U.S. v. Pennsylvania

MR-PA-007-003
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,
Plaintiff,
V.
COMMONWEALTH OF PENNSYLVANIA; ROBERT CASEY, Governor of the Commonwealth of Pennsylvania; KAREN F. SNIDER, Secretary Department of Public Welfare; NANCY THALER, Deputy Secretary of Mental Retardation Office of Mental Retardation, Department of Public Welfare; REUBEN SHONEBAUM, Director Embreeville Center;
Defendants.

Civil Action No. Civil Rights

THE UNITED STATES OF AMERICA alleges: 1. This action is brought by the Attorney General, on
behalf of the United States, pursuant to the Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. §1997 et seq., to enjoin the named defendants from depriving persons residing at Embreeville Center ("Embreeville") of rights, privileges or immunities secured or protected by the Constitution of the United States.
JURISDICTION 2. This Court has jurisdiction over this action pursuant
t
to 28 U.S.C. §1345. 3. The United States has standing to maintain this action
pursuant to 42 U.S.C. §1997a.

4. The Attorney General has certified that all prefiling requirements specified in 42 U.S.C. §1997b have been met. The Certificate of the Attorney General is appended to this Complaint and is incorporated herein.
5. Venue in the Eastern District of Pennsylvania is proper pursuant to 28 U.S.C. §1391. All claims set forth in the Complaint arose in said District.
DEFENDANTS 6. Defendant COMMONWEALTH OF PENNSYLVANIA owns and operates Embreeville, a state facility for mentally retarded people located in Coatesville, Pennsylvania. 7. Defendant ROBERT CASEY is the Governor of Pennsylvania, and in this capacity heads the Executive Branch of the Commonwealth's government and, among other duties, reviews and approves budget requests submitted by Executive Branch agencies. He selects and appoints the Secretary of the Department of Public Welfare ("DPW") and must approve the appointment of the Deputy Secretary of Mental Retardation, Office of Mental Retardation. 8. Defendant KAREN F. SNIDER, is the Secretary of DPW and, in this capacity, exercises administrative control of, and responsibility for, Embreeville. 9. Defendant NANCY THALER is the Deputy Secretary of Mental Retardation, Office of Mental Retardation, DPW, who, along with Defendant SNIDER, is responsible for the administration of Embreeville.
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10. Defendant REUBEN SHONEBAUM is the Director of Embreeville and is responsible for the day-to-day operations of Embreeville.
11. The individual Defendants named in paragraphs 7, 8, 9 and 10 above are officers of the Executive Branch of the Commonwealth of Pennsylvania and are sued in their official capacities.
12. Embreeville is an institution within the meaning of 42 U.S.C. §1997(1).
13. Persons residing at Embreeville include individuals who are mentally retarded and developmentally disabled.
14. Defendants are legally responsible, in whole or in part, for the operation of and conditions at Embreeville, as well as for the care and treatment of persons residing at that institution.
15. At all relevant times, defendants have acted or failed to act, as alleged herein, under color of state law.
FACTUAL ALLEGATIONS 16. Defendants have failed and are continuing to fail to ensure that Embreeville residents are protected from abuse and neglect. 17. Defendants have failed and are continuing to fail to provide residents residing at Embreeville with that level of individualized training and behavioral programming necessary to ensure that .residents are free from undue bodily restraint,
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including chemical restraint, or unreasonable risks to their personal safety.
18. Defendants have failed and are continuing to fail to provide adequate medical care to Embreeville residents.
19. Defendants have failed and are continuing to fail to ensure that there is an adequate number of sufficiently trained direct care and professional staff to render and implement professional judgments regarding care and treatment of Embreeville residents.
20. Defendants have failed and are continuing to fail to maintain professionally based recordkeeping and record review systems to ensure that resident records contain accurate, up-to-date and relevant information necessary to enable staff to exercise professional judgment regarding treatment and training of Embreeville residents.
21. Defendants have failed and are continuing to fail to ensure that psychotropic medications are prescribed and administered to persons confined at Embreeville only pursuant to the exercise of professional judgment by appropriately qualified professionals and are not used as a form of chemical restraint, in lieu of treatment, or for the convenience of staff.
22. The acts and omissions alleged in paragraphs 16 through 21 constitute patterns or practices of resistance to the full enjoyment of rights, privileges or immunities secured or protected by the Constitution of the United States, and deprive
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residents of Embreeville of such rights, privileges or immunities.
23. Unless restrained by this Court, Defendants will continue to engage in the conduct arid practices set forth in paragraphs 16 through 21 that deprive residents of Embreeville of rights, privileges, or immunities secured or protected by the Constitution of the United States, and cause irreparable harm to Embreeville residents.
24. The Attorney General is authorized under 42 U.S.C. §1997a to seek only equitable relief.
PRAYER FOR RELIEF WHEREFORE, the United States prays that this Court enter an order permanently enjoining Defendants, their agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts, . practices and omissions at Embreeville set forth in paragraphs 16 through 21 above, and to require defendants to take such action as will provide constitutional conditions of care to personswho reside at Embreeville. The United States further prays that this Court grant such other and further equitable relief as it nay deem just and proper.
Respectfully submitted,
//•
JANET RENO Attorney General of the United States
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MICHAEL J. ROTKO United States Attorney Eastern District of Pennsylvania

JAMES P. TURNER Arccttimngg Assistant Attorney General Civil Rights Division

DEBRA L. W. COHN

ARTHUR E. PEAI

Assistant United States Attorney Chief

PA I.D. No. 51073

Special Litigation Section

MELLIE H. NELSON Deputy Chief Special Litigation Section

A. Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section 320 First Street, NW Washington, DC 20530 (202) 514-6252 (202) 514-6264

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©fftce at tire Attorney (general
ffiaatnngton. 9.01. 20530

CERTIFICATE OF THE ATTORNEY GENERAL

I, Janet Reno, Attorney General of the United States, certify that with regard to the foregoing Complaint, I have complied with all subsections of 42 U.S.C. §1997b(a)(1). I certify as well that I have complied with all subsections of 42 U.S.C. §1997b(a)(2). I further certify, pursuant to 42 U.S.C. §1997b(a)(3), my belief that this action by the United States is of general public importance and will materially further the vindication of rights, privileges, or immunities secured or protected by the Constitution of the United States.

I further certify that I have the "reasonable cause to believe" set forth in 42 U.S.C. §1997a to initiate this action. Finally, I certify that all prerequisites to the initiation of suit under 42 U.S.C. §1997 have been met.

Pursuant to 42 U.S.C. §1997a(c), I have personally signed the foregoing Complaint. Pursuant to 42 U.S.C. § 1997b(b), I am personally signing this Certificate.

Signed this / -/ day of f/%1,-fU-si , 1993, at

Washington, D.C.

'

JANET RENO Attorney General
of the United States

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, et al.
v.
P EN N SY LV AN IA , e t al.
HARRY NELSON, et al.

CIV-IL ACTION

NO. 93-2094

mv '< 1! ••••

V.
KAREN F. SNIDER. et al.

ORDER

AND NOW, this y^ day of November, 1 9 9 4 , upon

consideration of plaintiffs' Motion for Final Approval of the

Proposed Settlement Agreement, joined by defendants, it is hereby

ORDERED that said motion is GRANTED.

These consolidated actions were brought by the United

States of America (and, as intervenor, People Interested in

Embreeville Residents, a group comprised mainly of relatives of

residents of the Embreeville Center), a class of residents of the

Embreeville Center and those at risk of placement at the

Embreeville Center, and Pennsylvania Protection and Advocacy,

Inc. and The Arc-Pennsylvania (two non-profit advocacy

corporations) . The suits seek injunctive relief against the

Commonwealth of Pennsylvania and several of its officials to

redress allegedly unconstitutional conditions at the Embreeville

Center, a state institution for the mentally retarded.

After discovery was completed in this case, and on the

eve of trial, the parties reported to the Court that a settlement

agreement had been consented to by all parties. A mechanism for

providing notice to all interested parties and for giving said parties the opportunity to comment on the proposed settlement was implemented, and a hearing on the notion to approve the settlement agreement was scheduled for November 29, 1994. No objections to the settlement agreement were voiced either prior to or during the November 2 9 hearing.
As noted above, this case is a consolidation of two cases, one of which is a class action. Different standards govern the approval of settlements of class actions and non-class actions. Therefore, the settlement agreement need be addressed under one standard for the United States and PIER as plaintiffs portion of this case and under another for the class portion of this case.
To approve a non-class action settlement the district court must conclude that the parties have validly consented; that reasonable notice has been given to possible objectors; that the settlement is fair, adequate and reasonable; that the settlement agreement will not violate the Constitution, any statute, or other authority; that it is consistent with the objectives of Congress; and that it will not be unreasonable or legally impermissible as to any third parties affected. Durrett v. Housing Authority, 896 F.2d 600, 604 (1st Cir. 1990). This Court is satisfied, upon the representations of the parties, that the United States, PIER and the Commonwealth of Pennsylvania have all validly consented to the settlement agreement. As mentioned previously, all interested persons and entities have received notice of the proposed settlement agreement.

The settlement agreement can be described as having three major themes. First, it is designed to improve conditions at Embreeville while the facility remains open. Second, it provides for placement of Eittbreeville residents into the community. Third, it establishes methods by which the rights of the residents will be protected after they are placed in the community. The agreement calls for appointment of a monitor, approved by the Court, who will in turn select a panel of experts to oversee defendants' compliance with the provisions of the settlement. The settlement agreement is comprehensive and detailed; a restatement of its provisions is not necessary here. The Court has reviewed the agreement and is satisfied that it is fair, adequate and reasonable.
The proposed settlement is not violative of any Constitutional provisions, any statutes, or any other authority. In fact, the agreement is drafted to secure the Constitutional and statutory rights of Embreeville residents. Moreover, the agreement is consistent with Congressional objectives. The Civil Rights of Institutionalized Persons Act, 42 U.S.C § 1997 et sea., expresses a Congressional preference for settlement of cases such as this one.
Finally, the proposed settlement agreement does not unreasonably or illegally affect any third persons. The only persons affected by this settlement are the plaintiffs and defendants in the case itself.
In evaluating the fairness of a settlement in a class action, the district court may consider the following:

1) the complexity, expense and likely duration of the
i. X X. 1CJa t iOr>)
2) the reaction of the class to the settlement; 3) the stage of the proceedings and the amount of discovery completed; 4) the risks of establishing liability; 5) the range of reasonableness of the settlement in light of the best possible recovery; and 6) the range of reasonableness of the settlement in light of the attendant risks of litigation. Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1 9 7 5 ) . This case was extremely complex from both a factual and a legal standpoint. This complexity made the case an expensive one to bring to trial, especially in light of the number of expert witnesses required. The trial itself vas anticipated to last for several weeks, undoubtedly to be followed by an extensive period of appeals. This first factor weighs in favor of approval of the settlement. The failure of any class member to object to the proposed settlement despite having adequate opportunity to do so demonstrates that the class members assent to the agreement. Bell Atlantic Corp. v. Bolqer, 2 F.3d 1304, 1313-14 & n.15 (3d Cir. 1S93). The fact that the settlement agreement was forged on the eve of trial and after the close of discovery leads to the conclusion that the plaintiffs had adequate information at their disposal to evaluate the strength of their case and to make an

informed judgment as to the adequacy of the agreement. In re General Motors Corp., S<-5 F. Supp. 330, 334-3 5 (E.D. Pa. 19 93).
The fourth, fifth and sixth factors require that the Court evaluate the plaintiffs1 risks of establishing liability and securing the requested relief after trial. While the plaintiffs case appeared to be a strong one, several genuine legal and factual obstacles to their prevailing at trial did exist. Moreover, the plaintiffs sought exhaustive injunctive relief, some of which might not have been awarded by the Court even had the plaintiffs succeeded in establishing liability. The Court could well have structured lesser relief which it felt adequate to protect the rights of the plaintiffs while at the same time posing a smaller burden to the defendants. The settlement agreement confers upon the plaintiffs much of the relief that they sought in filing this case. Considering all of this, the Court finds the agreement to be reasonable and fair.
For the reasons stated, the proposed settlement agreement submitted by the parties is approved.
AND IT IS SO ORDERED.
Clarence C. Newccper, J.
-•JTERED: ^ ^ ^ ^ 9 ? a
CLERK OF COURT

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,

)

)

Pi aim iff.

)

) PEOPLE INTERESTED IN EMBREEVLLLE )

RESIDENTS,

Plaintiff-Intervenors

) Civil Action No.

) 93-CV-2094

..

)

£\\£

)

V-

)

)

COMMONWEALTH OF PENNSYLVANIA;

)

ROBERT CASEY, Governor of the Commonwealth )

of Pennsylvania; KAREN SNIDER

)

Secretary, Department of Public

)

Welfare; NANCY THALER, Deputy

)

Secretary for Mental Retardation;

)

WILLIAM SNAUFFER, Director,

)

Embreeville Center,

)

)

Defendants.

)

)

HARRY NELSON, by and through his

)

next friend, Yvonne M. Husic;

)

RICHARD CINQUINA, by and through his

)

next friend, Kevin T. Casey; RALPH

)

GEPE, by and through his next friend,

)

Kevin T. Casey, CHARLIE KRAUT, by and

)

through his next friend, Robert M.

)

Currier, GERALDEsE GLENNON, by and

)

through his next friend, Jerome

)

Ianuzzi; and EDWIN MATTIA, by and

)

through next friend, Carole Ianuzzi,

)

on behalf of themselves and all

)

others similarly situated;

)

PENNSYLVANIA PROTECTION &

)

ADVOCACY,

)

INC.; and THE ARC-PENNSYLVANIA,

)

)

Plaintiffs.

)

v.

KAREN F. SNIDER, Secretary, Pennsylvania Department of Public Welfare; NANCY THALER, Deputy Secretary for Mental Retardation, Pennsylvania Depamneiu of Public Welfare, and WILLIAM SNAUFPKR, Facility Director of Embreeville Center, in their individual and official capacities,
Defendants.

)

Class Action

)

)

)

'i

)

)

)

)

) )

SETTLEMENT AGREEMENT

INTRODUCTION

1. These cases were instituted, respectively, by the United States on April 21, 1993,

pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. Section 1997 et sea., and

by the plaintiffs in Civil Action No. 94-CV-440 on January 24, 1994.

2. This Court has jurisdiction over these actions pursuant to 2S U.S.C. Sections 1331,

1343 and 1345.

3. Venue is appropriate pursuant to 2S U.S.C. Section 139l(b).

4. The United States is authorized to institute this civil action by 42 U.S.C. Section

1997a.

5. The plaintiffs in Civil Action No. 93-CV-2094 are the United States of America and

Persons Interested in Embreeville Residents ("PEER"). The plaintiffs in Civil Action No. 94-CV-

440 are: Embreeville residents Harry Nelson, Richard Cinquina, Ralph Gipe, Charlie Kraut,

Geraldine Glennon and Edwin Mattia, all other similarly situated Embreeville residents, the

Pennsylvania Protection &. Advocacy, Inc. and the Arc-Pennsylvania. The parties stipulate that

Civil Action No. 94-CV-440 is a class action and that the class consists of any individual who is an Embreeville resident, as defined herein.
6. The defendants in Civii Action No. 93-CV-2094 are: the Commonwealth of Pennsylvania: Ruben. Casey. Governor of the Commonwealth of Pennsylvania; Karen Snider, Secretary of the Pennsylvania Department of Public Welfare ("DPW"); Nancy Thaler, Deputy Secretary of Mental Retardation, DPW; and William Snauffer, Director of the Embreeville Center ("Embreeville"). The defendants in Civil Action No. 93-CV-2094 are sued in their respective official capacities. Mss. Snider and Thaler and Mr. Snauffer are also the defendants in Civil Action No. 94-CV-440, in which they are being sued in their respective individual and ofBcial capacities.
7. The individual defendants who are officers of the Executive Branch of the Commonwealth of Pennsylvania have authority and responsibility for the operation of Embreeville.
I. GENERAL PROVISIONS A. The parties agree that the care, conditions of confinement and habilitation of Embreeville residents implicate rights of these residents that are secured or protected by the Constitution of the United States. The panics entering into this Agreement recognize these constitutional interests and, for the purpose of avoiding protracted and adversarial litigation, agree to the provisions set forth herein. By executing this agreement, defendants do not recognize a constitutional right to community placements. B. This Agreement applies to all individuals residing at the Embreeville Center any time between April 21, 1992 and the termination of this Agreement. In addition, those non-

Embreeville residents who will be provided new or improved services under this agreement will have the right under this agreement to utilize the grievance procedures set forth herein, and the quality assurance provisions will apply to them as well. Within 60 days of the execution of this
Agreement, defendants will piociucc 10 plctinuiis anu the M o n u o i , appointed puisuant to Section
IV, Par. A of this Agreement, a list of all Embreeville residents and their current places of residence. Plaintiffs will have 30 days in which to submit to the Monitor any additional names to the list. The Monitor will determine the final list within 30 days.
C. Defendants will condition the disbursement of funds to the Counties for operation of community homes and other community services relating to this Agreement, upon the requirement that the Counties comply with the terms in this Agreement. Defendants will allocate funds to Embreeville residents' county of choice necessary to develop and provide the services and support needed by these residents. Additional state funds will be allocated to participating counties equal to the amount of state funds allocated for residents of Embreeville. These funds are to support unserved and underserved people.
D. Defendants will provide the services required under this Agreement for as long as they are required by the Embreeviile residents. Defendants will not reduce services to the residents, unless thev no lor.ser require these sen/ices or the same level of services, as determined bv each resident's Interdisciplinary- Team ("IDT").
E. In entering into this Agreement, defendants do not admit any violation of law, and this Agreement may not be used as evidence of liability in any other legal proceeding. Any terms of this Agreement specifically apply only to the factual circumstances of Embreeville. The parties acknowledge that any terms of this Agreement do not apply to other facilities for the

developmentally disabled in Pennsylvania. The parties agree not to use this Agreement in anv matter unrelated to this case to argue that any party has conceded that any particular action must be taken at any other facility or institution.
r. Any violation ot provisions oi this Agreement does notcreate a private ncht of action. This Agreement is enforceable only by the parties.
G. The provisions of this Agreement are a lawful, fair andreasonable resolution of this case.
H. This Agreement will beapplicable to and binding upon allofthe parties intheir official capacities, and their officers, agents, employees, assigns and successors.
I. During the term ofthis agreement, upon no less than 48 hours notice to the Embreeville Director, plaintiffs' counsel andsuch experts as they choose, will be permitted reasonable access to the records, residents and employees of Embreeville andthe places in which the residents reside, work or attend work programs. Plaintiffs will minimize any disruption to the persons, sites and programs they visit. Nothing in this paragraph alters the access rights of Pennsylvania Protection & Advocacy, Inc. or its subcontractors under federal lawor state policy. Thecosts and fees of plaintiffs' counsel and any expert(s) retained by counsel will be bome by plaintiffs for
tile activities 5£i iOrtii in u*i3 paragraph.
II. DEFINITIONS As used in this Agreement, the following definitions will apply: A. "Assistive technology": External de\ices used by and for individuals with developmental and other physical disabilities to enhance and increase independence, mobility, communication, environmental control and choice, which includes therapeutic equipment designed

to minimize or prevent contractures, physical degeneration, inappropriate body growth and/or deformity, including, but not limited to, wheelchairs.
B. "Advocate": Persons who are acting on behalf of an Embreeville resident covered by tins Agreement, or. if ihe resident i;> unable to give consent, with the consent of the Monito:.
C. "Behavior Modifying Medications": Drugs which are prescribed or administered for the purpose of modifying behavior. Included are the major and minor tranquilizers and antidepressants when prescribed or administered for the purpose of modifying behavior. Excluded are drugs that may have behavior modifying effects such as anti-convulsant medications, unless they are prescribed or administered for the purpose of modifying behavior.
D. "Community Homes": A range of living arrangements in typical family scale homes in the community with support, supervision, and habilitation, as determined by the person-centered planning process. Personal care boarding homes, as defined by Pennsylvania law, are specifically excluded from this definition, unless approved by the resident, the resident's family or guardian, the resident's advocate, if any, and the Monitor.
E. "County of Choice": The county in which an Embreeville resident has chosen to live. F. "Direct Care Worker": Staff immediately responsible for implementing an Embreeville resident's habilitation program and providing care to residents. G. "Functional Analysis": An assessment of a resident's maladaptive behavior, if any, which includes, at a minimum: (1) a description of the behavior(s); (2) an assessment of behavioral intensity, frequency, topography and duration; (3) as determined to be necessary by professional judgment, an evaluation of the antecedents, function and consequences of the

behavior(s), and (4) as determined to be necessary by professional judgment, an assessment of any medical conditions related to the behavior(s).
K. "Habilitation Program": A program or schedule of steps and activities, including behavior management, designed by quahiied proiossiunais to promote acquisition of pro-social, adaptive and self-care skills, prevent regression in those skills already possessed by the resident and/or teach those skills necessary to protect a resident from unreasonable risks to personal safety and to facilitate his or her ability to function free from undue restraints and from unreasonable use of behavior modifying medications.
I. "Physician": A medical doctor lawfully entitled to practice medicine in Pennsylvania. J. "Psychiatrist": A physician who either is certified by or is eligible for certification by the American Board of Psychiatry and Neurology or who has successfully completed an approved residency program in psychiatry and upon completion of post-residency requirements will become eligible for examination for such certification. K. "Resident" or "Embreeville resident": Any person who has resided at Embreeville for any length of time since April 21, 1992. El. REMEDIAL MEASURES A. Closure of the Erabreeville Center 1. Defendants intend to cease operating Embreeville as a facility for individuals with developmental disabilities once all residents have been placed out of the facility. The anticipated closure date is Seotember 30. 1997.

2a. Defendants will place 57 residents into community homes by June 30, 1995. Defendants plan to place at least one hah" of the remaining residents into community homes by June 30, 1996 and the other half of the remaining residents by June 30, 1997.
2b. 11, for any reason, the. defendants determine that they will not be able to make the FY95-96 or FY96-97 placements, they will, within five days of such determination, notify the Court and the parties in writing. In the event that the defendants, for any reason, do not make the FY 95-96 or FY 96-97 placements, the United States and the other plaintiffs will have the right to petition the Court for such placements. In the event that further litigation is necessary regarding the issue of community placements, all of the duties of the defendants set forth in this agreement remain in full force and effect.
3. No resident will be placed in an inappropriate or temporary placement in order to meet the deadlines set forth in Subparagraph A.2a. above. No person will be placed in any type of community home other than that determined by the person-centered planning process. The Monitor must approve any placement of a resident in a nursing home.
4. Within 90 days of execution of this Agreement, defendants will, with input from the plaintiffs, prepare and submit to the Monitor a Plan of Implementation for this entire Agreement, including all steps that must be taken to achieve each phase of implementation and compliance by the prescribed dates, the corresponding deadlines for each of these steps and the person responsible for ensuring that each step is accomplished. This plan will be the foundation of the regular meetings of the parties described infra, and the parties will reasonably work together to refine and improve the plan to the extent necessary as the implementation of the agreement progresses. Defendants will implement the plan with the agreed upon refinements.

5. Commencing 90 days after execution of this Agreement, and every month thereafter, defendants and no more than two representatives of each plaintiff party, if they choose, \vili meet to review the status of implementation of the Plan.
O. Defendants closet! admissions to Linbieeviile Center m lyyi and will not admit any individual into the facility hereafter. Defendants will not admit Embreeville residents to any other state center for individuals with developmental disabilities; however, residents may be readmitted to Embreeville for a period up to 60 days if the resident is required to leave his/her current placement and another appropriate placement does not exist or is not available at that time.
7. Defendants will cease to operate Embreeville as a facility for the developmental^ disabled once all residents have been placed out of the facility.
8. All placements of Embreeville residents will be made pursuant to person-centered planning. The person-centered planning process will be directed by the resident and any involved family member, guardian, friend, or advocate, coordinated with the service manager from the resident's county of choice, and include a team of professionals who are reflective of the supports and services needed by the resident. The person-centered planning process will include a written plan containing a detailed description of the types and levels of supports and services necessary for the resident to achieve successful inclusion in the community of his/her choice.
9. In addition to the process for person-centered planning described in Subparagraph A.8 above, the following requirements will apply to the person-center planning process used at Embreeville and the placement of Embreeville residents:
a. The community in which the Embreeville resident wishes to live after discharge will be identified through the person-centered planning process. If that process results in a choice of a

county other than his county of origin, defendants will respect that choice except when the county chosen is unwilling to provide the services in a reasonable manner.
b. Ernbreeville residents will be informed of their right to choice in the person-centered planning process ana th-^ir nght to request tlie participation m trie persoii-centered p:.L:t:;i;iL; process of any individuals they choose.
c. Defendants will provide training to all members of the EDTs in the person-centered planning process and in methods for eliciting active involvement in the process of persons who use services and their families.
d. Defendants will encourage and assist the Counties in developing systems that allow for consumer control of resources. In compliance with Medicaid waiver provisions, defendants will offer to every Embreeville resident and his/her family the option to use consumer controlled resources in securing the services needed by the resident in the community. No resident's use of such options will reduce or alter services to another resident or result in a reduction of service to that resident without his or her consent.
10. All Embreeville residents who move to the community and wish to work in community-integrated employment will be afforded a reasonable opportunity and the reasonable support to do so. Other community-integrated daytime activities will be developed and provided. Alternatives for employment and community-integrated daytime activities will be explored before segregated, facility-based adult day services are considered.
11. Involved family members and guardians of Embreeville residents, along with residents, will have substantial input into all decisions relating to their family members. Family
10

members will be provided with timely notification of significant decisions concerning medication,

i

treatment and placement.

B. Conditions of Care at the Enibreeviile Center

1. During ihe period in which 1MH!.>[CCVII'K- is being downsized and prepaied foi C'IOSUR-,

defendants will provide to Embreeviile residents appropriate care, habitation and education and

will protect residents from regression in skills, unreasonable risks to personal safety and/or

unreasonable risks of restraint.

2. Increased Habilitative and Behavioral Services

a. No later than 12 months from the date of execution of this Agreement, each

Embreeviile resident will be evaluated for and provided additional habilitative and behavioral

services, as determined necessary by the outside expert consultants described below. Defendants

will contract with persons or entities from the community who are experts in these areas. The

'

contract or contracts will include funding for expert consultant services and the staff necessary to

implement such programs. This program will be phased in according to the following schedule:

within 60 days, the 30 residents exhibiting the most serious maladaptive behaviors; within 120

days, the next 30 such residents, and every 30 days thereafter, 30 residents chosen by the

defendants until all residents have been assessed by the expert consultants. In order to fulfill

these requirements in the time frame enumerated above, the defendants will, in conjunction with

the outside expert consultants, develop, as determined necessary by the expert consultants,

implement, and review annually for each resident a professionally based habitation program that

provides for sufficient hours of training to enable full implementation of the habilitation program.

