax abatements to companies manufacturing specialty items for the develop- mentally disabled. 8. b) OMRDD seeks to capture a portion of the costs through Federal grants and private sponsorship. 9. a) None b) None 10. Office of General Services stipulates this requirement when developing future contracts. 11. None 2. To refine the existing transpor- 1. Sufficient time to conduct a tation network for transferring comprehensive study using clients, particularly the nonambulatory, experts in the field of trans- to all services portation engineering. including day program and lei- sure activities. 6. Delete action.

  GOAL: An Increased Rate of Transfer from the Central Suffolk Developmental Facilities to Residential or Other Small Community Facilities GOAL VI OBJECTIVE ACTIONS 1. To continue to maximize exis- 1. The Implementation of an Investor program to ting procedures and develop facilitate property lease and acquisition. new concepts for obtaining suitable residential sites for the purpose of developing commu- nity residences and intermedi- 2. The construction of homes for specific popula- ate care facilities with capacities tions whose needs cannot be met by existing of eight (8) to fifty (50) housing stock, such as the non-ambulatory, beds to appropriately accommodate the geriatric, and sensory impaired. client population to be placed. 3. The purchase and lease of existing housing stock. 2. To increase recruitment efforts 1. Improve recruitment efforts utilizing such stra- for family care (foster care) tegies as radio and TV, print media, and contin- and personal care providers. uous, widespread contact with charitable, reli- gious, and service organizations to recruit potential providers of service. 3. To develop community-based 1. The purchase and/or lease, plus renovation of skilled nursing facilities for residential sites that could be converted to geriatric and pediatric develop- skilled nursing facilities. mentally disabled individuals who require intensive nursing care and who have been ruled to be inappropriate for contin- ued stay at an intermediate 2. The purchase and/or lease of existing skilled care facility. nursing facilities. 4. To develop an approach which 1. Conduct a feasibility study to determine the would facilitate natural fami- degree of parental interest in becoming lies ccepting their offspring involved in such a program. back into their homes 2. On a pilot demonstration basis, to be evaluated after one year's duration: a) provide a stipend to twelve (12) families which would cost less than the equivalent of 1.78 staff per client. b) Increase the availability of existing in- home support, such as homemaker serv- ices. c) Utilize existing resources to provide res- pite services to prevent burn-out and re- cidivism within these twelve (12) families. 5. To improve and expand the net- 1. Make available community-based day programs work of other than residential such as education, day treatment, and day services to ensure that client training to accommodate the needs of the placements are qualitatively client population to be placed in the various maintained. residential programs. 2. Make available to residential providers and their clients the means to access necessary support services, with specific reference to medical and dental services. 3. Provide case management services to the client population placed on the basis of individual client need, for the purpose of monitoring the quality of that placement, and wherever neces- sary, provide technical assistance to the client for the purpose of accessing needed services. 6. To better utilize client need as 1. Expansion of the request for proposal process the determinant for the type of whereby clients are grouped according to spe- community resource selected cific representative characteristics, e.g., self- preservation, functioning level, age, etc., in preparation for placement in community-based living situations. 2. Clients to be placed in a given fiscal year are designated prior to the beginning of that year so that residential resources such as family (foster) care, personal care homes, community residences, intermediate care facilities, and skilled nursing facilities can be made available to meet client needs. (Initial emphasis will be placed on depopulating the more able clients, allowing sufficient time to develop adequate resources for those less able.) OBJECTIVE POTENTIAL OBSTACLES 1. To continue to maximize exis- 1. Investor program guidelines ting, procedures and develop have not been finalized and new concepts for obtaining approved by the appropriate suitable residential sites for the agencies and review bodies. purpose of developing commu- nity residences and intermedi- 2. The availability of capital ate care facilities with capaci- funds for the construction of ties of eight (8) to fifty (50) homes for special populations. beds to appropriately accommodate the client population to be placed. 3. Availability of funding for the purchase and lease of existing housing stock to achieve placement goals. 4. The placement of non-Nas- sau/Suffolk county of origin clients on Long Island. 5. The lengthy Facilities Devel- opment Corporation/OMRDD acquisition lease process. 2. To increase recruitment efforts 1. The current appropriation for for family care (foster care) family care contains a numeri- and personal care providers. cal limit on the number of personal care clients to be served. 3. To develop community-based 1. Sufficient funding is not avail- skilled nursing facilities for able for the purchase and/or geriatric and pediatric develop- lease, and renovation, of resi- mentally disabled individuals dential sites that could be who require intensive nursing converted into skilled nursing care and who have been ruled facilities. to be inappropriate for continued stay at an intermediate 2. a) Existing, vacant, skilled care facility nursing facilities are not available b) Sufficient funding is not available for the purchase and/or lease of existing skilled nursing facilities. 