U.S. v. Pennsylvania

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MR-PA-006-006

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN 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; Alan M. Bellomo, Director, Ebensburg Center;
Defendants.

) ) )
)
)
)
) Civil No. 92-33J ) Hon. D. Brooks Smith ) ) ) ) ) ) ) ) ) )

UNITED STATES' PROPOSED CONCLUSIONS OF LAW AMD
MEMORANDUM OF LAW

UNITED STATES' PROPOSED CONCLUSIONS OF LAW AND MEMORANDUM OF LAW
TABLE OF CONTENTS

TABLE OF AUTHORITIES

i

INTRODUCTION

1

CONCLUSIONS OF LAW

2

MEMORANDUM OF LAW

4

I.

DEFENDANTS HAVE FAILED IN THEIR DUTY TO

PROVIDE EBENSBURG RESIDENTS WITH

CONSTITUTIONALLY ADEQUATE CARE

4

II.

DEFENDANTS' FAILURE TO PROVIDE EBENSBURG

RESIDENTS WITH THEIR BASIC CARE NEEDS

VIOLATES THEIR DUE PROCESS RIGHTS

8

III.

DEFENDANTS' FAILURE TO PROTECT EBENSBURG

RESIDENTS FROM HARM VIOLATES THEIR DUE

PROCESS RIGHTS TO ADEQUATE SAFETY

9

IV.

DEFENDANTS' FAILURE TO PROVIDE EBENSBURG

RESIDENTS ADEQUATE TRAINING PROGRAMS

VIOLATES THEIR DUE PROCESS RIGHTS

13

A. Defendants are not protecting Ebensburg residents' liberty interest in training programs to ensure protection from harm . 14

B. Defendants are not protecting Ebensburg residents' liberty interest in training programs to prevent undue restraint . . 21

V.

DEFENDANTS' FAILURE TO PROVIDE RESIDENTS

ADEQUATE MEDICAL CARE VIOLATES THEIR DUE

PROCESS RIGHTS

23

VI.

A PROFESSIONAL JUDGMENT STANDARD IS NOT

APPLICABLE TO CRIPA CASES

30

A. The professional judgment standard

arises in actions for damages

30

B. Much of the evidence in this case

does not involve professional

judgment

33

C. Assuming professional judgment

applies, it is not being exercised

at Ebensburg

39

VII.

ANY LAST MINUTE IMPROVEMENTS AT

EBENSBURG HAVE NOT CORRECTED THE

DEFICIENCIES AND DO NOT REMOVE THE NEED

FOR THE REQUESTED RELIEF

41

VIII.

THE UNITED STATES HAS MET ITS BURDEN OF

PROOF IN DEMONSTRATING CONSTITUTIONAL

VIOLATIONS

42

REMEDIAL MEASURES

45

CONCLUSION

50

TABLE OF AUTHORITIES

Cases

Pages

Anderson v. Everett. Area School Bd. ,

732 F. Supp. 39 (W.D. Pa. 1989)

21

Armstead v. Pinqree. 629 F. Supp. 273

(M.D. Fla. 1986)

17

Association for Retarded Citizens of North Dakota v. Olson, 561 F. Supp. 473 (D.N.D. 1982), aff'd and remanded in part on other grounds. 713 F.2d 1384 (8th Cir. 1983)

passim

Bernstein v. Lower Moreland Township.

603 F. Supp. 907 (E.D. Pa. 1985)

11

Clark v. Cohen. 613 F. Supp. 684

(E.D. Pa. 1985), aff'd. 794 F.2d 79

(3d Cir.), cert, denied.

479 U.S. 962 (1986)

34

Clark v. Cohen. 794 F.2d 79 (3d Cir.), cert, denied. 479 U.S. 962 (1986)

38, 49

Davis v. Hubbard. 506 F. Supp. 915 (N.D. Ohio 1980)
DeShaney v. Winnebaao County Dep/t of Social Services. 489 U.S. 189 (1989)

. . . . 18 5, 9

Flakes v. Percy. 511 F. Supp. 1325

(W.D. Wis. 1981)

18

Foucha v. Louisiana.

U.S. ,

112 S. Ct. 1780 (1992)

5

Gary W. v. Louisiana. 437 F. Supp. 1209

(E.D. La. 1976)

18, 47

Goodman v. Parwatikar. 570 F.2d 801 (8th Cir. 1978) . . . . 18

Griffith v. Ledbetter. 711 F. Supp. 1108 (N.D. Ga. 1989)
Halderman v. Pennhurst State School & Hosp.. 446 F. Supp. 1295 (E.D. Pa. 1977), aff/d in part. rev'd in part 612 F.2d 84 (3d Cir. 1979)

. . 17 49

Halderman v. Pennhurst State School & Hosp..

No. 74-1345, slip op. (E.D. Pa. 1990)

47

Heller v. Doe.

U.S. , 113 S. Ct. 2637 (1993) . . . . 20

Hendricks v. Gilhool. 709 F. Supp. 1362 (E.D. Pa. 1989)
Homeward Bound v. Hissom Memorial Ctr.. No. 85-C-437-E, slip op. (July 24, 1987)
Humphrey v. Cady. 405 U.S. 504 (1972)

42
15, 18, 27, 29, 33
5

Inmates of the Allegheny County Jail v.

Wecht. 699 F. Supp. 1137 (W.D. Pa. 1988),

appeal dismissed. 873 F.2d 57 (3d Cir. 1989)

50

In re Ballav. 482 F.2d 648 (D.C. Cir. 1973)

18

International Bhd. of Boilermakers v. Kelly.

815 F. 2d 912 (3d Cir. 1987)

42

Jackson v. Fort Stanton Hosp. & Training School. 757 F. Supp. 1243 (D.N.M. 1990), rev/d in part on other grounds. 964 F.2d 980 (10th Cir. 1992)

passim

Jackson v. Indiana. 406 U.S. 715 (1972)

5

Johnson v. Solomon. 484 F. Supp. 278 (D. Md. 1979)

18

Kirsch v. Thompson. 717 F. Supp. 1077 (E.D. Pa. 1988) . . . 49

Lee v. Gateway Inst. & Clinic. Inc..

732 F. Supp. 572 (W.D. Pa. 1989),

aff'd. 908 F.2d 963 (3d Cir. 1990)

21

Lelsz v. Kavanagh. 673 F. Supp. 828 (N.D. Tex. 1987)

passim

Mihalcik v. Lensink. 732 F. Supp. 299 (D. Conn. 1990) . . . 17

Morgan v. Sproat. 432 F. Supp. 1130 (S.D. Miss. 1977) . . . 18

New York State Ass'n for Retarded

Children. Inc. v. Carey.

706 F.2d 956 (2d Cir.), cert, denied.

464 U.S. 915 (1983)

47

New York State Ass'n for Retarded Children. Inc.

v. Rockefeller. 357 F. Supp. 752 (E.D.N.Y. 1973)

18

ii

O'Connor v. Donaldson. 422 U.S. 563 (1975)

5

Parham v. J.R. . 442 U.S. 584 (1979)

5

Philadelphia Police & Fire Ass'n for Handicapped Children v.

Citv of Philadelphia. 874 F.2d 156 (1989)

20

R.A.J. v. Miller. 590 F. Supp. 1310 (N.D. Tex. 1984) . . . . 11

Rennie v. Klein. 720 F.2d 266 (3d Cir. 1983)

28

Reno V. Flores.

U.S. , 113 S. Ct. 1439 (1993) . . . . 5

Romeo v. Younqberq. 644 F.2d 147 (3d Cir. 1980),

vacated. 457 U.S. 307

6

Ruiz v. "Collins. 503 F. Supp. 1265 (S.D. Tex. 1988) . . . . 47

Sabo v. O'Bannon. 586 F. Supp. 1132 (E.D. Pa. 1984) Scott v. Plante. 691 F.2d 634 (3d Cir.),
vacated and remanded. 458 U.S. 1101, aff'd. 691 F.2d 634 (3d Cir. 1982) Shaw v. Strackhouse. 920 F.2d 1135 (3d Cir. 1990)
Society for Good Will to Retarded Children. Inc. v. Cuomo. 737 F.2d 1239 (2d Cir. 1984)

22, 28, 29
18 32
9, 11-13, 17

Society for Good Will to Retarded Children. Inc. v. Cuomo. 572 F. Supp. 1300 (E.D.N.Y. 1983), vacated. 737 F.2d 1239 (2d Cir. 1984)

. . . . 11, 17, 27, 39

Swann v. Charlotte-Mecklenburg Bd. of Educ. . 402 U.S. 1 (1971)
Thomas S. v. Flaherty. 699 F. Supp. 1178 (W.D.N.C. 1988), aff'd. 902 F.2d 250 (4th Cir.), cert, denied. 498 U.S. 951 (1990)

50 passim

United States v. Article of Drug.

362 F.2d 923 (3d Cir. 1966)

42

United States v. Guam. No. 9100020, slip op.

(D. Guam 1991)

47

United States v. Michigan.

680 F. Supp. 928 (W.D. Mich. 1987)

47

111

United States v. Tennessee. No. 92-2062-W1/A,

slip op. (Nov. 22, 1993)

passim

United States v. W.T. Grant Co.. 345 U.S. 629 (1953) . . . . 42

Welsch v. Likins. 550 F.2d 1122 (8th Cir. 1977)

6, 17

Welsch v. Likins. 373 F. Supp. 487 (D. Minn. 1974)

18

Woe v. Cuomo. 638 F. Supp. 1506 (E.D.N.Y.),

aff'd in part, remanded in part.

801 F.2d 627 (2d Cir. 1986)

13

Wyatt v. Sticknev. 325 F. Supp. 781

(M.D. Ala. 1971), aff'd sub nom.

Wvatt v. Aderholt. 503 F.2d 1305

(5th Cir. 1974)

18

Younaberg v. Romeo. 457 U.S. 307 (1982)

passim

Zellous v. Broadhead Associations.

906 F.2d 94 (3d Cir. 1990)

42

Statutes

28 U.S.C. § 1345

2

28 U.S.C. § 1391

2

42 U.S.C. § 1997(a)

2

42 U.S.C. § 1997(1)

2

IV

INTRODUCTION During opening statements on the first day of trial of this case, Plaintiff, the United States of America, averred that the evidence in this case will prove Defendants, the Commonwealth of Pennsylvania, et a_l., have failed and are continuing to fail to provide Ebensburg Center residents their fundamental constitutional rights to: 1. adequate care of their basic needs; 2. reasonable safety and protection from harm; 3. appropriate training programs to prevent harm, undue restraint, regression, and to promote growth, development, and independence; and
4. adequate medical care. Tr. 7/26/93 at 13-16.
The United States has fully proved each and every one of these assertions through the extensive record developed in this case over the course of more than four weeks of live testimony, excerpts from the deposition testimony of thirty-five witnesses admitted into evidence as admissions of a party opponent, and numerous other exhibits, including summaries and excerpts of the Defendants' own business records, as well as photographs and videotapes of conditions at Ebensburg. The cumulative evidence in this case is uncontrovertible and overwhelming. It can lead to only one conclusion: Defendants have violated and are continuing to violate the basic constitutional rights of Ebensburg residents. The support in the record for each of the United States' legal claims is set forth in the United States'

Proposed Detailed Findings of Fact and highlighted in the United States' Proposed Summary of Findings of Fact.1' Set forth herein
are proposed conclusions of law, a discussion of the relevant
constitutional standards, and a description of the nature of the
relief the United States believes is necessary to vindicate the
constitutional rights of Ebensburg residents.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over this action pursuant to
28 U.S.C. § 1345.
2. Venue in the Western District of Pennsylvania is proper
pursuant to 28 U.S.C. § 1391.
3. The United States has standing to bring this action
pursuant to the Civil Rights of Institutionalized Persons Act
("CRIPA"), 42 U.S.C. § 1997(a), et sea.
4. Ebensburg Center ("Ebensburg") is an "institution"
within the meaning of CRIPA, 42 U.S.C. § 1997(1).
5. Defendants named in the Complaint and their successors
in office are legally responsible, in whole or in part for the
*' Because the Court indicated that this is a fact intensive case in which the ultimate issues will turn on the evidence, the United States prepared comprehensive proposed findings of fact which synthesize the extensive evidence, including admissions by Defendants in deposition testimony. Citations in support of the propositions in this brief refer both to sections in the Proposed Detailed Findings of Fact (indicated by a §) as well as paragraphs in the Summary of Proposed Findings of Fact (indicated by a 5 ) . Any examples included in this brief are illustrative only. The United States' Proposed Detailed Findings of Fact sets forth a more comprehensive list of Defendants' significant deficiencies in each one of the areas discussed. See also the client summaries in the Appendix to the Proposed Detailed Findings of Fact which illustrate how deficiencies at Ebensburg have had an impact on the lives of the people who live there.
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operation of and conditions at Ebensburg and for the care and treatment of persons residing at Ebensburg.
6. Defendants are required under the Due Process Clause of the Fourteenth Amendment to the Constitution to provide Ebensburg residents with adequate care of their basic human needs.
7. Defendants are required under the Due Process Clause of the Fourteenth Amendment to the Constitution to provide reasonable safety for all residents at Ebensburg.
8. Defendants are required under the Due Process Clause of the Fourteenth Amendment to the Constitution to provide residents of Ebensburg such training as may be reasonable in light of their liberty interests, including their interests in safety, independence, and freedom from unreasonable restraints and regression.
9. Defendants are required under the Due Process Clause of the Fourteenth Amendment to the Constitution to provide Ebensburg residents with adequate medical care.
10. Defendants are failing to provide Ebensburg residents with adequate care of their basic human needs in violation of their constitutional right to such care.
11. Defendants are failing to provide Ebensburg residents with reasonable safety in violation of their constitutional right to such safety.
12. Defendants are failing to provide Ebensburg residents such training as is necessary to protect their liberty interests in reasonable safety, independence, and freedom from undue
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restraints and regression, in violation of their constitutional right to such training.
13. Defendants are failing to provide Ebensburg residents adequate medical care in violation of their constitutional right to such care.
14. Unless enjoined by this Court, Defendants will continue to violate the constitutional rights of Ebensburg residents as described in fflO to 13, above.
15. The acts, practices, failures to act, and omissions of Defendants require both prohibitory and mandatory injunctive relief in order to protect the constitutional rights of Ebensburg residents.
MEMORANDUM OF LAW I. DEFENDANTS HAVE FAILED IN THEIR DUTY TO PROVIDE EBENSBURG
RESIDENTS WITH CONSTITUTIONALLY ADEQUATE CARE This action for injunctive relief was brought by the United States, plaintiff herein, by and through the Attorney General, against Defendants, Commonwealth of Pennsylvania et aJL., pursuant to CRIPA on February 10, 1992.- The Complaint alleges that the Defendants are violating the constitutional rights of the approximately 472 mentally retarded and developmentally disabled people who live at the Ebensburg Center, a state-operated facility. As such, the facts and issues in this case center
^ A summary of the procedural history of this case is set forth in § I of the United States' Proposed Detailed Findings of Fact and will not be repeated again here.
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around the unconstitutional conditions of care and treatment to which Ebensburg residents are subjected.
This lawsuit was the product of the Commonwealth's intransigence over a protracted period of time to either correct voluntarily the conditions at Ebensburg depriving residents of their constitutional rights or to negotiate an enforceable settlement agreement. Defendants' longstanding failure to provide adequate personal care, safety, training, and medical treatment to the individuals entrusted to the Commonwealth's care at Ebensburg violates their basic liberty interests under the Due Process Clause of the Fourteenth Amendment. In a series of cases spanning more than two decades, the Supreme Court has acknowledged repeatedly that institutionalization involves a "massive curtailment of liberty." Humphrey v. Cadv. 405 U.S. 504, 509 (1972) .-' Indeed, as Justices O'Connor and Souter recently emphasized in their concurrence in Reno v. Flores. U.S. , 113 S. Ct. 1439, 1454-55 (1993), it is "clear beyond cavil" that institutionalization, which is a "decisive and unusual event," implicates a person's core liberty interests. Equally clear and of longstanding origin is the corresponding precept that where the deprivation of liberty occurs in a stateoperated facility, such as Ebensburg, the State has an

-' See also Jackson v. Indiana. 406 U.S. 715 (1972);

0'Connor v. DonaldsonP 422 U.S. 563 (1975); Parham v. J.R.. 442 U.S. 584 (1979); Younabera v. Romeo. 457 U.S. 307 (1982);

DeShaney v. Winnebaao County Dep't of Social Services. 489 U.S.

189, 199-200 (1989); Foucha v. Louisiana.

U.S. , 112 S.

Ct. 1780, 1785 (1992).

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affirmative responsibility under the Fourteenth Amendment to
provide constitutionally adequate services. Younqbera v. Romeo.
("Youngberg") 457 U.S. at 317.*' See also Welsch v. Likins. 550
F.2d 1122, 1132 (8th Cir. 1977) (if a state chooses to operate an
institution for people with mental retardation, the services must
meet constitutional standards). As noted by Chief Judge Seitz
some fourteen years ago in his concurring opinion in a Third
Circuit decision involving Pennhurst, "[t]he existence of a
constitutional right to care and treatment is no longer a novel
legal proposition." Romeo v. Youngberg. 644 F.2d 147, 176 (3d
Cir. 1980) .-' On appeal of that case, the Supreme Court
delineated some of the substantive due process rights of mentally
retarded institutionalized persons and the state's concomitant
responsibilities. The state's obligations include, inter alia, a
duty to provide: adequate care of basic human needs; reasonable
- As this Court has recognized, the Commonwealth of Pennsylvania's duty to provide constitutionally adequate services extends to both voluntarily and involuntarily committed residents at Ebensburg. United States v. Pennsylvania. No. 92-33J (W.D. Pa. May 6, 1993 Memorandum Order). Although Defendants again attempted to raise this matter at trial, the United States filed a motion in limine seeking to exclude any evidence on this issue because it had already been decided. See United States' Motion In Limine to Strike Defendants' First Issue of Law and Fact and To Exclude Evidence at Trial, filed on July 20, 1993 and United States' Notice of Supplemental Authorities in Support of Pending Motions filed on October 1, 1993.
-' The plaintiff in that case, Nicholas Romeo, like a number of people at Ebensburg, was profoundly retarded and living in an institution operated by the Commonwealth of Pennsylvania. Mr. Romeo claimed that State officials were violating his constitutional rights by failing to protect him from injuries, unnecessarily restraining him, and not providing him with adequate training to abate his aggressive behaviors.
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safety; adequate medical care; freedom from undue bodily restraint; and training to ensure safety and facilitate the ability to function free from bodily restraints. Younabera. 457 U.S. at 319, 324. More than a decade after the Supreme Court made its pronouncements in Younaberq. Ebensburg residents are still waiting to realize these basic rights.
There is a significant body of case law delineating the range of conditions that rise to the level of constitutional violations found by other courts when faced with institutional deficiencies similar to those before the Court in this litigation. When read in the context of the facts in this case, these cases demonstrate that Ebensburg residents have been, and are being, denied their constitutional rights. Because the United States provided the Court with an extensive summary of the case law in the Pre-Trial Stipulation, applicable law will only be highlighted here in very summary fashion. The purpose of this memorandum is to focus on additional issues that arose during the course of this litigation, including the scope of the right to training, the extent to which "professional judgment" is applicable to the Court's determination of constitutional rights in CRIPA actions, the burden of proof at trial, and the authority of the Court to order the requested relief in the face of the significant constitutional violations that have been established by the evidence in this case.
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II. DEFENDANTS' FAILURE TO PROVIDE EBENSBURG RESIDENTS WITH THEIR BASIC CARE NEEDS VIOLATES THEIR DUE PROCESS RIGHTS There is no question that individuals with mental
retardation who live in a state operated facility have a right to decent and humane care of their basic human needs. Younqberq. 457 U.S. at 315; United States v. Tennessee. No. 92-2062-M1/A, slip op. at 31, 42 (W.D. Tenn. Nov. 22, 1993) (hereinafter "Tennessee Opinion") (copy attached) (poor bathing practices, lack of general care, residents naked in the bathroom, failure to change diapers); Lelsz v. Kavanaqh. 673 F. Supp. 828, 833-34 (N.D. Tex. 1987); Association for Retarded Citizens of North Dakota v. Olson. 561 F. Supp. 473, 491 (D.N.D. 1982), aff'd. 713 F.2d 1384 (8th Cir. 1983) (court could not conceive of a more basic privacy interest than the interest in not being viewed unclothed). The Commonwealth has failed and continues to fail to provide even this primary level of custodial care to all Ebensburg residents. Instead, while under Ebensburg's care, residents who lack the ability to cry out for help or to swat away bugs have had to endure "massive amounts of ants crawling over entire body," the persistence of flies on their bodies and food, and, in Theresa B. 's case, an infestation of maggots in her ear. 511; §IV. Attention to the needs of residents gives way to staff convenience as staff perform their custodial care and housekeeping responsibilities. ?15; §IV; §V.D. While staff are busy with other responsibilities, residents have been left behind in vacant buildings or have wandered off their living units where they are later found outside in dangerous situations, such as on
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highways, in cars, locked in a trunk, injured, and exposed to the elements without proper protection. 115; §V.D. These and numerous other incidents in evidence in this case constitute neglect and deprive Ebensburg residents of their basic right to adequate care. III. DEFENDANTS7 FAILURE TO PROTECT EBENSBURG RESIDENTS FROM HARM
VIOLATES THEIR DUE PROCESS RIGHTS TO ADEQUATE SAFETY Defendants have failed and are continuing to fail to protect the individuals who live at Ebensburg from serious harm. Those within the care and custody of state-operated facilities have a fundamental due process right to reasonably safe living conditions, which is the state's "unquestioned duty" to provide. Younqberq. 457 U.S. at 315-18, 324. See also DeShaney. 489 U.S. at 199-200 (citing Younqberq for the proposition that states are obligated to ensure "reasonable safety" of institutionalized people); Jackson v. Fort Stanton Hosp. & Training School. 757 F. Supp. 1243, 1306 (D.N.M. 1990), rev'd in part on other groundsf 964 F.2d 980 (10th Cir. 1992) (state failed to provide reasonable conditions of safety for residents in two state-operated mental retardation facilities thereby violating their constitutional rights); Society for Good Will to Retarded Children. Inc. v. Cuomo. 737 F.2d 1239, 1246-7 (2d Cir. 1984) (residents have a constitutional right to a safe environment in state institutions; Association for Retarded Citizens. 561 F. Supp. at 486 (constitutional right to "reasonably safe" environment in stateoperated facility includes supervision and protection from attack by others). The Commonwealth has abrogated its primary
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responsibility to provide reasonable safety to the residents of Ebensburg by subjecting them to conditions in which they repeatedly suffer serious injury and other significant harm. On both an individual staff level as well as on a systemic level, Ebensburg has failed to take adequate action to protect the very individuals who have been entrusted to the State's care, even in the face of directives from the State to take action. 55 18, 20, 22, 23, 24, & 30; §V.D; §V.E; §V.F.3. In some situations, staff have inflicted abusive acts on residents. 127; §V.C.2(d). In other situations, staff are not present to prevent harm or, when present, they fail to intervene to protect residents. 55 24, 28; §V.D.; §V.E. Preventable resident injuries and accidents occur because the deployment of direct care staff is inadequate to ensure even minimally adequate supervision of residents. 5135; §V.D; §XV.B. There are simply too few direct care staff who are inadequately trained to respond to a variety of dangerous behaviors in which Ebensburg residents engage. 553; §XV.C; §VII.H.
Ebensburg fails to act despite clear knowledge of these behaviors and the harm that they have caused. 529; §V.F.l. Ebensburg staff have failed to adequately monitor and intervene when residents engage in dangerous eating behaviors. 55 87, 88; §XI.E. They have also failed to adequately monitor residents known to eat inedible objects to keep them from ingesting harmful substances. 525; §V.D.; §V.E. Ebensburg staff additionally do not provide adequate supervision and do not intervene
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appropriately to stop residents from engaging in self-injurious and aggressive behaviors resulting in serious harm. 528; §V.D.; §V.E. Federal courts have repeatedly found that the failure of institutions to provide supervision sufficient to prevent residents from injuring themselves or others, in fact situations similar to the evidence in this case, constitutes a violation of residents' constitutional rights. See, e.g.. Tennessee Opinion at 28, 46 (entering a preliminary injunction, sua sponte. for failure of direct care staff to properly supervise individuals with known behavior disorders, including eating disorders); Society for Good Willf 737 F.2d at 1246; Bernstein v. Lower Moreland Township. 603 F. Supp. 907 (E.D. Pa. 1985); R.A.J. v. Miller. 590 F. Supp. 1310 (N.D. Tex. 1984); Association for Retarded Citizens. 561 F. Supp. at 486.
Untrained Ebensburg staff have also caused resident injury and placed residents at risk of substantial harm. They feed, handle, transfer, and lift residents with significant disabilities in unsafe ways. 1195-97 128, 129; §X.B.4; § XI.D.2; §XI.D.5; §XI.D.8; §XIV.F.5. Federal courts have also found these same practices at other institutions constitute harmful conditions that violate residents' rights to reasonable safety. See, e.g.. Lelsz. 673 F. Supp. at 847, 860-861 (dangerous feeding practices by untrained and improperly supervised staff at state mental retardation facility fell below professionally acceptable standards, exposed residents to risk of harm, and were unconstitutional); Association for Retarded Citizens. 561 F.
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Supp. at 478-80 (feeding practices deficient in state mental retardation facility where residents were fed in improper and "dangerously awkward" positions and too fast); Tennessee Opinion at 24; accord Society for Good Will. 737 F.2d at 1246.
The facts in evidence in this case demonstrate overwhelmingly that the Defendants have failed and continue to fail to meet their obligation to provide safe conditions at Ebensburg. Regrettably, even in the face of this lawsuit, Ebensburg continues to be an unsafe place to live and a place that is actually becoming yet more unsafe as time goes on. In the year and a half following the filing of the Complaint, overall injuries and other incidents of significant harm have escalated at Ebensburg. 518; §V.B. Injuries due to unknown causes increased by more than 50% in the year following the lawsuit. 524; §V.B. The number of mealtime chokings at Ebensburg in the first four months, alone, of 1993 almost equalled the total number of chokings during the entire year in 1991. 589; §XI.E.2. As both James W.'s and Denise V.'s mothers were testifying, James and Denise continued to suffer injuries at Ebensburg. 123; §V.A; §VII.E.l. Even as the United States rested its case-in-chief on August 4, 1993 — the very day that Dr. Amado was testifying about Ebensburg's failure to protect its residents from harm — Carol D., who has known pica behavior, was found by a nurse crouched on the floor, cyanotic, and gasping for breath. A nurse removed six inches of shirt from Carol's throat. 525; §V.D. State surveyors inspecting Ebensburg as the
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Defendants were putting on their case persistently observed staff failing to intervene in the face of unsafe behaviors, a problem that Defendants admit is a "systemic" one. 528; §V.E. The Defendants' failure to provide safe conditions violates Ebensburg residents' basic constitutional right to be protected from harm in the environment in which they are confined. IV. DEFENDANTS' FAILURE TO PROVIDE EBENSBURG RESIDENTS ADEQUATE
TRAINING PROGRAMS VIOLATES THEIR DUE PROCESS RIGHTS The Constitution requires state administrators of public institutions to provide training programs and other services which will advance and protect the basic liberty interests of residents, including their rights to reasonable safety, protection from harm, and freedom from undue bodily restraint. Youngberg. 457 U.S. at 324. Such training programs must be based upon appropriate assessments, developed to meet residents' individualized needs, consistently implemented, and designed to teach residents those skills necessary to live more normally and to avoid developing or exhibiting dangerous and other anti-social behaviors. See, e.g.. Society for Good Will. 737 F.2d at 1250; Thomas S. v. Flaherty. 699 F. Supp. 1178, 1192, 1200-01 (W.D.N.C. 1988), aff'd. 902 F.2d 250 (4th Cir.), cert, denied. 498 U.S. 951 (1990); Jackson. 757 F. Supp. at 1308; Woe v. Cuomo. 638 F. Supp. 1506, 1517 (E.D.N.Y.), aff'd in part, remanded in part. 801 F.2d 627 (2d Cir. 1986); Lelsz. 673 F. Supp. at 849-50, 861; Association for Retarded Citizens. 561 F. Supp. at 479.
The evidence in this case clearly demonstrates that, in the absence of appropriate training programs at Ebensburg, residents
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have suffered both serious injury and undue restraint. 5531, 58; §VI; §VI.A.4; SVI.B.l; §VI.B.2.d; §VIII.B. These deficiencies deprive Ebensburg residents of their constitutional right to adequate training programs. See, e.g.. Thomas S.. 699 F. Supp. at 1186-192, 1199-1200 (constitutional rights of a class of mentally retarded persons confined in a state institution, many of whom had self-injurious or aggressive behaviors, had been violated by inter alia: failure to provide reasonably safe conditions; unreasonable use of physical and chemical restraints; inappropriate use of psychotropic medications causing adverse effects which were inadequately treated; and failure to provide minimally adequate habilitation); Association for Retarded Citizens. 561 F. Supp. at 486-7 (constitutional rights of class of mentally retarded people confined in state institution violated where defendants failed to provide, inter alia, adequate assessment, staff, and training to acquire needed skills).
A. Defendants are not protecting Ebensbura residents' liberty interest in training programs to ensure protection from harm
In the twelve months following the filing of this lawsuit, injuries and incidents of harm directly attributable to residents' behaviors increased by more than 40% at Ebensburg. 546; §VII.A. They continued to increase, even as this case was being tried. 546; §VII.A. Behavior management programs are grossly inadequate to address residents' serious behaviors, many of which have been created by the Defendants' deficient care and long term institutionalization in the first instance. 5546, 47,
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49, 50; §VII.E; §VII.F; §VII.G; §VII.I. In violation of longstanding and universally accepted standards and State and facility policy, Ebensburg's behavior management practices are deficient in four major and basic areas: assessment; program development; program implementation; and program review and revision. 543; §VII. A number of residents do not even have a behavior management program to address serious behaviors. 546; §VII.E. The failure to provide appropriate training and behavior programs where the risk of bodily injury exists violates the rights of Ebensburg residents to reasonable safety and protection from harm. Younqbera. 457 U.S. at 324; Tennessee Opinion at 38; Homeward Bound v. Hissom Memorial Ctr. (hereinafter "Homeward Bound Opinion"), No. 85-C-437-E, slip op. at 4, 7 (N.D. Okla. July 24, 1987) (copy attached).
The majority opinion in Younaberq was narrowly focused on Nicholas Romeo's individual rights and the specific facts of his case. The Court therefore limited its decision to the specific training that Mr. Romeo required to address his behaviors.-' The right to training to ensure protection from harm, however, goes far beyond a limited right to a narrowly drawn behavior program to address existing harmful behaviors. By necessity, it
- As the Court observed, "The record reveals that respondent's primary needs are bodily safety and a minimum of physical restraint, and respondent clearly claims training related to these needs [footnote omitted]." Younqberq. 457 U.S. at 317-18. Moreover, the Court further stated that, "On the basis of the record before us, it is quite uncertain whether respondent seeks any 'habilitation' or training unrelated to safety and freedom from bodily restraints." Id. at 318.
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encompasses a much broader right to training, or habilitation,
that extends to all residents at Ebensburg. This is because
harmful behaviors inevitably develop without meaningful learning
opportunities throughout the day. As described by Dr. Stark, a
"pattern of harm" resulting in injury, undue restraint, and
physical and mental deterioration is destined to occur absent
meaningful training programs to stimulate and teach residents
important skills. 540; §11; §VI.B.l.-' As such, the right to
protection from harm of every individual who does not receive
training is implicated and the safety of every individual who
does not receive training is at risk.
There is universal agreement among the United States' three
psychology experts, the Commonwealth's psychology expert, and
Defendants, themselves, that a failure to provide adequate
- This pattern of harm is pervasive at Ebensburg. There are too many individuals with special needs confined in too small a space with too few staff and a lack of meaningful and stimulating things for the residents to do. This cramped and monotonous existence would be difficult for most individuals to endure for a prolonged period of time. It has been dangerous and destructive for the mentally retarded individuals who have been subjected to decades of this existence at Ebensburg. Residents live in groups of approximately twenty-four individuals, with whom they spend the majority of their time, day after day, idle in large dayrooms on the living units. The residents do not have adequate activities and staff interaction, particularly during mealtimes, medication administration, and afternoon and evening hours. Significant periods of the day are consumed waiting for staff to complete care-taking responsibilities, such as bathing, toileting, and dressing, for the many residents for whom they are responsible. Rather than staff using these occasions as learning opportunities, these duties take on a custodial function. The scanty block of time during weekdays devoted to "program" hours off the living units is similarly wrought with much idle time for a number of individuals. Often, staff spend so little time with residents that programming is rendered meaningless.
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training programs to people with mental retardation inevitably leads to harm. 533; SVI.B.l. A number of federal courts have adopted this theory in post-Younqberg decisions, finding a broad based right to training that enhances residents' level of functioning, teaches them self-care skills and those skills associated with daily living, and are sufficient to prevent deterioration. See, e.g.. Thomas S.. 699 F. Supp. at 1186, 120001 (mentally retarded persons may develop maladaptive behaviors due to environmental deficiencies; they have a right to adequate habilitation in a setting designed to reduce self-abuse and aggression); Lelsz, 673 F. Supp. at 849-850, 861 (programs at a state mental retardation facility held to be unconstitutional where they were not relevant, did not apply to daily life, used inappropriate materials, and did not provide enough staffresident interaction); Society for Good Will. 572 F. Supp. at 1348 (E.D.N.Y. 1983)(harmful or inappropriate behaviors attributed, at least in part, to non-stimulating environment; failure to provide adequate programming results in deterioration, serious intellectual, emotional, and physical damage, and irreversible loss of potential), cited with approval. 737 F.2d at 1251. See also Jackson. 757 F. Supp. at 1309; Mihalcik v. Lensink. 732 F. Supp. 299, 303 (D. Conn. 1990); Griffith v. Ledbetter. 711 F. Supp. 1108, 1111 (N.D. Ga. 1989); Armstead v. Pingree. 629 F. Supp. 273, 276 (M.D. Fla. 1986); Association for
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Retarded Citizens. 561 F. Supp. at 487; Homeward Bound Opinion at
5, 29-32.- As one court has aptly stated:
Given the great difference that minimum selfcare skills make in the life of most mentally retarded persons, this court regards the acquisition and maintenance of those skills as essential to the exercise of basic liberties. Not only will these skills free residents from the restraint of others who now "help" the residents perform basic functions, these skills will also enable the residents to do a great variety of activities which formerly they could not.
Association for Retarded Citizens, 561 F. Supp. at 487 (emphasis
in original).
The evidence in this case demonstrates that Ebensburg does
not provide residents with the opportunity to develop skills that
are essential to the exercise of their basic liberties. For
example, only eleven people at Ebensburg have toileting programs.
-' These post-Youngberg cases join a rich history of preYoungberq cases which have found a broad-based right to training, including: Scott v. Plante. 641 F.2d 117 (3d Cir. 1982), vacated and remanded in light of Youngberg. 458 U.S. 1101 (1982), aff'd. 691 F.2d 634 (3d Cir. 1982); Gary W. v. Louisiana. 437 F. Supp. 1209, 1219 (E.D. La. 1976); Welsch v. Likins. 373 F. Supp. 487 (D. Minn. 1974); New York State Ass'n for Retarded Children. Inc. v. Rockefeller. 357 F. Supp. 752 (E.D.N.Y. 1973); Goodman v. Parwatikar. 570 F.2d 801 (8th Cir. 1978); In re Ballav. 482 F.2d 648 (D.C. Cir. 1973); Flakes v. Percy. 511 F. Supp. 1325 (W.D. Wis. 1981); Davis v. Hubbard. 506 F. Supp. 915 (N.D. Ohio 1980); Johnson v. Solomon. 484 F. Supp. 278 (D. Md. 1979); Morgan v. Sproat. 432 F. Supp. 1130 (S.D. Miss. 1977); Wvatt v. Sticknev. 325 F. Supp. 781 (M.D. Ala. 1971), affM. remanded and rev'd on other grounds sub nom.. Wyatt v. Aderholt. 503 F.2d 1305 (5th Cir. 1974).
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§VT.B.2.d.-' Few individuals at Ebensburg have communication programs. 538; §VI.B.3; §VI.B.3.d. Residents who need occupational therapy programs to assist them with their level of functioning in such areas as eating, dressing, and personal self care, do not have such programs. 138; §VI.B.3.c. Ebensburg's occupational and speech therapy staff freely admit that Ebensburg residents are being denied the opportunity to reach their potential because they are not receiving these services. §VI.B.3.c; §VI.B.3.d. Moreover, Ebensburg does not provide its residents who have significant physical disabilities with meaningful opportunities to gain skills to enable them to exercise some control over their environment. 536; §VI.B.2.c. Instead, despite Ebensburg policy, they are discriminated against on the basis of their physical disabilities and are deprived of the opportunity to even be off their living units for more than one hour a day for programs. 536; §VI.B.2.c.
As Dr. Stark testified on the first day of trial, mental retardation is not curable. §11. The effects of mental retardation can be alleviated, however, by teaching individuals with mental retardation necessary adaptive skills to enable them to function at their fullest capacity. 56; §11. Indeed, the individuals whose liberty has been deprived by confinement at
- The Lelsz court found that a similar failure to attempt intensive toilet training was "an assault on clients' dignity" and violative of due process rights. Lelsz. 673 F. Supp. at 847-
848. - 19 -

Ebensburg have been placed there for the very purpose of learning skills to achieve their full potential. 58; §111.
There is widespread recognition among courts that such habilitation is a basic part of providing services to people with mental retardation. For example, in Heller v. Doe, U.S. , 113 S. Ct. 2637, 2645 (1993), the Supreme Court endorsed the proposition that appropriate treatment for people with mental retardation is "'habilitation' which consists of education and training aimed at improving self-care and self-sufficiency skills" (emphasis added). The Third Circuit has recognized that people with mental retardation "require special and continuing care called 'habilitation' to function optimally in society." Philadelphia Police & Fire Ass'n for Handicapped Children v. City of Philadelphia. 874 F.2d 156 (3d Cir. 1989). Writing for the Third Circuit, Chief Judge Gibbons defines habilitation as "'teaching and training the retarded basic life and social skills,' such as walking, talking, eating, toileting, socializing, using money, traveling, and working." Id. (citation to record omitted). Significantly, the Third Circuit specifically recognizes that regression is inevitable when people with mental retardation are not provided with continuous training opportunities, stating that: "These lessons [of basic life and social skills], however, are not learned permanently by mentally retarded persons: once habilitation ceases, they begin to regress." Id. In keeping with the Third Circuit's appreciation of the importance of habilitative training, this Court has
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similarly recognized that "the Fourteenth Amendment guarantees certain substantive rights against undue infringement," including the right to a "minimum level of habilitation." Lee v. Gateway Inst. & Clinic. 732 F. Supp. 572, 576 (W.D. Pa. 1989), aff'd. 908 F.2d 963 (3d Cir. 1990); Anderson v. Everett Area School Bd.. 732 F. Supp. 39, 40 (W.D. Pa. 1989).
In sum, in order to advance basic liberty interests, courts have widely recognized that affirmative steps must be taken to provide all people with mental retardation adequate training, which includes teaching them new skills and promoting their growth and development. Such growth and development protects them from harm, enhances their ability to function independently, and advances their overall basic interests in liberty. However labeled and whether based on a right to protection from harm or broader liberty interests, a number of courts have uniformly concluded, when faced with these issues, that institutionalized mentally retarded persons have a right to adequate training which will give them a reasonable opportunity to grow and develop and to acquire and maintain those life skills that will enable them to function as effectively as their capacities permit.
B. Defendants are not protecting Ebensburq residents' liberty interest in training programs to prevent undue restraint
Ebensburg residents have also suffered undue restraint in the absence of adequate training and behavior management programs. 558; §VIII.B. They are thus trapped in the vicious cycle of being punished for the behaviors that result from the
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very lack of services that the Defendants have an obligation to provide. Indeed, restraints have been imposed on a number of residents for behaviors that Ebensburg has failed to address at all or to address adequately. 1157, 58; §VIII.A.l; §VIII.B. Although some nine months after the United States filed its Complaint, Defendant's terminated their use of some of the more professionally unacceptable and grotesque forms of bodily restraints at Ebensburg (such as straight jackets and velcro wrap papoose boards which completely immobilize residents), they concomitantly increased dramatically their use of floor control and psychotropic medications on both a long term and emergency chemical restraint basis. 5559, 60, 62, 63; §VIII.C; §VIII.D; SVHI.E.^ Ebensburg residents have been seriously injured through Defendants' use of floor control, which consists of several staff forcing residents to the floor and restraining them in a face-down position. 161; §VIII.E. Psychotropic medications have been used as chemical restraints on a dramatically more frequent emergency basis in the absence of any psychiatric consultation at Ebensburg. 163; §VIII.A; §VIII.D. Without appropriate training and behavior management programs to address the underlying behaviors, such restraint is per se unreasonable
& In Sabo v. O'Bannon. 586 F. Supp. 1132, 1140 (E.D. Pa. 1984) , the court explicitly held that the use of drugs as chemical restraints carries the same due process protections as other bodily restraints. Such chemical restraints were recognized as equally restrictive and potentially more harmful than physical restraints. As a result, the court held that undue chemical restraints violate residents' constitutional right to liberty.
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and a violation of constitutional standards. Younabergf 457 U.S. at 324. V. DEFENDANTS'' FAILURE TO PROVIDE RESIDENTS ADEQUATE MEDICAL
CARE VIOLATES THEIR DUE PROCESS RIGHTS There is no dispute between the parties that in all areas of broad based medical care, professional standards require certain basic steps. First, individuals who are "at risk" of health problems must be identified. §X.A.2(a); §X.B.3(a). Second, they must be adequately assessed through comprehensive evaluations based on reliable data and an interdisciplinary approach, where warranted. Third, an appropriate treatment plan must be devised. Fourth, the plan must be consistently implemented by qualified staff. Where non-professional staff are involved, such staff must receive adequate training to carry out their specific responsibilities with respect to the particular individual to whom they are providing care. Fifth, the efficacy of the treatment must be monitored and reviewed in a meaningful way through appropriate data and any necessary revisions in the course of treatment must be made and implemented. 1576-80. The evidence in this case demonstrates that in each of the areas of concern at Ebensburg, including treatment of aspiration and gastroesophageal reflux, seizures, mental illness, physical disabilities, nutritional management, and other nursing and health related problems, defendants are not meeting these five basic standards. §IX; §X; §XII; §XIII; §XIV. First, in term of identifying people "at risk," Ebensburg has failed to do this in critical areas, including identifying residents who are at risk
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of aspiration and gastroesophageal reflux. 177; §X.A.2. Direct care staff have failed to notify nurses following serious injuries. 5103; §X.B.2. Nurses have failed to notify doctors about such significant health concerns as occult blood in stool and vomitus. 5104; SX.A.4; §X.A.5; §XII.B.l. Staff fail to recognize that residents are in status epilepticus. 55109-110; SX11I.A.4. Second, there is a universal failure to adequately assess Ebensburg residents in each of the areas at issue in this litigation. Doctors fail to perform medical work-ups for aspiration and gastroesophageal reflux. 578; §X.A. Psychiatric, physical therapy, and nutritional management assessments are so deficient as to be non-existent. 5565-75; 5581-86; 55119-134; SIX.A.2; §X.B.3(b); §XIV.F.l. Necessary diagnostic tests for seizures are not performed. §XIII.B.2. Nursing assessments for chronic and acute illnesses are inadequate. 55103-108; SXII.B.l.; §XII.B.4. Third, deficiencies also exist across the board in developing and implementing adequate treatment plans. Ebensburg doctors have frequently failed to develop any treatment plan for serious, chronic illnesses other than to simply "monitor" the resident. 5578-80; §X.A.4; §X.A.5. The failure to intervene at an early stage in such progressive problems as aspiration and gastroesophageal reflux has resulted in preventable death at Ebensburg. 580; §X.A.4. Both nutritional and physical management plans are non-existent at Ebensburg due to a generalized lack of information about appropriate and necessary interventions and an insufficient number of qualified
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staff. 5581-86; §X.B.2; SXIV.F.2; §XIV.F.3. Physical and occupational therapists do not even participate in annual reviews and the interdisciplinary process. 5133; §XIF.2.b. There is inadequate neurology consultation time to address seizure management issues, including protecting residents from injuries due to seizures and selecting a course of treatment for adequate and appropriate seizure management without untoward side effects. 55112-117; SXIII.B.l; §XIII.B.3; §XIII.B.4. Necessary protocols and procedures do not exist in such key areas as emergency treatment of status epilepticus and nursing care plans for aspiration. 55103-108; 5111; §XII.B.3; §XIII.A.4. Psychiatric treatment is a hit-or-miss proposition at Ebensburg in the absence of adequate assessments to formulate an appropriate diagnosis. 565-71; §IX.A.2; §IX.A.3. Ebensburg doctors fail to follow consultants' recommendations and to document any rationale for not following the recommendations. 599-102; §IX.A.7; §XIII.B.5.
Fourth, in the few situations where Ebensburg has developed treatment interventions, they are often not followed. For example, feeding plans are not implemented. 5587-98; §X.B.4; SXI.D.5. The psychiatrist's and neurologist's recommendations are not implemented. 5116; §IX.A.7; §XIII.B.5. Positioning guidelines for individuals with aspiration and gastroesophagea1 reflux are not carried out. 5591-98; §XI.D.5. Direct care staff charged with the day to day responsibilities of handling, lifting, transferring, and feeding residents with significant
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disabilities receive little or no training. 1129; §X.B.4; §XIV.F.6. Fifth, Ebensburg also fails in all areas to monitor the status of residents' conditions and to revise treatment plans when warranted. Critical data to make informed decisions is lacking in psychiatric care, nutritional management, physical management, and nursing care. 572; 5581-86; 55103-108; 55119134; §IX.A.2; §IX.A.3; §XII.B.4; §XIV.F.l. Recordkeeping practices are deficient across the board at Ebensburg, from doctors' and nurses' notes to consultant recommendations. 556869; 5599-101; §IX.A.2.b; SIX.A.3; §XII.A.l; §XII.A.2; §XII.A.3; §XII.B.4; §XIII.B.6.
The totality of these deficiencies represent a fundamental and systemic failure to provide adequate medical care that comports with accepted professional standards. When faced with similar types of deficient practices in other institutions serving people with mental retardation, courts have found that they not only constitute inadequate medical care, they also violate residents' rights to safety because of the lifethreatening and debilitating risks that they pose.
For example, in the area of services for people with physical disabilities, courts have held that: the constitutional liberty interest encompasses the right to necessary adaptive equipment and techniques to reduce the risk of physical deterioration among people who are non-ambulatory, Thomas S.. 699 F. Supp. at 1200; inadequate staffing, supervision, and provision of physical therapy services and equipment at a state-operated
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mental retardation facility violated the residents' constitutional rights, Lelszf 673 F. Supp. at 847, 860-1; residents were denied their constitutional rights in a state mental retardation facility where they were not receiving required positioning necessary to maintain body flexibility and there was a shortage of physical therapy and occupational therapy staff, Society for Good Will. 572 F. Supp. at 1324-5; and a state institution's failure to provide adequate physical therapy, occupational therapy and adaptive equipment and a sufficient number of trained physical and occupational therapists and direct care staff resulted in unconstitutional restraints on the residents' movement and liberty. Homeward Bound Opinion at 2-3, 21-23, 47-49.
In the area of emergency response to status seizures, the Tennessee court entered a preliminary injunction sua sponte enjoining a state operated facility from treating status epilepticus with IM Valium, finding that no standard of care recognizes the administration of IM Valium for status epilepticus. Tennessee Opinion at 28, 39-40, 46. The Tennessee court held that "[m]edical care within the institution, particularly for patients with seizure disorders, is so deviant from any recognized principles of medical care that any patient suffering prolonged seizures or status epilepticus may be in immediate peril of his life." Tennessee Opinion at 28.
In the area of general medical care, courts have held that residents in a state operated facility are constitutionally
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entitled to adequate, emergency, routine, and preventive treatment for ordinary and chronic ailments. See, e.g.. Lelsz. 673 F. Supp. at 834 ("Medical care includes not only lifepreserving or emergency care, but also regular and preventive treatment for ordinary and chronic ailments.")(emphasis added). Failures to communicate needed medical information among staff, leading to a lack of professionally acceptable integrated medical care, have also been found to deprive institutional residents of their constitutional rights. Lelsz. 673 F. Supp. at 843, 845.
In the area of psychiatric care, courts have held that adherence to the rights explicated by Youngberg and its progeny requires that drugs be prescribed and administered according to professional judgment by a qualified professional. Psychotropic medications, like other medications, may have harmful side effects. Those effects may be short term, such as depression of the central nervous system, or permanent, such as tardive dyskinesia, the effect of which may be "analogous to that resulting from radical surgical procedures [such] as a prefrontal lobotomy." Rennie v. Klein. 720 F.2d 266, 276 (3d Cir. 1983) (Weis, J., concurring); Sabo v. O'Bannon. 586 F. Supp. 1132, 1135, 1140 (E.D. Pa. 1984). Hence, it is necessary that such medications be prescribed and administered only for appropriate reasons and be properly monitored if residents are to remain free from unreasonable risks of harm resulting from their use.—' As
—' That such harm may be serious is unquestioned. In Sabo. the plaintiff's son choked to death while hospitalized as a result of central nervous system depression and suppression of
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noted by the court in Sabo. "if the right to safe conditions includes the right to be free from a pattern of attacks and injuries, then it must also protect against the alleged unsafe administration of drugs." Sabo. 586 F. Supp. at 1140. Courts have also found that where psychotropic drugs are prescribed pursuant to unacceptable processes and procedures, including unacceptable data collection, residents are being chemically restrained and their constitutional rights are being abridged. Lelsz. 673 F. Supp. at 843, 845, 852.
In the area of feeding and nutritional management, courts have held that improper positioning during feeding, which runs the risk for aspiration and loss of life, deprives residents of their constitutional rights. Association of Retarded Citizens. 561 F. Supp. at 480, 486; Homeward Bound Opinion at 23; Jackson. 757 F. Supp. at 1308 (finding that staff members are not adequately trained in proper feeding techniques before they begin working with residents with complex needs, and that "[i]mproper feeding techniques can place residents in danger of choking on food.").
In sum, Defendants' significant deficiencies in the areas of general medical and nursing care, seizure management, psychiatric care, and nutritional and physical management constitute substantial departures from accepted professional standards and
the gag reflex caused by overmedication. Sabo. 586 F. Supp. at 1140.
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deprive residents of their basic constitutional rights to adequate medical care and reasonable safety. VI. A PROFESSIONAL JUDGMENT STANDARD IS NOT APPLICABLE TO CRIPA
CASES A. The professional judgment standard arises in actions
for damages The constitutional requirement that states provide institutionalized persons reasonable safety, adequate medical care, and adequate food, clothing, and shelter is absolute. Youngberg. 457 U.S. at 315-316. Whether a state is meeting its duty to provide this level of care is not subject to the kind of "professional judgment" analysis Defendants urge this court to apply in their Motion for Judgment on Partial Findings. Nowhere in Youngberg. 457 U.S. 307 is it suggested that the "professional judgment" standard be utilized in evaluating whether an institution is protecting its residents from harm. See, e.g.. Association for Retarded Citizensf 561 F. Supp. at 486 ("professional judgment" standard not considered in claims involving basic care needs and protection from harm). As contemplated by Youngberg. safety is an objective standard that can be measured through objective criteria. There is overwhelming evidence in this case that Defendants do not provide reasonable safety to Ebensburg residents. This objective evidence of harm ranges from escalating overall injury rates, including those due to unknown causes, to the failure of direct care staff to intervene to protect residents from dangerous eating behaviors, self-injury, and aggression. Analysis of these
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facts does not require reference to "professional judgment" or a determination as to "which of several professionally acceptable choices should have been made." Younqbera. 457 U.S. at 321. It is abundantly clear that Ebensburg residents are not being protected from harm.
The concept of "professional judgment" was introduced into the discussion of the rights of institutionalized persons in Younqberq. In Younqberq. the professional judgment standard was applied only to the decisions by professionals made with respect to Mr. Romeo's training, and then only in evaluating those decisions in the context of his §1983 action for money damages against persons responsible for his care. The Court utilized what Defendants have characterized as the professional judgment "standard" in analyzing the issue of what training was constitutionally due Mr. Romeo. In giving direction to lower courts confronted with suits for damages by individuals such as the one before it, the Court urged that, in evaluating the decisions made by professionals regarding training given to a particular institutionalized individual for purposes of determining liability for monetary damages, "courts must show deference to the judgment exercised by a qualified professional." 457 U.S. at 322. This admonition was primarily intended to ensure that institutional personnel not be readily subject to actions for money damages. The Court specifically stated that "[t]he administrators, and particularly professional personnel, should not be required to make each decision in the shadow of an
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action for damages." Younaberg. 457 U.S. at 322-325 (emphasis added).
Courts should only use a professional judgment standard, then, when reviewing decisions regarding the provision of training to an individual institutionalized person in the context of an action for monetary damages under 42 U.S.C. § 1983. Indeed, the Third Circuit in Shaw v. Strackhouse. 920 F.2d 1135 (3d Cir. 1990), applied the professional judgment standard in the context of a § 1983 action. However, the Shaw case was not a case regarding the provision of training. Rather, Shaw was a case about failure to protect from harm, and, as such, the professional judgment standard had no place in that discussion. The Shaw court thus wrongly considered whether professional judgment was exercised in analyzing whether Embreeville, another state-operated facility for mentally retarded persons, failed to protect Ricky Shaw from harm. Shaw. 920 F.2d at 1145-46. That analysis is contrary to Youngberg.
The raison d'etre for the professional judgment standard is absent in CRIPA actions. In such actions, the United States seeks only injunctive relief against state officials in their official capacities. There is no personal liability involved. Thus, the Supreme Court's concern in Youngberq about protecting individual professionals from a drumbeat of damage actions is not an issue here. In the context of this action brought under CRIPA to evaluate overall conditions of confinement at Ebensburg — to determine the presence of systemic deficiencies that defeat the
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delivery of adequate care — the "professional judgment" standard
is thus inapposite. See, e.g.. Homeward Bound Opinion at 47-48
(constitutional — not damages — case articulating the Youngberg
protections in which words "professional judgment" do not
appear).—
B. Much of the evidence in this case does not involve professional judgment
The professional judgment standard is inapposite in this
case for another, more fundamental, reason. That is, much of the
evidence at trial concerns situations that do not even involve
professional judgments.
There can be no professional judgment where, as at
Ebensburg, no judgments are made in the first place. The
evidence shows that there are Ebensburg residents exhibiting
dangerous behaviors that are resulting in severe and repeated
injuries for whom Ebensburg has not even provided a behavior
program. Even where behavior programs are provided, they
continue year after year with no revision in the face of lack of
progress, or worse yet, increasing maladaptive behaviors. In the
area of medical care, Ebensburg doctors fail to develop long-term
— There is a difference between professional judgments and professional standards or practices. Professional standards are, of course, relevant to a determination of the constitutionality of conditions because they provide the framework for a determination of whether an institution's practices in such areas as medical care and training are acceptable. As such, the United States' experts testified about generally accepted standards and whether Ebensburg's practices departed from them. Evaluating conditions against professional standards is significantly different than scrutinizing individual professional judgments and is clearly more in keeping with the systemic focus in this case.
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individualized medical plans of care for residents who have been hospitalized for aspiration, are at risk of aspirating, or have a history of gastroesophageal reflux; the doctors completely fail to "work-up" obvious markers for reflux; the medical staff fails to obtain needed help from specialized medical consultants (such as gastroenterologists or pulmonologists); the Ebensburg doctors routinely abdicate any opportunity for professional judgment by "treating" individuals (often in emergency situations) via the telephone, thus placing a nurse in the position of having to make medical assessment, diagnosis and treatment judgments that are the exclusive responsibility of the doctors; psychotropic medications are prescribed without justification and without review for their efficacy; residents are not even screened to determine who is at risk of aspiration; and people with significant disabilities are not adequately assessed and do not receive physical therapy or physical management services. §IX; §X; §XIII; XIV. These examples of situations where no decisions are made cannot reflect professional judgment because no judgments are made in the first place.
There can also be no professional judgment where, as at Ebensburg, professional decisions about what services a resident receives are based not on individual needs, but are based on what is available. Jackson. 757 F. Supp. at 1312; Thomas S.. 699 F. Supp. at 1200 (W.D.N.C. 1988); Clark v. Cohen. 613 F. Supp. 684, 704 and n.13 (E.D. Pa. 1985), aff'd. 794 F.2d 79 (3d Cir. 1986), cert, denied. 479 U.S. 962 (1986). The evidence demonstrates
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that Ebensburg residents are provided canned behavior programs and canned skills training programs that fail to take into account individual needs because that is all that is available.—' At best, Defendants only provide Ebensburg residents with occupational therapy services four days a week, regardless of their needs, because the aides must spend the fifth day cleaning equipment and doing paperwork. §XIV.F.3.b(iii). Despite Ebensburg's knowledge that residents are experiencing extreme difficulty during mealtimes, the professionals who are charged with their care believe that all they can provide is "trial and error" treatment until they receive some outside expertise and technical assistance. 1[97; §XI.B. The evidence also demonstrates that in spite of the fact that Defendants recognize the need to place each and every resident of Ebensburg into the community, no such placements occur because there are no community placements available and residents remain at Ebensburg indefinitely. §XVIII.
There can be no professional judgment where, as at Ebensburg, there are not enough qualified professionals to make judgments. Ebensburg staff, including the Director of Occupational Therapy, the Director of Nursing, occupational therapy aides, and members of the Dysphagia Team admit they need training and technical assistance to perform their functions, but Ebensburg fails to provide the training. §X.B. 5; §XII.B.5;
— Reliance on "canned" treatment programs and the "word processor approach" to psychology services violates due process. Lelsz, 673 F. Supp. at 848-50.
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§XIV.F.3.e. Moreover, the number of professional staff is inadequate to perform necessary functions. As evidenced by the numerous admissions in deposition testimony, the Defendants, themselves, have identified a need for additional doctors, neurology and psychiatry consultation time, psychologists, physical, occupational, and speech therapists, and therapy aides. §I.B.3.c; §IX.A.2(b)(ii); §XII.A.4; §XIII.B.5.c; §XIII.B.5.d; §XIV.D. The Dysphagia Team does not feel that it has adequate time to assess residents, to ensure that mealtime interventions are implemented, and to monitor and train direct care staff. §X.B.6.a. The current staffing configuration in these areas results in the failure to provide Ebensburg residents with needed services and departs from accepted professional standards. Deficiencies in the number of professional staff is exacerbated by the use of professional staff to accomplish non-professional tasks due to shortages in direct care staff. For instance, the few psychologists on staff at Ebensburg are forced to drive buses and act as dental hygienists by suctioning people during dental procedures. Similarly, Ebensburg's few occupational therapy aides and speech therapists are pulled from their client training responsibilities to diaper and transport residents. Courts have uniformly held that such critical understaffing in state mental retardation facilities implicates constitutional rights. See. e.g.. Lelsz. 673 F. Supp. at 843, 858-9, 860; Association for Retarded Citizens. 561 F. Supp. at 478; Jacksonf 757 F. Supp. at 1309.
- 36 -

There can be no professional judgment where, as at Ebensburg, there is inadequate recordkeeping. Ebensburg's deficiencies in collecting, recording, and reviewing appropriate data and information about residents' behavioral and physical conditions have directly and adversely affected residents' care and treatment. The facility's failure to record adequate data about individuals' behaviors has led to an inability to make professionally based decisions about training programs and has resulted in undue physical and chemical restraints. Incomplete records about individuals' physical and health status similarly result in inadequate planning and provision of critical health care services, including physical, nutritional, and seizure management and the use of psychotropic medications. §IX.A.2; §IX.A.3; §XIII.B.6. In addition, nursing and medical progress notes frequently are not entered when an individuals's condition warrants it, resulting in gaps of critical information needed to provide adequate care. §X.A.4; §X.A.5; §XII.A. Physical therapists do not review progress notes because they are "backed up" and have to "triage" what has to be done at Ebensburg. §XIV.E. Courts have repeatedly found that a facility's failure to maintain adequate records about the course of treatment contributes to constitutional inadequacies. See, e.g.. Jackson. 757 F. Supp. at 1306, 1310; Association for Retarded Citizens. 561 F. Supp. at 480; Woe. 638 F. Supp. at 1514.
There can be no professional judgment where, as at Ebensburg, recommendations of treating professionals are not even
- 37 -

implemented. For example, the consult psychiatrist's recommendations to decrease or discontinue an individual's medications have not been implemented. §IX.A.7. Similarly, the advice of the consult neurologist has been repeatedly ignored; his recommendations to decrease the anticonvulsant medications of those residents on chronic polypharmacy and his expressed concerns about the potential for negative side effects for those individuals on high doses of medication have been regularly disregarded. §XIII.B.3; §XIII.B.4; §XIII.B.5.a. Courts have found that the failure to implement the recommendations of treating professionals violates due process. Jackson. 757 F. Supp. at 1312; Clark. 794 F.2d at 87; Thomas S.. 781 F.2d at 375; Lelsz. 673 F. Supp. at 835.
There can be no professional judgment where, as at Ebensburg, facility staff do not even follow their own policies. The evidence establishes that as long ago as 1988, the Commonwealth issued behavior management policies that Ebensburg has never complied with and is failing to follow more than five years later. The evidence establishes that, contrary to Ebensburg's mission statement, residents do not receive training to assist them in functioning as independently as possible. 58; §111. The evidence also establishes that Ebensburg discriminates in its application of its active treatment policy, failing to provide five hours of continuous training off living units for its residents with the most significant physical disabilities. 536; §VI.B.2.c. Ebensburg also fails to follow its own policy
- 38 -

for lifting and transferring residents with physical disabilities. §XIV.F.5. Moreover, the evidence establishes that physical therapists do not follow regulations promulgated by the Pennsylvania State Board of Physical Therapy and Ebensburg contract objectives. 5132; §XIV.E. Courts have found that where a professional departs from institutional or departmental treatment policies, no professional judgment is exercised. See. e.g.. Thomas S.. 902 F.2d at 252; Society for Good Will. 572 F. Supp. at 1329 (canned treatment programs were contrary to institution's own policies).
C. Assuming professional judgment applies, it is not being exercised at Ebensburg.
Assuming, arguendo, that the professional judgment does apply, it is clear that professional judgment is not being exercised at Ebensburg because professional standards are not used in making individual treatment/training decisions. Each of the United States' experts reviewed numerous records of Ebensburg residents, not to second-guess Ebensburg professionals or establish personal responsibility/liability, but to ascertain whether a) professional standards were applied in making these decisions, and b) to determine whether these decisions were part of a pattern that would indicate, for example, failure to make timely or appropriate diagnoses, to monitor residents' conditions or progress in meeting training objectives, or to take actions when problems were identified in the residents' records. If
- 39 -

professional standards or practices are not employed in making a decision, professional judgment is not exercised.**'
The United States has more than met its burden to show that the professionals at Ebensburg, when they do make decisions, are not making the decisions based on accepted professional practices or standards. The decisions of the Ebensburg professionals are therefore not "professional judgments." In each and every area of constitutional import, Defendants fail to take the prerequisite steps to make a professional judgment. In the areas of general medical care, neurology, psychiatry, nursing, physical management, nutritional management, and psychology, Ebensburg fails to apply accepted professional standards to formulate a professional judgment — in each area, Ebensburg fails to identify residents in need, to adequately assess their needs, to develop appropriate plans to address the needs, to implement the plans, to monitor their efficacy, and to make revisions when necessary. While actions are presumed to be professional if made by a qualified person and implemented accordingly, that presumption may be overcome by showing that the decision is a substantial departure from accepted professional opinion, practice, or standards. Younaberg. 457 U.S. at 323. Deference to professional judgment "does not mean binding and unquestioned
—' That is, if a professional makes a decision that is not based on accepted professional practices or standards, it is not a "professional judgment." An example of this is the use of IM medications at Ebensburg to control status seizures. The use of IM medications for such a purpose is not an accepted professional practice. § XIII.A.4.b. Decisions to use them are not professional judgments.
- 40 -

acceptance." Association for Retarded Citizens. 561 F. Supp. at 488. These considerations are particularly relevant to the circumstances at Ebensburg, outlined above, where substantial departures from accepted professional standards are the rule, not the exception. VII. ANY LAST MINUTE IMPROVEMENTS AT EBEKSBURG WAVE NOT CORRECTED
THE DEFICIENCIES AND DO NOT REMOVE THE NEED FOR THE REQUESTED RELIEF As was demonstrated at trial, the deficiencies existing at Ebensburg are longstanding in nature and, critically, what very few steps Defendants have taken were taken only after the United States filed its lawsuit. For instance, in spite of a 1988 State requirement that functional analyses be performed, Defendants only began performing functional analyses for its residents with severe behavior problems starting in March 1993, and only after the United States propounded interrogatories asking for a list of functional analyses together with the dates the analyses were performed. The evidence shows that Ebensburg only began competency based feeding training after the United States rested its case. The evidence shows that Ebensburg did not start daily risk management meetings until March 1993 and only after discussion with an outside expert that Ebensburg hired for purposes of this litigation and subsequently decided not to call as a witness at trial. Defendants failed to eliminate use of the papoose board for restraint until late 1992. Most significantly, the evidence shows that even after initiation of these minimal actions, deficient practices and harm persist at Ebensburg. In
- 41 -

spite of being on notice about these and many other conditions resulting in the deprivation of the constitutional rights of the people who live at Ebensburg, Defendants' unwillingness to remedy deficiencies over a protracted period of time establishes that the offending conditions are likely to continue and/or recur.
It is well established that defendants cannot evade a judgment against them where they attempt to correct deficiencies at the eleventh hour under the threat of a trial, particularly under circumstances such as those in this case where the defendants were on notice for years of the violations alleged by the United States. See, e.g., United States v. W.T. Grant Co.. 345 U.S. 629, 632 n.5 (1953)("It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption." The Third Circuit has adopted the W.T. Grant approach. Zellous v. Broadhead Associations. 906 F.2d 94, 100 (3d Cir. 1990); International Bhd. of Boilermakers v. Kelly. 815 F.2d 912, 916 (3d Cir. 1987); United States v. Article of Drug. 362 F.2d 923, 928 (3d Cir. 1966); Hendricks v. Gilhool. 709 F. Supp. 1362, 1372 (E.D. Pa. 1989).

VIII.

THE UNITED STATES HAS MET ITS BURDEN OF PROOF IN DEMONSTRATING CONSTITUTIONAL VIOLATIONS

In an action pursuant to CRIPA, the United States is under

precisely the same burden of proof as plaintiffs in other civil

rights cases involving institutional conditions. This burden is

to demonstrate by a preponderance of the evidence that

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Defendants' actions violate residents' constitutional rights.—7
In the only adjudicated CRIPA decision to date, the United States
District Court for the Western District of Tennessee has
confirmed that the burden placed on the United States in a CRIPA
case is no different than the burden placed on litigants in other
similar litigation. Tennessee Opinion at 4.
The United States has clearly demonstrated constitutional
violations at Ebensburg by a preponderance of the evidence. The
Defendants did not attempt to rebut the vast majority of evidence
propounded by the United States in this case. Unlike the United
States' witnesses who supplemented their ultimate opinions
through testimony and exhibits with specific examples about
most of the residents at Ebensburg, few of Defendants' witnesses
actually discussed the people at Ebensburg who are affected by this litigation.^7 Defendants did not offer into evidence a
single piece of documentary evidence about any individual at
— See United States' Memorandum on Standard of Proof at Trial, filed on July 26, 1993, and United States' Notice of Supplemental Authorities in Support of Pending Motions, filed on October 1, 1993, for detailed discussions of this issue. Since the filing of the October Notice, the court in United States v. Tennessee issued its oral ruling in a CRIPA case similar to this one involving conditions at a state-operated mental retardation facility in Tennessee. A copy of this ruling is attached.
—' As set forth in the procedural history in §1 of the Detailed Proposed Findings of Fact, the United States' experts specifically discussed more than 200 residents during their collective testimony based upon thousands of hours of on-site and record reviews. Additional information about more than 450 of the approximately 472 Ebensburg residents is in evidence through exhibits in this case.
- 43 -

Ebensburg.—7 Instead, Defendants' witnesses testified about global conclusions, often based on inadequate, incomplete, and incorrect information. They further often relied on representations by Ebensburg staff to conclude that practices were adequate or appropriate, rather than conducting their own independent reviews.—7 In many cases, the scope of their reviews were significantly more limited than those of the United States' experts. Moreover, none of Defendants' independent experts had ever set foot on Ebensburg prior to 1993. Most of their evaluations were restricted to what was occurring at Ebensburg fully one year after this lawsuit was filed.
What the Commonwealth did not put on in its case is as instructive as what it did put on. The only Ebensburg staff to testify were the Facility Director and his assistant. None of the directors of any clinical area of services at Ebensburg testified, except through admissions in depositions. The Director of Medical Services did not testify. The Director of Nursing did not testify. The Director of Psychology did not testify. The Director of Occupational Therapy did not testify. The Director of Speech Therapy did not testify. And no member of
—' They did offer into evidence cursory one page parent comment sheets filled out by the parents testifying for the United States.
—' As the court in Tennessee observed, "[t]he testimony of experts, of course, is affected by the reliability of the information they receive on which they base their expert testimony. If they receive inaccurate or incomplete information, then the testimony provided by the expert may be of limited or little value." Tennessee Opinion at 12-13.
- 44 -

Ebensburg's Dysphagia Team testified. The Commonwealth did not retain an independent expert in neurology or physical therapy to assess the adequacy of conditions at Ebensburg. Instead, they relied on the testimony of their consulting neurologist and physical therapist to render opinions on the adequacy of their own care. Despite representations early in the case, the Commonwealth did not present a videotape to the Court to show an "alternative" view of conditions at Ebensburg. The Commonwealth did not dispute any summary chart of deficiencies entered into evidence by the United States or question the accuracy of any chart for any reason.—'
In sum, the United States has met its burden of proof and Defendants have not rebutted the overwhelming evidence that the United States has presented in support of its case.
REMEDIAL MEASURES The Defendants' failure to correct longstanding deficiencies at Ebensburg despite repeated notification of these deficiencies requires an injunctive order that is comprehensive, specific, and contains a mechanism to ensure compliance.—'
— The only possible exceptions are Mr. Bellomo's opinion that an area of improvement was not included on one summary chart clearly labeled and intended to highlight deficiencies identified by State surveys and Dr. Sheppard's testimony that she did not consider to be significant the recent deficiencies on the chart summarizing State survey deficiencies at Ebensburg relating to mealtime practices. Tr. 10/13/93 (Bellomo) at 159-160.
^ The Court has before it the United States' Motion for Remedy Hearing Following Liability Determination filed November 1, 1993.
- 45 -

An order issued by this Court should address each area in which deficiencies were found. The order proposed by the United States includes provisions relating to, inter alia, feeding practices, nutritional, physical, and seizure management, nursing, staffing, recordkeeping, and training programs. Each of the provisions relates to deficiencies proven at trial as set forth in the United States' Proposed Findings of Fact. Each is necessary to ensure that residents of Ebensburg are provided constitutional levels of care. The order also identifies areas where Defendants must take immediate action to address deficiencies posing a risk of serious injury, significant illness, or death.
It is important that Defendants' obligations under any order are unambiguous. Thus, the order the United States proposes is quite specific in describing the steps the Defendants must take. The evidence demonstrates that the Defendants will need guidance on how to cure the deficiencies at Ebensburg. The proposed order therefore requires that Defendants retain outside expertise to implement necessary corrective actions.
The Defendants in this case have a documented history of inability to remedy deficiencies that deprive residents of their constitutional rights. Thus, any order for injunctive relief must contain a mechanism to ensure compliance. The mechanism we propose is a monitor. The monitor would be chosen by the United States, subject to court approval. His/her duties would be to regularly visit Ebensburg to monitor compliance. The monitor
- 46 -

would be authorized to retain appropriate experts and have access to the facility and its staff and records. The monitor's findings would be reported to the Court and the parties.
We believe the appointment of a monitor is appropriate and warranted here. In cases where states have demonstrated an inability to provide constitutional levels of care, courts have not been reluctant to appoint special masters, monitors, and independent experts to ensure compliance with their orders. See, e.g.. United States v. Michigan. 680 F. Supp. 928, 953-957 (W.D. Mich. 1987) (independent expert); United States v. Guam. No. 91-00020, slip op. (D. Guam 1991) (monitor); Halderman v. Pennhurst. No. 74-1345, slip op. (E.D. Pa. 1990) (special master); Association for Retarded Citizens, 561 F. Supp. at 495 (monitor for compliance reporting); Ruiz v. Collins. 503 F. Supp. 1265, 1385 (S.D. Tex. 1988); New York State Ass'n for Retarded Children. Inc. v. Carey. 706 F.2d 956, 962-963 (2d Cir.) (master appointed due to complexity of consent decree), cert, denied. 464 U.S. 915 (1983); Gary W. v. Louisiana. 601 F.2d 240, 244-45 (5th Cir. 1970).
The benefits of a monitor here are numerous. First, the monitor would provide the Court and the parties with an impartial, current, and accurate description of conditions at Ebensburg and the status of compliance. Second, a monitor would have a greater ability to perform on-site inspections and maintain continuing oversight than would the United States — which, in lieu of a monitor, would be solely responsible for
- 47 -

monitoring compliance. Third, a monitor would not be in an adversary role, but rather would be providing an independent evaluation of Defendants' compliance.
In light of the continuing, indeed increasing, harm that Ebensburg residents are suffering, the proposed order has provisions for ceasing further admissions to Ebensburg and taking more aggressive action to place people in appropriate community settings. This action is in keeping both with Defendants' views about how best to serve people with mental retardation, as well as prevailing views in the field. It is broadly and commonly accepted today that large congregate care institutions are ill suited to provide adequate services to the special needs of people with mental retardation. The Defendants universally endorse community placement as the most appropriate setting to provide adequate services to Ebensburg residents. Despite this belief, the number of people at Ebensburg has remained relatively constant over the past three years. Although Defendants are making efforts to find appropriate community placements for people living at other State institutions, they are not making the efforts at Ebensburg.—' Courts faced with the types of
— Ebensburg has determined that every individual who lives there can and should be placed in the community and has developed a community placement plan for each resident. Three circuits, including the Third Circuit, have held that the state's failure to implement such decisions which bear directly on whether the individual's needs can be met in the institution or should be met elsewhere, i.e., in a community placement, violates due process. In the words of the district court in Jackson :
What can be said is that the individualized determinations were made by IDTs [an interdisciplinary
- 48 -

persistent problems that plague Ebensburg have aptly described
the institutional paradox and the benefits of community services:
Institutions, by their very structure — a closed and segregated society founded on obsolete custodial models — can rarely normalize and habilitate the mentally retarded citizen to the extent of community programs created and modeled upon the normalization and developmental approach components of habilitation.
Halderman v. Pennhurst State School & Hosp.. 446 F. Supp. 1295,
1318 (E.D. Pa. 1977), aff'd in part, rev'd in part. 612 F.2d 84,
114 (3rd Cir. 1979) ("It is probably true, as the trial court
found, that in general institutions are less effective than
community living arrangements in facilitating the right to
habilitation in the least restrictive setting.11), rev'd on other
grounds. 451 U.S. 1 (1981).
It is well within the power of a federal court to order
broad based remedies to correct constitutional violations. There
team] ... who after assessing the strengths and needs of the individual residents against the available resources in a particular setting, determined that in their professional judgment a particular resident should be recommended for community placement. ..., defendants' failure to implement the recommendations of their own treating professionals violates due process.
Jackson. 757 F. Supp. at 1312 (rev'd in part, only to the extent of finding error in that part of the injunction enjoining state officials from considering "costs11 as a factor in making community placement recommendations) 964 F.2d 980, 992 (10th Cir. 1992). See also. Thomas S. v. Flaherty. 699 F. Supp. 1178 (W.D.N.C. 1988), aff'd. 902 F.2d. 250 (4th Cir. 1990), cert, denied. Ill S. Ct. 373 (1991); Clark v. Cohen. 794 F.2d 79 (3rd Cir. 1986); Kirsch v. Thompson. 717 F. Supp. 1077 (E.D. Pa. 1988) (utilizes a Youngberg liberty interests analysis to direct state officials to transfer plaintiff to a community program).
- 49 -

is specific precedent in the Western District of Pennsylvania for even closing facilities that can not be brought into constitutional compliance. In Inmates of the Allegheny County Jail v. Wecht. 699 F. Supp. 1137, 1147 (W.D. Pa. 1988), appeal dismissed. 873 F.2d 57 (3rd Cir. 1989), Chief Judge Cohill ordered that a jail be closed and a new facility constructed. His analysis of the court's authority applies equally to the facts of this case:
When the totality of conditions in a penal institution violates the Constitution, the trial court's remedies are not limited to the redress of specific constitutional rights.
Rather, the nature of the violation determines the scope of the remedy. [Citing Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971).] Moreover, in fashioning a remedy for constitutional violations, federal courts must order full and effective relief.
CONCLUSION In summary, the evidence in this case has overwhelmingly demonstrated that the Defendants have failed, and continue to fail, to provide the individuals who live at Ebensburg with reasonable safety and adequate basic care, training programs, and medical care. These widespread deficiencies violate Ebensburg residents' constitutional rights and have caused residents to suffer significant harm. These violations have occurred and will continue to occur, unless, and until, the Commonwealth of
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Pennsylvania is subject to the proposed Court order requiring it to provide constitutional conditions.
Respectfully submitted, James P. Turner Acting Assistant Attorney General Civil Rights Division
Robinsue Frohboese Richard J. Farano Judith C. Preston Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section P.O. Box 66400 Washington, D.C. 20035-6400 (202) 514-6259
- 51 -

CERTIFICATE OF SERVICE
I hereby certify that the pleadings listed below were sent
by overnight mail, postage prepaid, this 16th day of February
1994, to counsel of record:
Thomas B. York, Esq. Eckert, Seamans, Cherin & Mellotte One South Market Square Building 213 Market Street P.O. Box 1248 Harrisburg, PA 17108
Pleadings sent by overnight mail:
1. United States' Proposed Detailed Findings of Fact (Volume I ) ;
2. United States' Proposed Detailed Findings of Fact (Volume II);
3. Appendix to United States' Proposed Detailed Findings of Fact;
4. United States' Proposed Summary Findings of Fact; 5. United States' Proposed Conclusions of Law and
Memorandum of Law; and 6. United States' Proposed Order.
0
Robinsue Frohboese Senior Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section P.O. Box 66400 Washington, DC 20035-6400 (202) 514-6259

 
 U.S. v. Pennsylvania
MR-PA-006-011
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN 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; Alan M. Bellomo, Director, Ebensburg Center;
Defendants.

)
) )
)
)
)
) Civil No. 92-33J
) Hon. D. Brooks Smith
) ) ) ) ) ) ) ) ) )

UNITED STATES' PROPOSED DETAILED FINDINGS OF FACT VOLUME I

TABLE OF CONTENTS VOLUME I

I.

PROCEDURAL HISTORY OF THE CASE

1-1

n . GENERAL OVERVIEW OF MENTAL RETARDATION

AND SERVICES FOR PEOPLE WITH MENTAL RETARDATION

II-l

HI. OVERVIEW OF EBENSBURG CENTER

HI-1

IV. EBENSBURG FAILS TO MEET ALL RESIDENTS' BASIC CARE NEEDS

IV-1

V. EBENSBURG DOES NOT PROTECT ITS RESIDENTS FROM HARM

V-l

A. The Harm At Ebensburg Is Pervasive

V-l

B. Residents Are Being Chronically And Repeatedly Injured And The

Injuries Are Increasing C. Ebensburg Underreports And Minimizes Injuries

V-4 V-13

1. Ebensburg Underreports Its Incidents And Injuries 2. Ebensburg Minimizes The Seriousness Of Injuries

V-14 V-15

a. Ebensburg Sometimes Does Not Count Significant

Incidents As Injuries b. Ebensburg Considers Some
Significant Injuries

V-15

To Be "Minor."

V-18

c. Ebensburg Staff Dismiss

Injuries As "Routine Risks."

V-20

d. Ebensburg Staff Have Sometimes Inflicted Harm On Others

V-22

D. Staff Are Not Adequately Supervising And Monitoring Residents

V-27

E. Ebensburg Staff Are Failing To Intervene Even When They Observe

Dangerous Behavior F. Ebensburg Is Failing, Systemically, To Determine The Causes Of
Injuries And Take Preventative Action To Protect Residents

V-32 V-38

1. Ebensburg Fails To Take Adequate Action Even In The Face Of Repeated, Serious Injury

V-38

2. Ebensburg Administrators Are Not Cognizant Of Injury Trends . . . . V-40

3. Ebensburg Fails To Protect Residents Even When Directed To Do So V-44

VI. EBENSBURG FAILS TO PROVIDE RESIDENTS WITH MEANINGFUL,

PURPOSEFUL ACTIVITY IN BOTH THE LIVING ENVIRONMENT

AND IN DAY PROGRAMS, RESULTING IN HARM

VI-1

A. Ebensburg's Living Environment Is Harmful

VI-2

1. Ebensburg's Living Areas Are Barren And Lack Meaningful Activity . . VI-2

2. Lack Of Meaningful Activity Is Particularly Acute In

Keystone House

VI-8

3.

Ebensburg's Living Environment Fails To Meet Accepted

Professional Standards

VI-11

4.

Ebensburg's Living Environment Is Contributing To Residents'

Maladaptive Behaviors

VI-12

B. Ebensburg Fails To Provide Residents With Adequate Training Programs . . . VI-15

1. Acquiring Skills Enables Individuals To Protect

Themselves From Harm And Become Independent

VI-15

2.

Ebensburg Fails To Develop And Implement Training Programs . . . . VI-18

a.

Ebensburg Is Not Implementing

Its Own Requirements To

Provide Training

VI-19

b. Ebensburg Has Known About

Its Failure To Provide Adequate

Training Since At Least 1987

VI-23

c. Ebensburg Is Discriminating

In The Training It Provides

VI-24

d. Ebensburg Fails To Provide

Training In Basic Living Skills

VI-31

3. The Training Programs That Ebensburg Develops Are Inadequate . . . VI-33

a. Ebensburg Fails To Revise

Training Programs When Necessary

VI-35

b.

Skills Training Programs

Lack Psychology Input

VI-37

c. Ebensburg Fails To Provide

Adequate Occupational Therapy

Programs

VI-39

i.

There Are Not Enough

Occupational Therapists

At Ebensburg

VI-40

ii. Occupational Therapy Assistants

Are Pulled From Their

Occupational Therapy

Responsibilities To Perform

Other Functions

VI-45

d. Ebensburg Fails To Provide

Adequate Speech And Communication

Training To Meet Residents' Needs

VI-48

VH. EBENSBURG IS FAILING TO PROVIDE ADEQUATE BEHAVIOR MANAGEMENT SERVICES A. Injuries Due to Behaviors Are Dramatically Increasing B. Ebensburg's Behavior Management Services Do Not Comport With Accepted Professional Standards 1. Dr. Reid Performed A Superficial Review Of Ebensburg's Behavior Management Services 2. Defendants Failed To Rebut Testimony On Deficient Behavior Management Practices At Ebensburg C. Ebensburg Does Not Have Sufficient Psychologists To Provide Services That Meet Accepted Standards

VIM VII-1 VII-2 VIM VII-6 VII-7

1. The Role Of Ebensburg's Psychology Discipline Coordinator

Is Too Limited

VII-12

2. Psychologists At Ebensburg Perform Non-Psychology

Functions Due To Staff Shortages

VII-13

D. Behavior Management Standards Are Clear And Are Generally Set

Forth In The Commonwealth's 1988 Statewide Behavior

Management Policy

VII-15

E. Ebensburg Is Failing To Provide Behavior Programs For Every

Individual Exhibiting Serious Behaviors Resulting In Severe

And Repeated Injuries

VII-16

1. Ebensburg Is Failing To Provide Behavior Programs

For Aggression And Self-Injurious Behaviors

VII-18

2. Ebensburg Is Failing To Provide Behavior Programs For Pica . . . . VII-21

3. Ebensburg Is Failing To Provide Behavior Programs For Biting . . . VH-23

4. Ebensburg Is Failing To Provide Behavior Programs For

Inappropriate Sexual Behavior

VII-25

5. Ebensburg Fails To Provide Behavior Programs Even When

The Facility Director Requests Them

VII-28

F. Ebensburg's Behavior Programs Are Not Effective

VH-31

G. Ebensburg Is Failing to Revise Its Behavior Programs When Necessary . . . VII-35

1. Ebensburg's Failure To Revise Behavior Programs Is Resulting

In Harm

VII-35

2. Ebensburg's Behavior Intervention Committee Is Not Adequately

Reviewing Behavior Programs

VH-41

H. Direct Care Staff Are Failing To Implement Behavior Programs

VII-43

I. Ebensburg's Behavior Programs Do Not Comport With Generally

Accepted Standards

VQ-47

1. Ebensburg's Behavior Programs Are Not Individualized

VII-48

2. Ebensburg's Behavior Programs Do Not Teach

Alternative Behaviors

VII-49

3. Reinforcers Are Not Given Out Consistently

W-51

4. Ebensburg Has Failed To Conduct Functional Analyses

VII-52

5. Ebensburg's Data Collection System Is Not Individualized And

Does Not Measure Frequency, Intensity, And Duration

Of Behavior

VII-56

EBENSBURG USES UNDUE BODILY RESTRAINTS

VHI-1

A. Ebensburg Is Chemically Restraining Its Residents

VIII-1

1. Ebensburg Is Using Behavior Modifying Medications As A Substitute

For Behavior Programs

VHI-1

2. Ebensburg Uses Psychotropic Medications Where They Are Not

Indicated And Where They Are Not Effective

VIII-6

B. Ebensburg Is Mechanically and Physically Restraining Individuals

Without Providing Adequate Treatment Plans

VHI-7

C. Ebensburg Used The Papoose Board In Violation of State Policy

Until Late 1992

Vm-10

D. Ebensburg Is Replacing Its Use Of Mechanical Restraints With Floor

Control And Emergency Chemical Restraints

VIII-13

E. Ebensburg's Use Of Floor Control Is Resulting In Injuries

VIII-14

IX. EBENSBURG FAILS TO PROVIDE ADEQUATE AND APPROPRIATE

PSYCHIATRIC SERVICES IN VIOLATION OF GENERALLY ACCEPTED

PROFESSIONAL STANDARDS

IX-1

A. Ebensburg Does Not Provide Its Residents With Adequate

Psychiatric Services

IX-1

1. A Disciplined Medical Approach Is Necessary In Providing

Dependent Individuals With Psychiatric Services

IX-3

2. Ebensburg Is Failing To Provide Its Residents With Adequate,

Disciplined Psychiatric Assessments In Violation Of Generally

Accepted Standards

IX-4

a.

The Behavioral Data And Information Collected By

Ebensburg For Use In Psychiatric Assessments Is

Either Non-Existent Or Inadequate

IX-6

b.

The Psychiatric Consult

Sessions Where Assessment

Information Is Discussed And

Where Diagnoses And Treatment

Decisions Are Made Are Chaotic,

Disorganized And Undisciplined

IX-11

i.

Psychiatric Consults Are

Devoid Of Adequate

Information For Assessment,

Diagnosis, and Treatment

IX-12

ii. Psychiatric Consults Take

Place Too Infrequently

DC-15

3. Ebensburg Is Failing To Provide Its Residents With

Adequately Considered Psychiatric Diagnoses In Violation

Of Generally Accepted Standards

IX-17

4. Ebensburg Is Failing To Provide Its Residents With Adequate

And Appropriate Psychiatric Treatments In Violation Of Generally

Accepted Standards

IX-22

a. The Treatment Decision-Making

Process At Ebensburg Is Not

Adequate

IX-22

b. Inappropriate Treatment

Selection At Ebensburg Exposes

Individuals To Risks Of Drug

Side Effects

IX-24

c. Ebensburg Is Failing To Provide

Its Residents With Adequate And

Appropriate Behavioral Programs

At The Treatment Stage

IX-27

5. Ebensburg Is Failing To Adequately Monitor Its Residents'

Progress After Providing Them With Psychiatric Treatment In

Violation Of Generally Accepted Standards

IX-29

6. Ebensburg Residents Are Being Chemically Restrained

Dt-31

7. Individuals Residing At Ebensburg Have Been Harmed Because Of The

Inadequate And Inappropriate Psychotropic Services Provided

To Them By The Facility

IX-32

VOLUME n

X. EBENSBURG FAILS TO PROVIDE ADEQUATE AND APPROPRIATE

MEDICAL CARE TO RESIDENTS AT RISK OF LIFE-THREATENING

CONDITIONS DUE TO ASPIRATION, GER, AND NUTRITIONAL STATUS . . . X-l

A. Medical Management of Aspiration and Gastroesophageal Reflux

Is Inadequate

X-l

1. Aspiration Of Foreign Material Into The Lungs Is A Common

Source Of Harm For Individuals With Developmental Disabilities . . . . X-3

a.

Gastroesophageal Reflux Is One Major Cause Of Aspiration

In This Population

X-5

b. Dysphagia Or Feeding Difficulties Is A Second

Major Cause Of Aspiration In This Population

X-7

2. The Assessment And Diagnostic Techniques For Addressing

Aspiration Problems Are Weil-Known And Generally Accepted

X-8

a.

A Facility Needs To Identify

Which Individuals Are At Risk

Of Aspirating

X-9

b. A Facility Needs To Provide

Those Individuals At Risk Of

Aspirating With A Proper Medical

"Work-Up" Of Their Condition

X-9

3. The Treatments For Aspiration Problems Are Well-Known And

Generally Accepted

X-ll

4. Ebensburg Residents At Risk Of Aspirating Have Died As

A Result Of The Inadequate And Inappropriate Medical

Intervention Furnished By Ebensburg

X-12

5. Ebensburg Residents At Risk Of Aspirating Have Been Hospitalized

As A Result Of The Inadequate And Inappropriate Medical

Intervention Furnished By Ebensburg

X-29

6. Even When Ebensburg Residents At Risk Of Aspirating Are Not

Hospitalized They May Be Suffering Harm As A Result Of The

Inadequate And Inappropriate Medical Intervention Furnished

By Ebensburg

X-36

B. Ebensburg Does Not Provide Adequate Nutritional Management Services To

Residents In Accord With Basic Standards Of Care

X-37

1. The Outcome Measures Of A Good Nutritional Management System

Are Not Evident At Ebensburg

X-37

2. Nutritional Management Does Not Exist At Ebensburg

X-41

3. There Are Commonly Agreed Upon Components Of An Adequate

Nutritional Management System

X-43

a. Ebensburg Has Failed To Identify

Individuals Whose Swallowing,

Oral Motor, And Medical Conditions Place

Them Nutritionally At Risk

X-44

b. Ebensburg Does Not Adequately

Assess Residents With Nutritional

Management Needs

X-48

i.

Ebensburg's Dysphagia Team

Has Failed To

Conduct Assessments

X-49

ii. The Dysphagia Team's

Assessments Are

Inadequate

X-53

c.

Ebensburg Fails To Provide

Adequate And Appropriate

Mealtime Interventions For

Residents With Nutritional

Management Needs

X-54

d. Ebensburg Fails To Adequately

Monitor Residents' Mealtime

Intake And Mealtime

Interventions

X-58

i.

Mealtime Interventions

X-58

ii. Mealtime Intake

X-59

4. Ebensburg Fails To Provide Adequate Staff Training In How To

Implement Feeding Plans

X-60

5. Ebensburg Paraprofessional And Professional Staff Have Not

Received Adequate Training In Nutritional Management And Feeding

Individuals With Developmental Disabilities

X-62

6. Ebensburg Has Failed Even In Its Minimal Efforts At Nutritional

Management Activities

X-66

a.

Ebensburg's Dysphagia Team

Has Been Ineffective And Has

Failed In Its Mission

X-66

b. Ebensburg's Attempts To

Develop And Revise Feeding

Plans In Late 1992 Were Not

Professionally Grounded

X-69

c. The Dining Observation Form

Was Implemented Without

Adequate Understanding

X-71

C. Ebensburg's Treatment Of Jeff K. Is Illustrative Of Medical And

Nutritional Management Issues

X-74

XI. MEALTIMES AT EBENSBURG ARE UNSAFE AND DO NOT MEET ACCEPTED PROFESSIONAL STANDARDS A. Overview B. Ebensburg Residents Are Experiencing Obvious Harm From Unsafe Mealtime Practices C. Ebensburg Residents Are Eating And Being Fed In Unsafe Positions 1. There Are General Standards For Safe Eating Positions 2. Ebensburg Residents Are Fed On Their Backs, Contrary To Accepted Practice 3. Ebensburg Residents Are Being Fed With Their Trunks Improperly Aligned And Their Heads In Extension Contrary To Accepted Professional Practice D. Ebensburg Residents Are Being Fed Unsafely By Staff

XI-1 XI-1
XI-2 XI-6 XI-7
XI-8
XI-12 XI-19

1. Ebensburg Staff Feed Residents At An Excessively Rapid Rate

And With Overloaded Spoons Which Are Dangerous Practices

XI-20

2. Staff Feed Residents By Pushing Their Heads Back Into

Hyper-extension Which Is A Dangerous And Unacceptable Practice . . XI-23

3.

Staff, Themselves, Are Situated In Poor Positions When

They Feed Residents Which Contributes To Poor Feeding Practices . . XI-25

4. Ebensburg Staff Scrape Food Off Of Residents' Faces

While Feeding

XI-25

5. Ebensburg Staff Do Not Follow Requirements In Residents'

Feeding Plans

XI-26

6. Staff Fail To Intervene Properly When Residents Are Exhibiting

Distress During Mealtimes And Have Even Fed Residents While They

Are Coughing

XI-30

7. There Is No Consistency In Staff Feeders Of Residents With

Complex Feeding Needs

XI-31

8. Even Where Ebensburg's Professional And Paraprofessional

Staff Feed Residents, They Use Unsafe And Professionally

Unsound Practices

XI-32

9. The Defendants Were Aware Of Problems In The Way In Which

Ebensburg Residents Were Being Fed Prior To The United States

Filing Its Lawsuit

XI-35

E. Ebensburg Residents Are Eating Unsafely With No Staff Intervention

XI-36

1. Ebensburg Administrators And Staff Acknowledge That Residents

Exhibit Unsafe Behaviors During Mealtimes And Staff Do No

Intervene

XI-40

2. Ebensburg Residents' Unsafe Behaviors During Mealtimes Have

Resulted In Life-Threatening Risks

XI-43

3. The Defendants Have Been Aware Of Problems At Ebensburg

Where Individuals Are Eating At Too Rapid A Pace And Stuffing

Their Mouths With Food For The Past Decade

XI-47

F. The Dining Environment At Ebensburg Is Itself Unsafe

XI-49

G. The United States' Feeding Videotape Demonstrates Systemic Deficient

Practices That Depart From Accepted Professional Standards

XI-50

XH. EBENSBURG IS HARMING ITS RESIDENTS BY FAILING TO PROVIDE THEM WITH PROACTIVE, PREVENTIVE CONTINUITY OF MEDICAL AND HEALTH CARE IN VIOLATION OF GENERALLY ACCEPTED PROFESSIONAL STANDARDS A. Medical And Health Care Is Inadequate 1. Ebensburg Is Not Adequately Documenting Long-Term Care for Its Residents 2. Ebensburg Is Not Adequately Documenting Or Coordinating The Input From Outside Consultant Doctors Into The Residents' Long-Term Plan Of Care 3. Ebensburg Is Not Documenting The Communication With Outside Hospitals That Treat Its Residents 4. Ebensburg Is Consistently Failing To Maintain Sufficient Physician Staffing Levels B. Nursing Services At Ebensburg Are Inadequate

XII-1 XII-1 XII-2
XII-9 XII-11 XII-15 XII-20

1. Acute And Chronic Nursing Care Do Not Meet Professional

Standards

2. There Have Been Delayed Nursing Responses To Injuries

3.