Each habilitation program will contain, at a minimum, habitation objectives that are: (i)

developed by an appropriately constituted IDT, (ii) stated separately, in terms of a sinule behavioral outcome, (in) assigned projected completion dates; (iv) expressed in behavioral terms that provide measurable indices of performance, (v) organized to reflect a developmental progression appropriate 10 the vev.deiu, (vi) ;issigned priorities, and (vii) based upon assessment and evaluations. In addition, defendants will encourage the outside expert consultants to consider and review the criteria for habilitation programs set forth in Appendix A to this Agreement.
b. Defendants will reasonably act to promptly and fully implement all recommendations of the outside expert consultants with respect to, inter alia, stafftraining and data collection.
c. Within 30 days of the completion of the habilitation programs and periodically thereafter, defendants will ensure that all staff directly responsible for implementation of a resident's habilitation program receive training on the elements of the habilitation program of each resident under their care, including target behaviors and appropriate responses thereto, and thereafter have such staff implement the habilitation program.
d. Within 30 days from the execution of this Agreement, defendants will implement procedures, if they have not already done so, to assess and evaluate each resident not less than once annually, and evaluate the data reflecting the conduct of each habilitation program not less than quarterly, in order to ascertain the adequacy and effectiveness of the habilitation program.
e. The Behavior Management Committee ("BMC"), membership of which will include, at a minimum, one representative each of Pennsylvania Protection &. Advocacy, Inc., the ARCPennsylvania and PIER and the resident's primary care physician, will review on a semi-annual basis those aspects of each resident's habilitation program relating to the resident's maladaptive behavior(s) and relevant progress notes for each resident: (1) who exhibits self-injurious behavior

or causes injury' to self or others through aggressive behavior and whose habilitation program

includes behavior modifying medication, or (2) who receives behavior modifying medication on an

J

emergency basis. In ail reviews conducted by the BMC pursuant to this paragraph, the BMC will

ascertain whether (i) there is sufficient behavioral data recorded, (2) such data are reliable, and

(3) the continuation of the current habilitation or treatment program is justified, or the program,

including medication, should be modified. Where inadequate or unreliable data are found, or the

continuation of the habilitation or treatment program is otherwise not justified, the matter will be

referred to the appropriate IDT which will, within 30 days from the referral, modify the existing

habilitation program as appropriate in accordance with the judgment of the resident's DDT and

outside expert consultants.

f. With regard to the review required under Subparagraph 2.e. above, where a habilitation

program includes the use of a behavior modifying medication, the BMC will consult with a

'

psychiatrist who will determine and specifically advise the BMC whether the proposed use of the

medication is supported by a diagnosis of mental illness (or other medical reason), whether the

diagnosis is justified by the resident's history as set forth in his/her written record, and whether the

medication and dosage are necessary and appropriate. In making these determinations, the

psychiatrist will have observed the resident, examined relevant portions of the resident's medical

and behavioral record, and consulted with the resident's primary care physician and psychologist.

g. Defendants will comply with all currently existing state laws and regulations regarding the use of behavior modification techniques.
h. Within 90 days from the execution of this Agreement, defendants will: (1) assess and evaluate, unless already assessed and evaluated, each resident who is Deaf or hearing impaired, to

13

determine his/her knowledge of sign language or capacity to learn sign language; (2) have at least one staff person capable of communicating in sign language \viih those individuals who use sign language on duty at Embreeville on a 24-hour basis; and, (3) for those residents determined to be capable ot learning sign language and who cannot otherwise communicate with staff, provide appropriate training to develop their sign language communication skills.
3. Medication a. Defendants will ensure that prescription medications are prescribed for and administered to residents pursuant to the exercise of judgment by a qualified professional and that they will not be used as punishment, in lieu of a habilitation program, or for the convenience of staff. In order to fulfill this requirement, defendants will:
(1) Within 90 days from the execution of this Agreement, initiate and implement a system which requires that every behavior program that utilizes behavior modifying medication specifies: (a) the behavior and/or symptom that requires initiation or use of the behavior modifying medication; and (b) the behaviors to be taught to the resident to replace the behavior that initiates the use of the behavior modifying medication or other program to reduce or eliminate, if appropriate, the use of the behavior modifying medication.
(2) Within 90 days from the execution of this Agreement, justify the use of the behavior modifying medication by written evidence in the resident's record that other, reasonable less restrictive techniques have been tried as part of a habilitation program and have been demonstrated to be ineffective.
b. Within 30 days from the execution of this Agreement, defendants will: (1) administer prescription medication only upon order of a physician and behavior modifying medication only

upon order of a physician after consultation with a psychiatrist, except in case of an emergency use of behavior modifying medication, in which case consultation must be had within 24 hours of the order being written; (2) establish procedures to review the drug regimen of each resident ever/ rnonih; f.Vi require that r.c prescription is valid for inors th?.n one month' (<)) h?.vc :> physician note in the record of each resident receiving behavior modifying medication the mental illness diagnosis or other medical reason for which the medication is prescribed and the justification for the dosage level; (5) evaluate each resident receiving behavior modifying medication for drug induced side effects, including tardive dyskinesia, kidney and liver dysfunction, and neuroleptic malignant syndrome, at professionally determined intervals; (6) permit to administer medication only those staff qualified under State law to do so; (7) record in each resident's record and report to appropriate professional staff any medication error or adverse drug reaction; (8) ensure that behavior modifying medications are prescribed or discontinued pursuant to professional judgment; (9) ensure that all residents with a seizure disorder are prescribed the fewest number of different medications appropriate for effective seizure management, consistent with professional judgment.
c. Within 30 days from the execution of this Agreement'-, a psychiatrist wall, upon request of the IDT or at the psychiatrist's own request, serve on the IDT of any resident whose individual plan of service includes the use of behavior modifying medication or for whom such has been recommended.
4. Medical Care a. Defendants will provide Embreeville residents with adequate medical care, Including adequate medical specialty services.

b. Primary care physicians at Embreeville will be responsible for and oversee the provision of coordinated health care for the residents for whom they are responsible. Primary care physicians will, in a timely manner: (1) conduct comprehensive evaluations of all residents for
whom they arc responsible, (2) cieiennine what speciiikzed medical services are lequiieu fu: liic
residents for whom they are responsible and ensure that such services are timely obtained, (3) review and respond to all recommendations of outside medical specialists and laboratory findings, documenting what action has been taken and the reasons therefor; and, (4) communicate directly with contract and other medical providers.
c. A registered nurse or physician will monitor infection control at Embreevilie. The registered nurse or physician will: (1) review all culture reports and physician orders for antibiotics; (2) review and assure the quality of management plans for infections occurring in individual residents or groups of residents; and, (3) develop comprehensive training materials and, thereafter, train the medical and direct care workers on proper infection management procedures.
d. Defendants will provide all staff physicians, registered nurses ("RNs"), licensed practical nurses ("LPNs"), and Nurse Supervisors, who regularly provide services on-grounds at Embreeville, with systematic,'periodic training in emergency procedures, including the proper way to administer cardio-pulmonary resuscitation Thereafter, defendants will evaluate the competence of all participating staff to perform emergency medical procedures that they are required bv law, policy, or professional standards to know, document such evaluations and provide such additional training as the evaluations indicate are necessary to ensure staff competence in emergency procedures.

e. Defendants will make medication and equipment to be used in case of emereency readily available to qualified staff in each residential unit. The functioning of all emergency equipment will be tested and documented at least weekly.
1. Defeiuuints will implement <•. uroiuco! requiring iimbieevilie stall to obtain from any acute care hospital a timely, comprehensive record of the diagnosis, course of treatment while at the hospital, and prescribed treatment for each Embreeville resident who may be transferred and treated at such hospital.
g. Defendants will ensure that all Embreeville residents receive adequate and timely dental care, including dental hygiene.
h. Within 120 days from the execution of this Agreement, neurologist(s) will examine each Embreeville resident receiving anti-convulsant medication who has not been examined by a neurologist in the 180 days prior to the execution of this Agreement to determine whether the medication treatment is justified. Thereafter, neurologists will evaluate and diagnose Embreeville residents who are referred to them by primary care physicians and: (1) examine, not less than once annually, and recommend treatment for residents receiving two or more anticonvulsant medications or who have had five or more seizures in the preceding 12-month period; (2) examine and recommend for treatment, with a frequency determined by their medical judgment, other residents receiving medication to control seizures; and, (3) recommend treatment for all residents who are diagnosed as having other neurologic disorders. In performing these duties, the neurologist(s) will confer with the referring primary care physician and, as appropriate, with the assigned psychiatrist and promptly record notes in the resident's medical records that reflect the neurological diagnosis, recommended course of treatment, and results.
i /

i. Upon the execution of this Agreement, defendants will, periodically but not less than once annually, use the services of expen medical specialists who will train Embreevilie primary care physicians and nursing staff in the diagnosis and treatment of medical problems typically associated with persons with developmental disabilities, including: (_1) neurologic disoi'deis, including seizures and specifically the prescription of medication to control seizures, (2) orthopedic and physiatric conditions, (3) gastroenterologic disorders and proper nutrition; and, (4) behavioral and psychiatric disorders, including the psychopharmacologic treatment of such disorders, and side effects of behavior modifying medication. Defendants will document that such training occurred, including maintaining a list of those in attendance as well as clinical areas covered.
j . Within 90 days from the execution of this Agreement, defendants will initiate regular, periodic training for all direct care workers on how to recognize seizures and the action to take in the event a resident has a seizure in their presence.
k. Within 90 days from the execution of this Agreement, defendants will initiate, as necessary, periodic training for physicians and nurses on the common side-effects of behavior modifying medication in use at the facility.
^ "PV1 y^ica! and OccuD^^ona! Theraov a. Within 120 days from the execution of this Agreement, each resident with orthopedic or neuromuscular disabilities will be reviewed or evaluated by a qualified physician to determine whether physical or occupational therapy services should be initiated, or whether an existing plan should be modified, to prevent contractures, physical degeneration, inappropriate body growth and/or deformity. Any resident identified as needing additional services will promptly be referred

to an appropriate, qualified registered physical therapist ("RPT") or licensed occupational therapist ("LOT"). Within 30 days of such referral, the RPT or LOT will assess and evaluate the resident and develop an individualized physical therapy, occupational therapy, or positioning plan, and thereafter, leview and modify, as necessary, any such plan. Such plans will identify ali assistive technology necessary to achieve proper body position, balance or alignment. The plan will specify the reason for each support, the situations in which each is to be applied, the schedule for the use of each support and the individuals responsible for applying the support in each situation. If there is a decision not to provide therapy to a particular resident, the basis for that decision will be documented. Physical or occupational therapy services will be implemented promptly after any physical therapy, occupational therapy, or positioning plan is developed and will be supervised by qualified physical or occupational therapy staff.
b. In addition to any assessments required by Subparagraph 5.a., within 120 days from the execution of this Agreement, ail residents who have or use wheelchairs will be reviewed or assessed by a RPT, LOT or outside consultant to determine the appropriateness and safety of their wheelchair and to determine what adaptations are necessary to enhance the resident's body position or alignment or minimize or prevent contractures, physical degeneration, inappropriate body growth and/or deformity.
c. Within 180 days from the execution of this Agreement, defendants will have a registered speech therapist who specializes in the diagnosis and treatment of feeding disorders review or assess each resident who has neuromuscular dysfunction, obstructive lesions, or other physical impairment, or psychological factors or a combination of two or more of these that interfere with eating, to determine whether to initiate a mealtime program or protocol for the
19

resident or to modify an existing one. Within 30 days of the assessment, the registered speech

therapist wiii develop a written meaiiime program for each of those residents for whom such a

1

need is identified, and thereafter review and modify, as necessary, the program Each such

progiam wili be implemented by qualified staff not later than 30 clays thereafter.

d. Within 90 days from the execution of this Agreement, defendants will initiate regular,

inservice training for direct care workers in how to position physically handicapped residents in

wheelchairs and other devices, transfer them from one place or position to another, and implement

such aspects of residents' physical therapy or occupational therapy programs that such staff are

otherwise qualified and expected to do. Such training will be conducted by RPTs or LOTs.

e. Within 90 days from the execution of this Agreement, defendants will provide regular

periodic inservice training for direct care workers on proper methods of feeding residents who

have mealtime programs and proper positioning during meals or snacks. Such training must be

'

conducted by registered speech therapists, LOTs or other qualified professionals who specialize in

the treatment of feeding disorders.

f. Within 90 days from the execution of this Agreement, defendants will retain an

orthopedist(s) or physiatrist(s) for up to 32 hours to identify' residents of Hilltop and

Meadowview Building who need further assessment for medical, surgical, rehabilitative, or

therapeutic services, including therapeutic equipment, to minimize or prevent contracture,

physical degeneration, or inappropriate body growth and deformity. All residents so identified

will receive timely assessments by an orthopedist or physiatrist. Thereafter, orthopedist(s) and

physiatrist(s) will: (1) timely evaluate and diagnose and treat Embreeville residents who are

referred to them by primary care physicians; (2) reexamine and treat, with a frequency determined

by their professional judgment, residents with physical handicaps, especially chronic physical

j

handicaps such as contractures and scoiiosis; (3) confer with the referring primary care physician

'

on a regular basis, and, (4) promptly record progress notes in the residents' medical records

explaining fully the result of tin; examination, the diagnosis, the recommended course of

treatment or recommendation not to treat.

g. Defendants will ensure that Embreeville residents receive all medically necessary

assistive technology to achieve proper body position, balance or alignment or to minimize or

prevent contracture, physical degeneration, or inappropriate body growth and deformity, and that

all such equipment or technology is properly and safely applied.

h. Any assistive technology specifically designed and provided for a resident will

accompany that resident upon his/her placement in the community.

6. Staffing

*

a. Within 90 days from the execution of this Agreement, defendants will hire to work at

I

Embreeville all staff necessary to implement the provisions of this Agreement.

b. In no event will direct care staffing at Embreeville be less than is necessary to

ensure the consistent maintenance of direct care staff to resident ratios (on duty) of:

Day shift

1:4

Evening Shift

1:4

Night Shift

1:8

c. Defendants will maintain current staff to resident ratios for primary care physicians and

registered and licensed practical nurses.

21

d. Defendants will employ or contract for at least one psychologist possessing a doctorate in psychology and with demonstrated experience in the field of behavioral psychology, licensed or certified by the Commonwealth, who wili have primary' responsibility for providing professional supervision, inoniionng, and coordination of ali psychological sei vices at Hmbreeville.
e. Defendants will maintain at least the current staff to resident ratios for physical therapy staff, and defendants will ensure that at least one third of physical therapy staff are RPTs, either through employment or contracts.
f. Defendants will, either through employment or contracts, increase current occupational therapy staff by one LOT and will thereafter maintain the occupational therapy staff to resident ratio at that increased level.
g. Within 120 days from the execution of this Agreement, a psychiatrist will conduct an in-person evaluation and record review of every resident currently receiving psychotropic medication, other than residents who have been so evaluated within the past six months. The evaluation will include, inter alia, a decision as to the frequency with which the resident should be reevaluated by the psychiatrist. Defendants will carry out the recommendations of the psychiatrist with respect to frequency of future evaluations. Defendants will retain sufficient psychiatric services to fully implement the recommendations of the psychiatrist.
h. Staff whose primary responsibilities are administrative and who do not provide direct service to residents on a regular, routine basis and staff who are assigned to perform one-to-one monitoring of a resident will not be counted in computing the above ratios.
i. Direct care workers will not routinely perform such support functions as housekeeping, laundry, maintenance and meal preparation, where the performance of said functions will preclude
22

or interfere with the direct care workers' primary' responsibilities to supervise and care for recipients. This wiii not preclude direct care workers from training residents in these functions pursuant to a written habilitation program developed in accordance with established procedures.
C. lAJiiiiiLions of Care m the Community
1. Embreeville residents will receive appropriate care and habilitation in community based settings, and will be protected from unreasonable risks to personal safety, unreasonable restraint and, where possible, regression in self care skills.
2. Prior to the movement of any resident to the community an individual transition plan will be developed through the person centered planning process. This plan will comport with current accepted professional standards and reflect a preference for normalized services. Within six months after the resident's placement in the community and annually thereafter, the team will develop an individual habilitation plan that meets the same standards.
3. The Monitor will review each placement plan for each resident prior to the resident being discharged to ensure that no Embreeville resident will be placed in the community until the Monitor is assured that all necessary services and support have been arranged and are ready to be provided in the community.
a. Each former Embreeville resident will have a designated service coordinator in the community. This individual will be from the resident's county of choice and will coordinate the development and regular review of the person-centered plan and monitors and assures its implementation. Service coordinators may not have any direct affiliation with any agency that provides mental health/mental retardation services. In each county, there will be no fewer than
23

one service coordinator per 35 residents. Individual counties with better current ratios must

,'

maintain them. The service coordinator will regularly visit the resident at his or her home and at

the resident's job or daytime activity.

b. Each resident will have an Interdisciplinary Team ("IDT") in ihe community, including,

at a minimum, the resident, involved family members, the resident's service coordinator, persons

with expertise in the services and support desired and needed by the resident and ail persons

needed to make appropriate professional decisions regarding the resident's care, habitation and

education.

5. Service Coordinator Training

Each service coordinator will participate in pre-service and on-going training in person-

centered planning and service delivery. The training curriculum will be that developed and

currently used in the Southeast Region, as modified from time to time.

6. Service Providers
t
a. Embreeville residents and their families will be provided with reasonable opportunities

for choice of service provider and service coordinator, both initially (in planning for discharge

from Embreeville) and on a regular basis thereafter.

b. No Embreeville resident will be placed in a community home that houses in total more

than three individuals with disabilities, unless the resident, his/her family, or the Office of Mental

Retardation can show the Monitor that an alternative placement would better meet the resident's

individual needs. Defendants agree to provide technical assistance to counties to support the

development of new agencies, subject to the availability of adequate staff.

7. Safety Net of Emergency Services a. Embreevilie residents who are placed into the community under the terms of this Agreement will be provided with the necessary supervision, habilitation, behavioral services. medical and psychiatric services necessary to ensure a successful placement. Embreeviile residents who need such services after placement in the community are entitled to receive them under this Agreement. b. The Court Monitor will, in the course of reviewing and approving placements under this Agreement, ensure that the placement includes, for all residents who need them, actual access to behavioral, medical and psychiatric services in the community. In this context, "actual access" means that a person or entity is actually in place and has agreed to provide the relevant service. The Monitor will also ensure that copies of all medical records and case histories are transferred to the custody of the service provider at the time of placement. c. Emergency backup behavioral and support services will be provided for Embreeville residents who are transferred to the community. Embreeville residents who are transferred to the community will have access to backup behavioral services and respite care in the event that the residential provide: is unable to successfully provide such services. d. Under no circumstances will Embreeville residents be placed into public or private psychiatric hospitals because they exhibit behavior problems in the community. Under such circumstances, the resident is entitled to habilitation in the community, emergency behavioral services under Subparagraph 7.c, and respite placement. Psychiatric services, if necessary, will be provided in the community and not in a state mental hospital. In the event an Embreeville

resident has severe mental illness requiring a psychiatric hospitalization, an Embreeviiie resident may be admitted or committed to a community psychiatric facility. Any subsequent placement to a state psychiatric hospital may occur only with the approval of the Monitor.

e. It, in liie opinion oi the resident oi then relative, guardian or advocate, an Linbreevilie resident's placement is not successful in that appropriate supervision or habilitation is not being provided, the Monitor will review the placement, and direct such changes as necessary, including but not limited to: additional supervision or habilitation; increased monitoring; or transfer to a new program which would provide a more safe and secure environment.
8. Quality Assurance

a. Defendants will fund and assist in the establishment of County Consumer/Family Satisfaction Teams in Philadelphia and Delaware Counties. The Teams will monitor the care and services being provided to Embreeviiie residents.
1. The teams will operate under the authority of a County MH/MR Advisory

Board.

2. The teams will have direct access to Embreeviiie residents and their families

whose participation will be voluntary. The majority of team members wiii be consumers or family

members.

3. All team monitoring results and findings will be provided directly to the

MH/MR Administrator for any necessary action.

b. The parties will jointly establish a grievance system in which residents, parents,

guardians or other advocates may file grievances with the State or County regarding the care,

treatment or services being provided to any Embreeviiie resident. These grievances will be heard

z c

within 14 days by an arbitrator selected by the complaining party from a list of potential arbitrators, all of whom will be independent, free of conflict of interest and mutually agreed upon by the parties. The complaining party and defendants will be given the opportunity to present any witnesses, documents or other evidence relating to tiie grievance to the arbitrator. The arbitrator will reach a decision regarding the merits of the grievance and any remedial action within 7 days. Defendants will comply with the arbitrator's decision. In exercising their rights under this paragraph, complainants will not be deemed to have waived their right to other administrative or judicial processes or remedies, nor will individuals be required to file a grievance before availing themselves of any other administrative or judicial process or remedy.
IV. MONITORING COMPLIANCE WITH THE PROVISIONS OF THE SETTLEMENT AGREEMENT. In monitoring defendants' compliance with the terms and provisions of this Agreement, the parties agree to the following: A. The parties will jointly select a Monitor to preside over issues regarding compliance with this Agreement and will jointly move the Court to appoint the Monitor for this purpose and to advise the parties regarding the status of compliance. The parties will also jointly select a panel of experts in the areas of medicine, psychology, physical and occupational therapy and psychiatry for the individuals with developmental disabilities ("Expert Panel") to assist and advise the Monitor upon his or her request as to the applicable professional standards for purposes of determining compliance. Before making any such request, the Monitor will consuk with defendants to determine whether existing resources will provide the requisite information or whether the issue can be resolved without resort to the Expert Panel.
27

B. The documented and reasonable fees, costs and expenses of the Monitor and of the

/

Expert Panel described above will be borne by the defendants. The parties believe that an initial

budget of 5110,000 per year will be sufficient to pay these expenses. In the event that such

funding is not sufficient to comply with the icquiicincnus o! this agreement, Ihc panics will

negotiate in good faith to resolve the issue. In addition to this budget, the defendants will supply

the Monitor with office space, telephone, copying and computer resources at Embreeville.

C. In addition to the duties, responsibilities and powers set forth above in this Agreement, the Monitor will have the following additional duties, responsibilities, and powers:
1. The Monitor will evaluate defendants' compliance with all aspects of this Agreement, and will submit regular reports to the parties as to the status of defendants' compliance. The Monitor will make recommendations to the parties regarding means of effectuating compliance.
2. The Monitor will attempt to resolve disputes between the parties and will make findings of fact regarding any dispute brought before him/her.

3. The Monitor will have the power to obtain any information, records and/or

documentation pertaining to this Agreement and visit any site related to this Agreement.

4. The Monitor will investigate and repon on allegations of abuse or neglect of individual

residents. V. TERMINATION AND ENFORCEMENT OF THIS AGREEMENT A. The Court will retain jurisdiction over this Agreement until its termination by the

Court

B. This Agreement will extend at least until 12 months after the placement of the last

resident from Embreeville into the community, at which time the Court wall hold a hearing to

determine whether the Agreement will be terminated. At the termination hearing, the Court will hear testimony and argument from the Monitor, Expert Panel and parties as set forth below. At the termination hearing, the opinion of the Monitor and Expert Panel as to defendants' compliance will be accorded a rebuttable presumption by the Court. At the termination hearing, the parties may present evidence relevant to defendants' compliance with the Agreement. If the Court concludes that defendants have substantially complied with all requirements of this Agreement, it will terminate the Agreement.
C. Eight months after the last Embreeville resident has been placed into the community, the Monitor and Expert Panel will conduct a full review of all aspects of defendants' compliance with the terms of this Agreement and will submit a report to the Court and the parties as to their findings concerning compliance no later than one month prior to the termination hearing. Defendants will correct all deficiencies noted by the Expert Panel. The Monitor and Expert Panel's review of compliance will be based on a 20% sample of Embreeville residents, unless they determine that a larger sample is necessary to make their determination of compliance. No party will challenge the Monitor and Panel's conclusions on the basis of sample size.

D. This Court will have continuing jurisdiction over claims for specific performance of this agreement. In the event that any plaintiff concludes that the defendants have failed to perform his or her obligations under this agreement, that plaintiff \viil provide defense counsel with written notice of that concern. The parties will then confer and attempt to resolve the asserted probleesm. In the event that the issue has not been resolved to the satisfaction of the plaintiff, the plaintiff may seek specific performance of this agreement from this Court.
E. The parties reserve the right to withdraw their consent to this Agreement in the event that this Agreement is not approved by the Court in its entirety. AGREED TO BY THE UNDERSIGNED:

DEVAL L. PATRICK Assistant Attorney General Department of Justice Civil Rights Division
AURTHURE. PEABODY, JR. Chief Special Litigation Section Civil Rights Division

(^DMOND A. TIRY^K, ESQUIRE

Counsel for PIER//

Suite 1100

r

The Curtis Center

601 Walnut Street

Philadelphia, PA 19106

\u.
ILENE W. SHANE, ESQUIRE MARK J. MURPHY Disabilities Law Project SOI Arch Street, Suite 610 Philadelphia, PA 19107 Counsel for Nelson Plaintiffs (215)238-8070

3 0

PAMELA K. CHEN Trial Attorney U.S. Dept of Justice Special Litigation Section P.O. Box 66400 Washington, D.C. 20035-6400 (202)514-6261

y

Cl

JUDITH A. GRAN, ESQUIRE

Public Interest Law Center

125 South 9th Street, Ste 700

Philadelphia, PA 19107

(215)627-7100

Counsel for Nelson Plaintiffs

MARK MASLING \
Trial Attorney U.S. Dept. of Justice Speical Litigation Section P.O. Box 66400 Washington, DC 20035-6400 (202) 514-6252
SO ORDERED, this 3Q day of

THOMAS B.YORK ^ Counsel for Defendants Eckert, Seamans, Cherin
& Mellotte One S. Market Square Build. 213 Market'Street Harrisburg,PA1710S (717)237-6000
/

Clarence C. Newcomer.lJ. 31

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

PEOPLE INTERESTED IN EMBREEVILLE RESIDENTS,
Plaintiff-Intervenors

) ) Civil Action No ) 93-CV-2094
)

v.

)

)

COMMONWEALTH OF PENNSYLVANIA;

)

ROBERT CASEY, Governor of the Commonwealth )

of Pennsylvania; KAREN SNIDER

)

Secretary, Department of Public

)

Welfare; NANCY THALER, Deputy

)

Secretary for Mental Retardation;

)

WILLIAM SNAUFFER, Director,

)

Embreeville Center,

)

)

Defendants.

)

)

HARRY NELSON, by and through his

)

next friend, Yvonne M. Husic;

)

RICHARD CINQUINA, by and through his

)

next friend, Kevin T. Casey; RALPH

)

GIPE, by and through his next friend,

)

Kevin T. Casey; CHARLIE KRAUT, by and

)

through his next friend, Robert M.

)

Currier; GERALDINE GLENNON, by and

)

through his next friend, Jerome

)

Ianuzzi; and EDWIN MATTIA, by and

)

through next friend, Carole Ianuzzi,

)

on behalf of themselves and all

)

others similarly situated;

)

PENNSYLVANIA PROTECTION &

)

ADVOCACY,

)

INC.; and THE ARC-PENNSYLVANIA,

)

)

Plaintiffs,

)

v.

KAREN F. SNIDER, Secretary, Pennsylvania Department of Public Welfare; NANCY THALER, Deputy Secretary for Mental Retardation, Pennsylvania Department of Public Welfare; and WILLIAM SNAUFFER, Facility Director of Embreeville Center, in their individual and official capacities,
Defendants.

)

Class Action

)

)

)

)

)

)

)

)

) )

SETTLEMENT AGREEMENT

INTRODUCTION

1. These cases were instituted, respectively, by the United States on April 21, 1993,

pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. Section 1997 et se£., and

by the plaintiffs in Civil Action No. 94-CV-440 on January 24, 1994.

2. This Court has jurisdiction over these actions pursuant to 28 U.S.C. Sections 1331,

1343 and 1345.

3. Venue is appropriate pursuant to 28 U.S.C. Section 1391(b).

4. The United States is authorized to institute this civil action by 42 U.S.C. Section

1997a.

