Society for Good Will for Retarded Children, Inc. v. Cuomo , 718 F. Supp. 139 ( 1989 )

718 F. Supp. 139 (1989)

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

No. 78-CV-1847.

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

August 3, 1989.

Michael S. Lottman, Murray B. Schnepps, East Hartford, Conn., for plaintiffs.

Robert Abrams, Atty. Gen. of State of N.Y. by Caren S. Brutten, Stephen Mendelsohn, New York City, for defendants.

MEMORANDUM AND ORDER

FINAL JUDGMENT

WEINSTEIN, District Judge.

This litigation seeking relief for alleged unconstitutional conditions and violations of state and federal statutes at the Long Island Developmental Center for profoundly mentally and otherwise disabled persons has been before the court for more than ten years. See Society for Good Will for Retarded Children, Inc. v. Cuomo, 572 F. Supp. 1300 (E.D.N.Y.1983); 737 F.2d 1239 (2d Cir.1984); 103 F.R.D. 168 (E.D.N. Y.1984); 832 F.2d 245 (2d Cir.1987). The court has continued to visit the institution and some of its small residential satellites, review reports of certifying agencies and of the institution, hold evidentiary hearings and discuss ongoing problems with counsel and administrative staff.

Enormous improvements in conditions at the Center have resulted from the dedicated efforts of staff; support by the state; and pressure of governmental agencies, including the courts, and counsel for both plaintiffs and defendants. Nevertheless, severe institutional problems revealed in earlier opinions continue. As reflected in the most recent hearings and reports of certifying agencies, the constitutional rights of clients to adequate physical and medical support are being violated. According to expert testimony credited by the court, there is loss of capacity in residents as a result of inadequate facilities, treatment and habilitation. The institution fails to provide reasonably safe conditions of confinement, freedom from unreasonable bodily restraints and minimally adequate training that credible expert testimony and the court find to be reasonably required. These failures constitute a violation of the rights of clients. See Youngberg v. Romeo, 457 U.S. 307, 327, 102 S. Ct. 2452, 2464, 73 L. Ed. 2d 28 (1982) (Blackmun J., concurring) (constitution requires training "reasonably necessary to prevent a person's preexisting self-care skills from deteriorating because of his commitment (emphasis in original)); Clark v. Cohen, 794 F.2d 79, 95-96 (3d Cir.1986), cert. denied, 479 U.S. 962, 107 S. Ct. 459, 93 L. Ed. 2d 404 (1986); Society for Goodwill to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1250 (2d Cir.1984).

The court credits findings of various state and federal certifying agencies determining that the institution is not complying with applicable federal regulations designed to protect clients physically and medically. These expert reports are trustworthy. See Rule 803(8)(B), (C) of the Federal Rules of Evidence; Beech Aircraft Corp. v. Rainey, ___ U.S. ___, 109 S. Ct. 439, 102 L. Ed. 2d 445 (1988). These findings confirm the evidence received in court and the court's own observations that constitutional rights to minimum housing, food, medical treatment and habilitation necessary to prevent client deterioration have not been met. In view of these findings of constitutional violations and supporting oral findings made on the record, it is not necessary to determine whether specific federal statutes are being violated.

It has been suggested by the Court of Appeals that prior consent by the state to a decree in this case may have constituted a waiver of its eleventh amendment immunity under Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984) (eleventh amendment prohibits federal courts from imposing injunctive relief against state officials for violations of state law). See Society for Goodwill for Retarded Children, Inc. v. Cuomo, 832 F.2d 245, 246 (2d Cir. 1987). See also Kozlowski v. Coughlin, 871 F.2d 241, 244 (2d Cir.1989). This court respectfully declines to follow that suggestion. As a matter of fact, no intentional waiver occurred. Implied waivers are not desirable in circumstances such as are reflected in the present litigation because they would make cooperative stipulations by the state less likely, reduce the number of consent decrees and induce litigation to the death by the defendant in an increased number of cases.

The plaintiffs have sought a master to supervise the institution. Such an appointment is not desirable under the circumstances of this case. The director and staff of the institution are fully committed to improvement and need no supervision. The state has been relatively forthcoming in its budgetary allocations, considering all the other fiscal demands it must meet.

The administrative limitations on the institution make it apparent that the constitutional rights of clients cannot be protected without further reduction of the client population. All agree that this reduction should, for generally accepted professional reasons, be accomplished by transferring as many clients as is practicable to small home-like cottages, houses and apartments; if possible these small residences should be off-campus, in the community. Community placement to the extent reasonable under the circumstances is a necessary remedial measure to vindicate the clients' constitutional entitlements. The court has the power and obligation to require remedial steps designed to overcome the effect of years of severe constitutional deprivations experienced by clients of the Center. Cf. United States v. Paradise, 480 U.S. 149, 107 S. Ct. 1053, 1073, 94 L. Ed. 2d 203 (1987) ("``Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.'") (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S. Ct. 1267, 1275, 28 L. Ed. 2d 554 (1971); United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1235-36 (2d Cir.1987), cert. denied, ___ U.S. ___, 108 S. Ct. 2821, 100 L. Ed. 2d 922 (1988).