Nursing Care Plans Are Inadequate

4.

Nurse Recordkeeping Is Inadequate

5. Ebensburg Nurses Need Additional Training

6. The Role Of The Ebensburg Director

Of Nursing Is Too Limited

XH-20 XH-23 XII-25 XH-27 XII-28
XII-29

XIIL

EBENSBURG IS FAILING TO PROVIDE ITS RESIDENTS WITH

ADEQUATE NEUROLOGICAL CARE

XIH-l

A. Ebensburg Fails To Provide Residents In Status Epilepticus Adequate

Treatment

XID-l

1. Status Epilepticus Is A Serious Medical Emergency

Xm-3

2. Ebensburg Fails To Understand When An Individual Is In Status . . . . Xffl-3

3. The Generally Accepted Standards For The Proper Management

And Treatment Of Status Seizures Are Clear

XIII-6

4. Ebensburg's Treatment Of Status Is Seriously Deficient In

Three Respects

XIII-7

a.

Ebensburg Waits Too Long

To Treat Its Residents

In Status

Xffl-8

b. Ebensburg Treats Its Residents

In Status With Intramuscular

(IM) Medication In Violation

Of Generally Accepted

Standards

XIII-11

c. Ebensburg Physicians Are

Inappropriately Treating

Residents In Status Via

Telephone Rather Than Face To

Face

Xffl-13

5. Ebensburg Residents Have Been Harmed Due To The Facility's

Poor Management Of Their Status

Seizures

XHI-14

B. Ebensburg Is Harming Its Residents With Epilepsy By Failing

To Adequately Intervene In The Management Of Their Seizures

XIII-16

1. Ebensburg Is Failing To Provide Adequately Address Seizure

Injuries

XEI-16

2. Ebensburg Is Failing To Provide Adequate EEG Diagnostic

Testing For Its Residents With Epilepsy

XEI-19

3. Ebensburg Is Unduly Engaging In The Practice of

Anticonvulsant Polypharmacy

XIII-24

4. Ebensburg Is Failing To Properly Manage The Side Effects

Of Anticonvulsant Medication Administered To Its Residents

XIII-29

5. Ebensburg Is Failing To Fully Involve An Expert Neurologist

In the Neurological Care Of Its Epileptic Residents

XIII-33

a.

The Neurologist's Advice

Is Ignored

XIII-33

b.

The Neurologist Does Not

Have Control Over The

Individuals That Need

Expert Input

c.

The Number Of Consult

Neurology Hours Is

Inadequate

d. Time Constraints Preclude The

Neurologist From Seeing All

The Individuals Who Are

Candidates For Neurological

Care

6. Ebensburg Is Not Adequately Documenting Medical And

Neurological Care For Its Residents In Violation Of

Generally Accepted Standards

XIV.

EBENSBURG FAILS TO PROVIDE RESIDENTS WITH ADEQUATE PHYSICAL THERAPY AND PHYSICAL MANAGEMENT SERVICES WHICH HAS RESULTED IN HARM A. The Defendants Have Been On Notice Of Deficiencies In Services For
Ebensburg Residents With Physical Disabilities Since At Least 1987 B. Background On Ebensburg Residents With Physical Disabilities C. Intervention Is Necessary To Prevent Deformity Patterns D. Physical Therapy Staffing At Ebensburg Is Inadequate E. The Limited Physical Therapy Related Services At Ebensburg
Are Inadequate F. Ebensburg's Services To People With Physical Disabilities
Do Not Comport With Accepted Standards And Principles 1. Ebensburg Fails To Conduct Adequate Physical Therapy
Assessments In Keeping With Accepted Professional Standards In The Field a. Ebensburg Physical Therapy Assessments
Are Inadequate In Content And Analysis Of Residents' Needs b. The Physical Therapy Assessments At Ebensburg Are Not Conducted With The Frequency Dictated By Commonly Accepted Professional Standards 2. Ebensburg Does Not Develop Adequate Physical Management Plans For Residents With Physical Disabilities a. Physical Therapists At Ebensburg Do Not Develop Physical Management Plans b. Interdisciplinary Teams Do Not Develop Adequate Physical Management Plans c. Physical Therapists Are Not Involved In The Interdisciplinary Process

Xm-35 XHI-36
Xni-37 XIH-38
XIV-1 XTV-1 XIV-3 XTV-4 XIV-7 XTV-11 XTV-16 XIV-17 XTV-18
XTV-20 XTV-21 XIV-21 XIV-22 XIV-23

3. Ebensburg Does Not Provide Adequate Physical Management

Services

XIV-25

a.

Physical Management Is

Necessary To Prevent

Significant Health Risks

XIV-25

b.

Ebensburg Residents Do

Not Receive Therapeutic

Positioning

XIV-31

i.

Therapeutic Positioning Is

Necessary For Residents

With Physical Disabilities

To Prevent Health Risks

XIV-31

ii. What Little Positioning

Is Done At Ebensburg Is

Not Therapeutic

XIV-34

iii. Sidelying Is Inadequate

At Ebensburg

XIV-38

iv. Prone On Forearms Is

Not Used At Ebensburg

XIV^O

v. Quadraped On Forearms Is

Not Used At Ebensburg

XIV-41

c. Ebensburg Residents With

Physical Disabilities Do Not

Receive Adequate Gross Motor

Programs

XIV-41

d. Ebensburg Residents Have Suffered

Significant Health Problems And

Lost Physical Capabilities Due To

A Lack Of Adequate Physical

Management Services

XTV-42

e. Ebensburg Professional And

Paraprofessional Staff Believe

That Residents Would Benefit

From Physical Management

XIV-44

4. The Wheelchairs At Ebensburg Are Inadequate

XIV-48

a. Wheelchairs Are Inappropriate

And Residents Are Not Positioned

Properly In Them

XTV-48

b. Ebensburg Does Not Develop,

Modify, And Monitor The

Condition Of Wheelchairs

Appropriately

XIV-52

5. Ebensburg Staff Do Not Handle, Lift, And Transfer Ebensburg

Residents Safely And In Accordance With Accepted Standards . . . . XIV-56

a. Ebensburg Residents Have

Suffered Harm As A Result

Of Improper Handling, Lifting,

And Transferring By Staff

XIV-60

6. Staff Training In Physical Management Is Inadequate

At Ebensburg

XIV-63

XV. DIRECT CARE STAFFING AT EBENSBURG IS INADEQUATE

XV-1

A. Ebensburg Is Not Meeting Its Direct Care Staff Quotas

XV-1

B. Injuries And Abuse Occur When There Are Not Enough Direct Care Staff . . XV-3

C. There Are Not Enough Staff To Implement Behavior Programs At

Ebensburg

XV-4

D. The Commonwealth Refuses To Provide More Staff To Ebensburg

XV-5

E. Ebensburg Administrators Have Repeatedly Requested Additional Staff

XV-8

F. Staff Breaks Further Reduce The Number Of Staff Actually Present

During Shifts

XV-13

XVI. CONDITIONS DURING SURVEYS REFLECT EBENSBURG'S BEST EFFORTS

XVI-1

XVH. EBENSBURG IS TOO LARGE TO ADEQUATELY SERVE THE PEOPLE WHO LIVE THERE

XVn-1

X V m . INDIVIDUALS REMAIN AT EBENSBURG IN SPITE OF DEFENDANTS' UNANIMOUS BELIEF THAT THEY WOULD BE BETTER SERVED IN THE COMMUNITY A. Defendants Recognize The Need For Community Placement B. Lack of Funds Is Preventing Individuals Who Could Live In The Community From Moving Into The Community C. Individuals Who Remain At Ebensburg Despite Determinations That They Would Be Better Served In The Community Are Being Harmed D. Ebensburg's Community Placement Plans Depart From Accepted Professional Standards

XVHI-1 XVIII-1
XVm-4
XVHI-6
XVIII-10

XIX. THE DEFENDANTS HAVE BEEN AWARE OF THE DEFICIENCIES AT ISSUE IN THIS LAWSUIT FOR A LONG PERIOD OF TIME

XIX-1

UNITED STATES' PROPOSED DETAILED FINDINGS OF FACT VOLUME I

I. PROCEDURAL HISTORY OF THE CASE This action for injunctive relief was brought by the United States of America, plaintiff
herein, by and through the Attorney General, against defendants, Commonwealth of Pennsylvania et al., pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997 et seq., on February 10, 1992. The Complaint alleges that defendants are violating the constitutional rights of the approximately 472 mentally retarded and developmental^ disabled residents of the Ebensburg Center ("Ebensburg"), a residential, State-operated facility. On March 23, 1992, defendants filed a motion to dismiss. The Court denied the motion on May 6, 1992, summarily rejecting the defendants' argument that voluntarily committed Ebensburg residents are not entitled to constitutional protection. The Court further found that the United States had previously given the Commonwealth due notice of alleged unconstitutional conditions. The Court held a status conference on June 22, 1992 and approved the parties' proposed discovery plan, with some modifications, on that date. Between mid-August 1992 and mid-February 1993, experts for the United States spent more than 45 days touring Ebensburg. Each and every one of these tours was announced ahead of time to Ebensburg.\J The parties filed their joint pre-trial stipulation on April 22, 1993. The Court held the pre-trial conference on July 20, 1993 setting a schedule for trial of this case, which began on July 26, 1993.
This case was tried over the course of twenty-one days between July 26 and August 4, 1993, September 13-17, 1993, October 12-19, 1993, and a final day of rebuttal testimony
V See § XVI for a discussion of Ebensburg's preparation for announced survey tours. 1-1

on December 13, 1993. At the Court's request, interim summary oral argument of the evidence was presented by the parties on August 5, 1993. The Court sua sponte conducted an approximately three hour non-evidentiary tour of Ebensburg on August 2, 1993, accompanied by counsel for the parties and the facility director.
Twenty-eight witnesses presented testimony during the trial. The United States offered fourteen witnesses, consisting of ten expert witnesses, two parents, a former Ebensburg staff person, and a staff trainee. Eight of the United States' expert witnesses, along with the parents and lay witnesses, presented their testimony during the United States' case-in-chief presented during July and August 1993. The two remaining expert witnesses for the United States testified during rebuttal. The United States also offered into evidence the deposition testimony of an additional thirty-five witnesses as admissions of a partyopponent.
Following a six week recess in the trial, defendants presented their case-in-chief, beginning in September and continuing into October 1992. Defendants called nine witnesses during their case-in-chief: five independent experts, along with Ebensburg's consulting neurologist and physical therapist, the facility director, and the director of program services. They called an additional four witnesses during their rebuttal case: three expert witnesses^/ and a State medical assistance surveyor, and re-called one of their original expert witnesses as well as Ebensburg's director and the consulting neurologist.
During the course of the trial, over 4,100 pages of trial transcript were recorded and more than 550 exhibits were admitted into evidence, including over 5,000 pages of
II One of the expert witnesses presented videotape testimony on December 16, 1993. 1-2

deposition testimony. Information about more than 450 of the approximately 472 Ebensburg residents is in evidence through exhibits and testimony.!/ The United States' experts specifically discussed more than 200 residents during their collective testimony. For an overview of the qualifications of the United States' experts and their methodology in evaluating conditions at Ebensburg, se^ Attachment C in the Appendix.
Because the Court indicated that this is a fact intensive case in which the ultimate issues will turn on the evidence, the United States has prepared comprehensive proposed findings of fact which synthesize the extensive evidence, including admissions by defendants in deposition testimony. Tr. 10/19/93 at 124-125. Attachment A in the Appendix sets forth the name of each deponent, along with a brief description of the deponent's position. Attachment B is a list of acronyms used throughout the United States' proposed findings of fact. Attachment D contains client summaries that illustrate systemic issues in the United States's proposed findings of fact. For ease of reference, the Appendix also includes copies of a few of the United States' exhibits which are discussed throughout the United States' proposed findings of facts.
II More than 400 residents, alone, appear in United States' Exhibits 135 and 136, which are Ebensburg's computer print-outs of injuries and incidents since 1989.
1-3

H. GENERAL OVERVIEW OF MENTAL RETARDATION AND SERVICES FOR PEOPLE WITH MENTAL RETARDATION Mental retardation is essentially a difficulty in learning, which affects an individual's
ability to solve problems, engage in abstract reasoning, and apply knowledge to every day life. Tr. 7/26/93 (Stark) at 41. Mental retardation has been formally defined by the American Association on Mental Retardation ("AAMR") as:
substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skills areas: communication, self care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18. Mental Retardation: Definition. Classification, and Systems of Support (AAMR, 1992); U.S. Exhs. 570(a) and 570 at 5. This definition was adopted by the Supreme Court in Heller v. Doe. U.S. (1993); 113 S.Ct. 2637, 2643 (1993). It emphasizes the effects of mental retardation and underscores the need for training to address these effects as opposed to focusing on the cognitive limitations of an intelligence quotient ("IQ") score. Tr. 7/26/93 (Stark) at 51. As such, a person's IQ is not as critical as how the individual learns to function within a given IQ. Id.
Each person with mental retardation is a unique individual and the manifestation of mental retardation in any given person is the product of four dimensions, which are the same factors that affect how any individual functions. Tr. 7/26/93 (Stark) at 47-48. The four dimensions that have an impact on mental retardation are: (1) intellectual functioning and adaptive skills; (2) psychological/emotional state; (3) physical and health status; and (4)
II-1

environmental conditions. Tr. 7/26/93 (Stark) at 48-49; U.S. Exh. 570 at 23; U.S. Exh. 571.
The field has moved away from a traditional definition of mental retardation where the existence and levels of mental retardation are measured solely by a person's intelligence quotient. Tr. 7/26/93 (Stark) at 49, 51.1/ Instead, the focus is on adaptive skills and how well people actually function in the day-to-day environment. Id. at 51. Teaching people with mental retardation appropriate adaptive skills in a variety of domains, including communication, self care, home living, social skills, community use, self direction, health and safety, functional academics, leisure, and work, thus becomes a basic goal in providing services. Tr. 7/26/93 (Stark) at 52-53; U.S. Exh. 574.
Mental retardation is also affected by a person's emotional or psychological wellbeing; a person can be mentally ill as well as mentally retarded. Tr. 7/26/93 (Stark) at 56. There is a difference between mental illness and mental retardation. Id. Mental retardation is a disability which affects an individual's intellectual development and social adaptation, whereas mental illness is a disorder of thinking, emotions and behavior. Mental retardation occurs usually either prior to, at, or shortly following birth whereas mental illness can occur at any time in life and often the onset is during adulthood. Mental retardation is on-going; mental illness can be episodic. Id.
V Traditionally, mental retardation was measured and categorized by different levels according to IQ. In this conceptualization of IQ, mild mental retardation was an IQ of 55-70, moderate mental retardation was an IQ of 40-55, severe mental retardation was an IQ of 25-40, and profound mental retardation was an IQ of 25 or below. Tr. 7/26/93 (Stark) at 50; U.S. Exh. 572. Approximately 2.1% of the population at large fall into the mild mental retardation range, 0.1% into the moderate mental retardation range, and less than 0.1% into the severe and profound range. Tr. 7/26/93 (Stark) at 50-51; U.S. Exh. 573.
II-2

An individual can have physical disabilities in addition to mental retardation, such as a vision or hearing impairment, epilepsy, cerebral palsy, scoliosis, or dysphagia. Tr. 7/26/93 (Stark) at 58. It is important that people with significant physical disabilities that affect their nutritional and physical status have comprehensive, interdisciplinary nutritional and physical management plans that set forth the principles of an individual's care and treatment. Tr. 7/28/93 (McAllister) at 146-147; Tr. 7/29/93 (McGowan) at 157. A physical management plan specifies an individual's care throughout the day, including handling, touching, moving, transferring, positioning, facilitating active participation in one's environment, and fostering the development of skills to enable the person to function as independently as possible. Tr. 7/28/93 (McAllister) at 146, 162-163. A nutritional management plan is a program that ensures that an individual is adequately nourished, has good respiratory health, and is able to eat without distress. Tr. 7/28/93 (McGowan) at 117.
The environment in which people with mental retardation live affects how they function and is "critical to their overall development." Tr. 7/26/93 (Stark) at 59, 60, line 70. The environment must be stimulating, not barren or chaotic. Id. at 59. When individuals who are mentally retarded are congregated with a large number of other individuals who are also mentally retarded, it can be more difficult to teach them and therefore it is more difficult for them to learn. Id. at 59-60. The environment is one of the most important factors in alleviating or changing the effects of mental retardation, along with individualizing services and teaching adaptive skills. Id. at 65.
Estimates of the number of people who are mentally retarded in the United States range from 1.2 to 3% of the general population or 3 to 7.5 million people. U.S. Exh. 578.
II-3

There are hundreds of causes of mental retardation, including biomedical, social or environmental, behavioral, and educational. Tr. 7/26/93 (Stark) at 60-63; U.S. Exhs. 576 & 577. Often, there are multiple causes for the mental retardation. Id.
Although mental retardation is characterized by difficulty in learning, it is commonly accepted in the field that every individual who is mentally retarded has the capacity to learn, no matter how severely impaired. Tr. 7/26/93 (Stark) at 41-42; U.S. Exh. 593. Nancy Thaler, who is the Director of the State Office of Mental Retardation agrees that every individual with mental retardation has the capacity to learn and the potential for growth and development. U.S. Exh. 870 (Thaler Dep.) at 53. This is a basic concept, known as the developmental principle, which has been commonly and widely accepted in the field of mental retardation for at least the past twenty years. Id. An integral part of this concept is the fact that every individual with mental retardation has the potential for developing new skills. For example, as far back as 1970, when the President's Committee on Mental Retardation published its policy statement on residential services for individuals with mental retardation, the Committee recognized that "each individual has potential for some progress, no matter how severely impaired." Tr. 7/26/93 (Stark) at 42; U.S. Exh. 593 at 5. The President's Committee concluded that the goal of all residential facilities should therefore be "to develop physical, intellectual and social capabilities to the fullest extent possible." Id.
Individualization of services is a basic concept in the field of mental retardation that has been commonly accepted for the past twenty-five years. Tr. 7/26/93 (Stark) at 65. The importance of individualization has been widely recognized in federal legislation, such as the
II-4

Individualized Education Act, 20 U.S.C. § 1400, et se^., and the Vocational Rehabilitation Act, 29 U.S.C. § 709 et seg. Id.
"Normalization" is another central concept in services for individuals who are mentally retarded. This means providing services in a setting and in a manner similar to that provided for people who are not mentally retarded. Normalization of lifestyle is an important goal for individuals who live at Ebensburg. U.S. Exh. 630 (Seymour Dep.) at 38.
Mentally retarded people are not born with maladaptive or inappropriate behaviors. Tr. 7/26/93 (Stark) at 57. These behaviors are learned responses and can stem from the environment. Id. Maladaptive behaviors can also be a way to communicate needs, such as a desire for attention or protection or an expression of a basic desire, such as pain, hunger, or fear. Id.
Where there is a failure to provide adequate training programs to teach individuals with mental retardation adaptive skills to function in their environment, harm is inevitable. Tr. 7/26/93 (Stark) at 53-55; U.S. Exh. 575 (attached). Dr. Stark explains this "pattern of harm," as it manifests itself at Ebensburg, as follows: Where mentally retarded people spend day after day inactive in a non-stimulating environment where they are not learning adaptive skills, they get bored. Without meaningful activity, they may withdraw, engage in selfstimulation, or become frustrated and angry. This, in turn, can lead to escalating incidents of self-injurious behaviors, aggressive or assaultive behaviors, and a loss of skills or regression. The resulting harm includes bodily injury from dangerous behaviors, chemical restraints to control behaviors, and physical and mental deterioration, including an inability to care for oneself. Tr. 7/26/93 (Stark) at 53-55; U.S. Exh. 575 (attached). Societal
II-5

attitudes towards mental retardation have undergone a number of evolutionary stages as an enhanced understanding about mental retardation has come about. Tr. 7/26/93 (Stark) at 6669; U.S. Exh. 580.
Societal attitudes have directly affected the way in which services have been provided to individuals with mental retardation. The concept of custodial care has been changed to one of teaching adaptive, functional skills and segregated services have been changed into integrated services. Tr. 7/26/93 (Stark) at 70-72; U.S. Exh. 581. The total number of people with mental retardation in institutions peaked in the 1970's and has dramatically decreased since then. Tr. 7/26/93 (Stark) at 72; U.S. Exh. 582. With a reduction in the institutional population, the average number of people in each mental retardation facility also declined. Tr. 7/26/93 (Stark) at 73; U.S. Exh. 583. The average number of people in each institution peaked in the 1960's with close to 1600 people and dropped dramatically down to 250 people in the 1990's. Id. As de-institutionalization occurred, there was a concomitant increase in the number of people with mental retardation living in community facilities. For example, in 1967, there were a total of 257 people in community-based residential facilities, which grew to 11,000 people in 1990. Tr. 7/26/93 (Stark) at 73-74; U.S. Exh. 584. In Pennsylvania, as of 1991, 50% of the people with mental retardation, or approximately 7,500 people, live in institutions. Tr. 7/26/93 (Stark) at 74; U.S. Exh. 585. Close to 4,000 people, or 26% of the people with mental retardation in the Commonwealth of Pennsylvania live in state operated institutions. Id. During the 1980's, Pennsylvania closed four state institutions. Tr. 7/26/93 (Stark) at 75; U.S. Exh. 586. The last institution, Pennhurst, closed in 1987. Id.
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State institutions in Pennsylvania are operated by the Department of Public Welfare, through the Office of Mental Retardation (OMR), and the Bureau of Direct Program Operations within OMR. U.S. Exh. 11. One of the goals of the Department of Public Welfare is to "protect and serve Pennsylvania's most vulnerable citizens." U.S. Exh. 11.
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m . OVERVIEW OF EBENSBURG CENTER As of February 1993, there were approximately 472 people who lived at Ebensburg
Center. Tr. 7/26/93 (Stark) at 77. All of the people who live at Ebensburg are adults. Id. at 79. Most have grown up at Ebensburg. Id. The number of people who live at Ebensburg has remained relatively constant over the past five years. Id- at 78. The average population at Ebensburg in 1989 was 489 and in 1992 it was 475. Id. Between 1990 and 1992, only thirteen people were placed from Ebensburg into the community: six people were placed from Ebensburg into the community in 1990; three in 1991; and four in 1992. Id. During this same time period, there were twelve admissions to the facility and seventeen deaths. Id.
The average daily per person cost of living at Ebensburg was $208.00 as of February 1993. Tr. 7/26/93 (Stark) at 75; U.S. Exh. 587. The per annum cost for each resident is $75,920.00 Id. Based upon a population of 472 residents, this means that the total per annum cost of providing services to the people who live at Ebensburg is $35,834,240.00. Id.
There are five buildings at Ebensburg in which people live: Keystone, Laurel, Sunset, Horizon, and Villa. Tr. 7/26/93 (Stark) at 80. Approximately 96 people live in each building in four different living areas. Id. at 81. There are approximately 24 people in each living area. Id- Keystone consists primarily of individuals with physical disabilities. Id- Laurel is comprised of all women and Sunset consists of all men. Id. Horizon has both male and female residents and two living areas for individuals with visual impairments. Id. Villa houses individuals who are higher functioning. Id. at 81-82. In June of 1992,
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Harmony House, one of the residential buildings at Ebensburg, was closed and the individuals who lived there were transferred to the other living units. Id. at 83. The number of people living in Horizon, Sunset, and Keystone increased, however, as a result of the closure of Harmony. U.S. Exh. 608 (Devine Dep.) at 63-64. Mr. Bellomo admits that a negative effect of closing Harmony House was the increase in the number of people living in several of the units, "which does not allow us much space." U.S. Exh. 603 (Bellomo Dep.) at 121, line 7.
David Devine, has served as Director of Residential Unit Management ("DRUM") at Ebensburg since October 3, 1990. U.S. Exh. 608 (Devine Dep.) at 12-13. In this capacity, he is the Ebensburg administrator who is ultimately responsible for ensuring that the residents are receiving adequate residential services and care. U.S. Exh. 608 (Devine Dep.) at 22. He is also responsible for supervising the five Unit Managers who oversee each of the five residential buildings at Ebensburg. U.S. Exh. 608 (Devine Dep.) at 19, 22. These five Unit Managers and the buildings for which they are responsible are:
Michael McGuire-Horizon House Richard Bonfanti—Keystone House Frank Seymour—Laurel House Wayne Weimer—Sunset House Deborah DeGretto-Villa House. U.S. Exh. 608 (Devine Dep.) at 18; Dep. Exh. 5 (Ebensburg Table of Organization); U.S. Exh. 604 (Bonfanti Dep.) at 9; U.S. Exh. 630 (Seymour Dep.) at 10. Goals of Ebensburg: In keeping with the field's recognition that every individual with mental retardation has the capacity to learn and the potential for growth and development, Nancy Thaler readily
III-2

acknowledges that it is Ebensburg's responsibility to ensure that its residents reach their maximum potential. U.S. Exh. 870 (Thaler Dep.) at 53, 58. The recognized goal of Ebensburg is to teach skills to individuals in order to enable them to function as independently as possible. U.S. Exh. 11.7 This goal is shared by administrators of the facility. For example, according to David Devine, the goal is to help individuals develop skills to enable them to "become as independent as they can be." U.S. Exh. 608 (Devine Dep.) at 55, lines 19-20. Another goal is to help individuals develop skills to be able to live in the community. U.S. Exh. (Devine Dep.) at 54-55. Mr. Seymour sees achieving "independence in the workplace" that will lead to placement at a community setting or at home as a goal for Laurel House clients. U.S. Exh. 630 (Seymour Dep.) at 37.
Ebensburg's mission statement also calls for a team-oriented interdisciplinary process to providing services to residents. U.S. Exh. 11 at 3. Each resident's team is supposed to be comprised of all individuals who provide services to the resident. Id. The function of the team is to "identify the individual's needs for development and well-being and to design and implement the services and interventions necessary to meet those needs." Id- Ebensburg's mission is to "provide services that meet the highest standards in the field." Id. at 4. Ebensburg defines this mission as "consistently measur[ing] its performance in every aspect of its service delivery against the 'leading edge' of standards and expectations in the field of developmental disabilities." Id.
V Ebensburg characterizes this as follows: "The facility's goal for each person admitted is to assist
that person in improving and building on the skills he or she already possesses, so that he or she may achieve maximum functioning and move on successfully to other, more normalized life experiences." U.S. Exh. 11 at 1.
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The Bureau of Direct Program Operations within the Commonwealth's Office of Mental Retardation is responsible for setting the direction of State centers by establishing goals and priorities. U.S. Exh. 635 (Sneed Dep.) at 56. The current goals and objectives are to ensure a good quality of life for residents. U.S. Exh. 635 (Sneed Dep.) at 56. One of the key elements in ensuring a good quality of life for residents is to provide them an opportunity to choose things that affect their lives. U.S. Exh. 635 (Sneed Dep.) at 57. Other goals that the Bureau of Direct Program Operations has established at State centers, including Ebensburg, include providing people with meaningful work and using positive approaches. U.S. Exh. 635 (Sneed Dep.) at 59.
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IV. EBENSBURG FAILS TO MEET ALL RESIDENTS' BASIC CARE NEEDS. Both Dr. Russo and Dr. Stark found that the concept that drives Ebensburg is the
accomplishment of custodial care routines as opposed to the needs of individual clients. Tr. 8/2/93 (Russo) at 35-36; Tr. 7/26/93 (Stark) at 223. Despite this fact, Ebensburg does not ensure that all people who live there receive adequate care at even the most basic levels. Dr. Stark had significant concerns about the primary care provided to residents as he reviewed occurrence reports and toured Ebensburg. Tr. 7/26/93 (Stark) at 220-222. For example, on two successive days in mid-February 1992, staff put Keystone residents down on the floor to sleep because their bedrooms were being painted. Tr. 7/26/93 (Stark) at 222; U.S. Exh. 87. After the first night, Karen S. was found "covered with ants." U.S. Exh. 87. Staff again put the residents down on the floor that evening, and the next day Janice G. was found with "massive amounts of ants crawling over entire body. "7 Tr. 7/26/93 (Stark) at 222; U.S. Exh. 87 at 00000917. It took these two incidents before staff decided to push the residents' beds into the dayroom while the painting took place. U.S. Exh. 87 at 00000918.
Similar types of incidents have continued to occur at Ebensburg. On July 8, 1993, several weeks before trial commenced in this case, a nurse found Theresa B. to have bloody drainage coming from her ear during medication administration time. U.S. Exh. 1022; Tr. 10/14/93 (Bellomo) at 75-76. When she was checked by the doctor, Theresa was found to have "seven small and one large maggot-like insects" in her ear which were flushed from her
V Both Karen S. and Janice G. have significant physical disabilities. Karen S., who has scoliosis, is
shown on Ms. McAllister's videotape (U.S. Exh. 261 being transferred to a sidelyer). Tr. 7/28/93
(McAllister) at 220. She is also shown in her sidelying board in U.S. Exh. 710. Tr. 7/28/93 (McAllister) at 172-173. United States' Exhibit 741 is a picture of Janice G. Tr. 7/28/93 (McAllister) at 186.
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ear. Id. Five hours later, the bloody drainage continued and the next day the doctor checked her and flushed an additional "five large maggot-like insects" from her ear. Id. Theresa was sent to the emergency room where an additional four maggots were removed from her ear and she was detained overnight. Id. The Unit Manager noted that, in all, a total of seventeen maggot-like worms were removed from her ear and that this incident raised infection control issues. Id. During her tours of Ebensburg, Ms. McGowan had concerns about the persistent existence of flies in the dining rooms at Ebensburg which poses "genuine health hazards." Tr. 7/29/93 (McGowan) at 92. In October 1993, State surveyors continued to find flies on residents and residents' food during mealtimes at multiple locations and on multiple days. U.S. Exh. 1103 at 10.V
During his tour of Ebensburg, Dr. Stark encountered a number of instances reflecting inadequate care at Ebensburg, even at the most basic custodial care level. Tr. 7/26/93 (Stark) at 85. He was "very concerned" as he toured Ebensburg in February 1993, on a day when four other experts involved in this litigation were touring, and found that residents were not even clean. Tr. 7/26/93 (Stark) at 220. A strong smell of body odor, urine, and dirty diapers permeated a number of areas. Id. State surveyors have cited Ebensburg for deficiencies in this area. For example, in November 1992, State Medical Assistance ("MA") surveyors found 12 Keystone residents in one living unit whose "attends [diapers] were heavily saturated with urine and one was soiled with feces. U.S. Exh. 60 at 00503763. The surveyors were concerned about the practice of keeping individuals in their wheelchairs
II Marcia Stiles, who serves as the infection control coordinator at Ebensburg, does not schedule any routine inservicing of staff on any regular basis in infection control. U.S. Exh. 638A (Stiles Dep.) at 44.
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between 8:00 a.m. and 1:00 p.m. before they were changed. They noted the potential for skin breakdown and found that one resident in this living unit had a "reddened sacral area approximately 3 1/2 by 4 1/2 inches." Id.
When Mr. Tackett worked the second shift in Keystone on April 4, 1992, he found the bathing process akin to an "assembly line." Tr. 8/3/93 (Tackett) at 27. He estimated that the entire process of placing more than twenty residents in the tub, washing them, dressing them, and placing them in bed only took somewhere in the vicinity of fifteen to twenty minutes, perhaps slightly longer, but at any rate the process took place "much too quickly." Id. at 28. Ebensburg nurses have had similar concerns about the bathing process as recently as 1993. In the February 26, 1993 meeting between the nursing union and Ebensburg management, nurses expressed concerns that "[i]ndividuals are not being properly bathed — they are being hosed up one side and down the other — this is not sufficient." U.S. Exh. 995. This same topic came up again at a May 5, 1993 meeting. Nurses stated that they knew individuals were not being properly bathed because of the odor, that "[individuals that have just been bathed should not smell," and that it was "really bad" at Ebensburg. U.S. Exh. 995. They further stated that:
this has been reported through the chain of command and supposedly was looked into, but it is still continuing. Unit #4 can be smelled. Was brought to Marie's attention and Marie looked into. You know as soon as you go into a ward area that due to the smell of the stench that individuals have not been bathed. Id. Dr. Stark also found as he toured Ebensburg that staff were not attending to residents' basic care needs. Tr. 7/26/93 (Stark) at 220. For example, he found Robert H. sitting by himself in a day program. Robert had regurgitated partially digested food and smeared it
IV-3

into his nose and face and body. Even after Dr. Stark brought this to the attention of staff, it "took a while" for them to clean Robert up. Tr. 7/26/93 (Stark) at 220. Dr. Stark found another resident with dried blood on his ear. Five hours later, he saw the same resident on the floor and no one had yet cleaned up the blood. Tr. 7/26/93 (Stark) at 220. Dr. Stark also saw residents with dirty clothes. Mr. Bellomo admitted that "[t]here is no reason why someone should be ill groomed." U.S. Exh. 603 (Bellomo Dep.) at 125, lines 24-25. He expects " 100 percent of the people 100 percent of the time" to notice residents' personal hygiene and grooming and correct any concerns. U.S. Exh. 603 (Bellomo Dep.) at 125, lines 23-24.
Ebensburg also does not adequately protect residents' privacy. Ebensburg has been repeatedly cited by State surveyors in every annual survey between 1989 up to and including the October 1993 survey for failing to meet the Title X K standard of protecting clients' rights by ensuring privacy during treatment and care of personal needs. Def. Exh. J, 42 CFR § 483.420(a)(7). During the October 1990 MA survey, State surveyors observed a nude client and another client who was not wearing a blouse. U.S. Exh. 57 at 00004041. Ebensburg promised in its plan of correction to inservice staff. Id. During the October 1991 MA survey, State surveyors observed a completely nude client for ten minutes in the TV room with several clients present and the three staff who were present made no effort to redirect the individual. U.S. Exh. 58 at l.V In its plan of correction to the Commonwealth, Ebensburg promised again to inservice staff on privacy issues and to require supervisors to
II When a staff person finally intervened, it consisted of standing six feet away, making a small gesture towards the bedroom and saying softly "Go to your bedroom." This resident is deaf and did not have his glasses on. Without glasses his vision is 20/800. U.S. Exh. 58 at 00004069; Tr. 8/4/93 (Amado) at 54-55.
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monitor these situations more closely. U.S. Exh. 58 at 1. About ten months later and two weeks before Dr. Amado's August 1992 tour of Ebensburg, Mr. Bellomo observed seven individuals in a Sunset House dayroom locked out of their bedrooms and the bathroom with no clothing on; most residents were only in their underwear and one was completely naked. Mr. Bellomo stated that his impression of this living area was that it was "out of control." U.S. Exh. 109. Several months later, State surveyors visited the same living unit, Sunset House, and found five residents wearing only Attends. U.S. Exh. 60 at 00603757. In its plan of correction, Ebensburg promised once again to inservice staff and "enforce" privacy issues. Id. Most recently, State surveyors again observed clients walking around undressed or in their underwear in clear view of staff, surveyors, and other clients during the MA survey that took place as this case was being tried. U.S. Exh. 1103 at 1-2. Dr. Amado testified that privacy issues should be a critical component of staff training and Ebensburg's promises to address this issue have either not been implemented or have not been adequate. Tr. 8/4/93 (Amado) at 56.
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V. EBENSBURG DOES NOT PROTECT ITS RESIDENTS FROM HARM. A. The Harm At Ehensburg Is Pervasive. Each of the witnesses who testified on behalf of the United States during its case-in-
chief, including experts, parents, a direct care staff worker, and a staff trainee, independently agree that Ebensburg is not protecting its residents from harm in very basic ways: Dr. Amado, Dr. Russo, and Dr. Stark all concluded that Ebensburg fails to protect residents who are being injured due to self-abusive and aggressive behaviors. Tr. 8/4/93 (Amado) at 7677; Tr. 8/2/93 (Russo) at 75-79; Tr. 7/26/93 (Stark) at 105. V Ms. McAllister found that Ebensburg residents with physical disabilities are suffering injuries due to unsafe staff actions and wheelchairs that are in a state of disrepair. Tr. 7/28/93 (McAllister) at 214, 225-226; U.S. Exhs. 781, 791. Both Dr. Sulkes and Ms. McGowan found that Ebensburg staff were subjecting residents to serious harm by their feeding practices. Tr. 7/27/93 (Sulkes) at 103107; Tr. 7/29/93 (McGowan) at 91, 96-97, 128-132. Ms. McGowan also determined that Ebensburg is failing to monitor and intervene in unsafe eating behaviors which have resulted in chokings requiring emergency procedures and hospitalizations. Tr. 7/29/93 (McGowan) at 144, 204; U.S. Exh. 273. Dr. Alvarez concluded that residents are suffering repeated, significant harm resulting from Ebensburg's failure to protect them from injuries due to seizures. Tr. 7/30/93 (Alvarez) at 78-94. Dr. Fahs concluded that Ebensburg residents taking psychotropic medications, which have serious side effects, are suffering harm because
V In the program that Dr. Amado ran in Minnesota in a state-operated facility for people with mental retardation, there were far fewer injuries than the current rate at Ebensburg. Tr. 8/4/93 (Amado) at 88.
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they are taking drugs that may not be indicated and may not be effective, while continuing to suffer injuries due to their behaviors which Ebensburg is not appropriately addressing. Tr. 8/3/93 (Fahs) at 65-69, 101, 119, 128, 130. Mrs. Weakland testified about repeated harm to her son, James W., who, within a three year period of living at Ebensburg, had three emergency hospitalizations for such severe injuries as a ruptured globe in his eye, a fractured jaw, and a ruptured spleen along with broken ribs. Tr. 7/26/93 (Weakland) at 190-196.!/ Ms. DekowskL recounted the repeated injuries suffered by her daughter, Denise V., who now has a permanently dented head from her head-banging, walks with a limp, and has scars from bites. Tr. 7/26/93 (Dekowski) at 172-175. Damien Tackett, an Ebensburg direct care worker, described staff failing to intervene in James E.'s self-injurious behaviors. Tr. 8/3/93 (Tackett) at 20-24. And Robin Hebenthal, a staff trainee, testified about nine incidents of staff abuse that she witnessed during the course of only one and a half days at Ebensburg. Tr. 8/3/93 (Hebenthal) at 199-214.
Based upon his observations at Ebensburg and subsequent review of documents, including thousands of individual occurrence reports over the past several years, Dr. Stark concluded that the individuals who live at Ebensburg are being subjected to unsafe and harmful conditions. Tr. 7/26/93 (Stark) at 84-86, 102. In Dr. Stark's opinion, "the frequency, type, and circumstances surrounding injuries demonstrated failure to protect individuals who live at Ebensburg from harm." Id. at 84-85. In fact, the injuries that people were suffering was the first thing that struck Dr. Stark as he toured Ebensburg in late
V The transcript reflects that James' eye injury occurred in 1984, however according to Ebensburg records, this injury took place in 1989. U.S. Exh. 135 at 00040138; Tr. 7/26/93 (Weakland) at 191.
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February 1993:
In virtually every area I saw people with scars, distorted foreheads, ears, amputated fingers, lacerations, black eyes, contusions, open sores, scratches, and casts.
Id.f/ He further concluded that "individuals at Ebensburg are chronically and repeatedly
being injured, and that these injuries are widespread and not limited to just a few
individuals." Id. at 87, lines 14-17.
During the month of February 1993 alone, which is the month that Dr. Stark toured
Ebensburg, the injuries that residents suffered included fractures, lacerations requiring
sutures (including a lacerated scrotum which had to be sutured), human bites on the scalp,
back, shoulder, leg, and wrist, contusions, abrasions, hematomas, bruises, cuts, a puncture
wound, scratches, and people choking on food. Tr. 7/26/93 (Stark) at 87; U.S. Exh. 135;
Tr. 10/15/93 (O'Brien) at 74-75.V In addition, residents had to be hospitalized during the
month because they had ingested dangerous substances. Tr. 7/26/93 (Stark) at 87. In fact,
on the first day of Dr. Stark's tour of Ebensburg, February 22, 1993, Dale J. was sent to the
emergency room for coffee ground bright red emesis. Tr. 10/19/93 (O'Brien) at 76; U.S.
Exh. 380. He had internal bleeding with a possible bowel obstruction from swallowing
multiple objects, including a key, a zipper tab, and a coin or button, as well as other
V United States' Exhibit 1041 lists 78 individuals with visible scars, amputations, or traumatized ears who lived at Ebensburg at the time of Dr. Stark's tour. V United States' Exhibit 135 at 00599908-00599910 lists all of the incidents and injuries that Ebensburg recorded for the month of February 1993. Mr. O'Brien, who did not accompany Dr. Stark on his tour of Ebensburg, and, in fact, was not even present at Ebensburg for most of Dr. Stark's tour, testified incorrectly about the number of injuries that had occurred during the time frame of Dr. Stark's tour. Tr. 10/19/93 (O'Brien) at 62-64, 67. United States' Exhibit 1040 includes examples of incidents and injuries that occurred during and immediately preceding Dr. Stark's tour, some of which were never recorded by Ebensburg as an incident. Tr. 10/19/93 (O'Brien) at 67-68.
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unidentifiable foreign bodies. Id. Earlier in the month of February, Winfield M. had
trouble bending and was sent to the emergency room. U.S. Exh. 590 (attached). He was
also found to have numerous metal objects in his stomach from ingesting these objects. Both
of these Ebensburg residents had histories of swallowing dangerous objects. U.S. Exhs. 380,
590.
B. Residents Are Being Chronically And Repeatedly Injured And The Injuries Are Increasing.
The total number of incidents and injuries sustained by Ebensburg residents has
increased over the past four years. Tr. 87/26/93 (Stark) at 88.V In fact, the overall
number of incidents at Ebensburg in 1992 was higher than it has been since 1989. Id.
There were 1,707 incidents involving Ebensburg residents between February 1991 and
February 1992. Tr. 7/26/93 (Stark) at 96; U.S. Exh. 89 (attached). There were 2,433
incidents between February 1992 and February 1993. Id.*/ This represents a 43% increase
in the number of incidents and injuries at Ebensburg in the twelve months after the United
States filed its lawsuit in this case. The increase in the number of incidents and injuries
continued even through the trial of this case. Between February and August 1992, there
f/ The number of incidents and injuries are a count of the total number of occurrence reports written by Ebensburg staff and entered into Ebensburg's computer with a coding system. These computer sheets are entered into evidence as United States' Exhibits 135 & 136. The defendants provided the United States with computer discs with diis same data. At Dr. Stark's direction, the United States retained the services of a litigation computer support firm, CACI, to count various categories of incidents. Tr. 7/26/93 (Stark) at 88-91. Where there are two people involved in an incident, Ebensburg does not fill out an occurrence report for both individuals unless die incident involves sexual behavior or the aggressor is also hurt. Tr. 10/19/93 (O'Brien) at 52-53; Tr. 8/4/93 (Amado) at 72-73. */ Ebensburg considered only a fraction of these incidents to be "non-injuries." See discussion infra § V.2.a.
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were 1,193 incidents. Def. Exh. GG. One year later, between February and August 1993,
there were 1,310 incidents. U.S. Exh. 1014. This is nearly a 10% increase.'/
More than three quarters of all incidents and injuries during 1992 were due to
unknown causes or were behavior related. Tr. 7/26/93 at 103; U.S. Exh. 90 (attached). In
Dr. Stark's professional opinion, injuries that are due to unknown causes and behavioral
reasons are "easily preventable if the environment is structured properly." Tr. 7/26/93
(Stark) at 103-104. There was a dramatic increase in the number of injuries due to behaviors
and unknown causes from 1991 to 1992. Id. at 105. In 1991, 625 incidents were caused by
behaviors; in 1992, 904 were caused by behaviors. U.S. Exh. 91 (attached).V This
represents an increase of 45%. Tr. 7/26/93 (Stark) at 105. In 1991, 646 incidents were due
to unknown causes; in 1992, 982 incidents were due to unknown causes. U.S. Exh. 92
(attached). This represents a 52% increase in the number of incidents due to unknown
causes. Tr. 7/26/93 at 105. As of February 25, 1993, when he was deposed, Mr. Bellomo
was unaware that the number of unwitnessed injuries was increasing at Ebensburg. Instead,
he mistakenly thought that as of the end of February 1993, the percentage of unwitnessed
'/ There is also approximately a ten percent increase in the number of incidents that unequivocally involved a physical injury. U.S. Exh. 1014. hi the column labeled "potential non-injuries,11 the following types of incidents are excluded based upon Ebensburg's assigned code for incidents contained in United States' Exhibit 73: Medical isolation (Code 12); Poisoning (Code 17); Property Damage/Loss (Code 18); Psychological Distress (Code 19); Skin reaction (Code 21); None (Code 25) and Unknown (Code 26). When the total number of each of these types of incidents is subtracted from the total number of incidents, there were at least 1,093 actual injuries between February 1992 and August 1992 and 1,190 actual injuries between February 1993 and August 1993. V Behavior related occurrences include the following types of incidents, based upon Ebensburg's coding system as set forth in United States' Exhibit 73: assaults, fights (04) (05); "individual to individual interaction" (09); "individual to staff interaction" (10); ingestion of foreign matter (11); self-injurious act (14); and unacceptable absence (15). U.S. Exh. 90.
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injuries had "continually decreased." U.S. Exh. 601 (Bellomo Dep.) at 128, line 7. Nonetheless, as of that time, he agreed that the number of unwitnessed injuries was still at "an unacceptable level." U.S. Exh. 601 (Bellomo Dep.) at 128, line 8.
The number of people being injured at Ebensburg is widespread and is increasing: In 1991, 77% of all of the individuals who live at Ebensburg had an incident; in 1992, 86%, or 409 of the 476 residents, had at least one incident. Tr. 7/26/93 (Stark) at 98-99. Thirty per cent of Ebensburg residents have had repeated, chronic injuries. Id. at 99. One hundred and thirty-one people who live at Ebensburg had an average of at least one incident every other month during the fifty month period between January 1989 and February 1993. Id.; U.S. Exh. 777 (attached). The number of incidents and injuries that each one of these 131 individuals suffered during this fifty month period ranged from at least 25 to 215. Id. Dr. Amado has also found that there are repeated injuries to a variety of people, as well as repeated injuries to the same person. Tr. 8/4/93 (Amado) at 76. Dr. Stark concluded that the harm that Ebensburg residents are suffering has been a long-term harm: "as you look at these individuals and talk to them, you can see that there is a lot of withdrawal, a lot of anger, a lot of scarring — both physical and emotional, mental scarring." Tr. 7/26/93 (Stark) at 149, lines 11-13.
Two parents of Ebensburg residents testified at trial about the long-term harm that their children have suffered at Ebensburg. Denise V.'s mother, Marian Dekowski, who is a licensed practical nurse, chronicled the injuries that her daughter has sustained under Ebensburg's care. Tr. 7/26/93 (Dekowski) at 171. Ms. Dekowski placed Denise at Ebensburg when Denise was five years old and Denise has lived at Ebensburg for the past 31
V-6

years, except for a very short stay at Somerset State Hospital. Tr. 7/26/93 (Dekowski) at 172. When Ms. Dekowski brought Denise to Ebensburg at age five, Denise was a happy, healthy, active child who had no scars or marks on her body and could walk freely and run. Tr. 7/26/93 (Dekowski) at 172. Denise had not suffered any head injuries before she was institutionalized at Ebensburg. Tr. 7/26/93 (Dekowski) at 172.
Denise now has several scars and marks on her body and "her head has an indented look on the skull." Tr. 7/26/93 (Dekowski) at 173, line 12. Denise's head is indented because she bangs it on walls and furniture. Tr. 7/26/93 (Dekowski) at 173; U.S. Exh. 493(aa) (1992 and 1993 incident reports documenting instances where Denise has banged her head on walls). Denise now walks with a limp. Tr. 7/26/93 (Dekowski) at 174. Ebensburg has never informed Ms. Dekowski that Denise suffered a leg injury. Tr. 7/26/93 (Dekowski) at 174. Ms. Dekowski believes Denise limps due to head injuries. Tr. 7/26/93 (Dekowski) at 174; U.S. Exh. 493(cc) (form filled out by Ms. Dekowski for Ebensburg, documenting that Ms. Dekowski was disturbed by the injuries Denise has suffered). While visiting Denise, Ms. Dekowski has seen "many, many bite marks on her arms, and she has marks on her face, scars." Tr. 7/26/93 (Dekowski) at 175. During one of Ms. Dekowski's visits, Denise had a black eye and her shoulders were covered with claw marks. Tr. 7/26/93 (Dekowski) at 175; U.S. Exh. 493(bb) (incident reports documenting instances that Denise V. has suffered facial injuries during 1992 and 1993). Two days before Ms. Dekowski testified, Denise was found with multiple bruises on her upper thighs and an abrasion on her right knee. U.S. Exh. 958 (7/24/93 Inc. Rep.). Staff do not know "how, when, or where" Denise injured herself but note that she frequently throws herself to the ground and pounds
V-7

her legs. Id. Several days after Ms. Dekowski testified, Denise was again found with a bruise on her leg. U.S. Exh. 958 (7/29/93 Inc. Rep.). This time staff note the injury was discovered immediately after Denise was self-abusive.
James W.'s mother, Ms. Weakland, also testified about the significant harm that her son has suffered while under Ebensburg's care. James was first institutionalized at Cresson Center, where he did not suffer any serious injuries. In the early eighties, when the Cresson Center closed, James was transferred to Ebensburg, and he has resided at Ebensburg since that time. Tr. 7/26/93 (Weakland) at 186. At the time he entered Ebensburg, James still possessed all of his self care skills, could talk, see, and was active and healthy. Tr. 7/26/93 (Weakland) at 189. For the period January 1989 until February 1993, James suffered 57 injuries at Ebensburg. U.S. Exh. 777. James suffered three very serious injuries in that time period. In 1989, one of James' eyes was knocked out when he fell against a chair. Tr. 7/26/93 (Weakland) at 190-193.!/ Ebensburg records indicate that the enucleation was not the result of an accident. U.S. Exh. 135. On November 20, 1991, at 10:15 a.m., James' jaw was fractured during a fight with Alan G., another blind Ebensburg resident, at the JFK Learning Center at Ebensburg. Tr. 7/26/93 (Weakland) at 194; U.S. Exh. 501(aa). Before staff could intervene to break up the fight, a table was upset, chairs were thrown, a bench seat was three feet from the wall, and lockers were moved. U.S. Exh. 501(aa). Although Alan was bleeding from his forehead and hands, U.S. Exh. 501(aa), no incident report was filled out for Alan's injuries. U.S. Exh. 135. Despite the fact that James had a bloody
'/ The transcript reflects that James' eye injury occurred in 1984, however according to Ebensburg records, this injury took place in 1989. U.S. Exh. 135 at 00040138; Tr. 7/26/93 (Weakland) at 191.
V-8

mouth, staff did not report his injury to the nurse until 5:30 that evening when he complained of mouth pain and refused supper. U.S. Exh. 501(aa) at 00210934. Although he was seen at dental clinic the following day, an Ebensburg physician did not examine him until two days later, at which time he was found to have a fractured jaw. U.S. Exh. 501(bb). James required surgery for the fracture, and his jaw was wired shut. James could only drink through a straw while his jaw was wired shut. Tr. 7/26/93 (Weakland) at 195; U.S. Exh. 501(bb) (excerpts from James' medical record concerning the jaw fracture). Following surgery, the discharge report from Mercy Hospital specifically recommended that James "is to be isolated from other combative residents at Ebensburg." U.S. Exh. 501(cc) at 338273.
On September 26, 1992, at 8:30 a.m. on Horizon House's East JJ living area, two staff were in the dining room, one staff was in the bathroom helping with shaving, and one staff was in the dayroom. The staff person in the dayroom heard yelling from a bedroom and when he went back to investigate, he saw Keith B. hitting and kicking James. On the incident report describing the event, James' psychology services associate ("PSA") noted that James has had altercations with Keith B. in the past. U.S. Exh. 501(dd).
About one and a half hours after the fight, when James complained of pain, staff lifted James shirt and noticed bruising on James' rib cage. Only then was a nurse called. U.S. Exh. 501(dd). Even though the nurse documented that he had bruising on his rib cage and there was a "clicking" sound when his ribs were touched, all she did was to give him Tylenol. Id. James was finally sent to the hospital at 12:30 p.m. (four hours after the original injury) and found to have a ruptured spleen, pneumothorax, and two liters of blood
V-9

in his abdominal cavity. He had to have emergency surgery to remove his spleen. Tr. 7/26/93 (Weakland) at 196; U.S. Exhs. 501(dd)(ee)(ff); U.S. Exh. 623(aa) (excerpt from deposition of James' Unit Manager describing the event). Ebensburg's Director of Nursing admits that the seriousness of James' condition necessitated more immediate medical attention than waiting an hour and a half to transport him to the hospital after a nurse saw him. U.S. Exh. 638 (Sponsky Dep.) at 116. James developed pneumonia following the September 1992 injuries. Tr. 7/26/93 (Weakland) at 199-200; U.S. Exh. 501(gg) (excerpts from James' medical record describing the pneumonia); U.S. Exh. 501(hh) (Mercy Hospital discharge report concerning the hospitalization for pneumonia). About four weeks before trial, Mrs. Weakland saw a big cut on the lower part of James' knee and now there is a scar. Tr. 7/26/93 (Weakland) at 200. On the day that Mrs. Weakland testified about Ebensburg's failure to protect James from harm, he suffered two additional injuries. U.S. Exh. 501. Staff found James that morning with a swollen and painful knuckle that was slightly discolored. Staff do not know how it happened but James stated that he punched the wall. Id. Later that day, James was pushed from behind by another resident and hit his head on the door frame, cutting his forehead.
This clear pattern of repeated harm was also evident to Dr. Stark as he reviewed occurrence reports. He found that in occurrence report after occurrence report, there are:
instances where people are hitting, punching, pushing, biting, and scratching individuals. Aggression breeds aggression. People are both victimized and they're victimizers.™/ It's
lV See, e^g., United States' Exhibit 778 (attached) which summarizes fifteen injuries that Andrew H. caused and suffered from aggressive acts. Andrew has been head butted, bitten, and pushed by other residents, sustaining lacerations requiring sutures on a number of occasions. He, in turn, has bitten other residents multiple times. Id.
V-10

almost as if there's a climate of aggression at this facility and it's disturbing to see that it continues to be sort of a way of life there. It's like it's an accepted thing or it's like this is what mental retardation is supposed to be like, and it's not. Tr. 7/26/93 (Stark) at 125, lines 4-11. This "climate of aggression" is represented in United States' Exhibit 589 (attached), which presents a microcosm of some of the types of aggressive acts: Albert B. pushed into a table; Raymond K. kicked in the face; Thomas H. bitten on the ear. As Dr. Stark reviewed the occurrence reports, he was particularly struck by the vast number of human bites that are occurring. Tr. 7/26/93 (Stark) at 126, 127. Bites are "very serious injuries." Id- at 125. They are painful, they can take a long time to heal, and they carry a high risk of infection. Id. There were at least 46 occasions on which individuals at Ebensburg suffered bites during the first 17 weeks of 1993. Tr. 7/26/93 (Stark) at 126; U.S. Exh. 267.1V Residents were bitten on their arms, shoulder, back, wrist, hand, ear, breast, calf, shin, thigh, leg, toe, head, face, and neck. U.S. Exh. 167. All of these incidents, with the exception of one where an individual was found with a bite in his left ear which took ten sutures to close, were categorized by Ebensburg as "minor" incidents.^/ Between January 15, 1991 and December 23, 1992, there were at least 240 occasions on which individuals were bitten. U.S. Exh. 267(b). Only three of these hundreds of occurrences of biting were rated by Ebensburg as more than a "minor"
11/ This number does not include self-inflicted bites. It only includes bites inflicted by other residents. "/ Ebensburg has a system of rating incidents either as "01" (minor) or "02" (serious). Tr. 10/15/93 (O'Brien) at 82.
V-ll

incident."/ At least 60 of these biting incidents involved Hepatitis B carriers. U.S. Exh.
267(b).
Some Ebensburg residents have been bitten repeatedly. For example:
• Mary Ann R. was bitten thirteen times between July 1992 and April 1993 on her back, forehead, shoulder, arm, elbow, wrist, and finger. U.S. Exh. 644 (attached). In August 1992, she was bitten five times. Id. During February 1993, she was bitten four times. Id. On several occasions, she received multiple bites. For example, on August 27, 1992, she was bitten on her arm, elbow, and back. Id. On February 14, 1993, she was bitten several times by another resident and had multiple areas on her shoulders that were reddened with teeth prints and the skin was broken. Id.
• Larry D. has also been a frequent victim of bites. Tr. 7/26/93 (Stark) at 128. Larry was bitten on at least ten occasions between the end of February 1992 and early December 1992. U.S. Exh. 646 (attached). Most frequently, he is found with multiple bites on his shoulder, chest, hands, wrist, arms, fingers, and face. Id. On one day alone in March 1992, he was found with seven bites on his arm and shoulder. Id. On September 21, 1992, he was found with "five fresh bites" on his arms and finger. Id. The very next day he was again found with four bites on both arms and a finger. Id. Several times, staff were unaware that Larry was being bitten until they heard him screaming. Tr. 7/26/93 (Stark) at 128.
• Michael B. was bitten six times in a three month period during late 1992. U.S. Exh. 645 (attached). Four of the times, he was bitten by James B. (#1102), despite repeated instructions to staff on occurrence reports to keep Michael B. away from James B. U.S. Exh. 267(c). Frequently, the same resident is the biter. Tr. 7/26/93 (Stark) at 129. Ebensburg fails to take adequate action to address the behavior of the biter and to protect the victim. Tr. 7/26/93 (Stark) at 127-129. See also § VII.E.3.
United States' Exhibit 926 (attached) updates the chart of bites presented during Dr.
Stark's testimony and demonstrates that bites continue to be a frequent injury at Ebensburg.
There were at least 39 bites between May 1, 1993 and August 23, 1993. They include
individuals who were bitten on the forearm, back, hand, thigh, leg, shoulder, finger, calf,
"/ The three incidents rated as something more than minor were: Albert K. whose foot had to be sutured because of a deep bite wound on his foot on 7/14/92, James P. who suffered a bite on his scrotum that had to be sutured on 3/12/92, and Debra S. who had part of her nose bitten off on 1/28/91.
V-12

abdomen, lip, and toe, resulting in bleeding, broken skin, abrasions, and black and blue
marks.
C. Ebensbure Underreports And Minimizes Injuries.
The Commonwealth of Pennsylvania has not disputed any of the figures put into
evidence by the United States regarding the overall number of incidents at Ebensburg."/
In fact, if anything, the defendants agree that the number of incidents is actually higher
because there is underreporting in Ebensburg's system for recording incidents. Tr. 10/19/93
(O'Brien) at 56; U.S. Exh. 986. The defendants' attempts to dismiss the dramatic increase
in the number of occurrences as an artifact of a change in Ebensburg's reporting system were
subsequently abandoned when Mr. O'Brien testified that there had been no change in the
reporting system. Tr. 10/19/93 (O'Brien) at 16. Instead, defendants have attempted to
trivialize the occurrences and claim that not every occurrence involved an injury."/
"/ Due to the inclusion of self-inflicted bites, Mr. O'Brien testified that there was a higher number of bites at Ebensburg than what is reflected in United States' Exhibit 267 (a) and (b), which only include bites of others (318 bites as opposed to 286). Tr. 10/15/93 (O'Brien) at 131-132. Even with the higher number, both Mr. O'Brien and Mr. Bellomo admitted that this number does not include all bites that occurred at Ebensburg. Tr. 10/14/93 (Bellomo) at 90; Tr. 10/19/93 (O'Brien) at 12. There are six bites, alone, during March and April 1993 that are recorded in United States' Exhibit 267 which do not appear in Ebensburg's computer print-out. U.S. Exh. 126. For example, Ebensburg's calculation of the number of bites does not include the bite to Thomas H.'s ear on 4/15/93 that required 10 sutures because it was incorrectly coded on Ebensburg's computer print-out. Id. Mr. O'Brien testified that he used the computer print-out to calculate the number of bites. Tr. 10/19/93 (O'Brien) at 8. Some bites do not even appear at all on Ebensburg's computer print-out which is supposed to reflect all incidents that occur at the facility. For example, Albert K. was bitten twice on July 17, 1992, once on his foot and once on his buttocks, but neither of these bites appear anywhere on Ebensburg's computer print-out. U.S. Exhs. 136, 267.
^/ The defendants also attempted to compare the incident rate at Ebensburg with a study published in Superintendent's Digest about incident rates. Tr. 10/13/93 (Bellomo) at 162. The study was commissioned by the National Association of Superintendents of Public Facilities and the author does not claim that the data that he presents is statistically valid to any scientific certainty. Tr. 10/13/93 (Bellomo) at 162; Tr. 10/13/93 (Bellomo) at 79. In fact, the author labels his article an "exploratory
(continued...)
V-13

1. Ebensburg Underreports Its Incidents And Injuries.
Dr. Stark, Dr. Russo, and Dr. Amado all found that Ebensburg staff fail to write out
an occurrence report each time an incident warrants such a report. Tr. 7/27/93 (Stark) at 19,
34; Tr. 8/2/93 (Russo) at 72-73; Tr. 8/4/93 (Amado) at 73, 76. As such, the actual number
of incidents and injuries occurring at Ebensburg is even higher than the figures presented in
Ebensburg's computer generated reports and the United States' summaries of those reports.
U.S. Exhs. 89, 90, 91, 92, 135, 136, 177. Mr. O'Brien admitted that there are injuries for
which Ebensburg staff have not completed an occurrence report. Tr. 10/15/93 (O'Brien) at
56. Mr. O'Brien admitted that United States' Exhibit 986 identifies 18 injuries that he
agrees should have resulted in incident reports. Tr. 10/19/93 (O'Brien) at 56.!!/ None of
these incidents, however, appear on Ebensburg's computer print-outs (U.S. Exhs. 135, 136)
which is what Ebensburg relies on to compute its incident and injury statistics. Tr. 10/19/93
(O'Brien) at 8. During Dr. Amado's review of Ebensburg records, he found a number of
injuries documented in progress notes that did not result in incident reports. Tr. 8/4/93
^/(...continued) study" and cautions about the use of his data in drawing any conclusions. Tr. 10/14/93 (Bellomo) at 79. This is because there was a "wide variance" in the injury reporting systems at the facilities where he collected his information. Tr. 10/14/93 (Bellomo) at 78. The author therefore stresses that one should only apply the injury rates in his article when making judgments concerning the accident/injury rate in a particular facility "VERY CAREFULLY!" (capital letters and exclamation point appear in the article). Tr. 10/14/93 (Bellomo) at 79; An Exploratory Study of Accidents and Injuries Among Residents in Public Residential Facilities at 7. Moreover, the study presents 15 different tables for analyzing injury trends and Mr. Bellomo admits that the statistics "can be manipulated in a variety of different ways." Tr. 10/14/93 (Bellomo) at 80, 81. Mr. Bellomo also admitted, in the final analysis, that there actually "is no comparative data that's out there that has reliability and validity built into it that I felt that could be used." Tr. 10/14/93 (Bellomo) at 81.
"/ For example, United States' Exhibit 986 includes John C.'s January 27, 1992 incident where he picked at his forehead and eroded his head wound so deeply that direct pressure for 20 minutes was ineffective to control bleeding. No incident report was written and it is not recorded in Ebensburg's computer print-outs in evidence as United States' Exhibits 135 and 136.
V-14

(Amado) at 73. Dr. Amado testified about 20 instances in which residents at Ebensburg sustained significant injuries, yet no injury report was filled out."/ In Dr. Amado's opinion, there is significant underreporting on Ebensburg incident forms concerning injuries to Ebensburg residents. Tr. 8/4/93 (Amado) at 76. Dr. Russo also found that there are no incident reports for several 1992 and 1993 pica incidents involving Winfield M., including vomiting rubber bands, clothing labels, cigarette butts, eating shirt buttons and papers off the floor, and limping, resulting in a pelvic x-ray showing zipper and numerous screws in his abdomen. Tr. 8/2/93 (Russo) at 72-73.
2. Ebensburg Minimizes The Seriousness Of Injuries. a. Ebensburg Sometimes Does Not Count Significant Incidents As Injuries.
Although defendants repeatedly attempted to claim that many of the incidents for which an occurrence report is written do not involve injuries, Ebensburg has rated only a fraction of them as "no injuries." In 1991, Ebensburg rated 71 of its 1,707 incidents as no injuries (4%) and in 1992, Ebensburg rated 158 of its 2,433 incidents as no injuries (6%). Tr. 7/27/93 (Stark) at 20. A sample of individuals with the highest number of incidents during the 50 month period between January 1989 and February 1993 reveals that even Ebensburg considers only a negligible number to actually be non-injuries. U.S. Exh. 777.
"/ Recent incidents for which there are no occurrence reports include three episodes of self-injurious behavior for James E., all involving picking areas of his face and head open; an incident wherein James W. was bitten three times, all three bites breaking the skin; an incident of self-injurious behavior for Brock E. (mistranscribed in the trial transcript as Brett E.); nine separate instances of self-injurious behavior in January 1992 by John C ; two injuries caused by Eugene B.'s self-injurious behavior; Sandra W. being bitten; two episodes of pica behavior for Winfield M.; and a pica incident where a two inch wooden peg was found in Ronnie B.'s bowel movement. Tr. 8/4/93 (Amado) at 73-76.
V-15

In some instances, such as with Raymond H.'s 74 incidents during this time period, Ebensburg considered each one to be an injury. Id. In the case of James S.' 215 incidents during this time period, Ebensburg only considered five of them to not be an injury. Id.1V Even those incidents where Ebensburg claims no injury occurred are significant because, as pointed out by Dr. Stark "something happened" because an occurrence report was written. Tr. 7/27/93 (Stark) at 33.!!/ A number of the occurrences that Ebensburg does not count as an injury in fact involve significant incidents. Many involve pica, chokings, sexual incidents, missing people, and even some incidents where an individual actually sustains a visible injury. U.S. Exh. 990, 990(a). For instance, in March 1992, Thomas C. fell going from the bathroom to the play area. Staff note that his color is pale and he seems dazed. Id. On the back of his incident report, staff further note that he has "ecchymosed areas outer aspect of left eye." Id. This incident was rated as a non-injury by Ebensburg.^7 In April 1992, a physician removed a pill bottle from Ivy W.s throat, and Ebensburg also rated this incident as "no injury." U.S. Exh. 590(a). Other examples of significant incidents that Ebensburg does not count as an injury include two Darlene F. pica incidents in April 1992
" / Even categorizing these five incidents as non-injuries is questionable. They involve: a choking from eating too quickly; two elopements, including one where James was found standing on Route 22; and an incident where James fell, was crying, and said his face hurt. Tr. 10/19/93 (O'Brien) at 36; U.S. Exh. 777. "/ The range of circumstances for which an occurrence report is written include: abrasions, bite injuries, bleeding, bruises, contusions, burns, scalding, concussions, death, dislocations, edema, fractures, medical isolation, lacerations (with and without sutures), oral injuries, pain, poisoning, property damage, psychological distress, scratches, skin reactions, strains, sprains, unspecified internal injuries, other, none, and unknown. U.S. Exh. 73. fV This incident was rated with Ebensburg's category code "25" (no injury) and "26" (unknown effect).
V-16

where she ate numerous cigarettes; Brian B.'s pica in October 1992 with a paper dixie cup; Ron A.'s February 1993 choking involving the Heimlich; Mary D. being left behind in her day program and found "sobbing" in January 1993; and Calvin H.'s drinking Mennan skin bracer in May 1992. U.S. Exh. 990. Dr. Stark "strongly disagrees" with most of Ebensburg's characterizations of incidents that it does not consider to involve an "injury." Tr. 7/27/93 (Stark) at 19, 35. He found "numerous examples" of situations where he considered residents to be injured but Ebensburg recorded them as "no injury." These include a resident who inserted his penis into the anus of another resident, a resident who was pushed into a door and kicked in the knee, a resident who was choked by another resident, a resident who was punched in the jaw, and a resident who banged her head against the window with sufficient force to break it. Tr. 7/27/93 (Stark) at 70-7\.2J_I United States' Exhibit 105 includes an incident report concerning a severe behavior episode involving Franklin B. Franklin became uncontrollable at his day programming site, and banged his head so hard against a loading dock door that he broke the door. Ebensburg rates this incident as resulting in no injury to Franklin. Tr. 8/2/93 (Russo) at 16-18. Based upon his review of occurrence reports, Dr. Amado agrees that only "a very small, small part" of the total number of reports contain an incident where there was actually no injury. Tr. 8/4/93 (Amado) at 85, lines 16-17.
"/ Moreover, Ebensburg rarely reports injuries where pain, as opposed to a visible injury, is the consequence. Tr. 7/27/93 (Stark) at 38.
V-17

b. Ebensburg Considers Some Significant Injuries To Be "Minor."
Ebensburg has a system of categorizing incidents which distinguishes between those it considers to be minor and those which it considers to be more serious. Tr. 10/15/93 (O'Brien) at 82. Ebensburg rates those incidents that fall into the minor category as "01." Id., U.S. Exh. 73. Ebensburg rates those incidents that are more serious (Le., those that require medical intervention) as "02." Id. Instances of death, abuse, and communicable disease are rated as "03." Id. Dr. Stark disagrees with many of Ebensburg's characterizations of incidents it considers to be "minor." Tr. 7/27/93 (Stark) at 32, 34, 45. For example, Ebensburg categorizes the vast majority of bites as minor injuries, even where the skin is broken, the wound site is bleeding, and a Hepatitis B carrier is involved. Tr. 7/27/93 (Stark) at 32; Tr. 10/19/93 (O'Brien) at 29-30; U.S. Exhs. 135, 267, 267(b).^/ Moreover, Ebensburg does not categorize all incidents that require medical attention as a serious incident, even though, by its own definition, they are serious events. Tr. 10/19/93 (O'Brien) at 29, lines 5-6. Mr. O'Brien specifically testified that if a mealtime choking necessitated medical intervention, it should be categorized as a serious incident. Tr. 10/19/93 (O'Brien) at 28-29. All of the chokings that occurred at Ebensburg between 1991 and 1993, however, were rated as minor incidents by Ebensburg, even if they required the Heimlich maneuver and even if the resident was transported to the hospital following the choking incident. U.S. Exhs. 135, 136, 273, 988 (emergency hospitalization for choking
^/ Despite the fact that Hepatitis B is a communicable disease and Ms. Sponsky, Ebensburg's Director of Nurses, believes that these bite injuries are health concerns (U.S. Exh. 636 (Sponsky Dep.) at 51), Ebensburg rates these bites as an "01," not an "03." There were at least 60 bites involving Hepatitis B carriers at Ebensburg during 1991 and 1992. U.S. Exh. 267(b).
V-18

episode this summer which was rated as a minor incident). If a nurse or doctor has to remove an object that is lodged in someone's throat, Mr. O'Brien would expect that to be rated as an "02" incident because there was medical intervention. Tr. 10/19/93 (O'Brien) at 29. It would surprise him if this was not the case. Tr. 10/19/93 (O'Brien) at 29. In fact, Ebensburg not only rated each of the pica incidents where an object was lodged in a resident's throat as a minor event, it also considered them to be "non-injuries." (See discussion supra § V.C.2.a.). Tr. 10/19/93 (O'Brien) at 50; U.S. Exh. 990, 990(a).
United States' Exhibits 317, 1026, and 1039 represent occurrence reports completed by Ebensburg that were rated by Ebensburg as minor incidents but, in fact, necessitated hospitalization and therefore represent serious injuries by Ebensburg's own definition. Tr. 10/19/93 (O'Brien) at 24. In United States' Exhibit 317, John C. was bleeding from his nose so severely that he had to be sent to the emergency room with two IV lines; the doctor thought he might be in shock, and John was kept in the hospital in full restraints for a number of days to insure that he did not remove the packing from his nose. Ebensburg rated this incident as a minor event. Tr. 10/19/93 (O'Brien) at 25-26. In September 1992, Albert K. was pushed over in his wheelchair and was unconscious for 8-10 minutes and was transported to the hospital by ambulance. U.S. Exh. 1039. Ebensburg rated this incident as minor, although Mr. O'Brien agrees that it was serious. Tr. 10/19/93 (O'Brien) at 27. United States' Exhibit 1026 describes an incident involving Chris D, who was pushed into a wheelchair, fell forward hitting his chest, was lacerated, pale, had sinus bradycardia in June
V-19

1993, was transported to the emergency room. Ebensburg also rated this incident as minor, not serious. Tr. 10/19/93 (O'Brien) at 26.f /
c. Ebensburg Staff Dismiss Injuries As "Routine Risks." The same attitude of minimizing injuries is reflected in the attitude of Ebensburg staff. It was obvious to Dr. Stark from the sequence of events described in occurrence reports, comments made on occurrence reports, and his observations during his tour that Ebensburg staff almost take it as "a given" that injuries are inevitable. Tr. 7/26/93 (Stark) at 120-121, 148-149. During his tour, Dr. Stark observed residents engaging in potentially dangerous behaviors and when he asked staff why they were not intervening, the response invariably was that this was just the way residents were, or, if we intervene, it will upset the residents so "we just sort of let them go." Id. at 121-122. This phenomena was confirmed in his review of occurrence reports. For example:
On February 29, 1992, staff found a bite on Larry D.'s shoulder and a 4" abrasion near the bite. Staff reviewing the incident concluded that it is a "normal risk for every day living." Tr. 7/26/93 (Stark) at 148; U.S. Exh. 647 at 00316413. Dr. Stark strongly disagreed, stating: "this is not a risk . . . This is an issue of injury and is not a normal risk for everyday living." Tr. 7/26/93 (Stark) at 148, lines 18-22. Mr. O'Brien also agrees that
fV Other serious occurrences that Ebensburg rated as minor include the October 1992 incident in which Joe C. was missing from Ebensburg and found the next morning locked in the trunk of a car. U.S. Exh. 1039; Tr. 10/19/93 (O'Brien) at 1009. In March 1993, a staff person heard a loud scream and found Alan G. coming from the bedroom with blood coming from his forehead, blood all over his face, on both hands, blood on the wall by his bed, and blood on the walls of the outside exit door. U.S. Exh. 1039. Although ethistrips had to be used to close Alan's wounds, Ebensburg rated this injury as minor. Tr. 10/19/93 (O'Brien) at 26-27. Ebensburg also rated as minor a May 1993 incident involving Donald P., where he put his head through a window, lacerating and deeply abrading his forehead. U.S. Exh. 1039.
V-20

these comments are inappropriate, have "no business" being a part of an occurrence report,
and no one at Ebensburg should be "at risk." Tr. 10/19/93 (O'Brien) at 85-86.
Sometimes, Ebensburg staff conclude that the injury occurred because the resident
was simply in the "wrong place at the wrong time." Tr. 7/26/93 (Stark) at 148-149. For
example:
• On April 21, 1993, Albert B. was pushed into a table by another resident who had been upset all morning. It took six sutures to close the wound on his head. His occurrence report notes that he was in the "wrong place at the wrong time." U.S. Exh. 647 at 00644254.
• On April 10, 1992, as Joseph P. was waiting for staff to clean an open sore on his foot, another resident slapped him in the face, bloodying his nose and loosening his front teeth. His occurrence report also notes that he was in the "wrong place at the wrong time." U.S. Exh. 647 at 00001788.
Dr. Stark also strongly disagreed with dismissing injuries in this fashion: "There should be
no wrong place, there should be no wrong time." Tr. 7/26/93 (Stark) at 149, lines 1-2.
Despite what Mr. Bellomo and Mr. O'Brien describe as recent enhanced monitoring
of injuries through risk management meetings, supervisory staff in the living units still are
not always vigorously examining the circumstances of injuries and instead are continuing to
dismiss them as "routine risks." U.S. Exh. 984.24/
fV United States' Exhibit 984 contains examples of some of these occurrence reports: - On 5/1/93, Deron E. was sitting in the dayroom when John G. either bit or struck him in
the face (staff are not certain what happened). On the part of the occurrence report where staff are supposed to make recommendations for prevention of recurrence of injury, the supervisor merely wrote: "Mr. E was innocent victim—routine risk."
- On that same day and at the same time, Paul M. was sitting quietly in the dayroom when John G. ran over and bit him on the arm. Here, the supervisor writes again: "Paul was innocent
victim-no need to revise current living area. Routine risk."
- On 5/5/93, Darrel D. was sitting in his program area when another individual slapped him on his face and ear. The supervisor finds that this is "unavoidable incident during program day."
(continued...)
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d. Ebensburg Staff Have Sometimes Inflicted Harm On Residents.
In other instances, Ebensburg staff not only have accepted the harm that Ebensburg
residents suffer, they have actually inflicted harm. When Mr. Tackett worked on the second
shift in Keystone on April 4, 1992, he was concerned that not only did staff fail to intervene
when James E. was exhibiting serious self-abusive behavior, they actually treated James in an
abusive manner. Tr. 8/3/93 (Tackett) at 20; U.S. Exh. 138. Mr. Tackett witnessed James
crying violently and engaging in self-abusive behavior by punching his head and hitting his
ear with "full force." Id. at 20, 22. When Mr. Tackett questioned another staff person
about James' behavior, he was told "that's the way that Jimmy is, that's the way he'll always
be." Id. at 21. At one point while he was still engaging in self-abusive behavior, James was
permitted to go back into the bedroom area unsupervised. Id. at 22. At another point,
surgical gloves were put on his hands and tied together. Id. at 23. Later, a staff person tied
the gloves on James' hands to a metal cart, forcing James to pull the cart around with him.
Id. at 23-24. This made James even "more agitated and crying violently." Id. at 24. This
lasted for approximately fifteen minutes until Mr. Tackett untied James. Id. James was then
^/(...continued) - On 5/15/93, Duane P. was found with a bruise on his left foot which turned out to be a
fracture. The supervisor has no recommendations, but just states "within normal risk tolerance." - On 5/22/93, Greg G. fell on the floor while on his way to the dining room, hitting the back
of his head. He was limp, listless, and had to be brought to the dining room in a wheelchair where he refused his meal. The supervisor states that he "appears at normal risk for this type of incident."
- On 6/27/93 Chris G. was found with a sore hand where there were two open areas. Again, on the back, the supervisor writes "injury most probably happened with client in cart or wheelchair
during previous day. Very minor injury within normal risk tolerance."
- On 7/8/93, Jeff K. was found laying at the foot of his bed and a bleeding laceration on his head. In the recommendation section, the supervisor writes "With Jeffs behaviors (throwing himself about, etc.), this small injury is within normal risk limits."
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placed on a bean bag as two staff "held the bean bag on either side and they plopped James
up in the air and then caught him back in the bean bag." Id.
Ms. Hebenthal witnessed nine separate instances of abuse during the day and a half
she worked on the living units and at day programs at Ebensburg. Tr. 8/3/93 (Hebenthal) at
200. Ms. Hebenthal filled out a witness statement the day after she witnessed the abuse. Tr.
8/3/93 (Hebenthal) at 200-201; U.S. Exh. 139(a). For example:
• Ms. Hebenthal witnessed a large staff person, weighing about 220 pounds, grab a small client by the shirt in a violent way and throw the client about eight feet against a cement wall, push the client into a corner, and tell the client that "he's not going anywhere in a domineering, degrading manner that was totally uncalled for and very disgusting." Tr. 8/3/93 (Hebenthal) at 202-203, lines 9-10; U.S. Exh. 139(a). When the client hit the wall, "his face and upper body slammed into the wall." Tr. 8/3/93 (Hebenthal) at 203, line 20.
• Ms. Hebenthal witnessed a large staff person throw James W., who is blind, onto the couch. James stood up and "put up his dukes," and the staff pushed James onto the couch again. The staff person then said to the other staff, "Oh, let him come at me again," and "I'll break his freaking jaw again." Tr. 8/3/93 (Hebenthal) at 210, lines 12-13.!!/
• Ms. Hebenthal also witnessed a large staff person slap the side of the head of a small client who was attempting to tie his tennis shoes. She heard this staff person tell the client to "get his F-ing shoes tied," instead of helping the client with the task. Tr. 8/3/93 (Hebenthal) at 204-205; U.S. Exh. 139(a).
• Ms. Hebenthal also saw a client who was trying to get off the couch be pushed back down onto the couch three or four times "in a violent manner" by a staff person. Tr. 8/3/93 (Hebenthal) at 207-208, line 9.
• Ms. Hebenthal witnessed a staff person grab a client by the shirt who was lying face down on the floor, masturbating, and push the client to where the client was supposed to be. Tr. 8/3/93 (Hebenthal) at 211.
• While walking from a program site to board the bus, a heavy-set client with a bad gait was within arms distance of Ms. Hebenthal and two other staff. The client started to
fV This is the same James W. who, within a three year period, had three emergency hospitalizations for such severe injuries as a ruptured globe in his eye, a fractured jaw, and a ruptured spleen along with broken ribs, and whose mother testified about the repeated, significant harm he has suffered while at Ebensburg. Tr. 7/26/93 (Weakland) at 190-196.
V-23

fall, and Ms. Hebenthal attempted to get under the client's arm to try to steady her as she had been taught. One of the Ebensburg staff told Ms. Hebenthal, "Don't hurt your back for her. She's not worth it." Tr. 8/3/93 (Hebenthal) at 206, lines 23-24. The staff walked away from the client. Ms. Hebenthal was able to break the client's fall, but the client did fall down, hitting the cement. Tr. 8/3/93 (Hebenthal) at 206-207. The client had a hard time getting up, and reached her hand out to staff. The staff did not help the client get up and told the client that the bus would leave without the client. Tr. 8/3/93 (Hebenthal) at 207. The staff referred to the client as "Lumpy". Tr. 8/3/93 (Hebenthal) at 206-207.
• While on a bus with staff and clients, Ms. Hebenthal witnessed a staff person "forcibly, violently" grab a client who was attempting to sit next to the staff person by the shirt and put the client into another bus seat, making it clear that the staff person wanted the client "nowhere around." Tr. 8/3/93 (Hebenthal) at 205, line 11. Upon witnessing this, she asked the staff whether clients had assigned seats, and the staff told Ms. Hebenthal, "No, I just don't like him. I don't want him over here." Tr. 8/3/93 (Hebenthal) at 205. Ms. Hebenthal also heard this staff person refer to a black client on the bus as a "dumb nigger." Tr. 8/3/93 (Hebenthal) at 205, lines 19-20.
• While riding on the bus, Ms. Hebenthal witnessed a staff person grab a client who was engaging in self-stimulatory rocking behavior and forcibly push the client back into his seat. Tr. 8/3/93 (Hebenthal) at 208-209.
• Finally, Ms. Hebenthal witnessed four staff people restrain a crying client who wanted to get off the bus at a particular vocational area to which he was not assigned. One staff behind the client put a choke hold around the client's neck, another staff held one of his arms, a third staff held the other arm, and the fourth staff stood in front of the client and verbally intimidated the client. Tr. 8/3/93 (Hebenthal) at 212.
Although the abusive situations witnessed by Ms. Hebenthal involved primarily two
staff persons, there were other staff involved in some of the situations (in one instance, four
staff were involved). Tr. 8/3/93 (Hebenthal) at 235. When there were other staff present,
the staff did not intervene or object in any way to the abuse. Tr. 8/3/93 (Hebenthal) at 235-
236. When Ms. Hebenthal and the other trainees reported back to training after their time
on the living and programming areas at Ebensburg, other trainees reported incidents similar
to the abusive situations that Ms. Hebenthal saw taking place at Villa. Tr. 8/3/93
(Hebenthal) at 228-229.
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Both Mr. Tackett and Ms. Hebenthal experienced what they perceived to be pressure from other Ebensburg staff when they reported these abusive incidents. Mr. Tackett felt that the first staff person he spoke to about these incidents was trying to discourage him from coming forward. Tr. 8/3/93 (Tackett) at 26, 44. When Ms. Hebenthal was asked to identify individuals involved in the abuse incidents she reported, she found that the particular staff members that she had accused, as well as the staff with whom they work, were required to stay overtime. Tr. 8/3/93 (Hebenthal) at 232. They stood outside of the building in a very intimidating fashion. Id. As Ms. Hebenthal describes it, staff stood at the door "waiting to lynch me, because I had enough nerve to stand up and say this guy was treating people wrong." Tr. 8/3/93 (Hebenthal) at 222, lines 7-8. She believes that she should have been asked to identify the clients confidentially or with just the particular staff present against whom she had made her allegations. Tr. 8/3/93 (Hebenthal) at 232-233. After filing a report of alleged abuse, both Mr. Tackett and Ms. Hebenthal have been the subject of suspicious activity. Mr. Tackett received threatening phone calls following his report of abuse. Tr. 8/3/93 (Tackett) at 49. After Ms. Hebenthal was asked to identify the individuals involved in the abuse incidents, she was followed home until she stopped at the State Police Barracks. Tr. 8/3/93 (Hebenthal) at 222.
During the time that he worked at Ebensburg, Mr. Tackett perceived a code of silence or peer pressure not to report anything negative about other direct care staff. Tr. 8/3/93 (Tackett) at 48-49. Dave Fulton, who is in charge of abuse investigations at Ebensburg, admits that he encounters a certain amount of conspiracies of silence among staff who work together when he conducts his investigations. U.S. Exh. 614 (Fulton Dep.) at 103-104.
V-25

Sometimes, he "runs into a brick wall" due to these conspiracies of silence. U.S. Exh. 614 (Fulton Dep.) at 104. As recently as January 1993, the executive staff at Ebensburg decided to send a memorandum to all unit managers to have them remind staff that the occurrence reports they write are "read by many and that it reflects the care and attitude of staff involved." Tr. 10/15/93 (Bellomo) at 17; U.S. Exh. 982. Moreover, the memorandum warned staff that "unnecessary" and "harsh wording" only serve to delay the process.
Mr. Fulton conducts investigations almost exclusively at the request of other people at Ebensburg. He has only conducted an investigation on his own initiative once or twice. U.S. Exh. 614 (Fulton Dep.) at 71. An Ebensburg supervisor received an phone call on September 20, 1992 from a concerned citizen naming a particular Ebensburg employee who was beating up the clients and bragging about it, and that if checked, the employee's knuckles would be skinned. U.S. Exh. 614 (Fulton Dep.) Exh. 5. Mr. Fulton does not recall investigating this complaint. U.S. Exh. 614 (Fulton Dep.) at 155. Mr. Fulton does not remember receiving the note from the supervisor. U.S. Exh. 614 (Fulton Dep.) at 156. Mr. Fulton has not conducted an overview of abuse investigations to look for trends for several years. U.S. Exh. 614 (Fulton Dep.) at 159. Although it is part of Mr. Fulton's responsibility to follow through to see that whatever problems were uncovered by his investigations are remedied, he has no authority to ensure that changes, in fact, are implemented. He states: "When I turn [the investigation] over to somebody else, that's pretty much more or less their responsibility if there's corrective action to be taken." U.S. Exh. 614 (Fulton Dep.) at 134. Mr. Fulton believes that the safety of Ebensburg residents
V-26

would be better ensured if he followed up to ensure that what caused the injury was remedied. U.S. Exh. 614 (Fulton Dep.) at 133-134.
In Dr. Stark's opinion, there are four major reasons why incidents and injuries are a frequent occurrence at Ebensburg:
1. Ebensburg staff are not adequately supervising or monitoring residents; 2. Ebensburg staff are not adequately intervening to stop behaviors that are causing injuries; 3. Ebensburg is not adequately fulfilling its obligation to review injuries, determine causes and take preventative steps; and 4. there is a lack of meaningful activity and training programs which results in a "pattern of harm." Tr. 7/26/93 (Stark) at 106. D. Staff Are Not Adequately Supervising And Monitoring Residents. A large percentage of incidents occur at Ebensburg while staff are not even present to prevent them. The defendants agree that fully forty percent of the incidents during 1992 were categorized by Ebensburg as being caused for unknown reasons. Tr. 7/26/93 (Stark) at 103, 109; U.S. Exh. 90 (attached); Tr. 10/15/93 (O'Brien) at 76; Def. Exh. FF. These are unwitnessed events where staff find the individual injured and do not even know how it happened. Tr. 7/26/93 (Stark) at 109. The type of injuries that are unwitnessed run the spectrum from scratches, bruises, and abrasions to fractures, lacerations requiring sutures, and injuries requiring emergency hospitalization. Tr. 7/26/93 (Stark) at 109; U.S. Exh. .fV Moreover, in analyzing the circumstances surrounding injuries, Dr. Stark found
*/ "Unknown" injuries appear on United States' Exhibits 135 and 136 with the code number "17" in the column labeled cause.
V-27

that injuries frequently occur during times when staff are involved in other functions, such as
mealtimes, medication administration, bathing, toileting, are off the living unit on a staff
break, or are involved with paper work, rather than being attentive to residents. Tr. 7/26/93
(Stark) at 110-111. United States' Exhibit 589 (attached) presents a summary of 26 examples
that Dr. Stark selected as a sample from the numerous occurrence reports that he reviewed to
illustrate this phenomena. The Commonwealth has not refuted any of these examples
contained in the summary chart in United States' Exhibit 589. For example:
• On April 15, 1993, Thomas H. was found naked at 7:40 a.m., sitting on the changing table in the bathroom with a bloodied and lacerated ear due to a human bite which took 10 sutures to repair. At the time staff discovered the injury, they were all involved with morning care. The injury was not found until a staff person returned to the area after taking a client off the living area for Woodwork. U.S. Exhs. 589 at 2; 589(a).
• On March 6, 1993, Alan R. was found on the floor with his face covered with blood. No one observed how he hurt himself. At the time of the injury, which occurred on a weekend at 10:30 a.m., two staff were on break, one was in the chart room, and other staff were involved with weighing individuals. Id.
• During dinner time on February 15, 1993 — one week before Dr. Stark toured Ebensburg — Jeffrey C. was found choking David L., who had bitten Jeffrey so hard that David had blood on his tooth. There were no direct care staff supervising either of these residents. Instead, one staff person was on break, two were in the dining room, and two were in the bathroom. This incident was not discovered until a Licensed Practical Nurse ("LPN") happened to walk through the area and saw the choking in progress. A supervisor acknowledged in the occurrence report that staff need to be retrained not to leave clients unobserved. Id.
Dr. Stark also had concerns about instances he reviewed in occurrence reports where
Ebensburg residents were missing and staff were unaware that individuals had even left the
area or had been left behind.^/ For example:
f7 Since 1985, Pennsylvania Office of Mental Retardation policy has stated that leaving a resident who requires supervision unattended constitutes neglect. Tr. 10/19/93 (O'Brien) at 61.
V-28