5. The plaintiffs in Civil Action No. 93-CV-2094 are the United States of America and

Persons Interested in Embreeville Residents ("PIER"). The plaintiffs in Civil Action No. 94-CV-

440 are: Embreeville residents Harry Nelson, Richard Cinquina, Ralph Gipe, Charlie Kraut,

Geraldine Glennon and Edwin Mattia, all other similarly situated Embreeville residents, the

Pennsylvania Protection & Advocacy, Inc. and the Arc-Pennsylvania. The parties stipulate that

Civil Action No. 94-CV-440 is a class action and that the class consists of any individual who is an Embreeville resident, as defined herein.
6. The defendants in Civil Action No. 93-CV-2094 are: the Commonwealth of Pennsylvania; Robert Casey, Governor of the Commonwealth of Pennsylvania; Karen Snider, Secretary of the Pennsylvania Department of Public Welfare ("DPW"); Nancy Thaler, Deputy Secretary of Mental Retardation, DPW; and William Snauffer, Director of the Embreeville Center ("Embreeville"). The defendants in Civil Action No. 93-CV-2094 are sued in their respective official capacities. Mss. Snider and Thaler and Mr. Snauffer are also the defendants in Civil Action No. 94-CV-440, in which they are being sued in their respective individual and official capacities.
7. The individual defendants who are officers of the Executive Branch of the Commonwealth of Pennsylvania have authority and responsibility for the operation of Embreeville.
I. GENERAL PROVISIONS A. The parties agree that the care, conditions of confinement and habilitation of Embreeville residents implicate rights of these residents that are secured or protected by the Constitution of the United States. The parties entering into this Agreement recognize these constitutional interests and, for the purpose of avoiding protracted and adversarial litigation, agree to the provisions set forth herein. By executing this agreement, defendants do not recognize a constitutional right to community placements. B. This Agreement applies to all individuals residing at the Embreeville Center any time between April 21, 1992 and the termination of this Agreement. In addition, those non-

Embreeville residents who will be provided new or improved services under this agreement will have the right under this agreement to utilize the grievance procedures set forth herein, and the quality assurance provisions will apply to them as well. Within 60 days of the execution of this Agreement, defendants will produce to plaintiffs and the Monitor, appointed pursuant to Section IV, Par. A of this Agreement, a list of all Embreeville residents and their current places of residence. Plaintiffs will have 30 days in which to submit to the Monitor any additional names to the list. The Monitor will determine the final list within 30 days.
C. Defendants will condition the disbursement of funds to the Counties for operation of community homes and other community services relating to this Agreement, upon the requirement that the Counties comply with the terms in this Agreement. Defendants will allocate funds to Embreeville residents' county of choice necessary to develop and provide the services and support needed by these residents. Additional state funds will be allocated to participating counties equal to the amount of state funds allocated for residents of Embreeville. These funds are to support unserved and underserved people.
D. Defendants will provide the services required under this Agreement for as long as they are required by the Embreeville residents. Defendants will not reduce services to the residents, unless they no longer require these services or the same level of services, as determined by each resident's Interdisciplinary Team ("IDT").
E. In entering into this Agreement, defendants do not admit any violation of law, and this Agreement may not be used as evidence of liability in any other legal proceeding. Any terms of this Agreement specifically apply only to the factual circumstances of Embreeville. The parties acknowledge that any terms of this Agreement do not apply to other facilities for the

developmentally disabled in Pennsylvania. The parties agree not to use this Agreement in any matter unrelated to this case to argue that any party has conceded that any particular action must be taken at any other facility or institution.
F. Any violation of provisions of this Agreement does not create a private right of action. This Agreement is enforceable only by the parties.
G. The provisions of this Agreement are a lawful, fair and reasonable resolution of this case.
H. This Agreement will be applicable to and binding upon all of the parties in their official capacities, and their officers, agents, employees, assigns and successors.
I. During the term of this agreement, upon no less than 48 hours notice to the Embreeville Director, plaintiffs' counsel and such experts as they choose, will be permitted reasonable access to the records, residents and employees of Embreeville and the places in which the residents reside, work or attend work programs. Plaintiffs will minimize any disruption to the persons, sites and programs they visit. Nothing in this paragraph alters the access rights of Pennsylvania Protection & Advocacy, Inc. or its subcontractors under federal law or state policy. The costs and fees of plaintiffs' counsel and any expert(s) retained by counsel will be borne by plaintiffs for the activities set forth in this paragraph.
II. DEFINITIONS As used in this Agreement, the following definitions will apply: A. "Assistive technology": External devices used by and for individuals with developmental and other physical disabilities to enhance and increase independence, mobility, communication, environmental control and choice, which includes therapeutic equipment designed

to minimize or prevent contractures, physical degeneration, inappropriate body growth and/or deformity, including, but not limited to, wheelchairs.
B. "Advocate": Persons who are acting on behalf of an Embreeville resident covered by this Agreement, or, if the resident is unable to give consent, with the consent of the Monitor.
C. "Behavior Modifying Medications": Drugs which are prescribed or administered for the purpose of modifying behavior. Included are the major and minor tranquilizers and antidepressants when prescribed or administered for the purpose of modifying behavior. Excluded are drugs that may have behavior modifying effects such as anti-convulsant medications, unless they are prescribed or administered for the purpose of modifying behavior.
D. "Community Homes": A range of living arrangements in typical family scale homes in the community with support, supervision, and habilitation, as determined by the person-centered planning process. Personal care boarding homes, as defined by Pennsylvania law, are specifically excluded from this definition, unless approved by the resident, the resident's family or guardian, the resident's advocate, if any, and the Monitor.
E. "County of Choice": The county in which an Embreeville resident has chosen to live. F. "Direct Care Worker": Staff immediately responsible for implementing an Embreeville resident's habilitation program and providing care to residents. G. "Functional Analysis": An assessment of a resident's maladaptive behavior, if any, which includes, at a minimum: (1) a description of the behavior(s); (2) an assessment of behavioral intensity, frequency, topography and duration; (3) as determined to be necessary by professional judgment, an evaluation of the antecedents, function and consequences of the

behavior(s); and (4) as determined to be necessary by professional judgment, an assessment of any medical conditions related to the behavior(s).
H. "Habitation Program": A program or schedule of steps and activities, including behavior management, designed by qualified professionals to promote acquisition of pro-social, adaptive and self-care skills, prevent regression in those skills already possessed by the resident and/or teach those skills necessary to protect a resident from unreasonable risks to personal safety and to facilitate his or her ability to function free from undue restraints and from unreasonable use of behavior modifying medications.
I. "Physician": A medical doctor lawfully entitled to practice medicine in Pennsylvania. J. "Psychiatrist": A physician who either is certified by or is eligible for certification by the American Board of Psychiatry and Neurology or who has successfully completed an approved residency program in psychiatry and upon completion of post-residency requirements will become eligible for examination for such certification. K. "Resident" or "Embreeville resident": Any person who has resided at Embreeville for any length of time since April 21, 1992. HI. REMEDIAL MEASURES A. Closure of the Embreeville Center 1. Defendants intend to cease operating Embreeville as a facility for individuals with developmental disabilities once all residents have been placed out of the facility. The anticipated closure date is September 30, 1997.

2a. Defendants will place 57 residents into community homes by June 30, 1995. Defendants plan to place at least one half of the remaining residents into community homes by June 30, 1996 and the other half of the remaining residents by June 30, 1997.
2b. If, for any reason, the defendants determine that they will not be able to make the FY95-96 or FY96-97 placements, they will, within five days of such determination, notify the Court and the parties in writing. In the event that the defendants, for any reason, do not make the FY 95-96 or FY 96-97 placements, the United States and the other plaintiffs will have the right to petition the Court for such placements. In the event that further litigation is necessary regarding the issue of community placements, all of the duties of the defendants set forth in this agreement remain in full force and effect.
3. No resident will be placed in an inappropriate or temporary placement in order to meet the deadlines set forth in Subparagraph A.2a. above. No person will be placed in any type of community home other than that determined by the person-centered planning process. The Monitor must approve any placement of a resident in a nursing home.
4. Within 90 days of execution of this Agreement, defendants will, with input from the plaintiffs, prepare and submit to the Monitor a Plan of Implementation for this entire Agreement, including all steps that must be taken to achieve each phase of implementation and compliance by the prescribed dates, the corresponding deadlines for each of these steps and the person responsible for ensuring that each step is accomplished. This plan will be the foundation of the regular meetings of the parties described infra, and the parties will reasonably work together to refine and improve the plan to the extent necessary as the implementation of the agreement progresses. Defendants will implement the plan with the agreed upon refinements.

5. Commencing 90 days after execution of this Agreement, and every month thereafter, defendants and no more than two representatives of each plaintiff party, if they choose, will meet to review the status of implementation of the Plan.
6. Defendants closed admissions to Embreeville Center in 1991 and will not admit any individual into the facility hereafter. Defendants will not admit Embreeville residents to any other state center for individuals with developmental disabilities; however, residents may be readmitted to Embreeville for a period up to 60 days if the resident is required to leave his/her current placement and another appropriate placement does not exist or is not available at that time.
7. Defendants will cease to operate Embreeville as a facility for the developmentally disabled once all residents have been placed out of the facility.
8. All placements of Embreeville residents will be made pursuant to person-centered planning. The person-centered planning process will be directed by the resident and any involved family member, guardian, friend, or advocate, coordinated with the service manager from the resident's county of choice, and include a team of professionals who are reflective of the supports and services needed by the resident. The person-centered planning process will include a written plan containing a detailed description of the types and levels of supports and services necessary for the resident to achieve successful inclusion in the community of his/her choice.
9. In addition to the process for person-centered planning described in Subparagraph A.8 above, the following requirements will apply to the person-center planning process used at Embreeville and the placement of Embreeville residents:
a. The community in which the Embreeville resident wishes to live after discharge will be identified through the person-centered planning process. If that process results in a choice of a

county other than his county of origin, defendants will respect that choice except when the county chosen is unwilling to provide the services in a reasonable manner.
b. Embreeville residents will be informed of their right to choice in the person-centered planning process and their right to request the participation in the person-centered planning process of any individuals they choose.
c. Defendants will provide training to all members of the IDTs in the person-centered planning process and in methods for eliciting active involvement in the process of persons who use services and their families.
d. Defendants will encourage and assist the Counties in developing systems that allow for consumer control of resources. In compliance with Medicaid waiver provisions, defendants will offer to every Embreeville resident and his/her family the option to use consumer controlled resources in securing the services needed by the resident in the community. No resident's use of such options will reduce or alter services to another resident or result in a reduction of service to that resident without his or her consent.
10. All Embreeville residents who move to the community and wish to work in community-integrated employment will be afforded a reasonable opportunity and the reasonable support to do so. Other community-integrated daytime activities will be developed and provided. Alternatives for employment and community-integrated daytime activities will be explored before segregated, facility-based adult day services are considered.
11. Involved family members and guardians of Embreeville residents, along with residents, will have substantial input into all decisions relating to their family members. Family
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members will be provided with timely notification of significant decisions concerning medication, treatment and placement.
B. Conditions of Care at the Embreeville Center 1. During the period in which Embreeville is being downsized and prepared for closure, defendants will provide to Embreeville residents appropriate care, habilitation and education and will protect residents from regression in skills, unreasonable risks to personal safety and/or unreasonable risks of restraint. 2. Increased Habilitative and Behavioral Services a. No later than 12 months from the date of execution of this Agreement, each Embreeville resident will be evaluated for and provided additional habilitative and behavioral services, as determined necessary by the outside expert consultants described below. Defendants will contract with persons or entities from the community who are experts in these areas. The contract or contracts will include funding for expert consultant services and the staff necessary to implement such programs. This program will be phased in according to the following schedule: within 60 days, the 30 residents exhibiting the most serious maladaptive behaviors; within 120 days, the next 30 such residents; and every 30 days thereafter, 30 residents chosen by the defendants until all residents have been assessed by the expert consultants. In order to fulfill these requirements in the time frame enumerated above, the defendants will, in conjunction with the outside expert consultants, develop, as determined necessary by the expert consultants, implement, and review annually for each resident a professionally based habilitation program that provides for sufficient hours of training to enable full implementation of the habilitation program. Each habilitation program will contain, at a minimum, habilitation objectives that are: (i)
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developed by an appropriately constituted IDT; (ii) stated separately, in terms of a single behavioral outcome; (iii) assigned projected completion dates; (iv) expressed in behavioral terms that provide measurable indices of performance; (v) organized to reflect a developmental progression appropriate to the resident; (vi) assigned priorities; and (vii) based upon assessments and evaluations. In addition, defendants will encourage the outside expert consultants to consider and review the criteria for habilitation programs set forth in Appendix A to this Agreement.
b. Defendants will reasonably act to promptly and fully implement all recommendations of the outside expert consultants with respect to, inter alia, staff training and data collection.
c. Within 30 days of the completion of the habilitation programs and periodically thereafter, defendants will ensure that all staff directly responsible for implementation of a resident's habilitation program receive training on the elements of the habilitation program of each resident under their care, including target behaviors and appropriate responses thereto, and thereafter have such staff implement the habilitation program.
d. Within 30 days from the execution of this Agreement, defendants will implement procedures, if they have not already done so, to assess and evaluate each resident not less than once annually, and evaluate the data reflecting the conduct of each habilitation program not less than quarterly, in order to ascertain the adequacy and effectiveness of the habilitation program.
e. The Behavior Management Committee ("BMC"), membership of which will include, at a minimum, one representative each of Pennsylvania Protection & Advocacy, Inc., the ARCPennsylvania and PIER and the resident's primary care physician, will review on a semi-annual basis those aspects of each resident's habilitation program relating to the resident's maladaptive behavior(s) and relevant progress notes for each resident: (1) who exhibits self-injurious behavior
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or causes injury to self or others through aggressive behavior and whose habilitation program includes behavior modifying medication, or (2) who receives behavior modifying medication on an emergency basis. In all reviews conducted by the BMC pursuant to this paragraph, the BMC will ascertain whether (1) there is sufficient behavioral data recorded, (2) such data are reliable, and (3) the continuation of the current habilitation or treatment program is justified, or the program, including medication, should be modified. Where inadequate or unreliable data are found, or the continuation of the habilitation or treatment program is otherwise not justified, the matter will be referred to the appropriate IDT which will, within 30 days from the referral, modify the existing habilitation program as appropriate in accordance with the judgment of the resident's IDT and outside expert consultants.
f. With regard to the review required under Subparagraph 2.e. above, where a habilitation program includes the use of a behavior modifying medication, the BMC will consult with a psychiatrist who will determine and specifically advise the BMC whether the proposed use of the medication is supported by a diagnosis of mental illness (or other medical reason), whether the diagnosis is justified by the resident's history as set forth in his/her written record, and whether the medication and dosage are necessary and appropriate. In making these determinations, the psychiatrist will have observed the resident, examined relevant portions of the resident's medical and behavioral record, and consulted with the resident's primary care physician and psychologist.
g. Defendants will comply with all currently existing state laws and regulations regarding the use of behavior modification techniques.
h. Within 90 days from the execution of this Agreement, defendants will: (1) assess and evaluate, unless already assessed and evaluated, each resident who is Deaf or hearing impaired, to
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determine his/her knowledge of sign language or capacity to learn sign language; (2) have at least one staff person capable of communicating in sign language with those individuals who use sign language on duty at Embreeville on a 24-hour basis; and, (3) for those residents determined to be capable of learning sign language and who cannot otherwise communicate with staff, provide appropriate training to develop their sign language communication skills.
3. Medication a. Defendants will ensure that prescription medications are prescribed for and administered to residents pursuant to the exercise of judgment by a qualified professional and that they will not be used as punishment, in lieu of a habilitation program, or for the convenience of staff. In order to fulfill this requirement, defendants will:
(1) Within 90 days from the execution of this Agreement, initiate and implement a system which requires that every behavior program that utilizes behavior modifying medication specifies: (a) the behavior and/or symptom that requires initiation or use of the behavior modifying medication; and (b) the behaviors to be taught to the resident to replace the behavior that initiates the use of the behavior modifying medication or other program to reduce or eliminate, if appropriate, the use of the behavior modifying medication.
(2) Within 90 days from the execution of this Agreement, justify the use of the behavior modifying medication by written evidence in the resident's record that other, reasonable less restrictive techniques have been tried as part of a habilitation program and have been demonstrated to be ineffective.
b. Within 30 days from the execution of this Agreement, defendants will: (1) administer prescription medication only upon order of a physician and behavior modifying medication only
14

upon order of a physician after consultation with a psychiatrist, except in case of an emergency use of behavior modifying medication, in which case consultation must be had within 24 hours of the order being written; (2) establish procedures to review the drug regimen of each resident every month; (3) require that no prescription is valid for more than one month; (4) have a physician note in the record of each resident receiving behavior modifying medication the mental illness diagnosis or other medical reason for which the medication is prescribed and the justification for the dosage level; (5) evaluate each resident receiving behavior modifying medication for drug induced side effects, including tardive dyskinesia, kidney and liver dysfunction, and neuroleptic malignant syndrome, at professionally determined intervals; (6) permit to administer medication only those staff qualified under State law to do so; (7) record in each resident's record and report to appropriate professional staff any medication error or adverse drug reaction; (8) ensure that behavior modifying medications are prescribed or discontinued pursuant to professional judgment; (9) ensure that all residents with a seizure disorder are prescribed the fewest number of different medications appropriate for effective seizure management, consistent with professional judgment.
c. Within 30 days from the execution of this Agreement, a psychiatrist will, upon request of the IDT or at the psychiatrist's own request, serve on the IDT of any resident whose individual plan of service includes the use of behavior modifying medication or for whom such has been recommended.
4. Medical Care a. Defendants will provide Embreeville residents with adequate medical care, including adequate medical specialty services.
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b. Primary care physicians at Embreeville will be responsible for and oversee the provision of coordinated health care for the residents for whom they are responsible. Primary care physicians will, in a timely manner: (1) conduct comprehensive evaluations of all residents for whom they are responsible; (2) determine what specialized medical services are required for the residents for whom they are responsible and ensure that such services are timely obtained; (3) review and respond to all recommendations of outside medical specialists and laboratory findings, documenting what action has been taken and the reasons therefor; and, (4) communicate directly with contract and other medical providers.
c. A registered nurse or physician will monitor infection control at Embreeville. The registered nurse or physician will: (1) review all culture reports and physician orders for antibiotics; (2) review and assure the quality of management plans for infections occurring in individual residents or groups of residents; and, (3) develop comprehensive training materials and, thereafter, train the medical and direct care workers on proper infection management procedures.
d. Defendants will provide all staff physicians, registered nurses ("RNs"), licensed practical nurses ("LPNs"), and Nurse Supervisors, who regularly provide services on-grounds at Embreeville, with systematic, periodic training in emergency procedures, including the proper way to administer cardio-pulmonary resuscitation. Thereafter, defendants will evaluate the competence of all participating staff to perform emergency medical procedures that they are required by law, policy, or professional standards to know, document such evaluations and provide such additional training as the evaluations indicate are necessary to ensure staff competence in emergency procedures.
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e. Defendants will make medication and equipment to be used in case of emergency readily available to qualified staff in each residential unit. The functioning of all emergency equipment will be tested and documented at least weekly.
f. Defendants will implement a protocol requiring Embreeville staff to obtain from any acute care hospital a timely, comprehensive record of the diagnosis, course of treatment while at the hospital, and prescribed treatment for each Embreeville resident who may be transferred and treated at such hospital.
g. Defendants will ensure that all Embreeville residents receive adequate and timely dental care, including dental hygiene.
h. Within 120 days from the execution of this Agreement, neurologist(s) will examine each Embreeville resident receiving anti-convulsant medication who has not been examined by a neurologist in the 180 days prior to the execution of this Agreement to determine whether the medication treatment is justified. Thereafter, neurologists will evaluate and diagnose Embreeville residents who are referred to them by primary care physicians and: (1) examine, not less than once annually, and recommend treatment for residents receiving two or more anticonvulsant medications or who have had five or more seizures in the preceding 12-month period; (2) examine and recommend for treatment, with a frequency determined by their medical judgment, other residents receiving medication to control seizures; and, (3) recommend treatment for all residents who are diagnosed as having other neurologic disorders. In performing these duties, the neurologist(s) will confer with the referring primary care physician and, as appropriate, with the assigned psychiatrist and promptly record notes in the resident's medical records that reflect the neurological diagnosis, recommended course of treatment, and results.
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i. Upon the execution of this Agreement, defendants will, periodically but not less than once annually, use the services of expert medical specialists who will train Embreeville primary care physicians and nursing staff in the diagnosis and treatment of medical problems typically associated with persons with developmental disabilities, including: (1) neurologic disorders, including seizures and specifically the prescription of medication to control seizures; (2) orthopedic and physiatric conditions; (3) gastroenterologic disorders and proper nutrition; and, (4) behavioral and psychiatric disorders, including the psychopharmacologic treatment of such disorders, and side effects of behavior modifying medication. Defendants will document that such training occurred, including maintaining a list of those in attendance as well as clinical areas covered.
j . Within 90 days from the execution of this Agreement, defendants will initiate regular, periodic training for all direct care workers on how to recognize seizures and the action to take in the event a resident has a seizure in their presence.
k. Within 90 days from the execution of this Agreement, defendants will initiate, as necessary, periodic training for physicians and nurses on the common side-effects of behavior modifying medication in use at the facility.
5. Physical and Occupational Therapy a. Within 120 days from the execution of this Agreement, each resident with orthopedic or neuromuscular disabilities will be reviewed or evaluated by a qualified physician to determine whether physical or occupational therapy services should be initiated, or whether an existing plan should be modified, to prevent contractures, physical degeneration, inappropriate body growth and/or deformity. Any resident identified as needing additional services will promptly be referred
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to an appropriate, qualified registered physical therapist ("RPT") or licensed occupational therapist ("LOT"). Within 30 days of such referral, the RPT or LOT will assess and evaluate the resident and develop an individualized physical therapy, occupational therapy, or positioning plan, and thereafter, review and modify, as necessary, any such plan. Such plans will identify all assistive technology necessary to achieve proper body position, balance or alignment. The plan will specify the reason for each support, the situations in which each is to be applied, the schedule for the use of each support and the individuals responsible for applying the support in each situation. If there is a decision not to provide therapy to a particular resident, the basis for that decision will be documented. Physical or occupational therapy services will be implemented promptly after any physical therapy, occupational therapy, or positioning plan is developed and will be supervised by qualified physical or occupational therapy staff.
b. In addition to any assessments required by Subparagraph 5.a., within 120 days from the execution of this Agreement, all residents who have or use wheelchairs will be reviewed or assessed by a RPT, LOT or outside consultant to determine the appropriateness and safety of their wheelchair and to determine what adaptations are necessary to enhance the resident's body position or alignment or minimize or prevent contractures, physical degeneration, inappropriate body growth and/or deformity.
c. Within 180 days from the execution of this Agreement, defendants will have a registered speech therapist who specializes in the diagnosis and treatment of feeding disorders review or assess each resident who has neuromuscular dysfunction, obstructive lesions, or other physical impairment, or psychological factors or a combination of two or more of these that interfere with eating, to determine whether to initiate a mealtime program or protocol for the
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resident or to modify an existing one. Within 30 days of the assessment, the registered speech therapist will develop a written mealtime program for each of those residents for whom such a need is identified, and thereafter review and modify, as necessary, the program. Each such program will be implemented by qualified staff not later than 30 days thereafter.
d. Within 90 days from the execution of this Agreement, defendants will initiate regular, inservice training for direct care workers in how to position physically handicapped residents in wheelchairs and other devices, transfer them from one place or position to another, and implement such aspects of residents' physical therapy or occupational therapy programs that such staff are otherwise qualified and expected to do. Such training will be conducted by RPTs or LOTs.
e. Within 90 days from the execution of this Agreement, defendants will provide regular periodic inservice training for direct care workers on proper methods of feeding residents who have mealtime programs and proper positioning during meals or snacks. Such training must be conducted by registered speech therapists, LOTs or other qualified professionals who specialize in the treatment of feeding disorders.
f. Within 90 days from the execution of this Agreement, defendants will retain an orthopedist(s) or physiatrist(s) for up to 32 hours to identify residents of Hilltop and Meadowview Building who need further assessment for medical, surgical, rehabilitative, or therapeutic services, including therapeutic equipment, to minimize or prevent contracture, physical degeneration, or inappropriate body growth and deformity. All residents so identified will receive timely assessments by an orthopedist or physiatrist. Thereafter, orthopedist(s) and physiatrist(s) will: (1) timely evaluate and diagnose and treat Embreeville residents who are referred to them by primary care physicians; (2) reexamine and treat, with a frequency determined
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by their professional judgment, residents with physical handicaps, especially chronic physical

handicaps such as contractures and scoliosis; (3) confer with the referring primary care physician

on a regular basis; and, (4) promptly record progress notes in the residents' medical records

explaining fully the results of the examination, the diagnosis, the recommended course of

treatment or recommendation not to treat.

g. Defendants will ensure that Embreeville residents receive all medically necessary

assistive technology to achieve proper body position, balance or alignment or to minimize or

prevent contracture, physical degeneration, or inappropriate body growth and deformity, and that

all such equipment or technology is properly and safely applied.

h. Any assistive technology specifically designed and provided for a resident will

accompany that resident upon his/her placement in the community.

6. Staffing

a. Within 90 days from the execution of this Agreement, defendants will hire to work at

Embreeville all staff necessary to implement the provisions of this Agreement.

b. In no event will direct care staffing at Embreeville be less than is necessary to

ensure the consistent maintenance of direct care staff to resident ratios (on duty) of:

Day shift

1:4

Evening Shift

1:4

Night Shift

1:8

c. Defendants will maintain current staff to resident ratios for primary care physicians and

registered and licensed practical nurses.

