New York State Ass'n for Retarded Children v. Carey

• Decision Date: 13 July 1982
• Docket Number: No. 72 Civ. 356,72 Civ. 357.,72 Civ. 356
• Citation: 551 F. Supp. 1165
• Parties: NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC., et al. and Patricia Parisi, et al., Plaintiffs, v. Hugh L. CAREY, individually and as Governor of the State of New York, et al., Defendants. United States of America, Amicus Curiae.
• Court: U.S. District Court — Eastern District of New York

551 F. Supp. 1165

NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC., et al. and Patricia Parisi, et al., Plaintiffs, v. Hugh L. CAREY, individually and as Governor of the State of New York, et al., Defendants United States of America, Amicus Curiae.

Nos. 72 Civ. 356, 72 Civ. 357.

United States District Court, E.D. New York.

April 28, 1982.

Order July 13, 1982.

New York Civil Liberties Union, Paul, Weiss, Rifkind, Wharton & Garrison, Murray B. Schneps, Michael S. Lottman, Walter Redfield, New York City, Morton B. Dinker, The Legal Aid Society, New York City, Henry Weintraub, The Legal Aid Society, Brooklyn, N.Y., for plaintiffs; Christopher A. Hansen, Robert M. Levy, Diana T. Tanaka, Jonathan D. Siegfried, Helen Hershkoff, Elizabeth Koltun, James M. Beslity, New York City, of counsel.

LeBoeuf, Lamb, Leiby & MacRae, Robert Abrams, Atty. Gen., of N.Y., New York City for defendants; Taylor R. Briggs, Richard C. Cole, Kim Hoyt Sperduto, Lawrence Pollack, Joy Feigenbaum, New York City, Caren S. Brutten, Frederick K. Mehlman, Asst. Attys. Gen., New York City, of counsel.

Leonard Rieser, Timothy Cook, Terisa E. Chaw, Special Litigation Counsel Section Civil Rights Div., Washington, D.C., amicus curiae United States of America.

BARTELS, District Judge:

This is a motion by plaintiffs to declare the defendants in non-compliance with the 1975 Consent Judgment and to appoint a Special Master, and a counter-motion by the defendants to modify the Consent Judgment and vacate the court's Order of October 22, 1979.

In 1972 plaintiffs in this action instituted a suit against the State of New York alleging that living conditions and treatment programs at Willowbrook State School for the Mentally Retarded, now known as Staten Island Developmental Center, ("Willowbrook") violated their constitutional and statutory rights and seeking at the same time preliminary injunctive relief to restrict certain abuses and to require improved care. In April 1973 Judge Orrin G. Judd granted relief to the plaintiffs by means of a preliminary injunction against the defendants directing certain enumerated items of relief in an attempt to correct deficiencies in order to protect the residents from serious physical harm. NYSARC v. Rockefeller, 357 F.Supp. 752 (E.D.N.Y. 1973). Subsequently, the United States of America, through its Civil Rights Division, entered the case as amicus curiae. Thereafter extensive negotiations were had between the parties and after the remaining points of contention were settled a consent judgment, approved by the court, was entered in April 1975. NYSARC v. Carey, 393 F.Supp. 715 (E.D.N.Y.1975).

The thrust of the Consent Judgment provided that defendants would reduce Willowbrook to an institution housing no more than 250 residents by April 1, 1981, and that they would transfer class members into community facilities of no more than 10 or 15 beds, depending upon the particular class member's level of functioning. The Judgment also required defendants to make extensive reforms at Willowbrook with regard to environment, staffing, programming, and various types of therapies. The Agreement included an Appendix A entitled "Steps, Standards and Procedures" which delineated in detail acceptable institutional living conditions and community placements, to which reference is hereby made. As explicated in the Judgment:

the steps, standards and procedures contained in Appendix "A" hereto are not optimal or ideal standards, nor are they just custodial standards. They are based on the recognition that retarded persons, regardless of the degree of handicapping conditions, are capable of physical, intellectual, emotional and social growth, and upon the further recognition that a certain level of affirmative intervention and programming is necessary if that capability for growth and development is to be preserved and regression prevented.

Subsequently, in October 1979, plaintiffs and defendants entered into an agreement requiring the placement of half of the multiply handicapped residents of Flower Fifth Avenue Hospital, now known as Flower Hospital, into community facilities of no more than 3 beds and half into residences of no more than 6 beds.