• On July 8, 1992, Beverly B. was discovered outside of the Administration Building by a volunteer resource coordinator. Tr. 7/26/93 (Stark) at 221; U.S. Exh. 594(b). She had left Horizon House unnoticed and, when found, her right eye was "practically swollen closed" and she had a two-inch circular abrasion on her shoulder. "Blood was on the shoulder of her blouse and seeping from the wound." U.S. Exh. 594(b) at 00050396.
• On February 11, 1992, Vincent P., who lives at Sunset House, was left behind at the end of the day at programs because staff were distracted with a behavioral episode. Tr. 7/26/93 (Stark) at 221; U.S. Exh. 5949(c). He was found fifteen minutes later sleeping on a couch in a program area. The nurse noted that there was a need for closer supervision. Yet, one month later, Ronald A., another client from Sunset House was also left behind in program area. He was found a half hour later in his program area sleeping on the floor with his coat on. The need for closer supervision was noted again. On June 20, 1992, however, Ronald A. was again found to be missing. U.S. Exh. 594(e). This time, he was missing from his program area and later found in the bathroom of his living area. Id. He had wandered through the tunnel connecting buildings backs to his living area. A staff person says that she sent Ron out to the bathroom and "hollered" to another staff person who was in the bathroom that she was "sending Ron out." Id. at 00050031. A supervisor stresses that staff need to be "sure all individuals are accounted for at all times." Id.
• On January 25, 1993, Mary D. was discovered to be missing from her living unit. She was later found behind closed doors in JFK Learning Center, sitting at a table, sobbing.
On October 1, 1992, one week after Dr. Russo toured Ebensburg, Joe C. was found
to be missing at 11:45 in the evening. U.S. Exh. 313. Joe was not found until the next
morning, locked in a car trunk. His temperature was 94.6 degrees and he was urine soaked.
U.S. Exh. 313. Id.fV Joe reported that he left because he had been in an altercation with
another resident and was afraid to stay on the unit because he thought this individual was
"going to beat him up." U.S. Exh. 313 at 200501. Minutes before he eloped, staff knew
that Joe was "extremely upset." U.S. Exh. 313 at 00200493. Staff left him alone, however,
even after he threatened to take rat poison, to kill himself, and elope because three staff were
f/ Ebensburg counts this incident as "minor." Tr. 10/19/93 (O'Brien) at 109; see U.S. Exh. 136 at 00591506.
V-29

busy getting their paychecks and a fourth was on his break. U.S. Exh. 313 at 00200493498; 00200500. This was not the first time that Joe had eloped in the middle of the night while the same staff were on duty. In fact, in July of 1991 at 1:35 in the morning, he left the living area after having a behavioral outburst and was found 25 minutes later in a bus by the garage. U.S. Exh. 313 at 00209559. In March 1992, he left the unit at 6:55 a.m. after he alleged that he was kicked in the chest and mouth by a staff person and was found 20 minutes later in the upper level of a bam. U.S. Exh. 313 at 00001539.!!/ In a psychiatric consult following the incident where he was found locked in the trunk of the car, Dr. Goldschmidt, the consulting psychiatrist, wrote that when Joe is "upset he needs to be monitored one to one and otherwise he needs to be watched until he learns safety matters." U.S. Exh. 331 at 00303685. Several months later, on February 28, 1993, again in the middle of the night, Joe was angry and put his fist through a window requiring sutures. U.S. Exh. 331 at 00590481. At the time of the incident, two staff were involved with laundry and one was on break. U.S. Exh. 331 at 00590487.^/ His occurrence report
fV This was also not the first time that Joe alleged that staff had kicked him. On June 9, 1991, at 11:15 p.m., Joe C. came out of his bedroom, complaining of pain in his left rib area, and stated that a particular staff person on the 3-11:00 p.m. shift had kicked him. About 45 minutes earlier that evening, Joe had been put in a time out room by that staff person. On June 11, 1992, an Ebensburg x-ray was inconclusive for fracture. On June 13, 1991, an orthopedic consultant verified that two of Joe's ribs were fractured. Joe was having difficulty breathing and still complaining of pain on June 18, so Ebensburg again x-rayed Joe, and confirmed acute fractures of two of Joe's ribs and an opacity consistent with pulmonary contusion. Joe was admitted to Mercy Hospital, where he was diagnosed with pneumothorax and chest tubes had to be inserted. U.S. Exh. 129. fV This incident occurred despite the fact that Mr. Bellomo claims to have been responsive to Ms. Ferut's concerns that staff have laundry responsibilities that detract from their client care responsibilities. Tr. 10/14/93 (Bellomo) at 158.
V-30

again notes that there needs to be an "emphasis on staff efforts to avoid Joe's emotional escalation." Id. at 00590482.
The same phenomena of residents being injured and engaging in dangerous behaviors while staff are involved with meals, bathing, toileting, medication administration, and breaks continued to occur through the trial of this case. United States' Exhibit 985(a) (attached) is a summary of a sample of eight such incidents that occurred between May and August 1993.
There are also a number of instances that Dr. Stark characterizes as "disturbing" where Ebensburg residents have engaged in pica!!/ and staff were unaware that they ingested a foreign object until the residents were found in distress or foreign objects were found in the person's feces, vomit, or confirmed through an x-ray in the hospital. Tr. 7/26/93 (Stark) at 116. United States' Exhibit 590 contains a summary of some these instances of pica. The summary is not an exhaustive list but merely illustrative of situations that have occurred at Ebensburg. Tr. 7/26/93 (Stark) at 116. The Commonwealth has not refuted any of these examples or the summary of them contained in United States' Exhibit 590 (attached). These instances include:
• Winfield M., who has vomited rubber bands, clothing labels and cigarette butts. He was found limping by staff and an x-ray revealed a zipper and numerous screws in his abdomen. During February 1993, he was discovered having trouble bending; an x-ray found a mass of metallic objects inside him. U.S. Exh. 590 at 1.
• Brian B. who refused to eat breakfast, was drooling and unable to swallow and was found to have a paper dixie cup in his throat. Several months earlier, Brian choked during lunch and was found to have a thermometer ear tip lodged in his throat. Prior to this incident, he choked during supper and was taken by emergency transport to the hospital where he threw up a piece of wood that he ingested. Id. at 1-2.
fV Pica is the ingestion of inedible objects or substances. Tr. 7/26/93 (Stark) at 115. V-31

• Ivy W. was discovered by staff to have a small bottle lodged in her throat when she exhibited difficulty swallowing during a mealtime. Id. at 1. Ivy's pica behavior is well known to staff and they admit that she should be monitored closely. U.S. Exh. 590(a) (4/13/92 Inc. Rep. with staff comments attached). A staff person who was "pulled" from Ivy's unit on the day of the incident states that before she left, she "noticed 3 pill bottles on the table in day room; they shouldn't have been out without supervision." Id.
• Staff have frequently found cigarette butts and filters in Darlene F.'s emesis, sometimes mixed with blood. U.S. Exh. 590 at 1-2.
These same types of incidents continued through the summer of 1993. For example,
on August 4, 1993, Carol D., who has pica, was found crouched on the floor, cyanotic and
gasping for breath. U.S. Exh. 987. A nurse removed a 6" length of shirt from her throat.
Id. On June 22, 1993, staff saw a metal screw fall from David W.'s mouth. U.S. Exh.
987. The next day, staff found a large amount of cloth strands, paper, and a small rock in
his bowel movement. Id.; Tr. 10/15/93 (Bellomo) at 40.
The phenomena of staff not being present to supervise and monitor residents, and
being inattentive to residents even when they are present, is one that Dr. Stark observed
during his February 1993 tour as well as a "common theme" that he identified in Ebensburg
documents and surveys by outside reviewers. Tr. 7/26/93 (Stark) at 115. E. Ebensburg Staff Are Failing To Intervene Even When They Observe Dangerous Behavior. Even where Ebensburg staff are present and supervising residents, they fail to
intervene, or to intervene successfully, when they observe dangerous behaviors occurring.
Tr. 8/4/93 (Amado) at 76-77. During his February 1993 tour, Dr. Stark repeatedly saw
situations where individuals were agitated, pacing, roaming, and milling where staff were
oblivious and not redirecting them to engage in a meaningful activity. Id. at 121. In one
instance, Dr. Stark had to alert staff who were oblivious to several pica attempts by David
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N. Despite the fact that David had had an emergency psychiatric consult earlier that day, staff were unaware that he picked up a piece of toy off the floor and stuck it in his mouth and then later placed an entire piece of paper in his mouth. There was no staff intervention until Dr. Stark brought these incidents to staffs attention. Tr. 7/26/93 (Stark) at 117-118. Dr. Stark attributes the failure to intervene to staff not knowing what to do and not picking up on and intervening when early warning signs are present. Tr. 7/26/93 (Stark) at 119. Dr. Amado, Dr. Russo, and Dr. Stratton (Ebensburg's Chief of Psychology) all unequivocally agree with Dr. Stark's conclusions that Ebensburg staff simply lack the knowledge to manage residents' behaviors. Based on his observations of staff interventions at Ebensburg and his review of incident reports documenting instances where individuals are hurt when staff do not intervene early enough, Dr. Amado agrees with Dr. Stark that staff are not adequately trained to intervene to prevent or avoid harm to the residents of Ebensburg. Tr. 8/4/93 (Amado) at 44-45. Dr. Russo also concluded that there is a systemic failure to teach direct care staff in practical terms how to respond to behaviors and protect Ebensburg residents. Tr. 8/2/93 (Russo) at 79. Dr. Stratton agrees, as well, that Ebensburg direct care staff are not adequately trained in basic behavior management principles. U.S. Exh. 640 (Stratton Dep.) at 218-219.
Injuries occur time and again at Ebensburg due to staffs inability to intervene in a manner to prevent escalation of behaviors. Tr. 7/26/93 (Stark) at 118-119; Tr. 8/4/93 (Amado) at 44-45. In their review of injuries, both Dr. Stark and Dr. Amado agree that they reflect situations where residents act in ways that suggest they should be closely monitored but staff fail to adequately monitor and intervene, their behaviors escalate, and
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injuries result. Tr. 7/26/93 (Stark) at 119; Tr. 8/4/93 (Amado) at 47. For example, John B. was scratched all over his face and neck by David F. "who was attacking all ward individuals." U.S. Exh. 107 (John B. Inc. Rep.). Staff note that David's behavior started while in the dining room and continued back in the living area. Id- Earlier in the day on January 19, 1992, James S. had been restrained in a papoose board due to his aggressiveness, but continued to disturb others after being released. At 10:30 a.m., James hit Ibrahim D., and Ibrahim kicked James about 10 times in the head and face before staff could separate them. U.S. Exh. 107. The Unit Manager at Villa, where the incident between James and Ibrahim took place, agrees that early intervention is the "key" to stopping aggressive behaviors. U.S. Exh. 607 (Degretto Dep.) at 163. She acknowledges that in order to intervene early, staff have to know the antecedents of the aggressive behaviors and have to know the resident. U.S. Exh. 607 (Degretto Dep.) at 163. She also identifies "positive approaches" and "communication" as big factors in early intervention. U.S. Exh. 607 (Degretto Dep.) at 163. This is the same unit where the incidents involving Joe C. took place. Sg£ discussion supra § V.D.
The videotape taken by Dr. Russo during his tour of Ebensburg further documents the inability of staff to effectively intervene in client behaviors. Tr. 8/2/93 (Russo) at 89; U.S. Exh. 260. In one segment, a staff trainee tries (unsuccessfully and then just gives up) to get David W. to wear his helmet. Because David engages in the behavior of toe walking, and is prone to falls, David must wear a helmet to prevent injuries. David had fallen three times in the previous six months, each time requiring numerous sutures, Tr. 8/2/93 (Russo) at 89, and has sustained numerous serious injuries due to falls because he refuses to wear his
V-34

helmet. Tr. 8/2/93 (Russo) at 90. Ebensburg has not provided behavior programs for either
helmet tolerance or toe walking for David. Tr. 8/2/93 (Russo) at 89-90. Dr. Alvarez
testified that the neurologist at Ebensburg is failing to involve the psychologists in
development of helmet tolerance programs for those Ebensburg residents who need them.
Tr. 7/30/93 (Alvarez) at 206-207.
Both Dr. Stark and Dr. Amado also reviewed a number of occurrence reports and
progress notes in records where individuals were self abusive to the point that they caused
injuries to themselves. Id. United States' Exhibits 107 and 591 include a number of such
examples. These incident reports also raise concerns about insufficient levels of staffing as
well as concerns that staff are inappropriately leaving clients alone when the individuals'
behaviors demand attention. Tr. 8/4/93 (Amado) at 47. For instance:
• Vincent P. has been allowed to continually pound his face with his fists to the point that he causes bruises, open wounds, and bleeding on his face. United States' Exhibit 591(a) contains examples of fifteen such instances where staff permitted Vincent to injure himself. For example, on October 2, 1992, he punched his left and right cheeks causing swelling and abrasions on both cheeks. On December 17, 1992, he punched his face until his cheek bled. On April 1, 1993, he hit his face with his fist while a speech therapist was assessing his language skills. Staff observed him as he "smeared blood around his mouth and cheeks" until the blood was finally wiped from his hands. Tr. 7/26/93 (Stark) at 119; U.S. Exh. 591.
• On February 15, 1993, staff saw Franklin B. slapping his face and banging his head against the wall. Staffs response was to notify the nurse, who found Franklin still actively slapping his face and banging his head when she arrived. Id.
• On February 23, 1993, Gordon A. started beating himself during the night. The next day he was found to have reddened areas on his inner legs, upper chest and face, upper and lower arms, a lacerated lip and blood around his two front teeth. Id.
• On July 8, 1992, while leaving for her break, a staff person found Jonathan B. with a laceration over his eyebrow that required 10 sutures. His incident report notes that he was "screaming and carrying on all morning" and self-abuse is suspected. Id.
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• On March 18, 1992, Francis R. was biting and slapping himself for several hours. He threw himself out of his wheelchair, banged his head on the floor, and bit his wrist. Francis suffered open areas, bleeding, an abrasion, and discoloration under his eye. Id.
• On September 26, 1992, Richard M. had been engaging in self-injurious behavior and moving furniture around since about 3:00 p.m.. Approximately three hours later, at 6:00 p.m., dining room staff discovered Richard with blood on his clothing and his finger bleeding. Part of his fingertip was amputated. U.S. Exh. 107.
• On April 21, 1992, Stephen D. was allowed to pound his ear until it bled following a change in his daily routine, in spite of the fact that staff are well aware that Stephen is very sensitive to changes in his daily routine. U.S. Exh. 107.
Dr. Stark explained that if an individual begins hurting him or her self, at the very
least, staff should be intervening to block the behavior and re-direct the person to meaningful
activities. Tr. 7/26/93 (Stark) at 120. He did not see this occurring during his tour nor did
he see it reflected in the sequence of events described in occurrence reports. Tr. 7/26/93
(Stark) at 120-121.
Even the facility director, Alan Bellomo, has documented a number of instances
where he has observed individuals who were self-abusing themselves without staff
intervention. Tr. 7/26/93 (Stark) at 122-123; U.S. Exh. 200-206. In reviewing these
memoranda, Dr. Stark found that not only did they confirm his findings that staff fail to
intervene when residents are actively involved in self-injurious behavior, they also represent
a systemic failure at Ebensburg where residents continue to be injured and harmed, even
where Mr. Bellomo has focused on them and directed staff to take action. Tr. 7/26/93
(Stark) at 123. For example:
• On September 10, 1992, Mr. Bellomo observed Theresa B. delivering three slaps to her face of varying intensity during a 60 second period. U.S. Exh. 200. Mr. Bellomo admits that this is an "unacceptable" situation. U.S. Exh. 603 (Bellomo Dep.) at 55-56. Theresa has a history of self abusive behavior, including slapping her face and pounding her
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head on the floor. She has been found with black and blue and swollen lips, suspected to be the result of self-abuse. U.S. Exh. 200 (6/24/92 Inc. Rep.). Despite Theresa's history and his observations, Mr. Bellomo determined that her three year old behavior program was acceptable but, in a written note to the Unit Manager, stressed the importance of consistently implementing her program. U.S. Exh. 200. The very next day, Theresa was found in the dining room with blood on her face. As a staff person approached her, "she started to slap her face extra hard making the blood flow more and spraying the blood around." U.S. Exh. 200 (9/15/92 Inc. Rep.).
• On August 27, 1992, Mr. Bellomo observed Lee V. slapping his face 15 times in a 60 second period with no staff intervention. U.S. Exh. 203. Two weeks later, Mr. Bellomo again observed Lee V. delivering 12 blows to his face and pounding his chest two times in a 60 second period without any staff intervention. U.S. Exh. 204. This is the same resident who is delivering blows to his face on the United States' feeding videotape without any staff intervention. U.S. Exh. 258.
There are other occasions where Mr. Bellomo has witnessed and documented
residents engaging in self-injurious behaviors where staff do not intervene to stop or block
the abuse. Tr. 7/26/93 (Stark) at 123. Incidents of uninterrupted self-abuse that Mr.
Bellomo witnessed and documented during the month of September 1992 as he toured the
facility include:
• James B. hitting himself in the head twelve times in a 30 second period. U.S. Exh. 202.
• Roberta V. striking herself approximately five times in the head. U.S. Exh. 205.
• Michael B. slapping himself on the head four times in rapid succession. U.S. Exh. 206.
• David G. delivering "five slaps of significant intensity to the side of his face." U.S. Exh. 201.
• T.V. slapping her face hard while waiting for her delayed lunch to arrive. At the same meal, Joyce Y. delivered eight punches to her face from the time she entered the door until she sat down at the table. U.S. Exh. 165(c) at 2.
• Theresa C. slapping her head while being fed. U.S. Exh. 165(b). • Gwen C. delivering five blows to her chest. Tr. 7/29/93 (McGowan) at 141.
When Mr. Tackett worked on the second shift in Keystone on April 4, 1992, staff
allowed James E., who was exhibiting serious self-abusive behavior by punching his head
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and ear, to go back into his bedroom area unsupervised. Tr. 8/3/93 (Tackett) at 22; U.S. Exh. 138.
The finding by all three psychology experts that staff at Ebensburg are failing to intervene appropriately when residents are exhibiting potentially dangerous behaviors has been corroborated by surveyors for the Commonwealth as recently as October 1993. During their most recent survey of Ebensburg, state surveyors found that Ebensburg staff were unable to demonstrate the skills and techniques necessary to administer interventions to manage the inappropriate behavior of the clients. Based on observations conducted during various times throughout the day in every single residential building at Ebensburg, "individuals were engaged in stereotypic, self-stimulatory and self-injurious behaviors including spinning, rocking, finger flicking, hand slapping, hand mouthing, playing with saliva, mouthing objects and clothes, face slapping and biting. Staff intervention was minimal." U.S. Exh. 1103 at 6. One of the State surveyors in the October 1993 MA survey characterized this citation as a "systemic deficiency" at Ebensburg. Tr. 12/13/93 (Bordner) at 217-218.
F. Ebensburg Is Failing. Svstemicallv. To Determine The Causes Of Injuries And Take Preventative Action To Protect Residents. 1. Ebensburg Fails To Take Adequate Action Even In The Face Of Repeated. Serious Injury.
Dr. Stark concluded that Ebensburg is not fulfilling its responsibility to review injuries, determine their causes, and take adequate preventive steps to protect residents from harm. Tr. 7/26/93 (Stark) at 106, 130. He found Ebensburg's non-responsiveness to injuries to be a systemic problem. Tr. 7/26/93 (Stark) at 134. Sometimes staff will meet
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and acknowledge the injuries, but rarely do they actually take any effective action. Tr.
7/26/93 (Stark) at 130. Dr. Stark found that the three most frequent responses to injuries at
Ebensburg were to continue the same program, "monitor," or to change medications. Tr.
7/26/93 (Stark) at 130- 133. For example:
• James S. had the highest number of incidents at Ebensburg during the 50 month period between January 1989 and February 1993. Tr. 7/26/93 (Stark) at 130. During this time he sustained more than 200 injuries. United States' Exhibit 479 is a compilation of some of James' more recent incident reports, along with Ebensburg's own summary chronicling its inaction in the face of continuing, significant injury and repetitive harm. Tr. 7/26/93 (Stark) at 131-132. For 40 injuries between March and October 1992, Ebensburg's only response is "no change to IHP (individual habitation plan)" and "behavior plan to continue," with the exception of a recommendation to start a psychotropic medication, a recommendation to change his living area, and a notation that James was "counseled" after he ripped off his toenail. Tr. 7/26/93 (Stark) at 131; U.S. Exh. 479. There is no response to his injury on June 23, 1992, when he put his head through a glass window in the dining room. U.S. Exh. 479 at 00050469. James' case is also illustrative of Ebensburg's failure to intervene at an early stage to prevent self-injurious behavior, despite James' known history of inflicting wounds to his head with sharp objects. Tr. 7/26/93 (Stark) at 132. For example, on July 13, 1992, James came into the day room with blood on his hands and face. He showed staff that he had stabbed himself on the forehead with a pair of scissors. Tr. 7/26/93 (Stark) at 132. His occurrence report notes that he had been crying all day and was upset because his parents did not attend the family picnic. Tr. 7/26/93 (Stark) at 132; U.S. Exh. 479. According to Pennsylvania Office of Mental Retardation policy, leaving a resident who requires supervision unattended or allowing a resident access to harmful substances such as chemicals and sharp instruments constitutes neglect. Tr. 10/19/93 (O'Brien) at 61.
• Ebensburg's most frequent response to Greg A.'s 24 injuries in 20 months between August 1991 and April 1993 was that staff should "monitor," and "monitor more closely." U.S. Exh. 279 (substituted) (attached).
• Ebensburg's response to Andrew H.'s frequent serious injuries has varied from commenting that his "laceration is clean and dry; should heal" to "no change in ATP (active treatment plan)." U.S. Exh. 778 (attached).
• On October 5, 1992, Dr. Goldschmidt, Ebensburg's consulting psychiatrist was concerned that Gary K. was possibly being abused. U.S. Exh. 360. She asked staff to observe whether he was being abused and stated that she wanted to see him "next time I come." Id. Dr. Goldschmidt did not see Gary again until some five months later - March 3, 1993. Id. In the meantime, Gary continued to suffer significant injuries. For example, several weeks following Dr. Goldschmidt's consult, he was found to have a bloody bruise
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under his eye when he returned from his day programs. Id. Later in the day, he was bitten on the arm. In November 1992, Gary returned from his day programs with a laceration on his face that require seven sutures. In January 1993, he was kicked in the head, suffering an abrasion on his nose and swollen areas around both of his eyes. Id. In February he was hit in the eye by another resident and suffered a comeal abrasion. Id.
2. Ebensburg Administrators Are Not Cognizant Of Injury Trends.
Key administrators at Ebensburg are not even aware of the injury trends of residents at their facility. As of February 25, 1993, Mr. Bellomo thought that there had been a facility-wide decrease in the number of injuries and accidents, when in fact there had been more than a 40% increase in the number of injuries at Ebensburg in the past twelve months and the overall number of incidents at Ebensburg in 1992 was higher than it had been since 1989. Tr. 7/2/6/93 (Stark) at 88, 96; U.S. Exh. 601 (Bellomo Dep.) at 26.f/ As of late February 1993, Mr. Bellomo also thought that the percentage of unwitnessed injuries had "continually decreased" at Ebensburg, when in fact the rate had increased by 52% in the prior twelve months. Tr. 7/26/93 (Stark) at 105; U.S. Exh. 92; U.S. Exh. 601 (Bellomo Dep.) at 128. Mr. Bellomo admits that "[o]ne unwitnessed incident is unacceptable to me. I, as an administrator, feel that it is incumbent upon us to know and to put things into place that is going to make the environment as safe as possible." Tr. 10/14/93 (Bellomo) at 45, lines 2-5. Mr. Fulton, who heads the risk management committee, however, has never initiated an investigation to look at trends of injuries with unknown causes. U.S. Exh. 614 (Fulton Dep.) at 79-80. The only routine written report generated by Ebensburg concerning trends with respect to injuries caused by unknown causes is Mr. Fulton's annual report of all
^J Even accepting Ebensburg's distinction between incidents and injuries, there was still a 37% increase in injuries in the twelve months preceding Mr. Bellomo's deposition.
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facility accidents. U.S. Exh. 614 (Fulton Dep.) at 77-79. As of the time of his deposition in January 1993, Dr. Stratton thought that Ebensburg was "getting close" to the point where there were no injuries due to behaviors, when, in fact, injuries due to behaviors had increased by 45% in the past 12 months and constituted 34% of all incidents. U.S. Exh. 640 (Stratton Dep.) at 209-210; Tr. 7/26/93 (Stark) at 105.; U.S. Exh. 91. Ebensburg has never attempted to identify individuals whose behaviors pose the greatest risk in terms of injury to themselves or to other people. U.S. Exh. 639 (Stratton Dep.) at 67. Dr. Chamovitz does not review computer data or incident reports regarding seizure-related injuries. U.S. Exh. 606 (Chamovitz Dep.) at 157.
Ebensburg's Director of Nursing only reviews occurrence reports involving fractures, sutures, and lost teeth. U.S. Exh. 636 (Sponsky Dep.) at 49. Although she believes that bite injuries raise significant health concerns, she does not review any incident reports that involve bites. Id. at 51. Ms. Sponsky did not review incident reports involving three separate residents' broken limbs discovered on October 18, November 10, and November 12, 1992, until late November 1992. U.S. Exh. 638 (Sponsky Dep.) at 118. Although she reviewed all three of these incidents on the same day and each one of the fractures was discovered with no known cause, Ms. Sponsky did not investigate the circumstances surrounding any of these incidents. Id. at 119. She does not evaluate occurrence reports to ascertain if they present any common problems, or even to see if they present nursing care issues. Id. Ms. Sponsky stated on the first day of her deposition that her primary purpose in reviewing occurrence reports is only to look at whether the nurse documented the injury and treatment on the occurrence report form with sufficient specificity. Id. at 50-51. The
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very next day, Mr. Bellomo wrote her a memo directing her to expand the scope of her incident report review. U.S. Exh. 638 (Sponsky Dep.) Exh. 41. Ms. Sponsky had no idea why Mr. Bellomo wanted her to do this and, as of one month later, still had not identified any issues as a result of her review. U.S. Exh. 638 (Sponsky Dep.) at 121-122.
Mr. O'Brien agrees that "if somebody has an occurrence, we need to check it out right away." Tr. 10/19/93 (O'Brien) at 59, lines 5-6. It was not until March 1993, however, that Ebensburg initiated daily risk management meetings to discuss injuries. Tr. 10/19/93 (O'Brien) at 57. The decision to hold these meetings was made based upon discussion with an outside expert that Ebensburg hired for purposes of this litigation, and subsequently decided not to call as a witness at trial, to evaluate Ebensburg's risk management process "from a safety standpoint." Tr. 10/19/93 (O'Brien) at 57, lines 21-22.
An example of Ebensburg's risk management committee response to an injury is contained in United States' Exhibit 306. James B. has a history of self abuse by hitting his face. U.S. Exh. 306 (ambulance report). He has suffered nosebleeds in the past due to his self-abuse. U.S. Exh. 136 at 0091505. On June 18, 1993, James was sent to the emergency room via ambulance for a severe uncontrolled nosebleed which Ebensburg determined was due to self-injurious behavior. Id.; U.S. Exh. 946.^/ James' nose was packed at the hospital and he was returned to Ebensburg, where he repeatedly pulled out the packing in his nose. U.S. Exh. 306 (progress notes). The next day, while administering medications the nurse "noted packing in outer part of nose gone and blood oozing on face." Id. Later that
fV The cause of James' nosebleed is listed as a " 14" for self-injurious behavior in United States' Exhibit 946.
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evening, an aide found his elbow bleeding with a "deep and gaping" laceration which required sutures. Id. On June 21, 1993, James was noted to be self abusive by slapping his face "frequently." Id. Ebensburg's risk management committee met on June 21, 1993 to discuss his nosebleed and his lacerated elbow. The committee's resolution of his lacerated elbow was "To be monitored—probably struck elbow on chair/table." The resolution of his nosebleed was "sharp fingernails trimmed and filed. Follow up on 6/22." Id. The "followup" that occurred on 6/22 consisted of the notation "nails were cut—probably causal factor." As of July 12, 1993, James' behavior plan for his self-injurious behavior of head banging, face slapping, and picking scabs and sores had not been revised since January 28, 1987. Id.^/ According to Mr. O'Brien, following every behavior episode such as SIB, the daily risk management committee is "requiring the team to sit down and do an occurrence report for SIB behavior, forcing the unit team to review the behavior management program for that person, to do functional analysis, to make sure that we know what it is causing the behavior, to try to attempt to deal with that behavior." Tr. 10/19/93 (O'Brien) at 56-57, lines 1-6.
Following depositions of Ebensburg administrators and staff where recommendations on occurrence reports were explored (including recommendations made by Betty Ferut, a direct care staff worker, about the need for more staff, better supervision, and fewer nonclient care responsibilities), the executive staff sent a memorandum to all Unit Managers reminding them that occurrence reports are "a serious document, read by many." Tr. 10/15/93 (Bellomo) at 17; U.S. Exh. 982; U.S. Exh. 611 (Ferut Dep.) at 25; Ferut Dep.
?V The date at the end of the behavior program reflects when the program was last revised (except for minor revisions where the date may not be changed). U.S. Exh. 640 (Stratton Dep.) at 149.
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Exh. 1. The memorandum cautions that "editorial comments and recommendations that are known to be impossible to carry out only serve to delay an already complex process."
3. Ebensburg Fails To Protect Residents Even When Directed To Do So.
As the Director of the Bureau of Direct Program Operations of the Commonwealth Office of Mental Retardation, Dr. Sneed was responsible for the nine state operated mental retardation facilities and the three mental retardation units on the grounds of State mental health centers. U.S. Exh. 635 (Sneed Dep.) at 14.ff/ He was responsible for ensuring that these facilities were in compliance with federal, state, and local standards and regulations and live within their budget. U.S. Exh. 635 (Sneed Dep.) at 14. Dr. Sneed was also responsible for ensuring that residents at these facilities and units "maintain a suitable quality of life, that they receive proper medical care, nursing services, and other quality of life issues." U.S. Exh. 635 (Sneed Dep.) at 15, lines 1-3. He was further responsible for ensuring that residents receive proper programming. U.S. Exh. 635 (Sneed Dep.) at 15.
On November 19, 1990, Dr. Sneed issued a memorandum to all facility directors, including Mr. Bellomo at Ebensburg, regarding the need for improved reporting of steps taken to prevent the occurrence of client assaults on other clients. U.S. Exh. 635 (Sneed Dep.) Exh. 1. In the memorandum, Dr. Sneed directed that:
as a matter of routine reporting procedures, whenever an assault allegedly occurs between clients (with the victim receiving bruises, contusions, fractures, etc.), I am requesting that you direct all supervisory staff to describe which steps are being taken to prevent both parties in the assault from experiencing a
fV Mr. Bellomo testified that at sometime during the trial of this case, Dr. Sneed left this position. Tr. 10/14/93 (Bellomo) at 132-133.
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recurrence of that assault. By December 7, 1990, all MR-34's [occurrence reports] dealing with one client assaulting another must describe the steps taken to prevent recurrence of behaviors for both clients involved in the assault. To merely state that the victimizer (in the assault case) had never been involved in any other assault is not sufficient. Instead, we need to know what's being done to prevent any subsequent assaults from occurring.
Tr. 7/26/93 (Stark) at 137-138; U.S. Exh. 225; U.S. Exh. 635 (Sneed Dep.) Exh. 1. Dr. Sneed states that a response by the supervisor in the "Recommendations for Prevention of Recurrence" section on the back side of the occurrence report that "closer observation or monitoring of the assault victim" is not sufficient. U.S. Exh. 225. "We also need to know what is being done to prevent the assaultive person from victimizing clients." Id. Dr. Sneed's directive in this memorandum was still in effect as of March 16, 1993. U.S. Exh. 225; U.S. Exh. 635 (Sneed Dep.) at 21. The types of preventive measures that Dr. Sneed envisioned were necessary as a result of his memorandum were: moving a person to another living area, engaging a resident in counseling, or developing or revising a behavior program. U.S. Exh. 635 (Sneed Dep.) at 21, 23. Although Dr. Sneed's intent in issuing this memorandum was to ensure that State centers spell out steps they are taking to prevent a reoccurrence of any incident, he does not know if any steps were taken at Ebensburg. U.S. Exh. 635 (Sneed Dep.) at 20-21.
Two months after Dr. Sneed issued his directive to all facility directors, Debra S. sat down next to Sandra W., who turned and bit off a piece of Debra's nose. U.S. Exh. 477. The piece of nose that Sandra bit off was placed in saline and Mercy Hospital attempted surgery to repair the wound, but Debra's nose could not be restored. U.S. Exh. 477. At the time of the incident, staff were aware that Sandra had bitten five individuals, including 3
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staff and 2 peers, in the past several weeks. U.S. Exh. 477. "Being that Debra can't defend herself against [Sandra]" and that "[Debra] is the one that [Sandra] goes after all the time," staff recommended that Debra be moved away from Sandra. U.S. Exh. 477. Sandra bit Debra again on July 31, 1991, November 4, 1991, April 23, 1992, and June 1, 1992. U.S. Exh. 267(c).
Shortly after the event involving Debra S., Dr. Sneed followed up with a specific request regarding two incident reports involving Ebensburg residents. U.S. Exh. 226. The first incident occurred at 7:30 a.m. on February 13, 1991, where Eileen G. was found bleeding from a two inch deep laceration on her scalp which required five sutures. U.S. Exh. 226 at 00002994. Staff were busy with morning care and "there was no witness to how Eileen hurt herself." W. at 00002995. Four staff were back in the bedrooms and one staff was coming out of the bedroom. They speculated that Ruth J. pushed her because Ruth (Client #1152) was "pushing others down all morning." Id. at 00002994 and 00590470.??/ Despite Dr. Sneed's specific interest in Eileen G., Ebensburg did not take the types of steps that he envisioned as preventive measures. Eileen was not moved to a different living area and she continued to be victimized by Ruth and others. U.S. Exh. 360 (attached); U.S. Exh. 136 at 00003399. After six months of suffering a number of additional serious injuries from aggressive acts, Eileen was finally transferred to another living unit. U.S. Exh. 360. Her interdisciplinary team was concerned, however, that she would cause injuries to other residents in her new living unit. Id. Indeed, in the following seven months, her progress
*/ Several months earlier, on December 12, 1990, Ruth was also the cause of an injury to Eileen where her eyebrow was lacerated and ethistrips had to be applied. U.S. Exh. 136 at 00003399.
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notes document at least 23 instances of pushing, shoving, punching, slapping, and hitting other residents, knocking them to the floor from their wheelchairs, stepping on them, sitting on top of them, and pulling their arms and hair. U.S. Exh. 360.
The other incident in Dr. Sneed's memo involves George F. who bit James R.'s toe so hard on February 9, 1991 that he fractured it. Tr. 7/26/93 (Stark) at 144; U.S. Exh. 226. Dr. Sneed specifically requested Mr. Bellomo to examine the circumstances surrounding this incident and to respond by discussing the:
program that has been designed to limit/ reduce his behavior. If such a program doesn't exist, have staff outline how the program will be developed and implemented (including target dates(s) for implementation). Our concern is the client will continue to bite (attack) other relatively defenseless individuals. Mr. Bellomo never provided Dr. Sneed with a written response. Tr. 10/14/93 (Bellomo) at 134. In fact, despite Dr. Sneed's specific request in February 1991 for a behavior program with implementation dates, Ebensburg has yet to provide George with a behavior program to address his biting. Tr. 7/26/93 (Stark) at 144. The only action that Ebensburg has taken is to increase George's Haldol and, some sixteen months later, to begin taking data on George's biting behavior. U.S. Exh. 348. As was Dr. Sneed's specific concern, George has continued to bite a number of other Ebensburg residents. George has bitten or was suspected to have bitten at least 19 residents between March 1991 and March 1993. U.S. Exh. 348 (attached). He has bitten people on the thumb, arm, upper and lower back, and shoulder and continues to bite residents on their toes, feet, and ankles. In August 1992, George was suspected to have been the cause of Charles R.'s partially amputated toe tip which was discovered by staff when they found blood on Charles' sock with part of his toe, "jagged,
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hanging, and cyanotic." Id. Charles had to be sent to the emergency room. In March 1993, the psychology services associate who works in Charles' living unit noted that he would complete a functional analysis on George's biting "within the next three weeks." Id.; U.S. Exh. 348(a). In fact, George did not have any type of behavioral evaluation until three months later. U.S. Exh. 348. The only recommendations to come out of the evaluation were: (1) collect behavior data; continue Haldol therapy; (2) frequent visual monitoring; and (3) redirection of behavior. Id.
James B. also frequently bites other Ebensburg residents. In the 19 months between February 1992 and August 1993, James B. (resident # 1102) bit other individuals living at Ebensburg on 24 different occasions. U.S. Exhs. 267(c), 926, 86O.f/ Ebensburg's responses on occurrence reports to James' biting fail to address Dr. Sneed's directives that notations such as "closer observation or monitoring of the assault victim," and "isolated incident" are not sufficient; "instead, we need to know what's being done to prevent any subsequent assaults from occurring." U.S. Exh. 225. In occurrence report after occurrence report involving James B., staff simply report that "closer monitoring" is needed and "no further action" is required.^/ After James had bitten people 17 times in 15 months, staffs
"/ On Ebensburg's computer summary of incident reports (U.S. Exhs. 135, 136), a pound sign (#) followed by a number in the column describing the incident represents the client number of the aggressor who caused the injury. Tr. 10/19/93 (O'Brien) at 52. f/ See, e^g., the following occurrence reports in United States' Exhibit 267(c): 2/2/92 Inc. Rep. for Michael B. (try to keep him away from James B.; no further action at this time); 8/7/92 Inc. Rep. for Michael B. (keep James B. away; no further action); 8/20/92 Inc. Rep. for Michael B. (staff again reminded to intervene and separate James B. and Michael B.; no further action at this time); 10/21/92 Inc. Rep. for Michael B. (staff again instructed to keep James and Michael separated); 11/18/93 Inc. Rep. for Michael B. (no programming change indicated; no further action at this time); and 7/16/92 Inc. Rep. for Estelle M. (staff to continue to monitor; no further action at this time).
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recommendation for prevention of recurrence on his occurrence report is "this was an isolated incident; although #1102 (James B.) has history of this behavior it is infrequently seen; continue current plan." U.S. Exh. 926 (5/17/93 Inc. Rep.).
Clifford P. is another example of Ebensburg's failure to take adequate action to address behaviors and protect residents despite heightened attention at the State level. Tr. 7/26/93 (Stark) at 147. The Pennsylvania Department of Public Welfare placed Ebensburg on a provisional license in 1990 as a result of the State's concern about how Ebensburg responded to sexual incidents, precipitated by Clifford's sexual behaviors towards other residents. Tr. 7/27/93 (Stark) at 66-67; U.S. Exh. 603 (Bellomo Dep.) at 112-114.!!/ According to Mr. Bellomo, the State surveyors were "most concerned" about an incident, documented in Clifford's program, that he "molested" another resident. Id. Since 1990, Clifford has been found engaging in sexual activities on numerous occasions, including engaging in anal sex and "sniffing behavior." Tr. 10/14/93 (Bellomo) at 116. In its 1990 plan of correction to address the State's concerns about Clifford, Ebensburg promised to develop a comprehensive, individualized plan for him. U.S. Exh. 57 at 00004049. In fact, however, Ebensburg did not even develop a behavior program to specifically address Clifford's sexual behaviors until December 4, 1992 — more than two years later despite the fact that Clifford's behaviors continued. U.S. Exhs. 440; 440(a) at 00390065; U.S. Exh. 780. For example, in August 1992, he was found laying on top of a resident who was naked, except for her bra. U.S. Exh. 440; U.S. Exh. 440(a) at 0076449. In September
*/ This is not the only time that the Commonwealth has placed Ebensburg on a provisional license in the recent past. In 1991, the Commonwealth again placed Ebensburg on a provisional license. U.S. Exh. 1101. In the following year, State surveyors through the inspection of care process again had concerns about repeated deficiencies that Ebensburg failed to correct. U.S. Exh. 1101.
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1992, Clifford's unit manager made a special request for help with Clifford: "We think he needs some counseling or teaching other than what we can offer. Can you arrange or help or advise?" U.S. Exh. 440(a) at 00200810. Mr. Bellomo reviewed this request. Tr. 10/14/93 (Bellomo) at 117-118. Clifford was not even assessed by a sexuality counsellor until January 1993 — three and a half months later. U.S. Exh. 440. In the interim, Clifford was involved in at least seven sexual incidents with other Ebensburg residents. Id. Following Clifford's assessment, it took another two months to get a recommendation from the assessor. In the meantime, Clifford was found face down between another resident's rectal area. Both residents were naked. Id- When Clifford's interdisciplinary team received the recommendation from the assessment it took several weeks before the team actually met to discuss it. Tr. 10/14/93 (Bellomo) at 122; U.S. Exh. 440. The recommendation was that Clifford needed counselling. Id. This is the same recommendation that State surveyors had made two and a half years earlier and the Unit Manager again made some nine months earlier. Id.; Tr. 7/26/93 (Stark) at 61.^J Clifford's team met on April 5, 1993 and planned a meeting with Mr. Bellomo to secure funding for counseling. U.S. Exh. 440; U.S. Exh. 440(a) at 00390216. Clifford's inappropriate sexual behaviors continued. U.S. Exh. 440. As of six months later, at trial on October 14, 1993, Mr. Bellomo still did not know whether the counselling had even started. Mr. Bellomo stated:
Clifford had an appointment to see Dr. Farr - it was either last week or within this next week. I mean it is scheduled. He is to — he is going to State College to meet with Dr. Farr.
*/ Mr. Bellomo specifically stated in deposition testimony read at trial that the State surveyors thought that "I needed to have counseling for people who were having difficulty with expressing their sexuality." Tr. 7/26/93 (Stark) at 67, lines 12-14.
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[Q: So it hasn't take place yet; is that correct?] A: No, not with Dr. Farr; or if it did, it just took place. Tr. 10/14/93 (BeUomo) at 123, lines 1-6.
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VI. EBENSBURG FAILS TO PROVIDE RESIDENTS WITH MEANINGFUL, PURPOSEFUL ACTIVITY IN BOTH THE LIVING ENVIRONMENT AND IN DAY PROGRAMS, RESULTING IN HARM. Based upon his observations during his tour as well as his review of documents, Dr.
Stark concluded that it is evident that a lot of the injuries occurring at Ebensburg are the result of behaviors that reflect boredom and a lack of stimulation and meaningful things to do. Tr. 7/26/93 (Stark) at 124. In a setting where individuals with mental retardation must co-exist with 23 other bored mentally retarded individuals, dangerous behaviors can develop. People can turn inward and develop self-injurious behaviors or they can turn outward and become aggressive. Id. Individuals also learn the maladaptive behaviors of others and imitate them because they have not learned more appropriate behaviors. Id. The development of these behaviors due to a lack of stimulation and meaningful things to do results, inevitably, in the pattern of harm that Dr. Stark has described. Id.; U.S. Exh. 575 (attached); se£ discussion supra § n, and infra § VI.B.7
Defendants, including their psychology expert, do not dispute the existence of the pattern of harm. Defendant Nancy Thaler, the Director of the State Office of Mental Retardation, readily acknowledged that it is a commonly accepted principle that individuals with mental retardation are more likely to develop maladaptive behaviors if they are not provided with appropriate meaningful activities throughout the day. U.S. Exh. 870 (Thaler Dep.) at 55. Mr. Bellomo agreed that maladaptive behaviors are more likely to occur if individuals prone to such behaviors are congregated without meaningful things to do. U.S.
V There are a greater number of incidents and injuries during times when clients at Ebensburg are on their living units without anything to do. Tr. 8/4/93 (Amado) at 66; U.S. Exh. 658.
VI-1

Exh. 603 (Bellomo Dep.) at 116. In Dr. Reid's words, "[t]he more programming with meaningful activities that go on, generally the fewer accidents and injuries that occur." Tr. 9/16/93 (Reid) at 35. Dr. Reid agreed that maladaptive behaviors are usually reduced if individuals who are mentally retarded are engaged in meaningful activities. Tr. 9/16/93 (Reid) at 45.
A. Ebensburg's Living Environment Is Harmful. Both Dr. Russo and Dr. Stark found that the concept that drives Ebensburg is the accomplishment of custodial care routines as opposed to the needs of individual clients. Tr. 8/2/93 (Russo) at 35-36; Tr. 7/26/93 (Stark) at 223. Dr. Russo found that the typical Ebensburg day consists of wake-up time, dressing time, medication time, waiting for the bus time, programming time, after programming time to sit around and wait for dinner, dinner time, medication time, and bathing time. Tr. 8/2/93 (Russo) at 35-36. Ebensburg's own documents confirm this finding. For instance, when Mr. O'Brien criticized the lack of activity at about 8:40 p.m. in Laurel House one night, the unit director defended the lack of activity by stating that 8:40 p.m. "is not program or activity time. This is bathing and medication time and treatment time." U.S. Exh. 180.
1. Ebensburg's Living Areas Are Barren And Lack Meaningful Activity. All three of the United States' psychology experts agree that time spent by residents on the residential living areas at Ebensburg, where residents spend the vast majority of their day, is filled with idleness and boredom. Tr. 7/26/93 (Stark) at 124; Tr. 8/2/93 (Russo) at 32; Tr. 8/4/93 (Amado) at 57. Dr. Stratton, the head of Ebensburg's psychology department, also admits that Ebensburg's environment sometimes leads to boredom and
VI-2

frustration. U.S. Exh. 640 (Stratton Dep.) at 216. During his tours of Ebensburg, Dr. Russo observed barren living areas; living areas with insufficient or inappropriate materials or activities; and living areas with very insufficient staff interaction, programming and services. Tr. 8/2/93 (Russo) at 32. Dr. Russo repeatedly observed:
[Environments of care where clients were perpetually in a waiting state. They were waiting to go to bed. They were waiting to go get their medicines. They were waiting to be fed. They were waiting to be bathed. What waiting meant is that of the twenty-four individuals typically assigned to one side of one unit at Ebensburg, the great majority of them would be in this large open day room with little in the way of activities or materials for very significant parts of their day. Tr. 8/2/93 (Russo) at 32, lines 15-23. Dr. Stratton admitted that a fair amount of time on the living areas at Ebensburg is waiting time — waiting for medications, waiting to go to meals, waiting to go to programs. U.S. Exh. 640 (Stratton Dep.) at 217. Dr. Stratton further admitted that behavior programs will not be effective if there is not some meaningful activity that takes place throughout the day. Id. at 37-38. Dr. Russo memorialized this lack of activity on a videotape, taken on September 23, 1992, and entered into evidence as United States' Exhibit 260, which represents what Dr. Russo typically saw as he toured Ebensburg day after day. Tr. 8/2/93 (Russo) at 86. The videotape shows day rooms full of clients with nothing going on and staff rarely in evidence. On the tape, clients typically sit by themselves, in isolated and self-stimulatory or selfabusive activity, with staff wandering around providing little or no interaction with the residents, and with no meaningful activities occurring. Tr. 8/2/93 (Russo) at 82-89. The materials cabinets in the day rooms are sometimes closed and inaccessible even when all 24 individuals are present on the living unit, Tr. 8/2/93 (Russo) at 89, and when the cabinets
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are open, they are rather barren with many broken toys and other age inappropriate materials that clients seldom use. When clients use the toys, toys are used as self-stimulatory objects, instead of for their intended functions. Tr. 8/2/93 (Russo) at 83-84.
Ebensburg contemporaneously memorialized and confirmed the levels of inactivity that Dr. Russo observed in the fall of 1992. Tr. 8/2/93 (Russo) at 84. For instance, United States' Exhibits 179 and 180 are memos written by Mr. O'Brien the day following his tour with Dr. Russo on October 22, 1992. Tr. 8/2/93 (Russo) at 34. In United States' Exhibit 179, Mr. O'Brien confirms that at about 8:00 p.m. at Sunset House on September 22, 1992, in three of the four units, the touring party observed "nothing going on," "lack of materials," and "no materials out." In Exhibit 180, Mr. O'Brien confirms that at about 8:40 p.m. at Laurel House on September 22, 1992, in two of the four units, there were "no materials," "nothing was happening," and "clients milling around." On West II of Laurel House, there were no materials and a staff person was "guarding the door." U.S. Exh. 180.
Time and time again on the living areas, Dr. Amado also saw lack of materials and people milling around, pacing, sleeping, sitting, staring into space, self-stimulating, or becoming aggressive. Tr. 8/4/93 (Amado) at 57. At trial, Dr. Amado read from his dictated 1992 notes regarding his observations of a living area at Sunset House one evening. On that evening at about 8:00 p.m., Dr. Amado observed 22 residents sitting or walking around in a day room barren of materials and with no activities whatsoever being offered during what was supposed to be structured leisure time. Tr. 8/4/93 (Amado) at 63-64. While Mr. Bellomo was in Laurel House on August 18, 1992 during one of Dr. Amado's tours of Ebensburg, Mr. Bellomo was not satisfied that the individuals in West II were
VI-4

engaged in adequately meaningful activity. U.S. Exh. 601 (Bellomo Dep.) at 160. Dr. Amado found that the few activities provided to residents at Ebensburg are insufficient, not of interest to the residents, and do not comport with generally accepted standards in the field. Tr. 8/4/93 (Amado) at 72.
In Dr. Reid's words, "[t]here's certainly room for improvement" in the degree to which individuals at Ebensburg are involved in meaningful activities. Tr. 9/16/93 (Reid) at 11. Dr. Reid agreed with the United States' experts that there are certainly times when individuals at Ebensburg are not engaged in meaningful activities. Tr. 9/16/93 (Reid) at 12. Dr. Reid took data that supports the United States' experts' findings that there is little activity on the living areas at Ebensburg. For instance, in February 1993, Dr. Reid found that individuals on their living areas in the Sunset, Horizon, and Laurel Houses were engaged in meaningful activities only 10.6% of the time. U.S. Exh. 959.*/ Dr. Reid admitted that during his tours at Ebensburg, he observed some living units at Ebensburg that did not have sufficient materials to stimulate clients. Tr. 9/16/93 (Reid) at 95.V
Dr. Stratton and State surveyors agree that the lack of materials is a common problem at Ebensburg. U.S. Exh. 640 (Stratton Dep.) at 216, U.S. Exh. 794. During the November 1992 Medical Assistance survey of Ebensburg, Mr. Bordner, one of the surveyors, was
2_l Dr. Reid's figures are misleading in that they only measure individuals engaged in an activity with an apparent purpose with an age appropriate material. Tr. 9/16/93 (Reid) at 65. Dr. Reid concedes that there is a great deal more to active treatment than merely carrying out an activity with an apparent purpose. Tr. 9/16/93 (Reid) at 69. Dr. Reid made no effort to determine whether the activities he observed on the living units had any relation whatsoever to an individual's skills training programs. Tr. 9/16/93 (Reid) at 65-66. V In spite of his data and observations, Dr. Reid concluded that the level of meaningful activity on the living areas was "acceptable in regard to what's realistic and what goes on in service settings. I think there could be more, but, yes, I found it acceptable." Tr. 9/16/93 (Reid) at 38-39.
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particularly concerned with the lack of equipment in the living areas. U.S. Exh. 605 (Bordner Dep.) at 222; Tr. 12/13/93 (Bordner) at 219-220. Ebensburg was cited for its failure to provide adequate materials on the living areas. U.S. Exh. 794. When the MA surveyors went back to Ebensburg in October 1993, they again found inadequate materials on the living areas throughout the facility. U.S. Exh. 1103 at 7. Mr. Bordner characterized this deficiency as systemic. Tr. 12/13/93 (Bordner) at 218-219. Finding insufficient materials on the living areas at Ebensburg in 1993 again raised special concerns for Mr. Bordner. Id. at 218. Mr. Bordner was very concerned with the lack of materials at Ebensburg because if materials were provided, "individuals could engage their minds in some productive activity as opposed to whiling away their time doing nothing." Id. at 218, lines 20-22. Dr. Stratton admitted that there are not sufficient materials to stimulate individuals in all areas of Ebensburg. U.S. Exh. 640 (Stratton Dep.) at 216.
Surveyors from the Association of Retarded Citizens ("ARC") have also documented inadequate activities on the living areas. For instance, in June 1992 on Villa, between 4:00 and 6:00 p.m., residents were "waiting for dinner." U.S. Exh. 934 at 521156. On Sunset at 5:30 p.m., the surveyors observed "everyone just sitting around, lying down, wandering. No program materials visible. 4 residents inside dayroom unattended. Very little staff/resident interaction." Id. at 521158. The surveyors recommended that Ebensburg provide more structured activities between 4:00 and 6:00 p.m. They recommended that Ebensburg "brainstorm as to how to create more activities which would develop and encourage staff/resident interaction. Surely there are things that can be done." Id. In closing, the ARC surveyors stated that "there might be residents who would like to do
VI-6

something other than wandering, sleeping, or sitting around if interesting activities were developed." Id. at 521159.
Ebensburg Unit Managers have echoed the same types of deficiencies in their own living units. For example, in October 1992, Mr. Seymour, the Unit Manager of Laurel House wrote that clients and staff were "bored and uninspired" by the activities available on the living areas during the afternoon and evening and that more organization of activities was needed during this time. U.S. Exh. 194. As of his deposition two months later on December 4, 1992, Mr. Seymour still was not satisfied that there are sufficient activities for Laurel House residents during the evening hours until they go to bed. U.S. Exh. 631 (Seymour Dep.) at 61. Six months earlier, in June 1992, Diana D., a Laurel House resident who lives in West II, was found missing from her living unit in the evening. U.S. Exh. 594(a). West II is the same living area where Mr. Bellomo was dissatisfied with the lack of meaningful activity in August 1992 and where Mr. O'Brien found no materials and a staff person guarding the door in September 1992. U.S. Exh. 180; U.S. Exh. 601 (Bellomo Dep.) at 160. At the time that Diana was thought to have left West II, one staff person was on a supper break, one (who was not regularly assigned to the area) was in the bath area, and two staff were involved with a client who was choking other residents. A half hour later, Diana was found sitting in a staff person's car, reading a memo. Her occurrence report notes that she has eloped frequently and the reason she elopes is because she is looking for a quiet place to look at a book or magazine which "is nearly impossible" to do on West II because of the aggression of other residents. U.S. Exh. 594(a) at 50177. A staff person who has known Diana over the years recommends moving her to "a quieter, more
VI-7

peaceful ward." Id. She remained on West II, however, and in March 1993, a number of months after Mr. Bellomo, Mr. O'Brien, and Mr. Seymour all had specifically acknowledged the lack of activity on West II in Laurel House, Diana D. again left her living area. U.S. Exh. 594. This time, a local citizen found her walking down Route 160 without a coat. W. at 590695. Four of the staff who were on duty at the time that Diana left agreed that she leaves to find books or magazines, which she cannot have on West II because of the behaviors of other residents who steal them and aggress against her when she attempts to sit quietly looking at magazines. U.S. Exh. 594 at 590688-92. The same staff person who had recommended that Diana be moved nine months earlier again recommended that "she needs to be placed in a quieter living area where she would be able to sit undisturbed and look at books and magazines." U.S. Exh. 594.
2, Lack Of Meaningful Activity Is Particularly Acute In Keystone House. The videotape that Dr. Stark used during his direct testimony illustrates the lack of activity on living units in Keystone. Tr. 7/26/93 (Stark) at 159-169; U.S. Exh. 262.V There is a lack of staff interaction, and nothing for residents to do so they sleep, withdraw, and resort to self-stimulation. Tr. 7/26/93 (Stark) at 169-179. Most of the residents are down on the floor, grouped together on mats. Dr. Stark described these scenes of Keystone residents as "very disturbing." Tr. 7/26/93 (Stark) at 164. At one point, Michael F. maneuvers himself off of the mat and there are no staff present. Tr. 7/26/93 (Stark) at 165. When a staff person finally comes over, he jiggles a mirror in front of Michael and then
*/ Dr. Stark selected portions of the videotape taken by the FBI photographer of Keystone residents during the afternoon in August and November 1992. Tr. 7/26/93 (Stark) at 155-156. The scenes depicted on the videotape represent the same types of scenes that he observed during his February 1993 tour. Tr. 7/26/93 (Stark) at 164-165.
VI-8

pretends to be shooting him with a gun. Later, the staff person returns with a fly swatter. Tr. 7/26/93 (Stark) at 165. His interaction with the residents consists of swatting flies off of them. Tr. 7/26/93 (Stark) at 165.V On the videotape, another Keystone resident's head is sandwiched between vinyl bean bags. No one makes an attempt to reposition or move him. Tr. 7/26/93 (Stark) at 166. Other residents are on an air mattress. The one resident who is receiving attention from a staff person is responding. Tr. 7/26/93 (Stark) at 167. Tim P. is in his cart, staring at the ceiling. Dr. Stark found that Tim's "world is the ceiling." Tr. 7/26/93 (Stark) at 168. His fellow residents are also not receiving any staff interaction and are self-stimulating for sensation and to entertain themselves. Tr. 7/26/93 (Stark) at 168. One resident is completely doubled over in a chair in a fetal position. Tr. 7/26/93 (Stark) at 169. In footage taken in August 1992 in another area in which there are Keystone residents, a client is pounding on a screen. When Dr. Stark returned six months later, the same person was at the same window, doing the same thing. Tr. 7/26/93 (Stark) at 167.
Data collected by Dr. Reid regarding activity on the Keystone living units supports Dr. Stark's observations. In February 1993, Dr. Reid found that individuals on their living areas in Keystone House were engaged in meaningful activities only 1.3% of the time. U.S. Exh. 959. Dr. Reid testified that materials were particularly insufficient on units that served non-ambulatory clients. Tr. 9/16/93 (Reid) at 95.
Mr. Bellomo admits that ARC surveyors have had concerns about the lack of activity and staff interaction at Keystone. Tr. 10/15/93 (Bellomo) at 27. For example, in December
V Mr. Bellomo admits that he was "very concerned" when he saw this on the video. "It is clearly not what we expect in terms of interactions." Tr. 10/13/93 (Bellomo) at 154.
VI-9

1992, ARC surveyors observed little staff/client interaction in Keystone in the afternoon.

*h

U.S. Exh. 1027 at 2; Tr. 10/15/93 (Bellomo) at 27. For instance, in East I, 22 residents

were either flat in carts or on mats on the floor and some residents were sleeping but others

were not. Surveyors were told that this was "change of position time." Id. ARC told

Ebensburg that "this would be a time when staff really should be engaged in playing with, or

reading to, or listening to an audio tape with the individuals." Id. ARC further

recommended that Ebensburg implement the system for programming physically involved

clients that has been adopted at the Altoona Center, where Mr. Bellomo is also facility

director. Id.; Tr. 10/13/93 (Bellomo) at 130. Specifically, ARC recommended that

Ebensburg adopt the Altoona Center model of small groups with specific programs. Id.

Mr. Bonfanti made rounds in Keystone in late April 1992 and

was "upset" and "furious" with the lack of staff interaction in the living unit for which he is

responsible. U.S. Exh. 604 (Bonfanti Dep.) at 104-105. In his own words:

frankly I didn't find a whole heck of a lot of stuff going on. And to say the least, I was a little upset when I wrote this memo [U.S. Exh. 604 (Bonfanti Dep.) Exh. 7 requiring supervisors to make rounds]. I found that no supervisors were in the area [Correction sheet at 7]. I found very little staff interaction. I was furious. I met with them and what you would have expected me to say, I did say; and I then came out with the memo to let them know that I was quite upset.

U.S. Exh. 604 (Bonfanti Dep.) at 104, lines 23-25; 105, lines 1-5. He found that when the

supervisors are not out in the living areas, the staff are not doing anything; they are "sitting

and doing nothing." U.S. Exh. 604 (Bonfanti Dep.) at 105, line 17. Ms. Domino, who

serves as a supervisor at Keystone, confirms that she has observed situations where instead

VI-10

of staff interacting with Keystone clients as they should be, staff have been involved with putting clothes away and paperwork. U.S. Exh. 609 (Domino Dep.) at 22.
Mr. Bellomo admits that the number of recreational activities is limited for people who live on Keystone. Tr. 10/15/93 (Bellomo) at 31-32. Although Joe T. "appears to enjoy most activities," the recreation worker assigned to his unit notes in his "recreation participation review" for an entire year, from July 1992 to July 1993, that the sum total of Joe's activities consisted of "3 unit dances, 8 birthday parties, 2 VCR movies, 1 day camp, 1 halloween party, and was entertained by volunteers twice." U.S. Exh. 1017.
3. Ebensburg's Living Environment Fails To Meet Accepted Professional Standards.
In sharp contrast to the lack of meaningful activities and lack of stimulation in the living areas at Ebensburg, the field of mental retardation, in general, and the Commonwealth's and Ebensburg's policies, in particular, require that facilities provide an environment "conducive to therapeutic change." Tr. 8/2/93 (Russo) at 31; Tr. 7/26/93 (Stark) at 151; U.S. Exh. 30 at 7. Such an environment is important first and foremost because it reduces risk of harm and actual harm to individuals, and secondarily because it provides an opportunity for growth and development of new skills. Tr. 8/2/93 (Russo) at 3132. The development of a positive appropriate environment is one of the most important things that a caregiver can do to reduce maladaptive behaviors and reduce the risk of harm. Tr. 8/2/93 (Russo) at 29. An environment that offers richness of appropriate activities,
VI-11

materials, and goals to facilitate progress and the development of the individual basically also serves to reduce the likelihood of maladaptive behavior. Tr. 8/2/93 (Russo) at 29.V
Dr. Reid acknowledged that when individuals are not engaged in any type of activity, their environments are not therapeutic as required by the Commonwealth's 1988 Statewide Behavior Management Policy. Tr. 9/16/93 (Reid) at 94. Dr. Reid observed individuals at Ebensburg not engaged in activities, and therefore the environment at Ebensburg is not therapeutic during those times. Tr. 9/16/93 (Reid) at 94. Dr. Stratton admitted that the environment in the living areas at Ebensburg is not always positive and empathic. U.S. Exh. 640 (Stratton Dep.) at 216. He also admitted that there are times when the environment in the living areas is not therapeutic and supportive for the people who live there. U.S. Exh. 640 (Stratton Dep.) at 216.
4. Ebensburg's Living Environment Is Contributing To Residents' Maladaptive Behaviors.
Dr. Amado concluded that Ebensburg's living environment is so inadequate that its residents suffer intellectual harm, social harm, and emotional harm. Given the lack of materials and appropriate activities, residents fill the void by engaging in repetitive and purposeless self-stimulation, and, even worse, by abusing themselves or others. Tr. 8/4/93 (Amado) at 72. Dr. Stratton admitted that the environment in the living areas at Ebensburg contributes to maladaptive behaviors, including aggression and self-injurious and self-
6J The literature suggests, for example, that where an individual is engaging in pica for selfstimulation, the pica behavior will often decrease merely by enriching the environment. Tr. 8/2/93 (Russo) at 106. Mr. Bellomo agrees. With regard to pica, he states, "I don't think anyone would dispute the fact that being busy has a tendency to mitigate some of that behavior." Tr. 10/14/93 (Bellomo) at 15, lines 8-10. He adds that "I believe that being engaged in functional, appropriate, meaningful kinds of activities do, in fact, reduce the possibility of pica." Id. at 12-15.
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stimulatory behaviors, for some individuals at Ebensburg. U.S. Exh. 640 (Stratton Dep.) at 216-217.
Ms. Degretto, who is the Unit Manager at Villa, also agreed that dangerous behaviors and injuries occur when residents are on the living unit with nothing to do. She has found that when staff interact with clients, aggression is usually lessened. U.S. Exh. 607 (Degretto Dep.) at 124. For example, she identified Terry M. as one of the individuals who causes the most injuries in Villa — mainly by throwing chairs. She has found that "keeping Terry busy" reduces his aggressive behavior. U.S. Exh. 607 (Degretto Dep.) at 168-170. She further cited another Villa resident who was both aggressive and self-abusive. When staff gave him some specific things to do between 4:00 and 4:30 p.m., it led to a reduction in his behaviors. U.S. Exh. 607 (Degretto Dep.) at 123. At the November 1992 annual review of Winfield M., another Villa resident, his interdisciplinary team noted that his injury rate decreases when he is busy and that unstructured time leads to his maladaptive behavior. Tr. 8/4/93 (Amado) at 71. Veedia H., another Villa resident, was restrained 87 times for her behavior between January 1, 1992 and July 28, 1993. U.S. Exh. 993. Only 17 of these 87 restraints occurred during a weekday between the hours of 10:00 a.m. and 3:00 p.m., the hours that Ebensburg provides day programs. Thus, fully 70 out of 87 incidents of restraint for Veedia occurred during non-program time. U.S. Exh. 993.
These same themes are echoed by other Ebensburg staff. For example, in September 1992, an Ebensburg supervisor on Horizon concluded that clients need to be involved in more productive activities in their living areas after a client grabbed Albert K.'s wheelchair
VI-13

and tipped him backwards. U.S. Exh. 589 at 4. Albert fell to the floor, striking his head, and was unconscious for 8-10 minutes. U.S. Exh. 589 at 4; U.S. Exh. 589(a).
State surveyors have also been critical that Ebensburg fails to provide any meaningful activity during significant portions of the day, including periods before, during, and after medication administration. U.S. Exh. 794. For example, during October 1991, State surveyors observed Villa clients not doing anything between 3:30 p.m. and 4:00 p.m. U.S. Exh. 794 at 3. The surveyors observed clients standing around a table trying to self-initiate activities but staff prohibited them from using any leisure materials until "after the nurse gave medications." Medications were not even scheduled to be given until 4:15 p.m. U.S. Exh. 794 at 3. Ebensburg's Director of Nursing does not see any reason from a nursing perspective why residents should have to sit and wait without anything to do while medications are being given. U.S. Exh. 637 (Sponsky Dep.) at 85. The problem of ceasing all activities during medication administration time continued at Ebensburg, however, even after State surveyors had specifically cited it as a deficiency. For example, on April 29, 1993, staff stopped residents from using recreational materials during the afternoon medication time. Staff physically removed materials from the clients and placed the materials on top of a closet so that residents could not use them while staff were involved with medication administration. Albert K. attempted to reach the materials and toppled sideways in his wheelchair, lacerating his head. U.S. Exh. 589.
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B. Ebensburg Fails To Provide Residents With Adequate Training Programs. 1. Acquiring Skills Enables Individuals To Protect Themselves From Harm And Become Independent.
It is commonly accepted in the field that every individual who is mentally retarded has the capacity to learn, no matter how severely impaired. Tr. 7/26/93 (Stark) at 41-42; Tr. 8/2/93 (Russo) at 31-32, 37; Tr. 8/4/93 (Amado) at 77; U.S. Exh. 593. Defendant Nancy Thaler agrees that every individual with mental retardation has the capacity to learn and the potential for growth and development. U.S. Exh. 870 (Thaler Dep.) at 53. See discussion on the developmental principle § n . The Commonwealth has not provided Ebensburg residents with the basic opportunity to learn, grow, and develop. Tr. 7/26/93 (Stark) at 151; Tr. 8/2/93 (Russo) at 32; Tr. 8/4/93 (Amado) at 77.
There is universal agreement among the United States' three psychology experts, the Commonwealth's psychology expert, and defendants, themselves, that a failure to provide adequate training programs to people with mental retardation inevitably leads to harm and denies them the opportunity to become as independent as possible. Tr. 7/26/93 (Stark) at 5355; Tr. 8/2/93 (Russo) at 37; Tr. 8/4/93 (Amado) at 13, 16; Tr. 9/16/93 (Reid) at 35, 45; U.S. Exh. 870 (Thaler Dep.) at 55; U.S. Exh. 640 (Stratton Dep.) at 37-38; U.S. Exh. 628 (Ratchford Dep.) at 92-93. Dr. Stark explains this "pattern of harm," as it manifests itself at Ebensburg, as follows: Where mentally retarded people spend day after day inactive in a non-stimulating environment where they are not learning adaptive skills, they get bored.V
V Adaptive skills are skills that are useful and necessary to function in society. Tr. 8/4/93 (Amado) at 19-21. They include communication, self-care, home living, social skills, community use, self direction, health and safety, functional academics, leisure, and work. Tr. 7/26/93 (Stark) at 52-53; U.S. Exh. 574.
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Without meaningful activity, they may withdraw, engage in self-stimulation, or become frustrated and angry. This, in turn, can lead to escalating incidents of self-injurious behaviors, aggressive or assaultive behaviors, and a loss of skills or regression. The resulting harm includes bodily injury from dangerous behaviors, chemical restraints to control behaviors, and physical and mental deterioration, including an inability to care for oneself. Tr. 7/26/93 (Stark) at 53-55; U.S. Exh. 575 (attached). Dr. Amado agrees with this progression of harm as formulated by Dr. Stark and further explains that the opposite of the pattern of harm is a phenomenon called "learning to learn." Tr. 8/4/93 (Amado) at 16, 95. When residents are engaged in a program and are successful in the program, they experience the satisfaction of achievement and tend to become more and more interested in learning and being involved in training programs. This enables them to achieve all that they are capable of achieving. Tr. 8/4/93 (Amado) at 95-96.
Dr. Amado described how the pattern of harm also affects staff, because when staff are repeatedly ineffective and unsuccessful in trying to teach skills or in trying to change behaviors, this leads to inactivity, boredom, withdrawal, self-stimulation, frustration and anger. Tr. 8/4/93 (Amado) at 17. See also § V.C.2.d. discussing Mr. Tackett's and Ms. Hebenthal's testimony about Ebensburg staff exhibiting these behaviors towards residents. Dr. Stark agrees that staff at Ebensburg suffer from apathy because of a lack of knowledge and lack of purpose. Tr. 7/26/93 (Stark) at 223. In particular, Dr. Stark described the "lack of hope and indifference" among staff that he encountered while at Ebensburg. Id. Dr. Stark attributed this attitude, in large part, to the fact that because Ebensburg residents are not moved out into the community, staff begin to feel that it is easier and quicker to take
VI-16

care of residents' needs "without training them and teaching them how to take care of their [own] needs because they're not going to go anywhere." Id., lines 14-16.
The field, in general, and the Commonwealth's 1988 Statewide Behavior Management Policy, in particular, require Ebensburg to provide comprehensive training plans to meet the individualized needs of the people who live there. Tr. 7/26/93 (Stark) at 152; Tr. 8/2/93 (Russo) at 42; Tr. 8/4/93 (Amado) at 13-14; U.S. Exh. 30 at 8. Dr. Reid agreed that the purpose of residential programs for people with mental retardation is to provide individualized, goal-directed training that is integrated throughout the day in all environments. Tr. 9/16/93 (Reid) at 43-44. Dr. Reid further agreed that the mission of residential facilities is to help the client reach his or her optimal level of functioning. Tr. 9/16/93 (Reid) at 45. Indeed, Ebensburg has identified its mission as assisting residents in achieving their "maximum functioning." U.S. Exh. 11.
Instead of accomplishing this mission, residents have regressed under Ebensburg's care. Tr. 8/4/93 (Amado) at 16. For example, before being institutionalized in facilities run by the Commonwealth, James W.'s mother testified that James could see, and he was active and healthy. James bathed himself, combed his hair, and put on his shoes. He possessed all of his self-care skills. Tr. 7/26/93 (Weakland) at 187-188. Before being institutionalized, James could also speak in about three word sentences. Tr. 7/26/93 (Weakland) at 188. James was first institutionalized at Cresson Center in Pennsylvania. When Cresson closed, James was transferred to Ebensburg. At that time, James still possessed all of his self-care skills, could still talk, could still see, and was still active and healthy. Tr. 7/26/93 (Weakland) at 189. Since moving to Ebensburg, James has lost the ability to perform most
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self-care skills. Tr. 7/26/93 (Weakland) at 190. Since moving to Ebensburg, James has also lost his ability to communicate with words. He now only speaks a "very few words." Tr. 7/26/93 (Weakland) at 190.
Every individual at Keystone does not have a self-care program. U.S. Exh. 604 (Bonfanti Dep.) at 109. Staff only spend five to ten minutes interacting with Keystone clients with self-care skills. U.S. Exh. 609 (Domino Dep.) at 46. Individuals who are on self-care programs at Keystone do not experience significant progress on the programs and often they have to be "backed up" on the programs because they are not meeting expected goals. U.S. Exh. 604 (Bonfanti Dep.) at 109-110. Ms. Domino, who is a supervisor and Qualified Mental Retardation Professional ("QMRP") on Keystone, also could not point to any real success stories for anyone in Keystone. She could only think of "individuals who have made progress and then have gone back again." U.S. Exh. 609 (Domino Dep.) at 48.
2. Ebensburg Fails To Develop And Implement Training Programs. All three psychology experts for the United States found that Ebensburg is failing to provide training plans that comport with acceptable professional standards and that this failure substantially departs from generally accepted practices in the field. Tr. 7/26/93 (Stark) at 151-152, 162-163; Tr. 8/2/93 (Russo) at 38, 42; Tr. 8/4/93 (Amado) at 22-23. In contrast to the United States' experts who focused on the issue of training, Dr. Reid did not evaluate this area. He was told by Ebensburg that Ebensburg had overall training plans. He relied on this representation and did not take it upon himself to verify this by reviewing any such plans. Tr. 9/16/93 (Reid) at 94. At best, he may have looked at one skill or vocational or leisure training program as part of his evaluation at Ebensburg. Tr. 9/16/93 (Reid) at 66.
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Dr. Reid did not review the toileting, bathing, dressing, or grooming skills programs for anyone at Ebensburg. Tr. 9/16/93 (Reid) at 93.
a. Ebensburg Is Not Implementing Its Own Requirements To Provide Training.
Since 1986, Ebensburg policy has required staff to provide at least five hours of professionally developed training programs for each resident off of their living units. Tr. 7/26/93 (Stark) at 152; U.S. Exh. 28. These are the programs during the day where residents are supposed to be learning adaptive skills.V The hours that individuals at Ebensburg are scheduled to be engaged in day programs are not filled with appropriate learning activities. Instead, Dr. Amado found that individuals typically receive only about fifteen to twenty minutes of actual training programs during the five hour period, and spend the remainder of the time with nothing to do. Tr. 8/4/93 (Amado) at 15. Dr. Stark also found that the amount of actual meaningful programs and staff interaction occurring throughout the facility was actually minutes, not hours. Tr. 7/26/93 (Stark) at 169. This was a "major concern" of his. Tr. 7/26/93 (Stark) at 152, 169.
At trial, Dr. Amado read from transcribed notes dictated during his review of day programming for Laurel House clients in 1990 and in 1992. On each occasion, even though there were staff available to work with the clients, the great majority of residents from Laurel House were sitting around doing nothing during Dr. Amado's observations. Tr.
V Adaptive skills include such programs as occupational therapy, self-care, workshop, prevocational, and communication. Tr. 7/26/93 (Stark) at 52-53; U.S. Exh. 574. Programs teaching these skills are known as and referred to in the field, at Ebensburg, and in testimony as "habilitation," "training," "programming," and "active treatment." For purposes of clarity and ease of reference, they will be referred to herein as "day programs" and "training programs." They are distinguished from "behavior programs" which address a particular maladaptive behavior.
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8/4/93 (Amado) at 60-63.V The videotape taken during Dr. Russo's tour of Ebensburg documents clients in day programs at Harmony Learning Center, sitting and engaging in selfstimulatory rituals, with no meaningful activities going on. Tr. 8/2/93 (Russo) at 85.
The lack of activity in Ebensburg day programs has been corroborated by Ebensburg administrators. For example, during Dr. Amado's tour on August 18, 1992, Mr. Bellomo observed that at 2:20 p.m. in the JFK Learning Center, "there is a lack of activity." U.S. Exh. 197. During his tours of program areas, David Devine, who is in charge of residential services at Ebensburg, frequently observed a lack of meaningful interaction between staff and residents during day programs. For instance, in Heritage House on September 14, 1992, Mr. Devine observed "JB sleeping on a couch and individuals milling about not fully involved in programming. JS was displaying very disruptive behavior which affected the whole program area." Mr. Devine noted that it was "questionable whether we would have met standards for Title XIX." U.S. Exh. 100. On September 16, 1992 in the pre-vocational area of JFK, Mr. Devine found that the "program lacked direction and seemed as if RSA's were waiting for the next scheduled activity to occur, which was toileting prior to the lunch time meal." U.S. Exh. 214. Again, he concluded that it was "questionable" as to whether Ebensburg was meeting Title XIX standards. Id. In Laurel House programs also on September 16, 1992, Mr. Devine found clients who were sitting unattended and uninvolved. Id. During his tour of Harmony House Learning Center on September 30, 1992, Mr. Devine observed several individuals sleeping and "no meaningful interaction" during their
9J Dr. Amado also found that the relatively high rate of incidents and injuries that occur even during day programming hours also suggests that people are not fully engaged during day programs at Ebensburg. Tr. 8/4/93 (Amado) at 66-67.
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day programs. U.S. Exh. 212. A lack of staff interaction is unacceptable to Mr. Devine. In his own words: "There needs to be staff interaction with individuals. That's what we're here for." U.S. Exh. 608 (Devine Dep.) at 257, lines 7-8. Mr. Devine stated that Ebensburg management needs to provide alternate activities, and "fully explain and train staff as to what needs to be done." U.S. Exh. 212. A staff person working in the Harmony House Learning Center was on overtime and did not know the individuals nor their behavioral characteristics. U.S. Exh. 212. Mr. Devine admitted that it is important that staff know the individuals with whom they are working in program areas. U.S. Exh. 608 (Devine Dep.) at 261.
The Unit Managers whom Mr. Devine supervises also agree that Ebensburg residents are not receiving the level of training that they should be receiving. Mr. Seymour, the Unit Manager at Laurel House, is not satisfied that all individuals who live there are involved in functional, purposeful and useful activities at the hour-and-a-half they spend at both their morning and afternoon day programs. U.S. Exh. 631 (Seymour Dep.) at 62, 73, 75. He has also identified a need for additional materials in order to ensure appropriate socialization and interaction. U.S. Exh. 631 (Seymour Dep.) at 64-65. Mr. Weimer, the Unit Manager of Sunset House, admitted that individual training programs take "very little time" to implement. U.S. Exh. 642 (Weimer Dep.) at 112-113. He further admitted that only those particular residents with whom staff are working at any given time are actually receiving training. U.S. Exh. 642 (Weimer Dep.) at 112-113. Mr. McGuire, the Unit Manager of Horizon House, is frustrated that residents are not receiving more functional programs. U.S. Exh. 623 (McGuire Dep.) at 46. Given the current level of staffing, Horizon is not able to
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implement small group programming to Mr. McGuire's satisfaction. U.S. Exh. 623
(McGuire Dep.) at 50. He is also not satisfied with the level of individualized attention from
staff during programming time. U.S. Exh. 623 (McGuire Dep.) at 53. Training programs
at Ebensburg are generally provided in groups of eight. U.S. Exh. 603 (Bellomo Dep.) at
113. Mr. Bellomo thinks that the groups should be smaller. U.S. Exh. 603 (Bellomo Dep.)
at 113. Dr. Stratton admitted that contrary to Ebensburg's policy, the environment in day
programs at Ebensburg is not always therapeutic, positive, and supportive. U.S. Exh. 640
(Stratton Dep.) at 216-217.
In her day and a half with the clients at Ebensburg, Ms. Hebenthal did not see any
programming going on. Tr. 8/3/93 (Hebenthal) at 213. During the hours Ms. Hebenthal
spent at programming in a house with an oven and a microwave, staff made no attempt to
teach clients cooking skills. Tr. 8/3/93 (Hebenthal) at 213-214. Instead, staff sat in the
kitchen, made themselves a cup of coffee, shut the partition doors, and left the clients in
other parts of the house, not learning anything. Tr. 8/3/93 (Hebenthal) at 214.
Dr. Reid testified that the level of activity in Ebensburg day programs is about
average, when compared to other institutional facilities and community-type agencies. Tr.
9/16/93 (Reid) at ll.™/ However, Dr. Reid did not testify to what those levels actually
i!7 Dr. Reid was comparing levels of activity to certain norms he has developed over the years. Dr. Reid admits that the facilities where Dr. Reid collected his data to form his normative sample were not randomly selected, and he cautions that conclusions based on his studies must be qualified because his sample was not random. Tr. 9/16/93 (Reid) at 58. Further, although Dr. Reid claims that he compared Ebensburg's day programs to other community programs, the only community programs in Dr. Reid's sample are located in North and South Carolina. Id. at 162. Finally, the norms against which Dr. Reid compared Ebensburg include data from institutions that were not certified by HCFA, institutions that had been sued by the Department of Justice for civil rights violations, and institutions where active treatment services had been found to be unconstitutional by the federal court. Id. at 50, 55-56.
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were until it was brought out on cross-examination. In February 1993, Dr. Reid found that
individuals in day programs at Ebensburg were engaged in an activity with a purpose with an
age appropriate material only about 31% of the time. U.S. Exh. 962.11/
b. Ebensburg Has Known About Its Failure To Provide Adequate Training Since At Least 1987.
State surveyors have repeatedly cited Ebensburg for its failure to provide continuous
active treatment during day programming since at least 1987. U.S. Exh. 792. Beginning in
1989, Title XIX regulations were revised to require that each client must be involved in a
continuous active treatment program consisting of needed interventions.^/ For the four
year period between January 1989 and November 1992, State surveyors concluded that
Ebensburg was failing to meet this requirement. U.S. Exh. 792. In situation after situation,
surveyors have observed clients engaged in active treatment for only a few minutes during
day programs, with the rest of the time spent engaged in self-stimulatory or other
nonproductive behavior. For instance, in 1989, during programming at JFK, the "only
structured activity [for one resident] was a 3 minute objective. Remaining time was spent
11/ As pointed out in the previous section, Dr. Reid's figures are misleading in that they only measure individuals engaged in an activity with an apparent purpose with an age appropriate material. Tr. 9/16/93 (Reid) at 65. Dr. Reid concedes that there is a great deal more to active treatment than merely carrying out an activity with an apparent purpose. Tr. 9/16/93 (Reid) at 69. Dr. Reid made no effort to determine whether the activities he observed at day programs had any relation whatsoever to an individual's skills training programs. Tr. 9/16/93 (Reid) at 65-66. l2J The Survey Procedures and Interpretive Guidelines for Intermediate Care Facilities for the Mentally Retarded, regulation § 483.440, provides that the standard for active treatment is that each client must receive a continuous active treatment program which includes "aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services ... directed toward — (i) The acquisition of the behaviors necessary for the client to function with as much self determination and independence as possible; and (ii) The prevention or deceleration of regression or loss of current optimal functional status." Def. Exh. T.
VI-23

walking around, swaying forward/backward, and at times had hand in her pants." U.S. Exh. 792. In Keystone, surveyors observed that a client's program was implemented for one and a half minutes. The client spent the remaining time chewing her fingers and sleeping. U.S. Exh. 792. In September 1992, when ARC surveyors arrived at JFK at 10:50 a.m., "activities were over . . . individual programs had all been completed. There was time to do more group activity." U.S. Exh. 932 at 521151.
c. Ebensburg Is Discriminating In The Training It Provides. Keystone clients in East I, East n , and West I do not receive their required five hours of day programs off of their living units. Tr. 7/26/93 (Stark) at 153-154; Tr. 8/4/93 (Amado) at 14-15. In fact, they are only scheduled for one hour of active treatment off of their living units between 10:00 a.m. and 11:00 a.m. U.S. Exh. 609 (Domino Dep.) at 2930; Tr. 8/4/93 (Amado) at 14."/ The limited amount of training programs that Keystone residents receive is in direct contravention of a specific Ebensburg policy entitled "Client Training — Non-discrimination Due to Handicap." U.S. Exh. 28. This policy has been in effect since December 20, 1984, when Mr. Bellomo approved and signed it. Id. The policy states that Ebensburg will:
assure that all clients are scheduled for and receive 5 hours of per day of active program training, regardless of the client's age, degree of retardation, or accompanying handicaps. U.S. Exh. 28. Ms. McAllister observed the one hour of training programs scheduled for most Keystone residents during one morning of her November 1992 tour of Ebensburg. Tr.
iy Dr. Reid did not evaluate whether everyone at Ebensburg receives five hours of training programs off of their living areas. Tr. 9/16/93 (Reid) at 154. He admitted, however, that he would encourage Ebensburg to get individuals off the living units more. Id. at 37.
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7/28/93 (McAllister) at 207. When she began her observations at 10:00 a.m., residents were still being transported into the program area. Id. Programs did not actually begin until 10:30 a.m. and concluded by 11:05 a.m. Id. at 207-208. The active treatment period was thus only thirty-five minutes long. Ms. McAllister randomly selected one of the residents, Ron E., to continuously observe. Id. at 208. She found that during this thirty-five minute block of time in which residents were supposed to be receiving active treatment, staff interacted with Ron only two times for a total of twenty seconds of interaction. Id. at 208209. One of the ten seconds of interaction consisted of staff talking to Ron; the other ten seconds of staff interaction consisted of a staff person repositioning a vibrating tube across his chest. Id. at 209.
By Ebensburg's own admission, at best, each Keystone resident only receives a maximum of 15 minutes of active treatment during their day programs. U.S. Exh. 609 (Domino Dep.) at 31. Mr. O'Brien admitted that some individuals in Keystone do not engage in functional programs. U.S. Exh. 624 (O'Brien Dep.) at 58. In Ms. Domino's opinion, Keystone clients would benefit from more staff during the time scheduled for day programs. U.S. Exh. 609 (Domino Dep.) at 37. There is no active training in the afternoon off of the living units. U.S. Exh. 609 (Domino Dep.) at 38. Instead, it is "nap" time for the residents, where they are put down on the floor on mats and staff are involved with clothing, cleaning, and paperwork. U.S. Exh. 609 (Domino Dep.) at 40, 41, 42.
Damien Tackett described a typical day at Keystone during the time that he spent there as a direct care worker through the Spring of 1992, as follows:
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The direct care staff assigned to West II at Keystone would watch television between 9:00 a.m. and 10:30 a.m. every morning. Tr. 8/3/93 (Tackett) at 10. They did this even when a supervisor was present. In fact, on one occasion, Mr. Tackett remembers the supervisor joining staff for a cup of coffee. Id."/ Residents were not transported to the Learning Center until approximately 10:30 a.m. Id. at 10-11. Mr. Tackett did not often see residents receiving their individualized programs while at the Learning Center. Id. at 15. Instead, what Mr. Tackett observed, more often than not, was the staff person who was responsible for carrying out the programs "bouncing a basketball around or talking to the other aide." Id. at 15. When Mr. Tackett attempted to work with a particular resident, staff told him that he was "wasting" his time. Id. at 16. Following program time, the residents had their lunch and then were immediately placed down on mats. Id. There was "very, very little" staff interaction with residents while they were on the mats. Id. Instead, staff treated this time as another coffee break. Id. at 18.
Mr. Devine, Ebensburg's Director of Residential Services, documented these same types of deficiencies in Keystone in the year following Mr. Tackett's work there. U.S. Exh. 211; Tr. 7/26/93 (Stark) at 214-215. For example, in October 1992, Mr. Devine found that Keystone residents did not arrive at their day programs until 10:30 a.m., despite the fact that programs were scheduled to begin at 10:00 a.m. U.S. Exh. 211 (10/6/92 memo). Between 10:00 a.m. and 10:30 a.m., residents "were just waiting to go to programming." Id. Staff were involved with changing residents' diapers. Id. Mr. Devine also found that the day
"/ Mr. O'Brien admits that Ebensburg probably does not have the "greatest supervisory staff in the world." U.S. Exh. 624 (O'Brien Dep.) at 72.
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rooms were "too noisy for programming, and what we need to do is break it up into smaller groups." U.S. Exh. 211 (10/8/92 memo). Several weeks later, he again found that "[t]he noise level was incredibly high and TV too loud. There are just too many individuals in this area." U.S. Exh. 211 (10/20/92 memo). Despite the fact that Mr. Devine was "dismayed" to find in September 1992 that staff were excused from providing programs to catch up on paperwork, he found the same thing occurring in March 1993 — six months later. U.S. Exh. 211 (9/21/92 & 3/1/93 memos). Instead of residents being actively involved in programs, Mr. Devine documented residents sleeping, staff not interacting with residents, staff involved in toileting rather than providing programs, and programs consisting of "watching TV" throughout his observations of day programs for Keystone residents between September 1992 and January 1993. U.S. Exh. 211.
The videotape that Dr. Stark took on February 23, 1993 illustrates these problems during the scheduled one hour of programs for Keystone residents. ljj Tr. 7/26/93 (Stark) at 159-169; U.S. Exh. 262. It also depicts Ebensburg's failure to follow what Mr. Bonfanti, the Keystone Unit Manager, considers to the most "basic" and "minimal" steps that need to be taken in order to achieve active treatment. U.S. Exh. 604 (Bonfanti Dep.) at 107, line 25; 108..1V Based upon his observations of day programs throughout Ebensburg, Dr. Stark found that one of these basic and minimal steps — supervisory presence -- was only sometimes being met. Tr. 7/26/93 (Stark) at 152. Ebensburg was not meeting any of the
"/ Dr. Stark took the videotape of morning day programs at Keystone on February 23, 1993. Tr. 7/26/93 (Stark) at 155, 163. The scenes that he videotaped represent the same types of scenes that he observed during his February 1993 tour. Tr. 7/26/93 (Stark) at 164-165. "/ Mr. Bonfanti adopted these steps from another facility for use at Ebensburg. U.S. Exh. 604 (Bonfanti Dep.) at 107.
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other six basic steps. Tr. 7/26/93 (Stark) at 152-153.!!/ Staff were not interacting with
residents and residents were not involved in structured activities. Id.
The first program area that Dr. Stark videotaped on February 23, 1993 showed seven
Keystone residents. Tr. 7/26/93 (Stark) at 159. When he first entered the room, the seven
clients were in there alone, without any staff. Tr. 7/26/93 (Stark) at 159. A staff person
came in after Dr. Stark started filming. Id. Residents in carts, including Tim P., are
separated from the rest of the group and there is no attempt to involve them. Tr. 7/26/93
(Stark) at 159, 160. Absent any interaction with other residents or staff, Tim spends his day
staring at a fluorescent light. Tr. 7/26/93 (Stark) at 160. "That is his life, every day, is to
look at that ceiling." Tr. 7/26/93 (Stark) at 160.1!/ Dr. Stark has interacted with Tim and
believes he is very much aware of his surroundings: "As soon as you [interact with him], he
starts to smile. You can see the glimmer in his eyes." Tr. 7/26/93 (Stark) at 160. Tim's
parents noted on their application for his admission to Ebensburg at age three that Tim could
babble and take a few steps with help. Tr. 10/15/93 (O'Brien) at 77-78. Jeff K. is also
"/ These six steps are: (1) staff on their feet - moving and interacting with individuals; (2) every client involved in structured activities; (3) free time is limited to structured leisure time with staff interaction; (4) all individuals are receiving relatively equal tune and attention from staff; (5) groups are arranged so that individuals face one another and everyone is included; and (6) materials and equipment are used in structured activities. l±l Tim has had the same schedule since October 1991. Tr. 10/15/93 (Bellomo) at 30; U.S. Exh. 1016. His schedule lists two behavioral objectives that he is supposed to be working on while he is at the learning center (activate hand held control for radio and respond to staff request), both of which were both discontinued in 1992 without any replacements noted on his schedule. Tr. 10/15/93 (Bellomo) at 31; U.S. Exh. 1016. Tim spends his afternoon in his living unit where he is supposed to be working on another behavioral objective (touch the keys on a keyboard), but that objective was also discontinued in 1992 and not replaced. Id. Tim's evening consists of "TV, VCR, available activities, and staff interactions."
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separated from the group. Tr. 7/26/93 (Stark) at 159. Jeff, who used to be able to walk, make sounds and interact, is sitting alone, apart from the rest of the group, and banging on the lap board on his wheelchair. Tr. 7/26/93 (Stark) at 159. Dr. Stark described him as someone who is trapped in his body, not being able to do anything, yet being aware of what is going on. Tr. 7/26/93 (Stark) at 160.
Dr. Stark described what little programming that is actually provided to Keystone residents as "walking back in time for me, into the early seventies." Tr. 7/26/93 (Stark) at 163. He does not consider what he observed to be "programming." Tr. 7/26/93 (Stark) at 163. Rather, it was "simply trying to keep somebody busy and putting something in front of them." Tr. 7/26/93 (Stark) at 163. What few materials are available for the residents are age-inappropriate toys. Tr. 7/26/93 (Stark) at 159. One resident is sitting alone, facing a toy that he cannot even reach. Tr. 7/26/93 (Stark) at 161. Another resident is putting blocks in a bucket. Tr. 7/26/93 (Stark) at 162. Dr. Stark called this activity "extremely disheartening" and an outdated practice he used twenty years ago. Tr. 7/26/93 (Stark) at 162-163.
Dr. Stark contrasted what he observed at Keystone with a videotape of John, his son. Tr. 7/26/93 (Stark) at 210; U.S. Exh. 262(a). Like Tim P., John had meningitis when he was a few months old and has significant physical disabilities along with his severe and profound mental retardation. Tr. 7/26/93 (Stark) at 210, 211. John has been through thirteen operations, has to be suctioned frequently, is dependent on a tube to be fed, has twenty to thirty seizures a day, and has spastic cerebral palsy. Unlike Tim, his limbs are not severely contractured because John has received adequate care over the years. Dr. Stark
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believes that John is as severely involved as any Ebensburg resident, if not more involved. Tr. 7/26/93 (Stark) at 211. In contrast to Tim, who spends his day staring at the ceiling, John is involved with other people in meaningful activities, such as cooking, swimming, and learning to operate a switch to activate a computer. Tr. 7/26/93 (Stark) at 211. Because John has only slight movement in his hands, the switch is attached to his jaw. By moving his jaw, he can activate the switch and control what is happening on the computer. Through use of the switch, John can communicate, has some control over his environment, and gains some independence in his life. Tr. 7/26/93 (Stark) at 212. John has also learned to communicate by blinking his eyes and indicating "yes" or "no." This videotape demonstrates that even the most severely involved people with mental retardation and physical disabilities are "capable of learning and interacting with their environment." Tr. 7/26/93 (Stark) at 21. In Dr. Amado's experience, as well, the majority of very physically involved clients like the individuals who reside in Keystone will benefit and participate in far more than one hour a day of active treatment, and, in fact, their stamina, their interest, and their desire to participate increases as there is more and more available for them to do. Tr. 8/4/93 (Amado) at 104.
Ms. Domino is a "firm advocate" of moving Keystone clients off the living area. U.S. Exh. 609 (Domino Dep.) at 44. Among the benefits of moving clients off the living area are that it focuses staff on providing programs rather than "getting sidetracked with other things that have to be done." U.S. Exh. 609 (Domino Dep.) at 44. Mr. Bonfanti believes that the individuals who live in Keystone "absolutely" should have more opportunities to get out into the community. U.S. Exh. 604 (Bonfanti Dep.) at 148, line 24.
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Given the resources available at Ebensburg, "there are lots of limitations" in the ability to get Keystone residents out into the community. U.S. Exh. 604 (Bonfanti Dep.) at 149, line 5.
d. Ebensburg Fails To Provide Training In Basic Living Skills. Over the years, State surveyors have concluded that Ebensburg fails to provide training in basic skills of every day living. U.S. Exh. 792 (12/83, 1/89, 8/92). These are known in the field as "activities of daily living." They include such things as toileting, bathing, grooming, and dressing. U.S. Exh. 640 (Stratton Dep.) at 34. As recently as August 1992, when State surveyors reviewed the record of every resident at Ebensburg through the Inspection of Care ("IOC") process, they found that a "significant number" of residents' self-help needs were not being met. U.S. Exh. 792 at 4. Dr. Russo testified in detail about Ebensburg's systemic failure to provide toilet training programs and the harm that is resulting to the residents of Ebensburg due to Ebensburg's failure. Tr. 8/2/93 (Russo) at 39-42. Ebensburg policy, which has been in effect since January 1984, requires every client who does not eliminate appropriately or independently and shows signs of readiness to be on a toilet training program, barring a bona fide physical impediment. U.S. Exh. 25. Ebensburg is not complying with its own toilet training policy. Tr. 8/2/93 (Russo) at 39-40. Ebensburg has been specifically cited by state surveyors for its failure to provide bowel/bladder training programs to its residents. U.S. Exh. 792. As far back as January 1989, State surveyors found that in two buildings that they sampled, none of the 83 incontinent clients had a bowel/bladder training program. Id. Only eleven Ebensburg residents are currently on a toilet training program. Tr. 8/2/93 (Russo) at 40. These programs are very limited in scope and function (such as
VI-31

