Evans v. Washington, Civ. A. No. 76-0293.

• Decision Date: 14 June 1978
• Docket Number: Civ. A. No. 76-0293.
• Citation: Evans v. Washington, 459 F.Supp. 483 (D. D.C. 1978)
• Parties: Joy EVANS et al., Plaintiffs, United States of America, Plaintiff-Intervenor, v. Walter WASHINGTON et al., Defendants.
• Court: U.S. District Court — District of Columbia

459 F. Supp. 483

Joy EVANS et al., Plaintiffs, United States of America, Plaintiff-Intervenor, v. Walter WASHINGTON et al., Defendants.

Civ. A. No. 76-0293.

United States District Court, District of Columbia.

June 14, 1978.

Robert S. Catz, Urban Law Institute of the Antioch School of Law, Washington, D. C., for plaintiffs.

Susan Goldsmith Daniel, Leonard Rieser, Dept. of Justice, Civil Rights Div., Washington, D. C., for plaintiff-intervenor.

George T. Masson, Jr., Nancy R. Dorsch, Asst. Corp. Counsels, Washington, D. C., for defendants.

FINAL JUDGMENT AND ORDER

JOHN H. PRATT, District Judge.

Upon consideration of Plaintiffs' Motion for Partial Summary Judgment, the responses and submissions filed by all the parties in conjunction therewith, and the record in this action, and it appearing that the defendants during the pendency of this litigation have initiated policies and practices which conform to some of the provisions hereinafter set forth, but that there remain significant deficiencies necessitating this Court's entry of injunctive relief, and it further appearing that the defendants have consented to the entry of this Order and Judgment so as to assure protection of the rights of plaintiffs and plaintiff-intervenor, therefore, it is, by the Court, this 14th day of June, 1978, ORDERED AND DECREED:

I. DECLARATORY AND PERMANENT INJUNCTIVE RELIEF

1. The mentally retarded residents of Forest Haven who constitute the plaintiff class (hereinafter class members) have a federal constitutional right to habilitative care and treatment based upon the Due Process Clause of the Fifth Amendment.

2. Each class member has a federal constitutional right to be free from harm based upon the Fifth and Eighth Amendments.

3. Each class member has a federal constitutional right, based upon the Due Process Clause of the Fifth Amendment, to receive habilitative care and treatment in the alternative least restrictive of individual liberty and to be kept free from harm.

Habilitation is the process by which a resident is assisted in acquiring and maintaining those life skills which enable him to cope more effectively with the demands of his own person and of his environment and to raise the level of his physical, mental, and social capabilities. Habilitation includes but is not limited to, programs of formal, structured education and training.

Habilitative care in the alternative least restrictive of individual liberty means living as normally as possible and receiving appropriate individualized services in the community in the least separate, most integrated and least restrictive settings.

As used in this Order, "integrated" refers to the integration of mentally retarded persons with nonretarded persons in the community.

4. The Court finds that violations of the federal constitutional rights of class members, as set forth in paragraphs 1 thru 3, supra, have occurred.

II. PROVISION OF COMMUNITY LIVING ARRANGEMENTS AND SERVICES NECESSARY AND SUFFICIENT TO THE INDIVIDUALIZED HABILITATION OF CLASS MEMBERS

5. Defendants, their successors, officers, agents, servants, employees, and all persons in active concert and participation with them are permanently enjoined to:

a) Develop and to provide for each class member a written individualized habilitation plan, based upon individualized assessments and formulated in accordance with professional standards (as set forth in Joint Commission on Accreditation of Hospitals, Accreditation Council for Services for Mentally Retarded and other Developmentally Disabled Persons, Standards for Services for Developmentally Disabled Individuals (1977)) with the participation of the retarded person, his or her parents, guardian, advocate, and parent surrogate, if there is one; and to provide for each an individualized habilitation program designed in accordance with the plan, to provide annual periodic review of the plan and program, and the opportunity to each member of the plaintiff class and his or her parent, guardian, advocate, and surrogate parent, if there is one, to participate in such review.

