Lelsz v. Kavanagh

• Decision Date: 15 October 1987
• Docket Number: Civ. A. No. 3-85-2462-H.
• Citation: 673 F. Supp. 828
• Parties: John LELSZ, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. John J. KAVANAGH, M.D., et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

673 F. Supp. 828

John LELSZ, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. John J. KAVANAGH, M.D., et al., Defendants.

Civ. A. No. 3-85-2462-H.

United States District Court, N.D. Texas, Dallas Division.

August 13, 1987.

Implementation Agreement October 15, 1987.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David Ferleger, Philadelphia, Pa., Virginia Raymond, Austin, Tex., for plaintiffs.

Toni Hunter and Martha Allan, Asst. Attys. Gen., State of Tex., Austin, Tex., for defendants.

Diane Shisk, Austin, Tex., for amicus, Advocacy, Inc.

Janice L. Green, Farris and Green, Austin, Tex., for amicus, Ass'n for Retarded Citizens ("ARC").

Paul Smith, Washington, D.C., for intervenor, Parents Ass'n for the Retarded of Texas ("PART").

MEMORANDUM OPINION AND ORDER

SANDERS, Acting Chief Judge.

On June 29 through July 7, 1987 the Court held an evidentiary hearing on Plaintiffs' Motion for Contempt Regarding Abuse at Fort Worth State School, filed March 26, 1987; Plaintiffs' Motion for Contempt Regarding the State School Review —First Report, filed March 30, 1987; and Plaintiffs' Motion for Contempt for Violation of Paragraph 28 of the Resolution and Settlement, filed March 30, 1987. Plaintiffs contend that conditions at the Fort Worth State School (the "FWSS") violate their federal constitutional rights and provisions of the May 12, 1983 Resolution and Settlement (the "R & S") approved by order of the Court July 21, 1983 (the "July 21, 1983 Order and Memorandum Opinion"). After review of pleadings and evidence, the Court makes the following factual findings and legal conclusions.

Summary of the Court's Ruling

The Court today holds that Defendants have violated the federal constitutional rights of Plaintiff class members at FWSS by failing to provide constitutionally adequate medical care, constitutionally adequate safety, constitutionally adequate freedom from undue restraint, and constitutionally adequate habilitation.

The Court holds that Defendants have not complied with their obligations under Paragraphs 7, 8, 11, 13, 22, and 28 of the R & S by failing to provide—and by failing to make necessary efforts to provide—required habilitation, required freedom from abuse and neglect, required individual treatment, and required safe conditions at FWSS. Further, Defendants have breached their obligation to provide these services with required respect for clients' dignity and personal autonomy.

The Court holds that Defendants' failure to fulfill their obligations under the R & S constitutes contempt of court.

Plaintiffs are individuals who, through no fault of their own, need treatment in facilities of the State of Texas. Their rights, which should be secured by the ethics and decency of civilized society, are secured by the U.S. Constitution, by federal and state laws, and by the 1983 R & S in this case.

By Defendants' own admission, Texas ranks "fifty-first out of fifty" states in financial commitment to its mentally retarded citizens. (Testimony of Miller). Upon review of the pleadings, of seven days of testimony by nearly thirty witnesses, and of thousands of pages of exhibits, the Court concludes that lack of funding is at the core of FWSS' inadequacies. A generally caring and concerned staff cannot make up for that deficiency.

Index I. Background II. The Law A. The Constitution of the United States B. The Resolution and Settlement ("R & S") 1. Explicit Provisions of the R & S a. Habilitation b. Dignity and Personal Autonomy c. Abuse and Neglect d. Safety and Cleanliness e. Securing Implementation 2. Applicable Federal Statutes a. Social Security Act b. The Education of All Handicapped Children Act c. The Rehabilitation Act C. Contempt D. Defenses 1. Enforcement of the R & S by Contempt 2. Vagueness 3. ICF/MR 4. Impossibility III. The Facts A. Introduction B. Medical Care C. Habilitation 1. Physical Therapy 2. Feeding 3. Toileting 4. Behavior Modification a. Inadequate Data Collection b. Lack of Treatment Planning c. Program Goals Lack Relevance d. Lack of Resources 5. Individual Service Plans 6. Overuse of Aversive Techniques a. Facial Screening b. Mechanical Restraints c. Isolation Rooms d. Chemical Restraints D. Education E. Lack of Safety 1. Incidence of Abuse and Neglect 2. Procedures Regarding Abuse and Neglect 3. Client Injury F. Staffing 1. Numbers a. Non-Professional Staff b. Professional Staff 2. Screening and Training a. Non-Professional Staff b. Professional Staff 3. Oversight G. Insuring Adequate Conditions IV. Conclusions of Law A. Constitutional Violations 1. Medical Care 2. Safety 3. Undue Restraints 4. Habilitation B. Violations of the Resolution and Settlement 1. Habilitation 2. Dignity and Personal Autonomy 3. Safety, Abuse, and Neglect 4. Safe Buildings 5. Securing Compliance V. Conclusion