appropriate use of toilet paper) and not the total skill acquisition programs expected for a population such as Ebensburg's. Tr. 8/2/93 (Russo) at 40. Interviews with Ebensburg staff revealed that there was very little awareness among staff as to which individuals need toilet training programs and have the physical capacity to develop toileting skills. Tr. 8/2/93 (Russo) at 40. Dr. Stratton does not know the percentage of people at Ebensburg who are capable of being toilet trained. U.S. Exh. 640 (Stratton Dep.) at 41-42.
Individuals capable of being toilet trained who instead are maintained in disposable Attends undergarments are being harmed. Tr. 8/2/93 (Russo) at 41. Darren W. is an example of this cycle of harm. Id. Darren W. has no toilet training program and wears Attends on a routine basis. Darren's father contacted Ebensburg on a number of occasions to say that Darren was reluctant to have a bowel movement in a diaper and Darren's reluctance was leading to constipation, which in turn was leading to rectal digging. Darren's father asked if instead of wearing diapers, could Darren be allowed to sit on a toilet to have a bowel movement. Instead of putting Darren on a toilet training program, Ebensburg restrained Darren in a jumpsuit to prevent his behavior of rectal digging on almost a daily basis from approximately June until the end of September 1992, when Dr. Russo visited Ebensburg. Tr. 8/2/93 (Russo) at 41-42. In addition, in spite of the use of restraints for rectal digging, Ebensburg at no time provided a behavior program to Darren to reduce his behavior of rectal digging. Tr. 8/2/93 (Russo) at 76.
There are a significant number of toilet training programs available for people with severe and profound mental retardation and toilet training is one of the easiest training areas for this population. Tr. 8/2/93 (Russo) at 42. Defendant Nancy Thaler, the person
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responsible for all the services for individuals in the Commonwealth with mental retardation, recognized at her deposition that in the absence of physiological impairments, most individuals who are severely or profoundly retarded can learn to toilet themselves. U.S. Exh. 870 (Thaler Dep.) at 54. She stated that it should not be the norm that it takes several years to toilet train such an individual. U.S. Exh. 870 (Thaler Dep.) at 55.
3. The Training Programs That Ebensburg Develops Are Inadequate. Where they do exist, the training programs at Ebensburg substantially depart from accepted professional standards in the field for three reasons: 1) they are not individualized; 2) most do not teach functional skills; and 3) they do not take into account individual preferences. Tr. 8/4/93 (Amado) at 22-23.^/ At Ebensburg, the onus of learning is put on the learner, and this is not consistent with generally accepted professional standards. Tr. 8/4/93 (Amado) at 39-40. The field requires that the onus for teaching be on the trainer. Tr. 8/4/93 (Amado) at 40. It is critical that training programs for individuals with mental retardation are individualized because each individual has a unique learning difficulty, and it is important to capitalize on individual assets and learning styles in order to make learning as efficient as possible. Tr. 8/4/93 (Amado) at 23. Ebensburg does not employ any of the five ways to
"/ Ebensburg does not train staff who are expected to write skills training programs how to write those programs, and typically, the staff at Ebensburg who have been promoted to positions responsible for writing these programs were once direct care staff on the living units. Tr. 8/2/93 (Russo) at 80.
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individualize a training program. Tr. 8/4/93 (Amado) at 23-29.^7 Instead, as with its canned behavior programs, Ebensburg uses canned skills training programs available in the marketplace without individualizing and refining them as required by generally accepted professional practices. Tr. 8/4/93 (Amado) at 30-33; U.S. Exh. 112 (collection of prewritten, non-individualized Ebensburg skills training programs on which Ebensburg at most fills names in the blanks and sometimes does not even do that); U.S. Exhs. 112, 113 (examples of Ebensburg's use of exactly the same skills program for different clients). Ebensburg has been repeatedly cited by State surveyors, including as recently as October 1993, for its failure to provide individualized training programs for its residents. U.S. Exh. 792; U.S. Exh. 1103 at 7 (October 1993 MA Survey, citing Ebensburg for failing to design programs that meet individual needs).
Dr. Amado found examples of Ebensburg's failure to provide individualized training programs in every single record he reviewed. Tr. 8/4/93 (Amado) at 35-39.!!/ Dr. Amado testified about 12 specific cases in which individuals are being denied the opportunity to develop needed skills by Ebensburg's failure to provide individualized training programs to develop purposeful, meaningful, and adaptive skills. Tr. 8/4/93 (Amado) at 35-39. For example:
• In John B.'s 1992 speech and hearing screening, the assessor notes that John will lower his pants to indicate the need to toilet. There is no training program in John's record
fV The five ways to individualize a training program include: 1) individualizing prompts; 2) individualizing teaching units; 3) selecting outcomes that are meaningful to the individual; 4) individualizing data collection; and 5) individualizing teaching methods. Tr. 8/4/93 (Amado) at 2329. fV Several records that Dr. Amado reviewed had been selected by Ebensburg psychologists as representational of their best work. Tr. 8/4/93 (Amado) at 11-12.
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to teach John a socially acceptable way to express his need, and the assessor does not recommend that one be developed. Tr. 8/4/93 (Amado) at 35.
• All of the skills programs for Edward S. are canned and generic. Edward S., who is blind in one eye and severely visually impaired, is being taught to identify plastic fruit by feeling the items on the trainer's tray. This skill will not help him identify real fruit. Edward can hear and speak in short sentences, yet Ebensburg is teaching him to communicate using gestures. This makes no sense given the fact that Edward can speak and given his visual impairment. Further, Edward's reinforcement for good work is to have staff smile at him, but the program does not tell staff where to stand so that Edward can see the smile, if Edward can see a smile at all. Finally, although his record indicates that he would benefit by being given a choice of tasks and reinforcers each day, Ebensburg has never employed this strategy. Tr. 8/4/93 (Amado) at 35-36, 38.fi/
• James E. has a skill training program to teach him to push five balls over a metal arc. Dr. Amado observed James with this activity in front of him. James just sat there. At no time did he touch the balls and at no time did staff try and teach him. Tr. 8/4/93 (Amado) at 80-81. James has severe self-injurious behavior that he uses to communicate with staff, but has no communication objective in his program.^/ Given James' needs, a program to push balls over an arc is totally inappropriate. Tr. 8/4/93 (Amado) at 36.
a. Ebensburg Fails To Revise Training Programs When Necessary.
Based on his review of records, Dr. Amado found that it is not unusual for Ebensburg
to keep an individual on an ineffective program for years without individualizing the
program, until the program is terminated for lack of progress. Tr. 8/4/93 (Amado) at 40.
Dr. Stratton admitted that keeping an individual on a skill development program for months
without revising the program if the person does not gain any skills is not good professional
practice. U.S. Exh. 640 (Stratton Dep.) at 40. For the past three years, Ebensburg, itself
fV Dr. Reid did not review the case of Edward S. and could not comment on the program teaching Edward to feel plastic fruit, although he allowed that that type of program could be inappropriate. Tr. 9/16/93 (Reid) at 33.
fV See Mr. Tackett's testimony about James' self-injurious behavior and the inappropriate staff response that Mr. Tackett witnessed on April 4, 1992, § V.C.2.d.
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has reported that residents have met only a "small percentage of actual goals" established for them. U.S. Exhs. 36, 37, 640 (Stratton Dep.) Exh. 17.
Because effective programs work in a very short period of time, Ebensburg's failure to adequately revise skills programs in a timely manner is totally unacceptable. Tr. 8/4/93 (Amado) at 40. State surveyors have repeatedly cited Ebensburg for its failure to revise training programs. U.S. Exh. 792. For instance, in 1990, Inspection of Care ("IOC") surveyors cited Ebensburg for its failure to re-evaluate skills programs of individuals who had not made progress for "an extended length of time." Id. In 1991, the surveyors made the same finding. Id. In 1992, IOC surveyors noted that Ebensburg's corrective action plans for previous active treatment deficiencies had not been successful and that "major active treatment areas continue unimproved." Id. As recently as the October 1993 MA Survey, State surveyors found Ebensburg was failing to revise programs where no progress was being made within a reasonable time frame and included examples of programs that had not been revised in years. U.S. Exh. 1103 at 8-9.
Ebensburg's standard response to lack of progress on a skills training program is to lower the criteria for performance rather than to rewrite and individualize the programs to enhance the probability of success. Tr. 8/4/93 (Amado) at 39. Dr. Reid did not evaluate whether any of the review processes in place at Ebensburg are effective. Tr. 9/16/93 (Reid) at 154-155. He did not determine the length of time any individual had been engaged in the same task and did not evaluate the progress, or lack thereof, for self-help skills for a single resident at Ebensburg. Tr. 9/16/93 (Reid) at 42, 67, 156. Although Dr. Reid testified that "backing up" or lowering program expectations can be appropriate, he did not evaluate
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whether Ebensburg's use of backing up is being done appropriately or effectively. Tr. 9/16/93 (Reid) at 154.
b. Skills Training Programs Lack Psychology Input. Although required by the field, in general, and by both State and Ebensburg policy, in particular, the psychology department at Ebensburg is not involved in the development and design of the Ebensburg skills training programs. Tr. 8/2/93 (Russo) at 38-39. Since at least 1976, when Dr. Stratton first came to Ebensburg, the goal of Ebensburg's psychology department has been to develop adaptive and socially relevant skills to increase the independence of the people who live at Ebensburg and to enhance the social interactions of the people who live at Ebensburg. U.S. Exh. 639 (Stratton Dep.) at 17-18. Despite this goal, the psychologists at Ebensburg have no role in developing, writing, teaching, or assessing the effectiveness of skills programs. Tr. 8/2/93 (Russo) at 12; Tr. 9/16/93 (Reid) at 32-33; U.S. Exh. 621 (Kleman Dep.) at 17-18 (PSA's do not review or revise training programs written by residential services workers). PSA's are not involved in developing programs for activities of daily living, such as eating, dressing, and grooming. U.S. Exh. 640 (Stratton Dep.) at 34. PSA's are not involved in developing leisure skills programs. U.S. Exh. 640 (Stratton Dep.) at 34. PSA's are not involved in developing communication programs. U.S. Exh. 640 (Stratton Dep.) at 34. Even though Ebensburg psychologists attend annual and mini-staffings of individuals in their caseloads, this is insufficient participation by psychologists in the development and design of individual training plans. Tr. 8/2/93 (Russo) at 137-138. Because Ebensburg psychologists are not involved in the design of skills training programs, many of the clients at Ebensburg are not making adequate
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functional gains in skills. Tr. 8/2/93 (Russo) at 39. Dr. Reid did not evaluate the degree to which psychologists at Ebensburg are involved in developing skill acquisition programs. Tr. 9/16/93 (Reid) at 148. Dr. Reid did not evaluate whether the inter-disciplinary team process at Ebensburg was effective. Tr. 9/16/93 (Reid) at 147. Dr. Reid relied on Ebensburg's representations concerning the degree to which the psychologists are involved in the IDT. Tr. 9/16/93 (Reid) at 148.
Involvement by psychologists in the design of skills programs is "absolutely critical." Tr. 8/2/93 (Russo) at 39, line 2. Just as psychologists need to be involved to determine the motivation behind an individual's maladaptive behavior, so must psychologists determine what motivates each individual to learn and incorporate that knowledge into skills training programs for each individual. Tr. 8/2/93 (Russo) at 39. Dr. Stratton thinks it is important to have the input of the PSA's into the development of the skills training programs because the PSA's know the basic principles of learning and training people. U.S. Exh. 640 (Stratton Dep.) at 36-37. PSA's are not involved with the skills programs because the focus of their jobs is to minimize the intrusive interventions. Dr. Stratton acknowledges that you cannot minimize intrusive interventions without developing positive skills and behaviors in other areas. U.S. Exh. 640 (Stratton Dep.) at 37. Dr. Stratton believes that Ebensburg's highest priority during the coming year should be upgrading training of functional skills, which would help reduce the number of injuries and make it less likely that individuals would exhibit challenging behaviors. U.S. Exh. 640 (Stratton Dep.) at 229-230.
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c. Ebensburg Fails To Provide Adequate Occupational Therapy Programs. Occupational therapy programs are aimed at increasing the level of functioning of Ebensburg residents. U.S. Exh. 617 (Graham Dep.) at 14.^/ Lois Graham, Ebensburg's Director of Occupational Therapy until August 1993, admitted that there are some Ebensburg residents who could be assisted through occupational therapy services who are not receiving them. U.S. Exh. 617 (Graham Dep.) at 17, 106. The last time there was a facility-wide effort to identify each Ebensburg resident who could benefit from occupational therapy services was in 1985 or 1986. U.S. Exh. 617 (Graham Dep.) at 20, 91. Ms. Graham does not believe that the assessment form she used to evaluate Ebensburg residents for occupational services is adequate. U.S. Exh. 617 (Graham Dep.) at 76-78. For example, she does not believe that she was able to adequately assess residents' physical limitations and motor abilities that are prerequisites to learning basic care skills. U.S. Exh. 617 (Graham Dep.) at 76, 77. She also is not satisfied that her assessments were adequate to evaluate residents' oral motor status. U.S. Exh. 617 (Graham Dep.) at 77. Her assessments did not identify particular deficits in various skill areas. U.S. Exh. 617 (Graham Dep.) at 77. She never revised the assessment form because she did not have the time. U.S. Exh. 617 (Graham Dep.) at 79. Ms. Graham would also like to have conducted comprehensive occupational therapy assessments more frequently but did not have the time to do so. U.S. Exh. 617 (Graham Dep.) at 90.
*/ At Ebensburg, occupational therapy services include such programs as teaching prerequisite skills
for activities of daily living, teaching a variety of motor skills, including hand manipulation, balance, protective extension, muscle strength, and coordination and working with clients who are tactilely defensive. U.S. Exh. 617 (Graham Dep.) at 91-92.
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i. There Are Not Enough Occupational Therapists At Ebensburg. At the point that she testified in her deposition in January 1993, Ms. Graham had been the Director of Occupational Therapy Services at Ebensburg since 1988. U.S. Exh. 617 (Graham Dep.) at 9. Moreover, she had been the only occupational therapist on staff at Ebensburg since 1984. U.S. Exh. 617 (Graham Dep.) at 10.*/ Up until August 1992, Ms. Graham was only at Ebensburg on a part-time basis. U.S. Exh. 617 (Graham Dep.) at 12. Between the fall of 1987 and August 1992, she only worked three days per week at Ebensburg. U.S. Exh. 617 (Graham Dep.) at 11. One of the reasons that Ms. Graham started to work full time in August 1992 was because she wanted to try and make changes within the occupational therapy department. U.S. Exh. 617 (Graham Dep.) at 13. In particular, she hoped to build up the quality of occupational therapy services, develop occupational therapy assessment tools, and develop and implement additional programs. U.S. Exh. 617 (Graham Dep.) at 13. She was not able to accomplish her goals and did not feel that Ebensburg management was responsive to her significant concerns in the area of occupational therapy. U.S. Exh. 617 (Graham Dep.) at 58, 59. She was very frustrated about this. U.S. Exh. 617 (Graham Dep.) at 61. Ms. Graham is no longer at Ebensburg. Tr. 10/13/93 (Amall) at 8, 50; Tr. 10/15/93 (Bellomo) at 7. As of January 8, 1993, there were five licensed occupational therapy assistants ("LOTA's") on staff at Ebensburg. U.S. Exh. 617 (Graham Dep.) at 32. All of the LOTA's work on the first shift during weekdays; none of the LOTA's work on the
f / Between 1984 and June 1985 there was an additional contract occupational therapist who worked at Ebensburg one day or a day and a half per week. U.S. Exh. 617 (Graham Dep.) at 21-22. Between June 1985 and June 1986, there were two contract occupational therapists who worked a total of one to two days. U.S. Exh. 617 (Graham Dep.) at 23.
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weekends. U.S. Exh. 615 (Geriak Dep.) at 70. Sue Fagan works at Keystone and has a caseload of 23 clients. U.S. Exh. 617 (Graham Dep.) at 48. Jane Schneider also works at Keystone and has a caseload of 23 clients. U.S. Exh. 617 (Graham Dep.) at 49. Lana Geriak works in the JFK Learning Center and has a caseload of 48 clients. U.S. Exh. 617 (Graham Dep.) at 49. Sharon Zoskey works in the Old Main Learning Center and has a caseload of 24 clients. U.S. Exh. 617 (Graham Dep.) at 49. Mary Frye works in the Harmony Learning Center and has a caseload of 12 or 13 clients. U.S. Exh. 617 (Graham Dep.) at 49. The LOTA's caseloads are significantly higher than what Ms. Graham believes they should be. U.S. Exh. 617 (Graham Dep.) at 57. She believes that there should be two LOTA's working with a group of twelve to eight residents. U.S. Exh. 617 (Graham Dep.) at 56. Ms. Graham admits that a caseload of forty-eight clients does not meet accepted standards in the field of occupational therapy services. U.S. Exh. 618 (Graham Dep.) at 80. She also agrees that in some cases, the limited amount of occupational therapy services that clients receive is not within accepted professional standards. U.S. Exh. 618 (Graham Dep.) at 80.
Ms. Graham believes that in order to make necessary improvements in occupational therapy services at Ebensburg additional occupational therapists are needed. U.S. Exh. 617 (Graham Dep.) at 35. She feels that the "quality of OT services is basically dependent upon guidance and direction and assessment from a registered occupational therapist." U.S. Exh. 617 (Graham Dep.) at 23. She believes that Ebensburg needs two to three additional occupational therapists right now. U.S. Exh. 617 (Graham Dep.) at 24. Once these occupational therapists become established, Ebensburg can look more closely at individual
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needs and determine whether even more occupational therapists are needed in order to provide programs to each resident who needs them. U.S. Exh. 617 (Graham Dep.) at 24-25.
Ms. Geriak, LOTA, agreed that one registered occupational therapist is insufficient for Ebensburg. U.S. Exh. 615 (Geriak Dep.) at 70. She thinks that there should be three or four occupational therapists. U.S. Exh. 615 (Geriak Dep.) at 70.
Every LOTA who works full time at Ebensburg and was deposed agreed that more LOTA's are necessary to provide needed services for residents and that Ebensburg residents would benefit from an additional number of LOTA's. U.S. Exh. 610 (Fagan Dep.) at 45; U.S. Exh. 613 (Frye Dep.) at 145; U.S. Exh. 615 (Geriak Dep.) at 70; U.S. Exh. 643 (Zoskey Dep.) at 70. With more LOTA's, occupational therapy programs could be provided in smaller groups and more time could be spent on programs. U.S. Exh. 610 (Fagan Dep.) at 45. Ms. Geriak agreed that Ebensburg residents would benefit from smaller caseloads and greater interaction with a LOTA. U.S. Exh. 615 (Geriak Dep.) at 57, 58. Ms. Geriak believes that a caseload of 10-12 clients would allow adequate occupational therapy programming.
Ms. Geriak currently is responsible for 24 clients in the morning and 24 in the afternoon. U.S. Exh. 615 (Geriak Dep.) at 34-35. Ms. Geriak admits that she is not able to give sufficient attention to all 24 clients. U.S. Exh. 615 (Geriak Dep.) at 36. She is only able to actually interact with nine of the twenty four individuals for approximately five to ten minutes each. U.S. Exh. 615 (Geriak Dep.) at 36. Ms. Geriak does not feel that five to ten minutes of occupational therapy is adequate. U.S. Exh. 615 (Geriak Dep.) at 40. She is not
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able to perform her responsibilities as an occupational therapy assistant to her satisfaction. U.S. Exh. 615 (Geriak Dep.) at 71.
Ms. Zoskey has a caseload of 24 residents. U.S. Exh. 643 (Zoskey Dep.) at 8, 29. The residents are divided up into two groups of 12. U.S. Exh. 643 (Zoskey Dep.) at 29. She believes that in order to provide adequate occupational therapy services, there should be less than eight clients in a group. U.S. Exh. 643 (Zoskey Dep.) at 29. With a caseload of 24 individuals, Ms. Zoskey is only able to provide each individual with approximately five minutes of occupational therapy each day. U.S. Exh. 643 (Zoskey Dep.) at 35. She does not feel that this is an adequate amount of time for occupational therapy. U.S. Exh. 643 (Zoskey Dep.) at 35.
With improved occupational therapy services at Ebensburg, residents' functioning could be improved, residents would learn new skills to gain greater independence, there would be less loss of skills, and fewer residents would regress or deteriorate. U.S. Exh. 617 (Graham Dep.) at 35-36. In addition, with improved occupational therapy services, the overall ability of residents who are unresponsive, who have coordination problems, and who have difficulty attending to a task could be improved. U.S. Exh. 617 (Graham Dep.) at 37.
Ms. Graham was not able to provide the level of direct supervision that she believes necessary because she was the only occupational therapist at Ebensburg. U.S. Exh. 617 (Graham Dep.) at 55, 109. She also did not have sufficient time to monitor the efficacy of occupational therapy programs. U.S. Exh. 617 (Graham Dep.) at 110. If she were able to have monitored them, she believes that she could have identified behaviors that are not being addressed and could have ensured that occupational therapy programs were geared more
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specifically to client needs. U.S. Exh. 617 (Graham Dep.) at 110-111. As a result, she believes that residents could potentially progress more quickly than they are. U.S. Exh. 617 (Graham Dep.) at 111. As of December 14, 1992, the Occupational Therapy Department at Ebensburg had not held any regular staff meetings since mid-1990. U.S. Exh. 610 (Fagan Dep.) at 16, 24.
If occupational therapy services were expanded at Ebensburg, residents could receive sensory integration programs for their self-stimulatory and self-abusive behaviors. U.S. Exh. 617 (Graham Dep.) at 63. Sensory integration programs provide necessary sensory input to individuals who have problems with central nervous system processing, tactile problems, and vestibular problems which result in poor balance and poor integration. U.S. Exh. 617 (Graham Dep.) at 64. By providing this sensory input, it assists individuals in developing more normal patterns of behavior. U.S. Exh. 617 (Graham Dep.) at 65.
Dr. Goldschmidt, the consulting psychiatrist at Ebensburg, agreed that Ebensburg needs more occupational therapists for two reasons: 1) occupational therapists can communicate with clients and pick up changes and early signs of side effects before they become apparent and communicate these observations to Dr. Goldschmidt; and 2) occupational therapists can teach clients how to express feelings and cut down on acting out by the clients. U.S. Exh. 616 (Goldschmidt Dep.) at 93-94. In addition, if occupational therapists helped clients learn how to communicate, the additional client communication skills would then help Dr. Goldschmidt with her diagnoses. U.S. Exh. 616 (Goldschmidt Dep.) at 94.
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ii. Occupational Therapy Assistants Are Pulled From Their Occupational Therapy Responsibilities To Perform Other Functions.
In addition to their occupational therapy responsibilities, some of the LOTA's at Ebensburg have to serve as "monitors." A monitor is responsible for supervising a group of residents and direct care staff during day programs. U.S. Exh. 617 (Graham Dep.) at 39. While serving as monitor, the occupational therapist may also perform direct care staff functions, such as toileting and dressing clients. U.S. Exh. 615 (Geriak Dep.) at 54; U.S. Exh. 643 (Zoskey Dep.) at 30, 32. Two of the five LOTA's currently serve as monitors (Lana Geriak and Sharon Zoskey). U.S. Exh. 617 (Graham Dep.) at 44; Tr. 10/14/93 (Bellomo) at 55. The other LOTA's have also served as monitors at various times. U.S. Exh. 617 (Graham Dep.) at 44-45. Having to serve as a program monitor was one of the contributing factors for a LOTA leaving Ebensburg in October 1992. U.S. Exh. 617 (Graham Dep.) at 45.
In addition to her occupational therapy responsibilities, Ms. Geriak has had to serve as a monitor during day programs since 1990. U.S. Exh. 615 (Geriak Dep.) at 53. She serves as a monitor on a daily basis. U.S. Exh. 615 (Geriak Dep.) at 53. Serving as a monitor has impeded her ability to perform her occupational therapy responsibilities. U.S. Exh. 615 (Geriak Dep.) at 54. As a monitor, she is responsible for changing and escorting clients. U.S. Exh. 615 (Geriak Dep.) at 54. When she works as a monitor, no one else assumes her occupational therapy responsibilities. U.S. Exh. 615 (Geriak Dep.) at 56. The fact that she has to serve as a monitor is not satisfactory to her. U.S. Exh. 615 (Geriak
Dep.) at 56. In fact, none of the LOTA's regard the responsibility of having to serve as a
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monitor during day programs in addition to their occupational therapy responsibilities as satisfactory.
In addition to her occupational therapy responsibilities, Ms. Zoskey also serves as a monitor on a daily basis. U.S. Exh. 643 (Zoskey Dep.) at 29, 33. As a monitor, she is responsible for such things as busing clients, toileting, and changing clothes. U.S. Exh. 643 (Zoskey Dep.) at 30, 32. She spends about half of her time on monitoring duties. U.S. Exh. 643 (Zoskey Dep.) at 32. No one else assumes her occupational therapy duties and responsibilities while she is working as a monitor. U.S. Exh. 643 (Zoskey Dep.) at 37. Her monitoring responsibilities inhibit her ability to provide adequate occupational therapy and she does not believe that it is appropriate for her to work as a monitor. U.S. Exh. 643 (Zoskey Dep.) at 36.
Ms. Frye served as a monitor from July 1987 through September 1992. U.S. Exh. 613 (Frye Dep.) at 122. While serving as a monitor, she was responsible for performing some functions that are not related to occupational therapy. U.S. Exh. 613 (Frye Dep.) at 124. The duties that Ms. Frye had to perform as a monitor kept her from providing the occupational therapy services she felt the residents needed. U.S. Exh. 613 (Frye Dep.) at 124. It was impossible to even provide 15 minute occupational therapy programs to individuals. U.S. Exh. 613 (Frye Dep.) at 124. During the time that she was a monitor, Ms. Frye was only able to spend about an hour or an hour and a half each day on occupational therapy related services. U.S. Exh. 613 (Frye Dep.) at 125. Ms. Frye had a caseload of 68 clients for two-and-a half years between July 1987 and February 1990. U.S. Exh. 613 (Frye Dep.) at 125, 130. She was only able to provide services to approximately
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15 to 16 clients each day for about ten minutes per client. U.S. Exh. 613 (Frye Dep.) at 126. Between February 1990 and January 1991, her caseload increased, reaching as high as 72. U.S. Exh. 613 (Frye Dep.) at 130.
During the time that she spent as a monitor, Ms. Frye stated that she was not able to provide meaningful occupational therapy because there were too many distractions, a high noise level, and constant interruptions. U.S. Exh. 613 (Frye Dep.) at 126. This whole situation was not satisfactory to Ms. Frye as a licensed occupational therapy assistant. U.S. Exh. 613 (Frye Dep.) at 127. For the entire five years that she spent as a monitor, Ms. Frye did not feel that she was able to provide Ebensburg residents with adequate occupational therapy services. U.S. Exh. 613 (Frye Dep.) at 128. Ms. Frye conveyed her concerns to her supervisor, Lois Graham beginning in 1987. U.S. Exh. 613 (Frye Dep.) at 127, 128. She informed Ms. Graham that she was "very unhappy with the situation." U.S. Exh. 613 (Frye Dep.) at 127, line 14. Despite the fact that she expressed her "dissatisfaction with the type of services" that she was providing, Ebensburg did "nothing" in response to Ms. Frye's complaints. U.S. Exh. 613 (Frye Dep.) at 132-133, lines 3, 9-10. Ms. Frye was not relieved of her monitoring responsibilities until 5 years after she first began expressing her concerns. U.S. Exh. 613 (Frye Dep.) at 127.
While working as a monitor, Ms. Frye had to wear many hats, including serving as a direct care staff person. U.S. Exh. 613 (Frye Dep.) at 132. She believes that she had to serve as a monitor because of a shortage of staff. U.S. Exh. 613 (Frye Dep.) at 132.
Ms. Frye thinks that Ebensburg residents "suffered" during the time that they she had to serve as a monitor and was not able to provide them with adequate occupational therapy
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services. U.S. Exh. 613 (Frye Dep.) at 134. Individuals who needed occupational therapy services were simply not receiving them. U.S. Exh. 613 (Frye Dep.) at 135. If occupational therapy services had been provided, individuals' independence, self-help skills, dining skills, dressing skills, and grooming skills could have been improved. U.S. Exh. 613 (Frye Dep.) at 135.
Ms. Graham agrees that "having occupational therapists as monitors presents a problem." U.S. Exh. 617 (Graham Dep.) at 39. The LOTA's approached Ms. Graham when they were first assigned monitoring responsibilities in 1988 with their concerns that they could not carry out adequate occupational therapy programs while being a monitor. U.S. Exh. 617 (Graham Dep.) at 53. She tried, unsuccessfully, to rectify this situation. U.S. Exh. 617 (Graham Dep.) at 54. Ms. Graham believes that LOTA's continue to serve as monitors because there is an insufficient number of staff. U.S. Exh. 617 (Graham Dep.) at 55.
d. Ebensburg Fails To Provide Adequate Speech And Communication Training To Meet Residents' Needs.
There are six speech and hearing staff at Ebensburg. U.S. Exh. 620 (Huber Dep.) at 84. The case load for each staff person ranges from 24 to approximately 54 residents, with the exception of the one staff person, Kathy Wagner, who also functions as head of the Dysphagia Team. U.S. Exh. 620 (Huber Dep.) at 84-85. Mr. Huber, the Coordinator of Speech and Hearing Services at Ebensburg, believes that residents would benefit from additional speech and hearing staff because they would be able to provide programs in smaller groups and provide more direct services. U.S. Exh. 620 (Huber Dep.) at 65, 88. In addition, with more speech and hearing staff at Ebensburg there would be more "hands on"
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one-to-one attention. U.S. Exh. 620 (Huber Dep.) at 64. He believes that everyone learns better one-to-one. U.S. Exh. 620 (Huber Dep.) at 65.
Mr. Huber agrees that acquisition of communication skills is important to the wellbeing of Ebensburg residents. U.S. Exh. 620 (Huber Dep.) at 100. Teaching residents communication skills can enhance their safety by enabling them to better understand unsafe situations and communicate that they are in an unsafe situation. U.S. Exh. 620 (Huber Dep.) at 99. Acquisition of communication skills can also enable individuals to better protect themselves from harm. U.S. Exh. 620 (Huber Dep.) at 100. It can also enhance residents' health by teaching them to communicate when something hurts, they fell sick, or have suffered an injury. U.S. Exh. 620 (Huber Dep.) at 100. For example, staff have heard Christine G. say the word "cold" whenever the environment around her appeared to be cold. U.S. Exh. 363; see also United States' Exhibit 671, which is a picture of Christine. Although Christine's inter-disciplinary team noted this during her 1993 annual review and recognized that she is aware of her environment and recognizes staff, Ebensburg does not provide her with any communication training. U.S. Exh. 363.
A number of devices have been developed for people with disabilities to assist them in being independent and in making learning more efficient, including clothing with velcro fasteners, feeding machines, communication boards using pictures, and switches that turn things on and off. Tr. 8/4/93 (Amado) at 40-42. These devices have been available for many years and are not new to the field. Tr. 8/4/93 (Amado) at 42. During his tours of Ebensburg, Dr. Amado saw only one or two switching devices, and was told that only one
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person had a lap board for communication. Tr. 8/4/93 (Amado) at 42-43, 89.^/ Practically every single individual at Ebensburg who does not presently communicate could learn to communicate using some communication device. Tr. 8/4/93 (Amado) at 43. In many cases, the cost of electro-mechanical and augmentative communication devices will be borne by Medicaid, and does not become a direct cost of the agency providing services. Tr. 8/4/93 (Amado) at 83. Ebensburg's failure to provide electro-mechanical and augmentative communication devices to its resident is depriving these residents of the opportunity to control their environments and experience independence and self-satisfaction. Tr. 8/4/93 (Amado) at 42-43. Dr. Sneed concurred that a number of people can benefit from facilitated communication techniques. U.S. Exh. 635 (Sneed Dep.) at 61. Dr. Goldschmidt also agreed that Ebensburg needs more speech therapists to help clients who are able to learn sign language. U.S. Exh. 616 (Goldschmidt Dep.) at 94.
Despite his title as Coordinator of Speech and Hearing Services at Ebensburg, Mr. Huber does not have control over the deployment of the speech and hearing staff at Ebensburg. U.S. Exh. 620 (Huber Dep.) at 9, 95. Three of the speech and hearing staff work as monitors in addition to their speech and hearing responsibilities. U.S. Exh. 620 (Huber Dep.) at 84-85. Up until late November 1992, two additional speech and hearing staff were also working as monitors. U.S. Exh. 620 (Huber Dep.) at 85.
When the speech therapists work as monitors at Ebensburg, they do not have enough time to carry out all their speech and language programmatic responsibilities. U.S. Exh. 620
*/ In October 1993, according to Mr. Bellomo, six individuals at Ebensburg have either communication boards or books. Tr. 10/14/93 (Bellomo) at 17.
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(Huber Dep.) at 91. While working as monitors there are too many distractions that pull them away from their responsibilities and prohibit them from doing their job properly. U.S. Exh. 620 (Huber Dep.) at 93. Consequently, they do not have enough time to devote to providing speech and language programs to resident. U.S. Exh. 620 (Huber Dep.) at 97. The fact that speech and hearing staff have to work as program monitors is not satisfactory to Mr. Huber as a licensed professional in the field. U.S. Exh. 620 (Huber Dep.) at 95. He believes that it is a misutilization of "a lot of professional talent in utilizing these people as monitors in the learning center." U.S. Exh. 620 (Huber Dep.) at 95, lines 18-20.
The speech and hearing staff at Ebensburg are frustrated about their inability to provide programmatic services and have expressed their concerns about being taken away from their programmatic responsibilities. U.S. Exh. 620 (Huber Dep.) at 92, 97. Mr. Huber, in turn, has conveyed these concerns to Mr. Devine but feels that his hands are tied to remedy the situation. U.S. Exh. 620 (Huber Dep.) at 92, 97. He has felt so strongly that the speech and hearing staff should not have to serve as program monitors that he has had confrontations with Mr. Devine over this issue which he has not been able to resolve. Mr. Huber stated:
I have a tendency to have a very violent temper. I have it in my job performance standards from Mr. O'Brien that I will not have anymore violent disagreements with the director of residential services [Mr. Devine]. That says enough for itself right there. U.S. Exh. 620 (Huber Dep.) at 93, lines 4-8. Mr. Huber admitted that because Ebensburg's speech therapists have to function as monitors, it impedes their ability to design and implement programs that would allow residents to reach their potential with respect to the
VI-51

acquisition of communication skills. U.S. Exh. 620 (Huber Dep.) at 116-117. Communication skills are necessary to ensure safety, allow individuals to protect themselves from harm, and enhance health. U.S. Exh. 620 (Huber Dep.) at 99-100. Mr. Huber also thinks that the manner in which speech and language services are provided to Ebensburg residents greatly reduces the benefits of the programs. U.S. Exh. 620 (Huber Dep.) at 126127. This is because there are too many distractions in the learning center. U.S. Exh. 620 (Huber Dep.) at 127. This is particularly problematic with the individuals mat the speech and hearing staff are trying to serve because in many cases they have "very short attention spans. They are easily distracted with extraneous visual and auditory stimulus. They look around. And you lose the attention that you've gained." U.S. Exh. 620 (Huber Dep.) at 126, lines 20-23.
As recently as October 1993, State surveyors cited Ebensburg for its failure to follow up on recommended re-tests for hearing evaluations on ten out of ten residents in the surveyors' sample. U.S. Exh. 1103 at 1. None of these residents had a hearing evaluation within the past year. Id. at 2.
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EBENSBURG IS FAILING TO PROVIDE ADEQUATE BEHAVIOR MANAGEMENT
A. Injuries Due To Behaviors Are Dramatically Increasing. A significant percentage of all incidents and injuries at Ebensburg are caused by residents' behaviors.!/ There was a dramatic increase in the number of injuries due to behaviors between 1991 and 1992. Tr. 7/26/93 (Stark) at 105. In 1991, 625 incidents were caused by behaviors; in 1992, 904 were caused by behaviors. U.S. Exh. 91. This represent an increase of 45%. Tr. 7/26/93 (Stark) at 105. Between February 10, 1992 to February 10, 1993, 34% of all incidents and injuries at Ebensburg were attributable to residents' behaviors. Tr. 10/15/93 (O'Brien) at 76; Def. Exh. FF. For the period February 10, 1993 to August 25, 1993, 38.4% were due to behaviors. Tr. 10/15/93 (O'Brien) at 76; Def. Exh. GG. The percentage of injuries due to behaviors therefore continues to increase at Ebensburg. Ebensburg has never attempted to identify individuals whose behaviors pose the greatest risk in terms of injury to themselves or to other people. U.S. Exh. 639 (Stratton Dep.) at 67. Ebensburg also does not compile information that shows aggregate numbers of injuries due to behaviors. U.S. Exh. 640 (Stratton Dep.) at 195. In fact, at the time of his deposition in January 1993, Dr. Stratton thought that Ebensburg was "getting close" to the point where there were no injuries due to behaviors. U.S. Exh. 640 (Stratton Dep.) at 209210.
V Behavior related occurrences include the following types of incidents, based upon Ebensburg's coding system as set forth in U.S. Exh. 73: assaults, rights (04) (05); "individual to individual interaction11 (09); "individual to staff interaction" (10); ingestion of foreign matter (11); self-injurious act (14); and unacceptable absence (15). U.S. Exh. 90.
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B. Ebensburg's Behavior Management Services Do Not Comport With Accepted Professional Standards.
Based upon their tours of Ebensburg, their interviews with both direct care and professional Ebensburg staff, their attendance at Behavior Intervention Committee meetings and/or drug reviews, and their extensive review of complete resident records and other Ebensburg documents, both psychology experts for the United States who testified about the adequacy of psychology services at Ebensburg found that they substantially depart from accepted professional standards. Tr. 8/2/93 (Russo) at 9-11; Tr. 8/4/93 (Amado) at 10, 1213. Similarly, Dr. Stark found many deficient practices at Ebensburg in behavior management services. Tr. 7/27/93 (Stark) at 129-135, 139, 147, 148, 163. The United States' psychology experts identified a wide range of deficiencies in Ebensburg's behavior management practices, including failure to provide behavior programs in cases where maladaptive behaviors are causing repeated and serious injuries, Tr. 8/2/93 (Russo) at 75-77, 89-90; Tr. 7/26/93 (Stark) at 134; failure to provide effective behavior programs, Tr. 8/2/93 (Russo) at 59; failure to revise behavior programs where behaviors increase or do not change, Tr. 8/2/93 (Russo) at 68; Tr. 7/26/93 (Stark) at 134; and failure to provide behavior programs that comport with generally accepted standards. Tr. 8/2/93 (Russo) at 20, 59. The Psychology Discipline Coordinator at Ebensburg, Dr. Stratton, admits that there are not enough psychologists at Ebensburg to deliver services that meet accepted professional standards of care. U.S. Exh. 640 (Stratton Dep.) at 211. Dr. Stratton also acknowledges that the kinds of psychology issues that the Department of Justice has identified are issues that other people have identified at Ebensburg and talked about for some years. U.S. Exh. 640 (Stratton Dep.) at 225-226.
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The Department of Justice itself identified these very same issues at Ebensburg as far back as 1987. In 1987, the Department of Justice notified defendants that injuries due to behaviors at Ebensburg were excessive. U.S. Exh. 638 (Sponsky Dep.) Exh. 49 at 3. Defendants were notified that Ebensburg was failing to provide its residents with minimally adequate training programs, and, as a result, its residents were being unduly restrained and injured. Id- at 2-3. Defendants were notified that Ebensburg was failing to provide behavior programs for residents with self-injurious and physically abusive or destructive behaviors. Id. at 2, 5. Defendants were also notified that where behavior programs existed, they were "so deficient as to fall below the level of any acceptable professional standard." Id. at 2. Defendants were notified that Ebensburg had insufficient numbers of direct care staff and that this was leading to preventable injuries and failures to implement behavior programs. Id. at 3. Finally, defendants were notified that Ebensburg must develop adequate behavior management programs and integrate these with the use of psychotropic medications in order to reduce the use of chemical restraint at Ebensburg. Id. at 2.
In 1990, defendants were again notified by the Department of Justice that Ebensburg's behavior management services remained deficient. U.S. Exh. 638 (Sponsky Dep.) Exh. 50. Again, defendants were notified that injuries due to behaviors were excessive and that Ebensburg was failing to provide professionally designed and implemented behavior programs. Id. at 5. Defendants were notified that "most of the existing [behavior] plans are too similar to reflect the individual needs of the resident, and, as such, do not reflect the judgment of a qualified professional as to the necessary steps needed to address the individual needs of the resident for whom the program was ostensibly designed." Id. Finally,
VII-3

defendants were notified that Ebensburg was using physical and chemical restraints as substitutes for behavior programs. Id.
The only psychology expert to testify that Ebensburg's psychology services comport with accepted professional standards was Dr. Reid, and even then, Dr. Reid's testimony was equivocal. Dr. Reid carefully worded his response when asked whether Ebensburg's psychology services met accepted professional standards. Instead of a forthright yes, Dr. Reid equivocated, stating that "they're within the realm of what's considered accepted professional standards." Tr. 9/16/93 (Reid) at 12. Dr. Reid's opinion about Ebensburg's behavior management practices was similarly equivocal. See Tr. 9/16/93 (Reid) at 9 ("treatment of severe behavior disorders at Ebensburg is within the realm of standard professional services").
1. Dr. Reid Performed A Superficial Review Of Ebensburg's Behavior Management Services.
As compared to the three psychology experts for the United States, defendants' psychology expert, Dr. Reid, performed a very limited review of Ebensburg's behavior management services, and, as a result, failed to offer testimony on several aspects of Ebensburg's behavior management services. Experts for the United States, on the other hand, conducted extensive reviews of all of Ebensburg's psychology services, with particular emphasis on Ebensburg's behavior management services. A complete discussion of the qualifications and methodology of the three psychology experts for the United States can be found in the Appendix.
In order to form his opinion, Dr. Reid chose to conduct a limited review of
Ebensburg's behavior management services although he had the same access to information
VII-4

at Ebensburg as the United States' experts. Tr. 9/16/93 (Reid) at 114. The only part of residents' records that Dr. Reid reviewed were the behavior programs for those individuals with Class III interventions, which are the most restrictive interventions at Ebensburg. Dr. Reid did not review the comprehensive record of a single individual at Ebensburg. Tr. 9/16/93 (Reid) at S.V The two primary things that Dr. Reid did to evaluate the adequacy of the behavior programs at Ebensburg were to look at 15 behavior programs to see if they contained basic components and then observed 13 of the 15 individuals with those programs to see whether the programs were being implemented. Tr. 9/16/93 (Reid) at 106; U.S. Exh. 966. Dr. Reid did not look at a single record to determine whether Ebensburg revises behavior programs when individuals make no progress on the program or when behaviors increase. Tr. 9/16/93 (Reid) at 119. Instead, Dr. Reid relied on Ebensburg's representations that a process was in place to review the programs. Tr. 9/16/93 (Reid) at 119. Dr. Reid did not look at a single record to determine whether Ebensburg revises behavior programs when individuals hurt themselves or hurt others due to behaviors. Tr. 9/16/93 (Reid) at 123. Instead, Dr. Reid only determined that there was a structure in place to review injuries. He did not determine whether prompt follow up action was taken. Tr. 9/16/93 (Reid) at 123. Dr. Reid made no effort to determine whether Ebensburg had behavior programs in place for all individuals with maladaptive behaviors. Tr. 9/16/93 (Reid) at 126. Dr. Reid does not know if there is any individual at Ebensburg who has more
U Dr. Reid, in answering questions about particular cases commented on by United States' experts, was merely stating general principles in his field; he did not review any records or evaluate the individuals at issue before providing his comments about deficiencies the United States' experts identified. Tr. 9/16/93 (Reid) at 145, 155.
VII-5

than one behavior program. Tr. 9/16/93 (Reid) at 153. Dr. Reid was told that Ebensburg individualizes data collection systems beyond its interval data collection system; he relied on this representation and made no attempt to independently verify it. Dr. Reid has not seen any individualized data collection system at Ebensburg. Tr. 9/16/93 (Reid) at 100. Dr. Reid did not sit in on any Behavior Intervention Committee meetings or attend any drug reviews. Tr. 9/16/93 (Reid) at 158. Dr. Reid did not evaluate whether any of the review processes in place at Ebensburg are effective or not. Tr. 9/16/93 (Reid) at 154-155. In forming his opinion about the adequacy of Ebensburg's behavior management practices, Dr. Reid did not study the 1988 Statewide Behavior Management Policy thoroughly. Tr. 9/16/93 (Reid) at 100.
2. Defendants Failed To Rebut Testimony On Deficient Behavior Management Practices At Ebensburg.
Dr. Reid was the only psychology expert called by defendants at trial. Ebensburg's Psychology Discipline Coordinator did not testify. Topics about which Dr. Reid did not testify include:
• Ebensburg's psychology services prior to his visit to Ebensburg in February 1993; • Whether every individual at Ebensburg with a severe behavior disorder has a behavior program in place; • Whether Ebensburg is addressing biting or pica behaviors in a professionally acceptable manner; • The adequacy of behavior programs other than the 15 Class in programs at Ebensburg as of February 1993 — and for these 15 individuals, because Dr. Reid had not reviewed their records, he could not even state whether the programs adequately addressed the behaviors of the individuals or whether the programs were effective;
• The effectiveness of the review and revision of behavior programs at Ebensburg;
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• The effectiveness of any of the review processes that are in place at Ebensburg; and;
• Dr. Reid did not mention a single individual residing at Ebensburg during his direct testimony.
C. Ebensburg Does Not Have Sufficient Psychologists To Provide Services That Meet Accepted Standards.
Both Dr. Russo and Dr. Stratton agree that there are not enough psychologists at Ebensburg to deliver services that meet accepted professional standards of care. Tr. 8/2/93 (Russo) at 16; U.S. Exh. 640 (Stratton Dep.) at 211. Dr. Russo testified that the insufficiency of the number of PSA's at Ebensburg is resulting in harm to the residents. Tr. 8/2/93 (Russo) at 16.
James Stratton, Ph.D., has been the psychology discipline coordinator at Ebensburg Center for about 10 years. U.S. Exh. 639 (Stratton Dep.) at 11. Dr. Stratton has worked at Ebensburg since 1976. U.S. Exh. 639 (Stratton Dep.) at 15. He has never worked at any other facilities for mentally retarded people. U.S. Exh. 639 (Stratton Dep.) at 15.
The psychology department at Ebensburg includes Dr. Stratton, the only psychologist with a Ph.D., and eight other individuals called psychology services associates (PSA's). Six of the eight PSA's have masters degrees, and the remaining two PSA's have bachelor's degrees. Tr. 8/2/93 (Russo) at 15-16; U.S. Exh. 639 (Stratton Dep.) at 19-20.!/ The educational background of the PSA's is not taken into consideration when assigning caseloads
V Ebensburg does not require that PSA's have training in behavior management before beginning work at Ebensburg. U.S. Exh. 640 (Stratton Dep.) at 215.
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to the PSA's. U.S. Exh. 639 (Stratton Dep.) at 22-23. The bachelor's level PSA's have the same responsibilities as the master's level PSA's. U.S. Exh. 639 (Stratton Dep.) at 23.
Five PSA's at Ebensburg have caseloads of 48. Two PSA's (for Horizon and Laurel) have caseloads of 72. One PSA (for Keystone) has a caseload of 96. Tr. 8/2/93 (Russo) at 15; U.S. Exh. 639 (Stratton Dep.) at 20-21. Dr. Stratton believes that caseloads of 96 and 72 are not appropriate for the type of client that Ebensburg serves and are too large for the provision of effective services. U.S. Exh. 640 (Stratton Dep.) at 207-208. Dr. Stratton also believes that a caseload of 48 is large, and, depending upon the clients in the caseload, could be inappropriate. U.S. Exh. 640 (Stratton Dep.) at 210. Dr. Stratton testified that a caseload of 35 or 40 would be very manageable. U.S. Exh. 640 (Stratton Dep.) at 215.
Dr. Stratton does not think there are sufficient psychology staff to provide behavior programs that teach functional alternative behaviors to harmful behaviors. U.S. Exh. 640 (Stratton Dep.) at 211. Dr. Stratton does not think there are sufficient psychology staff to conduct adequate functional analyses for individuals at Ebensburg who need them. U.S. Exh. 640 (Stratton Dep.) at 211. Dr. Stratton testified that if there were smaller caseloads at Ebensburg, psychologists could provide more hands-on interventions with alternative stimulations and activities of daily living skills and do more sophisticated assessments of reinforcers and teach individuals to use assistive devices and teach replacement behaviors for challenging behaviors. U.S. Exh. 640 (Stratton Dep.) at 208-209.
Dr. Stratton is not the only manager or professional at Ebensburg that thinks more psychology staff are needed. For instance, Dr. Goldschmidt, Ebensburg's consultant psychiatrist, believes that Ebensburg needs more PSA's. U.S. Exh. 616 (Goldschmidt Dep.)
vn-8

at 95. Mr. Seymour, the unit manager of Laurel House, believes that there should be "at least one PSA per living area" at Laurel. U.S. Exh. 630 (Seymour Dep.) at 85, lines 22-23. This equals four PSA's for 96 individuals, or a ratio of 1:24. If there were more PSA's assigned to Laurel House, Mr. Seymour feels confident that conditions would be improved. U.S. Exh. 630 (Seymour Dep.) at 84. In particular, Mr. Seymour believes that having a PSA present to demonstrate or model appropriate interventions when behaviors occur is "extremely important." U.S. Exh. 630 (Seymour Dep.) at 26, lines 23-25; 27, line 1. Moreover, having a PSA available at program sites and accessible to all shifts is also "extremely important" and would result in "an enhancement for training." U.S. Exh. 631 (Seymour Dep.) at 27, lines 3-10. Mr. Seymour believes that every individual at Laurel House has some form of maladaptive behavior. U.S. Exh. 631 (Seymour Dep.) at 28. Despite this, nearly one half of the total population at Laurel House do not even have a formal behavior program for their behaviors. Tr. 8/2/93 (Russo) at 59; U.S. Exh. 154. Even though Mr. Seymour believes that a PSA should be assigned to monitor behaviors at all meals at which Laurel House residents are eating, a PSA is not assigned or present at all meals. U.S. Exh. 631 (Seymour Dep.) at 91. When Mr. Seymour requested an additional PSA for Laurel House during July 1992, a PSA was only assigned on a quarter-time basis to Laurel house. U.S. Exh. 630 (Seymour Dep.) at 86, 87.
Staff have repeatedly requested increased availability of psychologists, particularly on evenings and weekends, when there are no psychologists on campus to help with behavior problems. Tr. 8/2/93 (Russo) at 16; U.S. Exh. 105 (examples of incident reports where staff request PSA availability on weekends and evenings). Staff at day programming have
VII-9

also requested PSA availability. For instance, in March 1993, when Franklin B. had a
severe behavior disturbance at the Gary Bain Center, in which he was throwing large wooden
boxes, flipping tables, attempting to smash his chair and hit other clients, and eventually
ended up breaking the loading dock door with his head, staff requested that a PSA intervene,
but no PSA was available. U.S. Exh. 105; Tr. 8/2/93 (Russo) at 16-18.
The only witness who testified that Ebensburg has a sufficient number of
psychologists was Dr. Reid. Tr. 9/16/93 (Reid) at 19-20. In forming his opinion, Dr. Reid
was not aware that one psychologist at Ebensburg has a caseload of 96 and another has a
caseload of 72. Tr. 9/16/93 (Reid) at 134. Dr. Reid did allow, however, that if you
compare the number of psychologists at Ebensburg with other facilities, Ebensburg would
look relatively low. Tr. 9/16/93 (Reid) at 135.V He also allowed that he had "no doubt
that the likelihood of improving services could be improved if [Ebensburg] had more
[psychologists]." Tr. 9/16/93 (Reid) at 129, lines 11-13.
V Comparing Ebensburg to Western Carolina, a state-run residential facility where Dr. Reid is the Director of Psychology, is instructive. At Western Carolina, where the population is of similar size and with a similar range of disabilities as the population of Ebensburg, the psychology department includes three Ph.D. psychologists in addition to Dr. Reid, ten masters level psychologists, two special educators, and nine psychology technicians with bachelor's degrees. Tr. 9/16/93 (Reid) at 135-137, 140. Western Carolina's numbers reflect about seven FTE to do applied research and to perform work in the community that Ebensburg does not do. Tr. 9/16/93 (Reid) at 140-142. Putting aside these seven additional FTE, Western Carolina still has about 18 FTE psychology staff to work exclusively with the individuals living at Western Carolina — double the 9 psychologists working at Ebensburg.
At Western Carolina, the caseload for the ambulatory population is about 32 and for the nonambulatory population, about 43. Tr. 9/16/93 (Reid) at 138-140, 142. A Ph.D. psychologist supervises every 5 psychologists. Tr. 9/16/93 (Reid) at 139. In addition, Western Carolina also has one master's level psychologist, 2 special educators, and five bachelor's level psychology technicians who are not assigned particular caseloads, but instead work with the entire population. Tr. 9/16/93 (Reid) at 139-140.
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In order to provide psychology services that meet accepted professional standards of care, Ebensburg needs about four more Ph.D. psychologists and about twice the number of psychologists that presently work at Ebensburg. Tr. 8/2/93 (Russo) at 138-139. In order to provide psychology services that meet accepted professional standards of care, Dr. Stratton testified that he would need one more Ph.D. in psychology and at least two more psychologists with masters degrees. U.S. Exh. 640 (Stratton Dep.) at 212-213. Dr. Stratton made it clear that he was testifying about providing adequate — not ideal — services. U.S. Exh. 640 (Stratton Dep.) at 212-213. In order to provide psychology services that train individuals most efficiently and with the least restrictive interventions, in Dr. Stratum's opinion, Ebensburg needs two more Ph.D. psychologists and three additional masters level psychologists. U.S. Exh. 640 (Stratton Dep.) at 214.
Mr. O'Brien is concerned about the competency and quality of some of the PSA's at Ebensburg. U.S. Exh. 624 (O'Brien Dep.) at 136. Although Mr. O'Brien feels that there is a need to train all staff at Ebensburg, he feels that there may be more of a need to train the PSA's than others. U.S. Exh. 624 (O'Brien Dep.) at 212-213. Ebensburg staff have also indicated their desire for competent psychologists. For example, following a July 1992 incident in which Winfield M. was struck by a chair thrown by his peer, a direct care staff recommended that behavior programs be set up "by a competent psychologist." U.S. Exh. 105 at 4. Dr. Stratton believes that the Ebensburg PSA's have the greatest training needs in overall assessment skills and in hands-on training of clients on self-care skills. U.S. Exh. 639 (Stratton Dep.) at 49.
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In spite of these perceived training needs, the only formal in-house training for the PSA's at Ebensburg consists of a monthly meeting with Dr. Stratton that lasts approximately 2 hours. Attendance at this meeting is not mandatory. U.S. Exh. 639 (Stratton Dep.) at 4344. There is no budget marked for out-service training for the psychologists at Ebensburg. U.S. Exh. 639 (Stratton Dep.) at 45. PSA's have not in all cases received training that they needed as identified on prior years' evaluations either because in-house training was not provided or because out-service training requests were denied. U.S. Exh. 639 (Stratton Dep.) at 48.
1. The Role Of Ebensburg's Psychology Discipline Coordinator Is Too Limited.
Ebensburg's Psychology Discipline Coordinator, Dr. Stratton, is not responsible for the hiring, firing, or disciplining of the Ebensburg PSA's. Tr. 8/2/93 (Russo) at 18. Mr. Devine, who is in charge of residential services at Ebensburg — not Dr. Stratton — is ultimately responsible for assigning, and is directly involved in deciding, the caseload for each PSA. U.S. Exh. 639 (Stratton Dep.) at 21. The PSA's do not report to Dr. Stratton, but to their respective unit managers. Tr. 8/2/93 (Russo) at 18; U.S. Exh. 639 (Stratton Dep.) at 30-32. As far as Dr. Stratton knows, none of the unit managers have any background in psychology. U.S. Exh. 639 (Stratton Dep.) at 31. Given their lack of background and training in psychology, their inability to provide oversight of the PSA's' work, and their frequent use of psychology staff for non-psychology functions, the unit directors are ill-equipped and inappropriate to supervise psychology services at Ebensburg. Tr. 8/2/93 (Russo) at 80-81.
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Dr. Stratton has no authority to require PSA's to attend the monthly in-house training sessions that he provides. U.S. Exh. 639 (Stratton Dep.) at 45. Dr. Stratton thinks he should have the authority to require PSA's to attend these monthly training meetings. U.S. Exh. 639 (Stratton Dep.) at 45. Dr. Stratton has no formal budget to support the continuing education and professional development of the Ebensburg PSA's. Tr. 8/2/93 (Russo) at 18.
Dr. Stratton is not responsible for ensuring the adequacy of the skills training programs at Ebensburg. U.S. Exh. 639 (Stratton Dep.) at 51.
Dr. Stratton is not responsible for ensuring that every individual who lives at Ebensburg who has self-injurious behavior has an adequate behavior program to address the behavior. That responsibility falls to the individual QMRP's and ultimately to Mr. Bellomo. U.S. Exh. 640 (Stratton Dep.) at 193-194. Dr. Stratton is not responsible for ensuring that all staff who carry out behavior programs are sufficiently trained to carry them out. U.S. Exh. 639 (Stratton Dep.) at 54. Dr. Stratton is not responsible to ensure that behavior programs are consistently and correctly implemented. U.S. Exh. 639 (Stratton Dep.) at 55.
Dr. Stratton is not the chairperson of the Behavior Intervention Committee ("BIC"). Mr. O'Brien, the chair of the BIC, has no background in psychology. U.S. Exh. 640 (Stratton Dep.) at 198.
2. Psychologists At Ebensburg Perform Non-Psychology Functions Due To Staff Shortages.
Psychologists providing services to individuals with mental retardation in a residential setting like Ebensburg must work on positive, skill-oriented programming and develop skills training programs for positive skills training as well as behavior programs for difficult behaviors. Tr. 8/2/93 (Russo) at 11. Psychologists should observe their clients in all
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environments, and it is appropriate that psychologists accompany their clients to day programs as long as the psychologist is acting based on the needs of individual clients, and not due to staffing shortages. Tr. 8/2/93 (Russo) at 111-112.
However, psychologists at Ebensburg, who have huge caseloads, are pulled away from their duties due to staffing shortages to do ancillary tasks, including driving buses and suctioning during dental procedures; functioning as program monitors;!/ and performing direct care responsibilities. Tr. 8/2/93 (Russo) at 12-14; U.S. Exh. 639 (Stratton Dep.) at 34, 37-39; see also U.S. Exh. 182 (psychologist Zubal's grievance that instead of performing psychology duties, he was acting as a program monitor); U.S. Exh. 639 (Stratton Dep.) at 38-39 (psychologist Phillips acted as program monitor for approximately a year due to staff shortages); U.S. Exh. 639 (Stratton Dep.) at 34-36 (psychologists Hanagan and Lamar act as program monitors one half of one day each week, and on an as-needed basis the rest of the time, depending upon staff shortages). The Ebensburg psychologists uniformly expressed their concerns about being pulled away from their duties as psychologists to both Dr. Russo and to Dr. Stratton. Tr. 8/2/93 (Russo) at 15. In fact, Dr. Stratton encouraged psychologists Hanagan and Lamar to keep a diary of the time they spent acting as program monitors because he agreed with their concerns. U.S. Exh. 639 (Stratton Dep.) at 35-36; Tr. 8/2/93 (Russo) at 15. In addition, Dr. Stratton has discussed his concern that PSA's are made to act as program monitors with the supervisors who make those assignments, but the practice continues due to staff shortages. U.S. Exh. 639 (Stratton Dep.) at 38-39.
V A program monitor is responsible for supervising a group of residents and direct care staff during day programs. U.S. Exh. 617 (Graham Dep.) at 39.
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Dr. Reid agreed that the time spent by psychologists in non-psychology functions "needs to be relatively limited." Tr. 9/16/93 (Reid) at 17. However, Dr. Reid did not evaluate how much time psychologists at Ebensburg are engaged in direct service or support activities versus clinical time. Tr. 9/16/93 (Reid) at 149.
D. Behavior Management Standards Are Clear And Are Generally Set Forth In The Commonwealth's 1988 Statewide Behavior Management Policy.
Over the past thirty or forty years, an enormous body of scientific literature has been developed in the field of behavioral psychology that shows how to work effectively with mentally retarded clients. Tr. 8/2/93 (Russo) at 27-28; Tr. 8/4/93 (Amado) at 9-10. This literature sets forth the methodology by which a behavior like aggression or self-injurious behavior can be assessed, how that assessment is used to develop a treatment prescription, and how an adequate evaluation of progress can be made. Tr. 8/2/93 (Russo) at 27-28. The value of understanding the function of a behavior is well developed in the scientific literature, which links the identification of a problem behavior with its successful treatment. Tr. 8/2/93 (Russo) at 28.
The standards for behavior management techniques for people with mental retardation are written not only in the literature, but also have been written by many states, including the Commonwealth of Pennsylvania. Tr. 8/2/93 (Russo) at 118. U.S. Exh. 30 is Pennsylvania's 1988 Statewide Behavior Management Policy ("Commonwealth's 1988 Behavior Management Policy"). The Commonwealth's 1988 Behavior Management Policy is the current policy in effect at Ebensburg setting forth requirements for behavior management. Tr. 8/2/93 (Russo) at 18-19; U.S. Exh. 640 (Stratton Dep.) at 6; U.S. Exh. 870 (Thaler Dep.) at 53.
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Experts for both the United States and the Commonwealth agree that the requirements of the Commonwealth's 1988 Behavior Management Policy comport with generally accepted practices in the field. Tr. 8/2/93 (Russo) at 19; Tr. 8/4/93 (Amado) at 9-10; Tr. 9/16/93 (Reid) at 83. The practices embodied in the 1988 policy have been generally accepted principles in the field for at least the past decade, and probably for the past 15 to 20 years. Tr. 8/2/93 (Russo) at 19-20.
E. Ebensburg Is Failing To Provide Behavior Programs For Every Individual Exhibiting Serious Behaviors Resulting In Severe And Repeated Injuries.
Residential facilities like Ebensburg must provide a behavior program for every individual with a serious behavior problem. Tr. 8/2/93 (Russo) at 11, 21. Dr. Stratton acknowledges that every individual who exhibits a behavior that is potentially harmful to that person or to another person needs to have a behavior program. U.S. Exh. 639 (Stratton Dep.) at 79-80. However, Ebensburg has never made an attempt to identify individuals whose behaviors pose the greatest risk in terms of injuries to themselves or to other people. U.S. Exh. 639 (Stratton) at 67.
Dr. Russo, Dr. Stark and Dr. Fahs concluded that there are a number of individuals at Ebensburg exhibiting serious behaviors that are causing severe and repeated injuries for whom Ebensburg has instituted no behavior program to treat the serious behaviors. Tr. 8/2/93 (Russo) at 75-77, 89-90; Tr. 7/26/93 (Stark) at 134; Tr. 8/3/93 (Fahs) at 93-96. During their review of samples of Ebensburg records, Drs. Russo and Stark discovered that individuals exhibiting such very serious and dangerous behaviors as aggression, self-injurious behaviors, pica, biting, and inappropriate sexual behaviors had no behavior programs to
VII-16

address these behaviors. Tr. 8/2/93 (Russo) at 25, 75-77, 89-90; Tr. 7/26/93 (Stark) at 134.
Dr. Russo testified about 17 such cases he identified during his record review — fully a third
of the records he reviewed. Tr. 8/2/93 (Russo) at 75-77, 89-90. During his record review,
Dr. Stark identified many such cases and prepared a summary chart containing 14 examples
that was entered into evidence as U.S. Exh. 780 (attached). Tr. 7/26/93 (Stark) at 134.
Since at least 1983, Ebensburg has been aware that it is failing to provide behavior programs
to many residents with severe maladaptive behaviors. U.S. Exh. 793. Since 1983, State
surveyors have repeatedly cited Ebensburg for its failure to provide behavior programs to
residents with severe maladaptive behaviors. U.S. Exh. 793; U.S. Exh. 60 at 503756-
503757. The Commonwealth's psychology expert, Dr. Reid, made no effort to determine
whether Ebensburg had behavior programs in place for all individuals with maladaptive
behaviors. Tr. 9/16/93 (Reid) at 126. Dr. Reid, therefore, could not refute testimony by
experts for the United States that some Ebensburg clients who need behavior programs do
not have them because Dr. Reid only reviewed cases wherein behavior programs had been
developed. Tr. 9/16/93 (Reid) at 15-16.
The Commonwealth did not rebut a single case cited by either Dr. Russo or Dr.
Stark, either by providing evidence that a behavior program was in place, or had been
considered and rejected, or was not necessary.^/ Each individual at Ebensburg who is
6J The sole possible exception to this statement may be the case of Rosemary W. Ebensburg finally provided a behavior program for Rosemary following Dr. Russo's deposition in February 1993. However, at the time that Dr. Russo toured Ebensburg in the fall of 1992 and copied Rosemary's record, Rosemary was wearing a helmet for her behavior and had no behavior plan for her selfinjurious behavior of throwing herself to the ground and injuring herself. Tr. 8/2/93 (Russo) at 59, 76. Ebensburg failed to provide a behavior program for Rosemary in spite of the fact that IOC surveyors had cited Ebensburg for its failure to provide a behavior program for Rosemary during
(continued...) VII-17

exhibiting serious behaviors in the absence of an appropriate behavior program is not
receiving the benefit of appropriate psychology services and has experienced harm as a result
of Ebensburg's failure to provide these services. These individuals are at risk to themselves
and others at Ebensburg on a continuing basis. Tr. 8/2/93 (Russo) at 77, 90. The kinds of
serious behaviors that Ebensburg is failing to address with behavior programs fall into four
general categories: 1) aggression and self-injurious behaviors; 2) pica; 3) biting; and 4)
inappropriate sexual behaviors.
1. Ebensburg Is Failing To Provide Behavior Programs For Aggression And Self-Injurious Behaviors.
Both Dr. Russo and Dr. Stark identified cases where Ebensburg is failing to provide
behavior programs for individuals with aggressive and/or self-injurious behaviors who are
causing severe and repeated injuries to themselves or others. Tr. 8/2/93 (Russo) at 75-77;
Tr. 7/26/93 (Stark) at 134; U.S. Exh. 780. Examples of such cases include:
• Denise V., who does not have a behavior program for her severe self-injurious behavior, even though she has suffered serious and repeated injuries due to her behavior of
?/(... continued) their August 1992 survey. U.S. Exh. 1100. Dr. Stratton recalls that during Dr. Russo's tour in October 1992, staff reported that Rosemary wears a helmet because she has a behavior of throwing herself on the floor. U.S. Exh. 640 (Stratton Dep.) at 123.
Mr. Bellomo's testimony on the topic of Rosemary's helmet usage and whether he was aware of the need for a behavior program was quite contradictory. During cross-examination on October 14, 1993, Mr. Bellomo emphatically stated that he was unaware that Rosemary was wearing a helmet due to behaviors, including head banging, until Dr. Russo's deposition in February 1993. Tr. 10/14/93 (Bellomo) at 149-150. He maintained this position, even when shown the August 1992 IOC report citing Rosemary's helmet without a behavior plan as a deficiency some six months earlier. He stated again, that "[t]he first time I learned of it was Dr. Russo's deposition." Tr. 10/14/93 (Bellomo) at 150.
The next day, in re-direct testimony, he stated "the behavior and the problem of the helmet has been to my attention for quite some time." Tr. 10/15/93 (Bellomo) at 51, lines 16-17. When asked whether it was before Dr. Russo's deposition, he replied "Oh, my, yes. It was long before that deposition" and proceeded to describe the deficiency cited by the IOC survey team. Id. at 51, line 19.
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banging her head on walls, floors, and windows. Tr. 8/2/93 (Russo) at 75; see also U.S. Exh. 493(aa)(1992 and 1993 incident reports documenting instances where Denise has injured herself while banging her head). Denise's mother, Marian Dekowski, testified that since she placed Denise at Ebensburg when Denise was five, Denise's head has become indented and she walks now with a limp. Mrs. Dekowski thinks that both have been caused by Denise's head-banging. Tr. 7/26/93 (Dekowski) at 173-174. On July 24, 1993, two days before Mrs. Dekowski testified, Denise was found injured, and Ebensburg suspects that her injuries were due to her self-injurious behaviors. U.S. Exh. 958.
• James S., who does not have a behavior program for self-injurious behavior. Tr. 8/2/93 (Russo) at 75. James S.'s annual psychological evaluation identifies several behavior deficits, including aggression, punching, kicking, biting, scratching, or throwing objects, and aggression to the environment, and self-injurious behavior such as head banging, stabbing himself with a utensil, or falling backwards. U.S. Exh. 640 (Stratton Dep.) at 144. The only target behaviors included in James' behavior program are for aggression, which is defined as "hitting, slapping, kicking, and spitting." Stratton Dep. Exh. 3. Although James does have a behavior program for aggression that purports to also address his self-injurious behaviors, there is insufficient documentation in James' record to suggest that James' selfinjurious behavior and his aggression are related and amenable to the same treatment. Tr. 8/2/93 (Russo) at 75, 112-113; Tr. 8/3/93 (Fahs) at 130-131 (James' self-injurious behaviors are inappropriately "lumped together" for treatment purposes with other distinct unrelated behaviors).!/ In November 1992, when Ebensburg approved the use of Sinequan on an emergency basis for treatment of James' depression, James' team was instructed to submit a behavior program addressing James' self-injurious behavior together with a restrictive procedure request to the Behavior Intervention Committee. U.S. Exh. 922. The December 1992 minutes of the Behavior Intervention Committee, when a restrictive procedure request for James (client #806) was submitted, reflect no discussion of a behavior program for James for his self-injurious behavior. U.S. Exh. 42(c) at 541414. One month later when the Psychology Discipline Coordinator, Dr. Stratton, was deposed, he admitted that James' behavior program could be expanded and may be confusing to staff about how to respond to James' self-injurious behavior. U.S. Exh. 640 (Stratton Dep.) at 153, 168. This aspect of James' behavior program is still the same. U.S. Exh. 856. James has suffered many, many injuries due to his self-injurious behaviors. U.S. Exh. 479. James' injuries from self-abuse continued even at the time of trial. U.S. Exh. 958. For the period May through mid-August 1993, James engaged in self-injurious behavior four times, including breaking two mirrors and using the glass to cut his head open, hitting his head on the door causing four cuts to his
y Ebensburg has been repeated cited by State surveyors for its behavior programs, which inappropriately "lump together" more than one than one maladaptive behavior. U.S. Exh. 793; U.S. Exh. 66 at 2A (a "significant number" of Ebensburg behavior programs are "unacceptable" because, among other things, only one behavior program is provided for "multi-targeted behaviors").
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forehead, hitting his head on a metal desk and lacerating his scalp, and removing his toenail. No change was made in his behavior program. U.S. Exh. 958.V
• Winfield M., who has no behavior plan for his aggression. Tr. 8/2/93 (Russo) at 77. Ebensburg restrained Winfield for his behavior twice in 1991; 14 times between June and November 1992 (including three instances of restraint in a papoose board); and 3 times during the first seven and a half months of 1993. U.S. Exh. 993.
• Eileen G. Both Dr. Russo and Dr. Stark reviewed Eileen's record and both concluded that she has no behavior program for her "long history" of aggressive behavior of pushing clients off of furniture and pulling them out of their wheelchairs. Tr. 8/2/93 (Russo) at 76; U.S. Exh. 780. During the seven months from August 1991 until February 1992, Eileen, on at least 23 occasions, pushed, shoved, punched, slapped, and hit other residents, including knocking them to the floor from their wheelchairs, stepping on them, sitting on top of them, and pulling their arms and hair. U.S. Exh. 360. Both experts also concluded that Eileen has no behavior program for her self-injurious behavior, which includes biting and hitting herself. Tr. 8/2/93 (Russo) at 76; U.S. Exh. 780.
• Ruth J. Both Dr. Russo and Dr. Stark reviewed Ruth's record, and both concluded that Ruth has no behavior program for her aggression and self-injurious behaviors. Tr. 8/2/93 (Russo) at 76-77; U.S. Exh. 780. Dr. Russo testified that when Ruth struck her mouth on a railing, resulting in the extraction of Ruth's tooth, staff commented that Ruth "is known for this type of behavior." Tr. 8/2/93 (Russo) at 76-77. The regression analysis for Ruth shows that her aggressive behavior significantly increased during the period from January 1992 through March 1993. U.S. Exh. 783.
• Eugene B. The videotape taken by Dr. Russo during his tours of Ebensburg shows Eugene with each finger bandaged due to his severe self-injurious finger picking that results in bleeding. Tr. 8/2/93 (Russo) at 88; U.S. Exh. 260. Ebensburg has not provided a behavior program for Eugene, in spite of the fact that Eugene chronically injures his fingers in a self-injurious ritual. Tr. 8/2/93 (Russo) at 77, 88.
• Mark K., who has no behavior program for his self-injurious behaviors despite repeated episodes of slapping, pounding and scratching his face to the point of causing bruising, swelling, and abrasions. Dr. Stark noted that Mark has now begun to also bite himself. U.S. Exh. 780.
• Estelle M., who has no behavior program for her self-injurious behavior of inserting objects into her vaginal and rectal areas, in spite of repeated instances of this
V See also infra § IX.A.7 (discussion of the inadequate psychiatric care that Ebensburg has provided to James).
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behavior with such objects as a chair leg, a pencil, a hair brush, and a spoon. Tr. 7/26/93 (Stark) at 134-135; U.S. Exh. 780.
• James W., who has no behavior program for his self-injurious behavior of tearing off his fingernails and toenails. Tr. 7/26/93 (Stark) at 135; U.S. Exh. 780. James has exhibited this behavior on a number of occasions. U.S. Exh. 135, 136.
• Rosemary W., who has no behavior program for her self-injurious behavior of throwing herself on the floor and injuring herself, in spite of the fact that she wears a restraint helmet for this behavior. Tr. 8/2/93 (Russo) at 59, 76.
2. Ebensburg Is Failing To Provide Behavior Programs For Pica. There is a wealth of information that is well-established in the literature about the treatment of individuals with pica, the behavior of eating inedibles. Tr. 8/2/93 (Russo) at 73-74. Experts for both the United States and the Commonwealth agree that individuals who exhibit pica behavior need to be provided a behavior program to treat that behavior. Tr. 8/2/93 (Russo) at 74, 104-106; U.S. Exh. 639 (Stratton Dep.) at 71. In every single case of pica he has treated, Dr. Russo has been able to identify strategies that reduce the pica behavior. Tr. 8/2/93 (Russo) at 108-109. Although pica is a behavior that, in some cases, is "stunningly amenable to treatment," Tr. 8/2/93 (Russo) at 107, line 13, the chances of treatment success decrease the longer the behavior is not treated in a professionally acceptable manner. Tr. 8/2/93 (Russo) at 107-108. Individuals with known pica behaviors at Ebensburg do not have behavior programs to address the pica. Tr. 8/2/93 (Russo) at 75-77, 89-90; Tr. 7/26/93 (Stark) at 134; U.S. Exh. 780. Dr. Stark identified three individuals who exhibit pica behavior, yet have no behavior program for pica. Tr. 7/26/93 (Stark) at 134; U.S. Exh. 780. For instance, Dale J. has no behavior program for pica even though he has swallowed parts of zippers, screws, a key and other metallic objects, and pieces of rug and paper, and has been hospitalized
VII-21

several times due to a GI bleed. Tr. 7/26/93 (Stark) at 134; U.S. Exh. 780 (attached). In October 1992, Dale's team met and decided he did not have pica and concluded that the items must have entered him through a "contaminated food item or accidental ingestion." Tr. 7/26/93 (Stark) at 134; U.S. Exh. 780. In addition to Dale, Dr. Stark found that Michael B., who eats Attends, toilet paper and toothpaste, does not have a behavior program for pica even though his pica behavior is noted in Michael's annual review. U.S. Exh. 780. Dr. Stark also found that Vincent P. does not have behavior program for pica, even though foreign objects have been found in his vomit. U.S. Exh. 780.
Dr. Russo testified about seven additional individuals who exhibit serious pica behavior, yet have no behavior program for pica. Tr. 8/2/93 (Russo) at 75-76, 90. For example, Brian B. has been hospitalized for ingestion of a piece of wood, and has eaten chalk, a crayon, and an ear tip from a thermometer. Tr. 8/2/93 (Russo) at 76. David W. has had several surgical procedures to remove objects he has swallowed and has a psychiatric diagnosis of pica, but has no behavior program for pica. Tr. 8/2/93 (Russo) at 90.'/ In addition to Brian and David, Dr. Russo noted that Darren W., George C , Lawrence D., Brenda M., and John B. all exhibit pica behaviors, yet have no behavior programs for pica. Tr. 8/2/93 (Russo) at 76-77.
The psychology expert for the Commonwealth did not know whether all of the Ebensburg clients with serious pica behaviors have a behavior program for pica, but he would be "surprised" if they did not. Tr. 9/16/93 (Reid) at 127-128.
'/ Stratton Dep. Exh. 10 is a computer printout of the eight individuals at Ebensburg who have a psychiatric diagnosis of pica. U.S. Exh. 639 (Stratton Dep.) at 69-70. The list includes David W.
VII-22

3. Ebensburg Is Failing To Provide Behavior Programs For Biting. Ebensburg is failing to provide behavior programs to individuals who bite others, and these individuals are inflicting serious and painful repeated bites on the residents at Ebensburg. Tr. 7/26/93 (Stark) at 134; U.S. Exh. 780. Ebensburg has taken inadequate action both to protect the person being bitten and to address the behaviors of the biter. Tr. 7/26/93 (Stark) at 129. George M. is an individual identified by Dr. Stark as having no behavior program for biting even though George has inflicted many serious bites. U.S. Exh. 780. Ebensburg has failed to provide George with a behavior program for biting despite the fact that in August 1992, the IOC surveyors identified George as an individual who needed a behavior program for biting. In their 1992 survey, the IOC reviewers specifically cited Ebensburg's failure to identify biting as a problem behavior for George, especially given the fact that George is a Hepatitis B carrier. U.S. Exh. 67 at 8D. The evidence shows that in 1992, George bit or was suspected to have bitten Larry D. on seven different occasions, inflicting at least 28 bites. U.S. Exh. 267(c). On March 30, George was suspected to have caused seven bite wounds on Larry's shoulder and arm. On April 1, George was suspected to have bitten Larry twice on the chest. On April 22, direct care staff heard Larry scream and he came running over to staff with bite marks on both hands. The incident report notes that although the bites were not witnessed, that George was near Larry and "has bitten [Larry] repeatedly in the past." On September 18, George bit Larry on the upper arm. On September 21, direct care staff heard a loud scream from the bedroom, ran in and discovered George biting Larry on the arm. Five fresh bites were found on Larry. On September 22, George bit Larry again — twice on the forearm, once on
VII-23

the finger, and once on the upper arm. On December 10, staff heard Larry scream and turned to see George biting Larry; this time George bit Larry seven times, including both wrists, on the forearm and between the eyebrows. U.S. Exh. 267(c).
Dr. Stark also found that Andrew H. has no behavior program for biting. U.S. Exh. 780. Andrew bit his peers six times between July and November 1992. Tr. 7/26/93 (Stark) at 129; U.S. Exh. 267(c). Ebensburg staff noted the need to develop a behavior program for Andrew's biting during July 1992. Tr. 7/26/93 (Stark) at 129; U.S. Exh. 780, 267(c). Instead of treating Andrew's biting with a behavior program, Ebensburg is treating Andrew's biting by giving him psychotropic medications. U.S. Exh. 780.™/
Dr. Stark found that George F., an individual with a long history of serious biting behaviors, has no behavior program for biting. U.S. Exh. 780. Ebensburg has failed to provide a behavior program for George's biting even though Dr. Sneed asked Ebensburg to provide one in 1991 due to Dr. Sneed's concern that "client will continue to bite (attack) other relatively defenseless individuals." U.S. Exh. 780; §ee also supra § V.F.3 (discussion of Ebensburg's failure to protect its residents from George's biting even when told to do so).
Some Ebensburg residents are being repeatedly bitten by the same person. Tr. 7/26/93 (Stark) at 129. For example, Mary Ann R. was bitten five times by Bonnie R. in a five month period between late 1992 and early 1993. Tr. 7/26/93 (Stark) at 129. Bonnie does not have a behavior program to address her biting. Tr. 7/26/93 (Stark) at 129; U.S. Exh. 780. Dr. Stark calls this "disturbing" and stresses that "You've got to address biting;
™/ For a discussion of the inadequate psychiatric care that Ebensburg provides Andrew, including its failure to consider non-medication alternatives for Andrew's behavior, see infra § IX.A.7.
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this is a very severe, high priority type behavior that needs to be addressed." Tr. 7/26/93 (Stark) at 129. In Larry D.'s case, when staff have identified the biter, it is most frequently the same person (George M.), who does not have a behavior plan for his biting and is a Hepatitis B carrier. U.S. Exhs. 780, 267(c).
The psychology expert for the Commonwealth agreed that biting is a very serious problem, that biting is very painful, and that biting behavior can be eliminated in certain cases. Tr. 9/16/93 (Reid) at 14."/ Dr. Reid did not review whether individuals at Ebensburg who bite have appropriate behavior programs for biting. Tr. 9/16/93 (Reid) at 146.
4. Ebensburg Is Failing To Provide Behavior Programs For Inappropriate Sexual Behavior.
Ebensburg has also failed to provide behavior programs to residents with inappropriate sexual behaviors. Tr. 7/26/93 (Stark) at 134; U.S. Exh. 780. There are many individuals at Ebensburg who engage in inappropriate sexual behaviors. U.S. Exh. 615 (Goldschmidt Dep.) at 97. Ebensburg's failure to provide behavior programs for inappropriate sexual behaviors is particularly harmful in light of the fact that Ebensburg has no sexuality counselor. Tr. 10/14/93 (Bellomo) at 112-113. Ebensburg's psychiatric consultant, Dr. Goldschmidt, thinks that Ebensburg should have a sexuality counselor. In her opinion, if Ebensburg had a sexuality counselor, a lot of the sexual acting out might be eliminated. U.S. Exh. 615 (Goldschmidt Dep.) at 97. Dr. Stark found that James W. does not have a behavior program for his inappropriate sexual behavior. U.S. Exh. 780. Mr.
11/ Dr. Hauser, one of the Commonwealth's psychiatry experts, testified that, in every single case of his, biting behavior was improved by his treatment. Tr. 9/15/93 (Hauser) at 141-142.
VII-25