The following is ordered after detailed consultation on terms among counsel, administrative staff of the institution and the court:

1. The policies and actions of the defendants in the operation of the Long Island Developmental Center are declared to be in continuing violation of the plaintiff class members' rights under the due process and equal protection clauses of the Fourteenth Amendment.

2. Defendants shall implement the following plan at LIDC (including the Sagtikos and Sagamore units):

GOAL I: To Assure Proper Programming, Particularly for those Over the Age of 21
Not Educated in the Public School System
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OBJECTIVE                                       ACTIONS
1. To reorganize the delivery of treatment    1.a) Refine program curricula utilizing
services so that it more effectively            new and age appropriate technologies.
develops the client in his environment
of Long Island Developmental
Center, and in a more normalizing
manner provides better
staffing coverage and consistency
in the delivery of clinical services.
b) Develop the necessary training and
support systems to facilitate
achieving the objective.
2. To improve the existing goal oriented      1.   By September 1, 1989, reassess existing
programming for residents over                  programs of the over age 21
the age of 21.                                  population to determine if they are
meeting individual client needs and
where they are not, revise curricula
to encompass the whole client and
improve his skills in real life. This
reassessment shall be a continuing
requirement.
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,
etc.). Throughout the entire
continuum, attention will be
paid to socialization and deinstitutionalization.
b) By July 31, 1989, 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.
There is no requirement that persons
with the same problems be
grouped together. The techniques
to be used are within the discretion
of professional staff.
3. Provide goal oriented programming          1.   By July 31, 1989, all residents age 21
to all residents age 21 and under.              and under shall receive school education

programming on a full year
(12-month) basis.
4. Improve upon existing systems to assure    1.   By September 1, 1989, on a five day
that clients of Long Island                     per week 12 month per year basis,
Developmental Center receive programs           six hours of active, structured programming
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.
The professional staff may define
structured programming to include
equivalent programming in nonclassroom
or equivalent settings.
In each case a member of the professional
staff must certify on the
client's record why the variation is
required. Compliance with
§ 483.440 of 42 C.F.R. shall be
deemed sufficient compliance with
this requirement.
2.   Develop a training program to facilitate
the success of program philosophy
and goals.
3.   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.
4.   By September 1, 1989, 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
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OBJECTIVE                                       ACTIONS
1. To maintain an overall staff to client     1.   An overall staff to client ratio of no
ratio of no less than 2 to 1 and                less than 2 to 1 shall be met and
allow for various administrative                maintained within 1%. To meet
flexibilities and prerogatives, until           this objective, the Director shall
March 31, 1992.                                 have the authority and be required

to fill and refill any vacant position
without regard to any budgetary
restrictions or other limitations, unless
otherwise ordered by 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.
2. To increase direct care staff available    1.   Review all direct care assignments
in the ward at times of maximum                 and, based on proposed program
activity.                                       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 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.
4.   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.
5.   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.

6.   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.
7.   Increase volunteer programs and encourage
older parents and members
of the community to become
Foster Grandparents or Senior
Companions.
8.   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 unions and employees.
9.   Restructure current performance
evaluations to continue to reinforce
supervisory responsibilities of midlevel
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.
4. To increase the provision of needed        1.   Cluster professional personnel in relation
clinical support services to clients.           to client needs as reflected
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 Long Island Developmental
Center campus.

7.   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 for, and expedite
the development of, training
programs for high school and undergraduate
students giving them
the opportunity to work part time
at Long Island Developmental 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.
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 training      1.   Establish a residential training program
for staff charged with care of                  under a centralized unit headed
clients.                                        by a Director of Training to be
utilized for assessing staff competencies,
training, and for field
placement of students from academic
institutions.
2.   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.
3.   Funds shall be available 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.
4.   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.
5.   Establish an "Ad Hoc" training advisory
committee with representation
from Staff Development and
Training, LIDC Client Services,
state-operated community-based
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.
6.   Revise the training delivery model to
include the appropriate use of:
a) Onsite, hands on, experiential
learning.
b) Role modeling in the training unit
utilizing a "buddy system."
c) Centralized classroom learning.
7.   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.
2. To expand the availability of training     1.   Expand the pool of trainers by:
opportunities for staff.
a) Establishing a mechanism for
sharing training resources within
OMRDD.
b) Developing a training consortium
with voluntary agencies in the
Long Island DDSO catchment
area.
c) Utilizing more parents and guardians
of clients in training programs.
2.a) Continue to negotiate academic credit
(extending beyond life-experience
credit) for training received at
Long Island Developmental Center.
b) Negotiate increased numbers of university
affiliations for:
— Student field placement at Long Island
Developmental Center in exchange
for academic faculty offering