3. See Objective #1, Obstacle #4. 4. To develop an approach which 1. None would facilitate natural fami- lies accepting their offspring back into their homes 2. a) The availability of fund- ing to provide the reques- ted stipend. b) The availability of fund- ing to provide in-home support such as home- maker services. c) Denial of proposal by con- trol agencies. 5. To improve and expand the net- 1. Existing programs are at capa- work of other than residential city and sufficient funding is services to ensure that client not available for the expansion placements are qualitatively of these day programs and/or maintained. the development of new pro- grams in the community. 2. Resistance on the part of medical and dental practition- ers to service the developmen- tally disabled. 3. Case management services are currently delivered according to a fixed ratio for each type of living arrangement. 6. To better utilize client need as 1. None the determinant for the type of community resource selected. 2. None OBJECT IVE SUGGESTED ALTERNATIVES 1. To continue to maximize exis- 1. Attempt to secure parental ting procedures and develop and/or voluntary group parti- new concepts for obtaining cipation in financing residen- suitable residential sites for the tial alternatives. purpose of developing commu- nity residences and intermedi- 2. Placement of populations ate care facilities with capacities with special residential needs of eight (8) to fifty (50) are developed according to beds to appropriately accom- the amount and type of re- modate the client population to sources allocated. be placed. 3. Placement goals are adjusted depending on the amount and type of resources allocated; and op. cit. #1 above. 4. Obtain the approval/sign-off from the Nassau and Suffolk County Departments of Men- tal Health and Social Ser- vices. If such approval is not forthcoming, the placement goal must be adjusted to re- flect the fact that approxi- mately one-third of Suffolk Developmental Center's pop- ulation cannot be placed on Long Island. 5. Streamline time frames so that residential sites become available in a more timely manner. 2. To increase recruitment efforts for family 1. Request removal of numeri- care (foster care) cal limitation. and personal care providers. 3. To develop community-based 1. The placement of clients into skilled nursing facilities for geriatric and skilled nursing facilities is pediatric develop- adjusted in line with the mentally disabled individuals amount of resources made who require intensive nursing available. care and who have been ruled to be inappropriate for continued stay at an intermediate 2. a) Eliminate action. care facility. b) Same as (1). 3. See Objective #1, Alterna- tive #4. 4. To develop an approach which 1. None would facilitate natural families accepting their offspring back into their homes. 2. a) Stipends are provided ac- cording to the amount of resources available. If the amount of the stipend offered to the families is rejected by them as being insufficient to meet their needs, eliminate the pro- gram as a possible re- source. b) In-home support such as homemaker services are provided to the extent that funding is available. c) Explore new funding sour- ces. 5. To improve and expand the net- 1. a) Pending their interest, work of other than residential clients will attend BOCES services to ensure that client for their day program placements are qualitatively (c.f. in programming an maintained. Adult Population). b) Clients return to Suffolk Developmental Center for their day program. 2. a) Regulatory bodies, such as the Department of Health, Department of Education, and the Medi- cal Advisory Board of the Quality Care Commission, to exercise greater influ- ence over health related agencies and practition- ers, to access medical and dental services. b) As an incentive to provide services to the develop- mentally disabled, in- crease the Medicaid reim- bursement rate. 3. Within existing resources, re- vise the case management system so that services are provided on a need basis (case monitoring vs. case management). 6. To better utilize client need as the determinant 1. None for the type of community resource selected. 2. None

  The Future (What's Next)

  As stated previously, this plan is but the beginning in a lengthy planning and implementation process. Further refinement of the plan must begin immediately and continue throughout the life of the plan. This immediate refinement will quickly move the plan from planning status to a "Guideline/Schedule for implementation of improvements to Suffolk Developmental Center." Upon acceptance of the plan, the following actions will need to take place immediately:

  1. In many cases, objectives will become goals and actions will become objectives.

  2. Highly specific action plans will be developed for each objective. These action plans will include the assignment of a person responsible and a timetable for completion.

  3. In conjunction with #2 above, each action will need to be "costed-out" by an expert in fiscal management relative to both existing and additional resources required.

  4. Fiscal expertise will be required to project the impact of the Suffolk plan upon New York State's entire system of service delivery to the retarded and developmentally disabled.

  5. Continual refinement and revision of the plan must take place as information becomes available on such things as: changing individual and client population needs, changing resources requirements and availability, changes in the quality of work-life through effective labor/management relations, changing realities in the field of mental retardation and developmental disability, changing legal and regulatory requirements, and changes indicated through my ongoing monitoring of the plan's implementation.

  Fred A. McCormack

  Director

  Suffolk Developmental Center

19830810

© 1992-2004 VersusLaw Inc.



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