Bellomo knew as far back as December 1991 that James W. was sexually aggressive. Tr. 10/14/93 (Bellomo) at 108. In spite of this knowledge, Mr. Bellomo placed James in Keystone House to recuperate from his fractured jaw. A few weeks later, in January 1992, James was found in a Keystone bathroom stall with Keystone resident Vincent V., Vincent's underwear was down, and James was straddling him.^/ Following three more incidents in 1992 where James was engaged in a sexual activity with another client, James' team met on October 28, 1992. James' team decided to acquire a private bedroom for James and to contact a certified sex therapist for James. U.S. Exh. 501 (summary chart of Ebensburg's response to James W.'s sexual behaviors). James' sexual behaviors continued. After six such incidents, on November 12, 1992, Mr. Bellomo issued a memo stating that James should be moved to a private bedroom "immediately." On Thursday, November 19 at 5:10 a.m., James was found in bed with another individual disrobed from the waist down. Later that same day, at 10:00 a.m., James was found in the bathroom on his living unit engaging in anal intercourse with Michael W., a Hepatitis B carrier. U.S. Exh. 501. James was not moved to a private bedroom until more than two weeks after Mr. Bellomo's memo, on November 27, 1992, nearly a month after James' team recommended that he be moved to a private bedroom. Tr. 10/13/93 (Bellomo) at 169."/ An evaluation of James' sexual
"/ This evidence directly contradicts Mr. Bellomo's testimony that no sexual occurrences occurred in Keystone House in either 1992 or 1993. Tr. 10/13/93 (Bellomo) at 152-153. X2J U.S. Exh. 501 lists November 24, 1993 as the date that James was moved to his private bedroom. This was based upon his 11/19/92 occurrence report where he was engaged in anal sex with a Hepatitis B carrier. On the back of his occurrence report, the supervisor notes that he is "slated to move to private bedroom on 11/24/92." U.S. Exh. 501(a) at 00540663. Mr. Bellomo testified at trial, however, that James was not actually moved until November 27, 1992. Tr. 10/13/93 (Bellomo) at 169.
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indicated that George was "too low functioning" for a behavior problem. H. at 104. Dr. Fahs was struck by this notion, given that George is no different than the other profoundly mentally retarded individuals at Ebensburg. Id. Defendants' psychiatric expert, Dr. Hauser, admitted that it would obviously be a problem if Ebensburg staff routinely concluded that individuals were too low functioning to benefit from programming. Tr. 9/15/93 (Hauser) at 97. Instead of providing George with a behavior program, Ebensburg is treating George's behavior of masturbating at inappropriate places and times with psychotropic medication. Id. 103-105; see also infra § K.A.7 (discussion of Ebensburg's failure to provide George with adequate psychiatric care).
5. Ebensburg Fails To Provide Behavior Programs Even When The Facility Director Requests Them.
Even where Mr. Bellomo has directed staff to address "obviously" "dangerous" kinds of behaviors with a behavior program, Tr. 10/14/93 (Bellomo) at 12, the behaviors have not been addressed and the residents have suffered harm. For instance, in October 1992, Mr. Bellomo observed Marian M. spinning around in a self-stimulatory behavior during day programming. Staff indicated that Marian often spins and will do so for prolonged periods of time. Mr. Bellomo walked with Marian for awhile and found that she did not spin. Tr. 10/14/93 (Bellomo) at 123-124. He asked why Ebensburg staff could not engage her in similar types of activities. Id.; U.S. Exh. 207. A month later, during November 1992, Mr. Bellomo again observed Marian M. twirling with no staff intervention. He wrote a memo asking Mr. McGuire, the unit manager, to advise him of whether Marian had any program to discourage her twirling behavior. U.S. Exh. 209.
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Mr. Bellomo admits that Marian's twirling behavior "obviously" is "a very dangerous kind of behavior, because once you start that twirling, if you come in contact with a piece of furniture or lose your balance, you're liable to fall down and be injured." Tr. 10/14/93 (Bellomo) at 12. When Mr. Bellomo testified at trial in October 1993 - almost a full year after he asked whether Marian had a behavior program to discourage her twirling behavior Mr. Bellomo admitted that Marian still did not have a behavior program for her spinning and twirling behavior. Tr. 10/14/93 (Bellomo) at 131. He also admitted "perhaps I should have followed up again after that last memo on Marion [sic]. That may be something that I should have done." Tr. 10/14/93 (Bellomo) at 132, lines 12-14.^/
Marian has suffered significant injuries since Mr. Bellomo first inquired about Marian's twirling behavior. In April 1993, Marian was spinning in her bedroom without staff intervention while staff engaged in morning care. U.S. Exh. 209. Marian tripped and hit her mouth on her bed when she fell, lacerating her lip, cheek and gums. U.S. Exh. 209. Six sutures were required to close the two lacerations, and Marian had to be restrained in a papoose board in order to suture her mouth. Tr. 10/14/93 (Bellomo) at 127. Marian had to take medication for pain and wear mitten restraints for seven days to allow the wounds to heal. Id.; U.S. Exh. 413.
On June 3, 1993, Marian "was awake most of the night spinning." A bruise on Marian's eye was discovered during morning care, a bruise on Marian's elbow was found later on, and there was some drainage from Marian's eye. U.S. Exh. 413. These injuries
"/ In fact, Mr. Bellomo admits that he does not always follow up on concerns that he has identified. Tr. 10/14/93 (Bellomo) at 131.
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were thought to be due to Marian's bumping into something while spinning in the night. U.S. Exh. 413. Marian's psychologist was asked to perform a functional analysis of her spinning behavior. U.S. Exh. 413. On August 8, 1993, Marian was sitting on the wooden arm rest of a chair, and when she got up, "she made a motion as [if] to twirl but fell striking the arm rest of the chair." Marian's eyelid was lacerated and had to be closed with four sutures. Again, her psychologist was told to conduct a functional analysis of Marian's spinning behavior. U.S. Exh. 413.
Instead of instituting a behavior program to decrease Marian's spinning behavior and replace it with a less risky behavior, staff note on the incident report of Marian's April injury that a private nanny paid for by Marian's parents will be hired soon and Ebensburg will rely on the nanny to intervene every time Marian starts to spin. U.S. Exh. 209. By the time Mr. Bellomo testified in October 1993, Marian's parents were paying for a nanny who is with Marian five hours a day. Tr. 10/14/93 (Bellomo) at 124.
Dr. Amado testified that the incidents for Marian demonstrate Ebensburg's lack of responsiveness to an identified problem, which is resulting in harm to Marian. Tr. 8/4/93 (Amado) at 68-69. Marian's parents' hiring of a nanny to provide services to protect Marian does not speak highly of Ebensburg. Tr. 8/4/93 (Amado) at 92. Moreover, Ebensburg's solution of simply letting the parents provide nanny supervision in the absence of Ebensburg's provision of an adequate habilitative program for Marian will simply lead to Marian being nanny dependent for the rest of her life without habilitative opportunities. Tr. 8/4/93 (Amado) at 92.
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F. Ebensburg's Behavior Programs Are Not Effective. Where they do exist, behavior programs at Ebensburg are not effective. Tr. 8/2/93 (Russo) at 59. Staff at Ebensburg agree. For instance, the unit manager of Sunset House admits that there are several Sunset House individuals for whom behavioral programs are not working. U.S. Exh. 642 (Weimer Dep.) at 150-151. Ebensburg's behavior management services have been cited for lack of effectiveness by State surveyors. U.S. Exh. 793. Dr. Reid did not evaluate whether the behavior programs at Ebensburg are effective. He did not look at the data concerning an individual's behavior before, during and after implementation of a behavior program. Tr. 9/16/93 (Reid) at 104, 113. The standard convention in the field to determine whether a behavior program is effective is to represent behavior data graphically over time and determine the trend. Tr. 8/2/93 (Russo) at 61. U.S. Exh. 783 represents such graphs of Ebensburg behavior data taken from 38 records, and includes graphs for 45 aggressive and self-injurious behaviors. The behavior data was taken from any record reviewed by Dr. Russo for whom behavior data is collected by Ebensburg and for whom at least a year of recent data was available in the record. For each resident's set of data, a regression analysis produced the straight line that best described the data. Tr. 8/2/93 (Russo) at 61-62. Behavior data from adequate behavior programs would show orderly reductions in the behaviors. Tr. 8/2/93 (Russo) at 64. Instead of showing such orderly behavior reductions, the "great majority" of graphs show that serious aggressive and self-injurious behaviors of the residents at Ebensburg have either stayed the same or have actually gotten worse in spite of Ebensburg's behavior management services. Tr. 8/2/93 (Russo) at 67, line 23.
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For instance, the data show that, for Sandy W., there has been no change in her aggressive behavior over time. For Irvin B., from April 1991 through January 1993, his rate of aggression not only increased, but the variability of his data increased, suggesting that Ebensburg does not understand and is unable to manage his behavior. Tr. 8/2/93 (Russo) at 64; U.S. Exh. 783. In spite of the fact that psychologists should detect trends in behavior data when treating clients, staff at Ebensburg are not using the data they collect on behaviors to inform their clinical decisions. Tr. 8/2/93 (Russo) at 64-65.
Although Dr. Reid expects that behavior programs at Ebensburg are effective, he does not know whether they are. Tr. 9/16/93 (Reid) at 113. The regression analysis performed by Dr. Russo proves Dr. Reid's expectation to be mistaken. Regression analyses of behavior data for 14 of the 15 clients whose behavior programs Dr. Reid reviewed reveals that for four of the 15 clients (Ann B., Franklin B., Irvin B., and Jeffrey C ) , maladaptive behaviors are increasing, and for six of the 15 clients (Gary E., Thomas E., Veedia H., John G., Betty Jean H., and Sandra W.), there has been no improvement in behavior. U.S. Exh. 783.
Ann B. is an example of an Ebensburg resident on a behavior program whose behaviors are getting worse. U.S. Exh. 783. In early 1986, Ebensburg was restraining Ann for her self-injurious behavior with a papoose board or helmet at a rate of less than two hours per month. Tr. 8/2/93 (Russo) at 65; U.S. Exh. 93. In April 1986, Ebensburg introduced the restraint chair as part of Ann's behavior program for self-injurious behavior, which resulted in an immediate and significant increase in Ann's rate of restraint. Tr. 8/2/93 (Russo) at 65; U.S. Exh. 93. Instead of making informed clinical judgments and recognizing that Ann was one of a whole class of individuals who self-injure in order to obtain restraint,
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extra-pyramidal symptoms. Id. In spite of the fact that Ann took psychotropic medications for her self-injurious behavior for many years, Dr. Goldschmidt only saw Ann five times between April 1986 and January 1992. Id.
The significant amount of time that Ann spends in her restraint chair is also causing Ann much harm. While in restraint, she is not receiving positive habilitation and skills development training and there is an indication in Ann's chart that she has suffered a bowel obstruction and has had a colostomy as a result of prolonged inactivity in her chair. Tr. 8/2/93 (Russo) at 66, 92. See also Tr. 7/29/93 (McGowan) at 181-182.
Dr. Reid reviewed Ann's behavior program and observed her. Dr. Reid thought that Ebensburg should be doing more for Ann, and he is not satisfied with her case. Tr. 9/16/93 (Reid) at 117. Dr. Reid relied on Ebensburg's representations that they had sought outside consultation from the Kennedy Institute, but he was not aware that the Kennedy Institute consultation occurred five years ago. Tr. 9/16/93 (Reid) at 159. Dr. Reid is not aware of any other outside consultations that Ebensburg arranged for Ann. Tr. 9/16/93 (Reid) at 159. At the time Ann received a consultation from the Kennedy Institute in 1988, she had been in her chair for about two years. The Kennedy Institute recognized that Ann's chair was serving a protective function, but cautioned that the chair must be considered as only a way station, and not as a final goal for Ann. Tr. 8/2/93 (Russo) at 101. The Kennedy Institute provided valuable information to Ebensburg concerning Ann's motivation for her self-injury, but Ebensburg failed to use that information to change its treatment for her. Tr. 8/2/93 (Russo) at 101, 103-104. Ebensburg did not do its own functional analysis of Ann's behavior until March 9, 1993. U.S. Exh. 964.
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G. Ebensburg Is Failing to Revise Its Behavior Programs When Necessary. Ebensburg does not revise behavior programs when necessary. Tr. 8/2/93 (Russo) at 68; Tr. 7/26/93 (Stark) at 134; U.S. Exh. 780. Dr. Stratton agrees that not all of the behavior programs at Ebensburg are reviewed and revised with sufficient frequency. U.S. Exh. 640 (Stratton Dep.) at 138-139. Dr. Stratton admits that Ebensburg has not adjusted behavior programs as promptly as they should have in some cases where behavior does not improve or is getting worse. U.S. Exh. 640 (Stratton Dep.) at 139. There is no individual responsible on a facility-wide basis for ensuring the appropriate review and timely revision of behavior programs except for the approximately 15 Class HI behavior programs. U.S. Exh. 639 (Stratton Dep.) at 57-58. For behavior programs that are not Class HI, an individual's QMRP —not the individual's psychologist — is primarily responsible for ensuring that the behavior program is reviewed, revised and is currently appropriate. U.S. Exh. 639 (Stratton Dep.) at 56-57. Ebensburg has been repeatedly cited for its failure to revise its behavior programs. U.S. Exh. 793.
1. Ebensburg's Failure To Revise Behavior Programs Is Resulting In Harm.
Based upon his review, Dr. Russo concluded that the residents of Ebensburg are suffering significant harm as a result of Ebensburg's failure to revise behavior programs in a timely manner. Tr. 8/2/93 (Russo) at 68. In almost all cases that he reviewed, Ebensburg continued the same non-individualized behavior programs year after year even though clients continued to exhibit significant behavior problems resulting in injuries. Tr. 8/2/93 (Russo) at 74-75.
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Dr. Russo testified in detail about three individuals who are being significantly
harmed by Ebensburg's failure to revise behavior programs in a timely manner — Irvin B.,
Sandra W., and Winfield M. Tr. 8/2/93 (Russo) at 68-74.
• Irvin B.: In less than a three month period between August and October 1992, clients attacked Irvin B."/ at least eight times. During these attacks, Irvin was punched in the eye twice, bitten on the arm, bitten on the back by a Hepatitis B carrier, bitten on the hand, pushed and fell, lacerating his lip, and was found with a razor extension cord that another individual had wrapped around his neck. Tr. 8/2/93 (Russo) at 69. Ebensburg documents indicate that these incidents were due to Irvin's pesty and teasing behaviors, yet Ebensburg did not revise Irvin's behavior program to train Irvin not to engage in such behaviors. Tr. 8/2/93 (Russo) at 69.^/ It is Ebensburg's responsibility in a case like Irvin's to provide adequate social skills behavior programs to decrease maladaptive antisocial behaviors to protect Irvin from harm and to provide a safe environment from others. Tr. 8/2/93 (Russo) at 69-70. Ebensburg's failure to revise Irvin's behavior program in a timely and appropriate manner has resulted in great harm to Irvin. Tr. 8/2/93 (Russo) at 70.
• Sandra W.: Sandra W. has a behavior program for aggression and biting that has not been revised since January 1989. U.S. Exh. 93. Between January 1989 and September 1992, Sandra was bitten by her peers on 47 occasions (more than half of these bites were inflicted by Loretta A.); was sent to the emergency room three times because her shoulder was dislocated due to unknown causes; fractured her finger due to unknown causes; banged her face on the floor while being placed in floor control due to her behaviors, and lost three teeth; was pushed, resulting in 12 sutures to her head; was kicked several times in the face; and tore off five of her toenails. Tr. 8/2/93 (Russo) at 70; U.S. Exh. 135, 136. Between January 1991 and September 1992, Sandra bit her peers on 11 occasions, including biting off a piece of Debra S.'s nose. U.S. Exh. 267(c). On September 9, 1992, Sandy's PSA reviewed her behavior program and concluded that it needed no adjustment. Tr. 8/2/93 (Russo) at 70. Since that time, she has caused eight injuries, including biting Evelyn D. on the upper arm, Gwen C. on the breast, and Mary Rose B. on the forearm three times, and has been injured eight times, including being bitten on three occasions, and being kicked in the face on three separate occasions and punched in the face once by Denise V. U.S. Exh. 958; U.S. Exh. 267(c); U.S. Exhs. 135, 136. Sandra W. is a hepatitis B carrier. U.S. Exh. 501. Ebensburg's failure to timely revise Sandra's behavior program to effectively decrease her aggressive behavior and teach her appropriate social skills has resulted in significant harm to Sandra's peers as well as to Sandra. Tr. 8/2/93 (Russo) at 70-71.
lV Irvin's name is incorrectly transcribed in the trial transcript as Aaron. Tr. 8/2/93 (Russo) at 69.
"/ In October 1993, Mr. Bellomo suggested that Irvin has been provided counselling in the last few months. Tr. 10/13/93 (Bellomo) at 230.
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• Winfield M.: Winfield has a behavior program for pica, written in 1987, that is little more than a safety procedure to prevent ingestion of inedibles. Tr. 8/2/93 (Russo) at 72. Even this procedure has been ineffective in protecting Winfield. Except to change his medications, Winfield's program has not been significantly revised since 1987, even though his behavior program is not working. Tr. 8/2/93 (Russo) at 72. In 1987, Winfield had surgery for a perforated bowel and foreign body removal; in 1988, he was again hospitalized for pica; in 1990, he ate a tack, and when he was x-rayed to see where it was, a conglomerate of screws and nails were seen in his abdomen; in June 1992, he vomited up rubber bands, clothing labels and cigarette butts; in July 1992 he vomited clothing labels again; in August 1992, he ate two buttons from his shirt; in October 1992, he ate cigarette butts, including one that may have been lit; in October 1992, he took apart a cupboard door and ate a screw; in November 1992, he ate paper off the floor and ate a clothing label; in February 1993, he was hospitalized for abdominal pain, an x-ray showing numerous metal objects, but surgery to remove the objects was unsuccessful; and in March 1993, because Winfield was limping, an x-ray was done which revealed a zipper and numerous screws in his abdomen. Tr. 8/2/93 (Russo) at 72-73. Following the March 1993 incident, Ebensburg removed Winfield from his day program at Gary Bain because there are nuts and bolts at Gary Bain instead of revising his behavior program to aggressively manage Winfield's pica behavior. Tr. 8/2/93 (Russo) at 73.!!/
Dr. Stark provided five additional examples of behavior programs that had not been
revised despite continued injuries to the individual or to others. U.S. Exh. 780. For
example, although Ronnie B. has had a behavior program for her pica behavior since 1990,
her behavior program has not been revised despite a 1992 Ebensburg staff recommendation
that a new program be implemented to "adequately deal with her pica." In November 1992,
a two inch wooden peg was found in her stool. U.S. Exh. 780. Similarly, although Gary K.
has had a behavior program for biting since 1988, Gary's plan has not been revised since
then in spite of frequent biting episodes, including a March 1992 incident in which Gary bit
James P. on the scrotum, requiring sutures, and in spite of a note on an incident report
following that bite that Gary's program needs to be reviewed and/or revised. U.S. Exh.
"/ Winfield missed three months of work at Gary Bain. He was not returned to Gary Bain until June 15, 1993. Tr. 10/13/93 (Bellomo) at 225.
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267(c); U.S. Exh. 780. There was no psychologist at Gary's 1992 annual review. U.S. Exh. 780.!!/
Raymond H. has been injured 94 times in the 50 months in the period January 1989 through February 1993. U.S. Exh. 777, 1034. Ebensburg has not revised Raymond H.'s behavior program for aggression and self-injurious behavior since April 1991, except to eliminate restraints from his program in late 1992 and a living area restriction in December 1991. U.S. Exh. 856, 42(c) at 4860, 4890, 4911, 541439, 541418. In the 22 months from July 1991 to April 1993, Raymond was injured 34 times. U.S. Exh. 369, 1043. Fourteen of these 34 injuries were due to his self-injurious behavior, including, in May 1992, throwing himself over a railing, striking his face on a ramp edge, fracturing and abrading a deep piece of flesh from his nose. Raymond was sent to the emergency room via ambulance for six sutures to the bridge of his nose. In August 1992, Raymond slammed his head into the floor when he was told he did not have a paycheck, requiring four sutures, and in November 1992, he smashed his head into a window, lacerating his scalp, requiring three sutures. In November 1992, Raymond pulled out his tooth. Of the remaining 20 injuries Raymond sustained between July 1991 and April 1993, Raymond was injured five times during fights with his peers, five times when his peers hurt him without provocation, seven times due to falls, and three times due to falls relating to seizures. U.S. Exh. 369, 1034. The evidence demonstrates that Ebensburg has failed to revise Raymond H.'s behavior program even though Raymond suffers repeated injuries due to his behaviors and was restrained for his
"/ See also infra § IX.A.7 (discussion of Ebensburg's failure to timely treat Gary with appropriate antidepressant medication, resulting in harm because Gary was forced to suffer agitation and aggression in the absence of adequate psychiatric care).
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behaviors 18 times during the period January 1990 through November 1992. U.S. Exh. 369, 42(c) at 4860, 4890, 4911, 541439, 541418. The regression analysis of Raymond's behavior data shows that Raymond's behavior is not improving. U.S. Exh. 783.
Dr. Reid agreed that it is not professionally acceptable to continue an individual on a behavior program that is not working without revising it in a timely manner. Tr. 9/16/93 (Reid) at 122. Dr. Reid, however, did not look at a single record to determine whether Ebensburg revises behavior programs when individuals make no progress on the program or when behaviors increase. Tr. 9/16/93 (Reid) at 119. Instead, Dr. Reid relied on Ebensburg's representations that a process was in place to review the behavior programs. Tr. 9/16/93 (Reid) at 119. U.S. Exh. 93 contains the restrictive procedure requests for the 15 individuals whose behavior programs Dr. Reid reviewed. Dr. Reid did not review these restrictive procedure requests in order to form his opinion. Tr. 9/16/93 (Reid) at 8. These restrictive procedure requests demonstrate virtually no revisions in behavior programs over prolonged periods of time, except for changes in psychotropic medication and elimination of the use of the papoose board in late 1992.
Dr. Reid did not evaluate the injuries that occur at Ebensburg. Tr. 9/16/93 (Reid) at 123. In the three and a half months between May 1, 1993 and August 18, 1993, the 15 individuals whose behavior programs Dr. Reid reviewed caused 54 injuries to themselves or others due to their behaviors. U.S. Exh. 958. A review of the underlying incident reports corresponding to these injuries confirms that Ebensburg has failed to revise behavior programs in spite of repeated injuries caused by behaviors. For instance, between May and August 1993:
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• Franklin B. caused 11 injuries to himself or others, including causing Dennis B.'s temple to bleed; slapping Eric S. in the mouth, resulting in the extraction of Eric's front tooth; and biting Elliot G. twice. In spite of the fact that Ebensburg acknowledged that Franklin was presenting a severe behavior disruption, his behavior program was not modified and only his medications were adjusted. During this same time period, Ebensburg chemically restrained Franklin B. on an emergency basis on 11 separate occasions. U.S. Exh. 993.*/
• James S. engaged in self-injurious behavior four times, including breaking two mirrors and using the glass to cut hit head open, hitting his head on the door, causing four cuts to his forehead, hitting his head on a metal desk and lacerating his scalp, and removing his own toenail. No change was made in his program.
• Ann B. hurt herself four times through self-abuse; there were no changes in her program.
• John G. bit Paul M., hit and may have bitten Deron E., and engaged in selfinjurious behavior three times, including raking his face and biting himself. There was no change in John's behavior program.
• Betty Jean H. engaged in self-abuse on four occasions and hurt others twice. Although Tegretol was added to her medications in July 1993, her behavior program was continued as written.
• Denise V. engaged in self-injurious behavior on at least four occasions, including lacerating her scalp from hitting her head on a wooden divider. Ebensburg recommended that no changes be made to Denise's current behavior program.
f7 See also infra § DC.A.7 (discussion of Ebensburg's inadequate psychiatric care for Franklin including: 1) improper assessment and diagnosis of Franklin's aggression, which has caused harm to Franklin and others because Franklin's aggression has increased over time, 2) inability to rely on behavior data and functional analyses of Franklin's behavior, 3) failure to implement the consulting psychiatrist's recommendations, and 4) inadequate review of Franklin's medications by Ebensburg's Behavior Intervention Committee).
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that behavior programs continue year after year without change. Tr. 8/2/93 (Russo) at 5758. For instance, in spite of 106 episodes of restraint in a two year period, James S.'s behavior program for aggression was recommended to continue without change by the BIC during the period January 1990 through February 1993 except to approve changes to his psychotropic medications and approve replacement of the use of the papoose board with use of floor control in late 1992. U.S. Exh. 42(c) at 4863, 4891, 4910, 4825, 4830, 4937, 541441, 541426, 541416. Similarly, in the more than three years between January 1990 and February 1993 when Sandra W. was restrained more than 70 times, the BIC recommended that her behavior program be continued without change except for changes in her drugs and replacement of the papoose board with floor control in late 1992. U.S. Exh. 42(c) at 4856, 4881, 4902, 4930, 4846, 541439, 76626, 541421-22. The BIC even recommended continuation of Sandra's behavior program in January 1992, after noting that Sandra had been restrained a record number of times (20) in one month, alone, in December 1991. Id. at 4940. Between January 1990 and February 1993, the BIC recommended that Denise V.'s behavior program be continued without change except to change her drugs and replace use of the papoose board with use of floor control in late 1992. U.S. Exh. 42(c) at 4879, 4895, 4919, 4836, 541460, 541433, 541421-22.
The Commonwealth's 1988 Behavior Management Policy requires that members of Ebensburg's Behavior Intervention Committee have expertise in psychopharmacology. U.S. Exh. 30 at 53; Tr. 10/19/93 (O'Brien) at 88. When he toured Ebensburg in September 1992, Dr. Fans asked Mr. Fris whether his attendance at the behavior management committee was a priority, and Mr. Fris agreed that it was a priority. U.S. Exh. 612 (Fris
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Dep.) at 131. However, according to Mr. Fris, there are not enough staff for Mr. Fris to regularly attend the meeting. U.S. Exh. 612 (Fris Dep.) at 131. Mr. Fris admits that before he spoke with Dr. Fahs, he had not been attending the BIC meetings regularly. U.S. Exh. 612 (Fris Dep.) at 131. U.S. Exh. 42 shows that before Dr. Fahs attended the September 1992 BIC meeting, pharmacists only attended BIC meetings 17% of the time. Since Dr. Fahs toured Ebensburg, pharmacist participation at BIC meetings has increased to 56%. Tr. 10/19/93 (O'Brien) at 91.
H. Direct Care Staff Are Failing To Implement Behavior Programs. Based on their observations of staff at Ebensburg, Drs. Russo and Amado testified that direct care staff at Ebensburg are failing to implement behavior programs. Tr. 8/2/93 (Russo) at 78; Tr. 8/4/93 (Amado) at 44-45. Ebensburg's own documents also demonstrate that direct care staff are failing to implement behavior programs. For instance, an Ebensburg nurse making rounds at 4:30 a.m. found Nathaniel W. being restrained in a papoose board with a stool over his head, covering his face, and no staff in the immediate area. Use of the stool in conjunction with the papoose board was not part of Nat's behavior program. U.S. Exh. 126. An abuse investigation of the incident uncovered the fact that only one staff person on the third shift had ever been inserviced on Nat's behavior program, and the training had occurred when that staff worked the daylight shift. U.S. Exh. 126. Nat's psychologist could not remember specific times that he had conducted inservice training on the third shift. U.S. Exh. 126. In another incident, on February 13, 1992, a direct care trainee witnessed staff place a pillow case over Jeff K.'s head while drawing blood, and when he asked why, staff replied that "we always do that." U.S. Exh. 133 at
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6658. Jeffs behavior program did not permit such a procedure. Id. at 6679. An abuse investigation revealed that of the four regular staff in Jeffs living area, only one had been inserviced on Jeffs behavior program. Id. at 6673. In September 1992, Mr. Devine toured day programming in Harmony House Learning Center. A direct care staff on overtime revealed to Mr. Devine that she did not know the clients and did not know their behavioral characteristics. U.S. Exh. 212. On September 26, 1992, Richard M. had been engaging in self-injurious behavior since about 3:00 p.m., and at 6:10 p.m., Richard was discovered with part of his finger amputated. U.S. Exh. 107. Following the amputation, Richard's psychologist was asked to in-service his "new" staff on his behavior program. U.S. Exh. 107. Moreover, Ebensburg has been repeatedly cited by State surveyors for its failures to implement behavior programs. U.S. Exh. 793. For instance, in August 1992, Ebensburg was cited for failing to implement James B.'s behavior program during day programs. U.S. Exh. 67 at 8A.
Dr. Reid was the only witness to conclude that Ebensburg staff are implementing components of behavior programs. Tr. 9/16/93 (Reid) at 39. However, Dr. Reid's conclusion is based on observations of a small number of individuals (13) for short periods of time (an average of about eighteen and a half minutes each). Tr. 9/16/93 (Reid) at 108; U.S. Exh. 966. As is evident from his data, in many cases, Dr. Reid was simply unable to evaluate whether Ebensburg implemented its behavior programs because the behaviors at issue did not occur during his observation periods. Tr. 9/16/93 (Reid) at 108-109. For instance, Dr. Reid could not evaluate whether Ebensburg implemented the negative consequence behavior components of its behavior programs in 17 of his 22 observations
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because of non-occurrence of behaviors. U.S. Exh. 966. In addition, Dr. Reid's data collection methodology is flawed. For instance, if Dr. Reid did not see a reinforcer being given, he scored it as insufficient time rather than as non-implementation of the program. Tr. 9/16/93 (Reid) at 109-110. Dr. Reid scored more than half of his tangible reinforcement observation periods as "insufficient time". U.S. Exh. 966. Dr. Reid concedes that there is a possibility that he was witnessing non-implementation and scoring it incorrectly as "insufficient time". Tr. 9/16/93 (Reid) at 110. Given the fact that Dr. Reid did not observe individuals for the full length of the individual's reinforcement schedule of either 30 or 60 minutes, Dr. Reid obviously could not, and did not, score a single observation as nonimplementation of a DRO reinforcer. U.S. Exh. 966.
All three psychology experts for the United States and Dr. Stratton testified that direct care staff at Ebensburg are not adequately trained to provide necessary implementation of behavior management services. Tr. 7/26/93 (Stark) at 119; Tr. 8/2/93 (Russo) at 78; Tr. 8/4/93 (Amado) at 44-45; U.S. Exh. 640 (Stratton Dep.) at 19-20, 185-186, 218. Dr. Goldschmidt admits that she has not conducted in-service training sessions for all staff at least semi-annually regarding treatment of individuals with both behavior and psychiatric problems even though this training is required by her contract. U.S. Exh. 615 (Goldschmidt Dep.) at 105. Dr. Russo testified that there is a systemic failure to teach direct care staff to conduct the technical requirements of treating and protecting the individuals at Ebensburg. Tr. 8/2/93 (Russo) at 79.??/
?V Supervisory staff, as well as direct care staff, need training. Tr. 8/2/93 (Russo) at 79-81. U.S. Exh. 183 is an October 1992 memo from a residential services manager to the facility director, stating that the supervisors at Ebensburg are plagued by a general lack of knowledge pertaining to their job function, and requesting competency based training for supervisory staff at Ebensburg.
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Dr. Stratton admits that it is not possible to ensure consistency in implementation of behavior programs without adequate training. U.S. Exh. 640 (Stratton Dep.) at 189. Mr. Bellomo admits the critical importance of consistently implementing behavior programs, stating that "programs are only going to be effective if they are consistently implemented." U.S. Exh. 603 (Bellomo Dep.) at 54, lines 5-9. The unit manager of Keystone House admits that staff do not consistently implement behavior programs for individuals in Keystone who have such programs. U.S. Exh. 604 (Bonfanti Dep.) at 115-116.
It is critical that all staff who work with an individual know how to work with that individual. Tr. 8/4/93 (Amado) at 48. Over 25% of the direct care staff - those staff hired before the current training protocol was started — have not received full training. Tr. 8/2/93 (Russo) at 78. Ebensburg provides no competency based training to direct care staff for implementation of behavior programs. Tr. 8/2/93 (Russo) at 78-79. Little, if any, training is provided to residential staff concerning appropriate materials and activities for profoundly and severely mentally retarded clients. Tr. 8/2/93 (Russo) at 79. Until recently, there was no procedure at Ebensburg for in-servicing staff on the 11:15 p.m. until 7:30 a.m. shift on the behavior programs for the clients living on their assigned units. U.S. Exh. 181.
Ebensburg does not have a policy that requires staff newly assigned to an area to have training in the behavior programs of the individuals living in that area before working with the individuals. U.S. Exh. 640 (Stratton Dep.) at 181. Similarly, as the incident involving the amputation of Richard M.'s finger tip indicates, Ebensburg also fails to train staff when a new resident is transferred to their unit. U.S. Exh. 107. Dr. Stratton admits that Ebensburg staff interact with clients before they are fully trained on their behavior programs. U.S.
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Exh. 640 (Stratton Dep.) at 181. Staff who are temporarily pulled to a building from another building are not trained in the behavior programs of the individuals living there. U.S. Exh. 640 (Stratton Dep.) at 182. Both direct care staff trainees who testified at trial, Damian Tackett and Robin Hebenthal, testified that Ebensburg assigned them to work with individuals but failed to provide any training concerning the programs of the individuals. Tr. 8/3/93 (Tackett) at 7, 13; Tr. 8/3/93 (Hebenthal) at 198-199.
Ebensburg does not require PSA's to train all direct care staff who work with a client whenever that client's behavior program is revised. U.S. Exh. 640 (Stratton Dep.) at 186. Ebensburg does not systematically evaluate whether appropriate staff are being inserviced on a timely basis when behavior programs are revised. U.S. Exh. 640 (Stratton Dep.) at 187188.
Direct care staff at Ebensburg are also inadequately trained to operate under their own direction and initiative. "In the absence of supervision, they are at a loss." Tr. 8/4/93 (Amado) at 53, lines 7-8; U.S. Exh. 212, 214. As a result, services are not provided to residents when supervisors are absent, resulting in harm to the residents due to lack of meaningful activity. Tr. 8/4/93 (Amado) at 53.
I. Ebensburg's Behavior Programs Do Not Comport With Generally Accepted Standards.
Behavior programs at Ebensburg substantially depart from appropriate professional practice and these inadequate programs are resulting in harm to the residents of Ebensburg. Tr. 8/2/93 (Russo) at 20, 59. Dr. Reid testified that Ebensburg's "treatment programs for severe behavior problems could be improved." Tr. 9/16/93 (Reid) at 12. Dr. Reid testified that effort should be made to improve the programs to get them as close as possible to state
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of the art. Tr. 9/16/93 (Reid) at 12. "State of the art," according to Dr. Reid, means the technology represented in the professional literature, but it does not mean optimal. Tr. 9/16/93 (Reid) at 9. Mr. O'Brien characterizes the behavior programs at Ebensburg as "low tech". U.S. Exh. 624 (O'Brien Dep.) at 137.
1. Ebensburg's Behavior Programs Are Not Individualized. The field, in general, and the Commonwealth's 1988 Behavior Management Policy, in particular, require that behavior programs be individualized. Tr. 8/2/93 (Russo) at 19, 22; U.S. Exh. 30 at 2. In Dr. Russo's opinion, "in almost all cases, the [behavior] programs are essentially canned. There is very little in the way of individualization. There is very little in the way of differential programming for individuals with these very serious and dangerous behaviors." Tr. 8/2/93 (Russo) at 25, lines 20-24. Ebensburg's canned behavior programs, according to Dr. Russo, show no evidence that the enormous body of scientific methodology that has developed during the past thirty or forty years as to what constitutes appropriate practice in the field of behavioral psychology as applied to individuals with mental retardation is being applied. Tr. 8/2/93 (Russo) at 27-28, 104. State surveyors have cited Ebensburg for its failure to provide individualized behavior programs, at various times calling Ebensburg's behavior programs "canned" and "prepackaged," and stating that "the facility appears to have a generalized approach to behavioral management." U.S. Exh. 793. U.S. Exh. 592 contains blank behavior programs for Class II and Class III Ebensburg behavior programs. Most of the Class n and all of the Class III training programs for residents of Ebensburg follow the canned programs that comprise U.S. Exh. 592. Tr. 8/2/93 (Russo) at 23-25. According to Dr. Stratton, all of the Class III behavior programs at
VII-48

Ebensburg have followed the blank Class III behavior program contained in U.S. Exh. 592 for the past four or five years. U.S. Exh. 639 (Stratton Dep.) at 89.
U.S. Exh. 856 is a compilation of the 37 behavior programs that had been written for the approximately 50 cases that Dr. Russo reviewed. The plans in Exhibit 856 demonstrate Ebensburg's strong reliance on the masters and use of their canned definitions, methodologies, and standard sequence of behavioral programming. Tr. 8/2/93 (Russo) at 2425.
Dr. Reid only reviewed 15 Ebensburg behavior programs, and concluded that "there were a lot of similarities across the programs." Tr. 9/16/93 (Reid) at 21. Dr. Reid does not know whether Ebensburg is just filling in the blanks in the behavior programs. Tr. 9/16/93 (Reid) at 21.
2. Ebensburg's Behavior Programs Do Not Teach Alternative Behaviors. The field, in general, and the Commonwealth's 1988 Behavior Management Policy, in particular, require Ebensburg to develop behavior programs that emphasize developing adaptive, alternative behaviors rather than merely eliminating or suppressing undesirable behaviors. Tr. 8/2/93 (Russo) at 19, 29; U.S. Exh. 30 at 3. This requirement is critical because many maladaptive behaviors that people with mental retardation exhibit are really an attempt to communicate something. Tr. 7/26/93 (Stark) at 57; Tr. 8/2/93 (Russo) at 29. In providing a positive, alternative method of communication, the individual can communicate without resort to an undesirable behavior. Tr. 8/2/93 (Russo) at 29. Dr. Stratton acknowledges that the purpose of a behavior program is to increase the frequency of desired behaviors and to decrease the frequency and/or intensity of challenging
VII-49

behaviors. U.S. Exh. 640 (Stratton Dep.) at 9-10. Time and time again, the literature

demonstrates that if you suppress an undesired behavior without teaching a desired behavior

to replace it, you not only have decreased the ability of a mentally retarded individual to

communicate, but the minute you take away the suppression program, the undesired behavior

returns. Tr. 8/4/93 (Amado) at 116-120. The mission of a psychologist is not to suppress

clients' behaviors, thereby diminishing the breadth of their behaviors and leaving them with

fewer skills than when the psychologist found them. Instead, the mission of a psychologist is

to increase clients' independence and increase the breadth of their abilities. Tr. 8/4/93

(Amado) at 118-119.

Dr. Stratton admits that the educational component of most of Ebensburg's behavior

programs, in which alternative functional behaviors are supposed to be taught, follow the

blank behavior programs entered into evidence as U.S. Exh. 592. U.S. Exh. 639 (Stratton

Dep.) at 90. Almost exclusively, the only method that Ebensburg uses to fulfill the

requirement that it teach alternative behaviors in its behavior programs is the use of a

procedure called a "differential reinforcement of other behavior ("DRO"). Tr. 8/2/93

(Russo) at 29-30. Dr. Stratton further admits that more than 95% of Ebensburg's behavior

programs involve the use of DRO's. U.S. Exh. 640 (Stratton Dep.) at 17-18.

A

DRO rewards behaviors other than the undesirable behavior. If an individual does not

exhibit an undesirable behavior for a specified period of time, the individual will receive

something that he likes. Dr. Stratton admits that DRO's do not necessarily teach an

individual positive behaviors (although they may inadvertently do that). DRO's do not teach

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the person what to do. They only teach the individual what not to do. U.S. Exh. 640 (Stratton Dep.) at 18.
In almost all cases, use of a DRO is not an adequate positive educational adaptive component of a behavior program. Tr. 8/2/93 (Russo) at 31. Ebensburg's only attempt to teach adaptive, alternative behaviors is to provide a reinforcer once every 30 or 60 minutes. Tr. 8/2/93 (Russo) at 30. In Dr. Russo's words, "about every sixty minutes on the average they walk in, they pat the guy on the back, say something to him. They may or may not deliver something tangible like an edible and say 'Good job,' or 'You're being appropriate." Tr. 8/2/93 (Russo) at 30, lines 15-20. As Dr. Russo explained, DRO's are generally ineffective with severely or profoundly retarded individuals who find it very difficult to figure out what they have done right in the past thirty or sixty minutes in order to deserve a reward. Tr. 8/2/93 (Russo) at 31.
Dr. Reid agrees with Dr. Russo that behavior programs must emphasize developing adaptive behaviors rather than merely eliminating undesirable behaviors. Tr. 9/16/93 (Reid) at 21. According to Dr. Reid, Ebensburg needs to improve the component of their behavior programs that emphasize developing adaptive behaviors. Tr. 9/16/93 (Reid) at 21.
3. Reinforcers Are Not Given Out Consistently. Other than occasional verbal rewards, Dr. Russo did not observe any individualized, tangible reinforcers being given to individuals while they were on the living units. Tr. 8/2/93 (Russo) at 37. Dr. Stratton admits that the tangible reinforcements for the DRO's are not always consistently implemented. U.S. Exh. 640 (Stratton Dep.) at 22.
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According to Dr. Stratton, in order to determine whether Ebensburg staff are delivering reinforcements according to the DRO schedules set up in the behavior programs, observers would generally have to observe for at least an hour. U.S. Exh. 640 (Stratton Dep.) at 23. The psychology expert for the Commonwealth did not do this. Tr. 9/16/93 (Reid) at 109-110.
4. Ebensburg Has Failed To Conduct Functional Analyses. Ebensburg's failure to conduct functional analyses until only very recently substantially departs from accepted general practices in the field. Tr. 8/2/93 (Russo) at 47.^/ It is a generally accepted standard in the field that psychologists must conduct a functional analysis of behaviors addressed in behavior programs. Tr. 8/2/93 (Russo) at 21; U.S. Exh. 640 (Stratton Dep.) at 27-28. The Commonwealth's Behavior Management Policy, which was adopted by the Commonwealth in 1988, requires that facilities conduct a functional analysis of each undesirable behavior before treatment programs are designed. U.S. Exh. 30 at 8-9, 14. Dr. Stratton admits that it is important that a formal document identified as a functional analysis be present in the record of each individual with a behavior program. U.S. Exh. 640 (Stratton Dep.) at 27. At the time of Dr. Russo's first tour of Ebensburg in September 1992, Ebensburg had not completed a single formal functional analysis. Tr. 8/2/93 (Russo) at 45-46. By his
fV Functional analysis is a term that describes the investigative process that looks at the medical, physiological, and environmental aspects to determine what the function of the behavior is, why the behavior occurs, and what the purpose of the behavior is. U.S. Exh. 639 (Stratton Dep.) at 75. Functional analysis can provide information on what steps should be taken to resolve challenging behaviors and can give a psychologist clues, or, in some cases, direct evidence, as to what should be done to establish behavior that will serve the same function but will be potentially less harmful to the person and to those around the person. U.S. Exh. 639 (Stratton Dep.) at 75.
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second tour in October 1992, Ebensburg had completed only two functional analyses, despite the fact that the Commonwealth's Behavior Policy had mandated that functional analyses be performed for each individual with a behavior suppression program since 1988. Tr. 8/2/93 (Russo) at 46.^/ Ebensburg completed three additional functional analyses during the two days that Dr. Russo toured the facility in October 1992. Tr. 8/2/93 (Russo) at 46. In October 1992, Mr. Bellomo asked Dr. Stratton to give him specific details about how to incorporate suggestions made by the Department of Justice regarding functional analysis into the psychology services at Ebensburg. Bellomo Dep. Exh. 10 at 2.^f/
When he was deposed in January 1993, Dr. Stratton admitted that not every individual with a behavior program at Ebensburg had an adequate functional analysis. U.S. Exh. 640 (Stratton Dep.) at 26. At that time, Dr. Stratton also admitted that not even every individual at Ebensburg with a Class IH program had an adequate functional analysis. U.S. Exh. 640 (Stratton Dep.) at 26-27. Dr. Stratton also admitted that not every individual who is taking a behavior modifying medication had an adequate functional analysis of their behaviors. U.S. Exh. 640 (Stratton Dep.) at 111-112. Dr. Stratton brought to his
*/ Western Carolina, a state-run institution for the mentally retarded, was doing functional analyses in 1988. Tr. 9/16/93 (Reid) at 104-105. */ After Dr. Russo's October 1992 tour of Ebensburg, Ebensburg completed one functional analysis in December 1992, none in January 1993, and four in February 1993. Tr. 8/2/93 (Russo) at 46-47. Ebensburg did not begin to actually conduct functional analyses with any concerted effort until after the United States filed a formal discovery request in January 1993 asking defendants to identify all functional analyses conducted by Ebensburg and the dates die functional analyses had been conducted. U.S. Exh. 1021 at 4-5. Defendants did not answer those interrogatories until May 7, 1993. Id. at 13. In the interim, Ebensburg conducted 34 functional analyses. Id. at 4-5. Ebensburg, however, never produced in discovery documents requested by Dr. Russo that would evidence changes in behavior programs made as a result of the functional analyses. Tr. 8/2/93 (Russo) at 47.
VII-53

deposition, as requested, a list he generated of individuals at Ebensburg having the most serious behavior problems. U.S. Exh. 639 (Stratton Dep.) at 8; Stratton Dep. Exh. 1. Only two of the eight individuals identified by Dr. Stratton as having the most serious behavior problems at Ebensburg had a functional analyses at the time of Dr. Stratton's deposition. U.S. Exh. 640 (Stratton Dep.) at 177. It took Ebensburg another five months to complete functional analyses for the remaining six individuals on Dr. Stratton's list. U.S. Exh. 964; Stratton Dep. Exh. 1.
At the time of Dr. Stratton's deposition, James S. did not have an adequate functional analysis. U.S. Exh. 640 (Stratton Dep.) at 175. Dr. Stratton admitted that the seriousness of James' behavior warranted a comprehensive written functional analysis before 1993. U.S. Exh. 640 (Stratton Dep.) at 176. It took Ebensburg another two and a half months to complete a functional analysis of James' behaviors. U.S. Exh. 964. During this time period, James tore off one of his toenails and one of his fingernails, hit his head on the wall hard enough to cause a scalp laceration, and hit another client on the head so hard it reopened a wound on James' hand. United States' Exh. 479. The incident where James hit his head on the wall occurred on February 17, 1993 — one month after Dr. Stratum's deposition. On the occurrence report documenting that injury, the supervisor in James' living area was unable to make any recommendations for prevention of recurrence of James' self-abuse because there was no knowledge of what causes James' behaviors, despite the fact that his behaviors seemed to be getting worse. U.S. Exh. 479. It still took Ebensburg another 6 weeks to perform a functional analysis for James.
VII-54

Dr. Russo did not see any evidence in any of the over 50 records that he reviewed nor did he hear evidence during any of the staff interviews that he conducted that Ebensburg was relying on oral communications with staff regarding the function of a behavior for an individual in order to develop its behavior programs. Tr. 8/2/93 (Russo) at 136-137. Dr. Reid claimed that he saw such evidence in the few Ebensburg behavior programs that he reviewed, but he admitted that he had never evaluated the effectiveness of a behavior program that included such an oral functional analysis. Tr. 9/16/93 (Reid) at 104.
Dr. Stratton admits that injuries due to behaviors would be reduced if every individual at Ebensburg with challenging behaviors had an adequate functional analysis. U.S. Exh. 640 (Stratton Dep.) at 30; Tr. 8/2/93 (Russo) at 45. He further admits that there would probably be fewer restrictive interventions at Ebensburg if every individual with challenging behaviors had an adequate functional analysis. U.S. Exh. 640 (Stratton Dep.) at 30.^f/
It is part of the job of a psychologist to be able to predict when one of his clients will engage in a dangerous act. Tr. 8/4/93 (Amado) at 93. The psychologist fulfills that responsibility by doing a comprehensive functional analysis of his clients' behaviors. Tr. 8/4/93 (Amado) at 93. Dr. Amado is able to make predictions about when his clients will engage in dangerous behaviors because he does comprehensive functional analyses. Tr. 8/4/93 (Amado) at 93.
*/ Although he is not a psychologist, Dr. Kastner reported that there is a controversy in the literature about the use of functional analyses. Dr. Kastner specifically cited articles by Linscheld and Landau in the summer 1993 edition of the Journal on Mental Retardation, testifying that the articles raised significant questions for the readership as to the subjectivity of functional analysis as a treatment option. Tr. 9/13/93 (Kastner) at 169-170. The articles that Dr. Kastner cites have nothing at all to do with the use of functional analysis; rather, they are a debate on the treatment of behaviors using electro-shock therapy.
VII-55

To implement behavioral suppression programs without completing a comprehensive functional analysis is malpractice. Tr. 8/4/93 (Amado) at 116-120. Even though it is inappropriate to treat undesirable behavior without a functional analysis, Ebensburg treats a particular resident's inappropriate behavior with a "standard package," without really understanding why the individual is behaving that way. Tr. 8/2/93 (Russo) at 28, 43.
5. Ebensburg's Data Collection System Is Not Individualized And Does Not Measure Frequency. Intensity. And Duration Of Behavior.
Ebensburg's data collection system substantially departs from generally accepted professional standards. Tr. 8/2/93 (Russo) at 53; Tr. 8/3/93 (Fahs) at 76. The field, in general, and the Commonwealth's 1988 Behavior Management Policy, in particular, require Ebensburg to collect behavior data that measures the frequency, intensity and duration of a behavior that is the target of a behavior program. Tr. 8/2/93 (Russo) at 47-48; Tr. 8/3/93 (Fahs) at 76; U.S. Exh. 30 at 16, 28, 33. Dr. Reid agrees that the Commonwealth's 1988 Behavior Management Policy requires Ebensburg to collect data on the frequency, intensity and duration of behaviors that are the subject matter of behavior programs. Tr. 9/16/93 (Reid) at 98. Ebensburg's interval data collection system records whether a particular behavior occurred on an hourly basis. Tr. 8/2/93 (Russo) at 48; Tr. 8/3/93 (Fahs) at 76; U.S. Exh. 640 (Stratton Dep.) at 46. In response to the question whether the interval data collection system at Ebensburg provides sufficient information to meet professional standards, instead of providing a responsive answer, Dr. Reid answered "it can." Tr. 9/16/93 (Reid) at 29. According to Dr. Reid, the interval data collection system that Ebensburg uses is "relatively gross." Tr. 9/16/93 (Reid) at 28-29.
VII-56

Ebensburg's interval data system does not measure the duration or intensity of a behavior at all, and is only a rough measure of the frequency of a behavior. Tr. 8/2/93 (Russo) at 49; Tr. 8/3/93 (Fahs) at 76; Tr. 9/16/93 (Reid) at 98-99. That is, whether a behavior occurred fifty times or one time during an hour, Ebensburg's data system would only reflect the behavior's occurrence once during that hour. Tr. 8/2/93 (Russo) at 49. Dr. Stratton agrees that Ebensburg's 24 hour data collection sheets just record whether or not the behavior occurred at all during a one hour interval and do not measure the frequency of a behavior. U.S. Exh. 640 (Stratton Dep.) at 62.
For each year between 1989 and 1992, state surveyors have found deficiencies with Ebensburg's data collection system, including data that was incomplete, uninformative, and at times, absent, and a lack of data regarding the frequency and severity of a behavior. U.S. Exh. 779. Ebensburg does not do any formal reliability checks on its 24 hour behavior data collection. U.S. Exh. 640 (Stratton Dep.) at 22. In October 1992, Mr. Bellomo asked Dr. Stratton to review the data collection system in place at Ebensburg and provide specific details about how to improve the data collection system. Bellomo Dep. Exh. 10 at 2. The same data system was in effect, however, as of April 1993 when Dr. Reid toured Ebensburg. Tr. 9/16/93 (Reid) at 28-29.
Ebensburg's interval data collection system is not sufficiently individualized. Tr. 8/2/93 (Russo) at 48; Tr. 8/3/93 (Fahs) at 73, 76. It is used in virtually all cases at Ebensburg. Tr. 8/2/93 (Russo) at 48; U.S. Exh. 640 (Stratton Dep.) at 46.!!/ Dr. Fahs
"/ At his deposition, the only example of an individualized data collection system that Dr. Stratton could think of was the system instituted in December 1992 for data collection for Dean F., where data is collected at half hourly intervals and there is greater specification of the events he is involved in
(continued...)
vn-57

concluded that Ebensburg's blanket use of its "universal data collection sheet" for any and all behaviors, no matter what they are, for any and all individuals, was "entirely inappropriate." Tr. 8/3/93 (Fahs) at 76. Dr. Stratton admits that in some cases it would be better if Ebensburg's data collection system were more individualized. U.S. Exh. 640 (Stratton Dep.) at 65.
Dr. Russo has very serious concerns regarding the reliability and validity of the data collected by Ebensburg. Tr. 8/2/93 (Russo) at 52. When he reviewed behavior data sheets during his tours of Ebensburg, Dr. Russo found significant gaps and missing data. Tr. 8/2/93 (Russo) at 52. For instance, on October 23, 1993, no data had yet been filled out for any of the individuals at Laurel House when he toured there about 3:10 p.m., and staff indicated that often data would be filled out later. Tr. 8/2/93 (Russo) at 152-153; see also U.S. Exh. 607 (Degretto Dep.) at 154-155 (unit manager of Villa states that staff sometime fill out behavior data sheets at the end of the shift instead of at the end of each elapsed hour); U.S. Exh. 642 (Weimer Dep. at 155) (unit manager of Sunset House recalls instances when behavior data was not filled out for recurring periods of time). Dr. Russo testified that interviews with Ebensburg staff indicated that Ebensburg routinely fills in behavior data after the fact - sometimes days after the fact. Tr. 8/2/93 (Russo) at 52; see also U.S. Exh. 640 (Stratton Dep.) at 58-61 (describing routine used by PSA's to get missing data filled in days
^/(...continued) throughout the day. U.S. Exh. 640 (Stratton Dep.) at 57-58.
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after behavior occurred). Dr. Stratton admitted that data filled in days after it occurred is not as reliable or valid. U.S. Exh. 640 (Stratton Dep.) at 60.^/
In addition, Dr. Russo found instances where data had been filled out before the fact during his review of records after his tours. Tr. 8/2/93 (Russo) at 68, 133, 148-149. For instance, staff investigating the incident in which Betty Jean H.'s arm was broken during an attempt to place her in floor control found that data on Betty Jean's 24 hour behavior sheet had been filled out in advance of the occurrence, and the sheets indicated that Betty Jean was sleeping at the time of the incident. U.S. Exh. 134 at 3; see also U.S. Exh. 607 (Degretto Dep.) at 155 (unit manager of Villa thinks that data sheets have been filled out before they were supposed to be); Degretto Dep. Exh. 13 (memo dated May 11, 1992 from Degretto to Villa supervisors asks that staff be trained to complete behavior sheets hourly — "not for periods before or after"); U.S. Exh. 642 (Weimer Dep.) at 156-157 (unit manager of Sunset House recalls an instance where behavior data was filled out before the shift was completed and states that there "definitely" could be other instances that he is not recalling at the moment).
Dr. Russo also is concerned with the reliability of Ebensburg's data because Ebensburg only collects behavior data two days a week at the program sites. Tr. 8/2/93 (Russo) at 50; U.S. Exh. 640 (Stratton Dep.) at 50-51. In Dr. Russo's opinion, where
*/ U.S. Exh. 97 shows that on September 4, 1992, Ebensburg approved the emergency use of Mellaril for Brenda M. Tr. 10/19/93 (O'Brien) at 77. At that time, Ebensburg specifically requested that behavior data be collected on her behavior of hyperactivity. Tr. 10/19/93 (O'Brien) at 77. In fact, Ebensburg did not begin taking data on Brenda's behavior, other than her pica behavior, until September 14, 1992. Tr. 10/19/93 (O'Brien) at 78-79. In spite of the absence of any behavior data, Ebensburg extended its approval for the emergency use of Mellaril for Brenda M. on September 14, 1992. U.S. Exh. 97.
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Ebensburg has established behavior programming at the facility based on continuous data, it makes no sense to only collect data at program sites two days per week. Tr. 8/2/93 (Russo) at 51. Dr. Stratton admits that it is important to consistently collect information about behaviors in program areas because that is the basis upon which decisions are made about what to do with and for an individual. U.S. Exh. 640 (Stratton Dep.) at 52-53. Although Dr. Reid testified that it can be appropriate to sometimes collect data only a few days a week rather than every day during the week, he added that "it could easily be that two days a week is not sufficient." Tr. 9/16/93 (Reid) at 29. Dr. Reid did not evaluate whether Ebensburg's practice of collecting data only two days a week in its day program is effective. Tr. 9/16/93 (Reid) at 153.
According to Dr. Stratton, if there were more direct care staff at Ebensburg, it would be easier to individualize the data collection process. U.S. Exh. 640 (Stratton Dep.) at 66. If there were more psychology staff at Ebensburg, Ebensburg would be better able to train direct care staff to collect behavior data. U.S. Exh. 640 (Stratton Dep.) at 66. When training on use of the data collection sheet is given, it generally only lasts 10 to 15 minutes. U.S. Exh. 640 (Stratton Dep.) at 49.
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EBENSBURG USES UNDUE BODILY RESTRAINTS. A. Ebensburg Is Chemically Restraining Its Residents.
1. Ebensburg Is Using Behavior Modifying Medications As A Substitute For Behavior Programs.
Dr. Russo, Dr. Stark, and Dr. Fahs all found that Ebensburg is using behavior modifying medications as substitutes for behavior programs. Tr. 8/2/93 (Russo) at 54; Tr. 7/26/93 (Stark) at 130-131; Tr. 8/3/93 (Fahs) at 93, 96. Dr. Stark, who has edited two books on people who have a dual diagnosis of mental retardation and mental illness, is critical of Ebensburg's practice of resorting to medications as a way of responding to behaviors. Tr. 7/26/93 (Stark) at 130; U.S. Exh. 7 at 13-14. In his review of thousands of occurrence reports, Dr. Stark found that frequently Ebensburg's response to behaviors and injuries was "changing medication, upping the doses, switching to something else. As if — and I work in this area — as if something magic is going to happen with medication.'' Tr. 7/26/93 (Stark) at 130, lines 11-14. He emphasizes that "you've got to have a behavior program. Medication can be helpful sometimes, but you need behavior programs." Tr. 7/26/93 (Stark) at 131. As such, Ebensburg's use of medications in lieu of adequate behavior programs substantially departs from generally accepted practices in the field. Tr. 8/2/93 (Russo) at 57. Defendants' psychiatric expert, Dr. Hauser, agreed that individuals who are persistently and chronically given medication for behavior problems are being chemically restrained. Tr. 9/15/93 (Hauser) at 122.
The field, in general, and the Commonwealth's 1988 Behavior Management Policy, in particular, require that behavior modifying medications not be used as a substitute for a
VIII-1

behavior program. Tr. 8/2/93 (Russo) at 53; Tr. 8/3/93 (Fahs) at 90-91, 113; U.S. Exh. 30 at 36. This means that psychotropic medications may not be used solely to control behaviors; instead, a behavior program must be implemented. Tr. 8/2/93 (Russo) at 53; Tr. 8/3/93 (Fahs) at 90-9 l.V Dr. Goldschmidt believes if Ebensburg had more direct care staff, residents could take less psychotropic medications because there would be more staff to work with agitated and potentially dangerous individuals. U.S. Exh. 615 (Goldschmidt Dep.) at 87-90.
As far back as 1987, the Department of Justice notified defendants that Ebensburg was unconstitutionally chemically restraining residents due to its failures to integrate adequate behavior programs with the use of psychotropic medications. U.S. Exh. 638 (Sponsky Dep.) Exh. 49. In 1990, the Justice Department notified defendants that Ebensburg continued to use psychotropic medications as substitutes for behavior programs and was thus continuing to unconstitutionally chemically restrain its residents. U.S. Exh. 638 (Sponksy Dep.) Exh. 50.
Since 1988, Title XIX regulations prohibit the use of medications without a behavior program to address the behaviors for which the medications are used. Def. Exh. T; 42 CFR 483.450(e)(2). State surveyors through both the Inspection of Care and Medical Assistance review processes have repeatedly cited Ebensburg for violating this requirement. Tr. 8/3/93 (Fahs) at 89-90, 95-99. In October 1991, the IOC surveyors cited Ebensburg for its failure
V Behavior programs must be used in conjunction with the use of psychotropic medications even where a behavior occurs as a result of some psychiatric disorder, because the behavior becomes functionally related to other factors in the environment, such as avoidance or escape. Tr. 8/2/93 (Russo) at 53-54. As such, psychotropic medications can only control part of the reasons that a behavior is occurring. By not having adequate individualized behavior programs for clients on psychotropics, Ebensburg is exposing its residents to years and years of protracted risk of harm with little likelihood of eliminating their behavioral difficulties. Tr. 8/2/93 (Russo) at 54.
VIII-2

to provide behavior programs for individuals taking psychotropic medication. Tr. 8/3/93 (Fahs) at 89-90; U.S. Exh. 66 at 2B. In November 1992, State surveyors found that Ebensburg was still failing to provide behavior programs to residents on psychotropic medications. Tr. 8/3/93 (Fahs) at 97-99; U.S. Exh. 60 at 00503762. In January 1993, IOC surveyors cited Ebensburg for treating Michael M.'s self injurious behaviors with anafranil in the absence of a behavior program. Tr. 8/3/93 (Fahs) at 95-96; U.S. Exh. 67 at 8B. That same group of surveyors also cited Ebensburg for its failure to provide a behavior program for James O., who is being treated instead with Prolixin. Tr. 8/3/93 (Fahs) at 97; U.S. Exh. 67 at 8D.
Dr. Russo testified about 14 individuals who have been chronically maintained on psychoactive medications for years without receiving adequate responsive individualized behavioral treatment. Tr. 8/2/93 (Russo) at 54-55. For instance, Betty Jean H., who is taking psychotropic medication, has had a chronic problem with maladaptive behaviors since 1988 and she has had no significant changes to her behavior program for the last five years, despite a continuation and actual increase in the rate of her maladaptive behaviors. Tr. 8/2/93 (Russo) at 56; U.S. Exh. 783. For five years, Ebensburg's failure to provide an adequate, effective behavior program for Betty Jean has caused harm to Betty Jean and to others as a result of her inadequately addressed behaviors, including an incident wherein Betty Jean's arm was broken during a restraint procedure. Tr. 8/2/93 (Russo) at 56-57. In another example, Andrew H. has no behavior program for his behaviors of biting and tearing bed clothes. Instead, he is prescribed anafranil for these behaviors. U.S. Exh. 780. Between July 1992 and April 1993, Andrew bit his peers on nine different occasions. U.S.
VIII-3

Exh. 135, 267. Dr. Stratton was supposed to evaluate Andrew and come up with recommendations by July 1992, but as of November 1992, this had not been done. Id. Dr. Stratton was also supposed to attend a mini-staffing for Andrew in August 1992 to problem solve, but he did not attend the meeting, and Andrew's Haldol was increased. Id. Lorna K. is prescribed Mellaril for "exhibiting inappropriate behavior." Fris Dep. Exh. 2. Lorna has no behavior program. U.S. Exh. 154. Dr. Fans testified that Darren W. had no behavior program to address his behaviors caused by the turmoil of adding more clients to his living area and these behaviors were resulting in injuries to Darren. Tr. 8/3/93 (Fahs) at 128. Dr. Fahs found that Darren was being treated with only medications for his behaviors. Id. Dr. Fahs also testified that George F. had no behavior program to address his inappropriate sexual behaviors, but was prescribed psychotropic medications to control his masturbation. Id. at 103-104.
According to Dr. Goldschmidt, certain PSA's at Ebensburg sometimes rely on psychotropic medications before they try a behavior program. U.S. Exh. 615 (Goldschmidt Dep.) at 59. She also admitted that there is sometimes an over-deference to medications for treatment of behavior problems at Ebensburg. U.S. Exh. 615 (Goldschmidt Dep.) at 58-60.
In addition, as evidenced by Ebensburg's own incident reports, the psychologists at Ebensburg often directly call for the use of medication in the treatment of a behavior by automatically attributing it to mental illness, rather than considering other underlying factors and alternative treatments.^/ Tr. 8/2/93 (Russo) at 55; U.S. Exh. 117. For instance:
2J The psychologists attribute behaviors to psychiatric symptoms, despite the fact that they have not conducted functional analyses to actually determine the underlying causes. See discussion infra § VH.I.4.
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• On June 13, 1992, Randall L. grabbed Joe C.'s shirt "for no apparent reason." Randall's eye and nose were injured during the ensuing fight. Randall's PSA notes that "Randall's infrequent, unpredictable outbursts are related to his schizophrenia. Generally well managed with Serentil. Data may suggest a slight increase of dosage."
• On December 19, 1992 at about 4:40 p.m., Roberta V. starting slapping other individuals and herself and pounding windows. Roberta "was very agitated and self abusive throughout the evening." At 9:20 p.m., a contusion was discovered on Roberta's forearm. Her PSA states "because of Roberta's OCD [obsessive-compulsive disorder], she can become agitated. Perhaps there is a need to increase her Rx."
• On December 29, 1992, Denise V. "had been kicking at others all evening." When she kicked Kathy W., Kathy "grabbed Denise by the shoulders and pushed her head first to the floor." Denise struck her face and head on chair legs. Denise's psychologist states "Denise's problems are mainly due to her psychiatric diagnosis. Will recommend an increase in Tegretol next drug review."
• On March 22, 1993, James S. pulled his toenail off. James' PSA states that "he continues to receive medication to address his depression. No changes are recommended to his current programming."
The number of requests by psychologists to the behavior management committee to
begin residents on psychotropic medications as a "restrictive procedure" increased from a
total of 16 in 1990, 22 in 1991, to 36 in 1992. U.S. Exhs. 36, 37, 640 (Stratton Dep.),
Stratton Dep. Exh. 17. The number of Ebensburg residents on multiple psychotropic
medications as well as "new starts" of psychotropic medications also increased between 1990
and 1992. In both 1990 and 1991, there were 12 residents on more than one psychotropic
medication and 24 new starts, as compared to 1992, where there were 26 residents on more
than one psychotropic medication and 54 new starts of medications. Id.
Dr. Sneed,V who has a Ph.D. in psychology, would like to see all use of
psychotropic medication used to control behaviors eliminated at Ebensburg because every
V Dr. Sneed was the Director of the Bureau of Direct Program Operations in the Office of Mental Retardation within the Department of Public Welfare between 1989 and 1993.
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medication has an effect on the body. U.S. Exh. 635 (Sneed Dep.) at 15, 28-30. In Dr. Sneed's opinion, options other than psychotropic medications need to be considered such as "changing the environment, the noise level, the opportunity for privacy, changing the roommate." U.S. Exh. 635 (Sneed Dep.) at 30, lines 23-24. Dr. Sneed believes that positive approaches should be used to replace restrictive or punitive procedures. U.S. Exh. 635 (Sneed Dep.) at 47. By positive approaches, he means practices that "recognize the needs of persons, their needs, their dreams, their aspirations." U.S. Exh. 635 (Sneed Dep.) at 47, lines 16-17. Dr. Sneed believes that "restraints are the least desirable of several options." U.S. Exh. 635 (Sneed Dep.) at 47, lines 24-25.
2. Ebensburg Uses Psychotropic Medications Where They Are Not Indicated And Where They Are Not Effective.
Residents at Ebensburg are unnecessarily given psychotropic medications. Tr. 8/3/93 (Fahs) at 94-95. Ebensburg residents take psychotropic medications that are not indicated and are not effective. Id- at 79, 89, 100-101. This type of chemical restraint is "quite common" at Ebensburg. Id. at 94-95.
In 100% of the records that he reviewed, Dr. Fahs found that Ebensburg failed to appropriately assess the behavior of concern. Tr. 8/3/93 (Fahs) at 79, 88.V Similarly, Dr. Fahs did not review a single record that documented why a particular diagnosis was selected over other possibilities. Id. at 86. As a result of Ebensburg's "inadequate and disorganized, undisciplined" psychiatric assessments, which are probably leading to improper diagnoses, there is a "high probability" that unnecessary psychotropic medications are prescribed. Id. at
V For a detailed discussion of the inadequacy of Ebensburg's psychiatric services, see infra § IX. VIII-6

79, 89. The process of providing overall psychiatric care to the residents of Ebensburg Center and assessing residents for the need for psychotropic medication is "so deficient," that Dr. Fahs was not able to form an opinion about particular diagnoses or the correctness of particular drug treatments. Id. at 114.
Once prescribed, Ebensburg is seriously deficient in appropriately and adequately monitoring whether its residents are benefiting from the psychotropic medications they are taking. Tr. 8/3/93 (Fahs) at 100. Dr. Fahs concluded that in 100% of the records he reviewed, treatment monitoring was inadequate. Id. at 101. Dr. Fahs could offer no opinion on whether particular individuals were benefiting from particular medications because Ebensburg's monitoring was so bad. Id. at 119. Thus, Ebensburg residents who fail to benefit from medications are left on medications that do not address the behavior of concern while being exposed to serious side effects. Id. at 101. In Dr. Fahs' words, "[tjhat's real harm." Id.
The field requires psychiatrists to use psychotropic medications only where indicated and to avoid using them where they are not indicated. Tr. 8/3/93 (Fahs) at 65. Ebensburg residents are harmed by taking drugs without adequate justification and proper monitoring because individuals continue to suffer from their on-going self-injurious and/or aggressive behaviors, and they suffer needless serious side effects from the administration of medications that are not beneficial. Id. at 67, 69, 93.
B. Ebensburg Is Mechanically And Physically Restraining Individuals Without Providing Adequate Treatment Plans.
In addition to chemical restraints, Ebensburg is also using mechanical and physical restraints on individuals without providing adequate treatment plans. The evidence shows
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that Ebensburg fails to provide effective behavior programs to its residents. Tr. 8/2/93
(Russo) at 67; U.S. Exh. 669, 783. Ebensburg fails to revise these ineffective behavior
programs even though behaviors do not improve and individuals are being restrained due to
the very behaviors purportedly addressed in the behavior programs, which should be
improving instead of requiring continued restraint. Id.; U.S. Exh 993. For instance:
• Ann B. has been on the same behavior program for her self-injurious behavior since 1990. U.S. Exh. 93. Ann is spending increasing amounts of time restrained in her restraint chair for her self-injurious behavior. Tr. 8/2/93 (Russo) at 65; U.S. Exh. 783. The evidence shows that, except for a period of hospitalization in April 1993, Ann has been spending over 250 hours per month in her restraint chair since February 1991. U.S. Exh. 286, 783. In May 1993, Ann spent more time in her restraint chair (351 hours) than during any previous month at Ebensburg. Id. Dr. Russo testified that Ann's behavior program is not effective. Tr. 8/2/93 (Russo) at 65-66; U.S. Exh. 783.
• Betty Jean H. has had no significant changes to her behavior program for aggression and self-injurious behavior for the last five years, despite a continuation and actual worsening of her maladaptive behaviors. Tr. 8/2/93 (Russo) at 56; U.S. Exh. 783. Ebensburg's failure to provide an adequate effective behavior program is causing Betty Jean harm, including an incident in April 1992 wherein Betty Jean's arm was fractured while staff were attempting to restrain her. Tr. 8/2/93 (Russo) at 56-57. Ebensburg restrained Betty Jean for her aggression and self-injurious behavior 40 times in 1991, 45 times in 1992, and 22 times, including one emergency chemical restraint, during the first seven and a half months of 1993. U.S. Exh. 993.
• Sandra W. has a behavior program for aggression and biting that has not been revised since January 1989. U.S. Exh. 93. Dr. Russo testified that Sandra has been subjected to significant harm as a result of Ebensburg's failure to provide her with an effective behavior program. Tr. 8/2/93 (Russo) at 68, 70-71. In the more than three years between January 1990 and February 1993, during which time Sandra was restrained more than 70 times, her behavior program was continued without change except for changes in her drugs and replacement of the papoose board with floor control in late 1992. U.S. Exh. 42(c) at 4856, 4881, 4902, 4930, 4846, 541439, 76626, 541421-22. Ebensburg even recommended continuation of Sandra's behavior program in January 1992, after noting that Sandra had been restrained a record number of times (20) in one month, alone, in December 1991. Id. at 4940.
• In spite of 106 episodes of restraint in a two year period, James S.'s behavior program for aggression was continued without change by Ebensburg during the period January 1990 through February 1993, except to change his drugs and replace use of the
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papoose board with use of floor control in late 1992. U.S. Exh. 42(c) at 4863, 4891, 4910, 4825, 4830, 4937, 541441, 541426, 541416.
• Veedia H. has been on the same behavior program for aggression since January 1992. U.S. Exh. 856. Between January 1, 1992 and July 28, 1993, Ebensburg restrained Veedia 87 times. U.S. Exh. 993.
• In October 1991, Ebensburg's Behavior Intervention Committee noted that Franklin B. "seems to want to be restrained." U.S. Exh. 42(c) at 4843. In spite of this knowledge, Ebensburg's use of restraints with Franklin dramatically increased in the succeeding years. In 1992, Franklin was restrained 15 times in the papoose board and 11 times in floor control. U.S. Exh. 993. In the first eight and a half months of 1993, Franklin was restrained using floor control 31 times, and in a little over ten months in 1993, Franklin was restrained 24 times with an emergency chemical restraint. U.S. Exh. 993, defendants' Brief in Opposition to United States' Motion for Rebuttal Testimony at 35, fn. 13 (filed 11/12/93).
• Ruth J. has no behavior program for her aggression and self-injurious behaviors. U.S. Exh. 780. The regression analysis for Ruth shows that her aggressive behavior significantly increased during the period January 1992 and March 1993. U.S. Exh. 783. Since January 1, 1991, Ruth has been restrained 13 times due to her aggressive and selfinjurious behaviors. U.S. Exh. 993.
• Denise V. does not have a behavior program for her severe self-injurious behavior, even though she has suffered serious and repeated injuries due to her behavior of banging her head on walls, floors, and windows. Tr. 8/2/93 (Russo) at 75. Between January 1990 and February 1993, Denise V.'s behavior program for aggression was continued without change, except to change her drugs and replace use of the papoose board with use of floor control in late 1992. U.S. Exh. 42(c) at 4879, 4895, 4919, 4836, 541460, 541433, 541421-22. Since January 1, 1991, Denise has been restrained 11 times due to her aggression or her self-injurious behaviors. U.S. Exh. 993.
• Ebensburg has not revised Raymond H.'s behavior program for aggression and self-injurious behavior since April 1991, except to eliminate restraints from his program in late 1992 and a living area restriction in December 1991. U.S. Exh. 856, 42(c) at 4860, 4890, 4911, 541439, 541418. Raymond was restrained for his behaviors 6 times in 1991, 6 times in 1992, and 3 times in the first seven and a half months of 1993. U.S. Exh. 993. The regression analysis of Raymond's behavior data shows that Raymond's behavior is not improving. U.S. Exh. 783.
• Except for elimination of a living area restriction in late 1991 and replacement of the papoose board with floor control in late 1992, Ebensburg had not revised Eliot G.'s behavior program for aggression as of January 1993. Stratton Dep. Exh. 2; U.S. Exh. 42(c) at 4895, 4919, 4837, 541460, 541434. In August 1991, Ebensburg's Behavior Intervention
VIII-9

Committee (BIC) recommended continuing Eliot's behavior program in spite of noting that "he has not been doing well when compared to last year at this time." Id. at 4837. In 1991, Ebensburg restrained Eliot 20 times, in 1992, 32 times, and in the first seven and a half months of 1993, 19 times. U.S. Exh. 993.
• Winfield M. has no behavior plan for his aggression. Tr. 8/2/93 (Russo) at 77. Ebensburg restrained Winfield for his behavior twice in 1991; 14 times between June and November 1992 (including three instances of restraint in a papoose board); and 3 times during the first seven and a half months of 1993. U.S. Exh. 993.
C. Ebensburg Used The Papoose Board In Violation of State Policy Until Late
Ebensburg used the papoose board as a restrictive mechanical restraint through late 1992. U.S. Exh. 993; see also U.S. Exh. 222 (photographs of the application of a papoose board). Most of the individuals who had behavior programs that included use of the papoose board still had such a program in September 1992; planned use of the papoose board was primarily eliminated between September and December of 1992. U.S. Exh. 640 (Stratton Dep.) at 98-100. In Dr. Russo's opinion, Ebensburg continued to use the papoose board in violation of the Commonwealth's 1988 Behavior Management Policy which requires that use of a particular Class in treatment methodology, like the papoose board, be grounded in professional literature. Tr. 8/2/93 (Russo) at 26; U.S. Exh. 30 at 33. In his own reviews and in his discussions with Dr. Stratton, Dr. Russo could find no sufficient literature base to support the use of the papoose board as an effective restrictive measure. Tr. 8/2/93 (Russo) at 26. Dr. Stratton is not aware of anything in the literature that supports using papoose boards on a clinical basis, despite the fact that they were being routinely used at Ebensburg through November 1992. U.S. Exh. 640 (Stratton Dep.) at 95.
In Dr. Russo's opinion, Ebensburg should have eliminated the use of the papoose
board long before the end of 1992. A standard treatment design in the field of psychology
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requires that Ebensburg eliminate restraint in the behavior programs of clients with long restraint histories to see whether the use of restraint is actually needed. Tr. 8/2/93 (Russo) at 145-146.
As Dr. Stratton recognized, there are dangers inherent in any kind of physical restraint because staff must exert force on a person that is trying to hurt himself or others, and there is always a risk of injury. U.S. Exh. 640 (Stratton Dep.) at 87-88. Use of the papoose board to restrain Ebensburg residents has resulted in injuries. For instance, on January 15, 1992, at 8:15 a.m. in Horizon House, in the words of one of the two supervisors who reported to work there that morning, "the staff pattern was a mess." U.S. Exh. 132 at 40544. In West II, where Ibrahim D. was fighting with Franklin B., "there was total chaos." Id. Ibrahim was restrained in a papoose board. As Ibrahim was completely immobilized in the papoose board, Franklin continued aggressing toward Ibrahim and kicked him in the face, in spite of staff monitoring during the restraint use. Ibrahim suffered a lacerated lip and a "foot print on the bridge of his nose." For the next fifteen minutes, while Ibrahim remained in the papoose board, Franklin stayed in the room with Ibrahim, and Franklin kept lunging at the staff guarding Ibrahim. Staff could not remove Franklin from the area due to lack of staff. Id. at 40544(a).
Dr. Reid only reviewed recent levels of use of mechanical restraint during his February 1993 visit and did not review data from the last several years. Tr. 9/16/93 (Reid) at 15. As the evidence shows, throughout 1991 and into 1992, until the United States filed this lawsuit in February 1992, Ebensburg's use of mechanical restraint was significantly higher than the levels of mechanical or physical restraint reviewed by Dr. Reid. Def. Exh.
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Q (which does not include the time that Ann B. spends restrained in her restraint chair). Within a month of filing of the lawsuit, Ebensburg cut its use of restraints in half. Def. Exh. Q. The number of individuals mechanically or physically restrained by Ebensburg on a monthly basis also dropped by about half in the months following February 1992, when this lawsuit was filed. See Def. Exh. R.
The evidence also shows that Ebensburg is underreporting its use of mechanical restraints. For instance, the evidence demonstrates that Rosemary W. wears a helmet for her behavior of throwing herself to the ground. U.S. Exh. 67 at 8F, 1100. There is no dispute that such a use of a helmet constitutes mechanical restraint. Tr. 8/2/93 (Russo) at 59; Tr. 9/16/93 (Reid) at 157-158. State surveyors also noted it to be a restraint in August 1992. U.S. Exh. 1100. However, not a single minute of time that Rosemary has spent in her helmet is recorded on Ebensburg's log of restraint use or reflected in Def. Exh. Q or S. See U.S. Exh. 993. Mr. O'Brien testified, incorrectly, that no one at Ebensburg wore a helmet for restraint purposes until February 1993, but Def. Exh. S does not show one minute of time for mechanical restraints in February, March or April 1993. Tr. 10/19/93 (O'Brien) at 100, 104-105.
Dr. Russo, Dr. Stratton, and Dr. Reid also agree that use of a jumpsuit to prevent rectal digging is a restraint. Tr. 8/2/93 (Russo) at 41-42; U.S. Exh. 640 (Stratton Dep.) at 124; Tr. 9/16/93 (Reid) at 158. Not a single minute of time that Darren W. spent wearing a jumpsuit to prevent his behavior of rectal digging is recorded on Ebensburg's log of restraint usage or reflected in Def. Exh. Q. See U.S. Exh. 993.
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D. Ebensburg Is Replacing Its Use Of Mechanical Restraints With Floor Control And Emergency Chemical Restraints.
Although two witnesses for defendants testified that elimination of mechanical restraints at Ebensburg did not result in a corresponding increase in other types of restraints, Tr. 9/13/93 (Kastner) at 171; Tr. 10/15/93 (O'Brien) at 122-123, the evidence demonstrates otherwise. Defendants' Exhibit S purports to show that there has been no increase in the use of physical restraints at Ebensburg since Ebensburg supposedly eliminated the use of mechanical restraint in December 1992. However, defendants' chart only includes data through April 1993. Tr. 10/19/93 (O'Brien) at 96.
United States' Exhibit 998 (attached) demonstrates that after the papoose board was eliminated at Ebensburg, the use of floor control has grown significantly. The number of times that Ebensburg used floor control during the period May to July 1993 is almost double the number of times used in the three months following elimination of use of the papoose board. U.S. Exh. 998. During the use of floor control, an individual is held by staff on the floor. Tr. 10/19/93 (O'Brien) at 107.
The evidence also demonstrates that since Ebensburg discontinued use of the papoose board, use of emergency chemical restraints has grown significantly. U.S. Exh. 993.V A chart comparing the use of the papoose board for behavior with the use of emergency chemical restraints at Ebensburg is attached as Attachment E. This evidence shows that in the eight months before Ebensburg eliminated use of the papoose board, Ebensburg never
il U.S. Exh. 993 includes Ebensburg restraint data, including emergency chemical restraint data, through August 10, 1993. Tr. 10/19/93 (O'Brien) at 101, 103. Data on U.S. Exh. 993 that are noted as "chemical" or "valium" or "Mellaril" means that an emergency chemical restraint was used at Ebensburg. Tr. 10/19/93 (O'Brien) at 103.
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used an emergency chemical restraint. However, since elimination of use of the papoose
board, Ebensburg used emergency chemical restraints on 34 occasions through November 12,
1993. U.S. Exh. 993; Def. Brief in Opposition to United States' Motion for Rebuttal
Testimony at 35, fn. 13 (filed 11/12/93). Since July 1993, when Dr. Goldschmidt resigned,
Ebensburg has had no psychiatrist. Tr. 10/19/93 (O'Brien) at 81-82.
E. Ebensburg's Use Of Floor Control Is Resulting In Injuries.
Mr. O'Brien admits that when an individual is restrained, there is a possibility that
the individual will get injured. Tr. 10/19/93 (O'Brien) at 107. Examples of people who
have been injured at Ebensburg while being placed in "required relaxation" or floor control
include:
• Sandra W. ~ While being put in floor control in January 1991, Sandra banged her face on the floor, knocking one tooth out. The dentist extracted two other teeth loosened during the floor control episode. U.S. Exh. 510.
• Raymond H. — On February 25, 1992, while staff were attempting to put Raymond in floor control, Raymond became more agitated and banged his head against the floor several times, causing a laceration to his eyebrow that had to be closed with four ethistrips. U.S. Exh. 369.
• Betty Jean H. — In April 1992, Betty Jean's arm was fractured while staff were attempting to put her in floor control. U.S. Exh. 134.
• James W. — In July 1992, Ebensburg used required relaxation to control James. While being held on the carpeted floor, James received multiple abrasions on both knees, on his forehead, right cheek, both wrists, both temporal areas and on both shoulders. U.S. Exh. 992.
• Raymond H. — On October 15, 1992, Ebensburg put Raymond in floor control for "swinging at staff." Raymond banged his head on the floor, sustaining an abrasion on his cheek. U.S. Exh. 369.
• Franklin B. ~ On October 20, 1992, Franklin banged his face on the floor during
floor control procedures. As a result of the trauma, Franklin's right upper central incisor became loosened and was bleeding. U.S. Exh. 992.
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• Joe C. — At 11:15 p.m. on May 14, 1993, Joe was found in the bathroom engaging in a sexual behavior with Clifford P. When staff intervened, Joe became aggressive and staff put Joe in emergency floor control. Joe held onto the pipes under the sink, and hurt the ride side of his face. When the doctor checked Joe at 9:15 the next morning, she noted that Joe had two swollen fingers and edema under his eye. U.S. Exh. 992.
• Franklin B. — On May 27, 1993, Donald P. tried to bite Franklin. Franklin ran away, hitting others. Floor control was used, causing an abrasion to Franklin's back. U.S. Exh. 992.
• Franklin B. — On June 3, 1993, Franklin was tearing his clothing. Staff used floor control on Franklin. During floor control, Franklin's lower lip was injured and there were two open areas on Franklin's right forearm. Franklin also had blood all over his face. U.S. Exh. 992.
VIII-15

IX. EBENSBURG FAILS TO PROVIDE ADEQUATE AND APPROPRIATE PSYCHIATRIC SERVICES IN VIOLATION OF GENERALLY ACCEPTED PROFESSIONAL STANDARDS.
A. Ebensburg Does Not Provide Its Residents With Adequate Psychiatric Services.
There are a large number of Ebensburg residents with severe psychiatric difficulties
and severe behavioral problems; thus, the provision of psychiatric services to people at
Ebensburg is a very important part of medical care at the facility. Tr. 8/3/93 (Fahs) at 62-3.
The proper approach to providing psychiatric care to individuals with mental retardation is
the same approach one takes in providing sound medical care in general: assessment,
diagnosis, treatment, and monitoring. Tr. 8/3/93 (Fahs) at 63-4.7 Dr. Fahs consistently
found pervasive deficiencies at Ebensburg in each one of these core areas that are
"universally accepted in the psychiatric profession and in the medical profession entirely."
Tr. 8/3/93 (Fahs) at 75. In fact, he found problems in the psychiatric care and treatment of
each and every Ebensburg record he reviewed. Id- at 88, 101. The facility's practices are
so substandard in all four areas, that Dr. Fahs concluded Ebensburg does not provide its
residents with adequate and appropriate treatment of their psychiatric disorders, in violation
of generally accepted standards in the medical community. Tr. 8/3/93 (Fahs) at 92. The
V Generally, in the assessment phase, the doctor tries to determine what the particular difficulty may be, usually by collecting a range of information. Tr. 8/3/93 (Fahs) at 63. Careful consideration of the information gathered in the assessment phase results in a diagnosis of the disorder. Tr. 8/3/93 (Fahs) at 63. After the diagnosis is made, appropriate treatment is to be provided to the individual, and then, the treatment must be monitored to see whether or not it is, in fact, helpful. Tr. 8/3/93 (Fahs) at 64. Dr. Fahs testified that all of medicine hinges on this approach which is "completely non-controversial" and it "is really fundamental to medicine, not just psychiatric care of mentally retarded people." Tr. 8/3/93 (Fahs) at 65. This classic approach merely involves the "rational application of principles of medicine." Tr. 8/3/93 (Fahs) at 162.
IX-1

harm resulting from these deficient practices includes inappropriate and/or inadequate medication, the risk of serious drug side effects, continuing behavior problems and the potential that they pose for injury, and needless, prolonged psychiatric suffering from inadequate treatment. Tr. 8/3/93 (Fahs) at 69, 79, 93, 118; accord Tr. 9/14/93 (Lubetsky) at 152.
Each one of the experts for the Commonwealth who testified about psychiatric care also found weaknesses in Ebensburg's psychiatric practices or agreed that there was a need for improvement. See, e^g., Tr. 9/15/93 (Hauser) at 58, 63, 140, 146 (data collection, psychiatric consults); Tr. 9/14/93 (Lubetsky) at 115, 149, 154, 157 (data collection, diagnoses, assessments, treatment, consults); Tr. 9/14/93 (Kastner) at 9 (general psychiatric care). Ebensburg's consulting psychiatrist, Dr. Goldschmidt, readily admits, as well, to problems in psychiatric care at Ebensburg. Tr. 8/3/93 (Fahs) at 82; U.S. Exh. 615 (Goldschmidt) 29-30) (need for more consult time and better data on which to make decisions). In addition, State surveyors have repeatedly found deficiencies in psychiatric practices at Ebensburg. See, e ^ , U.S. Exhs. 60, 66, 67; Tr. 8/3/93 (Fahs) at 90, 96-7, 98. As far back as 1990, the Department of Justice notified defendants that Ebensburg was providing inadequate psychiatric care to its residents. In particular, the United States specifically advised the Commonwealth that Ebensburg's failure to adequately evaluate and diagnose residents (which is essential to selecting appropriate treatment) as well as its failure to adequately monitor psychotropic medications departed from generally accepted professional standards. U.S. Exh. 638 (Sponsky Dep.) Exh. 50.
IX-2

Dr. Kastner admitted that the level of psychiatric care provided to the residents at

Ebensburg could be improved. Tr. 9/14/93 (Kastner) at 9. He testified that the Ebensburg

psychiatrist could benefit from the assistance of someone with a specific training background

in developmental disabilities. Tr. 9/14/93 (Kastner) at 9. He further added that there are

experts available to Ebensburg who live only an hour and a half away and "it makes sense to

bring one of them in to provide some consultation." Tr. 9/14/93 (Kastner) at 10. Dr.

Kastner indicated that Ebensburg should also consider having a psychopharmacologist on site

for several hours per month of consultation. Tr. 9/14/93 (Kastner) at 11.

1.

A Disciplined Medical Approach Is Necessary In Providing Dependent

Individuals With Psychiatric Services.

Obtaining accurate information in the assessment phase, and engaging in a carefully

disciplined consideration of the diagnosis is especially important when providing psychiatric

care to individuals with developmental disabilities and mental retardation. Tr. 8/3/93 (Fahs)

at 88. It is important because most of these individuals have severe intellectual impairment,

most are unable to speak for themselves, and most cannot report feelings or thinking. Tr.

8/3/93 (Fahs) at 88, 161-2. For example, people with mental retardation who have no

speech cannot report how uncomfortable they are. Tr. 8/3/93 (Fahs) at 122.*/ As a result,

the psychiatrist is robbed of important and necessary information that is normally available

when providing psychiatric care to individuals outside this population. Tr. 8/3/93 (Fahs) at

2J Dr. Fahs testified "mentally retarded people, like mentally retarded people at Ebensburg, by and large are ... severely intellectually impaired. They often can't talk about their difficulties. And the people who are talking about their difficulties may not have to suffer the consequences of an incorrect decision." Tr. 8/3/93 (Fahs) at 162.
IX-3

88.V Consequently, there is even more of a premium placed on a careful, rigorous,
disciplined, thoughtful approach when providing psychiatric care to a mentally retarded
population. Tr. 8/3/93 (Fahs) at 88-9, 162. Dr. Fahs testified that in dealing with this
population, "even more care needs to be exercised ... [e]ven more rigor, even more
discipline needs to be exercised in order to assure that reasonable treatment programs are
implemented." Tr. 8/3/93 (Fahs) at 88-9.V
Because many of these individuals have chronic and/or recurrent behavioral problems,
the psychiatric assessment, diagnosis, treatment, and monitoring process needs to become a
continuous "loop" where the monitoring information naturally flows back into the assessment
process. Tr. 8/3/93 (Fahs) at 133. Dr. Fahs stressed that if an individual does not respond
to a certain treatment, then the assessment, diagnosis, treatment, and monitoring process
must be undertaken again, but always "in a disciplined fashion." Id. Dr. Fahs did not see
this process reflected in Ebensburg charts at Ebensburg. Id.
2. Ebensburg Is Failing To Provide Its Residents With Adequate. Disciplined Psychiatric Assessments In Violation Of Generally Accepted Standards.
The psychiatric assessments completed at Ebensburg are inadequate and do not meet
generally accepted standards in the field. Tr. 8/3/93 (Fahs) at 75.f/ Dr. Fahs concluded
V Dr. Fahs stressed that a psychiatrist's job is exceedingly difficult even when treating a verbal, intellectually normal population. Tr. 8/3/93 (Fahs) at 88. if Dr. Hauser acknowledged that the nonverbal patient in this population is unable to come forward and report what is bothering him or to describe his inner thoughts and feelings. Tr. 9/15/93 (Hauser) at 37. As a result, Dr. Hauser indicated that with this nonverbal population, one has to pursue with greater effort the alternatives that could be leading to the problem. Tr. 9/15/93 (Hauser) at 39. 5/ For a discussion of detailed examples of inadequate psychiatric assessments at Ebensburg, see infra SK.7.
IX-4

that 100% of the Ebensburg resident records he reviewed were deficient with respect to containing adequate and accurate psychiatric assessment information. Tr. 8/3/93 (Fans) at 79, 85, 88. Dr. Fahs concluded that the inadequacy of the psychiatric assessments at Ebensburg was "a pervasive problem." Tr. 8/3/93 (Fahs) at 79. Dr. Lubetsky agreed that there is room for improvement in Ebensburg's clinical assessments. Tr. 9/14/93 (Lubetsky) at 149.
As a result of the inadequate psychiatric processes at Ebensburg, Dr. Fahs concluded that "inadequate and disorganized, undisciplined assessment is likely going to lead to the prescription of medication which is either unnecessary or the withholding of medication which ought to be given." Tr. 8/3/93 (Fahs) at 79. This has a tangible effect on the Ebensburg residents who require psychiatric treatment. Id.
A proper psychiatric assessment involves the collection of information from staff, doctors and other interdisciplinary team members in a cooperative effort with the psychiatrist to gain a clear understanding about an individual's particular behavior of concern. Tr. 8/3/93 (Fahs) at 71. All the psychiatric experts in this case agreed that an adequate and proper assessment must be provided to people with mental retardation, particularly when psychotropic medications are prescribed. Tr. 8/3/93 (Fahs) at 63-4, 71-2; Tr. 9/15/93 (Hauser) at 143; Tr. 9/14/93 (Lubetsky) at 144.V
6J Dr. Hauser agreed that it is important to provide a proper psychiatric assessment in every case when psychotropic medications are being prescribed. Tr. 9/15/93 (Hauser) at 144. Dr. Hauser testified that psychotropic medications should never be prescribed for anyone without an adequate assessment. Tr. 9/15/93 (Hauser) at 144. Dr. Lubetsky also testified that before psychotropic medications are prescribed for a mentally retarded individual, an adequate assessment needs to be performed. Tr. 9/14/93 (Lubetsky) at 144.
IX-5

Dr. Lubetsky agreed that in assessing a mentally retarded individual, it is important to have careful staff observations of the mentally retarded individual's behavior and interactions. Tr. 9/14/93 (Lubetsky) at 144. These observations are important because they provide the psychiatrist with information about the individual's symptoms, his behavior, and his functioning with others. Tr. 9/14/93 (Lubetsky) at 144-5. Dr. Lubetsky indicated that this observational information helps the psychiatrist in his assessment of the individual's condition. Tr. 9/14/93 (Lubetsky) at 145. He acknowledged that these observations by staff are even more important for someone who is unable or quite limited in his ability to communicate verbally or is functioning on a lower cognitive level, and as a result, is largely unable to self-report. Id.
a. The Behavioral Data And Information Collected By Ebensburg For Use In Psychiatric Assessments Is Either Non-Existent Or Inadequate.
Dr. Fahs concluded that he had "overwhelming reservations" about the behavioral data used in the psychiatric assessment and diagnosis process at Ebensburg. Tr. 8/3/93 (Fahs) at 104. Dr. Hauser agreed that the data collection process at Ebensburg was an area of weakness. Tr. 9/15/93 (Hauser) at 63, 145. In particular, he admitted that Ebensburg could collect data on behaviors in a more useful way. Tr. 9/15/93 (Hauser) at 145.
It is generally accepted in the field that throughout the assessment process, the psychiatrist must be flexible in individualizing the data that is to be collected to fit the particular individual, the target behavior, and other behaviors. Tr. 8/3/93 (Fahs) at 73, 76. Dr. Hauser agreed that behavioral data collection should be tailored to the individual. Tr. 9/15/93 (Hauser) at 184. This does not occur at Ebensburg. Instead, the underlying information for a psychiatric assessment comes from a "universal data collection sheet." Tr.
IX-6

8/3/93 (Fahs) at 76. Any data collection that is "universal" for all people and for all conditions, is "problematic." Id. Dr. Fahs concluded that the blanket employment of the universal data collection sheet for any and all problems, no matter what they are, for any and all individuals, was "entirely inappropriate." W. See also discussion on Ebensburg's data collection system supra § VII.I.5.
Dr. Hauser admitted that Ebensburg needs to individualize its behavioral assessments and data collection methods to be more responsive to different clients and different behaviors. Tr. 9/15/93 (Hauser) at 65, 145-146. Dr. Lubetsky also agreed that at Ebensburg, there could be more individualized behavioral assessment and monitoring information integrated into the psychiatric process via the functional behavioral analysis. Tr. 9/14/93 (Lubetsky) at 160. When Dr. Lubetsky first visited Ebensburg, not every resident who had been taking psychotropic medications had a completed functional analysis. Tr. 9/14/93 (Lubetsky) at 161.
A psychiatrist needs a wide variety of behavioral and other data in order to complete a proper psychiatric assessment, but none of this information is gathered sufficiently at Ebensburg. The information contained in the universal data collection sheets is the sum total of the information collected for all psychiatric assessments at Ebensburg; this is inadequate. Tr. 8/3/93 (Fahs) at 76.
An individual is typically brought to a psychiatrist because of a particular behavioral difficulty, known as the "target behavior." Tr. 8/3/93 (Fahs) at 64, 71. Common examples of target behaviors in a mentally retarded population like Ebensburg are aggression, selfinjurious behavior ("SIB"), or severe disruption. Id. It is generally accepted in the field that
IX-7

in the assessment phase, the psychiatrist needs to know how often the target behavior is
occurring, how long it lasts, how severe the behavior is, when it began, if anything makes
the behavior better or worse, if this problem has arisen before, and whether it is episodic.
Tr. 8/3/93 (Fahs) at 71-2. Dr. Hauser agreed that this objective data is important during
psychiatric assessment.!/ Dr. Lubetsky also agreed that in order to prioritize and decide
what to treat, the psychiatrist needs to know which behaviors are more severe and which
ones are more problematic. Tr. 9/14/93 (Lubetsky) at 163.
Specifically, the psychiatrist needs information about the target behavior's "intensity,1
"frequency," and "duration." Tr. 8/3/93 (Fahs) at 72. Although Dr. Fahs and all three of
the Commonwealth experts who testified about psychiatric practices at Ebensburg uniformly
agree that this qualitative information about behaviors is important, it is not collected at
Ebensburg.V See discussion supra § VH.I.5. Dr. Fahs agrees with Dr. Russo and State
surveyors that Ebensburg's system of collecting behavior data only on an "interval" basis is
inadequate. Tr. 8/3/93 (Fahs) at 76. Dr. Fahs also found Ebensburg's practice of
combining together distinct target behaviors for data collection purpose to be entirely
V Dr. Hauser indicated that such data can inform subsequent treatment planning. Tr. 9/15/93 (Hauser) at 63. He indicated that "we can make great use of it." Tr. 9/15/93 (Hauser) at 63. He added that with hard or objective data, "you can have an increased level of confidence in whether you're right and you can avoid ... having the subjective view of staff mislead you." Tr. 9/15/93 (Hauser) at 64. Dr. Hauser indicated that such hard data is readily available at an institution because of the presence of staff. Tr. 9/15/93 (Hauser) at 65.
V Dr. Hauser acknowledged that intensity, frequency, and duration data for target symptoms is important to review and discuss in a psychiatric consult and that they are useful components of a consultation. Tr. 9/15/93 (Hauser) at 147. Dr. Kastner also indicated that intensity, frequency and duration data for certain target behaviors and other behaviors is important in putting some certainty on how to proceed with an individual who is not verbal and non-communicative. Tr. 9/14/93 (Kastner) at 23. Dr. Lubetsky agreed that it may be necessary for Ebensburg to take intensity data for certain target behaviors. Tr. 9/14/93 (Lubetsky) at 154.
IX-8

inappropriate and inadequate. Tr. 8/3/93 (Fans) at 76-7. Dr. Fans found instances, for example, where aggression and self-injurious behavior were identified as one problem and their occurrences were summed together on the universal data collection sheet. Tr. 8/3/93 (Fans) at 77.
In addition to needing information about the target behavior to conduct a proper assessment, a psychiatrist also needs information about other behavioral difficulties that are associated with the target behavior. Tr. 8/3/93 (Fahs) at 72. For example, the individual may be presented to the psychiatrist with an aggression problem, but the individual may also have problems with self-injurious behavior or overactivity. Id. The psychiatrist will also need information about these other behaviors to complete a proper psychiatric assessment. Tr. 8/3/93 (Fahs) at 72-3. The psychiatrist needs to have a clear understanding of the intensity, the duration, and the frequency of the other behaviors in order to properly diagnose and treat the target behavior. Tr. 8/3/93 (Fahs) at 73. Ebensburg does not adequately collect behavioral information about individuals' "other" behaviors. Tr. 8/3/93 (Fahs) at 76.
The psychiatrist needs still more information about what are called "vegetative signs." Tr. 8/3/93 (Fahs) at 73. Vegetative signs include sleep, appetite, weight, and changes in level of activity. Id. In order for the psychiatrist to make a proper psychiatric assessment, these signs need to be followed carefully. Tr. 8/3/93 (Fahs) at 74. This information is relatively easy and straightforward to obtain; for example, sleep patterns are easily measured by the staff on the third shift at an institution. Id. However, Ebensburg does not adequately collect vegetative signs data. Tr. 8/3/93 (Fahs) at 76.
IX-9

Outside reviewing agencies have also found problems with the Ebensburg assessment process. For example, State IOC reviewers found that "the assessment process critical to the active treatment process is frequently found to be incomplete and/or incongnient with established goals." U.S. Exh. 67; Tr. 8/3/93 (Fahs) at 79-80. This conclusion is entirely consistent with Dr. Fahs' findings in this regard. Tr. 8/3/93 (Fahs) at 80.7 Dr. Fahs testified that many of the assessment documents at Ebensburg were "superficial." Tr. 8/3/93 (Fahs) at 81. The documents purported to be something useful, but they were not useful at all. Id. He indicated that their placement in the medical chart would make it difficult for any medical professional to find information that allowed for a genuine assessment. Id. Dr. Fahs concluded that these superficial documents impeded the process rather than assisted it. Id. Dr. Fahs stressed that it "pained" him to see these piecemeal, superficial documents cluttering up the record, because what was really needed for the care of the residents was a "real thoughtful response to the provision of care ... not a paper here, a committee meeting there." Tr. 8/3/93 (Fahs) at 81-2.
V Dr. Fahs commented that Ebensburg's response to this deficiency was a "superficial" one in that it looked merely to improve documentation without improving the process. Tr. 8/3/93 (Fahs) at 80. He testified that Ebensburg's plan of action after this deficiency was a "cosmetic response." Tr. 8/3/93 (Fahs) at 80. Dr. Hauser acknowledged that "it's certainly a reactive response because if we had documented ahead of time, and made it clear ahead of time, then they wouldn't be able to criticize." Tr. 9/15/93 (Hauser) at 77.
IX-10

b. The Psychiatric Consult Sessions Where Assessment Information Is Discussed And Where Diagnoses And Treatment Decisions Are Made Are Chaotic. Disorganized. And Undisciplined.
Dr. Fans concluded that every single psychiatric consult session he observed at
Ebensburg was inadequate. Tr. 8/3/93 (Fans) at 79.™/ Given that this is the time set
aside for a specialist to assess, diagnose, and make recommendations about appropriate
treatment, Dr. Fahs had grave concerns about what he characterized as a "chaotic,"
"disorganized," and "undisciplined" consultation process. Jd at 77-8."/ Based upon their
observations of psychiatric consults at Ebensburg, both Dr. Hauser and Dr. Lubetsky agreed
that there were problems with the psychiatric consultations at Ebensburg. Dr. Hauser found
deficiencies around the "parameters" of the consult, including the limited amount of time for
the consult and its level of organization. Tr. 9/15/93 (Hauser) at 61. When he first toured
Ebensburg in 1993, Dr. Hauser also found the documentation that flowed from the
psychiatric consultations to be an area of weakness that needed to be more "rigorous." Tr.
9/15/93 (Hauser) at 58.!!/ Dr. Lubetsky agreed with Dr. Hauser that the consults would
l2J Dr. Hauser made his conclusions about the psychiatric process at Ebensburg even though he could not recall the specific details of the data presented in many of the various consults he attended. Tr. 9/15/93 (Hauser) at 146-50. He indicated that he could not recall their specific presentation of hard data in consult. Tr. 9/15/93 (Hauser) at 148. Dr. Hauser testified that he could not recall what form of monitoring data had been presented in the psychiatric consults. Tr. 9/15/93 (Hauser) at 147. Dr. Hauser admitted that after the psychiatric consults, he never went back to validate the accuracy of any of the anecdotal data that he heard. Tr. 9/15/93 (Hauser) at 150-1. In addition, Dr. Lubetsky testified that the psychiatric consultations were "adequate," but he never explained exactly why he felt that way, and instead, immediately launched into testimony about how the psychiatric consults should be improved. Tr. 9/14/93 (Lubetsky) at 113-4.
11/ For a discussion of the details of one such consult, see discussion of Andrew H., infra § IX.7.
"/ Dr. Hauser indicated that when he writes notes after his consults, he explores in great detail the basis of his conclusions, he outlines the potential risks, he outlines the team process, and he articulates the rationale for his diagnosis. Tr. 9/15/93 (Hauser) at 58.
(continued...)
IX-11

benefit from better organization. Tr. 9/14/93 (Lubetsky) at 114. In particular, he found problems with communicating adequate written information. For example, he felt the primary physician could better document the thought process of psychiatric decisions and consults. 9/14/93 (Lubetsky) at 114. Dr. Lubetsky further acknowledged that the psychiatrist's summary of the consult did not provide all the details that it could have and Ebensburg's failure to prepare the consult request ahead of time slowed the process down. Tr. 9/14/93 (Lubetsky) at 114-5.
i. Psychiatric Consults Are Devoid Of Adequate Information For Assessment. Diagnosis. And Treatment.
Dr. Fahs found the psychiatric consultations at Ebensburg as "lacking entirely a conveyance of [the appropriate] kind of information to the consulting psychiatrist." Tr. 8/3/93 (Fahs) at 77. l2J He "hesitates" to call the discussion during the psychiatric consult as a presentation of "information;" instead, he characterized it as merely "opinions" and "ideas" (comments such as "he seems a little better" or "he's really having a bad time right now.") Id."/ Dr. Fahs testified that in a chaotic setting like the psychiatric consults at Ebensburg, "with no exchange of clinically acceptable information ... it's virtually impossible to make a rational, reasonable decision" about the provision of psychiatric care.
f/(...continued)
"/ Thus, Dr. Fahs concluded that "I think that information is inadequate; but... even what they had was not being shared with the psychiatrist." Tr. 8/3/93 (Fahs) at 78. "/ In his testimony, Dr. Lubetsky also repeatedly characterized the information presented in the Ebensburg psychiatric consults as "opinions." Tr. 9/14/93 (Lubetsky) at 113.
IX-12