I. Background

This case was filed in 1974 in the United States District Court for the Eastern District of Texas. In 1981 the case was certified as a Fed.R.Civ.P. 23(b)(2) class action. In 1983, on the eve of trial, the parties settled the case and entered into the R & S, which was approved by the Court. See Fed.R.Civ.P. 23(e). Later that same year, the Court granted leave to intervene to the Parents Association for the Retarded of Texas ("PART"), Advocacy, Inc., and the Association for Retarded Citizens/Texas ("ARC"). Pursuant to the settlement, an Expert Consultant, Dr. Linda R. O'Neall, was appointed. See R & S at ¶ 36.

In 1985 the case was transferred to this Court.

II. The Law

A. The Constitution of the United States

All residents of state-operated institutions for the mentally retarded possess constitutionally protected liberty interests guaranteed by the due process clause of the fourteenth amendment. Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982); Vitek v. Jones, 445 U.S. 480, 491-94, 100 S.Ct. 1254, 1263-64, 63 L.Ed.2d 552 (1980); Mills v. Rogers, 457 U.S. 291, 298-302, 102 S.Ct. 2442, 2447-2450, 73 L.Ed.2d 16 (1982). Those protected liberty interests include:

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

2. A right to reasonably safe conditions of confinement;

3. A right to be free from undue bodily restraint;

4. A right to the training and development of those skills needed to ensure safety and to facilitate clients' ability to function free from bodily restraint.

The Court will discuss these interests briefly seriatim.

First, the Constitution requires that the state provide "the essentials of care": adequate food, shelter, clothing, and medical care. Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462. Medical care includes not only life-preserving or emergency care, but also regular and preventive treatment for ordinary or chronic ailments. Society for Goodwill to Retarded Children v. Cuomo, 572 F.Supp. 1300, 1344 (E.D.N.Y.1983), rev'd on other grounds, 737 F.2d 1239, 1245 (2d Cir.1984).

Second, the Constitution requires reasonably safe conditions of confinement. Ensuring reasonable safety to all residents and personnel in a state school for the retarded is the state's "unquestioned duty." Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462. "The right to personal security constitutes a `historical liberty interest' protected substantively by the due process clause." Id. at 315, 102 S.Ct. at 2458 (citing Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977)); see Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978).

Third, 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." Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462.

Fourth, the degree of training required to be provided a mentally retarded client is "such training as an appropriate professional would consider appropriate to ensure his safety and to facilitate his ability to function free from bodily restraints." Id. Although the Youngberg court specifically reserved the issue of whether a general constitutional right to "habilitation"¹ exists, the Court 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.

Justice Blackmun's concurrence in Youngberg, joined by Justices O'Connor and Brennan, elaborates on the minimum training mandated by the Constitution. The Youngberg concurrence explicitly enunciates a protected liberty interest which the Fifth Circuit has stated: retarded institutionalized clients possess a right to "such training as is reasonably necessary to prevent a person's pre-existing self-care skills from deteriorating because of his commitment." Youngberg, 457 U.S. at 327, 102 S.Ct. at 2464. (Blackmun, J. concurring); Lelsz v. Kavanagh, 807 F.2d 1243, 1251 (5th Cir.1987) (Jones, J.) ("Youngberg may eventually have to be squared with the duty of a state to prevent deterioration of skills of the retarded committed to its institutions.") (hereinafter "Lelsz January 1987 Opinion"), reh'g denied en banc, 815 F.2d 1034 (5th Cir.1987), petition for cert. filed (hereinafter "Lelsz May 1987 Opinion"; collectively "Lelsz January and May 1987 Opinions"). Thus,

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-help skills, but lost those skills after commitment because of the State's unreasonable refusal to provide him 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

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