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d. Defendants will employ or contract for at least one psychologist possessing a doctorate in psychology and with demonstrated experience in the field of behavioral psychology, licensed or certified by the Commonwealth, who will have primary responsibility for providing professional supervision, monitoring, and coordination of all psychological services at Embreeville.
e. Defendants will maintain at least the current staff to resident ratios for physical therapy staff, and defendants will ensure that at least one third of physical therapy staff are RPTs, either through employment or contracts.
f. Defendants will, either through employment or contracts, increase current occupational therapy staff by one LOT and will thereafter maintain the occupational therapy staff to resident ratio at that increased level.
g. Within 120 days from the execution of this Agreement, a psychiatrist will conduct an in-person evaluation and record review of every resident currently receiving psychotropic medication, other than residents who have been so evaluated within the past six months. The evaluation will include, inter alia, a decision as to the frequency with which the resident should be reevaluated by the psychiatrist. Defendants will carry out the recommendations of the psychiatrist with respect to frequency of future evaluations. Defendants will retain sufficient psychiatric services to fully implement the recommendations of the psychiatrist.
h. Staff whose primary responsibilities are administrative and who do not provide direct service to residents on a regular, routine basis and staff who are assigned to perform one-to-one monitoring of a resident will not be counted in computing the above ratios.
i. Direct care workers will not routinely perform such support functions as housekeeping, laundry, maintenance and meal preparation, where the performance of said functions will preclude
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or interfere with the direct care workers' primary responsibilities to supervise and care for recipients. This will not preclude direct care workers from training residents in these functions pursuant to a written habilitation program developed in accordance with established procedures.
C. Conditions of Care in the Community 1. Embreeville residents will receive appropriate care and habilitation in community based settings, and will be protected from unreasonable risks to personal safety, unreasonable restraint and, where possible, regression in self care skills. 2. Prior to the movement of any resident to the community an individual transition plan will be developed through the person centered planning process. This plan will comport with current accepted professional standards and reflect a preference for normalized services. Within six months after the resident's placement in the community and annually thereafter, the team will develop an individual habilitation plan that meets the same standards. 3. The Monitor will review each placement plan for each resident prior to the resident being discharged to ensure that no Embreeville resident will be placed in the community until the Monitor is assured that all necessary services and support have been arranged and are ready to be provided in the community. 4. Service Coordination a. Each former Embreeville resident will have a designated service coordinator in the community. This individual will be from the resident's county of choice and will coordinate the development and regular review of the person-centered plan and monitors and assures its implementation. Service coordinators may not have any direct affiliation with any agency that provides mental health/mental retardation services. In each county, there will be no fewer than
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one service coordinator per 35 residents. Individual counties with better current ratios must maintain them. The service coordinator will regularly visit the resident at his or her home and at the resident's job or daytime activity.
b. Each resident will have an Interdisciplinary Team ("IDT") in the community, including, at a minimum, the resident, involved family members, the resident's service coordinator, persons with expertise in the services and support desired and needed by the resident and all persons needed to make appropriate professional decisions regarding the resident's care, habilitation and education.
5. Service Coordinator Training Each service coordinator will participate in pre-service and on-going training in personcentered planning and service delivery. The training curriculum will be that developed and currently used in the Southeast Region, as modified from time to time. 6. Service Providers a. Embreeville residents and their families will be provided with reasonable opportunities for choice of service provider and service coordinator, both initially (in planning for discharge from Embreeville) and on a regular basis thereafter. b. No Embreeville resident will be placed in a community home that houses in total more than three individuals with disabilities, unless the resident, his/her family, or the Office of Mental Retardation can show the Monitor that an alternative placement would better meet the resident's individual needs. Defendants agree to provide technical assistance to counties to support the development of new agencies, subject to the availability of adequate staff.
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7. Safety Net of Emergency Services a. Embreeville residents who are placed into the community under the terms of this Agreement will be provided with the necessary supervision, habilitation, behavioral services, medical and psychiatric services necessary to ensure a successful placement. Embreeville residents who need such services after placement in the community are entitled to receive them under this Agreement. b. The Court Monitor will, in the course of reviewing and approving placements under this Agreement, ensure that the placement includes, for all residents who need them, actual access to behavioral, medical and psychiatric services in the community. In this context, "actual access" means that a person or entity is actually in place and has agreed to provide the relevant service. The Monitor will also ensure that copies of all medical records and case histories are transferred to the custody of the service provider at the time of placement. c. Emergency backup behavioral and support services will be provided for Embreeville residents who are transferred to the community. Embreeville residents who are transferred to the community will have access to backup behavioral services and respite care in the event that the residential provider is unable to successfully provide such services. d. Under no circumstances will Embreeville residents be placed into public or private psychiatric hospitals because they exhibit behavior problems in the community. Under such circumstances, the resident is entitled to habilitation in the community, emergency behavioral services under Subparagraph 7.a, and respite placement. Psychiatric services, if necessary, will be provided in the community and not in a state mental hospital. In the event an Embreeville
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resident has severe mental illness requiring a psychiatric hospitalizatioa, an Embreeville resident may be admitted or committed to a community psychiatric facility. Any subsequent placement to a state psychiatric hospital may occur only with the approval of the Monitor.
e. If, in the opinion of the resident or their relative, guardian or advocate, an Embreeville resident's placement is not successful in that appropriate supervision or habilitation is not being provided, the Monitor will review the placement, and direct such changes as necessary, including but not limited to: additional supervision or habilitation; increased monitoring; or transfer to a new program which would provide a more safe and secure environment.
8. Quality Assurance a. Defendants will fund and assist in the establishment of County Consumer/Family Satisfaction Teams in Philadelphia and Delaware Counties. The Teams will monitor the care and services being provided to Embreeville residents.
1. The teams will operate under the authority of a County MH/MR Advisory Board.
2. The teams will have direct access to Embreeville residents and their families whose participation will be voluntary. The majority of team members will be consumers or family members.
3. All team monitoring results and findings will be provided directly to the MH/MR Administrator for any necessary action.
b. The parties will jointly establish a grievance system in which residents, parents, guardians or other advocates may file grievances with the State or County regarding the care, treatment or services being provided to any Embreeville resident. These grievances will be heard
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within 14 days by an arbitrator selected by the complaining party from a list of potential arbitrators, all of whom will be independent, free of conflict of interest and mutually agreed upon by the parties. The complaining party and defendants will be given the opportunity to present any witnesses, documents or other evidence relating to the grievance to the arbitrator. The arbitrator will reach a decision regarding the merits of the grievance and any remedial action within 7 days. Defendants will comply with the arbitrator's decision. In exercising their rights under this paragraph, complainants will not be deemed to have waived their right to other administrative or judicial processes or remedies, nor will individuals be required to file a grievance before availing themselves of any other administrative or judicial process or remedy.
IV. MONITORING COMPLIANCE WITH THE PROVISIONS OF THE SETTLEMENT AGREEMENT. In monitoring defendants' compliance with the terms and provisions of this Agreement, the parties agree to the following: A. The parties will jointly select a Monitor to preside over issues regarding compliance with this Agreement and will jointly move the Court to appoint the Monitor for this purpose and to advise the parties regarding the status of compliance. The parties will also jointly select a panel of experts in the areas of medicine, psychology, physical and occupational therapy and psychiatry for the individuals with developmental disabilities ("Expert Panel") to assist and advise the Monitor upon his or her request as to the applicable professional standards for purposes of determining compliance. Before making any such request, the Monitor will consult with defendants to determine whether existing resources will provide the requisite information or whether the issue can be resolved without resort to the Expert Panel.
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B. The documented and reasonable fees, costs and expenses of the Monitor and of the Expert Panel described above will be borne by the defendants. The parties believe that an initial budget of $110,000 per year will be sufficient to pay these expenses. In the event that such funding is not sufficient to comply with the requirements of this agreement, the parties will negotiate in good faith to resolve the issue. In addition to this budget, the defendants will supply the Monitor with office space, telephone, copying and computer resources at Embreeville.
C. In addition to the duties, responsibilities and powers set forth above in this Agreement, the Monitor will have the following additional duties, responsibilities, and powers:
1. The Monitor will evaluate defendants' compliance with all aspects of this Agreement, and will submit regular reports to the parties as to the status of defendants' compliance. The Monitor will make recommendations to the parties regarding means of effectuating compliance.
2. The Monitor will attempt to resolve disputes between the parties and will make findings of fact regarding any dispute brought before him/her.
3. The Monitor will have the power to obtain any information, records and/or documentation pertaining to this Agreement and visit any site related to this Agreement.
4. The Monitor will investigate and report on allegations of abuse or neglect of individual residents.
V. TERMINATION AND ENFORCEMENT OF THIS AGREEMENT A. The Court will retain jurisdiction over this Agreement until its termination by the Court. B. This Agreement will extend at least until 12 months after the placement of the last resident from Embreeville into the community, at which time the Court will hold a hearing to
28

determine whether the Agreement will be terminated. At the termination hearing, the Court will hear testimony and argument from the Monitor, Expert Panel and parties as set forth below. At the termination hearing, the opinion of the Monitor and Expert Panel as to defendants' compliance will be accorded a rebuttable presumption by the Court. At the termination hearing, the parties may present evidence relevant to defendants' compliance with the Agreement. If the Court concludes that defendants have substantially complied with all requirements of this Agreement, it will terminate the Agreement.
C. Eight months after the last Embreeville resident has been placed into the community, the Monitor and Expert Panel will conduct a full review of all aspects of defendants' compliance with the terms of this Agreement and will submit a report to the Court and the parties as to their findings concerning compliance no later than one month prior to the termination hearing. Defendants will correct all deficiencies noted by the Expert Panel. The Monitor and Expert Panel's review of compliance will be based on a 20% sample of Embreeville residents, unless they determine that a larger sample is necessary to make their determination of compliance. No party will challenge the Monitor and Panel's conclusions on the basis of sample size.
29

D. This Court will have continuing jurisdiction over claims for specific performance of this agreement. In the event that any plaintiff concludes that the defendants have failed to perform his or her obligations under this agreement, that plaintiff will provide defense counsel with written notice of that concern. The parties will then confer and attempt to resolve the asserted problem. In the event that the issue has not been resolved to the satisfaction of the plaintiff, the plaintiff may seek specific performance of this agreement from this Court.
E. The parties reserve the right to withdraw their consent to this Agreement in the event that this Agreement is not approved by the Court in its entirety. AGREED TO BY THE UNDERSIGNED:

DEVAL L. PATRICK Assistant Attorney General Department of Justice Civil Rights Division
AURTHUR E. PEABODY, JR. Chief Special Litigation Section Civil Rights Division

)MOND A. TIR

ESQUIRE

Counsel for P E

Suite 1100

The Curtis Center

601 Walnut Street

Philadelphia, PA 19106

\u.
ILENE W. SHANE, ESQUIRE MARK J. MURPHY Disabilities Law Project 801 Arch Street, Suite 610 Philadelphia, PA 19107 Counsel for Nelson Plaintiffs (215)238-8070

30

PAMELA K. CHEN Trial Attorney U.S. Dept of Justice Special Litigation Section P.O. Box 66400 Washington, D.C. 20035-6400 (202)514-6261

JUDITH A. GRAN, ESQUIRE Public Interest Law Center 125 South 9th Street, Ste 700 Philadelphia, PA 19107 (215) 627-7100 Counsel for Nelson Plaintiffs

MARKMASLING V Trial Attorney U.S. Dept. of Justice Speical Litigation Section P.O. Box 66400 Washington, DC 20035-6400 (202) 514-6252

THOMAS B. YORK ^ Counsel for Defendants Eckert, Seamans, Cherin
& Mellotte One S. Market Square Build. 213 Market Street Harrisburg, PA 17108 (717)237-6000

SO ORDERED, this

day of

, 1994.

Clarence C. Newcomer, J. 31

APPENDIX A SETTLEMENT AGREEMENT CIVIL ACTION NOS. 93-CV-2094 AND 94-CV-440

Criteria for consideration and review by outside expert consultants in developing habilitation programs, required pursuant to Subparagraph III.B.2.a:

Each habilitation program will set forth:

1. Specific instructional methods to be used by those responsible for implementing the habilitation program. Such methods will apply positive approaches and positive behavioral interventions that promote functional skill development and socially acceptable behaviors in the resident and provide for the appropriate expression of behavior and the replacement of inappropriate behavior, if any, with behavior that is adaptive or appropriate.

2. Relevant interventions to support the resident toward independence.

3. For residents who lack the skills, training in personal skills essential for privacy and independence, including, but not limited to, toileting, personal hygiene, dental hygiene, selffeeding, bathing, dressing, grooming, and communication of basic needs, until it has been demonstrated that the resident is developmentally incapable of acquiring them.

4. A specific habilitation schedule to be followed. The number of hours of habilitation to be provided will be sufficient to permit the resident to have a reasonable opportunity to reach the identified behavioral habilitation objectives. No schedule will provide for fewer than 40 hours of structured habilitation or activities each week.

5. Data collection procedures, identifying the type of data and frequency of data, sufficient to permit a qualified professional to evaluate the effectiveness of the habilitation program or any part of the habilitation program and to monitor the implementation of the habilitation program and enable its modification, as necessary. The location where program strategy information can be found.

6. program.

Identification of persons responsible for the consistent implementation of the

7. The resident's inappropriate behaviors, if any.

32

 
 IN THE UNITED STATES DISTRICT COURT FOR TilE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, Plaintiff,
PEOPLE INTERESTED IN EMBREEVILLE RESIDENTS, Piain ti ff-IntervCIl0I'S,
v.
COMMONWEALTH OF I'ENNSYLVANIA, ET AL., Defendants.
HARRY NELSON, ET AL., Plaintiffs,
v.
ESTELLE RICHMAN, SECRETARY OF TIlE PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE, E'r AL.,
Defendants.

) ) ) ) ) Civil Action No. ) 93·CV·2094 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Class Action ) ) ) ) ) ) )

JOINT MOTION FOR TERMINATION OF STIPULATED AGREEMENT AND DISMISSAL OF CASE

All parties to this case jointly move this Court to tcmlinatc this action.

Pursuant to the pm1ics' Stipulated Agreement, Exhibit ("Exh.") J, '119, approved by this

Court on March 21, 2000, the Independent Expert performed a review to determine Defendants'

compliance with the Stipulated Agreement. The Defendants took action in response to that

-2 -

reVIew. On May 4,2004, the Independent Expert completed a Special Report to the Parties Regarding Evaluation of Defendants' Actions in Response to the June 2002 Compliance Report, Exh. 2, and concluded that the Defendants arc in compliance with the Stipulated Agreement. The parties agree with this finding.
Therefore, pursuant to the Stipulated Agreement, '120.a., the parties jointly move that this Court terminate the Stipulated Agreement and dismiss this case. A proposed order is attached.

For the Plaintiffs

Respectfully submitted, For the Defendants

R. ALEXANDER ACOSTA Assistant Attomcy General Civil Rights Division

BRADLEY J. SCHLOZMAN Deputy Assistant Attorney Gencral Civil Rights Division

I

~ I /~-----

'---.

+'I=V ~c-==~----~~-­

NeTTA Y. CUTLAR

, ier

Spccial Litigation Section

HOWARD ULAN, ESQ. Department of Public Welfare Health & Welfare Building 3'd Floor West Harrisburg, PA 17120 Counsel for Defendants
Da(ed._~2,} t:S \ b'f

~ 3 ~
3d~-
ELIZABETH JOHNSON DAVID DEUTSCH Senior Trial Attomcys Special Litigation Section U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 514~6270 (202) 514~6273 (FAX) Counsel for United Stales of America
MOND A TIRY K, ESQ. P.O. Box 229 Wayne, PA 19087~0299 Counsel for People Interested in
Embrccvillc Residents
Dated [0 (P(d '{
!lb~~~()1;~ ___ .~~.
tLENE W. SHANE, ESQ. Disabilities Law Project The Philadelphia Building 1315 Walnut Street Philadelphia, PA 19017~4798 Counsel for Nelson Plaintiffs
Dated. _~I~/\8L~~~~~~~~~~

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF I'ENNSYLVANIA

UNITED STAn:s OF AMERICA,

)

)

Phlilltift~

)

)

PEOPU: INTERESTED IN EMBREEVILLE RESIDENTS, ) Civil Action No.

) 93-CV-2094

Plaintiff-I ntervenors,

)

)

v.

)

)

COMMONWEALTH OF PENNSYLVANIA, ET AL.,

)

)

Defendants.

)

--------------------------------) )

HARRY NELSON, ET AL.,

)

)

Plaintiffs,

)

)

v.

) Class Action

)

Esn:LU: RICHMAN, SECRETARV OF THE

)

PENNSYLVANIA m:PARTMENT OF PUBLIC

)

WELFARE, ET AL.,

)

)

Defendants.

)

)

ORDER OF DISMISSAL

Pursuant to the Joint Motion for Termination of Stipulated

Aqreemcnt Clod Dismlssal of Case filed by the parties in the above

captioned matter, the Stipulated Agreement entered on Mdrch 70,

2000 is hereby terminated. This case js dismissed with

prejudice.

It is so Ordered this

day of

7004.

come !-lo-n-o-r-a'b-C1-e---c-Ia--ce n ce C. Nev.J

r

United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, Plaintiff
PEOPLE INTERESTED IN EMBREEVILLE RESIDENTS, Plaintiff-Intervenors, v.
COMMONWEALTH OF PENNSYLVANIA, ET AL., Defendants.
HARRY NELSON, ET AL., Plaintiffs, v.
ESTELLE RICHMAN, SECRETARY OF THE PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE, ET AL.,
Defendants.

) ) ) ) ) Civil Action No. ) 93-CV-2094 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Class Action ) ) ) ) ) ) )

ORDER OF DISMISSAL

Pursuant to the Joint Motion for Termination of Stipulated Agreement and Dismissal of

Case filed by the parties in the above captioned matter, the Stipulated Agreement entered on

March 20, 2000 is hereby terminated. This case is dismissed with prejudice.

It is so Ordered this 5th day of January, 2005.

S/ Honorable Clarence C. Newcomer United States District Judge

 
 832 F.Supp. 122 (1993)
UNITED STATES of America v.
COMMONWEALTH OF PENNSYLVANIA.
Civ. A. No. 93-2094.
United States District Court, E.D. Pennsylvania.
August 31, 1993.
123 *123 James P. Turner, Dept. of Justice, Civil Rights Div., Housing & Civil Enforce. Section, Washington, DC, Debra Leanne Wrobel Cohn, Michael J. Rotko, U.S. Attorney's Office, Philadelphia, PA, Janet Reno, U.S. Atty. Gen., Washington, DC, Mellie H. Nelson, Sp. Litigation Section-U.S. Dept. of Justice, Washington, DC, for U.S.
Thomas Brian York, Office of Legal Counsel, Harrisburg, PA, for defendants.
Edmond A. Tiryak, Philadelphia, PA, for intervenor-plaintiff.
MEMORANDUM
NEWCOMER, District Judge.
Presently before the Court is defendants' Motion to Dismiss this action pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) because plaintiff has failed to state a claim for relief.
I. Background:
The United States of America ("USA") brought this action under the Civil Rights of Institutionalized Persons Act of 1980 [CRIPA], 42 U.S.C. § 1997 et seq., alleging that the residents at the state-operated Embreeville Center ("Embreeville") are being deprived of rights secured to them by the United States Constitution. Defendants are the Commonwealth of Pennsylvania, as owner and operator of Embreeville, and Robert Casey, in his official capacity as governor of Pennsylvania. Also named as defendants are Karen F. Snider, Secretary of the Department of Welfare ("DPW"), and Nancy Thaler, Deputy Secretary of Mental Retardation of DPW, in their respective official capacities as administrators of Embreeville, and Reuben Shonebaum, Director of Embreeville, in his capacity as day-to-day operations manager of the facility.
The USA avers that defendants have failed to protect residents from abuse and neglect, to provide the necessary level of individualized training and behavioral programs, to provide adequate medical care, to ensure an adequate and sufficiently trained staff, to safeguard residents from improper and excessive administration of psychotropic medications, and to accurately maintain resident records. (¶¶ 16-21 of USA's complaint.)
Defendants' motion to dismiss specifically raises the following three issues for determination by this Court: (1) Whether substantive due process rights are implicated by the acts or omissions alleged by the USA pursuant to CRIPA; (2) Whether the factual allegations in the complaint are sufficient to support the requisite factual specificity in a filing of suit pursuant to CRIPA; and (3) Whether the pre-filing certification requirements of 42 U.S.C. § 1997b(a) have been satisfied. Each of these contentions will be dealt with in turn.
II. Standard of Review:
Under the standard of review for a motion to dismiss for failure to state a claim, all factual allegations in the complaint are taken as true and plaintiff must be given the benefit of every favorable inference that can be drawn from these allegations. Elliott v. State Farm Mut. Auto. Ins. Co., 786 F.Supp. 487, 489 (E.D.Pa.1992). Dismissal is

only appropriate if it appears beyond a doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); In re Sunrise Securities Litigation, 793 F.Supp. 1306 (E.D.Pa.1992).
III. Discussion:
A. Constitutional Duty Owed
A threshold question in defendants' Motion to Dismiss is whether the state owes a constitutional duty to afford substantive due process rights to voluntarily confined residents of Embreeville. Defendants argue that since the state did not exercise its governmental power to force patients to come to or remain at Embreeville, the state did not act affirmatively in placing the residents, so substantive due process rights are not triggered. In support of 124 their argument, defendants place emphasis on the nature of the *124 residents' initial voluntary commitment status.
Plaintiff argues that there should be no distinction between voluntary and involuntary residents of state mental health facilities. Plaintiff maintains that there is sufficient affirmative state action such that all residents are entitled to these basic constitutional rights. The constitutionally relevant factor, according to plaintiff, is the residents' custodial status, and the residents' total dependence on the state for their well-being.
While the Supreme Court has not expressly addressed whether the substantive due process rights at issue here should extend to voluntary residents, I am persuaded that such an extension is consistent with the Court's understanding of due process rights. In Youngberg v. Romeo, 457 U.S. 307, 324, 102 S.Ct. 2452, 2462, 73 L.Ed.2d 28 (1982), the Court held that when a state takes a person into custody and holds that person against his will, the state owes a duty to provide reasonable care and safety, reasonable nonrestrictive confinement conditions, and the right to minimally adequate training. Although the Youngberg Court considered these rights in the context of involuntary confinement, it focused its rationale on the fact that the patients were "wholly dependent on the State." Id. at 319, 102 S.Ct. at 2460. The Supreme Court later explained in DeShaney v. Winnebago County DSS, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) that such rights derived from the principle that
when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs 0907 e.g., food, clothing, shelter, medical care, and reasonable safety 0907 it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.
Id. at 200, 109 S.Ct. at 1005.
DeShaney has been taken by this Circuit to stand for the proposition that "the state owes an affirmative duty to protect those physically in its custody." Philadelphia Police & Fire Ass'n v. City of Philadelphia, 874 F.2d 156, 167 (3d Cir.1989) (holding that the reduction or elimination of benefits for mentally retarded persons living at home did not violate equal protection or due process rights as the state had taken no affirmative act to restrain their freedom). In a subsequent case, the Third Circuit wrested further insight from the due process jurisprudence, determining that substantive due process rights are limited to persons whose personal liberty has been substantially curtailed by a state's affirmative act. Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d 459 (3d Cir.1990).
Thus, the constitutional rights recognized in Youngberg represent a limitation on the state's power to restrict an individual's liberty. It is entirely consistent with this rationale that a state may act to restrict an individual's liberty when it either involuntarily commits that individual, or, at some point during the term of one's voluntary commitment, takes affirmative steps to restrain one's liberty.
Involuntary confinement through civil proceedings must not be the only litmus test for whether patients are in fact being deprived of constitutionally protected liberties. Civil involuntary commitments may be constitutionally justified by the prospect of satisfying the court-determined need for rehabilitation treatment, or where

rehabilitation is impossible, minimally adequate habilitation and care. However, there is a continuing affirmative obligation on the state. In order to make the continued confinement constitutional, this quid pro quo concept of abridgment of constitutionally protected liberties for the recognized right to quality treatment must be ongoing.
Likewise, where the initial institutionalization of an individual is made pursuant to a "voluntary" decision, such institutionalization in its course may become one which necessarily curtails an individual's liberty, for instance, through excessive or inappropriate use of physical or chemical restraints. In such a case, the fundamentals of due process would be offended if treatment and care were not provided.
125 *125 The argument advanced by the State is not new and has been rejected by the courts in the past. See, e.g., Halderman v. Pennhurst State School and Hospital, 446 F.Supp. 1295, 1310-11 (E.D.Pa.1977), aff'd in part and rev'd in part on other grounds, 612 F.2d 84 (3d Cir.1979) (en banc); United States v. Commonwealth, Civ. No. 92-33J, Memorandum Order (W.D.Pa. May 6, 1992); United States v. Tennessee, 798 F.Supp. 483 (W.D.Tenn.1992). In Halderman, the court called the distinction between voluntarily and involuntarily committed patients "illusory", Halderman, 446 F.Supp. at 1310-11, and noted that "whenever a state accepts [mentally handicapped] individuals into its facilities, it cannot create or maintain those facilities in a manner which deprives those individuals of the basic necessities of life." Id. at 1318. Defendants assert that DeShaney and its progeny have altered the state's responsibilities to the mentally handicapped under Youngberg. This reading of DeShaney and subsequent cases is far too expansive. Halderman v. Pennhurst State School and Hospital, 784 F.Supp. 215, 222 (E.D.Pa.1992), aff'd, 977 F.2d 568 (3d Cir.1992). The court's holding in DeShaney did not eliminate the State's obligations under Youngberg. See Thomas S. ex rel. Brooks v. Flaherty, 902 F.2d 250, 254-55 (4th Cir.1990).
Therefore, this Court rejects defendants' argument that voluntarily confined patients are not entitled to the constitutional right to treatment and care by virtue of the "voluntariness" of their initial confinement. Where there is an instance of state-propounded curtailment of liberty, due process standards must be upheld. In this case, the constitutional right to treatment or habilitation extends to both involuntarily and voluntarily confined residents alike.
Accordingly, defendants' argument that plaintiff has failed to establish due process rights held by Embreeville residents is without merit.
B. Factual Specificity
Defendants next argue that plaintiff's complaint lacks the factual specificity required by the Third Circuit to state a claim for civil rights violations. While this court in the recent past has required a heightened level of factual specificity in civil rights actions, this is no longer the rule. The Supreme Court has recently addressed the pleading requirements for plaintiffs suing municipalities for civil rights violations. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, ___ U.S. ___, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). In Leatherman, the Supreme Court concluded that it was impossible to square the heightened pleading requirement in municipal liability cases with the liberal system of "notice pleading" set up by the Federal Rules. Id. at ___, 113 S.Ct. at 1163. The Court affirmed that the system of "notice pleading" applied to all causes of action unless otherwise specified in the rules, such as the particularity requirement imposed by Rule 9(b) for averments of fraud or mistake. Id. The Supreme Court explained that "Perhaps if Rules 8 and 9 were rewritten today, [other] claims ... might be subjected to the added specificity requirement of Rule 9(b).... But that is a result which must be obtained by the process of amending the Federal Rules, and not by judicial interpretation." Id.
Thus, as Leatherman affirms, the applicable standard may be found in Fed.R.Civ.P. 8(a)(2). It is well-settled that this rule means that a claimant need only "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Id. The complaint here provides sufficient facts giving rise to the cause of action to put the proper defendants on notice of the essential elements of plaintiff's cause of action. Accordingly, in light of the Leatherman decision, plaintiff's complaint contains a short and plain statement of the claim, giving the defendants fair and adequate notice to respond.