staff training at Long Island
Developmental Center.
— Academic programs (degree and
certificate bearing) at Long Island
Developmental Center.
3. To increase the application of knowledge   1.   Establish a mechanism for evaluating
and skills acquired through                     the effectiveness of training and
training to job performance.                    application on-the-job in both 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 maintenance  1.   Organize the Maintenance Department
and environmental services.                     under the supervision of a
plant superintendent to be responsible
for all maintenance and environmental
services.
2. To reduce the number of repairs required.  1.   Continue the maintenance assistant
repair concept of performing comprehensive
repairs on a scheduled
basis and preventive maintenance
of non-specialized equipment.
3. To improve the quality and quantity        1.   Develop and implement a formal
of work production.                             training program for maintenance
and environmental systems staff.
2.   Negotiate with BOCES and private
trade schools the use of Long Island
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 Long Island
Developmental Center Plant
Engineering staff to learn new
skills or upgrade present ones.
3.   Contract with private tradesmen to
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.
4.   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. Maintain
this action on a continuing basis.
5.   On or before June 1, 1989, 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.
Maintain this action on a
continuing basis.
6.   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 and          1.   Establish realistic in-service training
efficiency of Work Control.                     for supervisory personnel, specific
to job title.
2.   Formulate for shop distribution, a
plant engineering parts catalog,
which will allow for faster identification
of parts that must be ordered.
Maintain this action on a
continuing basis.
3.   Increase the minimum and maximum
stock levels, especially for those
specialty parts that are difficult to
locate or have manufactured.
Maintain this action on a continuing
basis.
4.   Purchase appropriate equipment (to
include those that save labor and
manpower) and parts to make proper
repairs.
5.   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 31, 1989.
5. To improve environmental conditions        1.   All buildings must meet federal
in all buildings at the facility.               ICF/MR standards 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 existing rest     1.   Assign project to Quality of Work
and recreational facilities.                    Life Committee to determine what
additional 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) Subdivision 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 Long
Island Developmental Center 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 and other groups, to aid
in grounds beautification projects
and to provide outdoor recreation
areas, and other improvements.
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 to further   1.   Screen and monitor, through reports
ensure clients' needs are met.                  by staff and visitors and a computerized
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.   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.   Maintain adaptive equipment shops,
including the supply of parts and
materials, for construction of
adaptive devices and special clothing.
Involve skilled parents and

guardians and other volunteers in
the work of the adaptive equipment
shops.
5.   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.   Continue to attempt to develop a contract
with wheelchair vendor to
maintain an outlet at Long Island
Developmental Center with sales-person
and repairperson scheduled
regularly, but failure or inability to
develop such contract shall not excuse
compliance with goal V, objective
1, action 3.
7.   Continue to expand the appropriate
utilization of clothing wardrobes in
accordance with client ability.
8.   All clients shall be provided with such
special and other clothing and footwear
as may be required by professional
staff memebers, and all limitations
on state purchasing of such
clothing are suspended until March
31, 1992. Any clients newly admitted
to the facility shall be provided
with such special and other clothing
and footwear within 45 days of
admission.
9.   Defendants shall develop an improved
system for the marking and
segregating of individual client
clothing.
10.   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 transportation      1.   The facility shall provide sufficient
network for transferring clients,               safe and appropriate transportation
particularly the non-ambulatory, to             to meet the programmatic and other
all services including day program              needs of all clients, on and off
and leisure activities.                         the grounds of the facility.
2.   The facility shall maintain its "new"
ambulance and two ambulettes in
good repair.
3.   Revise and expand client "travel
training" programs to increase
clients' independence in traveling
between residential and program
buildings.