Tr. 8/3/93 (Fahs) at 118-9. In fact, Dr. Goldschmidt, the consult psychiatrist for Ebensburg at the time, admitted to Dr. Fahs that she needed better information to do a proper psychiatric assessment. Tr. 8/3/93 (Fahs) at 82. Dr. Goldschmidt explained that the consult psychiatrist at Ebensburg must depend on the observations of the interdisciplinary team "to fill in the blanks" since she is not on the spot to observe her patients. U.S. Exh. 615 (Goldschmidt Dep.) at 73-4.
Dr. Lubetsky also found that in the Ebensburg psychiatric consultations he observed, much of the information presented was verbal. Tr. 9/14/93 (Lubetsky) at 162.if/ He indicated that written data helps substantiate the verbal information, often times makes it clearer, and may be more helpful than verbal information in making a treatment decision. Tr. 9/14/93 (Lubetsky) at 162-4. Verbal presentation of data also does not replace hard data recorded over time.
It is generally accepted in the field that behavioral data needs to be collected and recorded longitudinally over a period of time. Tr. 8/3/93 (Fahs) at 72. This is important because many behavioral problems fluctuate naturally over time. Id. Without longitudinal data of the fluctuating target behavior over time, the psychiatrist might mistakenly attribute improvement in the behavior to the treatment as opposed to the normal fluctuations. Id. This type of longitudinal data is also important because for seriously retarded and disabled individuals like those living at Ebensburg, psychiatric care is necessarily a chronic
]il Dr. Hauser's memory about the psychiatric consults he attended was not as clear. He could not recall the specific details about data presentation during Ebensburg psychiatric consults and never verified the accuracy of any anecdotal information he heard. Tr. 9/15/93 (Hauser) at 147-151.
IX-13

undertaking. Id. This type of longitudinal data, however, is not adequately recorded at Ebensburg. Tr. 8/3/93 (Fahs) at 76.
Without written data, no one staff member can effectively convey the wealth and breadth and subtlety of the behaviors that have occurred over time since the individual's last consult. Dr. Lubetsky acknowledged that in relying on verbal reports of behaviors from staff, that the individual staff member present in the Ebensburg psychiatric consults could not have been present to observe and discuss in consult the individual's every behavior over a 24-hour a day schedule. Tr. 9/14/93 (Lubetsky) at 164. Dr. Lubetsky further admitted that staff members reporting anecdotal information may remember only recent events and may not remember behavioral events weeks or months earlier. Tr. 9/14/93 (Lubetsky) at 165. Dr. Hauser agreed, adding that "this is one of the important reasons for the collection of data over time, to try to avoid the risk that a staff member's presentation of data will be biased by their own personal experience." Tr. 9/15/93 (Hauser) at 85-6."/ Dr. Hauser also explained that the collection of hard data allows the psychiatrist to see patterns of behavior over time instead of just reacting to behaviors yesterday. Tr. 9/15/93 (Hauser) at 85.
In sum, the psychiatric consults at Ebensburg are not adequate to enable the psychiatrist to complete a proper assessment that would lead to a proper diagnosis. Tr. 8/3/93 (Fahs) at 78. Dr. Fahs testified that "I cannot possibly see how one could arrive at a careful assessment and diagnostic in the context of not having the kind of information available that I'm referring to, the need for longitudinal data and the need for accurate
"/ Dr. Hauser testified that the opportunity to gather hard data exists in an institution where "you actually have the potential to gather data that can add to the consultation process because you have staff present who you can educate to keep data that can be constructive in a consultation." Tr. 9/15/93 (Hauser) at 87.
IX-14

reliable information." Id. Without it, Dr. Fans concluded that "it's impossible to do that."
Id.
ii. Psychiatric Consults Take Place Too Infrequently.
All three experts for the Commonwealth testifying about psychiatric care at
Ebensburg, as well as Dr. Goldschmidt, herself, agreed that residents would benefit from an
increase in the two days per month allotted to psychiatric consultation. Dr. Goldschmidt told
Dr. Fahs that the time she was allotted to spend at Ebensburg providing psychiatric consult
services pursuant to her contract was "inadequate" and that she felt "pressured." Tr. 8/3/93
(Fahs) at 82."/ Dr. Goldschmidt testified that if she had more time, she would like to be
more involved in staff education and she would like to spend more time observing clients
individually to aid her in evaluating them. U.S. Exh. 616AA; Tr. 8/3/93 (Fahs) at 82-
3.If/ Dr. Hauser agreed that the residents at Ebensburg would benefit if the consult
psychiatrist could spend more time at the facility. Tr. 9/15/93 (Hauser) at 156, 157. He
indicated that if the psychiatrist had more time, the psychiatrist could be more rigorous
about, for example, documenting the specific differential diagnoses that are supposed to be
" / In response to the question "Do you have enough time?" Dr. Goldschmidt responded "I feel like I am rushed, no question about that. I am rushed." U.S. Exh. 616AA; Tr. 8/3/93 (Fahs) at 83. The sentiments Dr. Goldschmidt testified about in her deposition were the same sentiments she expressed to Dr. Fahs on this issue. Tr. 8/3/93 (Fahs) at 83. X2J In her deposition, Dr. Goldschmidt admitted that if she had had more time to consult at Ebensburg, she would have observed her patients in their work and living environments. U.S. Exh. 615 (Goldschmidt Dep.) at 29-30. She indicated that this is important because most Ebensburg residents are non-verbal, and it would have helped in doing psychiatric assessments by giving her a better understanding about what is going on with a particular individual. U.S. Exh. 615 (Goldschmidt Dep.) at 29-30. She also admitted that she would have liked more time to communicate with her patients' interdisciplinary teams. U.S. Exh. 615 (Goldschmidt Dep.) at 31. Dr. Goldschmidt indicated that she would have liked to have had more time to interact with the administration to better understand what options are available for specific residents. U.S. Exh. 615 (Goldschmidt Dep.) at 32.
EX-15

considered. Tr. 9/15/93 (Hauser) at 7 1 . ^ / Dr. Lubetsky agreed, as well, that it would be generally helpful to have the psychiatric consultant spend more time at Ebensburg, particularly to provide psychiatric services to individuals with more complicated behaviors. Tr. 9/14/93 (Lubetsky) at 157. Dr. Kastner additionally agreed that generally, increasing the number of psychiatric consult hours per month at a residential facility like Ebensburg would be beneficial and valuable. Tr. 9/14/93 (Kastner) at 9. In particular, he agreed that it would be beneficial to increase the amount of psychiatric consultation time at Ebensburg. Tr. 9/14/93 (Kastner) at 10. Dr. Kastner indicated, for example, that having to do 110 annual medication reviews per year in only 24 days would "stretch" the consult psychiatrist. Tr. 9/14/93 (Kastner) at 9-10. Indeed, Dr. Goldschmidt sometimes only spends five minutes per resident on her drug reviews. Tr. 10/15/93 (O'Brien) at 80, line 24.
The Commonwealth's experts agreed that the Ebensburg consult psychiatrist also did not have enough time to work with and educate the staff. Dr. Lubetsky indicated that it would be helpful for Ebensburg's consulting psychiatrist to provide "teaching" to the staff during the consult. Tr. 9/14/93 (Lubetsky) at 115. This would enable the staff to better understand what the psychiatrist was looking for in terms of providing her with behavioral information. Tr. 9/14/93 (Lubetsky) at 115-6. Dr. Lubetsky concluded that he did not see enough evidence that this type of instruction and guidance to the staff was being provided. Tr. 9/14/93 (Lubetsky) at 116. Dr. Lubetsky indicated that teaching the Ebensburg staff what behaviors to look for would benefit the residents with behavior problems at Ebensburg.
"/ With respect to the performance of the consult psychiatrist at Ebensburg, Dr. Hauser testified that "I actually believe that she wasn't doing the best job she could. I felt that she had it within her to do better." Tr. 9/15/93 (Hauser) at 140.
IX-16

Tr. 9/14/93 (Lubetsky) at 159. Dr. Hauser testified that it is the role of the consult psychiatrist to educate and train the staff about the value of medication and how to assess psychiatric impairment. Tr. 9/15/93 (Hauser) at 62.
Dr. Goldschmidt did not choose to renew her contract with the Commonwealth of Pennsylvania. As such, since July 1993, Ebensburg has been without the services of a psychiatrist who is under contract to provide its residents with regular psychiatric care. Tr. 10/19/93 (O'Brien) at 81.
3. Ebensburg Is Failing To Provide Its Residents With Adequately Considered Psychiatric Diagnoses In Violation Of Generally Accepted Standards.
It is generally accepted in the field that in formulating a proper diagnosis for an individual who may have a psychiatric disorder, a psychiatrist needs to take the information gathered in the assessment phase and thoughtfully consider what is causing the target behavior to occur. Tr. 8/3/93 (Fahs) at 83-4. The articulation of why a particular disorder is selected over the other possibilities is standard medical care. Tr. 8/3/93 (Fahs) at 85.
The diagnosis is the key to the selection of treatment. Tr. 8/3/93 (Fahs) at 89. Dr. Fahs testified that if the diagnosis is faulty because an improper assessment has been done, then there is a "high probability that an improper treatment will be selected." Id. This is an especially difficult problem when unnecessary drugs are prescribed to an individual. Id-
In formulating a diagnosis, it is generally accepted that a psychiatrist develops a "differential diagnosis" which considers probable diagnoses, possible diagnoses, and still other diagnoses for the particular behavior. Tr. 8/3/93 (Fahs) at 84, 160-1. Dr. Fahs added that "without consideration of the possibilities of the disorder that the person has, the
IX-17

likelihood of choosing a medication which is effective or specific for the disorder is less than
if one does carefully consider the differential diagnosis." Tr. 8/3/93 (Fahs) at 161.
Considering all these possibilities ensures that the psychiatrist will have the best chance of
providing the individual with the ultimately desired treatment. Tr. 8/3/93 (Fahs) at 84. The
consideration process is at the heart of a proper psychiatric diagnostic formulation. Id. The
construction of a differential diagnosis and the selection of a working diagnosis is standard
medical care and is generally accepted in the field. Tr. 8/3/93 (Fahs) at 85.^/
The psychiatric diagnostic process as conducted at Ebensburg is inadequate and does
not meet generally accepted standards in the medical community. Id.!7 Dr. Fahs
concluded that "There was no record, that I reviewed, that reviewed carefully why that
particular diagnosis was selected over the other possibilities, with a degree of rigor." Tr.
8/3/93 (Fahs) at 86. Dr. Fahs testified that at Ebensburg, he found "little consideration of
differential diagnostic possibilities." Tr. 8/3/93 (Fahs) at 85. Dr. Fahs indicated that in the
*/ Dr. Hauser testified that the formation of an adequate differential diagnosis is important in the psychiatric process of providing psychotropic medications or psychiatric services to residents in a facility for the mentally retarded. Tr. 9/15/93 (Hauser) at 151. Dr. Hauser indicated that doctors and psychiatrists are supposed to give a full consideration to alternative hypotheses in the differential diagnosis. Tr. 9/15/93 (Hauser) at 71. Dr. Lubetsky acknowledged that considering a differential diagnosis is important in providing psychiatric care. Tr. 9/14/93 (Lubetsky) at 146. Dr. Lubetsky agreed that with the developmentally disabled, "it's very difficult to make a diagnosis." Tr. 9/14/93 (Lubetsky) at 119. This is because of the cognitive impairment, die lower functioning, and the nonverbal nature of mis population. Tr. 9/14/93 (Lubetsky) at 119, 147. As a result, Dr. Lubetsky testified that the best attempt at a correct diagnosis for this population is to come up with a differential diagnosis. Tr. 9/14/93 (Lubetsky) at 119, 147. Dr. Lubetsky acknowledged that it is important that the psychiatrist consider a variety of diagnostic options. Tr. 9/14/93 (Lubetsky) at 147. Dr. Lubetsky acknowledged that "It is difficult to make a diagnosis in many of these clients; and the more information you get, the better chance you have of formulating a differential diagnosis.' Tr. 9/14/93 (Lubetsky) at 159.
" / Dr. Hauser testified that he made no conclusions one way or the other about the adequacy of the diagnoses at Ebensburg. Tr. 9/15/93 (Hauser) at 152.
IX-18

very few cases he could find a differential consideration of alternative diagnoses, they were not written down in one place where they would be of some use to the medical professionals; instead, the differential consideration was scattered in pieces throughout the record. Tr. 8/3/93 (Fahs) at 85-6. Because it was so scattered, Dr. Fahs concluded that this did not reflect a disciplined approach to psychiatry. Tr. 8/3/93 (Fahs) at 86. In his review of records, Dr. Fahs found that over ninety-five percent were deficient with respect to containing adequate diagnostic formulation. Tr. 8/3/93 (Fahs) at 88.?!/
Experts for the Commonwealth found problems with Ebensburg's psychiatric diagnoses as well. Dr. Lubetsky agreed that there is room for improvement with respect to Ebensburg's diagnostic process. Tr. 9/14/93 (Lubetsky) at 149. Dr. Lubetsky indicated that he would like to see more differential diagnoses at Ebensburg and a greater effort to look at specific symptoms in fitting criteria to come up with a list of working diagnoses. Id. Dr. Lubetsky indicated that after the psychiatric consult is completed at Ebensburg, he would like to see more of the psychiatrist's thought processes and more of the psychiatrist's decisionmaking process written down. Id.- Dr. Lubetsky indicated, for example, that the documented justification for the administration of psychotropic medications at Ebensburg was inconsistent. Tr. 9/14/93 (Lubetsky) at 150. He added that "the documentation and the psychiatric consultation form did not provide me with enough information to understand the thought process of the diagnosis and the medications in certain charts." Id. Dr. Hauser agreed that there are examples of individual records he reviewed at Ebensburg where their
Jjj For a discussion of detailed examples of inadequately considered psychiatric diagnoses at Ebensburg, see infra § IX.7.
IX-19

psychiatric diagnosis lacked an adequate description of symptoms to support the diagnosis. Tr. 9/15/93 (Hauser) at 152.
Because of the lack of rigor, psychiatric diagnoses at Ebensburg are routinely and regularly changed for some individuals without clarification as to why the change is being made. Tr. 8/3/93 (Fahs) at 86. Dr. Fahs added that he never found a single record at Ebensburg that clearly indicated why the diagnosis was being changed. Id. He indicated that this was an "extraordinarily common problem" at Ebensburg. Id. Dr. Fahs added that it was extraordinarily common to find a lack of discipline, lack of consideration of the diagnostic possibilities, and a lack of indication of the support for why a particular diagnosis was made. Tr. 8/3/93 (Fahs) at 87. Dr. Fahs stressed that "it is important to clarify why that change is being made because then not only does it appear that, in fact, the first diagnosis was given without consideration, it certainly suggests that the next one is given without consideration as well." Tr. 8/3/93 (Fahs) at 86.
It is not generally accepted in the field that one can simply make the diagnosis justify the treatment. Tr. 8/3/93 (Fahs) at 87. Dr. Fahs testified that "if one simply takes the position that the diagnosis justifies the on-going treatment, then changing diagnoses willynilly certainly suggests the treatment can be changed willy-nilly." Id. Dr. Fahs indicated that he was sorry to say that he found it common that diagnoses were added after a treatment was already started in order to justify continuing to give the treatment. Id- He testified that this "is standing the whole process on [its] head" because the diagnosis is what should lead to the treatment selection. Id.
IX-20

Dr. Fahs added that standard clinical practice dictates that "one ought not make a diagnosis retrospectively just because a particular treatment worked." Tr. 8/3/93 (Fahs) at 181. Dr. Fahs stressed that "there are no disorders of which I am aware for which treatment response serves as a diagnostic criteria. The whole purpose of the diagnosis is to be able to select the correct treatment." Tr. 8/3/93 (Fahs) at 180. He added that the purpose is "not to give somebody treatment, see if they get better, and then say the disorder they have is the one this drug is supposed to treat." Id.
Experts for the Commonwealth agreed with this principle. Dr. Kastner testified that "I support Dr. Fahs in his general statement that the diagnosis should guide treatment." Tr. 9/14/93 (Kastner) at 22. Dr. Lubetsky acknowledged that in general, one is taught to "try to make the best diagnosis you can and try not to make your diagnosis based on the response to a medication. Tr. 9/14/93 (Lubetsky) at 120. Dr. Hauser testified that ideally the choice of the medication comes about from the hypothesis that the person has a particular disorder. Tr. 9/15/93 (Hauser) at 40.
In addition to the Justice Department's 1990 letter citing deficiencies in this area, Ebensburg has also been on notice of deficiencies with its psychiatric diagnoses from State surveyors. Tr. 8/3/93 (Fahs) at 90. A 1991 IOC survey team found that documentation for Ebensburg residents with psychiatric diagnoses lacked adequate description of symptoms to support the diagnosis. U.S. Exh. 66; Tr. 8/3/93 (Fahs) at 90. This conclusion is entirely consistent with the conclusions of Dr. Fahs in this regard. Tr. 8/3/93 (Fahs) at 90. Additional symptoms to support a diagnosis do need to be articulated, and they do need to be quantified so that they can be followed over time. Tr. 8/3/93 (Fahs) at 147. That
IX-21

information needs to be conveyed to the psychiatrist to assist in treatment decisions and diagnostic decisions. Id. One needs to be careful to articulate the symptoms of the individual, rather than just writing down the diagnosis. Tr. 8/3/93 (Fans) at 90. The 1991 IOC survey team also found that the justification for the administration of psychotropic medication at Ebensburg was inconsistent, and that behavior plans are required, but were not being provided for certain individuals. U.S. Exh. 66; Tr. 8/3/93 (Fahs) at 90. Promised corrective actions by Ebensburg were not carried out. Tr. 8/3/93 (Fahs) at 147. In 1993, the IOC surveyors also cited Ebensburg for prescribing a certain drug for akathisia to James R. even though there was no evidence to support this as the proper diagnosis. U.S. Exh. 67; Tr. 8/3/93 (Fahs) at 96-7.
4. Ebensburg Is Failing To Provide Its Residents With Adequate And Appropriate Psychiatric Treatments In Violation Of Generally Accepted Standards. a. The Treatment Decision-Making Process At Ebensburg Is Not Adequate.
Ebensburg does not provide its residents with adequate and appropriate treatment of their psychiatric disorders in violation of generally accepted standards in the medical community. Tr. 8/3/93 (Fahs) at 92. There are many deficiencies at Ebensburg at the treatment stage: the weighing of the different treatment options available is inadequately considered at Ebensburg; the rigorous consideration and selection of treatments is weak; whatever documentation is available only gives the "illusion" that a careful weighing of the treatment options is being done; behavioral programs are not considered aggressively for people who have psychiatric disorders; there is a poor coordination of treatment efforts; changing behavioral programs and drug treatments sometimes seem to be unrelated to each
IX-22

other; and there is an overreliance on the diagnosis justifying the treatment. Tr. 8/3/93 (Fahs) at 92-3.^/ Dr. Lubetsky agreed that there is room for improvement with regard to Ebensburg's psychiatric treatment. Tr. 9/14/93 (Lubetsky) at 149.
Dr. Fahs testified that the process of providing psychiatric care to the residents at Ebensburg was "so deficient," that he was not able to comment about particular diagnoses and the correctness of particular treatments. Tr. 8/3/93 (Fahs) at 114. Dr. Fahs added that "I dare say nobody else would be able to comment on that either ... it was just so chaotic that it was hard to second guess." Id.fV
It is generally accepted in the field that the psychiatric treatment phase requires a reasoned consideration of what the treatment options are, again flowing from the assessment and diagnosis. Tr. 8/3/93 (Fahs) at 91. Drug treatment must be carried out reasonably and according to generally accepted medical standards such as providing adequate dosage and safe monitoring. Tr. 8/3/93 (Fahs) at 92. Engaging in an inadequate treatment decisionmaking process affects the Ebensburg residents directly because if the incorrect treatment is selected, people will not respond, except by luck. Tr. 8/3/93 (Fahs) at 93. Dr. Lubetsky agrees that a psychiatrist would have to be "lucky" to provide the correct treatment if the assessment was inaccurate or inappropriate. Tr. 9/14/93 (Lubetsky) at 145-6.
^/ For a detailed discussion of examples of situations at Ebensburg where treatment decisions were inadequate, see infra § IX.7. */ Dr. Hauser admitted that he did not review each Ebensburg medical record to specifically determine if the treatment was working. Tr. 9/15/93 (Hauser) at 133. Dr. Hauser was not prepared to testify as to which specific records he reviewed to see whether or not their treatment was working. Tr. 9/15/93 (Hauser) at 134.
IX-23

Dr. Fahs stressed that "if treatment is given which is not indicated, if treatment is
withheld which ought to be given, individuals will continue to either suffer from the
disability that they have with on-going problems with self-injurious behavior, with on-going
problems with agitation, aggression, etcetera, because of undertreatment, or they will suffer
the side effects needlessly from the administration of medications which are not beneficial.''
Tr. 8/3/93 (Fahs) at 93.
b. Inappropriate Treatment Selection At Ebensburg Exposes Individuals To Risks Of Drug Side Effects.
It is generally accepted that a psychiatrist should select medications appropriately, use
them properly when they are indicated, and avoid using them when they are not indicated.
Tr. 8/3/93 (Fahs) at 65. In addition, a clinician should always use the treatment that carries
with it the best benefit to risk ratio for that particular patient. Tr. 8/3/93 (Fahs) at 91.
Psychotropic medications^/ carry with them a risk because they have associated with them
side effects. Tr. 8/3/93 (Fahs) at 65, 91.^/ Dr. Fahs testified that psychotropic
f7 A psychotropic medication is any medication that is prescribed with the primary intent of improving an abnormality in thinking, feeling or behavior. Tr. 8/3/93 (Fahs) at 66. Psychotropic medications are not a homogenous class of drugs; they are very different. Tr. 8/3/93 (Fahs) at 66. There are antipsychotic or antidepressant medications, there are stimulants, sedatives, sleeping pills and others. Tr. 8/3/93 (Fahs) at 66. Among all psychotropic medications used for mentally retarded individuals, including those at Ebensburg, antipsychotic medications or neuroleptics are the ones most often used. Tr. 8/3/93 (Fahs) at 66-7. Haldol and Thorazine are examples of neuroleptics. Tr. 8/3/93 (Fahs) at 67. Each class of medication has its own side effects. Tr. 8/3/93 (Fahs) at 66. Dr. Lubetsky indicated that neuroleptics carry with them a variety of side effects such as tardive dyskinesia, extra-pyramidal symptoms ("EPS"), dry mouth, and effects on blood pressure. Tr. 9/14/93 (Lubetsky) at 152.
^J One major class of psychotropic drugs are called "mood stabilizers" such as Lithium, Depakote and Tegretol. Tr. 8/3/93 (Fahs) at 68. Side effects associated with the use of Lithium include hypothyroidism, GI problems, nausea, vomiting, diarrhea, tremors, shaking hands, and very frequent urination. Tr. 8/3/93 (Fahs) at 68. Side effects associated with the use of Tegretol include a decreased white blood cell count, a severe abnormality in the blood cells, severe anemia, a decreased
(continued...)
IX-24

medications are "potentially fraught with difficulties if they're used inappropriately." Tr.
8/3/93 (Fahs) at 66.
An Ebensburg resident who is receiving inappropriate or improper psychotropic
medication treatments suffers the risk of incurring the drugs' side effects without deriving
any benefit. Tr. 8/3/93 (Fahs) at 69.f/ This is real harm. Id.fI Because the
individual may suffer side effects, regardless of whether or not the medication is in fact
helpful, it is critical not to prescribe psychotropic medications unless there is some benefit to
the individual from the use of those medications. Tr. 8/3/93 (Fahs) at 65. In fact, it is
generally accepted that one should avoid the use of psychotropic medications when they are
not indicated. Id. As a result, clinicians should not rush into using psychotropic drugs. Tr.
8/3/93 (Fahs) at 65-6.!!/
Given that Ebensburg's psychiatric assessments and diagnoses are so entirely
deficient, however, the Ebensburg residents are exposed to the serious side effects of using
psychotropic drugs. A serious concern in the field is needless exposure to the risks of
*/(... continued) platelet count, dizziness, sedation and difficulty walking. Tr. 8/3/93 (Fahs) at 68. Side effects associated with the use of Depakote include liver problems and sedation. Tr. 8/3/93 (Fahs) at 68. Another class of psychotropic medication used at Ebensburg are antidepressant drugs. Tr. 8/3/93 (Fahs) at 68. The side effects associated with the use of antidepressants include sedation, anticholinergic effects, and overstimulation. Tr. 8/3/93 (Fahs) at 68-9.
" / Dr. Lubetsky admitted that an individual may suffer side effects whether the treatment provides benefit or not. Tr. 9/14/93 (Lubetsky) at 146. */ Another harm is not receiving appropriate treatment for the disorder. Tr. 8/3/93 (Fahs) at 69. Dr. Fahs stressed that "the harm would be at least two-fold, incurring the risk associated with the medications ... and not receiving treatment which may be effective." Tr. 8/3/93 (Fahs) at 69.
*/ Dr. Fahs testified that he was trained to be sure before acting with any medical treatment; he quipped that when one is unsure if a medication is indicated, "don't just do something, stand there." Tr. 8/3/93 (Fahs) at 66.
IX-25

tardive dyskinesia. ("TD"). Tr. 8/3/93 (Fahs) at 67. Tardive dyskinesia is a movement disorder or abnormality that stems from the chronic use of certain psychotropic medications like neuroleptics. Id- Dr. Kastner indicated that tardive dyskinesia is a significant problem in the treatment of people with psychiatric disorders who receive neuroleptic medication. Tr. 9/14/93 (Kastner) at 11. Dr. Kastner testified that tardive dyskinesia is a "serious concern" in the field of developmental psychiatry and in the field of psychiatry in general. Tr. 9/14/93 (Kastner) at 13. Usually tardive dyskinesia shows itself when a patient exhibits tremors of the face and the mouth, the hands, and may exhibit other problems which reflect the change in the chemistry of the brain due to prolonged neuroleptic drug use. Tr. 9/14/93 (Kastner) at 12-3. The onset of TD may be rather insidious, making its appearance only years after the person has been taking the medication. Tr. 8/3/93 (Fahs) at 67. Once TD makes its appearance, however, it is untreatable. Id. Dr. Kastner agreed that there is "really no effective consistently effective treatment for tardive dyskinesia." Tr. 9/14/93 (Kastner) at 12. Dr. Hauser found that there are clients at Ebensburg with involuntary movements that are representing TD. Tr. 9/15/93 (Hauser) at 34. Several of the residents reviewed by Dr. Russo are showing signs of neurological damage and complications, which are side effects of protracted use of psychotropics. Tr. 8/2/93 (Russo) at 55.
It is often difficult to differentiate tardive dyskinesia from other movement disorders. Tr. 9/14/93 (Kastner) at 13. Given that it is difficult, practitioners have developed scales and screening tests to help them determine when tardive dyskinesia was present. Dr. Kastner agreed that tardive dyskinesia should be monitored over time, however, he did not remember if Ebensburg used an AIMS scale or anything else to test for tardive dyskinesia. Tr. 9/14/93
IX-26

(Kastner) at 13-4. At Ebensburg, there is not a consistent, regular review for psychotropic medication side effects, including AIMS tests for tardive dyskinesia. Tr. 8/3/93 (Fans) at 100. The AIMS screenings were not regularly done, even though there is an official policy at Ebensburg saying that it is supposed to be done. Id- In fact, Ebensburg nurses do not have any specific assessment tool that they use for looking for side effects of psychotropic medications. U.S. Exh. 638 (Sponsky Dep.) at 71.
Ebensburg residents who are prescribed psychotropic medications in the flawed Ebensburg system are also exposed to the risk of neuroleptic malignant syndrome ("NMS"). Tr. 8/3/93 (Fahs) at 67. NMS is a severe movement disorder creating problems with the autonomic nervous system leading to chaotic blood pressure, breathing problems, high fever, and an alteration in the level of consciousness, occasionally leading to stupor and coma. Id. Neuroleptic malignant syndrome has a mortality rate of ten to twenty percent. Id. Extrapyramidal syndrome ("EPS") is another common side effect. Many Ebensburg residents like Ann B. are taking Cogentin for the treatment of EPS. Dr. Goldschmidt's November 1992 consult notes that Ann's tongue is protruding. U.S. Exh. 640 (Stratton Dep.) Exh. 2.^7
c. Ebensburg Is Failing To Provide Its Residents With Adequate And Appropriate Behavior Programs At The Treatment Stage.
As a result of the risk of side effects, Dr. Fahs stressed that "[n]on-drug treatments are to be preferred." Tr. 8/3/93 (Fahs) at 169. Behavior treatments generally carry with them lower risks than do drug treatments. Tr. 8/3/93 (Fahs) at 91. Thus, if a drug and nondrug treatment are thought to be of equal benefit, it would be logical to choose behavioral
fV Other common side effects associated with the use of psychotropic medications are sedation, anticholinergic side effects (such as dry mouth, dizziness, constipation and urinary retention), photosensitivity, and many others. Tr. 8/3/93 (Fahs) at 67-8.
IX-27

treatment over drug treatment. Tr. 8/3/93 (Fahs) at 92. Dr. Hauser agreed that there are times when a psychiatric disorder should be addressed through non-medication means, where the use of medications would be premature. Tr. 9/15/93 (Hauser) at 46. Dr. Hauser termed using medications prematurely without trying alternative treatments as a "red flag" issue. Tr. 9/15/93 (Hauser) at 135.il/
Dr. Fahs stressed that "the assessment process which leads to treatment selection only occasionally would suggest that drug treatment should be used ... non-drug treatments should be used whether or not drug treatments are used." Tr. 8/3/93 (Fahs) at 113. Dr. Fahs added that "there's virtually no psychiatric disorder for which the treatment is solely a drug treatment. The treatment of psychiatric disorders requires a coordinated comprehensive approach to treatment, and it is very, very seldom that treatment ought be drugs alone." Tr. 8/3/93 (Fahs) at 90-1.^/ Dr. Hauser agreed that it is appropriate to use a coordinated approach of providing drug and non-drug treatments at the same time in synchrony with one another. Id. Dr. Lubetsky testified that when providing a mentally retarded individual drug treatment, it is important to always be providing other forms of treatment along with the medication. Tr. 9/14/93 (Lubetsky) at 148. Dr. Lubetsky indicated that the other treatments may continue to be effective after the medication has been eliminated from the treatment program. Tr. 9/14/93 (Lubetsky) at 148-9.
^7 However, Dr. Hauser was not prepared to testify about the specific names or numbers of records he reviewed where Ebensburg had actually tried alternative treatments before resorting to medication. Tr. 9/15/93 (Hauser) at 136-7. Dr. Hauser admitted that he did not look in each record he reviewed to determine whether each and every individual had an adequate behavior plan to address their behavior. Tr. 9/15/93 (Hauser) at 140-1. fV Dr. Fahs' own patients that are treated with drugs are also treated with behavioral treatments as well. Tr. 8/3/93 (Fahs) at 113.
IX-28

However, behavior programs at Ebensburg are not considered aggressively for people who have psychiatric disorders. Tr. 8/3/93 (Fahs) at 93.!!/ Dr. Goldschmidt admitted that certain psychologists at Ebensburg sometimes rely on psychotropic medications before they try a behavior program. U.S. Exh. 615 (Goldschmidt Dep.) at 59. Given Ebensburg's overdeference to medications for treatment of behavior problems, residents at Ebensburg run an increased risk of medication side effects. U.S. Exh. 615 (Goldschmidt Dep.) at 5860.!!/
Ebensburg has been repeatedly cited for its failure to integrate adequate behavior programs with its use of psychotropic medications. The Department of Justice notified defendants, in both 1987 and 1990, of unconstitutional conditions at Ebensburg due to its use of psychotropic medications as a substitute for adequate behavior programs. U.S. Exh. 638 (Sponsky Dep.) Exhs. 49, 50. Other outside surveyors have found similar problems at Ebensburg, as recently as 1993. U.S. Exh. 67 (1993 IOC survey); U.S. Exh. 60 (1992 MA survey); U.S. Exh. 66 (1991 IOC survey); Tr. 8/3/93 (Fahs) at 89-90, 95-99. See further discussion infra § VIE.A.I.
5. Ebensburg Is Failing To Adequately Monitor Its Residents' Progress After Providing Them With Psychiatric Treatment In Violation Of Generally Accepted Standards.
"Monitoring" is the stage where the decision is made as to whether or not the person is receiving benefit from the treatment. Tr. 8/3/93 (Fahs) at 101. Monitoring entails
*/ For a detailed discussion of specific examples of this at Ebensburg, see supra § VIII.A and infra § IX.7. */ Dr. Goldschmidt believed that if Ebensburg had employed more direct care staff, psychotropic medication use at the facility would be reduced. U.S. Exh. 615 (Goldschmidt Dep.) at 88.
IX-29

looking for a beneficial response to treatment and monitoring for side effects. Tr. 8/3/93 (Fahs) at 99; Tr. 9/14/93 (Lubetsky) at 151. It is generally accepted that the only way to know if the treatment decision is effective and correct in a particular instance is to monitor the treatment. Tr. 8/3/93 (Fahs) at 69-70.!f/ Even if a treatment decision is rational and based on a properly undertaken assessment coupled with a thoughtful diagnosis, the treatment may still not work. Tr. 8/3/93 (Fahs) at 70. If that is the case, experts for both the United States and defendants agree that treatment should be stopped and another treatment should be started. Id; Tr. 9/14/93 (Lubetsky) at 153. Monitoring must be undertaken and completed in a disciplined fashion. Tr. 8/3/93 (Fahs) at lOO.fV This is generally accepted in the medical community. Id.
If monitoring is not done, individuals may receive medications and not receive any benefit from them; they will continue to suffer from the disorder and will continue to incur the risk of side effects in further taking the drugs. Tr. 8/3/93 (Fahs) at 101; Tr. 9/14/93 (Lubetsky) at 153. As Dr. Fahs testified, for individuals like those at Ebensburg, "That's real harm." Id.
Ebensburg is seriously deficient in appropriately and adequately monitoring its residents who may be receiving psychotropic treatments in violation of generally accepted
^J Dr. Lubetsky agreed that monitoring is important because it is the only way to know whether the medication is effective or not for that individual. Tr. 9/14/93 (Lubetsky) at 151. Dr. Lubetsky indicated that this is important because if the medication is not helping the individual, then the psychiatrist needs to make a decision about altering the dose or changing the medication. Tr. 9/14/93 (Lubetsky) at 151. Dr. Hauser agreed that monitoring data is an important component of the
psychiatric consult process. Tr. 9/15/93 (Hauser) at 179.
ff/ In fact, the monitoring process should spill over neatly into the assessment phase where information is gathered initially. Tr. 8/3/93 (Fahs) at 99.
IX-30

standards. Tr. 8/3/93 (Fahs) at 100. Dr. Fahs concluded that in 100% of the Ebensburg medical records he reviewed, treatment monitoring was inadequate. Tr. 8/3/93 (Fahs) at 101.!!/
Dr. Lubetsky agreed that he would like to see more side effects being monitored at Ebensburg. Tr. 9/14/93 (Lubetsky) at 153-4. Dr. Lubetsky testified that for selected individuals at Ebensburg, there may be a need to take more individualized frequency counts beyond the one or two target behaviors that are being monitored now. Tr. 9/14/93 (Lubetsky) at 154. Dr. Lubetsky added that if reliability checks were performed on the monitoring data at Ebensburg, it would help improve behavior data collection. Id.
Dr. Fahs testified that it was difficult for him to speak specifically to whether or not any Ebensburg individual was receiving any benefit from a particular medication because the monitoring was so inadequate. Tr. 8/3/93 (Fahs) at 119.
6. Ebensburg Residents Are Being Chemically Restrained. It is clear that many individuals at Ebensburg are being chemically restrained given that they are provided with psychotropic medication without the facility having adequately attempted non-drug alternative treatments like behavior programs. See further discussion supra § Vin.A.2, IX.A.4.C. In addition, if an individual is given medication without justification or without any evidence that the medication is helpful, that individual can be considered to be "chemically restrained." Tr. 8/3/93 (Fahs) at 94-95. As a result, based on the entirely inadequate
fl/ For a discussion of further details of specific cases where Ebensburg has not monitored psychiatric treatments adequately, see infra § IX.7.
IX-31

psychiatric assessment and monitoring processes at Ebensburg, Dr. Fahs concluded that
chemical restraint is "quite common" at Ebensburg. Id. Chemical restraint is common at
Ebensburg because, as discussed, residents are provided medication based upon lack of
evidence of efficacy, because there are psychotropic drugs provided based on potentially
inappropriate indications, and because there are psychotropic drugs provided when the staff
simply does not know if a medication is helpful. Tr. 8/3/93 (Fahs) at 95.!!/
7. Individuals Residing At Ebensburg Have Been Harmed Because Of The Inadequate And Inappropriate Psychotropic Services Provided To Them By The Facility.
Dr. Fahs testified that the problems in the provision of psychiatric services to the
Ebensburg residents are so pervasive as to affect 100% of the individuals he reviewed who
receive psychiatric care at the facility. Tr. 8/3/93 (Fahs) at 88, 101. To illustrate his
points, Dr. Fahs provided a few selected examples of individual psychiatric care that touch
on a number of the general conclusions he testified to earlier. Tr. 8/3/93 (Fahs) at 101.
• Andrew H.: Dr. Fahs sat in on a psychiatric consultation for Andrew. Tr. 8/3/93 (Fahs) at 117. Dr. Fahs testified that the consult was "extremely chaotic and disorganized, not focused." Id. Andrew was singing and talking loudly for the entire consult, and yet the staff simply watched him. Id.
Dr. Fahs noted a number of substantive deficiencies at the consult. Id. For example, despite the fact that Andrew's medications had been recently changed, there was absolutely no review of any of the medications that he was taking. Tr. 8/3/93 (Fahs) at 118. At the consult, the staff noted that Andrew "needed" his psychotropic drug, but mere was no review of data, no rigorous consideration of non-medication treatments, no real rigorous review of
fV Dr. Fahs explained that "chemical restraint" is a term that is not used by physicians at all. Tr. 8/3/93 (Fahs) at 94. He added that it "has grown up as a legal term." Tr. 8/3/93 (Fahs) at 94. He indicated that while most physicians might think a "chemical restraint" was the acute administration of a sedating drug in an emergency situation, regulatory guidelines in the area of mental retardation define "chemical restraint" as the unnecessary administration of psychotropic medications. Tr. 8/3/93 (Fahs) at 94-5. This would include medications that are given without any indication or medications that are given without evidence that they are helpful. Tr. 8/3/93 (Fahs) at 95.
EX-32

anything. Id.f!/ Dr. Fans testified that the individuals present at the consult were just "watching," and that no direct care staff were present at the consult. Id. There was no review of any behavioral information. Id. In the midst of the midst of what Dr. Fahs depicted as "chaos," there was a recommendation to add another medication, and a recommendation, by silence, to continue the medication that he was already taking. IdThere was no discussion of any alternative treatments at the consult. Id-—I Andrew suffered harm in having to continue to receive neuroleptic medication without the medical staff knowing if he was receiving any benefit from it. Tr. 8/3/93 (Fahs) at 119. See also discussion about Ebensburg's general failure to protect Andrew H. from harm supra § V.F.I.
• George F.: In providing psychiatric care to George F., Dr. Fahs concluded that Ebensburg did not meet generally accepted professional standards. Tr. 8/3/93 (Fahs) at 1067. Overall, Dr. Fahs concluded that the psychiatric care provided to George was characterized by poor interdisciplinary coordination: there were medication changes even though his activities and behaviors were not being monitored; there was a clear lack of nondrug behavioral treatment; and the administration of psychotropic medication continued without evidence that it was helpful to him. Tr. 8/3/93 (Fahs) at 105-106.11/
George suffered harm by continuing to take a psychotropic drug that is potentially damaging with no evidence that he was deriving any benefit from it. Tr. 8/3/93 (Fahs) at 106. In addition, George had self-injurious behavior (marked by pulling off his toe nails, face slapping and biting his arm), and yet his behavioral program was wholly inadequate. Tr. 8/3/93 (Fahs) at 103.
George was given a chart diagnosis of schizophrenia. Tr. 8/3/93 (Fahs) at 102. Dr. Fahs indicated that he could not find any evidence to support the diagnosis of schizophrenia in George's record. Id- Dr. Hauser testified that after reviewing George F.'s record, he too could not find any evidence to support the diagnosis of schizophrenia. Tr. 9/15/93 (Hauser)
*/ See also § VELE.3 (discussion of Ebensburg's failure to address Andrew's maladaptive behaviors with non-medication alternatives, such as a behavior program).
*/ Dr. Fahs emphasized that decisions about psychotropic medications are important not only because of the notable risks and because of the interference it can cause with the individual's progress, but also for the consequences of when treatment is denied and it should be administered. Tr. 8/3/93 (Fahs) at 118.
*2J See also supra § VII.E.3 (discussion of Ebensburg's failure to provide George with a behavior program for biting) and § V.F.3 (discussion of Ebensburg's failure to protect other residents at Ebensburg from George's biting even though directed by the State to do so).
IX-33

at 17O.f7 George's diagnosis was changed from schizophrenia to autism for no apparent reason that was discernable from the record. Tr. 8/3/93 (Fahs) at 104-5.
There was indication in the record that he had a problem with constant inappropriate masturbation and yet there was no data presented or available in the record with regard to this behavior. Tr. 8/3/93 (Fahs) at 103. Dr. Fahs stressed that it makes sense to carefully evaluate such an inappropriate sexual behavior in mentally retarded people given that it interferes with their social integration. Id.^V Instead of gathering data, the Ebensburg psychiatrist simply suggested increasing his psychotropic medication to better control his masturbation. Id. His drugs were increased, but there was no accompanying behavioral program put in place. Tr. 8/3/93 (Fahs) at 103-4. Dr. Lubetsky admitted that there was no behavioral program for George's masturbation listed in the "behavior objectives" part of his record. Tr. 9/14/93 (Lubetsky) at 208; U.S. Exh. 956. Dr. Lubetsky testified that he did not recall the specific data format used to monitor George's masturbation, and he did not recall if there was a behavior program in place related to his SIB. Tr. 9/14/93 (Lubetsky) at 197. George's psychotropic medication was increased for unclear reasons. Tr. 8/3/93 (Fahs) at 105. It was also problematic that his psychotropic drugs were increased at the very time his SIB was at its lowest. Tr. 8/3/93 (Fahs) at 104. Dr. Fahs testified that there was a great need for longitudinal data for George because he very likely had a natural fluctuation in his behavioral difficulties. Id. It was hard to tell if George's behaviors improved as a result of any of his treatments because the recorded information was so bad. Tr. 8/3/93 (Fahs) at 105.
Finally, the psychologist indicated that George was "too low functioning" for a behavioral program. Tr. 8/3/93 (Fahs) at 104. Dr. Fahs testified that he was struck by this given that George is no different from the other profoundly mentally retarded individuals at Ebensburg. Id. Dr. Hauser indicated that if the staff at a facility held the position that everybody was too low functioning to benefit from anything, that would obviously be a "problem." Tr. 9/15/93 (Hauser) at 97.
f / Dr. Fahs commented that the diagnosis of schizophrenia was problematic because a diagnosis of schizophrenia requires an accurate verbal report of an abnormal thinking process; however, he added that there is virtually universal agreement among the psychiatric community who work with people who are mentally retarded that it is exceedingly difficult, if not impossible, to make a diagnosis of schizophrenia in a profoundly mentally retarded person. Tr. 8/3/93 (Fahs) at 102. Dr. Hauser agreed that "the cognitive deficits of a profoundly retarded person are so severe, that you actually can't find out if they meet the diagnosis criteria for schizophrenia." Tr. 9/15/93 (Hauser) at 89. He added, "So, I in a sense, am agreeing with Dr. Fahs about the limitations of the use of the term "schizophrenic" for people with profound retardation." Tr. 9/15/93 (Hauser) at 92. Dr. Lubetsky also agreed that it is difficult to make a diagnosis of schizophrenia since it is difficult to ascertain hallucinations, psychoses, delusions if someone is not verbal. Tr. 9/14/93 (Lubetsky) at 194-5. The fact that a resident has had abnormal behaviors does not in and of itself support the diagnosis of schizophrenia. Tr. 8/3/93 (Fahs) at 102-3.
f7 When referring to this specific problem in her deposition, Dr. Goldschmidt did not point to any data or hard information, but instead merely stated that Ebensburg has "a lot of masturbating all over the place." U.S. Exh. 615 (Goldschmidt Dep.) at 97, line 20.
IX-34

• Gary K.: Overall, the case of Gary K. demonstrates that no assessment was available, there was no disciplined consideration of the differential diagnosis, and he received treatment for his psychiatric disorder only after it had been delayed for a long time. Tr. 8/3/93 (Fahs) at 109. Gary suffered harm in that he was forced to continue to suffer from depression, aggression, and agitation because he was not treated with appropriate antidepressant medication. Tr. 8/3/93 (Fahs) at 107, 109-10. He did not need to continue to suffer from the depression without being adequately treated for as long as he did. Tr. 8/3/93 (Fahs) at 110. Depression is one of the most "treatable" psychiatric disorders. Id.
When Ebensburg finally started treating Gary for his depression, his psychiatric consult notes fail to mention or note his depression. Tr. 8/3/93 (Fahs) at 109. This was striking to Dr. Fahs given that this was the condition he was being treated for, and this was the condition that the inter-disciplinary team had been following. Id. The psychiatrist recommended treatment, and it was begun, with an antidepressant psychotropic medication, but there was no articulation of specific information with regard to that disorder. Tr. 8/3/93 (Fahs) at 108.
Dr. Goldschmidt indicated on a consult visit in October 1992, that she wanted to see Gary the next time she visited Ebensburg. U.S. Exh. 953; Tr. 9/14/93 (Lubetsky) at 199. However, the next time the consult psychiatrist saw Gary in consult was in March 1993 — over five months later. Tr. 9/14/93 (Lubetsky) at 199-200.^/
Gary was given a "diagnosis" of aggressive behavior, but aggressive behavior is not a psychiatric diagnosis. Tr. 8/3/93 (Fahs) at 107. His aggression increased and yet it was difficult for Dr. Fahs to ascertain whether there had been a consideration of non-medication treatments for his increased aggression. Tr. 8/3/93 (Fahs) at 107-8.JV
For three months, Gary was provided 150 mg of Desoryl (a psychotropic drug), and yet this was an entirely insufficient dosage. Tr. 8/3/93 (Fahs) at 108.^/ Not surprisingly, Gary did not respond and did not get better in terms of his depression. Id. He continued with his agitation and aggression during that time. Id. He was then switched to another psychotropic medication, but there was no gathering or presentation of rigorous disciplined data of his behavior and how George responded to the drugs. Tr. 8/3/93 (Fahs) at 109. Dr. Fahs indicated that the physician and the pharmacist should have intervened earlier. Tr.
"/ For a further discussion of Gary K. and Dr. Goldschmidt's concerns about whether he was being abused §ee also supra § V.F.I.
^/ See also supra § VII.G.I (discussion of Ebensburg's failure to revise Gary's behavior program for aggression since 1988, in spite of continued aggression including March 1992 incident wherein Gary bit James P.'s scrotum so hard that suturing was required).
tl Reading from the Physicians' Desk Reference, Dr. Fahs indicated that the usual adult dosage of this drug initiates at 150 mg per day. Tr. 8/3/93 (Fahs) at 188. Dr. Fahs added that instead Gary was provided with an initial dose of 50 mg per day which was only increased to 150 mg at a later time. Tr. 8/3/93 (Fahs) at 188. In addition, Gary was kept on this initial dose for over three months. Tr. 8/3/93 (Fahs) at 188.
IX-35

8/3/93 (Fahs) at 110. It is important for the pharmacist to have input at the interdisciplinary team level into the decision of whether or not to administer drugs. Tr. 8/3/93 (Fahs) at 119. The Ebensburg Chief Pharmacist, Mr. Fris, admitted that he does not have enough contact with Ebensburg's psychiatrist. U.S. Exh. 612 (Fris Dep.) at 104-5. The pharmacist did not attend interdisciplinary team meetings, and the pharmacist had not attended the behavior management committee meetings in months. Tr. 8/3/93 (Fahs) at 120. (Although on the day that Dr. Fahs was present at the facility, Ebensburg made sure that the pharmacist was present at the behavior management committee meeting. Id.)
• Franklin B.: Franklin was provided with an improper psychiatric assessment leading to a delay in treatment while his aggression and severe agitation continued. Tr. 8/3/93 (Fahs) at 110. If Franklin had received an adequate and appropriate assessment and diagnosis, it is less likely that his aggression would have increased. Id. There were other treatment possibilities that seemed reasonable. Tr. 8/3/93 (Fahs) at 113-4. Overall, the psychiatric services provided to Franklin are inadequate because they are being rendered without data and they are not sufficiently coordinated with the psychiatrist, all leading to harm and injury for Franklin from continued agitation and aggression. Tr. 8/3/93 (Fahs) at 117.
At the end of the psychiatric consult provided to Franklin, Dr. Lubetsky indicated that the team had still not completed a differential diagnosis on him. Tr. 9/14/93 (Lubetsky) at 181-2. Dr. Lubetsky admitted that it would have been helpful if the team had explored the precipitant of Franklin's behavior and the consequences of his behavior, but these topics had not been discussed. Tr. 9/14/93 (Lubetsky) at 182. Dr. Lubetsky indicated that it would also have been helpful to have more information about Franklin's target behaviors presented at the consult. Tr. 9/14/93 (Lubetsky) at 182-4. Dr. Lubetsky indicated that hard data and functional analysis of Franklin's behavior would help the psychiatrist appropriately treat the individual's target behavior. Tr. 9/14/93 (Lubetsky) at 185.
The diagnoses provided for Franklin changed over the years for reasons that were not entirely clear because the reasons for the changes were not articulated in the record. Tr. 8/3/93 (Fahs) at 111. At one point his Haldol was increased presumably because of behavioral worsening. Id. However, it was difficult for Dr. Fahs to tell if his behavior actually worsened because there was no intensity behavioral data or information in the record. Id. Dr. Fahs testified that the intensity data was "conspicuous by its absence;" "there was no measure of intensity." Tr. 8/3/93 (Fahs) at 111-2. The only information on which to proceed is anecdotal. Tr. 8/3/93 (Fahs) at 112. At another time, it was problematic for Dr. Fahs that Franklin was subjected to a "major medication change and a major environmental change occurring within two days of each other." Id. Dr. Fahs testified that that is something to be avoided. Id.
The psychiatrist made several recommendations to discontinue or decrease Franklin's psychotropic drugs, but none of her recommendations were implemented. Tr. 8/3/93 (Fahs) at 114-5. Dr. Fahs was perplexed why the changes had not been made since Franklin's behaviors had worsened. Tr. 8/3/93 (Fahs) at 115. Dr. Fahs stressed the need for follow-up of recommendations from the psychiatrist. Id. There was also a recommendation to
IX-36

decrease one of his psychotropic medications, and yet this was never done and it was not clear why it had not been done. Id.
Franklin was scheduled to be reviewed by the Ebensburg behavior management committee in December 1992, when Dr. Fahs was present at the facility. Tr. 8/3/93 (Fahs) at 115-6. Dr. Fahs testified that he was "anxious to see how deliberations went for consideration of a new drug." Tr. 8/3/93 (Fahs) at 116. However, at the time, Dr. Fahs was told that Franklin could not be reviewed that day because there was no data on him. Id. Dr. Fahs testified "in my mind, what I thought was, well, so now they're going to go back and do the things that I've been mentioning earlier, provide good baseline data or whatever, and it will be reviewed again. That's the purpose of those kinds of reviews." Id. However, when Dr. Fahs was finally able to review Franklin's record after the fact, he discovered that the medication was started five days after that behavior management meeting was scheduled to have taken place. Id. This indicated to Dr. Fahs that the kind of review Franklin had been provided was not useful. Id. Dr. Fahs found it hard to imagine that an adequate amount of information could have been retroactively put together in five days to support the proposed action. Tr. 8/3/93 (Fahs) at 136. As a result, he questioned whether or not that level of review at Ebensburg is helpful. Id.
In fact, Franklin worsened a lot after the medication was started, and it was discontinued about a month later. Tr. 8/3/93 (Fahs) at 116. He continued to be agitated over the next several months. Id.fV Ebensburg has treated Franklin with emergency chemical restraints at least 24 times in the first ten and a half months of 1993. U.S. Exh. 993; Defendants' Brief in Opposition to United States' Motion for Rebuttal Testimony at 35, fn. 13.
• Darren W.: Overall, Dr. Fahs testified that Ebensburg's general psychiatric treatment approach to Darren seemed "very uncoordinated and dilapidated, very disorganized." Tr. 8/3/93 (Fahs) at 129. Dr. Fahs also noted that the overall diagnostic process was disorganized. Tr. 8/3/93 (Fahs) at 121. As a result, Darren suffered harm in that he continued to have difficulty with marked overactivity, suffering bruises and abrasions, because of not having received the appropriate treatment. Tr. 8/3/93 (Fahs) at 130.^!/
Darren's diagnoses were frequently and abruptly changed at Ebensburg. If a psychiatrist wants to change drugs in a "dishonest" way, Dr. Fahs indicated that he can just change the diagnosis without any scientific basis. Tr. 8/3/93 (Fahs) at 127. Specifically, Darren was provided with a drug and then taken off it just two days later for reasons that were not clear from review of the record. Tr. 8/3/93 (Fahs) at 126. Instead, he was placed
*2J In commenting on the effectiveness of Franklin's treatment plan, Dr. Hauser testified that he was not aware that Franklin had caused injuries to himself and others on at least twelve different occasions between May 1 and August 18, 1993, including breaking a mirror with his hand, pounding his head, and attacking staff. Tr. 9/15/93 (Hauser) at 138-139.
tl Ebensburg claimed that Darren's injuries have been reduced recently, but Dr. Fahs pointed out that there was no evidence put forth by the facility that his injuries decreased because of the reduction in his Haldol. Tr. 8/3/93 (Fahs) at 145.
IX-37

on another drug, the dosage was later increased and then a few days later, another drug was added. Id. Throughout, Darren had not changed, and yet in a very short span of time, his "condition" was thought to have changed from having akathisia, to asthma, to a panic disorder, and then to obsessive compulsive disorder. Id. The diagnosis was simply changed without any foundation in a diagnostic, thoughtful approach. Id. Dr. Fahs stressed that if one does that, "it misses the point of the diagnosis." Tr. 8/3/93 (Fahs) at 127. At Ebensburg, the appropriate assessment process was not undertaken when the psychiatrist changed diagnoses abruptly in that way. Id. Dr. Fahs indicated that is entirely proper to change diagnoses, but it is not appropriate if the reason for the change is absent. Id.
The psychiatrist then changed Darren's diagnosis again to attention deficit disorder. Tr. 8/3/93 (Fahs) at 128. Dr. Fahs testified that that change in diagnosis "caught me completely out of left field" because Darren was a grown man, but attention deficit disorder is a disorder of childhood. Id. Nonetheless, this behavior was still not being monitored in a disciplined fashion. Id. In addition, there was no supporting evidence of his obsessive compulsive behaviors. Id. Nevertheless, there was a recommendation for the use of an antidepressant medication. Id.
Dr. Fahs could not find an adequate behavioral program in place to enable Darren to better cope with the turmoil associated with a change in living environments to a more chaotic arrangement. Id. As a result, he continued with extreme behavioral difficulties and he suffered a number of abrasions and bruises during his time of overactivity. Id. Darren suffered a fractured toe during this period of overactivity. Id.^7
At one point, Darren's medications were abruptly stopped and a marked behavioral worsening followed the discontinuation. Tr. 8/3/93 (Fahs) at 121. He was suddenly taken off a medication that he had been on for years, because it was thought he had asthma. Tr. 8/3/93 (Fahs) at 125. Dr. Fahs indicated that asthma in a 30-year old man was "a strange diagnosis to consider." Id. Dr. Fahs testified that he was "struck by the absence of a pulmonary consultation." Tr. 8/3/93 (Fahs) at 141. Dr. Fahs also indicated that he was struck that there was no "work-up," or a more complete evaluation to see whether or not he actually had developed asthma. Tr. 8/3/93 (Fahs) at 142. Dr. Fahs testified that he merely saw a physician's progress note, but no "work-up." Id. After he was taken off this medication, he experienced a dramatic worsening in his agitation and he began to engage in overactivity, pica, severe rectal digging and smearing of his feces. Tr. 8/3/93 (Fahs) at 125. This required the renewed use of a jumpsuit so that he could not engage in rectal digging. Id.
There were a number of other deficiencies in the psychiatric services provided to Darren scattered throughout his record. For example, at times, Dr. Fahs found that it was not clearly set forth in his record why he was taking the medications he was being provided. Tr. 8/3/93 (Fahs) at 123. Dr. Fahs noted that Darren was being treated for panic, and yet he could find nothing in the record to indicate how his panic was being followed. Tr. 8/3/93 (Fahs) at 124. He also could find nothing in the record to indicate whether or not Darren
fV See also supra § VI.B.2 (discussion of Ebensburg's failure to provide toileting program for Darren, resulting in restraint in a jumpsuit).
IX-38

was more or less agitated. Id. The psychiatrist made recommendations to gradually discontinue a psychotropic medication, but the reasons for that change were not entirely clear. Tr. 8/3/93 (Fans) at 125. Darren's psychotropic drug dosage was increased and decreased across a few months with no clear reason set forth about why there was to be a change and there was no clear monitoring. Tr. 8/3/93 (Fans) at 128.
• James S.: Dr. Fahs concluded that James S. is being harmed by not receiving treatment that is effective for him. Tr. 8/3/93 (Fahs) at 132. James continued to receive high doses of Haldol for three years without any evidence that it was helpful. Tr. 8/3/93 (Fahs) at 131. Dr. Fahs explained that this exposed James to real harm given that he must incur the significant risk of side effects from Haldol, and yet there was no evidence that it was helpful to treat his ill-defined behaviors. Id. He added that one simply needs to make the absolute best efforts possible to treat this kind of severe SIB and yet, James is not receiving that kind of treatment from Ebensburg. Tr. 8/3/93 (Fahs) at 132. Dr. Fahs testified that there was a real problem with respect to the specificity and adequacy of the psychiatric assessment process given to James. Tr. 8/3/93 (Fahs) at 131. Dr. Fahs noted that James suffered a lot of injuries because of his SIB. Tr. 8/3/93 (Fahs) at 130. However, Dr. Fahs noted that James' SIB had been lumped together for the sake of treatment with other distinct unrelated behaviors such as stealing, aggression, non-compliance and 'pestytype' behavior. Tr. 8/3/93 (Fahs) at 130-1. Dr. Fahs indicated that "it just didn't make any sense to me at all" that Ebensburg would lump together head banging and stabbing yourself with a fork with non-compliance and pesty behavior. Tr. 8/3/93 (Fahs) at 131.f?/
fV See also supra § VILE. 1 (discussion of Ebensburg's failure to provide James with a behavior program for his severe self-injurious behavior).
IX-39

 
 U.S. v. Pennsylvania
MR-PA-006-012
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN 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; Alan M. Bellomo, Director, Ebensburg Center;
Defendants.

) ) )
) )
)
) Civil No. 92-33J ) Hon. D. Brooks Smith ) ) ) ) ) ) ) ) ) )

UNITED STATES/ PROPOSED DETAILED FINDINGS OF FACT VOLUME II

UNITED STATES' PROPOSED DETAILED FINDINGS OF FACT VOLUME II

VOLUME n

X. EBENSBURG FAILS TO PROVIDE ADEQUATE AND APPROPRIATE

MEDICAL CARE TO RESIDENTS AT RISK OF LIFE-THREATENING

CONDITIONS DUE TO ASPIRATION, GER, AND NUTRITIONAL STATUS . . . X-l

A. Medical Management of Aspiration and Gastroesophageal Reflux

Is Inadequate

X-l

1. Aspiration Of Foreign Material Into The Lungs Is A Common

Source Of Harm For Individuals With Developmental Disabilities . . . . X-3

a.

Gastroesophageal Reflux Is One Major Cause Of Aspiration

In This Population

X-5

b.

Dysphagia Or Feeding Difficulties Is A Second

Major Cause Of Aspiration In This Population

X-7

2. The Assessment And Diagnostic Techniques For Addressing

Aspiration Problems Are Well-Known And Generally Accepted

X-8

a.

A Facility Needs To Identify

Which Individuals Are At Risk

Of Aspirating

X-9

b. A Facility Needs To Provide

Those Individuals At Risk Of

Aspirating With A Proper Medical

"Work-Up" Of Their Condition

X-9

3. The Treatments For Aspiration Problems Are Well-Known And

Generally Accepted

X-l 1

4. Ebensburg Residents At Risk Of Aspirating Have Died As

A Result Of The Inadequate And Inappropriate Medical

Intervention Furnished By Ebensburg

X-12

5. Ebensburg Residents At Risk Of Aspirating Have Been Hospitalized

As A Result Of The Inadequate And Inappropriate Medical

Intervention Furnished By Ebensburg

X-29

6. Even When Ebensburg Residents At Risk Of Aspirating Are Not

Hospitalized They May Be Suffering Harm As A Result Of The

Inadequate And Inappropriate Medical Intervention Furnished

By Ebensburg

X-36

B. Ebensburg Does Not Provide Adequate Nutritional Management Services To

Residents In Accord With Basic Standards Of Care

X-37

1. The Outcome Measures Of A Good Nutritional Management System

Are Not Evident At Ebensburg

X-37

2.

Nutritional Management Does Not Exist At Ebensburg

X-41

3. There Are Commonly Agreed Upon Components Of An Adequate

Nutritional Management System

X-43

a.

Ebensburg Has Failed To Identify

Individuals Whose Swallowing,

Oral Motor, And Medical Conditions Place

Them Nutritionally At Risk

X-44

b. Ebensburg Does Not Adequately

Assess Residents With Nutritional

Management Needs

X-48

i.

Ebensburg's Dysphagia Team

Has Failed To

Conduct Assessments

X-49

ii. The Dysphagia Team's

Assessments Are

Inadequate

X-53

c.

Ebensburg Fails To Provide

Adequate And Appropriate

Mealtime Interventions For

Residents With Nutritional

Management Needs

X-54

d.

Ebensburg Fails To Adequately

Monitor Residents' Mealtime

Intake And Mealtime

Interventions

X-58

i.

Mealtime Interventions

X-58

ii. Mealtime Intake

X-59

4. Ebensburg Fails To Provide Adequate Staff Training In How To

Implement Feeding Plans

X-60

5. Ebensburg Paraprofessional And Professional Staff Have Not

Received Adequate Training In Nutritional Management And Feeding

Individuals With Developmental Disabilities

X-62

6. Ebensburg Has Failed Even In Its Minimal Efforts At Nutritional

Management Activities

X-66

a. Ebensburg's Dysphagia Team

Has Been Ineffective And Has

Failed In Its Mission

X-66

b. Ebensburg's Attempts To

Develop And Revise Feeding

Plans In Late 1992 Were Not

Professionally Grounded

X-69

c. The Dining Observation Form

Was Implemented Without

Adequate Understanding

X-71

C. Ebensburg's Treatment Of Jeff K. Is Illustrative Of Medical And

Nutritional Management Issues

X-74

XI. MEALTIMES AT EBENSBURG ARE UNSAFE AND DO NOT MEET ACCEPTED PROFESSIONAL STANDARDS A. Overview B. Ebensburg Residents Are Experiencing Obvious Harm From Unsafe Mealtime Practices C. Ebensburg Residents Are Eating And Being Fed In Unsafe Positions 1. There Are General Standards For Safe Eating Positions 2. Ebensburg Residents Are Fed On Their Backs, Contrary
To Accepted Practice 3. Ebensburg Residents Are Being Fed With Their Trunks Improperly
Aligned And Their Heads In Extension Contrary To Accepted Professional Practice D. Ebensburg Residents Are Being Fed Unsafely By Staff

XI-1 XI-1
XI-2 XI-6 XI-7
XI-8
XI-12 XI-19

1. Ebensburg Staff Feed Residents At An Excessively Rapid Rate

And With Overloaded Spoons Which Are Dangerous Practices

XI-20

2. Staff Feed Residents By Pushing Their Heads Back Into

Hyper-extension Which Is A Dangerous And Unacceptable Practice . . XI-23

3. Staff, Themselves, Are Situated In Poor Positions When

They Feed Residents Which Contributes To Poor Feeding Practices . . XI-25

4. Ebensburg Staff Scrape Food Off Of Residents' Faces

While Feeding

XI-25

5. Ebensburg Staff Do Not Follow Requirements In Residents'

Feeding Plans

XI-26

6. Staff Fail To Intervene Properly When Residents Are Exhibiting

Distress During Mealtimes And Have Even Fed Residents While They

Are Coughing

XI-30

7. There Is No Consistency In Staff Feeders Of Residents With

Complex Feeding Needs

XI-31

8. Even Where Ebensburg's Professional And Paraprofessional

Staff Feed Residents, They Use Unsafe And Professionally

Unsound Practices

XI-32

9. The Defendants Were Aware Of Problems In The Way In Which

Ebensburg Residents Were Being Fed Prior To The United States

Filing Its Lawsuit

XI-35

E. Ebensburg Residents Are Eating Unsafely With No Staff Intervention

XI-36

1. Ebensburg Administrators And Staff Acknowledge That Residents

Exhibit Unsafe Behaviors During Mealtimes And Staff Do No

Intervene

XI-40

2. Ebensburg Residents' Unsafe Behaviors During Mealtimes Have

Resulted In Life-Threatening Risks

XI-43

3. The Defendants Have Been Aware Of Problems At Ebensburg

Where Individuals Are Eating At Too Rapid A Pace And Stuffing

Their Mouths With Food For The Past Decade

XI-47

F. The Dining Environment At Ebensburg Is Itself Unsafe

XI-49

G. The United States' Feeding Videotape Demonstrates Systemic Deficient

Practices That Depart From Accepted Professional Standards

XI-50

XII. EBENSBURG IS HARMING ITS RESIDENTS BY FAILING TO PROVIDE THEM WITH PROACTIVE, PREVENTIVE CONTINUITY OF MEDICAL AND HEALTH CARE IN VIOLATION OF GENERALLY ACCEPTED PROFESSIONAL STANDARDS A. Medical And Health Care Is Inadequate 1. Ebensburg Is Not Adequately Documenting Long-Term Care for Its Residents 2. Ebensburg Is Not Adequately Documenting Or Coordinating The Input From Outside Consultant Doctors Into The Residents' Long-Term Plan Of Care
3. Ebensburg Is Not Documenting The Communication With Outside Hospitals That Treat Its Residents
4. Ebensburg Is Consistently Failing To Maintain Sufficient Physician Staffing Levels
B. Nursing Services At Ebensburg Are Inadequate

Xn-1 XII-1 XII-2
XQ-9 XII-11 XII-15 XII-20

1. Acute And Chronic Nursing Care Do Not Meet Professional

Standards

'.

2. There Have Been Delayed Nursing Responses To Injuries

3. Nursing Care Plans Are Inadequate

4. Nurse Recordkeeping Is Inadequate

5. Ebensburg Nurses Need Additional Training

6. The Role Of The Ebensburg Director

Of Nursing Is Too Limited

Xn-20 XII-23 XH-25 XII-27 XH-28
XH-29

EBENSBURG IS FAILING TO PROVIDE ITS RESIDENTS WITH

ADEQUATE NEUROLOGICAL CARE

Xm-1

A. Ebensburg Fails To Provide Residents In Status Epilepticus Adequate

Treatment

XHI-1

1. Status Epilepticus Is A Serious Medical Emergency

XHI-3

2. Ebensburg Fails To Understand When An Individual Is In Status . . . . XHI-3

3. The Generally Accepted Standards For The Proper Management

And Treatment Of Status Seizures Are Clear

Xm-6

4. Ebensburg's Treatment Of Status Is Seriously Deficient In

Three Respects

XIII-7

a. Ebensburg Waits Too Long

To Treat Its Residents

In Status

XIII-8

b. Ebensburg Treats Its Residents

In Status With Intramuscular

(IM) Medication In Violation

Of Generally Accepted

Standards

XHI-11

c. Ebensburg Physicians Are

Inappropriately Treating

Residents In Status Via

Telephone Rather Than Face To

Face

XHI-13

5. Ebensburg Residents Have Been Harmed Due To The Facility's

Poor Management Of Their Status

Seizures

XIH-14

B. Ebensburg Is Harming Its Residents With Epilepsy By Failing

To Adequately Intervene In The Management Of Their Seizures

XIII-16

1. Ebensburg Is Failing To Provide Adequately Address Seizure

Injuries

XIH-16

2. Ebensburg Is Failing To Provide Adequate EEG Diagnostic

Testing For Its Residents With Epilepsy

XIII-19

3. Ebensburg Is Unduly Engaging In The Practice of

Anticonvulsant Polypharmacy

XIII-24

4. Ebensburg Is Failing To Properly Manage The Side Effects

Of Anticonvulsant Medication Administered To Its Residents

XIII-29

5. Ebensburg Is Failing To Fully Involve An Expert Neurologist

In the Neurological Care Of Its Epileptic Residents

XEI-33

a. The Neurologist's Advice

Is Ignored

XHI-33

b. The Neurologist Does Not

Have Control Over The

Individuals That Need

Expert Input

c. The Number Of Consult

Neurology Hours Is

Inadequate

d. Time Constraints Preclude The

Neurologist From Seeing All

The Individuals Who Are

Candidates For Neurological

Care

6.

Ebensburg Is Not Adequately Documenting Medical And

Neurological Care For Its Residents In Violation Of

Generally Accepted Standards

XTV.

EBENSBURG FAILS TO PROVIDE RESIDENTS WITH ADEQUATE

PHYSICAL THERAPY AND PHYSICAL MANAGEMENT SERVICES

WHICH HAS RESULTED IN HARM

A. The Defendants Have Been On Notice Of Deficiencies In Services For

Ebensburg Residents With Physical Disabilities Since At Least 1987

B. Background On Ebensburg Residents With Physical Disabilities

C. Intervention Is Necessary To Prevent Deformity Patterns

D. Physical Therapy Staffing At Ebensburg Is Inadequate

E. The Limited Physical Therapy Related Services At Ebensburg

Are Inadequate

F. Ebensburg's Services To People With Physical Disabilities

Do Not Comport With Accepted Standards And Principles

1. Ebensburg Fails To Conduct Adequate Physical Therapy

Assessments In Keeping With Accepted Professional Standards

In The Field

a. Ebensburg Physical Therapy Assessments

Are Inadequate In Content And Analysis Of

Residents' Needs

b. The Physical Therapy Assessments

At Ebensburg Are Not

Conducted With The Frequency

Dictated By Commonly Accepted

Professional Standards

2. Ebensburg Does Not Develop Adequate Physical Management

Plans For Residents With Physical Disabilities

a.

Physical Therapists At

Ebensburg Do Not Develop Physical

Management Plans

b. Interdisciplinary Teams

Do Not Develop Adequate

Physical Management Plans

c. Physical Therapists Are Not

Involved In The Interdisciplinary

Process

XIII-35 Xffl-36
XHI-37 XHI-38
XTV-1 XIV-1 XIV-3 XIV-4 XIV-7 XTV-11 XIV-16 XTV-17 XIV-18
XIV-20 XIV-21 XIV-21 XIV-22 XIV-23

3.

Ebensburg Does Not Provide Adequate Physical Management

Services

XTV-25

a.

Physical Management Is

Necessary To Prevent

Significant Health Risks

XIV-25

b.

Ebensburg Residents Do

Not Receive Therapeutic

Positioning

XIV-31

i.

Therapeutic Positioning Is

Necessary For Residents

With Physical Disabilities

To Prevent Health Risks

XTV-31

ii. What Little Positioning

Is Done At Ebensburg Is

Not Therapeutic

XTV-34

iii. Sidelying Is Inadequate

At Ebensburg

XIV-38

iv. Prone On Forearms Is

Not Used At Ebensburg

XIV-40

v. Quadraped On Forearms Is

Not Used At Ebensburg

XIV-41

c. Ebensburg Residents With

Physical Disabilities Do Not

Receive Adequate Gross Motor

Programs

XIV-41

d. Ebensburg Residents Have Suffered

Significant Health Problems And

Lost Physical Capabilities Due To

A Lack Of Adequate Physical

Management Services

XIV-42

e. Ebensburg Professional And

Paraprofessional Staff Believe

That Residents Would Benefit

From Physical Management

XIV-44

4.

The Wheelchairs At Ebensburg Are Inadequate

XIV-48

a. Wheelchairs Are Inappropriate

And Residents Are Not Positioned

Properly In Them

XTVM8

b.

Ebensburg Does Not Develop,

Modify, And Monitor The

Condition Of Wheelchairs

Appropriately

XIV-52

5.

Ebensburg Staff Do Not Handle, Lift, And Transfer Ebensburg

Residents Safely And In Accordance With Accepted Standards . . . . XIV-56
a. Ebensburg Residents Have

Suffered Harm As A Result

Of Improper Handling, Lifting,

And Transferring By Staff

XIV-60

6. Staff Training In Physical Management Is Inadequate

At Ebensburg

XIV-63

XV. DIRECT CARE STAFFING AT EBENSBURG IS INADEQUATE

XV-1

A. Ebensburg Is Not Meeting Its Direct Care Staff Quotas

XV-1

B. Injuries And Abuse Occur When There Are Not Enough Direct Care Staff . . XV-3

C. There Are Not Enough Staff To Implement Behavior Programs At

Ebensburg

XV-4

D. The Commonwealth Refuses To Provide More Staff To Ebensburg

XV-5

E. Ebensburg Administrators Have Repeatedly Requested Additional Staff

XV-8

F. Staff Breaks Further Reduce The Number Of Staff Actually Present

During Shifts

XV-13

XVI. CONDITIONS DURING SURVEYS REFLECT EBENSBURG S BEST EFFORTS

XVI-1

XVH. EBENSBURG IS TOO LARGE TO ADEQUATELY SERVE THE PEOPLE WHO LIVE THERE

XVH-1

X V m . INDIVIDUALS REMAIN AT EBENSBURG IN SPITE OF DEFENDANTS' UNANIMOUS BELIEF THAT THEY WOULD BE BETTER SERVED IN THE COMMUNITY A. Defendants Recognize The Need For Community Placement B. Lack of Funds Is Preventing Individuals Who Could Live In The Community From Moving Into The Community C. Individuals Who Remain At Ebensburg Despite Determinations That They Would Be Better Served In The Community Are Being Harmed D. Ebensburg's Community Placement Plans Depart From Accepted Professional Standards