Defendants further contend that plaintiff has failed to describe the personal participation of individual defendants named in the complaint, and in the absence of specific allegations to demonstrate such personal participation, defendants argue that the complaint must be dismissed. Defendants, however, do not accurately capture the 126 purpose of CRIPA. Under CRIPA, liability may be imposed *126 upon a municipality, supervisory officers and the City for maintaining a deficient training policy and program, or other deprivation of constitutional rights. Plaintiff avers that Embreeville residents are being deprived of their constitutional rights pursuant to an alleged ongoing pattern and practice of deprivation. The alleged involvement of the named defendants is based on actions taken, or not taken, in their official capacities, acting on behalf of a State that is allegedly depriving residents of their constitutional rights. It is on this theory that plaintiff seeks to hold defendants liable in their official capacity, seeking corrective measures from those in a position to provide such relief. Accordingly, defendants' contention is without merit. As discussed in conference, however, the court will not allow plaintiff to conduct a trial by ambush. The court expects that the United States will fully document the alleged constitutional deprivations during the course of discovery and place the Commonwealth on notice of such specific deprivations in a timely manner.
C. Attorney General's Certification
Defendants' final contention is that the Attorney General has failed to adequately certify that certain prefiling requirements have been satisfied, as required by 42 U.S.C. § 1997b(a). Because the certification is deficient, defendants argue that the complaint must be dismissed. Plaintiff asserts that the case and legislative history indicates that the Attorney General's certification is not judicially reviewable.
The legislative history of CRIPA specifically states that the Attorney General's certification is not intended to be subject to judicial review:
As with certification requirements in other statutes, the facts and judgments contained in the certification under this Section [42 U.S.C. § 1997b] are not judicially reviewable and shall not be a matter of litigation in any way.
Joint Explanatory Statement of the Committee of Conference, H.R.Rep. No. 897, 96th Cong., 2nd Sess. 14, reprinted in 1980 U.S.C.C.A.N. 787, 832, 838. Moreover, there is nothing in the statute to indicate that the Attorney General must spell out that with which she certifies compliance. Rather, the statute merely requires that the Attorney General attest to the fact that she has indeed complied with the prefiling requirements set forth in 42 U.S.C. § 1997b. I find that Attorney General Janet Reno has in fact adequately made such a certification to this court.
Defendants, however, argue that if this court finds that the Attorney General's "conclusory" certification is not deficient in form, as I so find, then the court in effect is precluding review of whether compliance with the substantive requirements has occurred. Defendants contend that if the Attorney General were to be held to addressing the requisite specifies in her certification, it would be found that there is no factual basis to authorize this litigation at this time.
However, this type of substantive review, as plaintiff points out, is not authorized by case or legislative history. Many courts have observed the above-mentioned language of the Committee Report in denying such review. See United States v. State of Illinois, 803 F.Supp. 1338 (N.D.Ill.1992); United States v. State of New York, 690 F.Supp. 1201, 1204 (W.D.N.Y.1988); United States v. Massachusetts, No. 85-0632-M, slip op. (D.Mass. June 5, 1985); United States v. Oregon, No. 86-961-LE, slip op., 1987 WL 39761 (D.Or. Apr. 8, 1987). In State of New York, after reviewing the case law regarding this provision, the district court held that the prefiling requirements of CRIPA may not be reviewed even where it clearly appears from the record that the requirements have not been met. I find this history and reasoning persuasive.
Further, I note that even if such review were authorized, a party would be hard-pressed to establish a failure sufficient to warrant excursion into the issue of the validity of the certification. Of the actions which Congress has required the Attorney General to take, many are modified by the words "when feasible" or "to the extent feasible." The Joint Explanatory Statement maintains: "It is the intent of the Congress that the Attorney General take these

127 actions to the extent the actions are capable of being successfully *127 done or accomplished." Joint Explanatory Statement, supra, at 839. For these reasons, I find that defendants' challenge to the Attorney General's certification must fail, and I will deny Defendants' request to stay discovery for purposes of developing evidence that the requirements were not sufficiently satisfied.
IV. Conclusion:
Accordingly, I will deny defendants' Motion to Dismiss for lack of merit. Defendants shall be ordered to file an answer to plaintiff's complaint within five (5) days of this memorandum. AND IT IS SO ORDERED.
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 U.S. v. Pennsylvania, Not Reported in F.Supp. (1994)
1994 WL 502352 Only the Westlaw citation is currently available. United States District Court, E.D. Pennsylvania.
UNITED STATES of America, et al. v.
PENNSYLVANIA, et al. Harry NELSON, et al.
v. Karen F. SNIDER, et al.
Civ. A. No. 93–2094. | Sept. 12, 1994.
Attorneys and Law Firms
James P. Turner, Dept. of Justice, Civ. Rights Div., Housing & Civ. Enforcement Section, Washington, DC, Debra Leanne Wrobel Cohn, MIchael J. Rotko, U.S. Attorney’s Office, Philadelphia, PA, Janet Reno, U.S. Atty. Gen.; Mellie H. Nelson, Philip A. Guzman, Special Litigation Section–U.S. Dept. of Justice; Pamela K. Chen and Mark Masling, Sp. Litigation Section, Civ. Rights Div., U.S. Dept. of Justice, Washington, DC, for plaintiff.
Thomas B. York, Eckert Seamans Cherin & Mellott, Harrisburg, PA, for defendants.
Edmond A. Tiryak, Philadelphia, PA, for intervenor-plaintiff.
Opinion
MEMORANDUM
NEWCOMER, District Judge.
*1 Presently before the Court is plaintiff United States of America’s Motion to Apply the Doctrine of Issue Preclusion to Certain Factual Findings Made in Halderman v. Pennhurst, and the defendants’ response thereto.1 For the reasons that follow, plaintiff’s motion will be granted.
I. Background The Embreeville Center (“Embreeville”) is a state institution for the mentally retarded. These consolidated actions seek injunctive relief against the Commonwealth of Pennsylvania and several of its officials to redress allegedly unconstitutional conditions at Embreeville. The suits were brought by the United States of America (and, as intervenor, People Interested in Embreeville Residents,

a group comprised mainly of relatives of persons residing at Embreeville), a class of residents of Embreeville and those at risk of placement at Embreeville, and Pennsylvania Protection and Advocacy, Inc. and The Arc–Pennsylvania (two non-profit advocacy corporations).
The allegations of the instant case are similar in many respects to those in Halderman v. Pennhurst, No. 74–cv–1345 (E.D.Pa.), a case which concerned the conditions of confinement at Pennhurst State Hospital and Training School, a state institution for persons with mental retardation. The Pennhurst litigation has had a long and tortured history. In 1977, it was tried over thirty-two days, after which Judge Broderick granted injunctive relief in favor of the plaintiffs. The case was appealed to the Third Circuit, affirmed, and then argued to the United States Supreme Court. The Supreme Court remanded, and the Third Circuit affirmed on different grounds. The case was argued twice more in the Supreme Court, and again remanded.2 After eleven years of litigation, and while the case was pending before the Third Circuit on its second remand from the Supreme Court, the parties entered into a final settlement agreement which Judge Broderick approved and entered as a consent decree and order (the “consent decree”) on April 5, 1985.
In November, 1987 a contempt motion was filed alleging that the Pennhurst defendants were in violation of the terms of the consent decree. Efforts to resolve the dispute failed, and in December, 1993 Judge Broderick held a lengthy contempt hearing. On March 28, 1994 Judge Broderick issued extensive findings of fact and conclusions of law holding the defendants in contempt of the consent decree.
Plaintiffs now ask this Court to apply the doctrine of issue preclusion to prevent relitigation of factual findings made by Judge Broderick after the Pennhurst contempt hearing.
II. Issue Preclusion The doctrine of issue preclusion, formerly known as collateral estoppel, is used to prevent relitigation of issues that have been previously decided. It may be invoked where: 1) the identical issue has been decided in a prior adjudication, 2) there was a final judgment on the merits, 3) the party against whom the doctrine is applied was a party to the prior litigation, and 4) the party against whom the bar is applied had a full and fair opportunity to litigate the issue. Board of Trustees of Trucking Employees v. Centra, Inc., 983 F.2d 495, 505 (3d Cir.1992). Also required is that the issue decided in the prior litigation was essential to the judgment. Drum v. Nasuti, 648 F.2d
1

U.S. v. Pennsylvania, Not Reported in F.Supp. (1994)
888, 898 (E.D.Pa.1986). The doctrine of issue preclusion may be applied in institutional reform litigation. See Williams v. Bennett, 689 F.2d 1370, 1381–83 (11th Cir.1982), cert. denied,464 U.S. 932 (1983) (doctrine applied in case challenging conditions of confinement in Alabama prison).
III. Issues Sought to be Precluded *2 Plaintiffs seek to have four findings of Judge Broderick precluded from relitigation in the instant suit. They are: 1) psychotropic medication practices at Embreeville are deficient; 2) the residents of Embreeville are unnecessarily segregated from the community and denied minimally adequate habilitation; 3) institutionalization has deleterious effects on the mentally retarded and community placement benefits such persons; and 4) services provided to mentally retarded persons living in Philadelphia County are inadequate.
IV. Discussion A judgment of contempt is a final, appealable order. United States v. O’Rourke, 943 F.2d 180, 186 (2d Cir.1991). It satisfies, therefore, the requirement that a final judgment be had on the merits prior to the doctrine of issue preclusion being invoked. Defendants in the case at bar were party to the proceeding before Judge Broderick, and they had a full and fair opportunity to litigate the issues in the contempt hearing. Thus, three of the five requisites for issue preclusion cannot reasonably be said to be in dispute. See Centra, 983 F.2d at 505 (three predicates for application of issue preclusion are a final judgment on the merits, party against whom bar is asserted present in prior proceeding, party against whom bar is invoked had full and fair opportunity to litigate issues).
The focus here must be on the final two requirements, that the issues precluded be identical to those in the prior adjudication and that the issues be essential to the first judgment. Defendants’ first argue that the issues sought to be precluded from litigation in this suit are not identical to those decided by Judge Broderick because the contempt proceeding dealt with enforcement of a consent decree while this case seeks to establish violations of the constitutional rights of Embreeville residents. Defendants posit that the consent decree in Pennhurst may have provided the plaintiffs there with rights greater than those established by the Constitution. Therefore, application of issue preclusion here would unjustifiably extend the Pennhurst consent decree to the residents of Embreeville rather than merely guarantee that the conditions at Embreeville are above the constitutional floor.
This argument is flawed in one principal respect. The

findings of Judge Broderick at issue here are factual findings. He made these findings of fact and then concluded that the defendants in Pennhurst were in violation of the consent decree. All of his factual findings were essential to his ultimate conclusion that the consent decree was being violated. Acceptance of Judge Broderick’s factual findings in this case, however, would only be the first part of this Court’s required analysis. This Court will be required to draw conclusions of law from the findings of this case. Such conclusions will be made at the close of evidence and after hearing argument from the parties on the legal effect of any evidence taken. It is possible that the findings of fact made by Judge Broderick would not be found, as a matter of law, to establish any constitutional violations. This does not, however, render his findings of fact unreliable or irrelevant. The fact that Judge Broderick’s findings were made in the context of a consent decree does not bar the application of issue preclusion.
An extension of this reasoning defeats the defendants’ second raised argument, that they did not have a full and fair opportunity to litigate these issues before Judge Broderick because the question of what constitutional rights are possessed by the Pennhurst plaintiffs was not before him. Defendants’ description of the legal issue in the Pennhurst hearing is correct; the conclusion drawn from it is not. The legal issue of what rights are possessed by those institutionalized by the state will be decided by this Court. To this legal standard will be applied the factual findings of Judge Broderick, as well as this Court’s own findings, and from this the Court’s decision on the merits will arise.
Defendants’ note that some of Judge Broderick’s findings applied only to seventeen Embreeville residents who were members of the Pennhurst class. Defendants assert that these limited findings cannot bar relitigation of those issues as to all Embreeville residents. The fact that some findings apply only to Pennhurst class members does not prevent the use of issue preclusion. It does, however, mandate that Judge Broderick’s findings be limited to these seventeen persons and not viewed as applicable to all Embreeville residents absent proof that all Embreeville residents are subjected to identical conditions.
Defendants’ final argument is that conditions at Embreeville have changed considerably in the months since the December, 1993 contempt hearing in Pennhurst, making Judge Broderick’s findings to a large degree moot. Defendants offer no description of how the conditions might have changed. So as not to unduly prejudice defendants, however, this Court will permit testimony at trial on the issues precluded by this Memorandum and Order so long as such testimony is limited to detailing the specific changes made at Embreeville since December of 1993 and how these changes conflict with the findings of Judge Broderick.
2

U.S. v. Pennsylvania, Not Reported in F.Supp. (1994)
V. Conclusion For the reasons detailed above, plaintiff United States of America’s motion to apply the doctrine of issue preclusion will be granted.
An appropriate Order follows.
ORDER
AND NOW, this 12th day of September, 1994, upon consideration of the plaintiffs’ Motion to Apply the Doctrine of Issue Preclusion to Certain Factual Findings Made in Halderman v. Pennhurst, and the response of defendants thereto, and consistent with the foregoing memorandum, it is hereby ORDERED that said motion is GRANTED.
Defendants are bound by the findings made by Judge Broderick in his March 28, 1994 Memorandum and Order in Halderman v. Pennhurst, 74–cv–1345 (E. D.Pa.1994) that are attached to this Order as Appendix A.
AND IT IS SO ORDERED.
APPENDIX A
Psychotropic medication practices at Embreeville and Woodhaven institutions do not comport with accepted standards of medical practice. Ten of seventeen (58%) class members living at the Embreeville facility are being medicated; nine of eleven (81%) class members living at Woodhaven are medicated. The percentage of people medicated at Embreeville and Woodhaven far exceeds the national average of 20% or less for those people living in institutions. Furthermore, medical personnel at these facilities have not performed the appropriate medical and psychological testing necessary to determine whether medication is appropriate. In addition, Woodhaven and Embreeville personnel do not systematically monitor class members for side effects of these medications. Accordingly, learning has become more difficult for many of these class members and-or they have regressed in skills already learned. As a result of this over-sedation, class members are at risk of harm. Pennhurst Contempt Opinion at pp. 26–27.
The class members residing at Embreeville are being unnecessarily segregated from

the community and denied

minimally

adequate

habilitation.... The Deputy

Secretary

of

the

Commonwealth’s Office of

Mental Retardation, Nancy

Thaler, previously has notified

the County of Philadelphia that

class members residing at

Embreeville Center are at risk

for neglect and that the

institution should be closed and

its residents moved into the

community.

Pennhurst Contempt Opinion at p. 16.

[the] Commonwealth [has] left a large group of class members to languish in situations where they are subject to abuse, neglect and over-medication. The dangers of institutionalization of the mentally retarded are well known to the defendants; experts testified at trial in this matter over a decade ago that the vast majority of mentally retarded do not receive adequate habilitation in these types of environments and that they actually tend to lose life skills in institutions. It was because of these dangers that community living arrangements became the focal point of [this case].

*3 Pennhurst Contempt Opinion at p. 29.

many of the Pennhurst residents who were transferred to community living arrangements have progressed to the extent that they enjoy a fuller life and in many instances have become self-supporting members of the community ... residents of Pennhurst have made significant behavioral strides while in the community.

Pennhurst Contempt Opinion at 7. Defendants are precluded from relitigating Judge Broderick’s findings that movement to the community results in increased life skills, sharply reduced challenging behaviors, increased personal satisfaction and family satisfaction, and enhanced quality of life. Pennhurst
3

U.S. v. Pennsylvania, Not Reported in F.Supp. (1994)
Contempt Opinion at 8–9.
Defendants are precluded from relitigating Judge Broderick’s findings concerning defendants’ actions and inactions with toward former institutional residents who returned to Philadelphia pursuant to the Court’s orders in Halderman v. Pennhurst that:
1. The defendants failed to provide Pennhurst class members with IHPs (Finding of Fact 16).
2. The defendants failed to assure implementation of Pennhurst class members’ IHPs (Finding of Fact 17).
3. The defendants have failed to develop IHPs that are in accordance with accepted professional standards of practice (Finding of Fact 17, 18).
4. The defendants have failed to provide Pennhurst class members with such services as occupational, physical, speech and behavior therapies, nutrition services, and adaptive equipment such as wheelchairs and eyeglasses (Finding of Fact 17).
5. The defendants have denied class members the opportunity to engage in productive employment. They have unnecessarily segregated Pennhurst class members in sheltered workshops, where they are harmed because they are not given the opportunity to develop life skills and instead may be losing skills or learning to engage in counterproductive behavior (Finding of Fact 17).
6. The defendants failed to review and update IHPs (Finding of Fact 18).
7. The defendants failed to provide case managers to all Pennhurst class members (Finding of Fact 20).
8. The defendants failed to provide case management visits to Pennhurst class members with assigned case managers (Finding of Fact 22).
9. Caseloads for county case managers exceed the requirement of a maximum of 25 Pennhurst class members per case manager (Finding of Fact 23).
10. The defendants knowingly and deliberately failed to monitor Pennhurst class members. (Findings of Fact 25–30).
11. The defendants allowed care providers to investigate incidents of abuse, neglect, death, serious injury and other unusual incidents among Pennhurst class members, an arrangement that is “akin to putting the fox in charge of the hen house” (Finding of Fact 30).
12. There is insufficient follow up or monitoring by

the County and Commonwealth of incidents of abuse, neglect, injury and death of Pennhurst class members (Finding of Fact 31).
13. Philadelphia does not have a system to ensure that staff members of care providers who abuse or neglect persons at one site are not re-employed at another site (Finding of Fact 32).
14. Some Pennhurst class members were inappropriately medicated with psychotropic drugs rather than being treated with a behavioral program (Finding of Fact 33).
15. Psychotropic medication practices at Embreeville Center do not comport with accepted standards of practice (Finding of Fact 34).
16. Care providers in Philadelphia inadequately monitor anti-seizure medication given to Pennhurst class members (Finding of Fact 35).
17. The defendants have failed to monitor psychotropic or anti-seizure prescriptions despite a history of overuse of these types of medications (Finding of Fact 36).
18. The defendants have failed to take adequate action to ensure that Pennhurst class members have access to adequate dental services (Finding of Fact 37).
19. The defendants have failed to take corrective action to ensure that Pennhurst class members have access to adequate medical care (Finding of Fact 38).
20. The Commonwealth has failed to allocate funds to the County to comply with the Pennhurst Court Decree, despite the Commonwealth’s knowledge that the County did not have the necessary funding. The Commonwealth allocates funding for Pennhurst class members only when threatened with a contempt action (Finding of Fact 39).
21. The Commonwealth’s non-compliance with court orders in Halderman v. Pennhurst was knowing and deliberate (Findings of Fact 11, 14, 16, 18, 20, 25).

1

Also before the Court is the Memorandum of Law of

the Nelson plaintiffs in support of the motion of the

United States.

2

Throughout the lengthy appellate history of Pennhurst,

the factual findings made by Judge Broderick after the

trial of the case were never questioned by either the

Third Circuit or the Supreme Court.

4

U.S. v. Pennsylvania, Not Reported in F.Supp. (1994)
	  
5

 
 U.S. Department of Justice Civil Rights Division

Office of the Assistant Attorney General

Washington. DC. 20035

FED 9 . V3Q_CL

REGISTERED MAIL

F.ETUP-V RECEIPT REQUESTED

Governor

11111 III I I IIII I I III II III U.S.v. Pennsylvania
|||||||||||| INI I III II II II II II III I II

Commonwealth of Pennsylvania

MR-PA-007-001

Governor's Executive Office

Room 22 5

Main Capitol Building

Karrisburg, Pennsylvania 17120

Re: Notice of Findings Regarding Embreeville Center,

4 2 U.S.C. 619 97b(a) (1)

Dear Governor Casey:

On September n , 1986, we notified the Commonwealth of Pennsylvania, pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. §1997, that we were commencing an investigation into conditions at the Embreeville Center in Coatesville, Pennsylvania. As contemplated by the statute, we are writing to inform you of the findings of our investigation. Our investigation identified several conditions at the Embreeville Center ("Embreeville") that deprive residents of their constitutional rights and, accordingly, we set forth the minimum measures we believe are required to remedy these conditions.

In conducting the investigation, attorneys in our Special Litigation Section toured Embreeville with three independent expert consultants on three different occasions. In Decerisr 1986, we toured the facility with a physician and a psychologist. The same psychologist returned to Embreeville in April 1987, and in March 1989 a second psychologist and the physician who toured previously conducted a two day survey of the facility. During each of these tours, the experts examined resident records, interviewed facility administrators and staff, observed and spoke with residents, and reviewed numerous documents provided by the facility.

Attorneys and officials with the Department of Public Welfare, and Embreeville staff, provided considerable assistance throughout .our investigation, and we join our consultants in expressing our appreciation.for their continuing cooperation.

- 2-
Many of the staff were justifiably proud of the progress that Embreeville has made since our first visit in areas such as computerization of facility information and various isprovezer.ts in some residential areas. These and other accomplishments have not been overlooked. Despite the efforts of administrators and staff, however, this investigation revealed conditions at Embreeville that deprive residents of their constitutional rights. Institutionalized nentally retarded persons have a constitutional right to adequate medical care. Moreover, the Constitution guarantees such residents a reasonably safe environment, freedom from unreasonable risks of harm and undue bodily restraints, and such training as is necessary to ensure those interests. Youngberg v. Romeo. 457 U.S. 307, 324 (1932).
Set forth below are our findings and recommendations. We will emphasize the following areas which we believe violate the constitutional rights of those confined at Embreeville:
1. Inadequate training programs; and
2. Inappropriate use of psychotropic medication and shortage of registered nurses.
1. Inadequate Training Programs
Behavior training programs are inadequate for Embreeville residents exhibiting maladaptive behaviors which pose unreasonable risks to their personal safety and that of others. Our consultant psychologist concluded that Embreeville's professional staff, particularly psychologists, do not properly assess resident's behavior problems, develop professionally based training programs, insure consistent implementation of such programs, or properly monitor and revise training programs, as necessary. The failure to provide professionally designed training programs to residents who need them in order to eliminate unreasonable risks to their personal safety violates their constitutional rights.
The failure to properly assess and diagnose behavior problems permits residents with such problems to exhibit dangerous behavior absent intervention by qualified professionals. The overburdened Embreeville psychology staff and the few hours per month provided by a consultant psychiatrist are insufficient to address this problem. Many "training" programs in place reflect identical or similar procedures for numerous residents. As such, they fail to reflect the exercise of judgment by a qualified professional as to the individualized needs of particular residents. Moreover, many programs are, in the view of our consultant psychologist, so inadequate as tc strengthen the very dangerous behaviors the'programs are ostensibly designed to eliminate. In addition, the programs are not consistently implemented. .Kany direct care, staff are ill-

- 3-
equipped to implement training programs due to lack of experience and knowledge. Indeed, sose direct care staff interviewed by our consultant psychologist were unaware of behavior programs they were responsible for implementing with residents under their supervision. Finally, such behavior programs are neither adequately monitored nor revised, as appropriate.
The deficiencies in training programs at Embreeville are linked to inadequate numbers of psychologists, psychiatrists, and direct care staff. The number of staff is inadequate to insure that the facility is able to meet the individual needs of residents for training programs sufficient to protect then from harm. Our consultant psychologist also opined that Embreeville psychologists and direct care staff require additional training in order to permit them to fulfill their assigned responsibilities. The lack of experience in implementing training programs is particularly acute with respect to direct care staff where turnover of staff is a significant problem. In sun:, the staff charged with responsibility for the development and implementation of behavior training programs requires strengthening both in terms of numbers and expertise.
2. Inappropriate Use of Psvchotrooic Medication and Shortage of Registered Nurses
Embreeville residents are being exposed to medical care practices which substantially depart from accepted medical judgment. The facility's use of psychotropic medications and its shortage of registered nurses place the health of residents at significant risk.
In lieu of appropriate behavior training programs discussed above, staff at Embreeville overuse and misuse psychotropic medication to control the behavior of residents. The percentage of residents being administered psychotropic medications was virtually as high at the time of our second tour of Embreeville as on our first tour. Almost 40 percent of the population is receiving these powerful, mind altering drugs. In addition, polypharmacy, the concurrent use of multiple drugs of the same chemical class, is being utilized without any professionally acceptable justification. Regrettably, a pattern emerged during the course of the investigation that psychotropic medication is being used for the convenience of staff in lieu of training programs. The use of such medications in these circumstances amounts to undue chemical restraint.
The decision making process that precedes the use of psychotropic medication at Eirbreeville likewise does not comport with generally accepted medical practice. -Due to the absence of adequate'-in%'olvement by psychiatrists, psychologists make many decisions with respect to these medications. While we recognize that it is important to involve all menibers of a resident's

treatment team as organized at Embreeville in discussions regarding an individual resident's case, for a psychologist to assume the role of a qualified physician is contrary to accepted medical practice. Finally, our medical consultant noted numerous resident records where there is no justification of the use of psychotropic drugs noted in the record.
A severe shortage of registered nurses at Embreeville compromises the delivery of adequate medical care at the facility. Indeed, the shortage precludes the delivery of basic nursing services. For example, our medical consultant noted that vital observations are not being made, medication errors are occurring at an unacceptable level, medication orders are not being transcribed correctly resulting in further medication errors, and mistakes in nursing procedures are commonplace. Moreover, the coordination and consultation between nurses and other health care professionals is so deficient that adequate medical care is seriously jeopardized. Our medical consultant noted instances where medical recommendations had not been implemented due to conflicting views among staff as to who had responsibility for performing the relevant task. Our medical consultant also noted the absence of clear notes regarding the causes of various serious injuries, including fractures. Finally, the shortage of registered nurses has caused facility administrators to transfer responsibility for the development of nursing care plans to licensed practical nurses -- an assignment beyond the expertise of these individuals. In sum, nursing shortages at Embreeville place residents at undue risk of harm.
Proposed Remedies
On each of our expert tours, we were impressed by the sincerity and dedication of many staff at the Embreeville Center. Nevertheless, the conditions noted amount to a pattern and practice of systemic deficiencies that deprive residents of their constitutional rights.
To rectify the deficiencies at Embreeville and to ensure that constitutionally adequate conditions are maintained thereafter, we propose to enter into a legally binding and judicially enforceable agreement with the Commonwealth of Pennsylvania. We believe a negotiated agreement is preferable to litigation both in terms of conserving federal and state resources ar.d ensuring the speediest relief to Embreeville residents. The agreement we envision would provide, at a minimum, the following remedies:
1. Training programs must be designed and implemented pursuant to professional judgment in order to reduce or eliminate unreasonable risks to residents' personal safety and/or the need for undue bodily or chemical restraint.

- 5-
2. A sufficient number of qualified direct care and professional staff, and registered nurses in particular, must be hired, trained, and deployed to provide necessary care, to monitor residents, and to implement, and make professional judgments regarding, the training programs.
3. Fsychotropic medications must be prescribed and administered pursuant to professional judgment and must net be used in lieu of appropriate training or for the convenience of staff.
4. A system must be established to insure consultation and communication of relevant information between and among personnel regarding residents' care, medical needs, and training programs.
Information about federal financial assistance which ray be available to assist with the remediation process can be obtained through the United States Department of Health and Human Services Regional Office, Office of the Regional Director, Linda Z. Karston (215-596-6492) and through the United States Department of Education by contacting the individuals listed in the enclosed information guide.
Attorneys from this office will be contacting counsel for the Department of Public Welfare shortly to arrange for a meeting to discuss this matter in greater detail. If you have any questions regarding the case prior to that time, do not hesitate to contact Arthur E. Peabody, Jr., Chief of the Special Litigation Section (202-272-6060). Our goal is to resolve this investigation in a reasonable manner and in the spirit of cooperation intended by the Civil Rights of Institutionalized Persons Act. We look forward to working with state officials toward that end.
Sincerely,

Enclosure

James P. Turner Acting Assistant Attorney General
Civil Rights Division

cc: Honorable Ernest D. Preate, Jr. Attorney General Commonwealth of Pennsylvania

— 6 ~
Kr. John F. White, Jr. Secretary, Department of Public Welfare
Mr,- John A. Kane, Esquire Chief Counsel, Department of Public Welfare
Ms. Marguerite Conley Director, Embreeville Center
Mr. Ja=es J. West United States Attorney Middle District of Pennsylvania

 
 U.S. Department of Justice Civil Rights Division

Office of the Aautant Attorney General

Washington. D.C. 20530

NOV 2 6 1991

REGISTERED MAIL
RETURN RECEIPT REQUESTED
Honorable Robert Casey
Governor Commonwealth of P e n n s y l v a n i a Governor's Executive Office Room 225 Main Capitol Building Harrisburg, Pennsylvania 17120

,..,, || | „„ , .Ujjjj ^ j j

I I II I "n"M

I II II II l||| II II III

MRMA|07_002

"'

Re: Notice of Findings Regarding Embreeville Center, 42 U.S.C. S 1997b

Dear Governor Casey:

I am writing in reference to this Department's investiga-

tion of the Embreeville Center ("Embreeville"), Coatesville,

Pennsylvania, pursuant to authority granted by the Civil Rights

of Institutionalized Persons Act ("the Act"), 42 U.S.C. §1997

et seq. As described below, our reevaluation of Embreeville

conducted during a tour of April 4 and 5, 1991 and review of

materials received subsequent to that tour disclosed that

unconstitutional conditions persist at the facility.