GOAL VI: An Increased Rate of Transfer from the Central Long Island Developmental
Facilities to Residential or Other Small Community Facilities
------------------------------------------------------------------------
OBJECTIVE                                     ACTIONS
1. To continue to maximize existing procedures    1.   By May 17, 1989, 598 clients from
and develop new concepts                            Long Island Developmental Center
for obtaining suitable residential                  shall have been placed in community
sites for the purpose of developing                 placements, some of fifteen (15)
community placements.                               bed size or over, but such larger
size shall, however, be the exception.
It is further provided that
the average size of each such community
residential facility shall be
no more than 12. These placements
shall include the development
of community residences and
intermediate care facilities. By
March 31, 1992, the number of persons
at Long Island Developmental
Center campus shall not exceed 565
clients. This includes the persons
in the Small Residential Units built
or to be built on the campus. On a
five day per week, 12 month per
year basis, six hours of active,
structured programming 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. The professional
staff may define structured
programming to include equivalent
programming in non-classroom or
equivalent settings. In each case a
member of the professional staff
must certify on the client's record
why the variation is required.
Compliance with § 483.440 of 42
C.F.R. shall be deemed sufficient
compliance with this requirement.
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 for            1.    Improve recruitment efforts utilizing
family care (foster care) and personal               such strategies as radio and TV,
care providers.                                      print media, and continuous, widespread

contact with charitable, religious,
and service organizations to
recruit potential providers of service.
3. To improve and expand the network              1.   Make available community-based day
of other than residential services to               programs such as education, day
ensure that client placements are                   treatment, and day training to accommodate
qualitatively maintained.                           the needs of the client
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.
4. To better utilize client need as the           1.   Expansion of the request for proposal
determinant for the type of community               process whereby clients are
resource selected.                                  grouped according to specific representative
characteristics, e.g.,
self-preservation, functioning level,
age, in preparation for placement
in community-based living situations.
2.   To the extent practicable, 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.

3. Defendants shall maintain continuing substantial compliance with Medicaid certification requirements in all units, buildings, and programs at LIDC, i.e., they shall meet substantially all "conditions of participation" included in 42 C.F.R. 442.483, as amended, as well as the following specific standards; these conditions and standards reflect current professional consensus on minimum standards required to protect the health of these clients who are incapable of protecting themselves; under the circumstances of this case with so many years of severe constitutional violations, the court finds they are necessary to overcome past violations:

483.410(b) — health, safety, sanitation
.420(a) — client rights
.420(c) — communication
.420(d) — abuse and neglect
.430(b) — professional program services
.430(c) — facility staffing
.430(d) — direct care staffing
.440(a) — active treatment
.440(c) — individual program plan
.440(d) — program implementation
.440(f) — program monitoring and revision
.450(b) — behavior management
.450(d) — physical restraints
.450(e) — drug therapy
.460(a) — physician services
.460(c) — nursing services
.460(e) — dental services

.460(j) — drug regimen review
.470(a) — client living environment
.470(b) — client bedrooms
.470(c) — storage space
.470(d) — client bathrooms
.470(e) — heating and ventilation
.470(g) — space and equipment
.470(h) — emergency procedures
.470(j) — fire protection
.470(k) — lead-free paint
.470(l) — infection control
.480(b) — meal service
.480(d) — dining areas

4. Services, benefits, accommodations, and programs, including but not limited to vocational and pre-vocational programming and community placement opportunities, shall not be denied to any class member or group of class members on the basis of the nature or degree of their handicapping conditions or on the basis of generalized assumptions that they are unable to benefit from certain activities or services.

5. The preliminary injunction heretofore entered in this case on March 31, 1989 is merged into this permanent injunctive order.

6. Between May 17, 1989, and March 31, 1992, approximately 400 persons will be placed off campus in community residences of an average size of not more than 12, so that the client census at LIDC will be no more than 565 by March 31, 1992.

7. Plaintiffs' counsel and their experts shall be allowed reasonable access to all class members and their records, and to all programs, facilities, and staff members serving or accommodating such individuals.

8. Defendants shall submit to plaintiffs' counsel, within seven working days of receipt or issuance, copies of the following documents:

(a) All State or Federal statements of deficiencies, plans of correction, notifications of adverse action, and other substantive correspondence relating to Medicaid ICF/MR compliance surveys of any building, unit, or program at LIDC;

(b) Director's reports to the LIDC Board of Visitors and the minutes of Board of Visitors' meetings;

(c) Any reports of the New York State Commission on Quality of Care for the Mentally Disabled regarding any building, unit, or program at LIDC or any member of the plaintiff class, and any responses thereto or other substantive and relevant correspondence;

(d) Any reports of any other monitoring, licensing, or accrediting body regarding LIDC or any member of the class, and any responses thereto or other substantive and relevant correspondence.

9. Defendants shall report to plaintiffs and the Court on September 15, 1989, and annually thereafter, in a written format acceptable to plaintiffs, as to the defendants' compliance with each provision of the order of the Court.

10. This order shall be in effect until March 31, 1992.

11. Jurisdiction is retained over this matter until further order of the Court.

12. This constitutes a final judgment. The Clerk shall mark the case closed, subject to reopening on motion of any party.

So ordered.