XVni-1 XVIII-1
XVQI-4
XVIII-6
XVm-10

XIX. THE DEFENDANTS HAVE BEEN AWARE OF THE DEFICIENCIES AT ISSUE IN THIS LAWSUIT FOR A LONG PERIOD OF TIME

XIX-1

X. EBENSBURG FAILS TO PROVIDE ADEQUATE AND APPROPRIATE MEDICAL CARE TO RESIDENTS AT RISK OF LIFE-THREATENING CONDITIONS DUE TO ASPIRATION, GER, AND NUTRITIONAL STATUS.
A. Medical Management Of Aspiration And Gastroesophageal Reflux Is Inadequate.
The most pressing medical concern at Ebensburg is the prevalence of aspiration
pneumonia among residents at the facility. Tr. 7/27/93 (Sulkes) at 86. Dr. Sulkes
characterized this problem as a major cause of harm, discomfort, hospitalization and
morbidity for Ebensburg residents. Tr. 7/27/93 (Sulkes) at 86. Dr. Sulkes testified that as a
result, facility-wide, "there's too much sickness and dying going on" at Ebensburg. Tr.
7/28/93 (Sulkes) at 48, lines 14-5.V
In the interests of providing adequate and appropriate medical care, medical
professionals in an institution caring for a developmentally disabled population have a
responsibility to provide adequate and appropriate medical intervention in the care of those
individuals who are at risk of aspirating. Tr. 7/27/93 (Sulkes) at 108. This responsibility is
generally accepted within the medical community specializing in the care of people with
developmental disabilities. Tr. 7/27/93 (Sulkes) at 108.V In fact, endeavoring to prevent
people from aspirating and from developing pneumonia is something basic that a doctor first
V Dr. Sulkes testified that his professional opinion in this area does not just represent the conflict of one doctor's professional judgment versus another's professional judgment. Tr. 7/28/93 (Sulkes) at 81. He acknowledged that the medical staff at Ebensburg may be "professionals" and that these "professionals" may be exercising "judgment," but they are not exercising "professional judgment" because he stressed that they are not acting in concert with established standards around the country about the quality of care for people with developmental disabilities. Tr. 7/28/93 (Sulkes) at 81-2. 2J Dr. Rosenthal agreed with this sentiment, testifying that it is important to intervene in the treatment of gastroesophageal reflux ("GER") before the serious and often painful and debilitating complications develop. Tr. 12/13/93 (Rosenthal) at 165.
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learns early on in medical school. Tr. 7/27/93 (Sulkes) at 109. It is an essential aspect of care. Tr. 7/27/93 (Sulkes) at 109.
Taking "preventive" measures is an essential component in providing adequate and appropriate intervention to those individuals at risk of aspirating. Tr. 7/27/93 (Sulkes) at 109.!/ Appropriate diagnostic measures are the first form of prevention. Tr. 7/27/93 (Sulkes) at 109. To the degree that medical professionals cannot prevent the developmental disabilities themselves, the essence of care is to prevent the complications of the developmental disability. Tr. 7/27/93 (Sulkes) at 109. One can prevent these complications by simply paying attention to the known chronic problems that arise with people with developmental disabilities. Tr. 7/27/93 (Sulkes) at 109.
Ebensburg meets neither its own policies nor the generally accepted standards in the field.!/ Its efforts in preventing aspiration are insufficient and inadequate. Tr. 7/27/93 (Sulkes) at 113. Ebensburg has not fulfilled its responsibility to provide adequate and appropriate medical intervention to those residents at risk of aspiration. Tr. 7/27/93 (Sulkes) at 113. This is true both for residents with feeding-dysphagia and gastroesophageal problems. Tr. 7/27/93 (Sulkes) at 113. Dr. Sulkes has reached this same conclusion in each and every one of his five tours of the facility dating back to 1989. Tr. 7/27/93 (Sulkes) at
II For further discussion of this topic generally, outside the aspiration context, see infra § XII. if On paper at least, Ebensburg recognizes the need to provide its residents with "preventative" medical and health care. For example, in the contract performance standards for each of the four Ebensburg staff physicians, (standards which the doctors have all read, signed, and agreed to undertake), it states in pertinent part that "A preventative health services program is [to be] developed and implemented for all clients to include: Means for prompt detection and referral of health problems." Tr. 7/27/93 (Sulkes) at 110, lines 20-23; U.S. Exhs. 141 A, 141B, 141C, 141D. This contract performance standard indicates that watching for medical and health problems is fundamental to the standard of health care for Ebensburg physicians. Tr. 7/27/93 (Sulkes) at 110-1.
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113-4. He indicated that over that period of time, nothing improved with respect to the
facility addressing the needs of it's residents at risk of aspirating. Tr. 7/27/93 (Sulkes) at
114.f/ Following Dr. Sulkes' first tour of Ebensburg, the Department of Justice
specifically notified defendants as part of its CRIPA investigation that Ebensburg residents
were facing serious risks of aspiration and malnutrition. U.S. Exh. 638 (Sponsky Dep.)
Exh. 50.
1. Aspiration Of Foreign Material Into The Lungs Is A Common Source Of Harm For Individuals With Developmental Disabilities.
Aspiration is the inhalation into the lungs of something, (usually food or digestive
juices), that should not normally be there. Tr. 7/27/93 (Sulkes) at 86. Aspiration usually
occurs in one of two ways. The first way is when material in the pharynx is swallowed
down the wrong tube. Tr. 7/27/93 (Sulkes) at 87. This swallowing dysfunction could be the
result of mechanical problems with eating and swallowing or it could be because the person
ate too quickly. Tr. 7/27/93 (Sulkes) at 88. Difficulty in swallowing is typically called
dysphagia. The second major cause of aspiration, especially in people with physical
developmental disabilities, is gastroesophageal reflux ("GER"). Tr. 7/27/93 (Sulkes) at 87.
Individuals with developmental disabilities living in an institution are more susceptible
to aspirating than the general population at large. Tr. 7/27/93 (Sulkes) at 94.V
SJ Dr. Sulkes indicated that any treatments or assessments that had been undertaken at Ebensburg in 1993, after Dr. Sulkes' last tour, would not cure in any way Dr. Sulkes' conclusion that Ebensburg had failed to take preventative action earlier on to intervene medically in the care and treatment of someone with an aspiration problem. Tr. 7/28/93 (Sulkes) at 83. He added that it was important for the medical staff to have addressed and anticipated these problems early enough so that they would not become unremedial for some individuals later on. Tr. 7/28/93 (Sulkes) at 83. V Dr. Shertz acknowledged that the Ebensburg population tends to have a higher incidence of respiratory infections than does the general population. U.S. Exh. 632 (Shertz Dep.) at 89.
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This is because people with developmental disabilities have a host of motor problems, movement problems, and mobility problems that render them unable to cough up aspirated material as effectively as someone in the general population. Tr. 7/27/93 (Sulkes) at 94-5. While everyone may aspirate to some extent, those with physical disabilities cannot handle the aspiration. Tr. 7/28/93 (Sulkes) at 67-8. In addition, individuals with developmental disabilities are more susceptible to GER than individuals in the general population. Tr. 7/27/93 (Sulkes) at 94-5.
Individuals with developmental disabilities can suffer harm from aspiration whether it is caused by dysphagia or GER. Tr. 7/27/93 (Sulkes) at 91-2. Aspiration pneumonia is a serious threat to the health of people with developmental disabilities. Tr. 9/13/93 (Kastner) at 231. For example, when there is any form of foreign material in the lungs, an individual will cough often and uncomfortably. Tr. 7/27/93 (Sulkes) at 92. Further, the chronic irritation of having foreign material in the lungs results in excess mucus production. Tr. 7/27/93 (Sulkes) at 92. In addition, the distal breathing tubes, the trachea and the bronchi, are lined with muscle that contracts when irritated by aspirated material. Tr. 7/27/93 (Sulkes) at 92. This produces wheezing. Tr. 7/27/93 (Sulkes) at 92. Assuming that the foreign aspirated material seeps far enough down the lungs, it will not be able to be coughed out. Tr. 7/27/93 (Sulkes) at 92; U.S. Exhs. 795, 795D. This is especially true for people with developmental disabilities like those individuals residing at Ebensburg who have trouble or cannot generate an effective cough. Tr. 7/27/93 (Sulkes) at 92. With the foreign material sitting in the lungs, the harm is likely to progress to the level of a bacterial infection like pneumonia from being a mere chemical irritation. Tr. 7/27/93 (Sulkes) at 92-3. On top of
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all this, the foreign material blocks the airway so that air exchange cannot take place. Tr. 7/27/93 (Sulkes) at 93; U.S. Exh. 666. The aspiration problems outlined above are exacerbated when a person with developmental disabilities is positioned lying on his back. If the person has aspirated material, there is a tendency for gravity to carry the foreign material into the lower lobes. Tr. 7/27/93 (Sulkes) at 94; U.S. Exh. 795.1/
a. Gastroesophageal Reflux Is One Major Cause Of Aspiration In This Population.
Gastroesophageal reflux or "reflux" occurs when digestive materials and liquids leave the stomach and travel back upstream against the direction in which they are supposed to go. Tr. 7/27/93 (Sulkes) at 89. Reflux can become especially dangerous when the stomach contents slosh back upstream up the esophagus to the pharynx, and then spill over the top and down into the lungs. Tr. 7/27/93 (Sulkes) at 88; U.S. Exhs. 666, 795, 795A, 795B, 795C, 795D. The gastric contents in the esophagus, bronchi and lungs usually cause chemical irritation possibly leading to pneumonia. U.S. Exh. 632 (Shertz Dep.) at 168.
The developmentally disabled mentally retarded population living in an institution like Ebensburg is more susceptible to gastroesophageal reflux than is the general population at large. Tr. 7/27/93 (Sulkes) at 90. This is true for many different reasons:
First, many individuals with developmental disabilities have a gastroesophageal junction or gastroesophageal sphincter that is not strong enough to contract down and keep
ll The person's position and anatomy will largely dictate where in the lungs the aspirated material will go. Tr. 7/27/93 (Sulkes) at 94; U.S. Exh. 795D. The left lung is divided into two lobes (upper and lower), and the right lung is divided into three lobes (upper, middle and lower). Tr. 7/27/93 (Sulkes) at 93; U.S. Exh. 795. The trachea leading to the lungs divides into two main bronchi. Tr. 7/27/93 (Sulkes) at 93. An irritation of the bronchi is called bronchitis. Tr. 7/27/93 (Sulkes) at 93. The right bronchi is a little bit steeper than the left bronchi and as a result, there is a tendency for material to be aspirated into the right lung. Tr. 7/27/93 (Sulkes) at 93; U.S. Exh. 795.
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stomach contents from sloshing back upstream. Tr. 7/27/93 (Sulkes) at 88; U.S. Exh. 795A, 795B, 795C; U.S. Exh. 632 (Shertz Dep.) at 168. As a result, this weak sphincter predisposes these people to reflux. Tr. 7/27/93 (Sulkes) at 88-9.
Second, some individuals have a problem with their central nervous system such as cerebral palsy or other brain or neurologic dysfunction that produces abnormalities in muscle tone leading to GER. Tr. 7/27/93 (Sulkes) at 90-1; U.S. Exh. 632 (Shertz Dep.) at 170.
Third, some individuals with developmental disabilities have spinal curves that sometimes put pressure on their abdomen and belly which make it likely for stomach acid and stomach contents to slosh back upstream. Tr. 7/27/93 (Sulkes) at 90.
In addition, the staff at an institution like Ebensburg can contribute to the individual's predisposition to reflux by improperly positioning the individual on his or her back or in what is called a "supine" position. Tr. 7/27/93 (Sulkes) at 90; U.S. Exh. 632 (Shertz Dep.) at 170. GER is a very severe problem for someone who spends alot of time in a reclined position. Tr. 7/27/93 (Sulkes) at 90. When an individual predisposed to reflux is sitting upright, gravity keeps the liquid in the right place in the stomach. Tr. 7/27/93 (Sulkes) at 89; U.S. Exh. 795B. However, when individuals are reclined on their backs, they are placed in an improper position that is a set up for reflux. Tr. 7/27/93 (Sulkes) at 89; U.S. Exh. 795C. If the gastroesophageal sphincter is weak, the reclined or supine position produces a free flow of stomach fluid back up the esophagus to the back of the throat. Tr. 7/27/93 (Sulkes) at 89. If the material remains there long enough, the person eventually will take a breath and will suck or aspirate the refluxed material right down into his or her lungs.
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Tr. 7/27/93 (Sulkes) at 89. Dr. Rosenthal agreed that proper positioning is important during and after meals if an individual has GER. Tr. 12/13/93 (Rosenthal) at 166.
The material that is refluxed (up the esophagus and sometimes into the lungs) is comprised largely of highly acidic stomach acid. Tr. 7/27/93 (Sulkes) at 89. As the stomach acid sloshes back up into the esophagus, it causes irritation and can cause bleeding. Tr. 7/27/93 (Sulkes) at 89-90. In some cases, GER can cause massive, life-threatening bleeding. Tr. 7/27/93 (Sulkes) at 90. At the very least, it is painful for the individual. Tr. 7/27/93 (Sulkes) at 90. Dr. Rosenthal agreed that GER can cause complications that are serious, painful, life threatening, and debilitating. Tr. 12/13/93 (Rosenthal) at 164. These complications include failure to thrive, pneumonia, esophagitis, protein loss, esophageal stricture, gastrointestinal ("GI") bleeding, and chronic aspiration pneumonia which can result in chronic lung disease. Tr. 12/13/93 (Rosenthal) at 164.
One major contributor to mucus production is the stomach acid coming back up into the resident's esophagus, going into the throat and airway. Tr. 7/27/93 (Sulkes) at 137. The body then makes mucus in response. Tr. 7/27/93 (Sulkes) at 137. If the stomach acid and contents are aspirated all the way down into the lungs, it can cause a significant chemical irritation to the lungs and the breathing passages. Tr. 7/27/93 (Sulkes) at 90. In short, stomach acid is not supposed to make its way into the lungs. Tr. 7/27/93 (Sulkes) at 89.
b. Dysphagia Or Feeding Difficulties Is A Second Major Cause Of Aspiration In This Population.
Certain individuals with severe developmental disabilities have physical problems and need particularized assistance from staff at an institution in order to eat and drink. Tr. 7/27/93 (Sulkes) at 96-7. Many individuals cannot feed themselves or need help in feeding
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themselves. At Keystone, for example, many of the individuals have problems eating and they are often difficult to feed because of their severe disabilities. Tr. 7/27/93 (Sulkes) at 83.V In addition, many of these and other individuals have particularized swallowing problems or dysphagia. As a result, these residents suffer from poor nutrition. Tr. 7/27/93 (Sulkes) at 83. Dr. Shertz acknowledged that the Ebensburg population is at greater risk due to feeding disorders than is the general population. U.S. Exh. 632 (Shertz Dep.) at 89. There is agreement among all of the medical experts who testified on this topic that feeding individuals whose underlying physical or health status is already compromised in an unsafe position or unsafe manner can cause aspiration. Tr. 7/27/93 (Sulkes) at 95-96; Tr. 12/13/93 (Rubin) at 100-101; Tr. 9/14/93 (Kastner) at 7-8; Tr. 12/13/93 (Rosenthal) at 166. There is also agreement among the experts that positioning after meals is critical in preventing aspiration due to GER. Tr. 7/27/93 (Sulkes) at 97; Tr. 12/13/93 (Rosenthal) at 166. For a more comprehensive discussion on positioning and feeding techniques see infra § XI.
2. The Assessment And Diagnostic Techniques For Addressing Aspiration Problems Are Well-Known And Generally Accepted.
There is no dispute about the proper and generally accepted ways to care for the common health problems of people with developmental disabilities. There are textbooks written about it. Tr. 7/27/93 (Sulkes) at 109. There are whole chapters in these textbooks on feeding and feeding problems, swallowing problems, on dysphagia, and on GER. Tr. 7/27/93 (Sulkes) at 109. None of this is a secret to the medical professionals working in the
V These residents in Keystone are typically non-ambulatory. Tr. 7/27/93 (Sulkes) at 82. Many of the individuals in Keystone are so immobile that they cannot roll over by themselves and they have to be turned by staff. Tr. 7/27/93 (Sulkes) at 82. Many individuals in Keystone also have contractured limbs, badly curved spines, and contracted chests. Tr. 7/27/93 (Sulkes) at 83.
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field and it is exactly the kind of care and treatment Dr. Sulkes testified that he was trained to undertake in his fellowship ten years ago. Tr. 7/27/93 (Sulkes) at 110.
a. A Facility Needs To Identify Which Individuals Are At Risk Of Aspirating.
Ebensburg has not even taken the first steps in this regard. For example, Dr. Kastner indicated that at Ebensburg, there is not even a registry or institution-wide comprehensive list of individuals who have suffered aspiration pneumonia. Tr. 9/13/93 (Kastner) at 231, 239. Dr. Shertz admitted that Ebensburg has not identified everyone who aspirates. U.S. Exh. 632 (Shertz Dep.) at 158. Ms. Sponsky thinks it is important that every individual with reflux at Ebensburg be identified. U.S. Exh. 637 (Sponsky Dep.) at 61. She does not know, however, whether each person with reflux has, in fact, been identified. U.S. Exh. 632 (Sponsky Dep.) at 158. For a more complete discussion of Ebensburg's failure to identify residents at risk of aspiration se£ infra § X.B.3.
b. A Facility Needs To Provide Those Individuals At Risk Of Aspirating With A Proper Medical "Work-Up" Of Their Condition.
Careful and thoughtful assessment and diagnosis of a medical problem takes place during what is called a medical "work-up." Tr. 7/28/93 (Sulkes) at 56. Dr. Rubin summed up the general principles that a physician should follow in conducting a medical "work-up:"
First of all, an awareness that the condition exists. Secondly, a recognition of the symptoms of the condition such that appropriate diagnostic and preventative measures can be undertaken. Thirdly, the awareness of the kinds of tests that may confirm the presence of the condition, using appropriate medication to treat the condition. Fourthly, continued monitoring of the efficacy of the medication, and the symptoms and signs of the condition to prevent complications.
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Tr. 12/13/93 (Rubin) at 81. Dr. Kastner agreed that more and better monitoring of residents with aspiration pneumonia is always valuable at a facility like Ebensburg. Tr. 9/13/93 (Kastner) at 239.
However, the Ebensburg staff has not provided its residents with adequate work-ups of their aspiration and reflux problems. Tr. 7/27/93 (Sulkes) at 107. In several cases, individuals had documented reflux and nevertheless were continuing to suffer bouts of aspiration pneumonia. Tr. 7/27/93 (Sulkes) at 107. Appropriate care would demand further evaluation in a medical work-up. Tr. 7/27/93 (Sulkes) at 107. If the person has an identified problem and continues to be sick, the physicians need to take the next step and better address these complications so that they do not re-occur. Tr. 7/27/93 (Sulkes) at 1078. If the physicians do not take such steps, they are contributing to the problem. Tr. 7/27/93 (Sulkes) at 108. In fact, it becomes an inexorable problem, with insult after insult inflicted upon the suffering residents. Tr. 7/27/93 (Sulkes) at 108.
Consistent with Dr. Sulkes' testimony, Dr. Rosenthal testified that if an individual who is mentally retarded has a lot of mucus production and is coughing and choking for a period of time, a physician should evaluate whether reflux is contributing to or causing these symptoms. Tr. 12/13/93 (Rosenthal) at 166. Other situations where the possibility of GER should be explored are recurring episodes of aspiration pneumonia, vomiting, GI blood loss, chronic anemia, chronic pneumonias, failure to gain weight, hyperprotemia, choking and cyanosis with feeding, persistent nighttime cough, nighttime vomiting, emesis on the pillow, and esophageal stricture. Tr. 12/13/93 (Rosenthal) at 166-167.
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Early detection and identification of gastroesophageal reflux is important in preventing serious complications of chronic lung disease as a result of aspiration pneumonia from GER. Tr. 12/13/93 (Rubin) at 81-82. By treating the symptoms at an early stage, it is possible to prevent the progression of much of the condition, prevent aspiration syndrome, and avoid much of the pain and discomfort that accompanies GER. Tr. 12/13/93 (Rubin) at 82.
With respect to diagnosing reflux, for example, there are many well-known ways a physician can discover whether or not an individual who he suspects has GER actually has it. Tr. 7/27/93 (Sulkes) at 91. Dr. Kastner acknowledged that there are screening procedures that can be used to identify gastroesophageal reflux. Tr. 9/13/93 (Kastner) at 239. The easiest way, if the person can talk, is to ask the person if they have any pain or if they taste acid in their mouths. Tr. 7/27/93 (Sulkes) at 91. The next easiest way is to observe the person to see if the person's mouth fills with fluid when they are not eating. This is an indication that the fluid presumably came from the stomach. Tr. 7/27/93 (Sulkes) at 91. There are also a variety of laboratory tests that can be done to identify GER. Tr. 7/27/93 (Sulkes) at 91. Testing of stool, mucus and vomit for blood is a good way to reveal hidden bleeding caused by reflux. Tr. 7/27/93 (Sulkes) at 115-6, 123-4.
3. The Treatments For Aspiration Problems Are Well-Known And Generally Accepted.
Generally accepted treatments for reflux include proper positioning, adaptations in the consistency and viscosity of food, medical treatments to reduce the acid output of the stomach (acid neutralizers and medicines that actually decrease the volume of acid produced), medications that are designed to have the effect of increasing the muscle tone of the lower esophageal sphincter allowing the liquid to enter into the intestine more appropriately and to
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prevent refluxing back up to the esophagus. Tr. 7/28/93 (Sulkes) at 82-3. Fundoplication surgery is a commonly used treatment for GER in which the surgeon creates a small cuff of stomach around the bottom of the esophagus to aid a weak gastroesophageal sphincter resist reflux. Tr. 7/28/93 (Sulkes) at 69. While the fundoplication procedure is an option, Dr. Sulkes stressed that the nonsurgical treatments should be vigorously pursued first in treating someone's reflux. Tr. 7/28/93 (Sulkes) at 83. Dr. Rosenthal agreed that surgical options should be considered after medical treatment approaches. Tr. 12/13/93 (Rosenthal) at 155. Nonetheless, Dr. Rosenthal testified that if the symptoms of gastroesophageal reflux are serious, it is important to take more aggressive action than just observing. Tr. 12/13/93 (Rosenthal) at 163-4.
Dr. Rubin did not agree with Dr. Kastner's statement that there is no standard of care in the area of gastroesophageal reflux. Tr. 12/13/93 (Rubin) at 80-81. In fact, "there are quite clear standards of care when it comes to evaluating, diagnosing and managing people with gastroesophageal reflux." The standards are the same principles (discussed above) of diagnosis and treatment of many acute and chronic medical conditions. Tr. 12/13/93 (Rubin) at 81.
4. Ebensburg Residents At Risk Of Aspirating Have Died As A Result Of The Inadequate And Inappropriate Medical Intervention Furnished By Ebensburg.
Details of the medical and health care provided to those residents who have died from aspiration pneumonia serve as the most obvious and poignant evidence that the facility has been deficient in this area.
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To flesh out and provide additional support for the general conclusions made above, Dr. Sulkes testified about the details of the care provided to a few of the Ebensburg residents at risk of aspirating who died due to inadequate and inappropriate medical intervention and management by Ebensburg. Tr. 7/27/93 (Sulkes) at 114. The following individuals are not the only examples of those Ebensburg residents who have died due to inadequate and inappropriate medical intervention for their aspiration. Tr. 7/27/93 (Sulkes) at 133.
a. Margaret D. Ebensburg had a duty to provide Margaret with adequate and appropriate medical intervention for her health problems, and yet the facility did not meet its responsibilities. Had Margaret been receiving adequate and appropriate medical intervention from Ebensburg, her medical problems would have been preventable. Tr. 7/27/93 (Sulkes) at 119-20. Margaret D. died in January 1992 after she had suffered from a progressive deterioration of her lung function over the course of many years living at Ebensburg. Tr. 7/27/93 (Sulkes) at 114. Margaret's health steadily and progressively deteriorated up until the time she died in 1992. She had been hospitalized in 1989 for left lower lobe pneumonia and in 1991 for pneumonia. Tr. 7/27/93 (Sulkes) at 114; U.S. Exh. 144. These difficulties were very likely related to feeding problems or reflux or both. Tr. 7/27/93 (Sulkes) at 118. Overall, the nursing notes in her medical chart indicate that in the last years of her life, Margaret was having clearly evident problems with copious mucus production, lots of coughing and difficulty eating, feeding and swallowing. Tr. 7/27/93 (Sulkes) at 118-9. Dr. Rosenthal testified that if an individual who is mentally retarded has a lot of mucus
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production and is coughing and choking for a period of time, a physician should evaluate whether GER is contributing to or causing these symptoms. Tr. 12/13/93 (Rosenthal) at 166.
In the last few years of her life, the Ebensburg physicians evidently did not even consider her documented and chronic reflux problem in addressing her medical needs. Tr. 2/27/93 (Sulkes) at 119. In arriving at diagnoses and in providing her with treatment for her pneumonias and mucus problems, Ebensburg missed the obvious markers that Margaret had reflux:
First, for thirteen years it should have been obvious that she had reflux because she had suffered a hiatal hernia in 1979. Tr. 7/27/93 (Sulkes) at 114. A hiatal hernia is one potential marker and partial evidence of reflux. Tr. 7/28/93 (Sulkes) at 55.*/ Once the physician discovers a hiatal hernia, he or she should take the next step to figure out what other diagnostic tests will reveal further information about whether reflux is actually present in the person. Tr. 7/28/93 (Sulkes) at 55. In short, it is a marker that further reflux work up is needed. Tr. 7/28/93 (Sulkes) at 56.
Second, Margaret had been treated for anemia. Tr. 7/27/93 (Sulkes) at 115. Anemia can be one of the effects of reflux in that the esophagus becomes eroded by the strongly acidic stomach juices which produce bleeding possibly causing anemia. Tr. 7/27/93 (Sulkes) at 115.
Third, even though she was being treated for anemia, no one at the facility ever checked Margaret's stool to see if she had blood in it. Tr. 7/27/93 (Sulkes) at 115-6. One
*/ A hiatal hernia is a radiologic finding where it appears that part of the stomach is positioned above the diaphragm; this is often found in people with reflux. Tr. 7/28/93 (Sulkes) at 55.
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checks the stool of someone with reflux for occult blood, i.e., blood that's not immediately obvious. Tr. 7/27/93 (Sulkes) at 116. Bleeding in the esophagus is not immediately obvious and can often be revealed only through checking a stool sample. Tr. 7/27/93 (Sulkes) at 116.
Finally, the mucus production itself should have been an indication that Margaret had reflux. Tr. 7/27/93 (Sulkes) at 120. One major contributor to mucus production is the stomach acid coming back up into the resident's esophagus, going into the throat and airway. Tr. 7/27/93 (Sulkes) at 137. The body then makes mucus in response. Tr. 7/27/93 (Sulkes) at 137.
The facility did not meet its responsibilities towards Margaret on many other levels: a more complete diagnostic evaluation was required to reveal exactly why she was having the large amount of mucus production. Tr. 7/27/93 (Sulkes) at 119. A sufficiently aggressive diagnostic work-up early on might have led to medical interventions that might have prevented all this. Tr. 7/27/93 (Sulkes) at 120. Day after day, even though the staff dutifully documented that she was having problems, they needed to, but did not, stop and ask "why." Tr. 7/27/93 (Sulkes) at 119. Dr. Rosenthal testified that if the symptoms of gastroesophageal reflux are serious, it is important to take more aggressive action than just observing. Tr. 12/13/93 (Rosenthal) at 163-4. Margaret's respiratory care needed to be closely monitored and yet it was not. Tr. 7/27/93 (Sulkes) at 120. Margaret should have been seen by a gastroenterology consultant but never was. Tr. 7/28/93 (Sulkes) at 33. Dr.
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Rosenthal testified that where complications of GER are present, a gastroenterologist should be involved in the care of the resident. Tr. 12/13/93 (Rosenthal) at 164."/
In the weeks before she died, the harm Margaret suffered was real. It is clear from reviewing the notes in her medical chart, that Margaret was generating "loads of mucus" prior to her death. Tr. 7/27/93 (Sulkes) at 117, line 24; U.S. Exhs. 331AA, 787.!!/
Even though Margaret had lost twenty pounds and she continued to produce a lot of mucus for the last few months of her life, Ebensburg did not complete a medical "work-up" for reflux on her and it did not add anything new in her diagnostic medical evaluation. Tr. 7/27/93 (Sulkes) at 116, 119; U.S. Exhs. 331AA, 787. Instead of addressing the root cause of the problem, Ebensburg decided merely to suction her to remove the mucus because she could not cough it up anymore. Tr. 7/27/93 (Sulkes) at 119. Further, she was ordered to be placed in postural drainage (where she was tilted over a pillow or bolster to drain mucus from her lungs). Tr. 7/27/93 (Sulkes) at 119. In fact, at the moment she died, Margaret had been placed on a wedge for postural drainage. Tr. 7/27/93 (Sulkes) at 120. When the staff finally rolled her off the wedge, she was blue and pulseless. Tr. 7/27/93 (Sulkes) at 120. She was supposed to have been placed in postural drainage for only thirty minutes, but the staff did not roll her off the wedge until a full forty-five minutes had elapsed. Tr.
*2_l Pennsylvania claims that after Dr. Sulkes' visit in the fall of 1992, they began using a gastroenterologist for second opinions. Tr. 7/28/93 (Sulkes) at 33-4. Ebensburg should employ the services of a gastroenterologist more often. Tr. 7/28/93 (Sulkes) at 33. *2J Only after Dr. Sulkes' visit in the fall of 1992, did Ebensburg begin using a gastroenterologist for second opinions. Tr. 7/28/93 (Sulkes) at 33-4. In 1992, Ebensburg obtained the services of a gastroenterologist for its residents 13 times, but 11 of these consults occurred after September 1, 1992. Tr. 10/13/93 (Bellomo) at 183. Ebensburg had provided its residents with gastroenterologist consults only 1 time in 1991 and only 2 times in 1990. Tr. 10/13/93 (Bellomo) at 184.
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7/27/93 (Sulkes) at 120. The lack of appropriate attention while she was in postural drainage
at the end of her life made the medical intervention and management she received at
Ebensburg inadequate and inappropriate. Tr. 7/27/93 (Sulkes) at 120.il/
The facility's lack of adequate and appropriate intervention also led to her September
1991 hospitalization for pneumonia. Tr. 7/27/93 (Sulkes) at 118-9. It is clear from
reviewing the notes in her medical chart, that Margaret was also generating "loads of mucus"
prior to her hospitalization. Tr. 7/27/93 (Sulkes) at 117, line 24; U.S. Exhs. 331AA,
787.fi/ In the month prior to this hospitalization, the Ebensburg physician duly noted that
Margaret was getting mucousy and was choking after eating, but the physician ignored her.
Tr. 7/27/93 (Sulkes) at 115. Accepted professional standards dictate testing vomitus for
occult blood if there is a history of GI bleeding and taking appropriate steps to treat the
condition. Tr. 12/13/93 (Rubin) at 85. Dr. Rosenthal agreed that it is important to test
vomitus (or mucus) for occult blood if there is a history of GI bleeds. Tr. 12/13/93
(Rosenthal) at 165. The Ebensburg physician's only reaction however, was that this may
have been a chronic runny nose and the physician did not conduct any further evaluation as
2±l Dr. Kastner indicated that he did look at the death record of Margaret D., but he certainly did not testify about and could not recall much about the details of the medical care she received at Ebensburg. For example, he could not recall whether or not she died after having received percussion therapy in a head down position. Tr. 9/13/93 (Kastner) at 235. fV For example, Margaret was noted in the record to be "coughing and expectorating a large amount of mucus," September 18, 1991; "large amount of mucus and coughing ... unable to feed," September 24, 1991; "expectorating a large amount of yellow green mucus ... later continues to cough with much mucus which is presently white to clear ... refused supper, gagging," September 28, 1991; "expectorating copious amounts of green phlegm ... ate only a few bites of lunch ... continues to cough ... ate only a few bites for supper as would start coughing when food was put in mouth ... listless," September 30, 1991; "bringing up large amounts of mucus ... ate only a few bites of breakfast... became cyanotic while coughing ... ate very little lunch," October 1, 1991. U.S. Exhs. 331AA, 787.
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to whether or not this mucus and choking may have been due to reflux. Tr. 7/27/93 (Sulkes) at 115. Upon her return from the hospital, there was still no mention by an Ebensburg physician that she should be worked-up for reflux. Tr. 7/27/93 (Sulkes) at 115. The sixty day note written by the Ebensburg physician after Margaret's return from the hospital summed up the past sixty days with simply this: "pneumonia, plan, continue same." Tr. 7/27/93 (Sulkes) at 116, line 14.
When the facility notes what is happening to the resident medically without developing any sort of long term chronic plan of care, (as Ebensburg did with Margaret), they are responding reactively to the resident's deteriorating condition rather than acting proactively to prevent any future recurrence. Tr. 7/27/93 (Sulkes) at 135.
Prior to a hospitalization in 1989, there was so much mucus piling up in her airway that she ended up in the hospital. Tr. 7/27/93 (Sulkes) at 118. The hospital discharge diagnosis was aspiration pneumonia. Tr. 7/27/93 (Sulkes) at 118.^/ Throughout all her medical problems, Ebensburg never provided Margaret with a Dysphagia Team evaluation before she died. U.S. 641 (Wagner Dep.) Exh. 3.
fV The month before this hospitalization, Margaret was noted in the record to be "expectorating a large amount of clear to frothy mucus especially after being fed or given liquids," July 1, 1989; "continues to expectorate large amounts of clear whitish mucus ... she is becoming very difficult to feed because of excessive mucus causing her to choke," July 13, 1989; "continues to cough and gag while being fed," July 14, 1989. U.S. Exhs. 331AA, 787; Tr. 7/27/93 (Sulkes) at 118. A few days later she remained difficult to feed. Tr. 7/27/93 (Sulkes) at 118. This pattern continued until she ended up in the hospital. Tr. 7/27/93 (Sulkes) at 118.
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b. Stephen S. Stephen S. died on May 1991 due to a combination of problems: pneumonia, gastrointestinal bleeding and overwhelming infection or sepsis. Tr. 7/27/93 (Sulkes) at 121.ff/ In the years 1989 through to his death in 1991, Stephen was hospitalized repeatedly for aspiration, pneumonia and bleeding problems. Tr. 7/27/93 (Sulkes) at 121,
Just prior to a December 1990 hospitalization, for example, the notes in Stephen's medical chart indicate that on November 13, 1990, he was observed with a mouthful of emesis consisting of mucus and clear liquid. Tr. 7/27/93 (Sulkes) at 122; U.S. Exh. 466AA, 787. This was clearly refluxed stomach contents because the later notes indicate that the emesis was coffee ground colored, i.e., there was blood in the emesis. Tr. 7/27/93 (Sulkes) at 122; U.S. Exhs. 466AA, 787.*/
These later notes in Stephen's chart indicate the daily trauma that Stephen was suffering through: "emesis of large amount of mucus with brown strands ... continues to gag ... vomited again clear liquid with brown strands ... vomit tested positive for blood,"
"tl In reaching his conclusions about Ebensburg and its care of those individuals at risk of aspiration, Dr. Kastner did not review Stephen's record or any details of his medical care. Def. Exh. HH. fV In 1989 alone, he was hospitalized for pneumonia in January, hospitalized for aspiration pneumonia in March, May and June, for aspiration bronchitis in June, and for gastrointestinal bleeding in November. U.S. Exhs. 144, 788. Further, in December 1990, he was hospitalized for right lower lobe pneumonia, and in May 1991, Stephen was hospitalized with pneumonia. U.S. Exhs. 144, 788. */ Again, the refluxed stomach acid is irritating to the esophagus and makes the esophagus bleed revealing itself in vomit or mucus. Tr. 7/27/93 (Sulkes) at 124. When a person's GER is brought under control, the bleeding will stop because the acid is no longer irritating the esophagus. Tr. 7/27/93 (Sulkes) at 124.
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November 15, 1990; "clear and coffee ground colored mucus emesis," November 23, 1990; "bubbling emesis of mucus, coffee ground colored," November 24, 1990; clear moderate amount of mucus, coffee ground colored," December 3, 1990; "emesis of yellow-green liquid with dark flecks throughout i t . . . emesis tested positive for blood," December 7, 1990. U.S. Exhs. 466AA, 787. Finally, on December 8, 1990, his respirations became labored and he actually became blue. Tr. 7/27/93 (Sulkes) at 122. He was sent to Mercy Hospital for pneumonia. Tr. 7/27/93 (Sulkes) at 122.
Just because Stephen had not been sent to the hospital earlier does not mean that he did not have a serious medical and health problem all along. Tr. 7/27/93 (Sulkes) at 122. Stephen had a serious problem for at least a month — a problem serious enough to have hospitalized a person in the general public. Tr. 7/27/93 (Sulkes) at 122. The efforts Ebensburg employed on his behalf before the hospitalization were cursory. Tr. 7/27/93 (Sulkes) at 122.
Ebensburg had a duty to provide Stephen with adequate and appropriate medical intervention for his health problems, and yet they did not meet their responsibilities. Dr. Rosenthal testified that if an individual who is mentally retarded has a lot of mucus production and is coughing and choking for a period of time, a physician should evaluate whether reflux is contributing to or causing these symptoms. Tr. 12/13/93 (Rosenthal) at 166. She also testified that the possibility of GER should be explored when an individual has a history of recurring episodes of aspiration pneumonia, vomiting, GI blood loss, chronic anemia, and chronic pneumonias (among others). Tr. 12/13/93 (Rosenthal) at 166-167.
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Coffee ground colored mucus and vomit should be tested for blood whenever it occurs. Tr. 7/27/93 (Sulkes) at 123. The tests to determine whether or not an individual has GER are fairly inexpensive. Tr. 7/27/93 (Sulkes) at 124. Accepted professional standards dictate testing vomitus for occult blood if there is a history of GI bleeding and taking appropriate steps to treat the condition. Tr. 12/13/93 (Rubin) at 85. Dr. Rosenthal agreed that it is important to test vomitus (or mucus) for occult blood if there is a history of GI bleeds. Tr. 12/13/93 (Rosenthal) at 165. Moreover, it is important to notify the physician if a nurse finds that vomitus tests positive for occult blood. Tr. 12/13/93 (Rosenthal) at 165-6. When a facility does not test emesis for blood, the condition will likely go untreated and the individual can potentially become extremely anemic or can suffer from a potentially life threatening bleed. Tr. 7/27/93 (Sulkes) at 123-4. However, Ebensburg would test Stephen's emesis for blood only sporadically; nonetheless, every time they did check it, it turned up positive for blood. Tr. 7/27/93 (Sulkes) at 123.
Stephen had known reflux. In fact, Ebensburg knew that Stephen had gastroesophageal reflux as of 1989. Tr. 7/27/93 (Sulkes) at 121. However, in November 1990, in Stephen's chart, there were no plans on how to address his reflux or his recurrent bouts of aspiration pneumonia. Tr. 7/27/93 (Sulkes) at 121-2. The sixty day summary notes in the medical chart are a place for staff and physicians to be discussing on-going long term medical plans and any variations to the long term plan. Tr. 7/27/93 (Sulkes) at 121.
Stephen needed aggressive management of gastroesophageal reflux very early on but he did not get it until it was too late to benefit him in any way. Tr. 7/27/93 (Sulkes) at 121. The physician in charge of Stephen's care needed to think early and fully about what course
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of action to take. Tr. 7/28/93 (Sulkes) at 75. It was clear that without earlier and more aggressive medical intervention, Stephen's recurrent aspirations and aspiration pneumonias were going to eventually cause his death. Tr. 7/28/93 (Sulkes) at 76. The fact that Ebensburg did not adequately address Stephen's aspiration soon enough meant that he was less likely to be a successful candidate for more aggressive medical interventions like fundoplication surgery than he would have been before all his hospitalizations for pneumonia. Tr. 7/28/93 (Sulkes) at 73. The longer a person is allowed to deteriorate before surgery is considered, the greater the risk of undertaking the surgical procedure. Tr. 7/28/93 (Sulkes) at 73. It was another story of "too little, too late sort of intervention." Tr. 7/28/93 (Sulkes) at 73, lines 11-12. As a result, while he was alive, Stephen was made very uncomfortable because the acidic stomach contents continually came up into his esophagus and into his lungs. Tr. 7/28/93 (Sulkes) at 76.
In the last few weeks of his life, he was gagging, and vomiting brown bloody liquid. Tr. 7/27/93 (Sulkes) at 123. The notes in Stephen's chart indicate that he had "vomited dark brown liquid and mucus," April 30, 1991; "large emesis of brown liquid ... continues to gag," May 11, 1991; "large emesis of dark colored liquid and mucus strands ... gagging, bubbling mucus ... very pale," May 15, 1991; "gagging, gulping, vomiting, color ashen and pale ... sent to Mercy Hospital for pneumonia," May 16, 1991. U.S. Exhs. 466AA, 787.
Stephen was one of the individuals at Ebensburg who had entered a "pipeline" that was going to carry him inexorably to his death. Tr. 7/27/93 (Sulkes) at 121. All the way along, interventions might have been available, but no one thought about them until it was too late for them to do any good. Tr. 7/27/93 (Sulkes) at 121. There were more aggressive
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interventions that Stephen could have received that he never got. Tr. 7/27/93 (Sulkes) at 123. All this suffering could have been averted two years earlier. Tr. 7/27/93 (Sulkes) at 123. Ebensburg never provided Stephen with a Dysphagia Team consult before he died. U.S. Exh. 641 (Wagner Dep.) Exh. 3.f7
c. Keith T.
Keith T. died on March 30, 1993 of aspiration pneumonia. U.S. Exh. 788.^/ Keith first suffered from respiratory problems back in 1986 when he had an aspiration associated with a respiratory arrest and he stopped breathing. Tr. 7/27/93 (Sulkes) at 126. Between February 1989 and October 1990, he was hospitalized seven times attributed to aspiration pneumonia. Tr. 7/27/93 (Sulkes) at 126. In 1989, he was hospitalized in February, July, October and November for aspiration pneumonia. U.S. Exhs. 144, 788. In 1990, Keith was hospitalized in April, June, and October for aspiration pneumonia. U.S. Exhs. 144, 788. He was repeatedly hospitalized for three years, becoming sicker and sicker, until he finally died. Tr. 7/27/93 (Sulkes) at 128.
Dr. Sulkes testified that his death was preventable. Tr. 7/27/93 (Sulkes) at 128. He also concluded that some of his hospitalizations were preventable. Tr. 7/27/93 (Sulkes) at
fV There were only eight barium studies performed on Ebensburg residents in 1990, five in 1991, and thirty-five in 1992. Tr. 10/18/93 (Sheppard) at 118. As of January 7, 1993, only five to ten video fluoroscopy studies had been done at Ebensburg. U.S. Exh. 641 (Wagner Dep.) at 162. For the Dysphagia Team's purposes, a video fluoroscopy is more effective than a barium swallow. U.S. Exh. 641 (Wagner Dep.) at 170. As of January 1993, Ebensburg was just in the process of setting up a system with the hospital a system of expanding diagnostic testing and receiving copies of video fluoroscopies. U.S. Exh. 641 (Wagner Dep.) at 169-170. f / Kastner testified that he did not look at the death record of Keith T. Tr. 9/13/93 (Kastner) at 235. In reaching his conclusions about Ebensburg and its care of those individuals at risk of aspiration, Dr. Kastner did not review Keith's record or any details of his medical care. Def. Exh. HH.
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128. The hospitalizations and discomfort Keith suffered in the last years of his life were attributable to the inadequate and inappropriate medical intervention of the Ebensburg staff. Tr. 7/27/93 (Sulkes) at 131. This was directly attributable to the poor chronic care Keith had received over the years from Ebensburg. Tr. 7/27/93 (Sulkes) at 128. Keith had a multiple year history of problems with aspiration and yet no one at the facility paid any attention to this problem until the last six months of his life. Tr. 7/27/93 (Sulkes) at 125-6. His respiratory problems "just continued to pile up until — until they killed him." Tr. 7/27/93 (Sulkes) at 126, lines 5-6.
When the facility notes what is happening to the resident medically without developing any sort of long term chronic plan of care, (as Ebensburg did with Keith), they are responding reactively to the resident's deteriorating condition rather than acting proactively to prevent any future recurrence. Tr. 7/27/93 (Sulkes) at 135.
Reviewing Keith T.'s chart made Dr. Sulkes "angry." Tr. 7/27/93 (Sulkes) at 131, line 4. He was angry because Keith was another example of someone at Ebensburg who had entered the "pipeline" and was moved inexorably to his death due to aspiration, and yet it seemed as if the Ebensburg medical staff "just really hadn't been paying attention, either to him or - or to what I'd been saying." Tr. 7/27/93 (Sulkes) at 126, 131, lines 8-9. Dr. Sulkes added that he had been "really upset that this man had this unquestionably uncomfortable deterioration of pneumonia over and over and over ... with respiratory distress involved with that; a difficulty feeding, the discomfort involved ... [a]nd then he ended up dying; it's tragic." Tr. 7/27/93 (Sulkes) at 131, lines 10-15.
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Ebensburg had a duty to provide Keith with adequate and appropriate medical intervention for his health problems, and yet they did not meet their responsibilities. The Ebensburg medical staff committed numerous errors of omission and commission. For example, even though Keith had been hospitalized repeatedly between February 1989 and October 1990, no one at the facility ever looked to see whether he had any feeding problems and no one ever looked to see whether he had reflux. Tr. 7/27/93 (Sulkes) at 126. There was no feeding program identified for Keith during that time. Tr. 7/27/93 (Sulkes) at 126. He also did not see a gastroenterologist or an ear nose and throat expert. Tr. 7/27/93 (Sulkes) at 126. Dr. Rosenthal testified that where complications of GER are present, a gastroenterologist should be involved in the person's care. Tr. 12/13/93 (Rosenthal) at 164.
The Ebensburg medical staff also missed a clear marker that Keith in fact had reflux. In the last years of his life, the medical staff chose to believe that Keith was not refluxing, but rather was voluntarily regurgitating or ruminating. Tr. 7/27/93 (Sulkes) at 126-7.^7 A voluntary act of regurgitation is called "rumination." Tr. 7/27/93 (Sulkes) at 126. However, in April 1991, medical records indicated clearly that Keith had regurgitated or refluxed stomach contents during his sleep. Tr. 7/27/93 (Sulkes) at 126. If one regurgitates during sleep, it is not a voluntary act. Tr. 7/27/93 (Sulkes) at 126. However, instead of pursuing the reflux angle further, the Ebensburg doctors chose to label his regurgitations as voluntary ruminations even though refluxing material while asleep is necessarily an
fV Ms. Wagner testified in her deposition on January 7, 1993 that she suspected that Keith T. had silent aspiration syndrome. U.S. Exh. 641 (Wagner Dep.) at 76. Keith also regurgitates stomach contents on a regular basis and Ms. Wagner suspected that he could be aspirating his stomach contents. U.S. Exh. 641 (Wagner Dep.) at 78. Ms. Wagner thought that Keith was voluntarily regurgitating. U.S. Exh. 641 (Wagner Dep.) at 78.
X-25

involuntary act. Tr. 7/27/93 (Sulkes) at 127. Dr. Rosenthal agreed that if the wrong problem is being treated then good medical care is not being provided. Tr. 12/13/93 (Rosenthal) at 167.
Until February 1992, the physician's problem list in Keith's annual medical report never mentioned reflux or swallowing problems. Tr. 7/27/93 (Sulkes) at 127. The head of the Ebensburg dysphagia team confirmed that Keith had a chronic history of choking. U.S. Exh. 641 (Wagner Dep.) at 36. Thus, even though Keith had been admitted multiple times with aspiration pneumonia, and even though he had involuntarily refluxed material in his sleep, diagnosis of and treatment for reflux had not been listed as part of his long term plan of care. Tr. 7/27/93 (Sulkes) at 127. In fact, it took three years for a physician to document in the long term plan that aspiration was a problem for Keith at all. Tr. 7/27/93 (Sulkes) at 127. Dr. Rosenthal testified that if the symptoms of gastroesophageal reflux are serious, it is important to take more aggressive action than just observing. Tr. 12/13/93 (Rosenthal) at 163-4.
Finally, in the last six months of his life, a work-up was begun for Keith, but at this point, it was undertaken too late to help his deteriorating lungs. Tr. 7/27/93 (Sulkes) at 127. He was hospitalized in early March 1993 for aspiration pneumonia and he died later that month. U.S. Exhs. 144, !!
fV Contrary to the implications of opposing counsel, Keith T. did not die as a result of fundoplication surgery. Tr. 7/28/93 (Sulkes) at 77.
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d. Sam B. Sam. B. died of aspiration pneumonia in April 1993. Tr. 7/27/93 (Sulkes) at 131.fi/ Sam had been giving clear unmistakable warnings about his serious condition for over ten years. Tr. 7/27/93 (Sulkes) at 131. His first aspiration pneumonia occurred in 1978. Tr. 7/27/93 (Sulkes) at 132. He was diagnosed with reflux esophagitis in 1980 and he suffered bouts of pneumonia in 1980, 1983, 1985, 1986 and 1987. Tr. 7/27/93 (Sulkes) at 132. However, until things got desperate with him, and it was too late to help him, nobody at Ebensburg took any action for Sam. Tr. 7/27/93 (Sulkes) at 132. In March 1993, he began to have difficulty swallowing. Tr. 7/27/93 (Sulkes) at 132. Through a barium swallow test, it was revealed that he was aspirating. Tr. 7/27/93 (Sulkes) at 132. He was later hospitalized with aspiration pneumonia, and yet, the Ebensburg doctor concluded that his condition was due to a virus in the building. Tr. 7/27/93 (Sulkes) at 132. Given his documented history of aspiration pneumonia, swallowing problems and his documented history of reflux, the aspiration problem was more likely going to have arisen from a feeding or swallowing problem or from reflux, and not from a virus. Tr. 7/27/93 (Sulkes) at 132. Dr. Sulkes testified that it was "[v]ery troubling" that the Ebensburg doctor ignored the feeding, swallowing and reflux angles as being the apparent or possible cause of Sam's medical problem. Tr. 7/27/93 (Sulkes) at 133, line 6. Dr. Rosenthal agreed that if the wrong problem is being treated then good medical care is not being provided. Tr. 12/13/93 (Rosenthal) at 167. There was not even a notation in the record that indicated that
fV In reaching his conclusions about Ebensburg and its care of those individuals at risk of aspiration, Dr. Kastner did not review Sam's record or any details of his medical care. Def. Exh. HH.
X-27

the doctor considered aspiration pneumonia and ruled it out in favor of the virus theory. Tr.
7/27/93 (Sulkes) at 133.
Furthermore, Dr. Sulkes had personally observed Sam being fed at Ebensburg about
five months before he died. Tr. 7/27/93 (Sulkes) at 133. At that time, Dr. Sulkes observed
that Sam had been provided with no head control, there was no head control suggested in his
program, and yet Sam had been coughing while being fed. Tr. 7/27/93 (Sulkes) at 133.
In addition, in the ten days prior to his death, Sam was in respiratory distress, but no
one at Ebensburg requested a respiratory work-up with fundamental observation or physical
examination. Tr. 7/27/93 (Sulkes) at 133. When someone is in respiratory distress, their
breathing becomes faster as they try to get oxygen, but there is no notation of that and there
was no request for it. Tr. 7/27/93 (Sulkes) at 133. Sam had not been provided with a
dysphagia team consult as of January 1993. U.S. Exh. 641 (Wagner Dep.) Exh. 3.
• James O. died in 1989 and had had 23 hospital admissions for lung problems, and yet Ebensburg never provided him with a swallowing work up, never gave him a gastrointestinal work up, and never provided him a lung work up. Tr. 7/27/93 (Sulkes) at 139. Even though there were a lot of hospital admission notes in his medical record, there was no long term medical plan of care for James. Tr. 7/27/93 (Sulkes) at 139. For the last three years of his life, every sixty day medical note in his record said: "continue present therapy and care." Tr. 7/27/93 (Sulkes) at 139.!!/ James did not receive a Dysphagia Team consult from Ebensburg. U.S. 641 (Wagner Dep.) Exh. 3.
• Bobby Y. died of aspiration pneumonia in December 1988. Tr. 7/27/93 (Sulkes) at 139.!!/ Bobby had had dysphagia identified for eleven years and yet the only two recommendations in his medical record that addressed his dysphagia indicated that his tongue thrust should be decreased and he should have a pureed diet. Tr. 7/27/93 (Sulkes) at 139.
"2J In reaching his conclusions about Ebensburg and its care of those individuals at risk of aspiration,
Dr. Kastner did not review James' record or any details of his medical care. Def. Exh. HH.
!!/ In reaching his conclusions about Ebensburg and its care of those individuals at risk of aspiration, Dr. Kastner did not review Bobby's record or any details of his medical care. Def. Exh. HH.
X-28

Bobby did not receive a Dysphagia Team consult from Ebensburg. U.S. 641 (Wagner Dep.) Exh. 3.
• Harold H. died in 1988 of aspiration pneumonia. Tr. 7/27/93 (Sulkes) at 139.^/ During his life at Ebensburg, he had been fed in a cart and he had a spinal curve. Tr. 7/27/93 (Sulkes) at 139. Harold did not receive a Dysphagia Team consult from Ebensburg. U.S. 641 (Wagner Dep.) Exh. 3.
5. Ebensburg Residents At Risk Of Aspirating Have Been Hospitalized As A Result Of The Inadequate And Inappropriate Medical Intervention Furnished By Ebensburg.
Details of the medical and health care provided to those Ebensburg residents who have been hospitalized due to aspiration pneumonia serves as further compelling evidence that the facility has been deficient in this area.
Aspiration and aspiration related illnesses are currently prevalent at Ebensburg. Tr. 7/27/93 (Sulkes) at 141. Inadequate and inappropriate intervention and medical management of the residents' aspiration problems potentially still affects a large number of residents at Ebensburg. Tr. 7/27/93 (Sulkes) at 141.
Dr. Sulkes testified about the details of the individualized care provided to many of the living Ebensburg residents at risk of aspirating who have been harmed due to inadequate and inappropriate medical intervention and management by Ebensburg. Tr. 7/27/93 (Sulkes) at 114. The following individuals are not the only examples of those Ebensburg residents who have been harmed due to inadequate and inappropriate medical intervention for their aspiration. Tr. 7/27/93 (Sulkes) at 140.
*/ In reaching his conclusions about Ebensburg and its care of those individuals at risk of aspiration, Dr. Kastner did not review Harold's record or any details of his medical care. Def. Exh. HH.
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Ronald P. has had numerous hospital admissions for aspiration and pneumonia-related
problems in 1990, 1991 and 1992. Tr. 7/27/93 (Sulkes) at 134.ff/ By September 1992,
Ronald had had nine admissions that were potentially attributed to aspiration or its
complications. Tr. 7/27/93 (Sulkes) at 134. After each deterioration, the Ebensburg medical
staff responded to Ronald's acute event, but they did not develop or execute a long term
medical plan of care to prevent this from happening in the future. Tr. 7/27/93 (Sulkes) at
134. Ebensburg has a duty to provide Ronald with adequate and appropriate medical
intervention for his health problems, and yet they did not meet their responsibilities. When
the facility notes what is happening to Ronald medically without developing any sort of long
term chronic plan of care, they are responding reactively to his deteriorating condition rather
than acting proactively to prevent any future recurrence. Tr. 7/27/93 (Sulkes) at 135.^f/
Dr. Sulkes testified that the signals being sent out by residents like Ronald who are
repeatedly hospitalized for recurrent pneumonia or the like, are obvious signals that the
medical staff at Ebensburg should be picking up. Tr. 7/27/93 (Sulkes) at 135.
^/ In January 1990, Ronald was hospitalized for aspiration right lower lobe pneumonia, and in December 1990, he was hospitalized for possible aspiration and for aspiration pneumonia. U.S. Exh. 144, 788. In June 1991, he was hospitalized for pneumonitis, and in October 1991 he was hospitalized for aspiration pneumonia. U.S. Exh. 144, 788. In 1992, Ronald was hospitalized in January for right lower lobe pneumonia, in February for gastrostomy/ dysphagia, in September for hypoxemia and later in the month for acute respiratory insufficiency. U.S. Exh. 144, 788.
*/ Dr. Kastner admitted that he did not personally observe or examine Ronald. Tr. 9/14/93 (Kastner) at 5. Dr. Kastner acknowledged that his review of Ronald's medical record was "solely for the purpose of identifying pulmonary episodes, episodes of infection, bronchospasm or other pulmonary entities. Tr. 9/14/93 (Kastner) at 5. In fact, Dr. Kastner did not indicate in court that he had actually reviewed Ronald's medical record, asserting only that he reviewed the annual medical summaries. Tr. 9/14/93 (Kastner) at 5. Thus, he did not indicate that he reviewed the physician's annual assessment, or the physician's progress notes, or the nursing notes, or the hospital ization discharge and admissions sheets, or any outside consult sheets or anything else in the medical record. Tr. 9/14/93 (Kastner) at 5.
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On cross-examination, opposing counsel implied that Ronald's tube feeding regimen has been very successful. However, Dr. Sulkes personally observed Ronald being tube fed in November 1992. Tr. 7/27/93 (Sulkes) at 135. He noticed that Ronald was receiving his tube feeding while he was lying on his back. Tr. 7/27/93 (Sulkes) at 135. Dr. Sulkes testified that feeding anyone in this position was "quite dangerous." Tr. 7/27/93 (Sulkes) at 135(23).fV Lying someone with reflux on their back during feeding is a very bad position because it increases the likelihood that the stomach contents will flow right back upstream through the esophagus leading to the bronchi and the lungs. Tr. 7/27/93 (Sulkes) at 135. Dr. Rosenthal agreed that positioning is important during and after meals if an individual has GER. Tr. 12/13/93 (Rosenthal) at 166. During this tube feeding, Dr. Sulkes also observed that Ronald was snoring and his head was in extension which was compromising his airway. Tr. 7/27/93 (Sulkes) at 135. The head of Ebensburg's dysphagia team confirmed that Ronald had a chronic history of choking. U.S. Exh. 641 (Wagner Dep.) at 36. The head of Ebensburg's Dysphagia Team also confirmed that Ronald had been placed on a gastrostomy tube as a result of his repeated aspirations. U.S. Exh. 641 (Wagner Dep.) at 56.
Patricia W. has had six admissions for pneumonia and one for bronchitis while living at Ebensburg. Tr. 7/27/93 (Sulkes) at 136.!!/ Dr. Sulkes testified that when he personally
*2! Dr. Kastner admitted to never having observed Ronald during a feeding on his visit to Ebensburg. Tr. 9/14/93 (Kastner) at 5. In addition, Dr. Kastner was not able to recall whether or not Ronald had any difficulty swallowing. Tr. 9/14/93 (Kastner) at 5-6. "/ In 1989, Patti was hospitalized for left lower lobe pneumonia and for aspiration pneumonitis in a one month period. U.S. Exhs. 144, 788. In November 1990, she was hospitalized for aspiration bronchitis pneumonia. U.S. Exhs. 144, 788. In 1992, she was hospitalized in January for pneumonia, in February for aspiration pneumonia, in March for aspiration pneumonia, and in June for acute bronchitis. U.S. Exhs. 144, 788.
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saw her and reviewed her record in September 1992, he "became very upset." Tr. 7/27/93
(Sulkes) at 136, line 4. In past visits, Dr. Sulkes had known that Patricia had been
producing a lot of mucus over the years because she had been having recurrent aspiration.
Tr. 7/27/93 (Sulkes) at 137. When Dr. Sulkes last saw her, this was still true. Dr. Sulkes
testified that current feeding practices employed at Ebensburg for Patricia are "killing her."
Tr. 7/27/93 (Sulkes) at 136, line 17.f/ Sulkes added that under current practices at
Ebensburg, Patti is going to suffer from "more aspiration pneumonia, more lung problems,
and she will die." Tr. 7/27/93 (Sulkes) at 136.
In forming this opinion, Dr. Sulkes relied upon his past and current observations, and
the assertions of Patricia's primary care physician that she has very tenuous lungs, bad motor
disability, a weak chest that is not very strong, and the comment that any little stimulus
could tip her over the edge. Tr. 7/27/93 (Sulkes) at 136/?/ Dr. Rosenthal testified that it
is important to intervene in the treatment of GER before the serious and often painful and
debilitating complications develop. Tr. 12/13/93 (Rosenthal) at 165. However, even though
the Ebensburg physician recognized these problems, no one had yet taken Patricia to see a
lung expert or pulmonologist. Tr. 7/27/93 (Sulkes) at 137.
f7 Dr. Kastner admitted that he never personally saw Patti W. while he toured Ebensburg. Tr. 9/14/93 (Kastner) at 2. He admitted that he never personally observed Patti during a meal; he never observed how the staff was feeding her, or observed if she was having any swallowing difficulty, or if she was positioned correctly. Tr. 9/14/93 (Kastner) at 2-3. */ Dr. Kastner claimed to have reviewed her chart, and yet he could not say whether or not she had gastroesophageal reflux. Tr. 9/14/93 (Kastner) at 3. He also could not answer a question as to whether or not Ebensburg claimed Patti had a lung problem or a GER problem. Tr. 9/14/93 (Kastner) at 3. Dr. Kastner admitted that "all I can say is I reviewed her records for the purposes of identifying any pulmonary episodes ... that was the entire focus of my review of her record. I'm not prepared to comment on anything beyond that." Tr. 9/14/93 (Kastner) at 3.
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Only after Dr. Sulkes made the suggestion that they do so, did Ebensburg schedule Patti for an appointment with a lung specialist. Tr. 7/27/93 (Sulkes) at 137.11/ The lung specialist indicated in his report that Patti's condition had deteriorated to such an extent that now there was nothing that could be done for her. Tr. 7/27/93 (Sulkes) at 137. The fact that the pulmonologist said that there is now nothing more that can be done for her, does not indicate that there could not have been more done for her two or three years earlier to prevent this. Tr. 7/28/93 (Sulkes) at 39. Dr. Sulkes testified that he was glad the pulmonologist finally was able to examine Patti, but he wished that he could have examined her two or three years earlier, and not just after he made the suggestion after one of his tours in September 1992. Tr. 7/28/93 (Sulkes) at 39.
Ebensburg had a duty to provide Patti with adequate and appropriate medical intervention for her health problems, and yet they did not meet their responsibilities. Dr. Rosenthal testified that if an individual who is mentally retarded has a lot of mucus production, has suffered recurring episodes of aspiration pneumonia, vomiting, chronic pneumonias or is coughing and choking for a period of time, a physician should evaluate whether reflux is contributing to or causing these symptoms. Tr. 12/13/93 (Rosenthal) at
*2J Dr. Kastner acknowledged that Patti W. was one of only three individuals at Ebensburg who received an outside pulmonary consult in 1992; she received her one and only pulmonary consult that year on September 17, 1992. Tr. 9/14/93 (Kastner) at 3-4; U.S. Exh. 915. Dr. Kastner was not aware that Dr. Sulkes, the U.S. physician consultant, had just toured Ebensburg from September 1-3, 1992 about two weeks prior to Patti's outside pulmonary consult. Tr. 9/14/93 (Kastner) at 4-5.
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166.^/ Until March 23, 1993, Ebensburg had never provided Patti with a Dysphagia
Team consult. U.S. 641 (Wagner Dep.) Exh. 3; Tr. 10/18/93 (Sheppard) at 119.
Ethel M. has had multiple hospital admissions for aspiration related problems. Tr.
7/27/93 (Sulkes) at 137.2/ Dr. Sulkes concluded that Ethel is "deteriorating" and he had
grave concerns about her future. Tr. 7/27/93 (Sulkes) at 137, lines 17-8.^/ The sixty day
notes in Ethel's medical records reveal no long term plan of medical care. Tr. 7/27/93
(Sulkes) at 138. Despite her repeated hospitalizations, the recommendations in Ethel's
medical chart indicate "continue same." Tr. 7/27/93 (Sulkes) at 138, line 6. Dr. Rosenthal
testified that if the symptoms of gastroesophageal reflux are serious, it is important to take
more aggressive action than just observing. Tr. 12/13/93 (Rosenthal) at 163-4. Ethel was
not provided with anti-reflux surgery until 1992 — many years after she first started
*2.l During cross-examination, opposing counsel tried to imply that there was some significance to whether Patti had obstructive or restrictive lung disease. Tr. 7/28/93 (Sulkes) at 34-5. However, Dr. Sulkes testified that whether Patti W. has restrictive or obstructive lung disease does not matter in her case because the fact remains that she is continuing to suffer recurrent bouts of aspiration. Tr. 7/28/93 (Sulkes) at 35. She had already had multiple admissions to the hospital for aspiration pneumonia. Tr. 7/28/93 (Sulkes) at 39. Her records also reveal other aspiration markers such as the fact that she has delayed swallow and reduced oral mobility. Tr. 7/27/93 (Sulkes) at 136; Tr. 7/28/93 (Sulkes) at 36. She is already well down the "pipeline." Tr. 7/28/93 (Sulkes) at 39. If she has a restrictive component to her lung disease, that only makes matters worse in that she will be less able to bounce back from an aspiration pneumonia. Tr. 7/28/93 (Sulkes) at 36. If her lung cannot expand normally due to a restrictive component, then the facility has to be even more vigilant in ensuring that other insults to her lungs do not occur. Tr. 7/28/93 (Sulkes) at 36.
fV She suffered one admission in 1989 for aspiration bronchitis, two in 1990 for aspiration pneumonia with gastrointestinal bleeding and for respiratory distress, and six in 1992 (right middle lobe pneumonia, aspiration pneumonia, aspiration pneumonia, probable aspiration pneumonia, probable aspiration, asphyxiation/ mucus plug). Tr. 7/27/93 (Sulkes) at 137; U.S. Exhs. 144, 788.
"/ In reaching his conclusions about the medical care offered to its residents at risk of aspiration, Dr. Kastner acknowledged that he did not look at the medical records of Ethel M. Tr. 9/14/93 (Kastner) at 7. Dr. Kastner was not aware that in 1992 alone, (the year he concentrated on in his review), Ethel was hospitalized repeatedly for pulmonary events including numerous aspiration pneumonias. Tr. 9/14/93 (Kastner) at 7; U.S. Exh. 144.
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experiencing complications from gastroesophageal reflux. Tr. 7/27/93 (Sulkes) at 137.
Ebensburg has made no attempt to determine whether Ethel continues to reflux. Tr. 7/27/93
(Sulkes) at 137. In spite of her many hospitalizations for aspiration related problems, the
Ebensburg Dysphagia Team did not make an evaluation and recommendation for Ethel until
February 1993, well after Dr. Sulkes' last tour. Tr. 7/28/93 (Sulkes) at 58-9. Ethel was not
evaluated by the Dysphagia Team until February 4, 1993. U.S. Exh. 641 (Wagner Dep.)
Exh. 3; Tr. 10/18/93 (Sheppard) at 119. This was the case in spite of the fact that the head
of the Dysphagia Team confirmed that Ethel had a chronic history of choking. U.S. Exh.
641 (Wagner Dep.) at 36. The head of the team also confirmed that Ethel had been placed
on a gastrostomy tube as a result of her repeated aspirations. U.S. Exh. 641 (Wagner Dep.)
at 56.
• Frank H. has been hospitalized numerous times: twice in 1989 for right lower lobe pneumonia and aspiration pneumonia, in 1991 for aspiration pneumonia, and in 1992 for acute bronchitis. Tr. 7/27/93 (Sulkes) at 138, U.S. Exhs. 144, 788. In spite of the fact that Frank continues to have aspiration episodes and it is clear that they are not isolated events, Dr. Sulkes concluded that still, no one at Ebensburg has taken the time and effort to figure out why Frank continues to suffer from aspiration pneumonia. Tr. 7/27/93 (Sulkes) at 138. The annual medical evaluation notes in Frank's chart at Ebensburg indicate that the medical plan for him is "to observe," not to diagnose or intervene, but "to observe." Tr. 7/27/93 (Sulkes) at 138, lines 21-22. Dr. Rosenthal testified that if the symptoms of gastroesophageal reflux are serious, it is important to take more aggressive action than just observing. Tr. 12/13/93 (Rosenthal) at 163-4. Frank was not provided with a Dysphagia Team consult from Ebensburg until July 6, 1993. U.S. Exh. 641 (Wagner Dep.) Exh. 3; Tr. 10/18/93 (Sheppard) at 119.
• William P. has known reflux. Tr. 7/27/93 (Sulkes) at 139. He also suffered a thirty pound weight loss over sixteen months. Tr. 7/27/93 (Sulkes) at 140. One of the complications of reflux is weight loss. For example, if every time your stomach contents slosh back upstream they come out your mouth, you do not retain the nutrients from the food. Tr. 7/27/93 (Sulkes) at 139-40. Even though William suffered this dramatic weight loss, no one at the facility noted that this may be due to complications from reflux or that reflux was contributing in any way to that. Tr. 7/27/93 (Sulkes) at 140. Dr. Rosenthal testified that if an individual who is mentally retarded even has a problem gaining weight, a
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physician should evaluate whether reflux is contributing to or causing these symptoms. Tr. 12/13/93 (Rosenthal) at 166.
• Anthony R. has had hospital admissions for pneumonia in 1986, 1987 and 1991, but these hospitalizations were not even mentioned in his annual medical evaluation. Tr. 7/27/93 (Sulkes) at 140. His primary care physician did not even note this in his medical records. Tr. 7/28/93 (Sulkes) at 77. Anthony was also hospitalized in 1989 for asthmatic bronchitis, and in 1991 for aspiration pneumonia. U.S. Exh. 144. However, at the time of Dr. Sulkes' last visit, Ebensburg had not provided him with a barium swallow work up, or an x-ray study. Tr. 7/27/93 (Sulkes) at 140. In addition, there was no work-up either looking for reflux or for dysphagia in his evaluation. Tr. 7/28/93 (Sulkes) at 77. As of January 1993, Ebensburg had not provided Anthony with a Dysphagia Team consultation. U.S. Exh. 641 (Wagner Dep.) Exh. 3.
6. Even When Ebensburg Residents At Risk Of Aspirating Are Not Hospitalized They May Be Suffering Harm As A Result Of The Inadequate And Inappropriate Medical Intervention Furnished By Ebensburg.
Dr. Sulkes also testified that even beyond the deaths and hospitalizations, the harm
from aspiration is taking place "all the time" at Ebensburg. Tr. 7/27/93 (Sulkes) at 107, line
12. Residents are suffering harm on a day-to-day basis at the facility even if they are not
hospitalized. Tr. 7/27/93 (Sulkes) at 106. Ebensburg residents are hospitalized only when
pneumonia occurs after a massive amount of foreign material seeps down their lungs. Tr.
7/27/93 (Sulkes) at 106. Only when someone gets sick enough will they be sent to the
hospital. Tr. 7/27/93 (Sulkes) at 107. The hospitalizations for pneumonia are therefore just
the "visual blips" more clearly revealing the often constant level of trouble in this area at the
facility. Tr. 7/27/93 (Sulkes) at 107.
There are people living at Ebensburg who chronically have increased secretions, who
have chronic wheezing, and who have tenuous lung functions all the time because they are
always aspirating. Tr. 7/27/93 (Sulkes) at 106-7. Sometimes they aspirate huge amounts
and sometimes they aspirate smaller ones, but it is always an irritant and is always a set up
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for potentially bigger problems. Tr. 7/27/93 (Sulkes) at 107. For many residents, just because they have not been hospitalized does not mean that they have not been harmed. Tr. 7/27/93 (Sulkes) at 107.
One individual who Dr. Sulkes believed to be suffering harm, but who had not been hospitalized is Tim P. Tr. 7/27/93 (Sulkes) at 139.1!/ Dr. Sulkes personally observed Tim and concluded that just because he had not been hospitalized yet did not mean he did not have any problems. Tr. 7/27/93 (Sulkes) at 139. Tim has had brown tinged vomitus and he is anemic, and yet no one at Ebensburg has checked his stool. Tr. 7/27/93 (Sulkes) at 139. No one has worked him up to determine where this bleeding is coming from. Tr. 7/27/93 (Sulkes) at 139. Further, Ebensburg had not provided him with a swallowing study or a barium swallow study. Tr. 7/27/93 (Sulkes) at 139. Ebensburg had not provided Tim with a Dysphagia Team consult as of January 1993. U.S. Exh. 641 (Wagner Dep.) Wagner Dep. Exh. 3. Indeed, as of the time of Dr. Sheppard's tour in July 1993, Tim's condition had deteriorated to the point that he was being fed by a gastrostomy tube. Tr. 10/18/93 (Sheppard) at 96; Tr. 7/29/93 (McGowan) at 115.
B. Ebensburg Does Not Provide Adequate Nutritional Management Services To Residents In Accord With Basic Standards Of Care. 1. The Outcome Measures Of A Good Nutritional Management System Are Not Evident At Ebensburg.
A primary goal of nutritional management is to maintain and achieve good nutritional health, including adequate body weight. Tr. 7/29/93 (McGowan) at 157; Tr. 10/12/93 (Sheppard) at 14. A common way of measuring good nutritional health is by calculating the
tl After his last visit to Ebensburg, Tim was, in fact, hospitalized for pneumonia on March 4, 1993. X-37

mass body index ("BMI"). Tr. 10/12/93 (Sheppard) at 100-101. Dr. Sheppard has found
that there is a significant relationship between an individual's BMI and abnormal stool,
gastroesophageal reflux, vomiting, and respiratory illness. Tr. 10/18/93 (Sheppard) at 64.
The majority of Keystone residents have BMI's that are below the normal range. U.S. Exhs.
967, 970. Forty-nine Keystone residents, or 61% of all people who live at Keystone, are
below the lowest limit of the normal BMI range. U.S. Exh. 967."/ Of the 25 Keystone
residents shown on the United States' feeding videotape, 20 are below their recommended
BMI. Tr. 7/29/93 (McGowan) at 111-136; U.S. Exh. 970.!!/ Some Keystone residents
have BMI's that are significantly below the accepted range. Seventeen Keystone residents
have BMI's of 15.5 or lower, which is more than 25% below the lowest number of the
acceptable BMI range of 21-27.!!/ Dr. Sheppard agrees that these are individuals who are
significantly at risk due to their low body weight and compromised nutritional status. Tr.
10/18/93 (Sheppard) at 67-68. As far back as 1990, the United States notified the
Commonwealth of its concerns that Ebensburg's inadequate nutritional management practices
posed a risk of malnutrition. U.S. Exh. 638 (Sponsky Dep.) Exh. 50 at 3.
jf/ Three Keystone residents, or 4%, are below the lowest limit of the normal BMI range but the Dysphagia Team considers them to be within normal limits. Only 35% of Keystone residents are within or above normal BMI limits. U.S. Exh. 967. *V These residents are Barry D., Ronald E., Joseph T., Frank H., Timothy P., Harold B., William A., Duane P., Beth S., Ellen H., James M., Joseph R., Tim G., John H., Tony R., Raymond W., Rhett T., David K., Lee V., and Jerry Me. Two additional Keystone residents were not included among the Dysphagia Team evaluations measuring BMI. These are Ronald P., who is fed with a gastrostomy tube, and Sam B., who died after the videotape was taken of aspiration pneumonia. Tr. 7/29/93 (McGowan) at 116; 122. (Note that Sam B. is incorrectly transcribed as Sam V. in the transcript at 122, line 7.)
t! Ten of these seventeen residents are shown on the United States' feeding videotape. These are: Barry D., Ellen H., Frank H., David K., Duane P., Timothy P., Anthony R., Joseph R., Joseph T., and Raymond W. U.S. Exh. 970.
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Other commonly accepted goals of nutritional management are to maintain good respiratory health (absence of pneumonia, aspiration), to ensure ease of eating without distress (coughing and choking), and to develop good eating skills. Tr. 7/29/93 (McGowan) at 157; Tr. 10/12/93 (Sheppard) at 14-15. As discussed supra § X.A, Ebensburg residents are suffering from poor respiratory health and gastroesophageal reflux. In fact, Dr. Sulkes identifies these life-threatening conditions as the "most pressing" medical concern at Ebensburg. As discussed infra § XI, Ebensburg residents experience much distress during mealtimes and are not being taught to develop good eating skills.
Dr. Sheppard's opinions about the adequacy of mealtime practices at Ebensburg were limited to whether residents were experiencing active distress at mealtime and the nature of the feeding techniques. Tr. 10/18/93 (Sheppard) at 60. She did not look at the outcome of these techniques, i.e., whether there were improvements in the individual's underlying health. Tr. 10/18/93 (Sheppard) at 60. Although she testified that she looked at some weight records, she only reviewed them for two residents at Keystone, where individuals have the greatest health related needs. Tr. 10/18/93 (Sheppard) at 111-112; U.S. Exh. 1041; Tr. 7/27/93 (Sulkes) at 83. The first Keystone resident whose record she reviewed to look at nutritional issues was Keith T. U.S. Exh. 1041. Keith died in March 1993 — one month after Dr. Sheppard's first tour. U.S. Exh. 788. Keith had multiple hospitalizations for aspiration pneumonia and related respiratory problems. Tr. 7/27/93 (Sulkes) at 126; U.S. Exh. 144, 788. Dr. Sulkes testified that his death was preventable and attributable to Ebensburg's poor chronic care of his nutritional management related problems. Tr. 7/27/93 (Sulkes) at 125-126, 128. The only other Keystone resident whose record Dr. Sheppard
X-39

reviewed to look at nutritional management related issues was Anthony (Tony) R. U.S. Exh. 1041. Anthony has also had multiple hospitalizations for aspiration and respiratory problems. U.S. Exh. 144. However, at the time of Dr. Sulkes' last visit in November 1992, Ebensburg Center had not provided him with a barium swallow work up or an x-ray study. Tr. 7/27/93 (Sulkes) at 140. In addition, Ebensburg had not conducted a work-up either for reflux or for dysphagia. Tr. 7/28/93 (Sulkes) at 77. Anthony still did not have a Dysphagia Team evaluation by January 1993, even though the head of the Team admitted that she had observed Anthony frequently coughing and possibly choking during meals. U.S. Exh. 641 (Wagner Dep.) at 60, 61. He was not even screened by the Dysphagia Team until June 22, 1993. U.S. Exh. 970. His BMI at the time was 13.40, which is more than 25% below the lowest limit of Ebensburg's acceptable BMI range. Id. This puts him among the individuals whom Dr. Sheppard consider to be significantly at risk due to their low body weight and compromised nutritional status. Tr. 10/18/93 (Sheppard) at 67-68. In between the time of Dr. Sheppard's February 1993 tour of Ebensburg and her return in July 1993, Anthony was placed on a feeding tube. Tr. 10/18/93 (Sheppard) at 132. Dr. Sheppard's comments on Tony at the point in the videotape where Ms. McGowan describes him as refluxing following his meal were that "here is just a face with mucus dribbling from his lip; "nothing to do with nutritional management." Tr. 10/12/93 (Sheppard) at 78. Dr. Sheppard does not feel qualified to evaluate the medical risks of aspiration and is not an expert in gastroesophageal reflux. Tr. 10/18/93 (Sheppard) at 71-72.
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2. Nutritional Management Does Not Exist At Ebensburg.
No one at Ebensburg is responsible for overseeing and integrating the nutritional management of residents and there is no system in place to facilitate adequate nutritional management. Tr. 7/29/93 (McGowan) at 158-159. Ebensburg's Dysphagia Team does not adequately address residents' nutritional management needs at the facility. Tr. 7/29/93 (McGowan) at 165. The Team focuses only on swallowing, which is but one narrow aspect of nutritional management. Id. at 165. The Dysphagia Team has not dealt with individuals with gastroesophageal reflux. U.S. Exh. 613 (Frye Dep.) at 85; U.S. Exh. 641 (Wagner Dep.) at 157. The Team's concerns do not extend below the neckline; they are only involved with the throat and swallowing. U.S. Exh. 613 (Frye Dep.) at 193, 194. Nutritional management, however, is much broader than simply attention to dysphagia and what occurs during mealtimes. Tr. 7/29/93 (McGowan) at 157-158. It encompasses general health care issues by looking at all of the factors which affect a person's ability to take in and utilize nutrients twenty-four hours a day. Id. at 157. In addition to how an individual eats, it includes such factors as positioning, medication, and overall health status, including adequacy of weight and gastrointestinal and respiratory functions. Id. Given the complex nature of the nutritional management needs of Ebensburg residents (many of whom have compromised respiratory functions, are significantly underweight, have physical disabilities, and have related medical complications), an integrated interdisciplinary approach is essential to maintain their health and prevent deterioration. Tr. 7/29/93 (McGowan) 159, 161-163;
Tr. 7/30/93 (McGowan) at 26. Dr. Sheppard agrees that interdisciplinary coordination
between disciplines, including speech therapy, occupational therapy, physical therapy,
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dietary, and nursing, is important. Tr. 10/12/93 (Sheppard) at 125; Tr. 10/18/93 (Sheppard) at 37. Dr. Hinkle also places an interdisciplinary approach on his list of steps that an institution should take to ensure safe and proper feeding. Tr. 12/16/93 (Hinkle) at 35; U.S. Exh. 1120.
Such an interdisciplinary approach does not exist at Ebensburg to address the nutritional management needs of residents. Tr. 7/29/93 (McGowan) at 159. Ebensburg's physical therapists are not involved in any way with feeding issues. Mr. Arnall does not know any members of the Dysphagia Team and does not have any contact with them. Tr. 10/13/93 (Arnall) at 95. Neither he nor any of the other contract physical therapists at Ebensburg are involved with positioning during mealtimes. Tr. 10/13/93 (Arnall) at 95. As Mr. Arnall explains that it is not part of their "contractual obligation." Tr. 10/13/93 (Arnall) at 95. Ms. Frye, the LOTA on Ebensburg's Dysphagia Team, concurs that she does not have any professional interaction with either the physical therapists or physical therapy aides at Ebensburg. U.S. Exh. 613 (Frye Dep.) at 145. She thinks that Ebensburg residents would benefit if there was interaction and coordination between the occupational therapy department and the physical therapy department. U.S. Exh. 613 (Frye Dep.) at 145-146, 147. To Ms. Frye's knowledge, no one has every suggested that occupational and physical therapists coordinate therapeutic programs at Ebensburg, but she thinks it would be a good idea if they did coordinate. U.S. Exh. 613 (Frye Dep.) at 146.
There is also a failure to coordinate between nursing, occupational therapy, and the Dysphagia Team. For example, Ms. Sponsky developed an aspiration screening form without any input from the Dysphagia Team or Ebensburg's occupational therapist. Tr.
X-42

7/30/93 (McGowan) at 35. In fact, even though the screening tool had been in existence for several months, neither Kathy Wagner, the head of the Dysphagia Team, or Lois Graham, Ebensburg's Director of Occupational Therapy, even knew that it existed until they were shown copies of it at their depositions. Tr. 7/30/93 (McGowan) at 36; U.S. Exh. 618 (Graham Dep.) at 63; U.S. Exh. 641 (Wagner Dep.) at 74. Despite a directive from Mr. Bellomo to Ms. Sponksy on January 13, 1993 asking her to determine whether information from the aspiration screening form is available to the occupational therapist, as of one month later, Ms. Sponsky had not discussed this issue with the occupational therapist or anyone else in Ebensburg's occupational therapy department. U.S. Exh. 638 (Sponsky Dep.) at 49-50. In fact, Ms. Sponsky has never discussed any joint nursing and occupational therapy issues with the Ebensburg's Director of Occupational Therapy. U.S. Exh. 638 (Sponsky Dep.) at 51. Ms. Sponsky also does not have any involvement with the Dysphagia Team. U.S. Exh. 637 (Sponsky Dep.) at 70. Ebensburg nurses do not develop nutritional management plans and the Director of Nursing does not have any sense of the number of Ebensburg residents who have nutritional management needs — even whether the number is large or small. U.S. Exh. 638 (Sponsky Dep.) at 27. In sum, the concept of nutritional management is a foreign one to Ebensburg. Tr. 7/29/93 (McGowan) at 159.
3. There Are Commonly Agreed Upon Components Of An Adequate Nutritional Management System.
An adequate nutritional management system requires the following basic and essential elements:
1. identification of residents at risk;
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2. comprehensive interdisciplinary assessments that evaluate not only how the resident eats but also intervening factors, such as underlying medical issues, the impact of medications, respiratory patterns, and behavioral problems;
3. development of an individualized intervention plan; 4. staff training in implementation of interventions; and 5. monitoring the efficacy of interventions and revising them when needed. Tr. 7/29/93 (McGowan) at 159-164. There is no dispute that these components constitute commonly accepted standards. Dr. Sheppard agrees that each of these five aspects of nutritional management are key and have been generally accepted in the field for over a decade. Tr. 10/12/93 (Sheppard) at 124135. In fact, she has written articles endorsing these principles that date back to 1981. Id. at 124. Dr. Hinkle further agrees that each of these elements is essential and constitute "steps that an institution can take to ensure safe and proper feeding." Tr. 12/16/93 (Hinkle) 34-35; U.S. Exh. 1120. These standards have been formally adopted by a number of states, including by federal court order in institutional reform litigation in Florida. Tr. 7/30/93 (McGowan) at 3; 36. None of these basic components of adequate nutritional management is in place at Ebensburg. Id. at 160, 161, 164.
a. Ebensburg Has Failed To Identify Individuals Whose Swallowing. Oral Motor. And Medical Conditions Place Them Nutritionally At Risk.
It is critical to identify individuals with feeding and swallowing disorders. In a paper that Dr. Sheppard presented in 1988 during the annual conferences of the American Association on Mental Retardation and the American Academy for Cerebral Palsy and
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Developmental Medicine, she stated that: Feeding and swallowing disorders are issues that command daily attention in institutions for the mentally retarded. Mealtime management is the most frequently reviewed and constant concern. Timely and effective management of these problems depends on identifying the individuals with dysphagia and defining the severity of their disability.
Tr. 10/12/93 (Sheppard) at 126. Because the entire population at Ebensburg is at risk for dysphagia it is particularly important that everyone is screened to determine who has a swallowing or oral motor disorder. Tr. 10/12/93 (Sheppard) at 127. As of the time that the defendants concluded their case-in-chief in October 1993, Ebensburg still had not screened all residents, despite the fact that Dr. Sheppard had advised facility administrators that this was a "weakness" some eight months earlier during her February 1993 tour. Tr. 10/12/93 (Sheppard) at 102, 130; Tr. 10/19/93 (Sheppard) at 130. In fact, Ebensburg did not begin screening residents for dysphagia until April 1993. Tr. 10/12/93 (Sheppard) at 129-130. As of July 1993, only Laurel House residents had been screened and Keystone residents were in the process of being screened with follow up assessments for dysphagia. Tr. 10/12/93 (Sheppard) at 130. As of October 18, 1993, less than half of all Ebensburg residents had been screened. Tr. 10/18/93 (Sheppard) at 130; Tr. 10/13/93 (Bellomo) at 211.
Ebensburg has also never screened residents to identify those who have oral motor problems despite the fact that Ms. Graham, the Director of Occupational Therapy, thinks that such a screening is important. U.S. Exh. 616 (Graham Dep.) at 126-127. She agrees that if someone has a significant oral motor problem and has not been identified, it presents health risks that are life-threatening. U.S. Exh. 617 (Graham Dep.) at 127-128. Ms. Graham believes that there are Ebensburg residents with oral motor problems who have not been
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identified. U.S. Exh. 617 (Graham Dep.) at 126. Ebensburg has further never screened its residents to identify potential chokers. Tr. 10/12/93 (Sheppard) at 161-162. In addition, Ebensburg has also never conducted a comprehensive screening to identify all residents who need adaptive feeding equipment. U.S. Exh. 616 (Graham Dep.) at 112.
Ebensburg has failed to even identify residents who aspirate and are at risk of aspiration, despite the fact that the Facility Director, the Nursing Director, and the Medical Director all agree that aspiration can be life-threatening. U.S. Exh. 602 (Bellomo Dep.) at 174; U.S. Exh. 637 at 74; U.S. Exh. 632 (Shertz Dep.) at 158. Although she agrees that it is important for Ebensburg to identify every resident who aspirates and is at risk of aspiration, Ms. Sponsky does not know whether all Ebensburg residents who aspirate or are at risk of aspiration have been identified. U.S. Exh. 637 (Sponsky Dep.) at 47-48. As of late August 1992, Ebensburg had not conducted any screening to identify residents who aspirate and are at risk of aspiration. Tr. 7/30/93 (McGowan) at 33-34. Following Ms. McGowan's August 1992 tour, Ebensburg developed a screening tool for aspiration. Tr. 7/30/93 (McGowan) at 34; U.S. Exh. 855. Ebensburg did not start using the aspiration screening tool until shortly before Ms. McGowan returned for her follow up tour on November 12, 1992. U.S. Exh. 637 (Sponsky Dep.) at 43. Ms. Sponsky developed the tool at Mr. Bellomo's direction. U.S.Exh. 637 (Sponsky Dep.) at 40. She did not know why Mr. Bellomo wanted her to develop it. U.S. Exh. 637 (Sponsky Dep.) at 41. Mr. Bellomo did not identify any outcomes or advise Ms. Sponsky of any steps that should be taken with regard to the aspiration screening. U.S. Exh. 637 (Sponsky Dep.) at 53. Despite the fact that Mr. Bellomo claims that he places a time limit on every assignment he makes, Tr.
X-46

10/13/93 (Bellomo) at 206, he did not place any time frames on completing the aspiration screening. U.S. Exh. 637 (Sponsky Dep.) at 53.
In Ms. McGowan's opinion, the screening tool is inadequate in its scope and content to identify all residents who are at risk of aspiration because it does not evaluate key factors that place a person at risk of aspiration. Tr. 7/30/93 (McGowan) at 34. For example, it does not require meal time observations and it does not evaluate such critical information as a resident's medications, weight history, and bowel function. Tr. 7/30/93 (McGowan) at 34. Although Ms. Sponsky believes that it is important to identify individuals with silent aspiration syndrome at Ebensburg, she does not know whether the screening form she developed is intended to identify people with this syndrome. U.S. Exh. 637 (Sponsky Dep.) at 55. Ms. Sponsky does not know whether all Ebensburg residents with reflux have been identified and admits that the screening form will not help to identify individuals who are presenting symptoms of gastroesophageal reflux but have not yet had medical tests to confirm the existence of reflux. Id. at 60.
Ebensburg nurses have not received any training in how to complete the screening tool. U.S. Exh. 637 (Sponsky Dep.) at 44. They are supposed to develop health care plans based upon the results of the aspiration screening. Id. at 51. Ms. Sponsky does not know if any such plans have been developed. Id. The Nursing Standards Committee was supposed to develop a health care plan protocol for nurses to use if aspiration is detected by through the screening. Id. at 52. As of February 16, 1993, some three months after the form had already been implemented, the Committee still had not yet developed a protocol and there was no scheduled date for developing it. U.S. Exh. 638 (Sponsky Dep.) at 159.
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The aspiration screening tool is only slated to be used as part of a resident's annual review. U.S. Exh. 637 (Sponsky Dep.) at 42. Ebensburg therefore plans on taking one year to complete the screening process. Tr. 10/13/93 (Bellomo) at 212. Ms. Sponsky, however, directed Keystone to complete the screening on an expedited basis. U.S. Exh. 637 (Sponsky Dep.) at 50. During her deposition on January 14, 1993, Ms. Sponsky stated that she was "sure" aspiration screening had been completed at Keystone. U.S. Exh. 637 (Sponsky Dep.) at 50. Despite this heightened attention to the aspiration screening, when Ms. Sponsky was asked to bring the completed forms to the completion of her deposition on February 16, 1993, the Keystone screenings still had not been completed and Ms. Sponsky did not know when they were even scheduled to be completed. U.S. Exh. 683 (Sponsky Dep.) at 158-159. In fact, as of February 1993, some three months after the screening had begun, only thirty of the ninety-four Keystone residents had been screened. Tr. 7/30/93 (McGowan) at 35. As of the time of her tours, Dr. Sheppard still did not see the results of any aspiration screenings in Keystone charts. Tr. 10/12/93 (Sheppard) at 175.
b. Ebensburg Does Not Adequately Assess Residents With Nutritional Management Needs.
Even when Ebensburg is aware of a specific nutritional management need that it must assess, it has failed to do so. For example, Christine G.'s interdisciplinary team met on January 8, 1993 to conduct her annual review. U.S. Exh. 363. Her team noted that its primary concern has been Christine's health: "She has endured a number of health problems and continues to struggle with very fragile health at this writing." U.S. Exh. 363. In fact, her annual review, which was originally scheduled for November 1992 had to be postponed because Christine had been hospitalized for two months for pneumonia. Id. At the time of
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Christine's annual review, she "remained attached to a feeding tube." Id. at 1-2. A dietician was not present at Christine's annual review. Id. at 1. In the dietician's absence, all that her team had to work with was a three month old nutritional assessment which the team noted was out of date because "there have been definite changes in her condition as her health has declined and thus some parts of this assessment are not longer valid." Id. at 3. As far back as 1990, the United States notified the Commonwealth that Ebensburg's nutritional assessments were inadequate. U.S. Exh. 638 (Sponsky Dep.) Exh. 50 at 3.
i. Ebensburg's Dysphagia Team Has Failed To Conduct Assessments. Both Dr. Sulkes and Ms. McGowan agree that the Dysphagia Team at Ebensburg has failed to assess residents who are at serious risk of aspirating due to feeding and swallowing problems. Tr. 7/27/93 (Sulkes at 142. Tr. 7/29/93 (McGowan) at 166-167. As far back as February 1992, Ebensburg was aware of the critical need for its Dysphagia Team to assess each Keystone resident. Tr. 7/29/93 (McGowan) at 166-167. It was not until sixteen months later, during the summer months of 1993, that the Dysphagia Team began to even preliminarily screen Keystone residents. Tr. 10/12/93 (Sheppard) at 130. As of two weeks before the trial began in this case, even those Keystone residents whom the Dysphagia Team determined needed a comprehensive assessment based upon the screening results still had not all been assessed. Tr. 10/12/93 (Sheppard) at 130. On the very day that this lawsuit was filed, February 10, 1992, Ebensburg held a mortality and morbidity committee meeting to review the death of Margaret D., who died on January 29, 1992. U.S. Exh. 41(e). Margaret D. had reflux esophagitis, a history of
X-49

aspiration pneumonia, and prior to her death could not eat because of mucus secretions.
Id.^/ Despite these problems, she had never been evaluated by Ebensburg's Dysphagia
Team. U.S. Exh. 641 (Wagner Dep.) Exh. 3. A discussion of the role of the Dysphagia
Team took place during the mortality and morbidity committee meeting. U.S. Exh. 41(e) at
6. Both Mr. Bellomo and Ms. Sponsky felt that the Dysphagia Team should be more
actively involved in assessing individuals in Keystone:
Mr. Bellomo recommended that whenever an aspiration history is there he would like to see the dysphagia team at least rule out swallowing disorder. Mrs. Sponsky stated she agreed with that, but then every individual who resides in Keystone House should have that done because the potential is there for everyone of them.
Tr. 7/29/93 (McGowan) at 166-167; U.S. Exh. 41(e) at 6. Despite these specific
acknowledgements by the facility director and director of nursing of the need to assess every
Keystone resident, by the end of December 1992, the Dysphagia Team had evaluated only a
total of seven out of the 94 Keystone residents. Tr. 7/29/93 (McGowan) at 166. Of the
seven Keystone residents who had been assessed, four had been evaluated prior to Mr.
Bellomo's and Ms. Sponksy's concerns, so only an additional three people were evaluated by
the Dysphagia Team during this eleven month time period. U.S. Exh. 641 (Wagner Dep.),
Wagner Dep. Exh. 3 . ^ / Even where Mr. Bellomo has concerns about a specific
fV See also the discussion of Ebensburg's inadequate medical management of Margaret D. in § X.A. fV In light of the fact that Ebensburg residents are at risk of pneumonia due to age and aspiration, Mr. Bellomo also identified the need to examine and potentially enhance the role of the respiratory therapist available to Ebensburg through its on-going contract with Mercy Hospital. U.S. Exh. 41(e)
at 5. Despite identifying this need during the Mortality and Morbidity committee review of
Margaret's death in February 1992, Mr. Bellomo testified at trial that he did not take this action until October 1992, some eight months later, and only after the United States proposed it in a draft consent decree. Tr. 10/14/93 (Bellomo) at 157.
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individual, there is no sense of urgency about involving the Dysphagia Team. For example, on January 11, 1993, Mr. Bellomo wrote a memo to Mr. Bonfanti, Keystone's Unit Manager requesting a review of Ron E.'s "specific needs in eating." U.S. Exh. 343(aaa). In particular, he queries whether a referral to the Dysphagia Team should be made. Despite Mr. Bellomo's involvement, the Dysphagia Team did not assess Ron until eight months later (September 19, 1993). Tr. 10/19/93 (O'Brien) at 95. fV Moreover, as of January 7, 1993, the head of the Dysphagia Team could readily identify at least ten individuals in Keystone who were frequently coughing and possibly experiencing recurrent choking during meals. U.S. Exh. 641 (Wagner Dep.) at 60, 61.fi/ Of these ten residents, however, the Dysphagia Team had evaluated only one as of January 1993 and that person was not evaluated until December 22, 1992. U.S. Exh. 641 (Wagner Dep.) at 61, 62; U.S. Exh. 641 (Wagner Dep.) Exh. 3. Although the Dysphagia Team is supposed to assess all Ebensburg residents who have a choking episode warranting a medical procedure,"/ it has failed to do this as well (including failing to assess Gary K. and Vincent P., who required the Heimlich maneuver). Tr. 10/12/93 (Sheppard) at 143-146; U.S. Exh. 273.
As of January 7, 1993, the Dysphagia Team also did not routinely evaluate each individual who returned to Ebensburg after having been hospitalized for aspiration
fi/ Ron was also screened by the Dysphagia Team, but not until June 22, 1993, as part of the overall Dysphagia Team screening in Keystone House. U.S. Exh. 970 (Ron E.'s swallowing screening). Although during the screening his positioning was found to be problematic, he did not receive a comprehensive evaluation by the Dysphagia Team until three months later. Tr. 10/19/93 (O'Brien) at 95; U.S. Exh. 970 f / These individuals are: Ron E., Frank H., Duane P. Anthony R., Raymond W., Jeanne D., Karen S., Lois S., Jimmy M., and Tim P. U.S. Exh. 641 (Wagner Dep.) at 60, 61. 511 U.S. Exh. 641 (Wagner Dep.) at 46.
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pneumonia. U.S. Exh. 641 (Wagner Dep.) at 72. The Team was not even notified each time a resident was hospitalized for aspiration pneumonia. U.S. Exh. 641 (Wagner Dep.) at 73. Ms. Wagner feels that it is important for the Dysphagia Team to evaluate all individuals who have been hospitalized for aspiration pneumonia because "that's who we are here to serve, to try to prevent further aspiration, to do what we can to ensure safety in the future." U.S. Exh. 641 (Wagner Dep.) at 72, line 25 through 73 lines 1-2. Dr. Sheppard agrees that it is a "significant deficiency" if there is no process for the Dysphagia Team to evaluate all residents who have been hospitalized for aspiration pneumonia. Tr. 10/12/93 (Sheppard) at 189, lines 16-20. No one at Ebensburg, however, had ever thought about developing a mechanism to ensure that the Dysphagia Team evaluated each Ebensburg resident hospitalized for aspiration, even after the morbidity and mortality committee meeting in February 1992. U.S. Exh. 641 (Wagner Dep.) at 73. It was not until after Ms. Wagner was specifically asked at her deposition one year later, on January 7, 1993, whether the Dysphagia Team evaluated each Ebensburg resident hospitalized for aspiration, that a mechanism to notify the Dysphagia Team of such hospitalizations was even initiated. Plaintiffs Exhibit 10004.
Although Ms. Wagner "hoped" that the Team had evaluated every Ebensburg resident who aspirates, she did not know at the time of her deposition on January 7, 1993 whether the Team had actually evaluated each resident. U.S. Exh. 641 (Wagner Dep.) at 66-67. In fact, as of January 7, 1993, the Dysphagia Team had only evaluated two of the thirteen Ebensburg residents who had been hospitalized since the Team's creation in June 1990. U.S.
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Exh. 949. By the time the Dysphagia Team finally evaluated these residents, there were
significant delays. For example:
• Ethel M. was hospitalized for aspiration pneumonia three times for a total of four weeks in March, May, and November 1992 and was not evaluated by the Dysphagia Team following any of her hospitalizations. U.S. Exh. 949. She was finally evaluated by the Dysphagia Team in February 1993, three months after her last hospitalization. Tr. 10/18/93 (Sheppard) at 119.
• Patti W. was hospitalized in both February and March 1992 for twenty-nine days for aspiration pneumonia and was not evaluated by the Dysphagia Team following either of her hospitalizations. U.S. Exh. 949. In fact, she was not evaluated by the Dysphagia Team until one year later, March 23, 1993. Tr. 10/18/93 (Sheppard) at 119.
• Frank H. was hospitalized for a week with aspiration pneumonia during January 1991 and was not evaluated by the Dysphagia Team until July 6, 1993 — two and a half years later. U.S. Exh. 949; Tr. 10/18/93 (Sheppard) at 119.
ii. The Dysphagia Team's Assessments Are Inadequate.
The few dysphagia assessments that have actually been conducted at Ebensburg are
inadequate. Tr. 7/29/93 (McGowan) at 165-166. They are very narrow and brief in terms
of content, scope, and the amount of time that is spent conducting the evaluation. Id. at 166.
As of January 7, 1993, the Dysphagia Team did not use a specific assessment form for its
evaluation. U.S. Exh. 641 (Wagner Dep.) at 97. It also did not have a list of areas to
review to ensure that it is gathering all the pertinent information as it reviews a chart as part
of its dysphagia assessment. U.S. Exh. 641 (Wagner Dep.) at 86. Ms. Fulton, who is a
dietician, is responsible for reviewing nutritional issues in a resident's chart when the Team
conducts its dysphagia evaluations. U.S. Exh. 641 (Wagner Dep.) at 82. During Ms.
Fulton's absence from the Team for six months from April through the fall of 1992, Ms.
Wagner and Ms. Frye would screen the charts to determine if another dietician should look
at the chart. U.S. Exh. 641 (Wagner Dep.) at 83. Ms. Wagner, however, is not "quite
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sure" what Ms. Fulton looks at in the chart. U.S. Exh. 641 (Wagner Dep.) at 82. The dietary area is a "nebulous" one to Ms. Wagner. U.S. Exh. 641 (Wagner Dep.) at 82. Ms. Wagner "is not that knowledgeable" about interpreting the information that Ms. Fulton reviews. U.S. Exh. 641 (Wagner Dep.) at 83. In addition, as part of the dysphagia evaluation, the Team only speaks to staff about the individual being evaluated for three to five minutes. U.S. Exh. 641 (Wagner Dep.) at 96. Dr. Sheppard unequivocally agreed that as of the conclusion of her last tour of Ebensburg, as late as July 1993, the dysphagia evaluations needed to be expanded so that contributing causes were better defined as part of the assessment. Tr. 10/12/93 (Sheppard) at 199.
No one on the Dysphagia Team is responsible for reviewing medications when evaluating a resident for potential dysphagia. U.S. Exh. 641 (Wagner Dep.) at 106. The Team never directly consults with Ebensburg's pharmacist. U.S. Exh. 641 (Wagner Dep.) at 107. At most, the Team only refers to the pharmacist's annual report in the resident's chart. U.S. Exh. 641 (Wagner Dep.) at 107. Although Ms. Wagner is aware that seizure medications and anti-psychotics can cause dysphagia and use of these medications is one of the most common reasons that dysphagia occurs in Ebensburg residents, she is unaware of the specific types of seizure medications and anti-psychotics that are more likely to cause dysphagia. U.S. Exh. 641 (Wagner Dep.) at 14.
c. Ebensburg Fails To Provide Adequate And Appropriate Mealtime Interventions For Residents With Nutritional Management Needs.
An adequate, interdisciplinary assessment of an individual's nutritional management needs is the foundation for developing appropriate interventions. Tr. 7/27/93 (Sulkes) at 97;
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Tr. 7/29/93 (McGowan) at 161-164. Dr. Sheppard agrees that an adequate assessment is critical in order to appropriately exercise professional judgment about the types of mealtime interventions that should be used, particularly where an individual has significant physical limitations and is eating poorly. Tr. 10/12/93 (Sheppard) at 201. As discussed above, these assessments are lacking at Ebensburg.
Appropriate mealtime procedures and techniques are necessary to mitigate the potentially life-threatening complications of dysphagia, such as aspiration and low body weight. Tr. 10/12/93 (Sheppard) at 199-200. Each individual who has to be fed in Keystone did not have a feeding plan specifying these mealtime procedures and techniques until late 1992, following Ms. McGowan's first tour of Ebensburg. Tr. 7/29/93 (McGowan) at 148; U.S. Exh. 604 (Bonfanti Dep.) at 52. Prior to 1992, feeding plans were not routinely developed for Keystone residents. U.S. Exh. 629 (Schofield Dep.) at 23.fl/
Only five people in Keystone have any type of specialized occupational therapy feeding program. U.S. Exh. 616 (Graham Dep.) at 111. Two of the five residents have a program to maintain self-feeding skills and three have oral motor and positioning feeding programs. U.S. Exh. 616 (Graham Dep.) at 111, 112. The three residents who have occupational therapy programs for feeding are Tim P., Ellen H., and James M. U.S. Exh.
*/ For example, in November 1990, Dr. Sulkes observed that Donna S. was having problems with feeding and yet, there was no feeding program available for her. Tr. 7/27/93 (Sulkes) at 103. Two months later, in January 1991, she suffered from lower lobe pneumonia. Tr. 7/27/93 (Sulkes) at 103; U.S. Exh. 144. In January 1992, an occupational therapy note in her chart merely indicated that she had to be fed, has chewing difficulties, and poor oral motor skills. Tr. 7/27/93 (Sulkes) at 103-4. That was all - there were no recommendations about how to feed her other than that she needs to be fed. Tr. 7/27/93 (Sulkes) at 104. In November 1990, Dr. Sulkes observed Linda K. clearly having difficulty swallowing. Tr. 7/27/93 (Sulkes) at 101. There was no feeding supplemental procedure in the dining room or anywhere in her chart. Tr. 7/27/93 (Sulkes) at 101.
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617 (Graham Dep.) at 117-118. Ms. Graham did not write the feeding plans for any of these three individuals. U.S. Exh. 617 (Graham Dep.) at 118. Instead, a LOTA wrote them. U.S. Exh. 617 (Graham Dep.) at 118. These three Keystone residents are all shown on the United States' feeding tape being fed by LOTA's and experiencing significant distress. See discussion infra § XL
The feeding plans in existence at Ebensburg are inadequate. Tr. 7/29/93 (McGowan) at 229. Dr. Sheppard agrees that in order to be adequate, a feeding plan must address proper positioning as well as feeding techniques. Tr. 10/12/93 (Sheppard) at 201. The feeding plans at Keystone do not contain proper positioning techniques. Tr. 7/29/93 (McGowan) at 149. In a number of plans, pictures that are supposed to demonstrated appropriate positioning in fact demonstrate extremely poor positions for feeding. Tr. 7/29/93 (McGowan) at 149-150. Moreover, the feeding plans do not adequately address the specific feeding technique that should be used. Tr. 7/30/93 (McGowan) at 31-32. They are very general and very rarely specify any technique other than "present spoon center front," which fails to provide the feeder with any guidance about specific feeding techniques, such as the amount of pressure and how to pull the spoon out of the mouth. Tr. 7/30/93 (McGowan) at 31-32. Ebensburg staff do not use professionally accepted techniques to compensate for oral motor problems. For example, staff do not use head, neck, and jaw control techniques to prevent tongue thrusts. Tr. 7/29/93 (McGowan) at 120-121. Dr. Hinkle agrees that there are techniques that can and should be used to control a tongue thrust. Tr. 12/16/93 (Hinkle) at 28. In fact, improper technique of placement of the spoon can actually cause a tongue thrust. Tr. 12/16/93 (Hinkle) at 28. Ebensburg staff also do not angle the spoon when
X-56