•

In February 1990, we notified the Commonwealth of Pennsylvania that conditions at Embreeville violated the constitutional rights of mentally retarded and developmentally disabled persons who live there. Preliminary negotiations to address these conditions commenced. However, in November 1990, the Commonwealth advised us that it would not enter into a judicially enforceable agreement concerning facilities administered by the Office of Mental Retardation. That position precluded any further negotiations. Consequently, in order to ascertain whether the unconstitutional conditions cited in our February 9, 1990 findings letter had been remedied, we retpured Embreeville with two independent consultants, a physician and a psychologist. Regrettably, this tour disclosed that the following longstanding constitutional violations continue:

- 2-
1. Training and behavioral programs at Embreeville do not reflect the exercise of judgment by a qualified professional. They are not individualized, do not address particular resident's needs, and many programs actually strengthen the dangerous behaviors they are designed to eliminate. The deficiencies in development and implementation of the training and behavioral programs are a consequence of inadequate numbers of adequately trained psychologists and direct care staff. (See February 9, 1990 letter at p. 2-3);
2. Embreeville staff overuse and misuse psychotropic medication to control the behavior of residents. Psychotropic medication is used for the convenience of staff and in lieu of training programs. This use constitutes undue chemical restraint. (See February 9, 1990 letter at p. 3 ) ; and
3. There is a critical shortage of nurses which compromises the medical care provided to Embreeville residents. (See February 9, 1990 letter at p. 4 ) .
In addition, the April 1991 tour and our subsequent review of documents disclosed other areas in which residents of Embreeville are being subjected to unconstitutional conditions of confinement. We found that the following additional conditions subject Embreeville residents to undue risks of harm.
1. Embreeville residents receive inadequate medical care.
Medical care provided to Embreeville residents does not meet professional standards. Our medical consultant found inadequate recognition of medical emergencies and inadequate and delayed responses to such emergencies. At times, these failures have contributed to residents' deaths. For example, we found that there was a 13 minute delay from the time that a resident was noted to have suffered cardiac and respiratory arrest until the time that a physician was notified. That delay was followed by an additional 10 minute delay for the physician and paramedics to arrive. Our consultant concluded that these delays contributed to the resident's untimely death.
Embreeville's one part-time psychiatrist has insufficient time to monitor medications, interact with staff, and examine residents. Many residents do not receive psychiatric follow up or consultation on a timely basis. Complications that may result from administration of psychotropic medications are not adequately documented nor responded to, e.g., inadequate attention and response to positive signs of tardive dyskin'esia. These deficiencies harm many residents suffering from psychiatric illnesses.
Our investigation revealed that there is inadequate follow up to consultants' recommendations for specialized tests or

- 3-
changes in treatment. For example, a neurologist's order for a Magnetic Resonance Imaging (MRI) study was not acted upon for more than two years. The predictable result of such delays is unnecessary risk of harm to Embreeville residents.
2. Embreeville residents are subjected to abuse and neglect.
It is our understanding that the Embreeville administration has recognized that there is a serious problem of abuse and neglect at the facility and has initiated efforts to address this critical issue. However, our investigation confirms that there are inadequate controls to identify and remedy what appears to be a systemic problem at Embreeville.
As was widely reported in the press and was also revealed in documents provided us by Embreeville, an undercover agent working at Embreeville for some nine weeks in 1991 personally observed eight incidents of abuse or neglect of residents in just this brief period of time. Embreeville took immediate action to discipline all employees so identified. However, it is disconcerting to note that none of those incidents came to the attention of Embreeville through its normal reporting channels, even though a number of additional incidents were reported and investigated during that time period. We have concluded that Embreeville's internal control system of incident reports and abuse investigations is simply not effective in uncovering and addressing abuse and neglect at the facility. The direct consequence of that failure is harm to residents.
We have previously informed counsel of our desire to resolve the problems existing at the facility through a judicially enforceable agreement. However, the Commonwealth remains unwilling to negotiate or enter into any such agreement.
r
In our February 9, 1990 findings letter, we recommended remedial measures aimed at correcting the unconstitutional conditions discovered by the Department and its experts. In light of our findings regarding inadequate medical care and abuse at Embreeville, we must advise you that remedial measures to eliminate the additional deficiencies identified in this letter should be taken immediately. Such measures are:
a) The State must provide adequate medical care to Embreeville residents, including adequate management of medical emergencies, appropriate monitoring of residents who suffer from psychiatric illnesses, and timely response to consultants' recommendations for specialized tests or treatments.
b) The State must not abuse or neglect Embreeville residents and must establish a system to assure that

- 4-
allegations of abuse and neglect are investigated thoroughly and that appropriate action, commensurate with the nature of the offense, is taken against anyone who inflicts, condones, or fails to report abuse or neglect.
If you or your staff have any questions, or better, desire to enter into negotiations leading to a consent decree, do not hesitate to contact Arthur E. Peabody, Jr., Chief, Special Litigation Section, (202) 514-6255.
Sincerely,
John R. Dunne Assistant Attorney General
Civil Rights Division
Enclosure
cc: Honorable Ernest D. Preate, Jr. Attorney General Commonwealth of Pennsylvania
Mr. John F. White, Jr. Secretary, Department of Public Welfare
Mr. Reuben Shonebaum Director, Embreeville Center
Michael M. Baylson, Esq. United States Attorney Eastern District of Pennsylvania

 
 Memorandum

AEP:MHN:PC:MM:Ctnw DJ 168-3-37

Subject

Date

Settlement Agreement in United States v. Pennsylvania, Civil No. 93-CV-2094

SEP I 3 1394

To
Deval L. Patrick Assistant Attorney General Civil Rights Division

From

Arthur E. Peabody, Jr.

\

Chief Special Litigation Section

I recommend approval of the attached settlement agreement in United States v. Pennsylvania. Civil No. 93-CV-2094 a CRIPA suit concerning conditions of confinement at the Embreeville Center, a facility housing approximately 180 persons with mental retardation located near Philadelphia, Pennsylvania. The Court has ordered that the parties present the signed agreement by September 21, 1994.

This suit was brought in April 1993 and was scheduled for trial on September 14, 1994. After suit was filed a group of parents and guardians intervened. In January 1994, a separate class action suit against Embreeville, Nelson v. Snider. was filed by ARC-Pennsylvania, and by Pennsylvania Protection and Advocacy, Inc., and was subsequently consolidated with our CRIPA suit.

The case has been actively litigated since its inception, including document production of over 100,000 documents, 20 depositions, numerous examinations of the facility by seven different experts retained by the United States, and the filing of and response to numerous motions both procedural and substantive. We scored several significant preliminary victories which may have helped us achieve the settlement described below, including the first explicit ruling under CRIPA that the standard of proof which applies at trial to the United States is the same standard as applies to any other plaintiff suing over similar conditions, and a ruling that the defendants were precluded from relitigating certain adverse findings of fact made by another federal district court in Pennsylvania concerning former residents of the Pennhurst State Hospital and Training School, some of whom are living at Embreeville. The findings to which defendants were bound include descriptions of the harm caused by

-2 -
institutionalization and the benefits of community placement on the well being of those once institutionalized.
The settlement agreement described below was the product of many months of negotiations among the many parties to this litigation and among the many different defendants. If approved by the Court, the agreement would dramatically improve the lives of those living at Embreeville. The following is an outline of some of the major provisions of the agreement.
Closure. Defendants will permanently close the facility by October 1997. Fifty-seven of the 180 residents will be placed in community living arrangements by June 30, 1995. Defendants plan to place the remaining residents in the community over the next two years. If defendants fail to implement their plan, plaintiffs have the right to request that the Court order the remaining placements.
Monitor and Expert Panel. To monitor defendants' compliance with the terms of the agreement, and to fulfill certain other duties, the parties will select a Monitor and panel of experts. Defendants have agreed to spend up to $110,000 annually for the Monitor's and panel's fees and expenses.
Process of Community Placement. The specific means by which residents are to move to the community is covered in some detail by the agreement, including the provision of persons whose sole job is to coordinate and facilitate placement, and the provision of detailed plans, developed according to resident preferences, to guide the placement process. The Monitor must approve all placements.
Limitations on Placement. Defendants agreed not to place any resident into a community living arrangement of greater than three persons with developmental disabilities unless the Monitor approves. Defendants may not place residents in boarding or nursing homes without Monitor approval.
Services in the Community. Defendants agree to provide all necessary services to ensure successful placements. The Monitor can alter or switch a person's placement if it is unsuccessful.
Quality Assurance. In addition to the Monitor and expert panel, defendants will fund teams of parents, guardians, and advocates who will also Monitor the quality of care and services provided residents in the community.
Grievance System. The parties will establish a grievance system in which any person unsatisfied with the quality of care and services in the community may be heard by an independent arbitrator. Defendants must comply with the arbitrator's decision.

-3 -
Implementation Plan and Monthly Compliance Meetings. Defendants will provide the Monitor and plaintiffs with a plan of implementation of their obligations under this agreement within 90 days. Thereafter, monthly meetings will be held to assess defendants' progress towards their obligations.
Increased Services to Residents. Defendants will provide Embreeville residents with increased psychological, psychiatric, medical, and physical therapy services. The defendants' obligations in these areas are spelled out in detail in the agreement. As part of those increased services, defendants will retain independent experts to provide expertise for all residents. Defendants are obligated to create a new data collection system for tracking the progress or deterioration of each resident.
Increased Staff. Defendants will hire additional staff so that the staff to resident ratio is no less that 1:4. Staff who are assigned 1:1 supervision with certain residents will not be included in the 1:4 calculation. Defendants will hire a Ph.D. psychologist with experience in behavior management, and will hire an additional occupational therapist.
Termination of the Agreement. The agreement extends until at least 12 months after the last person has been placed in the community. At that time the Court will hold a hearing to determine whether the agreement will be terminated. The Court will receive the recommendations of the Monitor and Panel as to defendants' compliance with the agreement, which shall be presumptively correct, absent rebuttal by any party. The Monitor's recommendations shall be based on a review of the care and treatment of 20 percent of the former Embreeville residents. If the Court concludes that defendants have substantially complied with the agreement, it shall be terminated.
Matching Funds. The agreement contains a commitment that for each dollar given to Pennsylvania counties to provide services for Embreeville residents moved to the community, the defendants will give a like amount to the counties for services for persons needing services but who did not reside at Embreeville.
I recommend that you approve the attached settlement agreement.
Attachmen
Approved:
Disapproved:
Comments:

 
 ¯ ..Memorandum

AEP:MHN:PKC:MM:CA:plh DJ 1 6 8 - 6 2 - 1 8

Subject

Daie

Press Release and Information Regarding Settlement in United
States, et al. v. Pennsylvania, et al.. C.A. No. 92 CV 2094 (E.D. Pa.)

SE? í 9 •-

ToPamela K. Chen C¾7<. Trial Attorney ' Special Litigation Section Civil Rights Division

FromMyron Marlin Public Relations Civil Rights Division

Attached are the materials I discussed with Lee Douglass last week relating to the settlement reached in United States, et al. v. Commonwealth of Pennsylvania, et al.. C.A. No. 92 CV 2094 (E.D. Pa.)· As you will see, I have included: a) a draft press release; b) copies of the internal memoranda between our office and the front office describing the agreement; c) a copy of the agreement; and d) two newspaper articles that came out a day or two after the agreement was signed by all parties.
You should be aware that although Mark Masling, the other trial attorney in this case from our office, and X had signed the agreement by September 13, 1994, we did not received final approval on it from Assistant Attorney General Patrick until September 15, 1994. Therefore, we did not feel that we could respond to any inquiries from the media until that time. In addition, at the time of signing, we agreed not to speak to the media about the settlement for 48 hours, in order to allow the State to be the first to notify the state employees' union of the intended facility closure.
As it turns out, the story (including a copy of the actual agreement) was somehow leaked to the media, which prompted the almost immediate coverage of the agreement. Given these events, I do not think we will receive much attention on any press release we issue. If you have any questions, please give me a call at Extension 4-6261. Thank you for all of your assistance.

DRAFT

¡

September 19, 1994

FOR IMMEDIATE RELEASE September , 1994

EMBREEVILLE CENTER TO BE CLOSED UNDER SETTLEMENT REACHED IN DEPARTMENT OF JUSTICE LAWSUIT

On September 12, 1994, only days before trial was to begin,

the Commonwealth of Pennsylvania signed a historic agreement with

the Department of Justice resolving civil rights claims brought

by the Department regarding the care and treatment being provided

to individuals residing at the Embreeville Center, a state

residential facility for individuals with developmental

disabilities outside of Philadelphia, Pennsylvania. In the

\

agreement, the Commonwealth agreed on a plan to place all of the

!

individuals currently residing at Embreeville Center into

community homes and to close the facility by September 1997.

This agreement, which represents an unprecedented collaboration

between the United States and parent and public advocacy groups,

also requires the Commonwealth to make substantial improvements

at Embreeville during the three-year period prior to its planned

closure.

In its complaint filed last April in this case, the

Department alleged that the Commonwealth was failing to provide

Embreeville•s approximately 200 residents with adequate

programming, medical care and therapy services and that they were

¡

subjecting residents to undue risks of harm and unreasonable

restraint. At trial, which was scheduled to begin on September

14, 1994 before Federal District Court Judge Clarence C.

;

Newcomer, the United States and their co-counsel from the parent

1

and public advocacy groups were prepared to present the testimony

of at least 20 expert and lay witnesses and over 200 exhibits

supporting their claims as to the unconstitutional conditions at

the facility. The trial was expected to last six weeks.

Regarding the resolution of the lawsuit, Assistant Attorney

General of the Civil Rights Division, Deval L. Patrick, said that

"the agreement reflects the Department's policy on the need for

states to turn away from the traditional practice of

institutionalizing of individuals with developmental disabilities

and to develop community alternatives. The agreement reached by

the United States and the Commonwealth of Pennsylvania represents

a significant vindication of the rights of individuals with

developmental disabilities to receive appropriate habilitation

and care and not to be confined to state institutions. It is the

Department's hope that this agreement will have an impact beyond

this lawsuit and this institution."

Within the coming weeks, the parties will be asking Judge

Newcomer to enter the agreement as an order of the Court and to

retain jurisdiction over the agreement to ensure its enforcement.

The agreement will remain in effect for at least one year after

the last resident leaves Embreeville, after which time the

Commonwealth may petition the Court for termination of the

agreement based on a finding of compliance with the terms of the

agreement.

EXPEDITE

ì
ROUTING AND TRANSMITTAL SLIP
TO: 1. Deval L. Patrick 2. 3.

Date: September 15, 1994

Initials

Date
'11

RE: Recommended approval of Consent Decree in United States v. Pennsylvania, a CRIPA lawsuit. Decree must be filed with court by Sept. 21, 19 9 4
I recommend that you approve and authorize the filing of the attached consent decree from the Special Litigation Section.
I have reviewed the consent decree and discussed it with Art Peabody. It provides comprehensive relief for the alleged constitutional violations of institutionalized persons with mental retardation confined at the Embreeville Center.
In summary, the decree provides for an extensive and thorough medical, physical and psychological examination of each resident and the provision of appropriate treatment by independent professionals; the training of staff; the hiring of additional staffpersons so that the ratio of staff to residents will be no greater than 1:4 during the daytime and 1:8 at night;
The decree also provides for the closing of the facility by October 1997, and the community of placement of all current residents. In combination with the community placement, each resident will be placed on a personal program to ensure proper treatment after community placement.
All of the relief will be observed and enforced by a Monitor whose expenses will be paid by the defendants. Although he decree will terminate 12 months after the placement of the last resident, a grievance process will be put in place to allow residents and their families to take any aspect of the resident's community placement or treatment after the termination of the decree to an independent arbitrator. Defendants will be bound by the arbitrator's decision.
FROM: Loretta King N ^ Deputy Assistant Attorney General, Voting Section

THE PHILADELPHIA INQUIRER
carter for retarded
accord

;hat-aity pollution )urt disagreed.

Embreeville residents are.;; [••to cove into, community •:•/

•put of the way. :

.

'.Federal 'and state investigations

substantiated many oT the reports. A'

ed hailed the settlement.
"I UaltX tils agreement Is th* bas; agreement I've ever seen in terras of

"j.figh: over mistreatment." lounsel'for the former Perm
He added that the company decided, whether to make its sib! -eal of.the ruling, td ' ;.'Supreme Court. itHj ',y a few'days left to Th* ,ieuy must appeol 0 day* „» the ruling, which is ug- 23. Olson said tha: is cot
.th# .nffactive date of the
'•*«.wos. heard by a 'special idge. .federal court set up to matters related to the demiae j>enii Central'ln 1976 and the f Coarail, originally a quasicompany eraatcd by COP grass freight operations considered
federal 'government negoti>r years with1 Peon Central fair •price for the sprawling

j settings. Thus ends a

, -,'ir.sintactiedeInntssp'eocft.iofrneqIune1n9t90fuflolus n«dw"nmUainngy-

improving a facility and putting ir. place mechanisms to make s'Jrc the

in • bruises; lacerations and• frac- .improvements will be good," said££•

tures,"-many of which "reflocte-d t o ' 'naond A.Tiryak, the' attorney for Pso-

I : . " '• • «"••' . ' " > ' / • • ; ; - ; • / ; ' • ; "knowa cause" for injuries." Is. 1991, pie Interested i t Embrsev'ille Rasi

I

• By Julia C. Martinez \

•rilae^employees were fired or'sus- duuls, a S^su? eoMistiag of th*

. I N Q U I R E R S T A l - P W R I T S * • . . . pended for incidents ranging fron . families of Embreevllie resident

A lz-% asd miserable saga of abuse -

. and i«jlect of mentally r«urd»d TC«>

ldes'j at the Erabreevllle Center

c e s s *.o an end yosteiday whea state '

offici&ls announced that the Coates-

yllle facility would be closed in three

yesrs.

'• :"[''• :'".

• ' •;

The closure settles a1lawsuit by the •

JJ.S. Dep«rtmeat o( Justle* against

the CcsmonvealTh of'Pennsylvania ;

'over operation of the center.

• t>dar the •settlement,, residents

•will b« moved into community set-

tlags where .treatment and services'

will be scrutinized'.by coun-ap-

poiz'.ed munliwis and pan«U of p«y-

chlatrists and other experts.

physical abuse of patients to failure

to report'' suspectod abuse aad rrr following cisnter policies.' •'.' •••'••

Last year, the Justice Department

sued Pennsylvania, alleging that the state's'management of the Chester County facility violated the rights of

iu 225 residents under the federal

Civil'Rights of ln«titution»lizod Per-

soas Act of 1980. •

•

The'-'cast was scheduled to go to

trial today in iI5. District Court in-

PhUadelphis. .

'

Aaong the tecusatibes leveled by

. tho Justice Department we're that

Embreevlllo employees wer* poorly

'trained, that residents were cot

"The very significant thing abcr this case is that parents, advocate; •'.r• e. sidents aad the VS. goverrstcr. all sat on one/side of the table an. were i t agreement on what neede.
' 10 be dime," sold U'eae Shor.c, o la'~ yer with the Disabilities Law Prcicc ir. Philadelphia. She represented lire
, breeville residents la a coir.oasic ' lawsuit, which is also resolvecf by i':. . current settlement. ' •
. Judith C:a- of the Public Intcre ' Law Center of Philadelphia, the lea
attorney or the co'iapanloa lawsu said that in tho long run, the cost housing Eaibreevllla residents the community is expected to be it

d.la arguiag that It shouldn't Iz the mcantimo; the quality of given adequate medical-core and,' than the SS6.000 per year it now co:

° pay-for the Paoli cUaaup, 'car« at'EmbrMVtlle ..will be vastly !that residents wera dispensed pay-- to house each individual a: Erebr:

Central said the government '•to a:.tprice,for the railroad ty and now wants the seller to bock and make Improvements.

upgraded until the . last patient chotropic dpigs "as a form of chemi-

checks out by the target date of Sept. !cal-restraint in lieu of treatment or

30,1997, lawyers involved In the set- for the convenience of the staff."

tlement said. -• ' • -. • .

.' la a'news release yesterday, Kares

ville. • • • .
The plan will cover more \itz : individuals who have resided e i ' F.mbreeville center slr.ee April

the court said the sale price The settlement, which is subject to . F.. Snider, secretary of .the Depart- 1992, as well as retarded pocple L

othing to do with Peas Cea- fec"»:al court approval/Svould end; ment of Public Welfare, said the set- living in the community who

liability tor' pollution duriag the guvwrcnr.Mng chronicle of mis-' tlement was "In the best interest" of either unserved or uadcrscr.

me It"owned the yard.

trea'jnent of retarded rasldencs by the residents.' "We intend to worX Gran said.

len-'Perin 'Central owned ar.d EnircsvlUe oniployees and by crimi- with each individual to see that the - Under the agreemen:, the 162 ad

led'thase.yards for profit ... na'.s once housed at the facility. . services they receive in the future now living at Embreevllie will ie

C« became primarily res rcoreevUle Cenwr waa opened In arc equal to or b«ttor thaa thflr the center during a three-yeer trs

»ba iatpollution," said the 1933 as a hospital for .people with current cafe.".Snider said.

tion period beginning imir.edi:

w

residing Judge Joha K.e;:»l illness and v/as converted to Meanwhile, staff training will be old cove Into a group borne, or. a:

I a eost«r for people wtth mental r<?- 1mproved, private consultants will nest or ar.y number of nvailable

;

*

.

-

*

-

••'.•••

TA, ConraU and Am Irak arenot t » r d J t i o n i n 1972. •;•••' .. . be hired and physical ana occupa-

•sartly off.the hook completely.
though they aren't responsible
ollutlbn before 1976. n future .could rule'that all past and :zt tenants and owners of the

Iz recent years, residents had b « n tional therapists.will be added. MediI reported boaton, raped-and' as- cal care and the use of medication I >8uitcd. Some allegedly 'had'beno« . " will b« cArafully monttnred. tne plan | broken. Many had been, drugged by ",said. ' .' •';'• I center staft to keep them quiet and Advocates for the menully retard-

tings in Uielr respective come en. "The agreement will rema::
place for a year after the last pc is noved acd until the pssel 0 perts dacides that everyone «••; takon care of," Tiryak said

yard tBttst share responsibility

use pollution may have taken

_ _V.J_ *_

- i,M,'t.;.tiii/;4H .

THE

TPHIADAILY NEWS

WEDNESDAY

\!BER 14, 1994

'Nightmare' institution to

out by '97

by Jim Smith end lofta F. Morrison

spread abuse of patients ot tlic

for years. Ijsl year. Nor- approved by Newcomer, who will

Chester County institution for man Uaker, president of 1'hiliilcl- hold a hearing onthemailer n( an

the retarded.

phia Advocates for Persons With undetermined date.

Ihily Neu» Staff Writers

The agreement calls for phas- Mental Retardation, railed the in- Ilene W.Shane, of the Disabil-

The "nightmare" Is endiof; fur Inp, out tfc facility by .September stitution a "nightmare."

ities I J W IVoJecl. who repre-

residents of the Kinbrecvillc Cen- 1(97 and Irunsferrin)* patients to His comments came after the sented resldenb of the center,

ter and their families.

community housing under the su- U.S. Justice Department sued the said theagreement has three ma

A lajt minute agreement among pervision of outside monitors

Pennsylvania Welfare Depart- jor components:

slate »nd federal officials, fam- The Kmbreevillc Center, out- ment over operation of the cen- • Protection of residents during

ilies andpatient advocacy groups side of Ceatesville, has been the ter.

the transition period.

was reached on tbe very eve ofa focus of complaints about patient Dakcr's description of the facil- • Themovement of patients i n n

(rial on a soil charging wide- abuse, poor care m d crumbling ity was one of the kinder com- residential housing in commutr.-

ment* made about th« institution ties of their choice.

ffREE STVINMAS1T0SE•QR•.2YmD8S/O9N-L'Y FEATURE DUPONT

in the past dozen or so year?, as complaints byfamilies of patients and their advocate groups about the center escalated.
Trial on the latest suit, filed last February bysix residents and two patient-advocate groups, was to have started today before VS. District Judge Clarence._£.__Ncw-_ "comer. " """' •''" *
The agreement wilt have tobe

• Protection of patients in those community settings.
"This is really exciting," Shane said. "Forthe first time. we. th< representatives et the residents and families and advocacy groups were sitting on tbe same aide of the table with the United States •pMrcnunenrfall In qgreenent on how to solve these problems."
Edmond A. Tiryak, who repre

rREE Iff yiALL. 10 TIL WEAK WARRANIY

sentcd family members in the sail, said, "Kmbrtcville residents and their families can today be

EASY FINANCING

assured that there will bea major

H O. MNOOMNYMCINfTar oVtA3MONTHS

upgrading of services at the facil-

*UCOlO«»$mi$AV/W.SI0YP.AOD.YW».

ity, ihnt their concerns about community placements will be heard, and(hat community placeinc»ls will be .sale, secure and monitored."
The agreement calls for in creucd staffing and psychiatric services <i( the center, increases in the quality of medical care, including more use of ovtside consultations, with provisions for quick solutions to any future problems that may occur.
O n e residents have been placed in :he community, the agreement calls for guaranteed lifetime care «nd security.
Shane uoied thai "people do best in the kinds of environment that everybody else lives in." Under the agreement, she said, paticn's* might live in their own homes, family homes or in group residences with two or three others.
Services to meet their -needs will be provided for them i i the homes in which they settle, she said •

DATA
CARPET
SINCt1943
CANT CALL POLICE

332-4597
9226 KeystoneSt.