In the six years since entry of the Consent Judgment litigation between the parties has revolved around questions of interpretation, implementation and enforcement of the Consent Judgment. On several previous occasions the parties have appeared before the court because the defendants had failed to live up to their obligations under the Consent Judgment.¹

The motions presently before the court once again involve implementation of the Consent Judgment. Plaintiffs seek an order holding the defendants in non-compliance with the Consent Judgment, specifically those provisions of Appendix A relating to environment (§§ B, R); clothing (§ A(7)); programs and services (§§ B(7), D(1), (2), (5), F(1), (8), G(1), (2), J(1), K(1), (2)); staffing (§§ C(1), (3), (7), (8), L(1)); nutrition (§ H); and community placement (§§ A(1), V(2), (3), (9)). They seek an order demanding compliance, with all deliberate speed, with the community placement provisions of the Judgment, compliance with the other provisions within six months, and the appointment of a Special Master who would monitor compliance and for whom the defendants would be ordered to provide necessary funding.

Simultaneously, defendants seek an order pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, modifying §§ V(1), V(4), and V(7) of Appendix A of the Consent Judgment and vacating the 3 bed/6 bed Order stipulated to and entered in this action on October 22, 1979. The proposed motion for modification would eliminate the requirements that all class members who are mildly retarded be placed in residential facilities of no more than 15 beds, all those who are more than mildly retarded be placed in residential facilities of no more than 10 beds, and that at least half of those class members residing at Flower Hospital be placed in community residences of no more than 3 residents and the remainder in facilities of no more than 6 residents. Instead the modification would permit defendants to develop a range of community-based facilities housing up to 50 residents.

Of a total original class size of 5343 Willowbrook residents, 1108 have been placed in community residences of the size mandated by the Consent Judgment, 580 have been placed in family care, 557 have died, and 730 have been discharged from state supervision. Of the remainder awaiting placement, 1369 live at Willowbrook (including the Karl D. Warner complex),² and 999 have been transferred from Willowbrook to other institutions managed by the State or private agencies. Such institutions include Brooklyn Developmental Center, a 500-bed institution (including the 50-bed Williamsburg annex) which houses 383 class members; Bronx Developmental Center, a 200-bed institution where 57 class members live; Manhattan Developmental Center, in which 107 of its 150 residents are class members; and Bernard Fineson Developmental Center, which houses 288 class members and which is comprised of three units, Corona, Howard Beach, and Glen Oaks. United Cerebral Palsy manages two facilities in which class members reside: Nina Eaton Center, a 48-bed facility which houses 46 class members and Castle Hill School, a 53-bed institution. In addition about 115 multiply-handicapped class members live at Flower Hospital. The focus of the plaintiffs' motion is living conditions at Willowbrook, but evidence of living conditions at the other above-named institutions was also presented. The defendants' proposed modification affects class members in any institutional setting³ including the above institutions.

The Court has heard 25 days of testimony on these two motions. Both parties and amicus have called upon an impressive array of experienced experts and others. Thirty-nine witnesses in all have testified. Plaintiffs called as expert witnesses Dr. James Clements, Chairman of the Willowbrook Review Panel, member of the Joint Commission on Accreditation of Hospitals' Council on Services for the Retarded and Developmentally Disabled, past Director of the Georgia Retardation Center and past president of the American Association on Mental Deficiency; Kathleen Schwaninger, Assistant Commissioner for Mental Retardation in the Commonwealth of Massachusetts and former Executive Director of the Willowbrook Review Panel; Lyn Rucker, Executive Director of Region V Mental Retardation Services in Lincoln, Nebraska; and Gerald Provencal, Director of the Macomb-Oakland Regional Center in Mt. Clements Michigan.⁴ Just as important, the plaintiffs introduced photographs of the conditions they found when they visited Willowbrook and related institutions.

Experts testifying for defendants included Dr. Richard Blanton, Associate Director of the Illinois Department of Developmental Disabilities; Barbara Blum, Commissioner, New York State Department of Social Services and former Director of the Manhattan Placement Unit; Marc Brandt, Executive Director, Sullivan County Association for Retarded Children; Dr. Ella Curry, Director of Willowbrook; Dr. Shervert Frazier, Professor of Psychiatry at Harvard University and former Texas Commissioner of Mental Retardation; Dr. Meredith Harris, Director, Nina Eaton Center; Helen Kaplan, Executive Director, Nassau Chapter of New York State Association for Retarded Children ("NYSARC"); Frank Padaven, State Senator and Chairman of the State Senate Committee on Mental Hygiene; Dr. Sue Allen Warren, Professor of Special Education at Boston University; and Zygmond Slezak, Acting Commissioner, Office of Mental Retardation and Developmental Disabilities ("OMRDD").⁵ Experts called by the United States of America, amicus curiae, included George Gray, architect; Dr. Walter Hillabrant, psychologist; Brian Lensink, Assistant Deputy Director of the Arizona Department of Economic Security in...