b) Provide all class members with community living arrangements suitable to each, together with such community-based day programs and services as are necessary to provide them with minimally adequate habilitation until such individuals are no longer in need of such living arrangements, programs and/or community services. Such community living arrangements, programs and other services shall be provided in the least separate, most integrated and least restrictive community settings.

c) Develop a Plan of Implementation as referenced at paragraph 7, infra, for the provision of such community living arrangements, programs and supportive services. The community living arrangements to be provided shall in no event house in a single residence more than eight mentally retarded persons; except that if defendants find that the medical needs of certain residents are such as to require, in defendants' estimation, placement in facilities housing more than eight mentally retarded persons, defendants shall (i) identify such residents in the Plan and in the reports provided for in paragraph 6, infra, as the situation may arise and (ii) set forth proposed types of placements for such residents and the rationales therefor.

d) Provide all necessary and proper monitoring mechanisms to assure that community living arrangements, programs and supportive community services of the necessary quantity and quality are provided and maintained.

e) Defendants shall make every reasonable effort, including seeking such additional funding as may be required, to secure the expert services of an independent private organization for the preparation of a demographic study, to be completed by December 31, 1978, of the capacity of the District of Columbia area to accommodate Forest Haven residents in appropriate community living arrangements. Said study shall include, but not be limited to, the following areas: housing, zoning, land use, population density, concentrations of group living facilities and blighted areas.

6. Defendants shall identify and retain the expert full-time services of a Developmental Disabilities professional (hereafter "DDP") to assist them and the Court in coordinating and carrying out the implementation of the provisions of this Order. The DDP in conjunction with the defendants shall have the duty, obligation and responsibility to plan, organize, coordinate and monitor the implementation of this and any further Order of the Court. The DDP through the Director of DHR shall until further Order of this Court file a verified report every ninety (90) days from the date of appointment of the DDP detailing the status and progress of the defendants in the implementation of this and any further Order of the Court. Defendants, their successors, officers, agents, servants, employees, and all persons in active concert or participation with them, shall assist the DDP in securing access to all premises, records, documents, class members and other necessary information to assure that the provisions of this Order are carried out.

The DDP shall report directly to the Director of the Department of Human Resources who shall make available to the DDP appropriate professional and other resources, including consultants, as are necessary and appropriate to execute the Court's Order.

The defendants shall identify and secure the expert services of the DDP within 80 days of the entry of this Order, and shall submit a plan within 30 days of the date of appointment of the DDP for the staffing and resources to be made available to the DDP. If the staff so identified is not available at that time, defendants will as an interim measure immediately provide equivalent staff to the DDP on a consulting and/or contract basis.

In selecting the DDP, the Director of DHR shall create a three-person search committee to recommend the appointment of the DDP. Plaintiffs and Plaintiff-Intervenor shall jointly select one designee as a member of the three-person search committee. Plaintiffs and Plaintiff-Intervenor shall have the opportunity to review and comment on any proposed selection of the person to serve as DDP, prior to such selection.

7. The DDP and defendants shall prepare and present to the Court for its approval and Order a Plan of Implementation which shall include but not be limited to the following plans:

(a) A plan specifying the quantity and type of community living arrangements programs and other community services necessary for the habilitation of all plaintiffs in the least separate, most integrated, least restrictive community setting, taking into account the existing community services in the metropolitan Washington, D.C. area and including specification of the additional residential placements, programs and services necessary, the delineation of responsibility for their creation and maintenance, their funding and a specified time frame for their provision, and the staffing patterns required. The delineation of responsibility for the creation and maintenance of such living arrangements, programs and services shall include specific assignments by activity to specifically identified agents of the defendants.

(b) A plan specifying resources, procedures, and a schedule for individual evaluations and the formulation of individual exit and community habilitation plans required for the habilitation of each member of plaintiff class and for the periodic review of such plans.

(c) A plan for the recruitment, hiring and training of a sufficient number of qualified community staff to prepare individual exit and community habilitation plans for each member of plaintiff class and upon completion of such plans to assist in the execution of the responsibility to create, develop, maintain, and monitor the community living arrangements, programs and other services required.

(d) A plan for the creation, development and maintenance...