90 DaysSame AsCash* (
COLOR TV. VCR
UMFTEP QUAHTflY
"SALE"

Fence gets 5 years in 'smash &grab'

by Jim Smith
Daily News Staff Wr~ilei~ The jeweler and the nine

Assistant US. Attorneys Rotert Goldman and Cbmupher Hall noted that all hut one of the thieves cooperated with authori-

thieves had little in conuion, il ties after bcinR confronted by FBI

seemed.

agents, and were shown some le-

I - I'

Robert Colt, a merchant onJewelers' Row in Philadelphia, was groomed and wealthy and well-

niency by the judge asa consideration lor their willingness toconfess and testify.

mannered, and when he pur- The longer iwntence. were re-

chased the thieves' stolen Kolex S<TVC«I for tin1 llncvcs wlio hid

 
 United States District Court Eastern District of Pennsylvania - Docket Report

Page 1 of 20

CLOSED, LEAD, STANDARD
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:93-cv-02094-CN

UNITED STATES v. COMMONWEALTH OF PA, et al Assigned to: JUDGE CLARENCE C. NEWCOMER Demand: $0 Cause: 42:1997 Institutionalized Persons Act of 1980

Date Filed: 04/21/1993 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

Plaintiff UNITED STATES OF AMERICA

represented by DAVID DEUTSCH U.S. DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION SPECIAL LITIGATION SECTION 601 D STREET N.W. WASHINGTON, DC 20004 202-514-6270 LEAD ATTORNEY ATTORNEY TO BE NOTICED

DEBRA LEANNE WROBEL COHN U.S. ATTORNEY'S OFFICE 615 CHESTNUT STREET SUITE 1250 PHILA, PA 19106-4476 TEL 215-861-8443 Fax: FAX 215-451-5618 LEAD ATTORNEY ATTORNEY TO BE NOTICED

EDMOND A. TIRYAK EDMOND A. TIRYAK, ESQUIRE P.O. BOX 229 WAYNE, PA 19087-0229 610-341-9797 Email: etiryak@email.msn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

JAMES P. TURNER DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION P.O. BOX 65998 HOUSING & CIVIL ENFORCE. SECTION WASHINGTON, DC 20035-5998 TERMINATED: 07/29/1994

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LEAD ATTORNEY
JANET RENO U.S. ATTORNEY GENERAL 320 FIRST STREET, NW WASHINGTON, DC 20530 TERMINATED: 07/29/1994 LEAD ATTORNEY
MARK MASLING SPECIAL LITIGATION SECTION CIVIL RIGHTS DIVISION U.S. DEPT. OF JUSTICE POST OFFICE BOX 66400 WASHINGTON, DC 20035-6400 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MELLIE H. NELSON U.S. DEPARTMENT OF JUSTICE SPECIAL LITIGATION, CIVIL RIGHTS 320 FIRST STREET, NW WASHINGTON, DC 20530 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL J. ROTKO U.S. ATTORNEY'S OFFICE 615 CHESTNUT STREET SUITE 1250 PHILA, PA 19106-4476 TEL 215-861-8443 Fax: FAX 215-451-5618 LEAD ATTORNEY ATTORNEY TO BE NOTICED
PAMELA K. CHEN U.S. DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION SPECIAL LITIGATION SECTION 601 D STREET, N.W. ROOM 5126 WASHINGTON, DC 20004 202-514-6273 Fax: 202-514-6273 TERMINATED: 08/14/1998 LEAD ATTORNEY
PHILIP A. GUZMAN SPECIAL LITIGATION SECTION-

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United States District Court Eastern District of Pennsylvania - Docket Report

Page 3 of 20

V.
Defendant
THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES

U.S. DEPT. OF JUSTICE 320 FIRST STREET, NW WASHINGTON, DC 20530 TERMINATED: 07/29/1994 LEAD ATTORNEY
ROBERT H. STERN U.S. DEPARTMENT OF JUSTICE P.O. BOX 66400 WASHINGTON, DC 20035-6400 LEAD ATTORNEY
SHANETTA Y. CUTLAR U.S. DEPT OF JUSTICE CIVIL RIGHTS DIV 950 PENNSYLVANIA AVENUE N.W. WASHINGTON, DC 20530 202-514-6270 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BARRY N. KRAMER MCKINLEY, RYAN & KRAMER LLC 1520 LOCUST STREET 10TH FLOOR PHILADELPHIA, PA 19102 215-731-0231 Email: bnkramer@rcn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
HOWARD ULAN DEPT. OF PUBLIC WELFARE 305 HEALTH AND WELFARE BLDG. OFFICE OF LEGAL COUNSEL HARRISBURG, PA 17120 LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS B. YORK SAUL, EWING, REMICK & SAUL LLP 2 NORTH SECOND STREET, 7TH FL.

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Defendant ROBERT CASEY Governor of the Commonwealth of Pennsylvania
Defendant NANCY THALER Deputy Secretary of Mental Retardation Office of Mental Retardation, Department of Public Welfare
Defendant REUBEN SHONEBAUM Director Embreeville Center

PENN NATIONAL INSURANCE TOWER HARRISBURG, PA 17101 717-257-7590 Fax: 717-257-7590 TERMINATED: 06/29/1998 LEAD ATTORNEY
represented by BARRY N. KRAMER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
HOWARD ULAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS B. YORK (See above for address) TERMINATED: 06/29/1998 LEAD ATTORNEY
represented by BARRY N. KRAMER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
HOWARD ULAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS B. YORK (See above for address) TERMINATED: 06/29/1998 LEAD ATTORNEY
represented by HOWARD ULAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS B. YORK (See above for address) TERMINATED: 06/29/1998 LEAD ATTORNEY

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Defendant KAREN F. SNIDER
Intervenor Plaintiff PEOPLE INTERESTED IN EMBREEVILLE RESIDENTS

represented by HOWARD ULAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS B. YORK (See above for address) TERMINATED: 06/29/1998 LEAD ATTORNEY
represented by EDMOND A. TIRYAK (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/21/1993 04/21/1993 04/21/1993 05/25/1993 06/02/1993
06/09/1993
06/11/1993
06/14/1993

#

Docket Text

1 Complaint. (mrs) (Entered: 04/21/1993)

Summons(es) issued Forwarded to: given to AUSA 04/21/93 (mrs) Modified on 04/21/1993 (Entered: 04/21/1993)

Standard Case Management Track. (mrs) (Entered: 04/21/1993)

2 Acknowledgement of service as to DEFENDANT KAREN F. SNIDER 5/17/93 (ph) (Entered: 05/25/1993)

3 MOTION TO INTERVENE BY MOVANT EMBREEVILLE RESIDENT AS PARTY PLAINTIFF , MEMORANDUM, CERTIFICATE OF SERVICE. (Complaint attached) (ph) (Entered: 06/02/1993)

4 UNCONTESTED MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT KAREN F. SNIDER, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM TO EXTEND TIME TO RESPOND TO COMPLAINT , CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE. (ph) (Entered: 06/09/1993)

5 ORDER GRANTING DEFENDANTS' MOTION FOR ENLARGEMENT OF TIME TO ANSWER COMPLAINT, RESET ANSWER DUE FOR 6/11/93 FOR REUBEN SHONEBAUM, FOR NANCY THALER, FOR KAREN F. SNIDER, FOR CASEY, FOR COMMONWEALTH OF PA ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 6/14/93 ENTERED AND COPIES MAILED. (ph) (Entered: 06/14/1993)

6 MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT KAREN F. SNIDER,

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06/23/1993 06/24/1993 06/24/1993
06/29/1993 08/02/1993 08/27/1993 09/02/1993
09/08/1993
09/23/1993
09/23/1993 09/23/1993

DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM TO DISMISS , BRIEF, CERTIFICATE OF SERVICE. (ph) (Entered: 06/14/1993)
7 Response by PLAINTIFF UNITED STATES to [3-1] MOTION TO INTERVENE BY MOVANT EMBREEVILLE RESIDENT AS PARTY PLAINTIFF, Certificate of service (ph) (Entered: 06/23/1993)
8 ORDER GRANTING MOTION TO INTERVENE BY MOVANT EMBREEVILLE RESIDENT AS PARTY PLAINTIFF ETC ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 6/25/93 ENTERED AND COPIES MAILED. (ph) (Entered: 06/25/1993)
9 Intervenor's complaint by MOVANT EMBREEVILLE RESIDENT against DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT KAREN F. SNIDER, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM (ph) (Entered: 06/25/1993)
10 Memorandum by PLAINTIFF UNITED STATES in opposition to [6-1] MOTION TO DISMISS, Certificate of service (ph) (Entered: 06/30/1993)
Pre-trial conference SET at 11:15 8/17/93 (ph) (Entered: 08/03/1993)
11 PRETRIAL SCHEDULING ORDER FILED, ETC. ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 8/27/93 ENTERED AND COPIES MAILED BY CHAMBERS. (cd) (Entered: 08/27/1993)
12 MEMORANDUM AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS; DEFENDANTS' ARE ORDERED TO FILE AN ANSWER WITHIN 5 DAYS OF THIS ORDER ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 9/2/93 ENTERED AND COPIES MAILED. (ph) (Entered: 09/02/1993)
13 ORDER THAT UPON CONSIDERATION OF PARTIES' PROPOSED JOINT DISCOVERY-MANAGEMENT PLAN, THE PLAN IS ADOPTED AS MODIFIED BY THE COURT; CUT-OFF DATE FOR SUMMARY JUDGMENT AND IN LIMINE MOTIONS 7/1/94; PRETRIAL MEMORANDA & EXCHANGE OF EXHIBITS AND WITNESS LIST 7/1/94; FINAL PRETRIAL CONFERENCE BY 8/1/94. TRIAL DATE FOR 9/1/94 . ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 9/9/93 ENTERED AND COPIES MAILED. (kw) (Entered: 04/25/1994)
14 Answer to Complaint by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT KAREN F. SNIDER, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM (Attorney THOMAS B. YORK), Certificate of Service. (mc) (Entered: 09/23/1993)
ISSUE JOINED. (mc) (Entered: 09/23/1993)
15 Answer by COMMONWEALTH OF PA, ROBERT CASEY, KAREN F.

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10/04/1993 10/05/1993 10/06/1993 10/13/1993 10/15/1993 10/19/1993 10/26/1993
11/01/1993 03/28/1994

SNIDER, NANCY THALER, REUBEN SHONEBAUM to [9-1] intervenor complaint, Certificate of Service. (mc) (Entered: 09/23/1993)
16 MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT KAREN F. SNIDER, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM TO EXTEND TIME TO RESPOND TO DISCOVERY REQUESTS , CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE. (ph) (Entered: 10/04/1993)
17 Appearance of PAMELA K. CHEN and MARK MASLING for PLAINTIFF UNITED STATES, Certificate of service (ph) (Entered: 10/06/1993)
18 ORDER GRANTING DEFENDANTS' MOTION TO EXTEND TIME TO RESPOND TO DISCOVERY REQUESTS ETC ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 10/7/93 ENTERED AND COPIES MAILED. (ph) (Entered: 10/07/1993)
19 MOTION by PLAINTIFF UNITED STATES TO STRIKE DEFENDANTS' SECOND DEFENSE OR IN THE ALTERNATIVE FOR PARTIAL SUMMARY JUDGMENT , MEMORANDUM, CERTIFICATE OF SERVICE. (ph) (Entered: 10/13/1993)
20 MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT KAREN F. SNIDER, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM TO EXTEND TIME TO RESPOND TO DISCOVERY REQUESTS , CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE. (ph) (Entered: 10/18/1993)
21 ORDER GRANTING DEFENDANTS' UNCONTESTED MOTION TO EXTEND TIME TO RESPOND TO DISCOVERY REQUESTS ETC ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 10/19/93 ENTERED AND COPIES MAILED. (ph) (Entered: 10/19/1993)
22 Response by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT KAREN F. SNIDER, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM to [19-1] MOTION TO STRIKE DEFENDANTS' SECOND DEFENSE OR IN THE ALTERNATIVE FOR PARTIAL SUMMARY JUDGMENT, Certificate of service (ph) (Entered: 10/27/1993)
23 ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE DEFENDANTS' SECOND DEFENSE OR IN THE ALTERNATIVE FOR PARTIAL SUMMARY JUDGMENT; ETC SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 11/2/93 ENTERED AND COPIES MAILED. (ph) (Entered: 11/02/1993)
24 ORDER THAT PLAINTIFF'S MOTION TO CONSOLIDATE 94-440 AND 93-2094 IS GRANTED; THE FILE IN 94-440 SHALL BE TRANSFERRED TO THE FILE IN 93-2094, AND CASE NO 94-440 IS

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03/28/1994 04/13/1994 04/26/1994 05/11/1994
05/20/1994 06/27/1994 06/29/1994
07/01/1994

TO BE MARKED CLOSED FOR STATISTICAL PURPOSES ETC ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 3/29/94 ENTERED AND COPIES MAILED. (ph) (Entered: 03/29/1994)
Consolidated Lead Case (ph) (Entered: 03/29/1994)
25 Response by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT KAREN F. SNIDER, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM to motion for class certification, Certificat of service (ph) (Entered: 04/13/1994)
26 ORDER THAT PLAINTIFFS' MOTION FOR CLASS CERTIFICAITON IS GRANTED; A CLASS OF PLAINTIFFS IS CERTIFIED PURSUANT TO FRCP 23 ETC ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 4/26/94 ENTERED AND COPIES MAILED. (ph) (Entered: 04/26/1994)
27 ORDER THAT THIS COURT'S ORDER OF 4/26/94 IS AMENDED TO CERTIFY A CLASS OF PLAINTIFFS PURSUANT TO FRCP 23 AS FOLLOWS: ALL PERSONS WHO, ON OR AFTER 4/21/93, RESIDED OR WILL RESIDE AT EMBREEVILLE CENTER; ALL PERSONS WHO HAVE BEEN TRANSFERRED OR WILL BE TRANSFERRED FROM EMBREEVILLE CENTER AFTER 4/21/93, AND WHO REMAIN DEFENDANTS' LEGAL RESPONSIBILITY; AND ALL PERSONS AT RISK OF BEING PLACED AT EMBREEVILLE CENTER ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 5/12/94 ENTERED AND COPIES MAILED. (ph) (Entered: 05/12/1994)
All pleadings received from case # 94-440 per order of March 28, 1994. (ph) (Entered: 05/20/1994)
28 MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM, DEFENDANT KAREN F. SNIDER TO EXTEND TIME TO FILE PRE TRIAL MEMORANDUM AND MOTIONS , CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE. (ph) (Entered: 06/27/1994)
29 ORDER GRANTING DEFENDANTS' MOTION TO EXTEND TIME TO FILE PRE TRIAL MEMORANDUM AND MOTIONS, RESET SCHEDULING ORDER DEADLINES: DEADLINE FOR FILING OF SUMMARY JUDGMENT AND MOTIONS IN LIMINE BY 7/15/94; PLAINTIFF'S PRETRIAL MEMORANDUM DUE 7/15/94; DEFENDANT'S PRETRIAL MEMORANDUM DUE 7/15/94 ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 6/30/94 ENTERED AND COPIES MAILED. (ph) (Entered: 06/30/1994)
30 Appearance of EDMOND A. TIRYAK for INTERVENOR-PLAINTIFF EMBREEVILLE RESIDENT, Certificate of service (ph) (Entered: 07/05/1994)

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07/15/1994 07/15/1994 07/15/1994 07/18/1994 07/26/1994 07/27/1994
07/27/1994
07/29/1994 07/29/1994 08/03/1994

31 MOTION BY PLAINTIFF UNITED STATES OF AMERICA IN LIMINE , MEMORANDUM, CERTIFICATE OF SERVICE. (td) (Entered: 07/15/1994)
32 Plaintiffs' Pretrial Memorandum, exhibits, certificate of service. (td) (Entered: 07/15/1994)
33 Defendant's Pretrial Memorandum, Certificate of service (ph) (Entered: 07/18/1994)
34 ORDER, RESET SCHEDULING ORDER DEADLINES: PRETRIAL CONFERENCE BY 3:15 7/27/94; TRIAL POOL DEADLINE SET FOR 9/6/94 ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 7/19/94 ENTERED AND COPIES MAILED. (ph) (Entered: 07/19/1994)
35 MOTION by HARRY NELSON TO AMEND THE COMPLAINT , MEMORANDUM, CERTIFICATE OF SERVICE. (tc) (Entered: 07/27/1994)
36 ORDER THAT ALL OBJECTIONS TO EXHIBITS IDENTIFIED IN THE PARTIES' PRETRIAL MEMORANDA SHALL BE SERVED AND FILED BY 8/23/94; OBJECTIONS SHALL STATE THE SPECIFIC GROUNDS UPON WHICH THE OBJECTION IS BASED; EXHIBITS TO WHICH NO OBJECTIONS HAVE BEEN RAISED SHALL BE ADMITTED IF OFFERED AT TRIAL ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 7/28/94 ENTERED AND COPIES MAILED. (ph) (Entered: 07/28/1994)
37 ORDER THAT UPON AGREEMENT OF THE PARTIES, IT IS ORDERED THAT COUNSEL FOR ALL PARTIES TO THESE CONSOLIDATED CASES ARE DIRECTED TO MEET AND REVIEW THE SETTLEMENT STATUS OF THIS CASE, AND REPORT THE RESULTS TO THE COURT IN WRITING BY 8/15/94; ALL COMMONWEALTH OF PA. OFFICIALS NEEDED TO APPROVE A SETTLEMENT SHALL BE AVAILABLE TO MEET WITH COUNSEL FOR PLAINTIFFS WITHIN THIS TIME ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 7/28/94 ENTERED AND COPIES MAILED. (ph) (Entered: 07/28/1994)
38 Praecipe by PLAINTIFF UNITED STATES requesting that the following individuals be removed from the list of attorneys of record: Attorney General JANET RENO, former Assistant Attorney General JAMES P. TURNER, former Department of Justice Trial Attorney PHILIP A. GUZMAN, Certificate of service. (ph) (Entered: 07/29/1994)
39 Memorandum by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM, DEFENDANT KAREN F. SNIDER in opposition to [31-1] MOTION IN LIMINE, Certificate of service (ph) (Entered: 07/29/1994)
40 PLAINTIFF UNITED STATES' Reply Memorandum in Support of its Motion in Limine, certificate of service. (aa) (Entered: 08/03/1994)

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08/05/1994 08/09/1994 08/19/1994
08/19/1994
08/22/1994 08/22/1994 08/23/1994
08/23/1994 08/24/1994 08/24/1994

41 Addendum of PLAINTIFF UNITED STATES to its Pretrial Memorandum, certificate of service. (aa) (Entered: 08/05/1994)
42 MOTION BY PLAINTIFF UNITED STATES TO APPLY THE DOCTRINE OF ISSUE PRECLUSION TO CERTAIN FACTUAL FINDINGS MADE IN HALDERMAN V. PENNHURST , MEMORANDUM, CERTIFICATES OF SERVICE. (fe) (Entered: 08/09/1994)
43 MOTION BY DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM, DEFENDANT KAREN F. SNIDER FOR A RULING ON THE ADMISSIBILITY OF EXPERT TESTIMONY , CERTIFICATE OF SERVICE. (fe) (Entered: 08/19/1994)
44 MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM TO COMPEL RESPONSES TO DISCOVERY and CONJUNCTIVE MOTION FOR A CONTINUANCE , MEMORANDUM, CERTIFICATE OF SERVICE. (tc) (Entered: 08/22/1994)
45 Response by NOTICE ONLY HARRY NELSON to [43-1] MOTION FOR A RULING ON THE ADMISSIBILITY OF EXPERT TESTIMONY, Certificate of Service. (mc) (Entered: 08/22/1994)
MOTION BY HARRY NELSON, ET AL TO LIMIT TESTIMONY OF DEFTS' ADDITIONAL EXPERT WITNESSES , CERTIFICATE OF SERVICE.(see paper #45) (mc) (Entered: 08/22/1994)
46 UNCONTESTED MOTION BY DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM, DEFENDANT KAREN F. SNIDER TO EXTEND TIME TO RESPOND TO UNITED STATES' MOTION TO APPLY THE DOCTRINE OF ISSUE PRECLUSION , CERTIFICATE OF SERVICE. (jy) (Entered: 08/23/1994)
47 Objections by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM, DEFENDANT KAREN F. SNIDER to plaintiffs' exhibits, Certificate of service (ph) (Entered: 08/24/1994)
48 Surreply by PLAINTIFF UNITED STATES regarding defendants' motions to compel discovery and for continuance, Certificate of service (ph) (Entered: 08/24/1994)
49 Memorandum by PLAINTIFF UNITED STATES in opposition to [44-1] MOTION TO COMPEL RESPONSES TO DISCOVERY, [44-2] MOTION FOR A CONTINUANCE, Certificate of service (ph) (Entered: 08/24/1994)

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08/25/1994 08/25/1994
08/29/1994
08/29/1994 08/29/1994
08/31/1994 09/02/1994 09/06/1994 09/07/1994

50 ORDER GRANTING DEFENDANTS' MOTION TO COMPEL RESPONSES TO DISCOVERY; GRANTING MOTION FOR A CONTINUANCE, RESET SCHEDULING ORDER DEADLINES: TRIAL DATE FOR 9:00 9/12/94 ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 8/26/94 ENTERED AND COPIES MAILED. (ph) (Entered: 08/26/1994)
51 ORDER GRANTING DEFENDANTS' MOTION TO EXTEND TIME TO RESPOND TO UNITED STATES' MOTION TO APPLY THE DOCTRINE OF ISSUE PRECLUSION, RESPONSE TO MOTION RESET TO 8/29/94 FOR [46-1] MOTION TO EXTEND TIME TO RESPOND TO UNITED STATES' MOTION TO APPLY THE DOCTRINE OF ISSUE PRECLUSION ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 8/26/94 ENTERED AND COPIES MAILED. (ph) (Entered: 08/26/1994)
52 ORDER GRANTING MOTION OF THE NELSON PLAINTIFFS TO AMEND THE COMPLAINT; PLAINTIFFS SHALL RESPOND TO THE TWO INTERROGATORIES PROPOUNDED BY DEFENDANTS REGARDING THE PROPOSED AMENDMENTS TO THE COMPLAINT ON OR BEFORE 8/25/94 ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 8/30/94 ENTERED AND COPIES MAILED. (ph) (Entered: 08/30/1994)
53 Brief by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM in opposition to United States' MOTION TO APPLY THE DOCTRINE OF ISSUE PRECLUSION TO CERTAIN FACTUAL FINDINGS MADE IN HALDERMAN V. PENNHURST, Certificate of Service. (cd) (Entered: 08/30/1994)
54 MEMORANDUM AND ORDER GRANTING PLAINTIFF'S MOTION IN LIMINE; THE US IS NOT REQUIRED TO PROVE THAT PERSONS RESIDING AT EMBREEVILLE CENTER ARE SUBJECTED TO EGREGIOUS OR FLAGRANT CONDITIONS CAUSING GRIEVOUS HARM PURSUANT TO A PATTERN OR PRACTICE OF THE DEFENDANTS ETC ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 8/30/94 ENTERED AND COPIES MAILED. (ph) (Entered: 08/30/1994)
55 Memorandum of law of the NELSON plaintiffs in support of the preclusive effect of the court's Findings of Fact of 3/28/94 in HALDERMAN V. PENNHURST, Certificate of service (ph) (Entered: 08/31/1994)
56 Plaintiffs' description of intended use of exhibits, Certificate of service (ph) (Entered: 09/02/1994)
57 Defendant's Supplemental Pretrial Memorandum, Certificate of service (ph) (Entered: 09/06/1994)
58 MOTION by PLAINTIFF UNITED STATES TO STRIKE PORTIONS OF [57-1] MEMORANDUM , MEMORANDUM, CERTIFICATE OF

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09/07/1994 09/07/1994 09/07/1994 09/08/1994 09/12/1994 09/12/1994 09/12/1994
10/03/1994 10/12/1994

SERVICE. (ph) (Entered: 09/07/1994)
59 Memorandum by PLAINTIFF UNITED STATES in support of [42-1] MOTION TO APPLY THE DOCTRINE OF ISSUE PRECLUSION TO CERTAIN FACTUAL FINDINGS MADE IN HALDERMAN V. PENNHURST, Certificate of service (ph) (Entered: 09/07/1994)
60 Memorandum by INTERVENOR-PLAINTIFF EMBREEVILLE RESIDENT in support of [58-1] MOTION TO STRIKE PORTIONS OF [57-1] MEMORANDUM, Certificate of service (ph) (Entered: 09/07/1994)
61 Memorandum by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM, DEFENDANT KAREN F. SNIDER in opposition to [58-1] MOTION TO STRIKE PORTIONS OF [57-1] MEMORANDUM, Certificate of service (ph) (Entered: 09/07/1994)
62 Memorandum by PLAINTIFF UNITED STATES in support of [58-1] MOTION TO STRIKE PORTIONS OF [57-1] MEMORANDUM, Certificate of service (ph) (Entered: 09/08/1994)
63 ORDER DENYING PLAINTIFF'S MOTION TO STRIKE PORTIONS OF [57-1] MEMORANDUM ETC ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 9/12/94 ENTERED AND COPIES MAILED. (ph) (Entered: 09/12/1994)
64 ORDER DENYING PLAINTIFFS' MOTION TO LIMIT TESTIMONY OF DEFTS' ADDITIONAL EXPERT WITNESSES; GRANTING DEFENDANTS' MOTION FOR A RULING ON THE ADMISSIBILITY OF EXPERT TESTIMONY ETC ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 9/12/94 ENTERED AND COPIES MAILED. (ph) (Entered: 09/12/1994)
65 MEMORANDUM AND ORDER GRANTING PLAINTIFFS' MOTION TO APPLY THE DOCTRINE OF ISSUE PRECLUSION TO CERTAIN FACTUAL FINDINGS MADE IN HALDERMAN V. PENNHURST; DEFENDANTS ARE BOUND BY THE FINDINGS MADE BY JUDGE BRODERICK IN HIS MARCH 28, 1994 MEMORANDUM AND ORDER INHALDERMAN V. PENNHURST, 74-cv-1345 (E.D. PA. 1994) THAT ARE ATTACHED TO THIS ORDER AS APPENDIX A ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 9/12/94 ENTERED AND COPIES MAILED. (ph) (Entered: 09/12/1994)
66 JOINT MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM, DEFENDANT KAREN F. SNIDER FOR APPROVAL OF THE PROPOSED CLASS ACTION SETTLEMENT AGREEMENT AND FOR APPROVAL OF NOTICE TO THE CLASS (ph) (Entered: 10/03/1994)
67 Reply Memorandum by PLAINTIFF UNITED STATES in support of

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10/21/1994
10/21/1994 11/14/1994
11/14/1994 11/14/1994
11/15/1994 11/15/1994 11/29/1994 11/30/1994 11/30/1994 11/30/1994 12/08/1994

[58-1] MOTION TO STRIKE PORTIONS OF [57-1] MEMORANDUM, Certificate of service (ph) (Entered: 10/12/1994)
68 ORDER GRANTING JOINT MOTION FOR APPROVAL OF THE PROPOSED CLASS ACTION SETTLEMENT AGREEMENT AND FOR APPROVAL OF NOTICE TO THE CLASS, SET HEARING TO 9:00 11/29/94 FOR APPROVAL OF THE SETTLEMENT AGREEMENT , SET MEMORANDA OF LAW IN SUPPORT OF FINAL APPROVAL OF THE SETTLEMENT FOR 11/15/94 ETC ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 10/21/94 ENTERED AND COPIES MAILED. (ph) (Entered: 10/21/1994)
Notice of Hearing and Proposed Settlement Agreement with Court Approval (10/21/94 entered and copies mailed) (ph) (Entered: 10/21/1994)
69 Memorandum by INTERVENOR-PLAINTIFF EMBREEVILLE RESIDENT in support of [66-1] joint MOTION FOR APPROVAL OF THE PROPOSED CLASS ACTION SETTLEMENT AGREEMENT AND FOR APPROVAL OF NOTICE TO THE CLASS, Certificate of service (ph) (Entered: 11/14/1994)
70 MOTION by NOTICE ONLY HARRY NELSON FOR APPROVAL OF THE PROPOSED SETTLEMENT AGREEMENT , MEMORANDUM, CERTIFICATE OF SERVICE. (ph) (Entered: 11/15/1994)
71 Certificate of service by NOTICE ONLY HARRY NELSON Re: served copies of the Notice of Proposed Class Action Settlement sent by first class mail to 69 persons identified by defendants as persons discharged from Embreeville since 4/21/92, Certificate of service (ph) (Entered: 11/15/1994)
72 Memorandum by PLAINTIFF UNITED STATES in support of settlement order, Certificate of service (ph) (Entered: 11/15/1994)
73 Certificate of Notice of proposed Class Action Settlement provided by defendants to current Embreeville Residents, Certificate of service (ph) (Entered: 11/16/1994)
74 Minute entry: 11/29/94 - Settlement Hearing (ph) (Entered: 11/30/1994)
75 ORDER GRANTING PLAINTIFFS' MOTION FOR APPROVAL OF THE PROPOSED SETTLEMENT AGREEMENT ETC ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 12/1/94 ENTERED AND COPIES MAILED. (ph) (Entered: 12/01/1994)
76 SETTLEMENT AGREEMENT ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 12/1/94 ENTERED AND COPIES MAILED. (ph) (Entered: 12/01/1994)
Case closed (kv) (Entered: 12/02/1994)
77 MOTION by INTERVENOR-PLAINTIFF EMBREEVILLE RESIDENT FOR ATTORNEY FEES AND COSTS , MEMORANDUM,

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12/09/1994 12/14/1994 12/30/1994 01/05/1995 01/19/1995
01/23/1995 01/23/1995 01/27/1995

CERTIFICATE OF SERVICE. (APPENDIX ATTACHED) (ph) (Entered: 12/08/1994)
78 JOINT MOTION by PLAINTIFF UNITED STATES, DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM, DEFENDANT KAREN F. SNIDER TO EXTEND TIME TO FILE PETITION FOR ATTORNEYS' FEES AND COSTS , CERTIFICATE OF SERVICE. (ph) (Entered: 12/09/1994)
79 MOTION by HARRY NELSON, ET AL FOR AN AWARD OF ATTORNEY FEES AND REIMBURSEMENT OF EXPENSES , MEMORANDUM, CERTIFICATE OF SERVICE. (ph) (Entered: 12/14/1994)
80 ORDER MOOTING JOINT MOTION TO EXTEND TIME TO FILE PETITION FOR ATTORNEYS' FEES AND COSTS ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 12/30/94 ENTERED AND COPIES MAILED. (ph) (Entered: 12/30/1994)
81 MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM, DEFENDANT KAREN F. SNIDER TO EXTEND TIME TO FILE RESPONSE TO MOTION OF PLAINTIFFS FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF EXPENSES , CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE. (ph) (Entered: 01/06/1995)
82 SECOND UNCONTESTED MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM, DEFENDANT KAREN F. SNIDER TO EXTEND TIME TO FILE A RESPONSE TO MOTION OF NELSON PLAINTIFFS FOR ATTORNEYS' FEES AND COSTS , CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE. (ph) (Entered: 01/19/1995)
83 ORDER GRANTING DEFENDANTS' UNCONTESTED MOTION TO EXTEND TIME TO FILE A RESPONSE TO MOTION OF NELSON PLAINTIFFS FOR ATTORNEYS' FEES AND COSTS, RESPONSE TO MOTION RESET TO 1/25/95 FOR [79-1] MOTION FOR AN AWARD OF ATTORNEY FEES AND REIMBURSEMENT OF EXPENSES ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 1/23/95 ENTERED AND COPIES MAILED. (ph) (Entered: 01/23/1995)
84 ORDER GRANTING PLAINTIFF-INTERVENOR'S MOTION FOR ATTORNEY FEES AND COSTS; DEFENDANTS SHALL PAY A TOTAL OF $227,927.90 TO COUNSEL WITHIN 30 DAYS OF THE DATE OF THIS ORDER ETC ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 1/23/95 ENTERED AND COPIES MAILED. (ph) (Entered: 01/23/1995)
85 ORDER GRANTING DEFTS' [81-1] MOTION TO EXTEND TIME TO

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02/08/1995 02/13/1995 02/15/1995 02/23/1995
04/10/1995

FILE RESPONSE TO MOTION OF PLAINTIFFS FOR AN AWARD OF ATTORNEYS' FEES AND COSTS; DEFTS SHALL RESPOND TO THE NELSON PLFFS' MOTION ON OR BEFORE 2/6/95. ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 1/30/95 ENTERED AND COPIES MAILED. (jef) (Entered: 01/30/1995)
86 THIRD UNCONTESTED MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM, DEFENDANT KAREN F. SNIDER TO EXTEND TIME TO FILE A RESPONSE TO MOTION OF NELSON PLAINTIFFS FOR ATTORNEYS' FEES AND COSTS , CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE. (ph) (Entered: 02/08/1995)
87 ORDER DENYING DEFENDANTS' MOTION TO EXTEND TIME TO FILE A RESPONSE TO MOTION OF NELSON PLAINTIFFS FOR ATTORNEYS' FEES AND COSTS ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 2/14/95 ENTERED AND COPIES MAILED. (ph) (Entered: 02/14/1995)
88 MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM, DEFENDANT KAREN F. SNIDER TO EXTEND TIME TO FILE A RESPONSE TO MOTION OF NELSON PLAINTIFFS FOR ATTORNEYS' FEES AND COSTS , CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE. (ph) (Entered: 02/15/1995)
89 ORDER, THAT PLAINTIFFS' [79-1] MOTION FOR AN AWARD OF ATTORNEY FEES AND REIMBURSEMENT OF EXPENSES IS GRANTED. DEFENDANTS SHALL PAY A TOTAL OF $45,000.00 AS ATTORNEY FEES AND COSTS TO THE DISABILITIES LAW PROJECT AND $87,000.00 AS ATTORNEY FEED SAND $40,499.68 FOR COSTS TO THE PUBLIC INTEREST LAW CENTER OF PHILADELPHIA. SUCH PAYMENTS ARE TO BE MADE WITHIN FORTY-FIVE (45) DAYS OF THE DATE OF THIS ORDER. THESE AMOUNTS ARE AGREED TO BY THE PARTIES. THIS COURT'S INDEPENDENT REVIEW OF THE FEE PETITIONS FINDS THESE AMOUNTS TO BE FAIR AND REASONABLE. IT IS FURTHER ORDERED THAT DEFENDANTS' FOURTH UNOPPOSED [88-1] MOTION FOR EXTENSION OF TIME IS DENIED AS MOOT. (SIGNED BY JUDGE CLARENCE C. NEWCOMER), 2/23/95 ENTERED AND COPIES MAILED. (fe) (Entered: 02/23/1995)
90 ORDER THAT THE JOINT MOTION TO APPOINT MONITOR, IS GRANTED; EDWARD R SKARNULIS, PH.D., IS HEREBY APPOINTED MONITOR WITH ALL OF THE POWERS AND DUTIES SET FORTH IN THE SETTLEMENT AGREEMENT; THE DEFENDANTS SHALL PAY TO THE MONITOR THE SALARY OF $70,000 FOR THE FIRST YEAR OF SERVICE ETC. ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 4/11/95 ENTERED AND

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06/22/1995
06/29/1995
11/22/1995 03/06/1996 05/23/1996 09/26/1996 11/26/1996
02/24/1997 03/13/1997

COPIES MAILED. (ph) (Entered: 04/11/1995)
91 JOINT MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM, INTERVENOR-PLAINTIFF EMBREEVILLE RESIDENT, DEFENDANT KAREN F. SNIDER FOR APPROVAL OF AGREEMENT CONCERNING ATTORNEY'S FEES AND COSTS , CERTIFICATE OF SERVICE. (ph) (Entered: 06/22/1995)
92 ORDER GRANTING JOINT MOTION FOR APPROVAL OF AGREEMENT CONCERNING ATTORNEY'S FEES AND COSTS; PIER'S COUNSEL WILL SUBMIT A BILL EVERY OTHER MONTH TO COUNSEL FOR THE STATE DEFENDANTS, THOMAS YORK, ESQ., WHO WILL REVIEW IT FOR REASONABLENESS ETC ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 6/30/95 ENTERED AND COPIES MAILED. (ph) (Entered: 06/30/1995)
93 Appearance of EDMOND A. TIRYAK for PLAINTIFF UNITED STATES, Certificate of service (ph) (Entered: 11/22/1995)
94 DEFTS' JOINT MOTION TO CONTINUE THE APPOINTMENT OF THE MONITOR , CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE. (jef) (Entered: 03/06/1996)
95 ORDER DENYING JOINT MOTION MOTION TO CONTINUE THE APPOINTMENT OF THE MONITOR ETC ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) ENTERED AND COPIES MAILED (COPIES FAXED 5/23/96). (ph) (Entered: 05/23/1996)
96 JOINT MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM, DEFENDANT KAREN F. SNIDER FOR ORDER DIRECTING PAYMENT TO FORMER MONITOR , CERTIFICATE OF SERVICE. (ph) (Entered: 09/26/1996)
97 ORDER THAT THE JOINT MOTION FOR ORDER DIRECTING PAYMENT TO FORMER MONITOR IS GRANTED. THE DEFENDANTS ARE DIRECTED TO PAY THE SUM OF $9,988.65 TO EDWARD R. SKARNULIS, PH.D. FOR SALARY AND EXPENSES. ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 11/27/96 ENTERED AND COPIES MAILED AND FAXED. (jw) (Entered: 11/27/1996)
98 JOINT MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM, DEFENDANT KAREN F. SNIDER FOR APPOINTMENT OF MONITOR SUPPORTED BY DECLARATIONS , CERTIFICATE OF SERVICE. (ph) (Entered: 02/24/1997)
99 ORDER GRANTING JOINT MOTION FOR APPOINTMENT OF MONITOR SUPPORTED BY DECLARATIONS; HOWARD ROSEN,

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08/22/1997 09/03/1997
12/05/1997 05/04/1998 05/06/1998 05/28/1998

PH.D., IS APPOINTED MONITOR WITH ALL THE POWERS AND DUTIES STATED IN THE SETTLEMENT AGREEMENT ETC; THE MONITOR SHALL SUBMIT COPIES TO THE COURT OF ALL REPORTS PREPARED IN ACCORDANCE WITH SECTION IV.C. OF THE SETTLEMENT AGREEMENT, THE MONITOR SHALL, AT A MINIMUM, SUBMIT QUARTERLY REPORTS TO THE PARTIES AND THE COURT ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 3/13/97 ENTERED AND COPIES MAILED AND FAXED. (ph) (Entered: 03/13/1997)
100 JOINT MOTION BY DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM, DEFENDANT KAREN F. SNIDER FOR APPROVAL OF COMPENSATION OF THE MONITOR'S EXPENSES , CERTIFICATE OF SERVICE. (adr) (Entered: 08/22/1997)
101 ORDER THAT THE MOTION FOR APPROVAL OF COMPENSATION OF THE MONITOR'S EXPENSES IS GRANTED; THE COMMONWEALTH OF PA. SHALL COMPENSATE HOWARD ROSEN, PH.D., FOR EXPENSES INCURRED AS MONITOR ETC; HOWARD ROSEN, PH.D., SHALL BE COMPENSATED FOR EXPENSES PURSUANT TO THE COMMONWEALTH OF PA.'S POLICY AND PROCEDURE REGARDING PAYMENT FOR EXPENSES ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 9/3/97 ENTERED AND COPIES MAILED AND FAXED. (ph) (Entered: 09/03/1997)
102 Notice of change of address by PAMELA K. CHEN, Certificate of service (ph) (Entered: 12/05/1997)
103 MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM, DEFENDANT KAREN F. SNIDER TO RESPOND TO APPLICATION OF THE NELSON PLAINTIFFFS FOR ATTORNEYS' FEES AND COSTS FOR COUNSEL ASSOCIATED WITH THE PUBLIC INTEREST LAW CENTER OF PHILA. , CERTIFICATE OF SERVICE. (ph) (Entered: 05/04/1998)
104 MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT REUBEN SHONEBAUM FOR EXTENSION OF TIME TO RESPOND TO APPLICATION OF THE NELSON PLAINTIFFS FOR ATTORNEYS' FEES AND COSTS FOR COUNSEL ASSOCIATED WITH THE PUBLIC INTEREST LAW CTR OF PHILA. , CERTIFICATE OF SERVICE. (ph) (Entered: 05/06/1998)
105 SECOND MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, DEFENDANT KAREN F. SNIDER FOR AN EXTENSION OF TIME TO RESPOND TO APPLICATION OF THE NELSON PLAINTIFFS

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06/03/1998
06/15/1998 06/29/1998 06/30/1998 06/30/1998 08/14/1998 10/15/1998 10/23/1998

FOR ATTORNEY FEES AND COSTS FOR COUNSEL ASSOCIATED WITH THE PUBLIC INTEREST LAW CENTER OF PHILADELPHIA , CERTIFICATE OF SERVICE. (jl) (Entered: 05/28/1998)
106 ORDER GRANTING MOTION FOR AN EXTENSION OF TIME TO RESPOND TO APPLICATION OF THE NELSON PLAINTIFFS FOR ATTORNEY FEES AND COSTS FOR COUNSEL ASSOCIATED WITH THE PUBLIC INTEREST LAW CENTER OF PHILADELPHIA; MOOTING MOTION FOR EXTENSION OF TIME TO RESPOND TO APPLICATION OF THE NELSON PLAINTIFFS FOR ATTORNEYS' FEES AND COSTS FOR COUNSEL ASSOCIATED WITH THE PUBLIC INTEREST LAW CTR OF PHILA.; MOOTING MOTION TO RESPOND TO APPLICATION OF THE NELSON PLAINTIFFFS FOR ATTORNEYS' FEES AND COSTS FOR COUNSEL ASSOCIATED WITH THE PUBLIC INTEREST LAW CENTER OF PHILA. ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 6/4/98 ENTERED AND COPIES MAILED AND FAXED 6/3/98. (ph) (Entered: 06/04/1998)
107 MOTION OF THOMAS B YORK TO WITHDRAW APPEARANCE , CERTIFICATE OF SERVICE. (ph) (Entered: 06/15/1998)
109 ORDER THAT UPON APPLICATION OF THE NELSON PLAINTIFFS FOR ATTORNEYS' FEES AND COSTS FOR COUNSEL ASSOCIATED WITH THE PUBLIC INTEREST LAW CENTER OF PHILA., SAID MOTION IS DENIED AS MOOT ETC ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 6/30/98 ENTERED AND COPIES MAILED AND FAXED 6/29/98. (ph) (Entered: 06/30/1998)
108 ORDER GRANTING MOTION FOR THOMAS B. YORK, TO WITHDRAW APPEARANCE ETC ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 6/30/98 ENTERED AND COPIES MAILED AND FAXED 6/29/98. (ph) (Entered: 06/30/1998)
110 Appearance of BARRY N. KRAMER for DEFENDANT COMMONWEALTH OF PA, DEFENDANT ROBERT CASEY, DEFENDANT NANCY THALER, Certificate of Service. (rp) (Entered: 06/30/1998)
111 Withdrawal of PAMELA K. CHEN and Appearance of ROBERT H. STERN for PLAINTIFF UNITED STATES , Certificate of Service. (ph) (Entered: 08/14/1998)
112 JOINT MOTION by PLAINTIFF UNITED STATES AND JOINDER OF ALL PARTIES FOR APPOINTMENT AND FOR APPROVAL OF COMPENSATION OF EXPERT PANEL PURSUANT TO SETTLEMENT AGREEMENT , DECLARATION, CERTIFICATE OF SERVICE. (ph) (Entered: 10/16/1998)
113 ORDER GRANTING JOINT MOTION FOR APPOINTMENT AND FOR APPROVAL OF COMPENSATION OF EXPERT PANEL PURSUANT TO SETTLEMENT AGREEMENT ETC ( SIGNED BY

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02/22/2000 02/22/2000 03/22/2000
03/22/2000
04/05/2004 12/22/2004 01/05/2005

JUDGE CLARENCE C. NEWCOMER ) 10/26/98 ENTERED AND COPIES MAILED AND FAXED 10/23/98. (ph) (Entered: 10/26/1998)
114 JOINT MOTION by DEFENDANT COMMONWEALTH OF PA, DEFENDANT KAREN F. SNIDER, DEFENDANT REUBEN SHONEBAUM, DEFENDANT NANCY THALER, DEFENDANT ROBERT CASEY FOR APPROVAL TO REPLACE MONITOR , CERTIFICATE OF SERVICE. (ph) (Entered: 02/23/2000)
115 JOINT MOTION FOR APPROVAL OF STIPULATED AGREEMENT , CERTIFICATE OF SERVICE. (dt) (Entered: 02/23/2000)
116 ORDER THAT joint MOTION FOR APPROVAL OF STIPULATED AGREEMENT IS GRANTED WITH THE CONCURRENCE AND JOINDER OF ALL PARTIES AS EVIDENCED BY DECLARATIONS ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 3/22/00 ENTERED AND COPIES MAILED AND FAXED. (jl) (Entered: 03/22/2000)
117 ORDER THAT JOINT MOTION FOR APPROVAL TO REPLACE MONITOR WITH THE CONCURRENCE AND JOINDER OF ALL PARTIES AS EVIDENCED BY DECLARATIONS IS GRANTED, ETC ( SIGNED BY JUDGE CLARENCE C. NEWCOMER ) 3/22/00 ENTERED AND COPIES MAILED AND FAXED. (jl) (Entered: 03/22/2000)
118 NOTICE of Appearance by DAVID DEUTSCH and Substitution of Counsel on behalf of UNITED STATES OF AMERICA with Certificate of Service.(Withdrawal of ROBERT H. STERN without signature). (mar, ) (Entered: 04/05/2004)
119 JOINT MOTION FOR TERMINATION OF STIPULATED AGREEMENT AND DISMISSAL OF CASE FILED BYKAREN F. SNIDER, UNITED STATES OF AMERICA, ROBERT CASEY, NANCY THALER, REUBEN SHONEBAUM..(ac, ) (Entered: 12/23/2004)
120 ORDER THAT PURSUANT TO THE JOINT MOTION FOR TERMINATION OF STIPULATED AGREEMENT AND DISMISSAL OF CASE FILED BY THE PARTIES IN THE ABOVE CAPTIONED MATTER, THE STIPUALTED AGREEMENT ENTERED ON 3/20/00 IS HEREBY TERMINATED. THIS CASE IS DISMISSED WITH PREJUDICE. SIGNED BY JUDGE CLARENCE C. NEWCOMER ON 1/5/05. 1/6/05 ENTERED AND COPIES MAILED, E-MAILED AND FAXED BY CHAMBERS ON 1/5/05. (jpd) (Entered: 01/06/2005)

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 863 F.Supp. 217 (1994)
UNITED STATES of America, et al. v.
PENNSYLVANIA, et al. Harry NELSON, et al.
v. Karen F. SNIDER, et al.
Civ. A. No. 93-2094.
United States District Court, E.D. Pennsylvania.
August 13, 1994.
Pamela Chen, Mark Masling, U.S. Dept. of Justice, Washington, DC, Edmond Tiryak, Philadelphia, PA, Judith Gran, Public Interest Law Center of Philadelphia, Philadelphia, PA, for plaintiffs.
Thomas York, Eckert Seamans Cherin & Mellott, Harrisburg, PA, for defendants.

MEMORANDUM

NEWCOMER, District Judge.
Presently before the Court is the Motion in Limine of plaintiff United States of America, and the response of defendants thereto. For the reasons that follow, the motion will be granted.

I. Background

These consolidated actions were brought by the United States of America (and, as intervenor, People Interested in Embreeville Residents, a group comprised mainly of relatives of residents of the Embreeville Center), a class of residents of the Embreeville Center and those at risk of placement at the Embreeville Center, and Pennsylvania Protection and Advocacy, Inc. and The Arc-Pennsylvania (two non-profit advocacy corporations). The suits seek injunctive relief against the Commonwealth of Pennsylvania and several of its officials to redress allegedly unconstitutional conditions at the Embreeville Center, a state institution for the mentally retarded. The instant motion was filed solely by plaintiff United States.

The United States filed its Complaint pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997 et seq. CRIPA states, in pertinent part:

Whenever the Attorney General has reasonable cause to believe that any State ... is subjecting

persons residing in or confined to an institution ... to egregious or flagrant conditions which deprive

such persons of any rights, privileges, or immunities secured or protected by the Constitution or

laws of the United States causing such persons to suffer grievous harm, and that such deprivation

is pursuant to a pattern or practice of resistance to the full enjoyment of such rights ... the Attorney

218

General, for or in the name of the United States, may institute a civil action ... *218 against such

party for such equitable relief as may be appropriate ...

42 U.S.C § 1997a(a). It is this statute which gives rise to the dispute currently before the Court.

The third defense asserted by defendants in their answer to the Complaint of the United States reads, in part, "[t]he plaintiff cannot establish grievous harm resulting from a pattern or practice involving flagrant or egregious conditions." The above quoted statute is cited as authority for this defense. From this, and defendants' response to the instant motion, it is apparent that defendants expect to argue at trial that § 1997a(a) dictates the standard

of proof to be met by the United States at trial. The United States argues that § 1997a(a) is merely a standing statute giving it the right to bring suit but not affecting the standard of proof at trial. The United States contends that it must demonstrate only that the Commonwealth is violating federal constitutional or statutory rights of those residing at the Embreeville Center; this is the standard of proof that the other plaintiffs to this action bear.
II. Discussion
Decisional law interpreting § 1997a(a) is virtually nonexistent. The precise issue raised in the motion at bar has not yet been addressed by any court.[1] Perhaps the closest any court has yet come to deciding this issue is the opinion of Judge McCalla denying the defendants' motion to dismiss or for summary judgment in the case of United States v. Tennessee, 798 F.Supp. 483 (W.D.Tenn.1992), the case discussed in footnote 1 of this Memorandum. The defendants in that case argued that the United States had failed to state a legally sufficient claim under § 1997a(a) by failing to plead in the Complaint facts supporting the existence of egregious or flagrant conditions, grievous harm, and a pattern or practice on the part of the defendants. Id. at 488. In denying the motion Judge McCalla held that CRIPA establishes no substantive rights, but merely gives the Attorney General standing to bring suit. Id. In light of the fact that the Attorney general had certified that the preconditions to filing had been met, Judge McCalla wrote that the court would not look beyond this certification to require the United States to justify its decision to bring suit. Id. at 488-89. The opinion continues, stating that "[w]hether the alleged conditions exist is precisely the question that this Court will determine after a hearing on the merits." Id. at 489. This statement could be taken to mean that the certification of the Attorney General is sufficient to withstand a motion to dismiss or for summary judgment, when all inferences must be drawn in favor of the United States, but that the plaintiff must, to prevail at trial, establish the elements required in the certification. The transcript of Judge McCalla's ruling from the bench after the trial of the case, however, belies this conclusion. When explaining what the United States was required to prove to establish a violation of the Fourteenth Amendment Judge McCalla set forth the standard that would be required of any plaintiff in such a case; no mention was made of the specific language contained in § 1997a(a). United States v. Tennessee, 92-2062 (W.D.Tenn. November 22, 1993, Transcript at 13-16). Nowhere in Judge McCalla's ruling, in which he found for the United States, did he specifically address the facts of the case in the specific terms of the CRIPA statute. From this, it cannot be concluded that Judge McCalla made any ruling directly bearing upon the issue presented here. Moreover, this Court would not be bound by the ruling of another District Court; any such ruling would have at most persuasive effect.
219 *219 Several courts have examined the legislative intent behind CRIPA, though none has done so while attempting to determine if it imposes any certain standard of proof upon the United States. CRIPA was enacted in response to several decisions holding that the Attorney General did not have standing to sue state institutions for violating the rights of institutionalized persons. United States v. Oregon, 839 F.2d 635, 636 (9th Cir.1988); United States v. New York, 690 F.Supp. 1201, 1204 (W.D.N.Y.1988). CRIPA's certification requirement reflects Congress' concern with issues of federalism; the Attorney General was authorized to file suit only in serious cases and after giving the states involved a reasonable opportunity to attempt negotiation and conciliation. United States v. New York, 690 F.Supp. at 1204 . Congress was concerned that the federal government not become overly involved in a area which was typically regarded as within the purview of the states. Id.
The legislative history of CRIPA expresses clearly this concern. The Joint Explanatory Statement of the Committee Conference states "[t]he adoption by the conference committee of the language `egregious or flagrant' establishes a standard for the Department of Justice's involvement that reflects Congressional sensitivity to the fact that a high degree of care must be taken when one level of sovereign government sues another in our Federal system." H.R.Conf.Rep. No. 897, 96th Cong., 2d Sess. 11 (1980) (hereinafter "Conf.Rep.") U.S.Code Cong. & Admin.News 1980, pp. 787, 835. This language speaks of the standard for the involvement of the Department of Justice and implies that the Department is to intrude into this traditionally state controlled area only in serious cases. It does not, however, indicate that the United States must prove at trial that a case is more serious than one that may have been brought by any other plaintiff.

The committee also declared that § 1997a(a) creates no new substantive rights but rather gives the Attorney General standing to insure that institutionalized persons will be afforded the full protections of the Constitution of the United States. Conf.Rep. at 9. It appears that to hold the United States to a higher standard of proof at trial than an individual plaintiff would have to meet would be to contradict this stated legislative intent.
It must be noted, however, that the legislative history might also be interpreted to support the defendants' position. When discussing the "pattern or practice" element of § 1997a(a) the committee stated that "[t]he Government must show that the unlawful act by the defendant was not an isolated or accidental departure from an otherwise lawful practice." Conf.Rep. at 12, U.S.Code Cong. & Admin.News 1980 at 836 (emphasis added). It would not be an unfair reading of this language to conclude that Congress intended for the United States to be required to demonstrate at trial that the alleged violations were part of a pattern and practice of state governmental action. A logical progression of this reading would also require that the United States prove at trial the "egregious or flagrant" and "grievous harm" components of § 1997a(a).
To this point, consideration of decisional authority and legislative intent reveals no clear answer as to whether § 1997a(a) is merely a standing statute or a statute elevating the standard of proof at trial for the United States above that of any individual plaintiff. Also to this point, however, this Court has not addressed the plain language of the statute on its face. Due to the lack of binding precedent or clear Congressional mandate, the Court concludes that the only appropriate means of interpreting the statute is through careful reading of its language. The statute makes no mention of the standards of proof at trial. It speaks solely of when the Attorney General may institute a civil action. An action may be instituted "[w]henever the Attorney General has reasonable cause to believe" that a "pattern or practice" of a state government leading to "egregious or flagrant conditions" is causing "grievous harm" to institutionalized persons. 42 U.S.C. § 1997a(a). From this language the Court must hold that the Attorney General is vested with the discretion to bring suit whenever she is satisfied that a case is serious 220 enough to warrant federal involvement. Once such a determination is made by the *220 Attorney General, the standard of proof to be borne by the United States at trial must be the same as that of any other plaintiff.
In similar situations Congress has required that the Attorney General plead facts sufficient to support a reasonable cause determination. See, e.g., 42 U.S.C. § 2000e-6 (pattern or practice part of reasonable cause determination and complaint must state "facts pertaining to such pattern or practice"). Where such facts must be plead in a complaint, it follows that they must be established at trial in order for the United States to prevail. The lack of any such pleading provision in § 1997a(a) leads to the conclusion that no such proof requirement is imposed by the statute.
III. Conclusion
For the reasons stated above, this Court holds that the United States has no greater standard of proof in any case brought under CRIPA than an individual plaintiff would bear in a case alleging the same illegal conduct on the part of a state.
An appropriate Order follows.
ORDER
AND NOW, this 13th day of August, 1994, upon consideration of the Motion in Limine of plaintiff United States of America, and defendants' response thereto, and consistent with the foregoing Memorandum, it is hereby ORDERED that said motion is GRANTED. The burden of proof that the United States must bear at trial is identical to the burden of proof to be borne by the other plaintiffs to this action. To prevail at trial, the United States is not required to prove that persons residing at Embreeville Center are subjected to egregious or flagrant conditions causing grievous harm pursuant to a pattern or practice of the defendants.
AND IT IS SO ORDERED.

[1] The United States argues that this issue has in fact been decided previously by Judge McCalla in the Western District of Tennessee in United States v. Tennessee, 92-2062 (W.D.Tenn. November 22, 1993). Judge McCalla stated, in issuing findings of fact and conclusions of law from the bench, "[t]he burden placed on the United States is no different from the burden placed on litigants before the Court in similar cases." Judge McCalla did not specifically state what burden the United States was to meet, nor did he indicate that this issue had been argued to him. He offered no explanation for this statement. From this, it is impossible for this Court to conclude that Judge McCalla considered and decided the issue raised here. Moreover, even if this Court were to accept the statement as a ruling on this issue, its persuasive effect would be negligible as no rationale for the statement was offered by Judge McCalla.
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