withdrawing it from the mouth to assist with lip closure when a resident has difficulty closing the mouth to swallow. Tr. 7/29/93 (McGowan) at 122-123, 124. Both Ms. McGowan and Dr. Sheppard agree that the spouted cups used for feeding residents liquids at Ebensburg are unacceptable. Tr. 7/29/93 at 96; Tr. 10/12/93 (Sheppard) at 205. In fact, Dr. Sheppard thinks that Ebensburg's practice of using spouted cups is a departure from accepted professional standards in the field. Tr. 10/12/93 (Sheppard) at 205. Spouted cups are inadequate to teach the skill of cup drinking and pose difficulties in controlling the rate of liquids. Tr. 10/12/93 (Sheppard) at 205. Despite Ms. McGowan's and Dr. Sheppard's criticisms of these cups, they were still being used at Ebensburg as late as July 1993. Tr. 10/12/93 (Sheppard) at 206. As of February 1993, Dr. Sheppard also found Ebensburg residents who needed, but were not receiving, a different diet texture to accommodate their limited chewing skills. Tr. 10/12/93 (Sheppard) at 26.
The only specific resident whose record Dr. Sheppard reviewed and discussed in her direct testimony, was John B. fV Tr. 10/12/93 (Sheppard) at 93. Despite the fact that John has experienced significant weight loss since 1990, is eighteen pounds underweight, and is unable to feed himself, his entire feeding plan that was in effect at the time of Dr. Sheppard's February tour consisted of the following:
1. Take the individual to the dining area. 2. Put bib in place to protect clothing. 3. Check for proper diet and beverage. 4. To encourage the individual to feed himself. 5. Staff will feed if he refuses. 6. Remove bib.
fV Dr. Sheppard did attempt to testify about the date on which she speculated Frank H.'s feeding plan was developed but the Court sustained an objection to this testimony. Tr. 10/12/93 (Sheppard) at 99.
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7. Wipe the individual's face and hands after meals. 8. Return the individual to the living are. 9. Change clothing as needed.
Tr. 10/18/93 (Sheppard) at 11, 13; U.S. Exh. 1036. Dr. Sheppard agreed that John's most
recent physician's assessment contained no current information about his weight loss and
deterioration in his ability to feed himself. Tr. 10/18/93 (Sheppard) at 15; U.S. Exh. 1036.
For a detailed discussion of Ebensburg's failure to treat adequately the medical aspects of
residents with nutritional management needs, see supra § X.A. d. Ebensburg Fails To Adequately Monitor Residents' Mealtime Intake And Mealtime Interventions.
i. Mealtime Interventions
When the Dysphagia Team makes recommendations, it does not regularly follow
through to ensure that its recommendations are being implemented. U.S. Exh. 641 (Wagner
Dep.) at 113. Ms. Frye, a member of the Team, explains that the Dysphagia Team has not
been given the responsibility and does not have the time to ensure that its recommendations
are implemented. U.S. Exh. 613 (Frye Dep.) at 70, 72. She feels, however, that Ebensburg
residents would benefit from the Dysphagia Team being able to follow through to ensure that
recommendations are carried. U.S. Exh. 613 (Frye Dep.) at 72.fV Ms. Graham is also
not responsible for ensuring that any recommendations she makes involving diet texture,
*/ Dr. Sulkes found a number of instances where the Dysphagia Team's failure to ensure its recommendations were implemented. For example, Washington D. was seen by the dysphagia team in June 1992. Tr. 7/27/93 (Sulkes) at 142. At that time, they recommended that Washington be given a barium swallow x-ray. Tr. 7/27/93 (Sulkes) at 142. However, when Dr. Sulkes reviewed his record three months later, the barium study had not yet been performed and there was no documentation in the record giving a reason why it had not yet been performed. Tr. 7/27/93 (Sulkes) at 143. In addition, the dysphagia team did nothing to ensure that their recommendations for David V. were being implemented. Tr. 7/27/93 (Sulkes) at 143.
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adaptive equipment, and oral motor techniques are carried out. U.S. Exh. 618 (Graham Dep.) at 12. Ms. Wagner, the head of the Dysphagia Team, is not involved in any structured program of monitoring staff consistency in implementing feeding plans and taking corrective action when necessary and knows of no such system at Ebensburg. U.S. Exh. 641 (Wagner Dep.) at 202-203. As of January 1993, Ms. Wagner did not have any responsibilities during mealtimes in Keystone, although she believes that it would be advantageous to routinely observe meals. U.S. Exh. 641 (Wagner Dep.) at 203, 214.
ii. Mealtime Intake It is important to have a mechanism to monitor how well Ebensburg residents eat at each mealtime. Tr. 10/12/93 (Sheppard) at 133. Ebensburg did not have any system in place to record the amount of food that individuals at Ebensburg ate in buildings other than Keystone until October 28, 1993. U.S. Exh. 637 (Sponsky Dep.) at 19. As far back as 1990, the United States notified the Commonwealth of its concerns that Ebensburg was failing to document the nutritional intake of residents. U.S. Exh. 639 (Sponsky Dep.) Exh. 50 at 3. Although it is important to record liquid intake as part of mealtime monitoring, when Ebensburg finally implemented a facility-wide system to record how well residents were eating, it did not include liquids. The Director of Nursing, who wrote the policy stated: "We don't consider liquids as part of a meal. It [the policy] doesn't address liquids. U.S. Exh. 637 (Sponsky Dep.) at 11, 13. Mr. Bellomo directed Ms. Sponsky on November 5, and again on November 19, 1992, to develop a system to summarize information collected during mealtimes recording how much residents ate. U.S. Exh. 636 (Sponsky Dep.) Exh. 16. Four months later, as of February 16, 1993, Ms. Sponsky had not developed any such
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system and did not know when it would be developed. U.S. Exh. 637 (Sponsky Dep.) at 2122; U.S. Exh. 638 (Sponsky Dep.) at 14. Ms. Malloy, nurse supervisor at Ebensburg, confirms that there are no monthly summaries prepared on how well each resident has eaten. U.S. Exh. 622 (Malloy Dep.) at 98. Until Ms. McGowan asked about it during her first tour of Ebensburg in August 1992, Ebensburg also had no written policy outlining what staff should do if a resident refuses food. U.S. Exh. 637 (Sponsky Dep.) at 11.
4. Ebensburg Fails To Provide Adequate Staff Training In How To Implement Feeding Plans.
Staff training is key in ensuring adequate nutritional management and implementation of feeding plans. Tr. 7/29/93 (McGowan) at 160-161. Dr. Sheppard agrees that direct care staff need frequent and specific training about how to feed the residents for whom they are responsible. Tr. 10/18/93 (Sheppard) at 16. In addition to generalized training, direct care staff need specific training in how to care for the unique needs of the specific individuals for whom they are responsible. Tr. 7/29/93 (McGowan) at 161-162, 238. Just as feeding plans must be individualized to address the needs of each resident, so too, each staff person responsible for implementing the feeding plan must receive training specifically on that plan. Tr. 7/29/93 (McGowan) at 161, 238. This is known as "competency based training" which entails teaching staff basic principles, demonstrating the principles on the individuals on whom they will be used, requiring staff to demonstrate their proficiency in performing the activity, and monitoring staff performance to ensure they continue to perform the activity correctly. Tr. 7/29/93 (McGowan) at 238. Both Dr. Hinkle and Dr. Sheppard agree that demonstrating competency should be a part of feeding training. Tr. 10/18/93 (Sheppard) at 28; Tr. 12/16/93 (Hinkle) at 35, 42-43. In fact, Dr. Hinkle agrees that competency-based
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training is critical and includes it among the steps that an institution should take to ensure safe feeding. Tr. 12/16/93 (Hinkle) at 35; U.S. Exh. 1120. Ebensburg did not even begin to provide competency based training in how to feed residents until August 19, 1993, after the United States rested its case-in-chief. Tr. 10/15/93 (Bellomo); U.S. Exh. 1000. As of the time of her July 1993 tour, Dr. Sheppard agreed that Ebensburg needs to improve its staff training by establishing a schedule for retraining staff. Tr. 10/18/93 (Sheppard) at 25. There is also a need for more professional staff, such as occupational and speech pathologists, to monitor mealtimes at Ebensburg. Tr. 7/29/93 (McGowan) at 230-231.
The professional and paraprofessional staff at Ebensburg are not involved in training staff in how to feed residents and implement feeding plans. As of January 1993, the Dysphagia Team at Ebensburg had not provided any formal training sessions to Ebensburg staff within the past year. Tr. 10/18/93 (Sheppard) at 19; U.S. Exh. 613 (Frye Dep.) at 44. The Dysphagia Team was also not involved in training staff in how to implement feeding plans even after the Team reviewed, revised, and developed new plans during the fall of 1992. U.S. Exh. 613 (Frye Dep.) at 177-178; U.S. Exh. 638A (Stiles Dep.) at 72. Ms. Malloy, who has written feeding plans, has never provided any demonstrations to staff about to how to feed them individuals. U.S. Exh. 622 (Malloy Dep.) at 89. Sue Fagan, LOTA in Keystone, is not involved in training direct care staff in how to implement feeding plans. U.S. Exh. 610 (Fagan Dep.) at 84. Instead, staff training in feeing plans consists of staff reading the procedure. U.S. Exh. 610 (Fagan Dep.) at 84; U.S. Exh. 622 (Malloy Dep.) at 89.
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When Mr. Tackett started working in Keystone in the late fall of 1991, he was responsible for feeding residents on his very first day without having had any training in how to feed them. Tr. 8/3/93 (Tackett) at 7-8. He was not aware of nor did he have any contact with the Dysphagia Team while he was at Keystone. Tr. 8/3/93 (Tackett) at 13.
When staff not regularly assigned to Keystone House are pulled in from another building to cover staff shortages, they feed individuals without any oral instructions or demonstrations. Domino Deposition at 77, lines 12-25. The only effort that is made to familiarize pulled staff with the unique feeding needs of individuals at Keystone is through the mealtime supplemental procedures book. U.S. Exh. 604 (Bonfanti Dep.) at 19. This consists of looking at the picture and procedure and signing the staff person's name to the staff instruction record. U.S. Exh. 604 (Bonfanti Dep.) at 19; U.S. Exh. 609 (Domino Dep.) at 76-77.
5. Ebensburg Paraprofessional And Professional Staff Have Not Received Adequate Training In Nutritional Management And Feeding Individuals With Developmental Disabilities.
Kathy Wagner, the head of the Dysphagia Team since its inception, did not take any courses during her academic training in dysphagia. U.S. Exh. 641 (Wagner Dep.) at 223. The only training that the Dysphagia Team received at the point that it was formed was a two day seminar on dysphagia. U.S. Exh. 641 (Wagner Dep.) at 219. The seminar, however, did not apply specifically to individuals with mental retardation. U.S. Exh. 641 (Wagner Dep.) at 220. She did not receive any further training in dysphagia until two years later when she attended two seminars at Allegheny General Hospital. The first seminar at Allegheny General Hospital was in the fall of 1992. U.S. Exh. 641 (Wagner Dep.) at 29,
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30, 31. Mary Frye also attended the training. U.S. Exh. 641 (Wagner Dep.) at 29. The training covered dysphagia and its relationship to respiration. U.S. Exh. 641 (Wagner Dep.) at 29. The other two members of the Dysphagia Team, Karen Fulton and Marcia Stiles, did not attend the training. U.S. Exh. 641 (Wagner Dep.) at 29. The training did not deal in any way with individuals who are mentally retarded. U.S. Exh. 641 (Wagner Dep.) at 30. Ms. Wagner subsequently attended another seminar at Allegheny General Hospital in late 1992 on the same topic. U.S. Exh. 641 (Wagner Dep.) at 221. She still feels, however, that she needs additional training on swallowing and its relationship to dysphagia. U.S. Exh. 641 (Wagner Dep.) at 34.
Mary Frye has been the LOTA on the Dysphagia Team since it was formed in June 1990. U.S. Exh. 613 (Frye Dep.) at 12, 13, 14. The only specialized training that Ms. Frye has received with respect to feeding or swallowing issues were two seminars on dysphagia, one in 1990 when the Team was formed and the other in the fall of 1992 by Allegheny General Hospital, which she attended with Ms. Wagner. U.S. Exh. 613 (Frye Dep.) at 23, 26. Ms. Frye did not learn anything new in the 1992 seminar.
Marcia Stiles, a registered nurse who was appointed to the Dysphagia Team in September 1992, has expressed the need to attend the outservice training in dysphagia that both Ms. Wagner and Ms. Frye attended in 1990. U.S. Exh. 638A (Stiles Dep.) at 9, 5657, 89. She has not been permitted to attend the training because it has not been offered at a location close to Ebensburg. U.S. Exh. 638A (Stiles Dep.) at 89.
Ms. Wagner admits that there are areas where additional knowledge would be beneficial to the Dysphagia Team. U.S. Exh. 641 (Wagner Dep.) at 34. In addition to more
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information about dysphagia and its relationship to respiration, she would like to use video fluoroscopic studies more and would like additional information about ultrasound imaging as a diagnostic tool. U.S. Exh. 641 (Wagner Dep.) at 34. There is no budget for the Dysphagia Team for training opportunities even though Ms. Wagner believes that there should be such a budget. U.S. Exh. 641 (Wagner Dep.) at 31. The Dysphagia Team at Ebensburg does not have a library nor has it ever conducted a literature search on dysphagia and other swallowing and feeding problems. U.S. Exh. 641 (Wagner Dep.) at 224. She would like to have a library and begin to extrapolate trends but there is no time to do that. U.S. Exh. 641 (Wagner Dep.) at 225.
Lana Geriak is a LOTA who is responsible for feeding residents and supervising other staff feeding residents. U.S. Exh. 615 (Geriak Dep.) at 78, 95. She has not had any inservices on feeding techniques within the past two years. U.S. Exh. 615 (Geriak Dep.) at 79. She has had no educational background or training courses with respect to feeding individuals with mental retardation, nor has she attended any seminars or outservice training. U.S. Exh. 615 (Geriak Dep.) at 80, 84. She is not satisfied with her knowledge of how to feed people at Ebensburg and would like to learn more. U.S. Exh. 615 (Geriak Dep.) at 81.
Lisa Schofield, a LOTA who worked at Keystone between 1989 and May 1992 and was involved with developing feeding plans for Keystone residents, also wishes that she knew more about how to safely and effectively feed individuals who are mentally retarded. U.S. Exh. 629 (Schofield Dep.) at 38. The only outservice training that Ms. Schofield has had with respect to feeding individuals who are mentally retarded was a four hour course at another State facility. U.S. Exh. 629 (Schofield Dep.) at 35-37. The only other expertise
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she has to evaluate feeding problems is based on her experience at Ebensburg. U.S. Exh. 629 (Schofield Dep.) at 37.
Claire Domino has been a Residential Services Supervisor at Keystone since 1986 and also serves as a Qualified Mental Retardation Professional for Keystone clients. U.S. Exh. 609 (Domino Dep.) at 8, 9, 13. She is responsible for supervising staff as they feed residents. U.S. Exh. 609 (Domino Dep.) at 14-15. She is also pictured on the United States' videotape feeding Joseph R. who extends his head back during the feeding process. Tr. 7/29/93 (McGowan) at 126-127; U.S. Exh. 258. Ms. Domino has never had any outservice training. U.S. Exh. 609 (Domino Dep.) at 49. She wants both more in-house and outside training. U.S. Exh. 609 (Domino Dep.) at 64. In particular, she believes that "someone from the outside" is needed to present training. U.S. Exh. 609 (Domino Dep.) at 64. To her knowledge, no one from the outside has ever provided training to Ebensburg on feeding issues. U.S. Exh. 609 (Domino Dep.) at 65. She does not feel completely satisfied or comfortable with her level of knowledge of feeding techniques. U.S. Exh. 609 (Domino Dep.) at 56.
Sue Fagan is a LOTA in Keystone who is shown on the United States' videotape feeding Tim P. additional food and fluid while his mouth is full of food that he is unable to swallow. Tr. 7/29/93 (McGowan) at 115; U.S. Exh. 258. The only training Ms. Fagan received in how to feed individuals with developmental disabilities and physical disabilities was in 1980 from an occupational therapist at Keystone. U.S. Exh. 610 (Fagan Dep.) at 2526, 34. Ms. Fagan has not had any courses outside of Ebensburg on how to feed individuals with physical disabilities. U.S. Exh. 610 (Fagan Dep.) at 34.
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Although Dr. Sheppard offered her opinion that there were "professional judgments" in Ebensburg's decisions about how to train staff in feeding programs, she did not know who made these judgments or the content of any training. Tr. 10/18/93 (Sheppard) at 20, 21. Dr. Sheppard did not question direct care staff concerning their knowledge about feeding and did not sit in on any staff training sessions. Tr. 10/18/93 (Sheppard) at 16.
6. Ebensburg Has Failed Even In Its Minimal Efforts At Nutritional Management Activities. a. Ebensburg's Dysphagia Team Has Been Ineffective And Has Failed In Its Mission.
Ebensburg's Dysphagia Team was formed in June 1990. U.S. Exh. 641 (Wagner Dep.) at 12. There are four members on the Team: Kathleen Wagner, a speech therapist has headed the team since its inception. U.S. Exh. 641 (Wagner Dep.) at 25. " / The other members are Mary Frye, LOTA, Karen Fulton, a dietician, and Marcia Stiles, a nurse. U.S. Exh. 641 (Wagner Dep.) at 17. A nurse was not added to the Team until November 1992, after Ms. McGowan conducted her first tour of Ebensburg. U.S. Exh. 641 (Wagner Dep.) at 18.fi/ Mary Frye has been the occupational therapy representative on the Dysphagia Team since it was formed in June 1990. U.S. Exh. 613 (Frye Dep.) at 12, 13, 14. She is an occupational therapy assistant. U.S. Exh. 613 (Frye Dep.) at 8. There is no occupational therapist on the Team, only an occupational therapy assistant.
fV Mr. Bellomo testified that as of the time of his testimony, Tom Huber had replaced Katiiy Wagner as the head of the Dysphagia Team. Tr. 10/13/93 (Bellomo) at 185. fV Ms. Sponsky had input into selection Ms. Stiles as a nurse representative on the Dysphagia Team. U.S. Exh. 637 (Sponsky Dep.) at 71. Ms. Sponsky, however, does not know anything about Ms. Stiles' specific training or qualifications in the area of dysphagia and does not know if she had any training to carry out her responsibilities on the Dysphagia Team. Id.
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Mr. Bellomo created the Dysphagia Team:
1. to review every individual in the facility who was on a texture modified diet; 2. to assess any individual who had a swallowing disorder; and 3. to gain enough skill at Ebensburg in the area of dysphagia that Ebensburg's Dysphagia Team would be looked to as a resource for the Commonwealth of Pennsylvania.
Tr. 10/14/93 (Bellomo) at 47-48.
As of the time of their depositions on January 6 and 7, 1993, both Ms. Wagner and
Ms. Frye confirmed that none of these objectives had been accomplished two and a half
years later:
1. Ms Frye testified that the Dysphagia Team had never been responsible for evaluating everyone in the facility on a texture modified diet. U.S. Exh. 613 (Frye Dep.) at 189;
2. Instead of assessing every individual who had a swallowing disorder, Ms. Wagner's best estimate was that as of January 7, 1993, Ebensburg had only evaluated five per cent of all individuals at Ebensburg who had a swallowing disorder. U.S. Exh. 641 (Wagner Dep.) at 121; and
3. Ebensburg's Dysphagia Team does not function as a consultant to other mental retardation facilities throughout the Commonwealth. U.S. Exh. 641 (Wagner Dep.) at 173. No other State facilities have contacted Ebensburg's Dysphagia Team for consultation in the area of dysphagia. U.S. Exh. 641 (Wagner Dep.) at 174.
The Dysphagia Team only operates on a part-time basis at Ebensburg. Its only
regularly scheduled meeting time is once a week for three hours. U.S. Exh. 641 (Wagner
Dep.) at 26. This meeting time was not established until October 1992 and the Team had to
get special permission from Mr. Bellomo to establish it. U.S. Exh. 641 (Wagner Dep.) at
26, 38, Wagner Dep. Exh. 14. The Team members have limited amounts of time that they
can devote to the Team because of their other job responsibilities. U.S. Exh. 641 (Wagner
Dep.) at 38. Ms. Wagner believes that if the members of the Dysphagia Team had more
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time to devote to dysphagia issues, the Team could provide more staff training, could follow up on clients assessed by the Team, and could establish networks with other hospitals and with other health care professionals at Ebensburg. U.S. Exh. 641 (Wagner Dep.) at 116. Ms. Frye admits that if the Dysphagia Team had more time to fulfill its responsibilities it could get involved in positioning during mealtimes. U.S. Exh. 613 (Frye Dep.) at 75. With more time, the Dysphagia Team could ensure that individuals are "upright, symmetrical, [in a] safe position, breathing." U.S. Exh. 613 (Frye Dep.) at 75, lines 11-12. Ms. Frye also believes that the Dysphagia Team needs more time to respond to any questions that staff may have about the appropriate way to feed individuals and whether individuals are in the safest position for them to be eating. U.S. Exh. 613 (Frye Dep.) at 75.
Key members of the Dysphagia Team have been absent for significant portions of time since the Team was created. For example, Ms. Frye was absent from the Team during a three to five month period in the winter of 1991. U.S. Exh. 641 (Wagner Dep.) at 85. Ms. Fulton did not work on the team for six months from April through the fall of 1992. U.S. Exh. 641 (Wagner Dep.) at 84.
Until the United States took the deposition of Ms. Wagner on January 7, 1993: • Ebensburg did not have a system for keeping track of dysphagia evaluations; • Ebensburg did not have a system for referring individuals who had been hospitalized with either aspiration pneumonia or suspected aspiration pneumonia; • The Dysphagia Team at Ebensburg did not have a mission statement; and • The Dysphagia Team did not keep any minutes of its meetings. U.S. Exh. 10004; U.S. Exh. 641 (Wagner Dep.) at 24, 42, 72.
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Mr. O'Brien admits that some members of the Dysphagia Team are "just trying out their wings at this point." They need more training and are just now starting to work as a group. U.S. Exh. 624 (O'Brien Dep.) at 185. Mr. O'Brien further admits that even though problems existed for some time, it probably took this lawsuit to get the Dysphagia Team going. U.S. Exh. 624 (O'Brien Dep.) at 188. Wagner Deposition Exhibit 3 is a comprehensive list of all referrals to and assessments by the Dysphagia Team since it was created. U.S. Exh. 641 (Wagner Dep.) at 48-50. There were no referrals to the Dysphagia Team prior to January 1, 1991. U.S. Exh. 641 (Wagner Dep.) at 48.
Dr. Sulkes concluded that Ebensburg Center did not satisfactorily address the medical needs of the residents who are at risk of aspirating because of feeding and swallowing problems with the creation of the Dysphagia Team. Tr. 7/27/93 (Sulkes) at 141. He indicated that he was encouraged when he heard that the Dysphagia Team had been formed in 1990, but after reviewing the Team's performance through record review and observation of the residents, he concluded that nothing had really changed. Tr. 7/27/93 (Sulkes) at 114.
b. Ebensburg's Attempts To Develop And Revise Feeding Plans In Late 1992 Were Not Professionally Grounded.
Mr. O'Brien admits that the Justice Department's concerns with aspiration relating to feeding positions forced Ebensburg to look more closely at the issues sooner than they might have otherwise. U.S. Exh. 624 (O'Brien Dep.) at 52. Mr. Bonfanti, Unit Manager for Keystone, thinks that Ebensburg did not identify problems with feeding practices before they were highlighted during the litigation because Ebensburg wasn't "see[ing] the forest for the trees. . . There it was in front of us all these years, but now we see it." U.S. Exh. 604 (Bonfanti Dep.) at 74, lines 2-4.
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At the suggestion of the Justice Department's experts, Ebensburg reviewed and revised feeding plans and took pictures of Keystone residents in the fall of 1992 to illustrate the position in which they should be fed. U.S. Exh. 641 (Wagner Dep.) at 181-182. The Dysphagia Team members along with the Director of Occupational Therapy were responsible for this effort. Ms. Wagner felt that this effort was "all very beneficial," "a fine idea." U.S. Exh. 641 (Wagner Dep.) at 181, line 24 through 182, line 5.5V The pictures taken reflected the revised feeding plans and the consensus of the group reviewing the procedures that the feeding position was appropriate. U.S. Exh. 641 (Wagner Dep.) at 188, 194. No one outside of Ebensburg was consulted in this process. U.S. Exh. 629 (Schofield Dep.) at 69-70.
The pictures in fact demonstrate extremely poor positions for feeding. Tr. 7/29/93 (McGowan) at 149-150. Ms. McGowan identified pictures for twenty-five Keystone residents that illustrate them being fed with their heads hyper-extended, hyper-extended and rotated, and with their trunks improperly aligned. Id.; U.S. Exh. 137. This effort thus failed to accomplish correct positioning during mealtimes.
The pictures reflect the poor process that Ebensburg used to develop them. Tr. 7/29/93 (McGowan) at 151. They were taken in a very brief period of time. The entire process of reviewing each resident's feeding plan to determine if it was adequate, deciding on the appropriate position, and taking the picture took between five to ten minutes for each individual. U.S. Exh. (Frye Dep.) at 175. In Keystone, the process of reviewing the plans
*/ Mr. Bonfanti feels that recommendations made by Department of Justice consultants about mealtimes have "absolutely" been useful and helpful. U.S. Exh. 604 (Bonfanti Dep.) at 73. Mr. Devine agrees that Ms. McGowan's feedback during her tours "was helpful to us." U.S. Exh. 608 (Devine Dep.) at 80, line 4.
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and taking the pictures only took a total of approximately 6 hours over one and a half days. U.S. Exh. (Frye Dep.) at 182.
The timeline for accomplishing this project was very short. In Kathleen Wagner's words, "[i]t appeared imperative that this be done and get done." U.S. Exh. 641 (Wagner Dep.) at 196-197, lines 1-2. Ms. Graham confirmed that there was a directive to complete the project at Keystone within several work days. U.S. Exh. 618 (Graham) at 43-44. She felt that there should have been more time to complete the project because some of the feeding plans later had to be revised. U.S. Exh. 618 (Graham) at 43.
Once the team completed the process of revising procedures and taking pictures, it did not provide any formal or competency based training to staff in the mealtime supplemental procedures. U.S. Exh. 641 (Wagner Dep.) at 201-202. At best, staff were informed by the QMRP to read the revised supplemental procedures and the Dysphagia Team was available if staff had questions. U.S. Exh. 641 (Wagner Dep.) at 201.
c. The Dining Observation Form Was Implemented Without Adequate Understanding. Following Ms. McGowan's tour in August 1992 and at her recommendation, Ebensburg developed a form to observe residents during mealtimes. U.S. Exh. 637 (Sponsky Dep.) at 14-15. The dining observation form was not implemented until October 19, 1992. U.S. Exh. 604 (Bonfanti Dep.) at 78; U.S. Exh. 604 (Bonfanti Dep.) Exh. 5. Unit Managers did not receive any instructions when they received the form about how to complete it. U.S. Exh. 604 (Bonfanti Dep.) at 79. Mr. Bonfanti did not understand such key terms on the form as "eating with head in extension" or "sitting in posterior pelvic tilt." U.S. Exh. 604 (Bonfanti Dep.) at 79. At the time that he asked QMRP's to make the
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assessments on the form, he was not satisfied that they were qualified to make the assessments called for by the form such as head in extension and posterior pelvic tilt. U.S. Exh. 604 (Bonfanti Dep.) at 80. Indeed, Claire Domino was one of the individuals responsible for filling out the forms that were developed for dining observations. U.S. Exh. 609 (Domino Dep.) at 67. She did not receive any instructions with the form. U.S. Exh. 609 (Domino Dep.) at 67. At the time that she completed the form, she did not know what sitting in posterior pelvic tilt meant. She asked Sue Fagan, the occupational therapy aide assigned to Keystone, what the term meant and was provided with the wrong definition. U.S. Exh. 609 (Domino Dep.) at 69. In fact, based upon her conversation with the occupational therapy aide, Ms. Domino thought that posterior pelvic tilt was a correct sitting position which staff should be striving to achieve. U.S. Exh. 609 (Domino Dep.) at 70. It was not until her conversation with Ms. McGowan during her tour of Ebensburg in November 1993, that Ms. Domino learned the correct definition of posterior pelvic tilt. U.S. Exh. 609 (Domino Dep.) at 71-72. Ms. Domino learned other new information, as well, from her conversation with Ms. McGowan at that time. Id.
Ms. Malloy, a nurse supervisor at Keystone who has written a number of feeding plans for Keystone residents, filled out the dining room observation form for all 24 individuals at Keystone for whom she is the QMRP. U.S. Exh. 622 (Malloy Dep.) at 90-91. She was not given any instructions in how to fill out the form other than a cover memo detailing the timeline for completion U.S. Exh. 622 (Malloy Dep.) at 91. At the time that she completed the form, she did not know what eating in posterior pelvic tilt meant. U.S. Exh. 622 (Malloy Dep.) at 91-92. She also did not think it was possible for individuals in
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carts to have their head in extension. U.S. Exh. 622 (Malloy Dep.) at 92. Staff completing the form in Keystone did not think that the items regarding amount of food or fluid lost while eating and drinking were applicable to individuals who were fed. U.S. Exh. 622 (Malloy Dep.) at 93. Ms. Malloy participated in a discussion with Ms. McGowan on November 12, 1992, where Ms. McGowan explained what posterior pelvic tilt was. U.S. Exh. 622 (Malloy Dep.) at 105. Ms. Malloy thought that Ms. McGowan is "a very fascinating person." U.S. Exh. 622 (Malloy Dep.) at 106, line 2. Ms. Malloy also found "very useful" Ms. McGowan's demonstration of how to reposition individuals during mealtimes. U.S. Exh. 622 (Malloy Dep.) at 106. Ms. Malloy is "sure that there are things that we have yet to learn" about how to safely and effectively feed individuals at Keystone. U.S. Exh. 622 (Malloy Dep.) at 109, line 4. Ms. Malloy found the recommendations by Justice Department experts to be helpful and she is "willing to learn some more." U.S. Exh. 622 (Malloy Dep.) at 109, line 19.
Mr. Hauenstein, an Ebensburg physical therapist, agreed that staff responsible for filling out the dining observation forms did not understand what key terms meant. U.S. Exh. 619 (Hauenstein Dep.) at 108. In his conversations with staff, including nurses or QMRP's, staff admitted that they were confused. U.S. Exh. 619 (Hauenstein Dep.) at 109. Mr. Hauenstein agrees that if staff were using the form, they should have known what the terminology meant, including "eating with head in extension" and "sitting in posterior pelvic tilt." U.S. Exh. 619 (Hauenstein Dep.) at 128.
Staff in living units other than Keystone also did not understand what terms on the form meant. For example, Mr. McGuire, Unit Manager of Horizon, who was responsible
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for overseeing the process in his building, did not understand what sitting in posterior pelvic tilt was. U.S. Exh. 623 (McGuire Dep.) at 130. In yet other living units, such as Laurel House, the staff responsible for filling out the Dining Observation Forms were told to just ignore the sections on positioning. U.S. Exh. 631 (Seymour Dep.) at 85, 86, lines 1-10. At least nineteen people in Laurel are confined to a wheelchair. U.S. Exh. 1015.
No one was responsible for following up to ensure that appropriate action was taken based upon information from the Dining Observation Form. U.S. Exh. 631 (Seymour Dep.) at 90. Ebensburg's Director of Nursing participated in developing the form but did not review a single completed form. U.S. Exh. 637 (Sponsky Dep.) at 17. She was not aware that staff did not have adequate knowledge to complete the dining observation form until Ms. McGowan returned to Ebensburg in November 1992 and pointed it out. U.S. Exh. 637 (Sponsky Dep.) at 19. Ms. Graham has never used information from the dining observation form to assist her in conducting evaluations of individuals in the area of feeding, positioning or oral motor status but thinks it would be important information to taken into consideration in conducting these types of evaluations. U.S. Exh. 618 (Graham) at 62. Information from the dining observation forms was also not used when a team was constituted in the fall of 1992 to review and develop feeding plans. U.S. Exh. 613 (Frye Dep.) at 176.
C. Ebensburg's Treatment Of Jeff K. Is Illustrative Of Medical And Nutritional Management Issues.
Jeff K. died of aspiration pneumonia during the course of this trial on September 30, 1993. U.S. Exh. 1108. Dr. Rubin describes the story of his life and death as a "sad one" which is illustrative of systemic interdisciplinary issues, including "issues of seizure management, issues of nutrition, issues of feeding, issues in the evaluation of
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gastroesophageal reflux, issues in the monitoring of health and well-being, in the securing of consultants, on a regular basis, in working with it and working closely with the regional hospitals to adequately deal with the patients who are referred to them." Tr. 12/13/93 (Rubin) at 110.
One of the factors contributing to Jeffs death identified by Ebensburg is "underweight compounded by his poor eating ability and dysphagia" which was "complicated by muscle relaxation from high dose Klonopin in attempt to relieve his absence seizures." U.S. Exh. 1108, Death/Discharge Summary at 10. Jeff was on Klonopin for the eleven months leading up to his death. U.S. Exh. 1108, Death/Discharge Summary at 6. In Ebensburg's review of Jeffs death, the Mortality and Morbidity Committee notes that one of the side effects of Klonopin is increased secretions, a weakening of the swallowing muscle, and dysphagia. U.S. Exh. 1108, M. & M. Comm. Mtg. Minutes at 5. In the eight months prior to his death while he was on Klonopin, Jeff went from an "independent feeder, to the staff having to feed him, to the staff being afraid to feed him, to supervisors feeding him, then to a G-tube." Id. During the summer before Jeff died, Ebensburg "let the staff feed him again. He started to develop more aspiration." Id- In fact, during her tour of Ebensburg in July 1993, Dr. Sheppard observed a direct care staff person feeing Jeff K. thin liquids despite the fact that his feeding procedure states in big capital letters "No THIN LIQUIDS" and specifically instructs staff to thicken his liquids to a "pudding consistency." Tr. 10/18/93 (Sheppard) 8889; U.S. Exh. 1002.^/
"/ Dr. Sulkes notes that even a small amount of aspiration is an irritant which is "always a set up for potentially a bigger problem." Tr. 7/27/93 at 107.
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Ebensburg's physician acknowledges that Jeffs dysphagia problems "at the end were due to the Klonopin." Id. Despite the difficulties that Jeff was having, he was not screened by the Dysphagia Team until May 14, 1993. The Dysphagia Team determined that he had severe dysphagia and observed him coughing more than forty-four times during the mealtime. U.S. Exh. 970. The Team did not note that he was on Klonopin.!!/ At the time of his dysphagia evaluation, Jeffs BMI was 15.21, this is more than 25% below the lowest number of the acceptable BMI range of 21-27. Id. Dr. Sheppard believes that an individual with this low a body weight is at significant risk due to their low body weight and compromised nutritional status. Tr. 10/18/93 (Sheppard) at 67-68.
During his review of the Mortality and Morbidity Committee review of Jeff K.'s death, Dr. Rubin was "frustrated" that the clinical management issues discussed during the review had not been explored by the group prior to Jeff K.'s death. Tr. 12/13/93 (Rubin) at 106. For example, during the Mortality and Morbidity Committee review of Jeffs death, Mr. Bellomo determined that it was important that Ebensburg's pharmacist provide the Dysphagia Team with a list of medications that can cause dysphagia. U.S. Exh. 1108, M. & M. Comm. Mt. Minutes at 5. This same issue had previously been raised by the United States during the deposition of John Fris, Ebensburg's pharmacist some eleven months earlier. During his deposition, Mr. Fris admitted that the Ebensburg pharmacy does not
" / As noted earlier, no one on the Dysphagia Team is responsible for reviewing medications when evaluating a resident for potential dysphagia. U.S. Exh. 641 (Wagner Dep.) at 106. The Team never directly consults with Ebensburg's pharmacist. U.S. Exh. 641 (Wagner Dep.) at 107. At most, the Team only refers to the pharmacist's annual report in the resident's chart. U.S. Exh. 641 (Wagner Dep.) at 107. Although Ms. Wagner is aware that seizure medications and anti-psychotics can cause dysphagia and use of these medications is one of the most common reasons that dysphagia occurs in Ebensburg residents, she is unaware of the specific types of seizure medications and anti-psychotics that are more likely to cause dysphagia. U.S. Exh. 641 (Wagner Dep.) at 14.
X-76

keep a list of the individuals who are prone to aspiration. U.S. Exh. 612 (Fris Dep.) at 8990. Although he agreed that there are a number of medications that can contribute to chewing or swallowing difficulties, he was not aware of those individuals with chewing or swallowing difficulties at Ebensburg. U.S. Exh. 612 (Fris Dep.) at 92. Moreover, he has never tried to find out which individuals have serious medical conditions that could be adversely affected by medications. U.S. Exh. 612 (Fris Dep.) at 93. Mr. Fris further admitted that it is important to have a list of all of the presenting conditions of all of the individuals at Ebensburg, but there are not enough pharmacists to maintain such a list. U.S. Exh. 612 (Fris Dep.) at 90, 93. To not have such a list is "obvious risk." U.S. Exh. 612 (Fris Dep.) at 90, line 16.
X-77

XI. MEALTIMES AT EBENSBURG ARE UNSAFE AND DO NOT MEET ACCEPTED PROFESSIONAL STANDARDS. A. Overview There are four major areas of systemic deficiencies at Ebensburg that represent
dangerous and unprofessional practices during mealtimes: 1. Ebensburg residents are eating and being fed in unsafe positions; 2. Ebensburg staff are feeding residents using unsafe practices; 3. Ebensburg residents are eating unsafely with no staff intervention; and 4. The dining environment at Ebensburg is generally unsafe.
Tr. 7/29/93 (McGowan) at 91-92. Ms. McGowan observed these problems to be pervasive throughout her three visits to Ebensburg during 1992 and 1993. Id. at 92. Dr. Sulkes has had similar concerns throughout his many tours of Ebensburg beginning in 1989. Tr. 7/27/93 (Sulkes) at 99-106. Dr. Sheppard admits that there were occasions during her tours of Ebensburg, as well, where residents were at risk or danger of harm due to feeding practices. Tr. 10/12/93 (Sheppard) at 106. Despite the fact that Ms. McGowan held a special session with Ebensburg's facility director, the Director of Nursing, and other Ebensburg administrators at the end of her first tour in August 1992 to express significant concern about these dangerous practices, the same problems continue and pose "lifethreatening11 conditions. Tr. 7/29/93 (McGowan) at 138, 139, 142, 143, 194. The only changes that were apparent during Ms. McGowan's subsequent tours were five new stools in Keystone for staff to sit on during feeding, only one of which was used, and, six months later, a marginal increase in the amount of time that some Ebensburg residents took to
XI-1

consume their meals. Tr. 7/29/93 (McGowan) at 139, 142, 229.V Ms. McGowan also specifically recommended that Ebensburg bring in outside consultants to help the facility address the unsafe practices that she identified. Tr. 7/29/93 (McGowan) at 139. Ebensburg's Director of Occupational Therapy strongly agreed that there was a need to bring in consultants with special expertise in mealtime positioning and expressed this need during her deposition in January 1993 when Mr. Bellomo was present. U.S. Exh. 617 (Graham Dep.) at 155. Ebensburg failed, however, to bring in any such consultants. Tr. 10/15/93 (Bellomo) at 14.
B. Ebensburg Residents Are Experiencing Obvious Harm From Unsafe Mealtime Practices.
During the course of her observations of 21 mealtimes at Ebensburg during August 1992, November 1992, and February 1993, Ms. McGowan observed "an overwhelming amount of visible evidence" of individuals experiencing problems from these unsafe mealtime practices by coughing, vomiting, and demonstrating respiratory distress. Tr. 7/29/93 (McGowan) at 91, 96-97, 128-132. As far back as February 1990, the Commonwealth was on notice through the United States' CRIPA investigation of grave concerns about Ebensburg's mealtime practices because residents were coughing and choking on food during mealtimes and suffering aspiration. U.S. Exh. 638 (Sponsky Dep.) Exh. 50 at 3.V The
1/ Instead of residents consuming their meals in two to four minutes, the time increased in some instances to eight to nine minutes, although Ms. McGowan continued to see some individuals eat at unsafe paces, such as two and five minute meals. Tr. 7/30/93 (McGowan) at 33. V Coughing is a compensation for food that is entering the airway and is a visible sign of choking. Tr. 12/13/93 (Rubin) at 101; U.S. Exh. 641 (Wagner Dep.) at 58. When someone chokes, it means that food is entering the larynx. U.S. Exh. 641 (Wagner Dep.) at 58. If food or liquid penetrates the trachea and lungs, aspiration results. U.S. Exh. 641 (Wagner Dep.) at 58, 65.
XI-2

following examples are among the many instances of coughing and other forms of distress
that Ms. McGowan observed and documented during her mealtime observations at Ebensburg
several years after the Commonwealth was put on notice of the United States' concerns:
• On August 17, 1992, James M. was being fed by a LOTA. He was spitting out almost every bite and coughing. Tr. 7/29/93 (McGowan) at 98. On August 21, 1992, he is shown on the videotape repeatedly coughing as a result of being fed with his head in extension. Id. at 129-130. The head of Ebensburg's Dysphagia Team has also observed James frequently coughing and possibly choking during meals. U.S. Exh. 641 (Wagner Dep.) at 60, 61.
• On August 18, 1992, Frank H. was coughing significantly and losing liquid out of both sides of his mouth as he was being fed fluids. Tr. 7/29/93 (McGowan) at 98. The head of Ebensburg's Dysphagia Team has also observed Frank frequently coughing and possibly choking during meals. U.S. Exh. 641 (Wagner Dep.) at 60, 61. Dr. Sheppard also observed Frank during July 1993 "distressed" and "ejecting food," almost one year after Ms. McGowan's similar observations. Tr. 10/18/93 (Sheppard) at 92. In light of Frank's history of hospitalizations for lung related problems, Dr. Sulkes also had concerns about Frank's position in his cart when he has observed Frank being fed. Tr. 7/27/93 (Sulkes) at 105.
• On August 18, 1992, Ron E. was coughing with almost every swallow and having difficulty breathing. Tr. 7/29/93 (McGowan) at 99-100. On August 20, 1992, he was coughing and spurting out food during the mealtime. Immediately after the meal, he was kept flat on his back in his living unit and continued coughing in an attempt to expel what was trapped in his airway. Id. at 112, 113, 128; U.S. Exh. 229. Three months later, in November 1992, Ebensburg's Director of Occupational Therapy noted that Ron was having difficulty during mealtimes and thought that until Ebensburg got an expert in to assist with Ron, all staff can do is "trial and error." U.S. Exh. 617 (Graham Dep.) at 179. The head of Ebensburg's Dysphagia Team also observed Ron frequently coughing and possibly choking during meals. U.S. Exh. 641 (Wagner Dep.) at 60, 61.
• On February 22, 1993, Patti W. was fed with additional mouthfuls before she had swallowed what was in her mouth. She was repeatedly coughing and regurgitating. Tr. 7/29/93 (McGowan) at 100.
• On August 21, 1992, Beth S. is pictured on the United States' feeding videotape (U.S. Exh. 258) immediately after her meal, continuously coughing in an attempt to clear her airway. Tr. 7/29/93 (McGowan) at 121-122. On February 22, 1993, Ms. McGowan again observed Beth coughing as she was fed with her head in extension. Tr. 7/29/93 (McGowan) at 100.
XI-3

• On November 12, 1992, Andrea S. is pictured on the feeding videotape, biting the spoon and, at one point, spurting out food as she is being fed with her head in extension. U.S. Exh. 258.!/
• On both August 21, 1992 and November 12, 1992, Tony (Anthony) R. was coughing, regurgitating, and refluxing during and after his meals. Tr. 7/29/93 (McGowan) at 128-129. He has been hospitalized for aspiration pneumonia and has an area of tissue death on the top palate of his mouth from constant regurgitation. Id. at 128. By July 1993, Tony had a gastrostomy tube and was being fed orally as a supplement to his tube feeding. Tr. 10/18/93 (Sheppard) at 132. Dr. Sheppard continued to see Tony coughing repeatedly throughout his meal with copious oral secretions during July 1993. Tr. 10/18/93 (Sheppard) at 100, 102. The head of the Dysphagia team at Ebensburg also admits that she has observed Tony frequently coughing and possibly choking during meals. U.S. Exh. 641 (Wagner Dep.) at 60, 61.
• On November 12, 1992, Raymond W. is shown on the feeding videotape persistently and forcefully coughing with his head back in extension. Tr. 7/29/93 (McGowan) at 130-131. The head of Ebensburg's Dysphagia Team has observed Raymond frequently coughing and possibly choking during meals. U.S. Exh. 641 (Wagner Dep.) at 60, 61. Raymond has a history of aspiration pneumonia. U.S. Exh. 144. When the Dysphagia Team finally screened him on June 22, 1993, it found that he was coughing and distressed throughout the meal, his positioning was problematic, he had severe dysphagia, and was more than 50% below the lowest range of acceptable body weight. U.S. Exh. 970. See discussion on body weight supra § X.B. 1.
• On August 21, 1992, David K. appears on the feeding videotape, coughing profusely with food still in his mouth after he was fed with his head in extension. Tr. 7/29/93 (McGowan) at 131-132. Dr. Sheppard agrees that "he is getting himself in trouble." Tr. 9/12/93 (Sheppard) at 68.
• On August 18, 1993, Ron L. ate very rapidly and immediately vomited into his tray at the conclusion of his meal. He vomited again as he left the dining room. Tr. 7/29/93 (McGowan) at 133.
Ms. McGowan summarized thirty-three additional instances where she observed
residents coughing, vomiting, ejecting food, and experiencing respiratory problems at various
mealtimes during her tours. U.S. Exh. 535.
1/ Andrea S. is incorrectly identified as Beth S. in the July 29, 1993 Transcript (McGowan) describing the feeding videotape at 119. Tr. 7/30/93 (McGowan) at 22.
XI-4

Dr. Sheppard agrees that frequent episodes of prolonged coughing during a meal is a problem, possibly indicating that the individuals are having difficulty under the circumstances in which they are being fed. Tr. 10/12/93 (Sheppard) at 195. She acknowledges that there were residents on the United States' feeding videotape who were experiencing distress or difficulty (Ron E., Tim P., Duane P., Beth S., Ellen H., David K.). Tr. 10/12/93 (Sheppard) at 47, 50, 57, 60, 61, 68.1/ Dr. Sheppard also observed residents coughing and in "distress" during the mealtimes that she observed as recently as July 1993, including John H., Jeff K., Frank H., Duane P., Barry D., and Anthony (Tony) R. Tr. 10/18/93 (Sheppard) at 86, 88, 92 (line 20), 95, 99, 100.
In some cases, residents experience distress at mealtimes even without any outward symptoms. This is the case, for example, with silent aspiration syndrome. Tr. 12/13/93 (Rubin) at 128; Tr. 7/29/93 (McGowan) at 118. Other residents indicate their distress by demonstrating a resistance to eating which could potentially be attributable to medical problems. Tr. 7/29/93 (McGowan) at 119. For example, Paul G. had just returned to Ebensburg from a hospitalization for surgery for bowel obstruction shortly before he is shown on the United States'videotape. Id. at 116-117. He is exhibiting significant resistance to being fed. Id- The feeder, however, persists in feeding him by placing the spoon and glass into his mouth with his head thrust back. Id.; U.S. Exh. 235. Ms. McGowan had particular concerns about Paul because several months earlier he had the
V Although the feeding videotape shows six residents coughing repeatedly, in her comments on these segments Dr. Sheppard only acknowledged that one of the residents (David K.) was experiencing difficulty. Tr. 10/12/93 (Sheppard) at 68. Instead of recognizing the distress, Dr. Sheppard instead commented on such things as the "productive cough" and the ability of the resident to "compensate." Tr. 10/12/93 (Sheppard) at 65.
XI-5

ability to feed himself and walk. Tr. 7/30/93 (McGowan) at 21. At the time the videotape was taken, he required total assistance, was confined to a wheelchair, and no longer able to walk, indicating that he was having difficulty controlling his muscles. Id. It is likely that his ability to control the complex muscles inside his mouth to adequately manage food and fluid were also affected. Id. Consequently, the feeder's insensitivity to Paul's difficulties by failing to assist him in keeping his head and trunk in good alignment posed significant risks. Id- at 21-22.
C. Ebensburg Residents Are Eating And Being Fed In Unsafe Positions.
Throughout their numerous observations of mealtimes at Ebensburg, Dr. Sulkes, Ms. McGowan, and Ms. McAllister all repeatedly observed individuals eating and being fed in positions which were unsafe. Tr. 7/27/93 (Sulkes) at 99-105; Tr. 7/28/93 (McAllister) at 206; Tr. 7/29/93 (McGowan) at 91-92. In fact, Ms. McAllister did not see anyone at Ebensburg who was in an appropriate position during the meal times that she observed. Tr. 7/28/93 (McAllister) at 206. Ms. McGowan also did not observe any Ebensburg resident who was in appropriate positioning equipment during mealtimes. Tr. 7/29/93 (McGowan) at 148. Dr. Sulkes observed inappropriate feeding positions and practices at every meal that he observed at Ebensburg. Tr. 7/27/93 (Sulkes) at 99, 105-106. These inappropriate practices did not change substantially from his first tour in 1989 to his most recent tour in 1992. Id. Dr. Sheppard agreed that there were Ebensburg residents whose positions were "very difficult cases to manage" during mealtime and Ebensburg's "solutions were not yet good solutions." Tr. 10/12/93 (Sheppard) at 87. She had particular problems with the inadequate headrests in carts and "very definitely felt that the headrests in carts should have brought the
XI-6

individuals into better alignment." Tr. 10/18/93 (Sheppard) at 103. Ms. Frye, the LOTA on Ebensburg's Dysphagia Team, also admits that residents are not always properly positioned during mealtimes. U.S. Exh. 613 (Frye Dep.) at 209. If there were proper equipment and an adequate number of staff she thinks that all Ebensburg residents might be able to always be properly positioned during mealtimes. U.S. Exh. 613 (Frye Dep.) at 209. Ms. Frye does not know if anyone is currently assigned to work at Keystone who has sufficient expertise to address positioning issues. U.S. Exh. 613 (Frye Dep.) at 213.
The unsafe positions in which individuals are eating and being fed include positions where individuals' airways are at risk, creating the potential for aspiration, and positions that do not allow food to be processed through the rest of the system in a way that is safe for the individual and allows it to be absorbed adequately and without untoward consequences, such as gastroesophageal reflux. Tr. 7/29/93 (McGowan) at 92. In particular, Ebensburg residents are eating and being fed in the following unsafe positions:
• flat on their backs during the meal and immediately afterwards • with their heads hyper-extended • with their heads hyper-extended and rotated • with their trunks in improper alignment. Tr. 7/29/93 (McGowan) at 92, 94-95.
1. There Are General Standards For Safe Eating Positions The general standard for safe eating is a position in which the individual is sitting upright, the trunk is symmetrical, and the head is in a "neutral" position. Tr. 7/29/93 (McGowan) at 93. Proper positioning of the body as well as the neck and head are critical during the eating process. Tr. 7/27/93 (Sulkes) at 96; Tr. 7/29/93 (McGowan) at 102. Inappropriate positioning can lead to aspiration. Tr. 7/27/93 (Sulkes) at 96, 99. Eating is a
XI-7

complex process which requires precise coordination as food is processed in the mouth and travels down to the stomach. Tr. 7/29/93 (McGowan) at 102. An individual's ability to safely process food is dependent upon proper position of both the body and head. Id. Mr. Bellomo agrees that it is "important that people be fed in the optimum position." U.S. Exh. 602 (Bellomo Dep.) at 157, lines 23-25. He claims that in October 1992, following tours by Dr. Sulkes and Ms. McGowan and his review of the United States' proposed consent decree highlighting feeding issues, he insisted that nursing and physical therapy staff "insure that proper position is maintained during meal times and, specifically that meals shall never be fed with a person who's [sic] head is in extension and never while sitting in posterior pelvic tilt." Tr. 10/14/93 (Bellomo) at 30. These practices continued, however, up until the defendants' expert's last tour of Ebensburg in July 1993. Tr. 10/18/93 (Sheppard) at 86-87, 93, 96. Moreover, contrary to Mr. Bellomo's assertion that he personally "insisted" on the physical therapist's involvement in positioning during mealtimes, Mr. Amall has made it clear that the physical therapists are in no way involved with meal time positioning. Tr. 10/14/93 (Bellomo) at 30; Tr. 10/13/93 (ArnaU) at 95.
2. Ebensburg Residents Are Fed On Their Backs. Contrary To Accepted Practice.
Feeding people flat on their backs is an unsafe practice that can result in aspiration and gastrointestinal problems. Tr. 7/27/93 (Sulkes) at 95; Tr. 7/28/93 (McAllister) at 199; U.S. Exh. 762. The Commonwealth's sur-rebuttal expert in feeding agrees that feeding people flat on their backs is an unsafe practice. Tr. 12/16/93 (Hinkle) at 33; U.S. Exh. 1120. It is also difficult for a person to adequately manage food and fluids where the head is in a flat position because gravity pulls the jaw down and the tongue back, thereby affecting
XI-8

the mobility of the tongue and the ability to retain food in the mouth and properly process the bolus. Tr. 7/29/93 (McGowan) at 98. Virtually every Ebensburg administrator, professional and paraprofessional who was deposed on the topic, including Mr. Bellomo, agreed that it is an inappropriate and dangerous practice to feed people on their backs. U.S. Exh. 602 (Bellomo Dep.) at 139; U.S. Exh. 604 (Bonfanti Dep.) at 74; U.S. Exh. 610 (Fagan Dep.) at 79; U.S. Exh. 613 (Frye Dep.) at 205; U.S. Exh. 629 (Schofield Dep.) at 30; U.S. Exh. 641 (Wagner Dep.) at 68. Ms. McGowan, however, observed Ebensburg staff feeding residents flat on their backs. Tr. 7/29/93 (McGowan) at 94, 97. For example, on August 17, 1992, she observed Joe T. being fed flat on his back despite a feeding program which required his head to be elevated at least thirty degrees. Tr. 7/29/93 (McGowan) at 97. On that same day, she saw Barry D. also being fed in a perfectly flat position despite requirements in his feeding program for elevating both his cart and his head. Tr. 7/29/93 (McGowan) at 97. The foster grandmother who was responsible for feeding him reported that she always fed him in this position. Id. Barry had just returned from the hospital where he had been admitted for a GI bleed. Id. Several years earlier, Dr. Sulkes had observed Barry being fed flat on his back in a cart. Tr. 7/27/93 (Sulkes) at 102.f/ Mr. O'Brien confirms that there are individuals who have been fed in a flat position at Ebensburg "for years and years and years." U.S. Exh. 624 (O'Brien Dep.) at 53. Ms. Fagan, a LOTA in Keystone, has also seen Ebensburg residents being fed flat on their backs.
V At that time, Barry was also being fed by a foster grandmother who received tips on how to feed him from another foster grandmother, not from professional staff. Tr. 7/27/93 (Sulkes) at 102.
XI-9

U.S. Exh. 610 (Fagan Dep.) at 74, 77. In particular, she confirms that both Barry D. and Joe T. were fed flat on their backs during 1992. U.S. Exh. 610 (Fagan Dep.) at 77-78.
Ms. McGowan specifically advised Mr. Bellomo of her concerns about people being fed flat on their back during her tour in mid-August 1992. U.S. Exh. 602 (Bellomo Dep.) at 139. As of at least several months later, however, individuals at Keystone continued to be fed on their backs, including specific residents about whom Ms. McGowan had concerns in August. For example, Mr. Bellomo observed Barry D. continuing to be fed flat on his back as late as October 1992. U.S. Exh. 604 (Bonfanti Dep.) at 66-67; U.S. Exh. 604 (Bonfanti Dep.) Exh. 4. "He didn't even have a wedge under him or pillow or anything, to have that head elevated." U.S. Exh. 604 (Bonfanti Dep.) at 67, lines 16-17. The staff person feeding Barry was assigned to the 11:00 - 7:30 shift and was working overtime. U.S. Exh. 604 (Bonfanti Dep.) at 66. The staff person was not familiar with feeding Barry and did not consult his supplemental feeding procedure. U.S. Exh. 604 (Bonfanti Dep.) at 66. Mr. Bellomo also had concerns in mid-October 1992 that Ron P. was continuing to be fed in a position which was almost flat on his back. U.S. Exh. 184; U.S. Exh. 604 (Bonfanti Dep.) at 65; U.S. Exh. 604 (Bonfanti Dep.) Exh. 3. Ron P. can no longer eat orally and now has a feeding tube. Tr. 7/29/93 (McGowan) at 116. Ms. Wagner confirms that Ron has a chronic history of choking and was placed on a gastrostomy tube as a result of his repeated aspirations. U.S. Exh. 641 (Wagner Dep.) at 36, 56. A nursing supervisor also advised Mr. Bellomo in October 1992 that she saw Keystone residents being fed flat on their backs. U.S. Exh. 172. Even after the supervisor instructed a staff person to elevate a resident, she observed the same staff person subsequently feeding another resident in a flat position. Id.
XI-10

Staff have also placed Ebensburg residents flat on their backs immediately after their meals. This is a dangerous practice because it contributes to gastroesophageal reflux and poses the risk of aspirating residual food in the mouth and airway. Tr. 7/27/93 (Sulkes) at 96; Tr. 7/29/93 (McGowan) at 112-113. For example, Ron E. is shown on the United States' feeding videotape in a flat position in his cart with his head hyper-extended immediately after his meal. Tr. 7/29/93 (McGowan) at 112; U.S. Exhs. 229, 258. He is experiencing respiratory difficulty and coughing in an attempt to clear his airway. Tr. 7/29/93 (McGowan) at 112-113. He has a history of choking and emesis and hospitalizations for bowel obstruction. Id. at 111. Ron P. is also shown on the feeding videotape in a flat position in his cart immediately after his meal in August 1992. Tr. 7/29/93 (McGowan) at 116; U.S. Exhs. 234, 258. He has been hospitalized twelve times since 1990 for pneumonia, bowel paralysis, and respiratory insufficiency. Tr. 7/29/93 (McGowan) at 116. When Ms. McGowan returned to Ebensburg during November 1992, Ron had just returned from the hospital for aspiration pneumonia and was being fed through a gastrostomy tube. Tr. 7/28/93 (McAllister) at 115; Tr. 7/29/93 (McGowan) at 116; U.S. Exh. 697. He continues to vomit and experience a great deal of medical problems. Tr. 7/29/93 (McGowan) at 116.
Even where staff make an attempt to elevate the person's head by propping it up, if the rest of the body is flat or fairly flat during the feeding process, as is the case with Ron E., a high risk remains that the food can travel back out of the esophagus or stomach and aspiration can result. Tr. 7/28/93 (McAllister) at 199; U.S. Exhs. 228, 761. In addition, where Ebensburg staff raise the carts in which individuals are being fed to elevate the trunk of the body, often the individual's head is still in the equivalent of a "flat" position, because
XI-11

it is parallel to the ceiling, as is the case with the way in which Barry D is fed. Tr. 7/29/93 (McGowan) at 94, 111; U.S. Exhs. 227, 258. Dr. Sheppard agrees that feeding someone in a reclining position who is already having difficulty managing swallowing can potentially compromise the health of the person and creates a risk of aspiration. Tr. 10/18/93 (Sheppard) at 56.
Elevated right sidelying is an alternative feeding position for individuals with significant physical disabilities who can not sit up. Tr. 7/28/93 (McAllister) at 199; U.S. Exhs. 763, 764. In this position, gravity assists with bringing the food into the stomach and with the stomach emptying. Id. It is also more difficult for the head to be in hyperextension in this position. Tr. 7/28/93 (McAllister) at 200. A sidelying position thus assists people with severe scoliosis and contractures to handle food more efficiently. Id. No one at Ebensburg is fed in a sidelying position nor has it ever been considered. Id.; U.S. Exh. 610 (Fagan Dep.) at 94; U.S. Exh. 613 (Frye Dep.) at 213; U.S. Exh. 641 (Wagner Dep.) at 154. Ms. Wagner, however, admits that feeding someone in sidelying is a "bona fide technique" and might be a useful technique for some Ebensburg residents who are currently fed on their backs in carts. U.S. Exh. 641 (Wagner Dep.) at 156.
3. Ebensburg Residents Are Being Fed With Their Trunks Improperly Aligned And Their Heads In Extension Contrary To Accepted Professional Practice.
The best position for a safe swallow in which the airway is protected is to place the individual in as midline and symmetrical position as possible where the person's back is at a 90 degree angle, hips anchored to the chair, and feet planted on the floor. U.S. Exh. 641 (Wagner Dep.) at 138, 144. Where an individual is sitting in a wheelchair or regular chair
XI-12

but is in a slouched position where the trunk is forward (known as "posterior pelvic tilt"), pressure is placed on the diaphragm which interferes with the person's ability to breathe during the eating process. Tr. 7/29/93 (McGowan) at 95, 101, 163. Dr. Rubin explains that the "feeding process is a complex one" which requires good coordination between the muscles involved in swallowing and the muscles involved in breathing. Tr. 12/13/93 (Rubin) at 98-99. He further explains that the breathing apparatus is intimately related to the swallowing apparatus and coordination between the two is essential to preclude the possibility of breathing in food. Tr. 12/13/93 (Rubin) at 99.
Dr. Sheppard recognizes that a person's ability to coordinate breathing and swallowing is critical during the eating process. Tr. 10/12/93 (Sheppard) at 208. Dr. Sheppard further agrees that sitting in posterior pelvic tilt also makes it more difficult to swallow. Tr. 10/18/93 (Sheppard) at 30. This is because when a person is sitting in posterior pelvic tilt, the neck, and consequently the head, are automatically placed in extension, even though the head may appear to be in a neutral position. Tr. 7/29/93 (McGowan) at 101. An improperly aligned trunk during the feeding process also impedes the digestive process and makes it more likely that gastroesophageal reflux will occur, where the food travels back up the esophagus. Tr. 7/29/93 (McGowan) at 95. Ms. McGowan observed individuals in wheelchairs and chairs improperly positioned during mealtimes throughout her tours of Ebensburg in 1992 and 1993. Tr. 7/29/93 (McGowan) at 92, 93, 94, 95, 143. For example, despite the fact that Mr. Bellomo was aware of specific concerns by outside surveyors about the way in which Michael F. was positioned some six months prior to Ms. McGowan's first tour of Ebensburg, she nevertheless observed him being fed in
XI-13

a grossly inappropriate position. Id. at 152-153; U.S. Exh. 162. His pelvis was tilted up at least forty-five degrees and his shoulder and pelvis were rotated to almost a ninety degree angle to one another. Tr. 7/29/93 (McGowan) at 152-153. His wheelchair was so low that his head barely reached above the table. Id. at 152. Moreover, the picture accompanying his feeding plan to instruct staff in how to feed him illustrates him being fed with his head in extension. Id. at 149; U.S. Exh. 137.
Each and every expert for both parties who testified on the topic of feeding uniformly agree that it is critical that the head is in good alignment during eating and feeding to enable the food to travel properly into the esophagus and stomach. Tr. 7/27/93 (Sulkes) at 96; Tr. 7/28/93 (McAllister) at 197; U.S. Exhs. 753, 758; Tr. 7/29/93 (McGowan) at 93; Tr. 10/12/93 (Sheppard) at 206-208; Tr. 12/16/93 (Hinkle) at 15; 33; U.S. Exh. 1120. All experts further agree that when the head and neck are tipped back into hyperextension, the airway is open and there is a risk that instead of going down through the esophagus, the food will enter into the trachea and the lungs, resulting in aspiration. Tr. 7/27/93 (Sulkes) at 96; Tr. 7/28/93 (McAllister) at 197; U.S. Exh. 756; Tr. 7/29/93 (McGowan) at 93; Tr. 10/12/93 (Sheppard) at 206; Tr. 12/16/93 (Hinkle) at 16. The ability of an individual to safely and adequately swallow is made even more difficult when an individual's head is hyper-extended and rotated to one side. Tr. 7/29/93 (McGowan) at 94.
Many Ebensburg residents are unable to independently hold their heads in a proper position during feeding and they need the assistance of staff or a positioning device to maintain their head in appropriate alignment. Tr. 7/29/93 (McGowan) at 94. Both of the Commonwealth's feeding experts agree that these residents must have adequate staff and
XI-14

equipment support to position them safely during mealtimes. Tr. 10/12/93 (Sheppard) at 2324; Tr. 12/16/93 (Hinkle) at 21-22. Often, however, Ebensburg residents are not properly positioned in their wheelchairs during mealtimes, losing the benefit of whatever support the wheelchair is intended to provide. For example, Andrea S.V appears on the feeding videotape with her head below the headrest in her wheelchair during the mealtime. Tr. 7/29/93 (McGowan) at 119-120; U.S. Exh. 239. Dr. Sheppard agrees that she was not appropriately positioned in her wheelchair. Tr. 10/12/93 (Sheppard) at 58. Despite the fact that Dr. Sheppard claims that this is an "isolated incident," Andrea was in the same position during a mealtime three months earlier and is pictured in this position in the pictures that Dr. Sheppard reviewed. Tr. 10/12/93 (Sheppard) at 58; U.S. Exh. 239. Raymond W. is also pictured being fed with his head below the headrest in the pictures Dr. Sheppard reviewed. U.S. Exh. 248. Beth S. is also being fed on the feeding videotape without her head in the headrest. Instead, her head is left to drop over on top of her shoulder as she is leaning to the side in her wheelchair, making it very difficult to swallow. Tr. 7/29/93 (McGowan) at 121.
Overall, the wheelchairs and carts at Ebensburg are so deficient that it is difficult to position residents properly during mealtimes. Tr. 7/29/93 (McGowan) at 95. Ms. Graham, Ebensburg's Director of Occupational Therapy, agrees that it is very difficult to get some Ebensburg residents into the correct, upright position and maintain them in that position during feeding because of deficient wheelchairs. U.S. Exh. 617 (Graham Dep.) at 166-167.
6J Andrea S. is incorrectly identified as Beth S. in the July 29, 1993 Transcript at 119. Tr. 7/30/93 (McGowan) at 22.
XI-15

When Ms. McGowan attempted to demonstrate to staff how to position Beth S. properly in her wheelchair by positioning her pelvis against the back of the wheelchair, she found that the wheelchair was too deep to allow Beth to sit in a proper position. Tr. 7/29/93 (McGowan) at 121. Ms. Graham has concerns about the wheelchairs in Keystone and whether they are adequate to enable safe and effective feeding of individuals. U.S. Exh. 618 (Graham Dep.) at 23-24. She thinks that the wheelchairs should be reassessed and that the safety and well-being of clients would be better protected with more knowledge at Ebensburg about appropriate positioning. U.S. Exh. 618 (Graham Dep.) at 23-24.
Dr. Sulkes, Ms. McAllister, Ms. McGowan, and Dr. Sheppard all saw people at Ebensburg eating or being fed with their head in extension. Dr. Sulkes observed residents being fed with their head in extension on many occasions during his multiple tours of Ebensburg. Tr. 7/27/93 (Sulkes) at 99. Ms. McAllister observed Barry D. and Raymond W. being fed with their heads in extension. Tr. 7/28/93 (McAllister) at 197-198; U.S. Exhs. 754, 755. As recently as July 1993, Dr. Sheppard saw staff tipping Duane P.'s head back as he was being fed. Tr. 10/18/93 (Sheppard) at 93. Ms. McGowan also repeatedly saw individuals being fed with their heads in extension and in extension and rotated, including Paul G., Harold B., William A., Duane P., Andrea S., Lois S., Beth S., and Sam B.. Tr. 7/29/93 (McGowan) at 94, 116-123. The Commonwealth's sur-rebuttal feeding expert agrees with Ms. McGowan that even if residents thrust their heads backward when food is placed in their mouths and then subsequently bring their heads forward, this is a potentially dangerous practice that should be avoided where possible. Tr. 7/29/93 (McGowan) at 225226; Tr. 12/16/93 (Hinkle) at 16-17. Dr. Sheppard also agrees that this practice can be
XI-16

problematic. Tr. 10/12/93 (Sheppard) at 67-68. For example, she admitted that when David K. thrusts his head back but brings it forward for reception on the feeding videotape that "he's getting himself in trouble with that movement" and moderation of his head movement and modification of his feeding plan should be considered. Tr. 10/12/93 (Sheppard) at 68; U.S. Exhs. 249, 250. Ms. Graham also noted that he was not positioned properly nearly every time he came into the dining room in late 1992, months after the videotape was taken. U.S. Exh. 617 (Graham Dep.) at 165. Dr. Hinkle believes that when this practice is observed "you owe it to such individuals" to evaluate them and teach them some other way of handling food and liquids rather than simply tilting their head back to receive food and liquids. Tr. 12/16/93 (Hinkle) at 17. Dr. Hinkle knows of no articles that address tilting the head back to receive food and then up-righting the head for the swallow as a safe technique. Tr. 12/16/93 (Hinkle) at 22.
Ms. Wagner, the head of Ebensburg's Dysphagia Team, confirms that the goal in positioning during feeding is to keep a protected airway. U.S. Exh. 641 (Wagner Dep.) at 145. In order to protect the airway, the head should never be in hyperextension (chin to the air) during the feeding process. U.S. Exh. 641 (Wagner Dep.) at 145, 146. Ms. Wagner explained the dangers of the head being in hyperextension as follows:
By putting the head in hyperextension you are physiologically opening the airway wide open. You just do not do that and then put food in the mouth. You are increasing that person's chances [for aspiration]. U.S. Exh. 641 (Wagner Dep.) at 153, lines 19-23. According to Ms. Wagner, it is
important when you are feeding someone to "control all factors that you can possibly control
XI-17

to ensure a protected airway" for that person. U.S. Exh. 641 (Wagner Dep.) at 145, lines 78.
Unlike Ms. McGowan who was qualified in physical and nutritional management for this case, Dr. Sheppard was only qualified in nutritional management and feeding, not physical management or positioning. Tr. 10/12/93 (Sheppard) at 7. Dr. Sheppard admits that she is not an expert in the best positions for maintaining skeletal alignments. Tr. 10/12/93 (Sheppard) at 213. She is also not an expert in situations where complex solutions are needed for mealtime positioning. Tr. 10/12/93 (Sheppard) at 213. Dr. Sheppard did not evaluate the position of residents' bodies from the neck down to evaluate whether they were in the most appropriate position for feeding. Tr. 10/12/93 (Sheppard) at 3, 4. Dr. Sheppard therefore relied on Ebensburg's "professional judgments" about positioning during feeding. Tr. 10/12/93 (Sheppard) at 213; Tr. 10/18/93 (Sheppard) at 3. Dr. Sheppard acknowledges that there is no physical therapist on the Dysphagia Team. Tr. 10/18/93 (Sheppard) at 4. She did not know, however, that the physical therapists were not involved at all with positioning during mealtimes. Tr. 10/12/93 (Sheppard) at 210-211; Tr. 10/13/93 (Arnall) at 95. Although Dr. Sheppard assumes that occupational therapists are adequate to make these types of decisions, there is no occupational therapist on the Dysphagia Team, only an occupational therapy assistant. Tr. 10/12/93 (Sheppard) at 209; Tr. 10/18/93 (Sheppard) at 4-5, 123. Dr. Sheppard was also unaware that the Director of Occupational Therapy at Ebensburg felt that there was a need to bring in consultants with special expertise in mealtime positioning. Tr. 10/12/93 (Sheppard) at 133; U.S. Exh. 617 (Graham Dep.) at 155. Mary Frye, the LOTA on the Dysphagia Team admits limitations in her knowledge
XI-18

about positioning. For example, she does not know what sitting in posterior pelvic tilt is. U.S. Exh. 613 (Frye Dep.) at 208. She also does not know about positioning for an individual with gastroesophageal reflux and does not know whether improper positioning can cause reflux. U.S. Exh. 613 (Frye Dep.) at 186, 204. Ms. Wagner also does not know whether improper positioning while feeding can cause reflux. U.S. Exh. 641 (Wagner Dep.) at 153-154. Mr. Frye does not know whether it is possible to aspirate after refluxing. U.S. Exh. 613 (Frye Dep.) at 84. She also does not know that silent aspiration syndrome is. U.S. Exh. 613 (Frye Dep.) at 198. In addition, Ms. Frye has never read any literature on sidelying as a position during feeding. U.S. Exh. 613 (Frye Dep.) at 213.
D. Ebensburg Residents Are Being Fed Unsafely Bv Staff. Both Dr. Sulkes and Ms. McGowan also repeatedly observed Ebensburg staff using unsafe practices in feeding individuals. Tr. 7/27/93 (Sulkes) at 99; Tr. 7/29/93 (McGowan) at 92, 95-100. In particular, Ebensburg residents are fed with the following types of unsafe practices: • staff feed residents at an excessively rapid rate; • staff feed residents food or fluid in too large a quantity for them to swallow; • staff feed residents with spouted cups which do not allow staff to control the volume of liquid; • staff do not allow residents sufficient time to swallow in between bites; • staff feed residents food or fluids while residents are coughing; • staff feed residents by pushing their heads back into hyperextension;
• staff feed residents by standing above their eye level, forcing residents to place
their head in extension to look up at the feeder;
XI-19

• staff feed residents by scraping food off of their faces; • staff do not follow feeding programs; and • too many different staff feed residents with complex needs. Tr. 7/27/93 (Sulkes) at 99-105; Tr. 7/29/93 (McGowan) at 95-96, 103, 114, 118.
1. Ebensburg Staff Feed Residents At An Excessively Rapid Rate And With Overloaded Spoons Which Are Dangerous Practices.
During his testimony, Dr. Rubin explained that the complex eating process involves many muscles of the face, including the lips to open and close, the jaw to chew, the tongue to move the food around and to move the food back to the back of the throat, and the muscles of swallowing which must be coordinated with breathing. Tr. 12/13/93 (Rubin) at 98-99. In people with developmental disabilities who have significant physical limitations, any or all of these functions may be impaired. Tr. 12/13/93 (Rubin) at 99. They are also influenced by the position in which they are fed, the manner in which they are fed, the medications they are receiving, and by their feeling of well-being on a particular day. Tr. 12/13/93 (Rubin) at 100; Tr. 7/27/93 (Sulkes) at 96-98. Individuals with developmental disabilities who have these impaired functions, have a very limited range of options to respond to both the volume as well as rate of food that they can take in. Tr. 12/13/93 (Rubin) at 99-100. They do not have the choices that other people have in moderating their intake of food if they are dependent upon a caregiver to feed them. Tr. 12/13/93 (Rubin) at 100. If they are unable to express their discomfort with being fed too large an amount or too fast, their options are to spit it out or to cough, gag, and choke. Tr. 12/13/93 (Rubin) at 100-101. Dr. Rubin saw examples on the United States' feeding videotape of individuals
XI-20

with limited abilities being fed large volumes and acting in a "protective manner to avoid difficulty or pain or discomfort or aspiration." Tr. 12/13/93 (Rubin) at 87. These "protective" reactions, which Dr. Sheppard described as "compensatory" mechanisms, include spitting some of the food out, coughing, and swallowing with tremendous difficulty. Tr. 12/13/93 (Rubin) at 87. The residents on the videotape were put in a position where they had to exhibit protective responses because of the manner in which they were being fed. Tr. 12/13/93 (Rubin) at 86-87.
Throughout her numerous observations of mealtimes at Ebensburg, Ms. McGowan repeatedly observed staff feeding residents at an unsafe pace or in amounts that they were not able to handle. Tr. 7/29/93 (McGowan) at 95-96. Often, residents were not allowed sufficient time to swallow the food or liquid in their mouths before forcing another spoonful of food or sip of liquid. Ms. Sponsky admitted that she, too, had a concern about the pace of feeding as she toured with Ms. McGowan in August 1992. U.S. Exh. 636 (Sponsky Dep.) at 100. Dr. Hinkle, the Commonwealth's sur-rebuttal feeding expert admitted that after reviewing the United States' feeding videotape he had concerns about the size of the bolus that was being fed to individuals. Tr. 12/16/93 (Hinkle) at 15. Ms. Wagner, the head of Ebensburg's Dysphagia Team, acknowledges that aspiration can result from feeding someone at an excessive rate or with an excessive volume so that the person can not breathe without also breathing in food. U.S. Exh. 641 (Wagner Dep.) at 68. Among the examples that both Dr. Sulkes and Ms. McGowan observed where staff were feeding residents at excessive rates or with an excessive volume are:
• Frank H. on August 21, 1992 on the feeding videotape being forced to eject excess food and fluid that staff was attempting to feed him and he was not able to swallow.
XI-21

Tr. 7/29/93 (McGowan) at 114; U.S. Exhs. 231, 232. At one point, the piece of food that staff tried to feed him was so large that it fell off the spoon and landed on Frank's chest before it even got to his mouth. Frank was also unable to manage the amount of fluids that he was being fed and it dribbled out of both sides of his mouth. Tr. 7/29/93 (McGowan) at 114; U.S. Exh. 258. Despite the obvious difficulties that Frank was experiencing, the Commonwealth's expert characterized this sequence in the United States' videotape as Frank appearing "fairly comfortable in terms of ease of eating." Tr. 10/12/93 (Sheppard) at 49. The Commonwealth's sur-rebuttal feeding expert, however, does not think it is "acceptable" to just continue to allow a person to eject food. Tr. 12/16/93 (Hinkle) at 27. He thinks that it is important that the amount of food that a person is fed in each spoonful is an appropriate size so that the food remains in the mouth. Tr. 12/16/93 (Hinkle) at 24. When Dr. Hinkle was presented with a description of Frank's history during his testimony (including the fact that he had been hospitalized for aspiration pneumonia), Dr. Hinkle agreed that he would have concerns if Frank was ejecting food while being fed. Tr. 12/16/93 (Hinkle) at 30. Dr. Hinkle did not think it would be appropriate to continue feeding Frank in this fashion without an assessment by a qualified professional. Tr. 12/16/93 (Hinkle) at 30. Frank was not assessed by the Dysphagia Team until July 6, 1993 — eleven months after the feeding videotape in which he was ejecting food. Tr. 10/18/93 (Sheppard) at 119.
• Ron E., who also has a history of aspiration pneumonia, was fed in ten minutes. Tr. 7/29/93 (McGowan) at 100.
• Barry D. was persistently not swallowing before another spoonful of food was placed in his mouth. Tr. 7/29/93 (McGowan) at 98. Claire Domino, a supervisor at Keystone admitted that there have been problems with Barry not eating and letting the food run back out of his mouth. U.S. Exh. 609 (Domino Dep.) at 55. Dr. Sulkes had concerns about Barry when he observed him in November 1992. Tr. 7/27/93 (Sulkes) at 103. Dr. Sulkes observed him to be "very emaciated" and was concerned about his nutritional status. Tr. 7/27/93 (Sulkes) at 103, lines 2-3. When Dr. Sheppard observed him in July 1993, Barry was coughing during the meal, coughing repeatedly after his meal, and ate very little. Tr. 10/18/93 (Sheppard) at 99. He was not being fed by the person who regularly feeds him. Tr. 10/18/93 (Sheppard) at 104.
• James M. was not permitted sufficient time to swallow in between bites of food. Tr. 7/29/93 (McGowan) at 99.
• Neal S. had spoonfuls of food pushed into his mouth before he had swallowed what was already in his mouth. Tr. 7/29/93 (McGowan) at 99.
• Patti W. was being fed additional bites of food before swallowing what was in her mouth. Tr. 7/29/93 (McGowan) at 100.
• Harold B. received 14 spoonfuls of food in 96 seconds, with an average of six seconds between spoonfuls. Tr. 7/29/93 (McGowan) at 117-118. Many of the spoonfuls
XI-22

feeding prescription, it would not reflect accepted professional judgment." Tr. 10/18/93 (Sheppard) at 44, 45, lines 2, 11-12.
• Ms. McGowan observed staff feeding Harold M. by cupping his chin and pulling his head back. Tr. 7/29/93 (McGowan) at 99.
• Ms. McGowan observed staff feeding William A. fluids by cupping his chin and pushing it up. Tr. 7/29/93 (McGowan) at 118.
• Dr. Sulkes observed staff feeding Jeanne D. in both September and November 1992 by holding her chin up and pushing her head back. Tr. 7/27/93 (Sulkes) at 100.
• Dr. Sulkes also observed staff feeding Denise D. by pushing her head back. Tr. 7/27/93 (Sulkes) at 103.
• Dr. Sheppard observed a feeder in July 1993 cradling Duane P.'s head and tipping it back. Tr. 10/18/93 (Sheppard) at 93.
Mr. Tackett confirmed that unsafe staff techniques were not only used at Ebensburg,
they were also taught to new staff. For example, Mr. Tackett was instructed by other direct
care staff to feed Keith U. by cradling Keith's head in his arm and tilting Keith's head back
to roughly a forty-five degree angle. Tr. 8/3/93 (Tackett) at 12. While holding Keith in this
position, Mr. Tackett was taught to feed him by using the following technique:
continue shoveling and shoveling and shoveling until he can't hold any more, and then he will swallow. It's the same way with drinking. His head has to be tilted back and you have to pour the milk, or what have you, until he can't hold any more in his mouth, and then he will swallow.
Id. Mr. Tackett "definitely" did not feel that he had sufficient knowledge to safely feed
Keith U. Id. at 13:
I was faced with an individual who would not swallow until his mouth was overflowing. I had to tilt his head back, and I was scared to death, quite literally, he was going to start choking;
and if he was choking, then what would I do. No, I didn't feel
I had the proper training whatsoever.
XI-24

agrees that scraping the face can cause the potential for involuntary reflexes in individuals
whose oral motor skills are already compromised. Tr. 10/12/93 (Sheppard) at 43-44. 5. Ebensburg Staff Do Not Follow Requirements In Residents' Feeding Plans.
Both the United States' and Commonwealth's feeding experts who looked at implementation of feeding programs, as well as Ebensburg staff and administrators, agree that there have been and continue to be problems in staff actually implementing the requirements of feeding plans.!/ Ms. Graham found that during her observations at Keystone in late December 1992, some staff were not looking at residents' feeding plans on a regular basis and that there were some situations where staff should have been referring to the plans but were not. U.S. Exh. 618 (Graham Dep.) at 27-28. The Unit Manager of Keystone admits staff were not consistently implementing procedures for feeding individuals at least through the late fall of 1992. U.S. Exh. 604 (Bonfanti Dep.) at 59. Mr. Tackett admits that he did not follow the feeding plan of Keith U., a Keystone resident whom "he was scared to death" to feed, and that he observed other staff also not following his plan. Tr. 8/3/93 (Tackett) at 14, 23.
Both Dr. Sulkes and Ms. McGowan repeatedly saw Ebensburg staff not following residents' feeding programs during her mealtime observations. For example:
• James M. was fed on multiple occasions by LOTA's with his head in significant extension despite a Mercy Hospital evaluation, Ebensburg occupational therapy evaluation, and feeding plan warning against feeding him in this position and requiring the feeder to use manual pressure to keep his head in a neutral position. Tr. 7/29/93 (McGowan) at 99, 125; Tr. 7/27/93 (Sulkes) at 144.
If Feeding plans at Ebensburg are called "supplemental procedures." Because this term is also used for nursing and behavioral interventions, for purposes of clarity the term "feeding plan" will be used throughout these findings of fact.
XI-26

• The head of the Dysphagia Team feeding John H. in August 1992 allowed him to hyper-extend his head despite a Mercy Hospital evaluation and feeding plan specifically instructing staff not to permit him to hyper-extend his head. Tr. 7/29/93 (McGowan) at 127126. When Dr. Sheppard observed John being fed nearly one year later, in July 1993, she again observed him being fed with his head in extension and thought that this represented unsafe eating which placed him at risk for distress during the mealtime. Tr. 10/18/93 (Sheppard) at 86-87.
• The LOTA feeding Ellen H. failed to ensure that she was positioned properly for eating. Tr. 7/29/93 (McGowan) at 123. Her feeding plan required Ellen to be stabilized and sitting upright but she was slouched in her chair with her feet unsupported. Id.
• Duane P., who has gastroesophageal reflux and had inflammation of the lower part of his esophagus following a GI bleed in June 1992, was flailing his hands and head while being fed on the feeding videotape in August 1992. Tr. 7/29/93 (McGowan) at 119. His feeding plan specifically calls for his arms to be kept down, including affixing a weight to one of his arms. Id. In addition, staff are supposed to place a hand on his head and apply gentle pressure to his forehead to stabilize his head. Id- None of these procedures were being followed. Id. These procedures were also not being followed nearly one year later when Dr. Sheppard observed Duane being fed in July 1993 and the same feeding plan was in effect. Tr. 10/18/93 (Sheppard) at 93; U.S. Exh. 1002. Instead, Dr. Sheppard observed the feeder "cradling his head," with "his face tipped back in varying degrees, from fifteen degrees to thirty degrees." Tr. 10/18/93 (Sheppard) at 93. Dr. Sheppard observed Duane coughing during this meal. Tr. 10/18/93 (Sheppard) at 95. Ms. Wagner has also observed Duane frequently coughing and possibly choking during meals. U.S. Exh. 641 (Wagner Dep.) at 60, 61.
• David V., who had been hospitalized earlier in the year for aspiration pneumonia, was being fed without any head support by a staff person who did not pay any attention to his feeding program which specifically required such support while he swallowed. Tr. 7/27/93 (Sulkes) at 143.
• Harold B. was fed with his head back 45 degrees without staff attempting to keep his head in an erect position. His feeding plan requires staff to place gentle pressure to maintain his head at midline. Tr. 7/29/93 (McGowan) at 118; U.S. Exh. 236.
• Jeanne D. was fed during both September and November 1992 by staff who were pushing her head back by pulling up her chin. Tr. 7/27/93 (Sulkes) at 100. Her feeding plan requires staff to place a hand on Jeanne's head to stabilize it in a midline position. Tr. 7/27/93 (Sulkes) at 100.
• Andrea S. was fed with her neck in significant extension despite the fact that her feeding plan requires staff to give her neck support to maintain her in an appropriate position. Tr. 7/27/93 (Sulkes) at 104.
XI-27

• On August 18, 1992, Frank H. was fed in his cart at approximately a twenty degree angle. Tr. 7/29/93 (McGowan) at 98. On August 21, 1992, Frank was fed with his cart at less than thirty degrees. Id- at 113-114. His feeding plan required the cart to be elevated to forty-five to sixty degrees. Id. Dr. Sulkes has had concerns about Frank's position in his cart while he is being fed. Tr. 7/27/93 (Sulkes) at 105. Claire Domino, a supervisor at Keystone, admits that there have been problems keeping Frank adequately elevated and positioned during mealtimes. U.S. Exh. 609 (Domino Dep.) at 55.
• Joe T. was fed flat on his back despite a feeding program which requires his head to be elevated at least thirty degrees. Tr. 7/29/93 (McGowan) at 97.
• Barry D. was also fed in a perfectly flat position despite requirements in his feeding program for elevating his cart and his head. Tr. 7/29/93 (McGowan) at 97. The staff person feeding him reported that she always fed him in this position. Id.
• Nearly one year later, staff were still not raising carts to the level of elevation required in their feeding plans. Dr. Sheppard observed Tim. P. being fed in July 1993 with his cart not elevated in accordance with his feeding plan. Tr. 10/18/93 (Sheppard) at 96.
As late as July 1993, staff were failing to implement feeding plans as written at least
35% of the time, even as the Commonwealth's own feeding expert was observing them.V
This means that more than one out of every three Ebensburg residents still were not being
fed in accordance with their feeding plans as this case was going to trial.
The results of the "informal statistics" that Dr. Sheppard computed on her
observations are suspect. She had not yet analyzed a rate of compliance with feeding plans
as of September 3, 1993, which was a week before she testified and several months after the
V Out of the 22 residents she observed, Dr. Sheppard omitted the data for one resident because he fell asleep during the meal. Tr. 10/18/93 (Sheppard) at 100. Another resident did not have a feeding plan. U.S. Exh. 1002. Therefore, the total number of residents on which Dr. Sheppard took data was 20 residents. Of these 20 residents, Dr. Sheppard observed staff not following all of the requirements in the feeding plan for at least seven people, including: Jeff K. (thin liquids), Tr. 10/18/93 (Sheppard) at 89; John H. (wrong technique for placing food in his mouth), Id. at 84-85; Tim P. (cart not elevated to specified height), Id. at 89; Duane P. (head cradled and tilted back into extension), Id. at 93, 96; Kathy M. (special cup not used), Id. at 97; Linda S. (staff "pouring liquid onto her tongue), Id. at 97; and Phyllis S. (feeding technique not followed), Id. at 98.
XI-28

observations that were the basis of her data. Tr. 10/18/93 (Sheppard) at 83-84. Moreover, there were discrepancies between what Dr. Sheppard testified to at her deposition and at trial about how long after her observations she made any type of comparison between the procedures being used by staff and the requirements of feeding plans. Tr. 10/18/93 (Sheppard) at 83-84. Dr. Sheppard relied on her notes of mealtime observations to make this comparison and there are discrepancies, as well, between what she testified to at her deposition and at trial about the contents of her notes and how she interpreted them. Tr. 10/18/93 (Sheppard) at 78, 80-81, 90-92. At one point, she retracted a statement that she made at her deposition that staff were feeding Frank H. by dropping food on his lips, in violation of his feeding plan. Tr. 10/18/93 (Sheppard) at 92. She admits that there were aspects of the feeding plans that she did not evaluate for some residents, such as use of special utensils. Tr. 10/18/93 (Sheppard) at 77-78. Moreover, when Dr. Sheppard compiled her statistics about how well Ebensburg staff were following feeding plans, she counted as being in "full compliance" such instances as staff feeding Jeff K. with thin liquids despite the fact that his feeding procedure states in big capital letters "No THIN LIQUIDS" and specifically instructs staff to thicken his liquids to a "pudding consistency." Tr. 10/18/93 (Sheppard) 88-89; U.S. Exh. 1002.!/ She also rated as "full compliance" her observations of the way in which Duane P. was being fed. Tr. 10/18/93 (Sheppard) at 94. Dr. Sheppard observed the staff person "cradling his head," with "his face tipped back in varying degrees, from fifteen degrees to thirty degrees." Tr. 10/18/93 (Sheppard) at 93. This is not at all
!/ Dr. Sheppard notes that as she focused on Jeff, a supervisor intervened after staff had already begun feeding Jeff thin liquids. Tr. 10/18/93 (Sheppard) at 88. In Dr. Sheppard's mind, this did not count as staff not following the procedure. Instead, she rated staff as being in full compliance "for the portion of the meal they were correct." Tr. 10/18/93 (Sheppard) at 88.
XI-29

what his feeding plan requires, which is for staff to "place gentle pressure on forehead for head stabilization." Tr. 10/18/93 (Sheppard) at 93; U.S. Exh. 1002. Despite these inconsistencies and questions about her informal statistics, Dr. Sheppard nevertheless found that as late as July 1993, Ebensburg staff were still not following more than one out of every ten prescriptive instructions in residents' feeding plans.
6. Staff Fail To Intervene Properly When Residents Are Exhibiting Distress During Mealtimes And Have Even Fed Residents While They Are Coughing.
Ms. McGowan repeatedly observed staff failing to intervene properly when residents are exhibiting distress during mealtimes. For example, following a meal in which he had difficulty, Tony (Anthony) R. appears on the feeding videotape continuing to cough and expectorate as he sat by himself at the table. U.S. Exhs. 247, 258. There were no staff around to even notice, let alone assist him. Tr. 7/29/93 (McGowan) at 129. When a staff person returned, she simply wheeled him back to his living unit without even noticing that he had been in distress. Staff jumped out of the way as James M. was coughing with his head in extension, rather than bringing his head forward. Id. at 129-130. Staff also did not assist Raymond W. in bringing his head forward as he persistently and forcefully coughed with his head in extension. Id. at 130-131. And Ebensburg staff did not assist David K. as he coughed thirteen times with residual food in his mouth. Id. at 132. Dr. Sheppard agrees that "certainly coughing should be attended to during the meal." Tr. 10/12/93 (Sheppard) at 195, lines 22-23. In some instances, staff have placed food in residents' mouths while they are hiccupping or coughing (Rhett T., David K.). Tr. 7/29/93 (McGowan) at 131-132. Ms. McGowan was so concerned about witnessing this practice that she immediately alerted
XI-30

Carole Sponsky, the Director of Nursing. Id. at 131. Dr. Sulkes has also observed Ebensburg residents being fed while coughing as recently as November 1992 (after Ms. McGowan expressed her concerns to Ms. Sponsky), including Sam B., who died in March 1993 from complications of pneumonia, and Tim P., who now has a feeding tube. Tr. 7/27/93 (Sulkes) at 99, 101.
7. There Is No Consistency In Staff Feeders Of Residents With Complex Feeding Needs.
Knowing the unique needs and characteristics of the individual who staff are feeding is particularly important in terms of making decisions about pacing the timing of feeding and teaching eating-related skills. Tr. 7/29/93 (McGowan) at 96; Tr. 7/30/93 (McGowan) at 32. Ms. McGowan saw problems in staff consistency during her mealtime observations. Tr. 7/28/93 (McGowan) at 96. Mr. Bonfanti admits that there is no consistency in terms of which direct care staff feed particular individuals in Keystone. U.S. Exh. 604 (Bonfanti Dep.) at 61. Ms. Graham believes that consistency in staff feeders would help at Keystone. U.S. Exh. 618 (Graham Dep.) at 57. Moreover, when other staff, such as supervisors and nurses, assist with feeding in Keystone, there is no procedure for deciding who they feed. Instead, they go to the living area, "ask the staff who hasn't been fed and they would just bring the person out and feed them." U.S. Exh. 604 (Bonfanti Dep.) at 64, lines 7-8. Ms. Malloy, who is the nurse supervisor at Keystone and feeds people there, explains the process of deciding who she will feed on any given day as follows: "It doesn't matter. I can feed whoever has to be fed. There might be - sometimes when I get back from lunch there might be six or seven left to be fed and so I will feed one of them." U.S. Exh. 622 (Malloy Dep.) at 83, lines 9-12. In Horizon, the process works a bit differently. In a September 14,
XI-31

1992 memorandum, Mr. Bellomo questioned Horizon's system of having staff at the door of the dining room who call down the hall for the staff assigned to the door of each living area to "send me one" when there is room for another person in the dining room. U.S. Exh. 164. One month earlier, Mr. Bellomo had asked Mr. Devine, who is in charge of all residential services, to look into why this same practice of staff standing at the doors in "guardlike fashion" existed. Id.
During her July 1993 tour, Dr. Sheppard found several instances where a resident was not being fed by the staff person who regularly feeds the resident. Tr. 10/18/93 (Sheppard) at 104. The staff person feeding John H. during Dr. Sheppard's observations in July 1993 left half-way through the meal time and was replaced by another feeder. Tr. 10/18/93 (Sheppard) at 105-106.
8. Even Where Ebensburg's Professional And Paraprofessional Staff Feed Residents. They Use Unsafe And Professionally Unsound Practices.
There are only three residents in Keystone who are fed by LOTA's: Tim P., Ellen H., and James M. U.S. Exh 617 (Graham Dep.) at 117-118. Each of these residents is pictured on the feeding videotape with LOTA's feeding them using unacceptable practices.
Tim P. is shown being fed additional fluid and food by a LOTA while his mouth was still full of food that he was unable to swallow. Tr. 7/29/93 (McGowan) at 115; U.S. Exh. 233. Dr. Sulkes also had concerns when he saw Tim being fed during both September and November 1992. Tr. 7/27/93 (Sulkes) at 100-101. In September 1992, Dr. Sulkes saw a LOTA feeding Tim by pouring fluid from a spouted cup into Tim's mouth without ensuring that Tim's mouth had closed. Tj. 7/27/93 (Sulkes) at 100-101. When Dr. Sheppard viewed Tim being fed on the United States' feeding videotape she admitted that "certainly there is a
XI-32

problem here." Tr. 10/12/93 (Sheppard) at 51. Dr. Sheppard also agreed that given Tim's "marked" and "complex" problems, there should be an assessment to determine whether he was experiencing oral motor difficulties because another feeding technique might make his eating better. Tr. 10/12/93 (Sheppard) at 51, 52; Tr. 10/18/93 (Sheppard) at 7. Although the head of Ebensburg's Dysphagia Team agreed during her deposition in January 1993 that she had observed Tim frequently coughing and possibly choking during meals, Tim did not even have a screening by Ebensburg's Dysphagia Team until June 1993 — 6 months later. U.S. Exh. 641 (Wagner Dep.) at 60, 61; U.S. Exh. 970. In between the time the videotape was taken and June 1993, Tim was placed on a feeding tube. Tr. 7/29/93 (McGowan) at 115.
Ellen H. is being fed on the feeding videotape by the same LOTA feeding Tim P. The LOTA failed to follow Ellen's feeding plan, did not use techniques to control her tongue thrust, abandoned Ellen as she was exhibiting distress, and pushed her head back into extension as she was feeding her. Tr. 7/29/93 (McGowan) at 123-125; U.S. Exh. 1010. The supervisor (Dan Waltimire) who attempted to feed Ellen at the point that she was abandoned had never been trained in her feeding procedure. U.S. Exh. 1010.
James M. is shown on several occasions in the feeding videotape being fed by two different LOTA's with his head in extension in all of the segments despite a dysphagia evaluation at Mercy Hospital advising staff that if he is fed with his head in extension, he will aspirate. Tr. 7/29/93 (McGowan) at 125; U.S. Exh. 243(a). Dr. Sulkes also observed James during both September and November 1992 being fed with his head in extension. Tr. 7/27/93 (Sulkes) at 102. His Mercy Hospital evaluation specifically states that "under no
XI-33

circumstances" should his head be allowed to extend backward during feeding. Id. An Ebensburg occupational therapy assessment confirmed that his head should be maintained in a midline position during feeding to assist with tongue mobility and lip closure. Id. James has a history of aspiration pneumonia and was hospitalized in May 1992 for respiratory problems. Id. In June 1992, an x-ray revealed a possible pneumonia and lung collapse. Id. An Ebensburg dysphagia evaluation identified that he is at high risk for aspiration pneumonia. Id. In the feeding videotape, he is spitting up food and coughing. Id- at 126, 129-130; U.S. Exh. 258. The LOTA's do not assist in keeping his head in midline and, at one point, one of the LOTA's actually jumps out of the way as James starts coughing. Tr. 7/29/93 (McGowan) at 129.
Cathy Wagner, a speech pathologist who is the head of the Dysphagia Team at Ebensburg, is shown on the feeding videotape feeding John H. Tr. 7/29/93 (McGowan) at 127; U.S. Exh. 245. She is engaging in conversations with other staff across the room during the feeding process and permits John's head to go back into extension. Id. John has been hospitalized eight times since 1989 for respiratory problems. Id. at 128. His most recent hospitalization, which occurred shortly after the videotape was taken, required removal of part of his lung and the use of a ventilator. Id. He was temporarily transferred to a nursing home. U.S. Exh. 144; Tr. 10/13/93 (Bellomo) at 150. A Mercy Hospital evaluation of John stresses that his head should not be allowed to extend during feeding. Tr. 7/29/93 (McGowan) at 127. This is because John has dysphagia and when he takes the food into his mouth and throws his head back, it leads to aspiration because of the lack of muscular control of the bolus. U.S. Exh. 370. In the videotape, Ms. Wagner is not
XI-34

following John's feeding plan which specifically requires the feeder to use "firm pressure with your hands on John's head to keep it in slight flexion" (tipped forward); "do not allow . . . [John] to hyper-extend his head during the swallow. Tr. 7/29/93 (McGowan) at 127; U.S. Exh. 370. Ms. Wagner is also not following her own written precautions in feeding John. In Ms. Wagner's evaluation of John, she specifically states that he should never be permitted to extend his head. Tr. 7/29/93 (McGowan) at 19. Instead of following her own requirements, Ms. Wagner allowed John to extend his head. Tr. 7/29/93 (McGowan) at 20.
Claire Domino, a Keystone QMRP who is responsible for monitoring staff practices during mealtimes, is shown on the videotape feeding Joseph R.™/ with his head in extension. Tr. 7/29/93 (McGowan) at 126-127; U.S. Exh. 244; U.S. Exh. 609 (Domino Dep.) at 8, 9, 13-15.
9. The Defendants Were Aware Of Problems In The Way In Which Ebensburg Residents Were Being Fed Prior To The United States Filing Its Lawsuit.
As far back as February 1990, the Commonwealth was on notice through the United States' CRIPA investigation that Ebensburg staff were failing to feed residents safely, thereby creating serious risks of aspiration and malnutrition. U.S. Exh. 638 (Sponsky Dep.) Sponsky Dep. Exh. 50 at 3. The United States advised defendants about concerns regarding the prevalence of aspiration pneumonia at Ebensburg and the fact that residents were coughing and choking during mealtimes. Id. At the time Ebensburg's Dysphagia Team was created in June 1990, the head of the team was aware that Ebensburg needed to improve its practices in the areas of "body positioning, placement of food in the mouth, rate of feeding, and attention
"/ Joseph R. is incorrectly identified as James R. in the transcript. XI-35

to potential problems during feeding" in order to conform with general guidelines of which she was aware. U.S. Exh. 641 (Wagner Dep.) at 21. Since at least April 1990, Ebensburg was also aware of other types of problems in the way residents were being fed based upon medical assistance deficiencies for which the facility had been cited by State surveyors. A memo at that time was sent to all direct care staff about necessary corrective actions, including the need to feed residents at eye level rather than standing above them, to follow feeding plans, and to interact with residents. Tr. 7/29/93 (McGowan) at 153-154; U.S. Exh. 169.
In addition, nearly six months before Ms. McGowan conducted her first tour of Ebensburg and advised administrators of her significant concerns about the way in which Ebensburg residents were positioned and being fed, Mr. Bellomo specifically recognized that these problems existed. For example, in a memo dated March 4, 1992, Mr. Bellomo advised Ebensburg staff of his "disheartenment" and "embarrassment" that even with two weeks' advance notice of a tour by outside surveyors and a pre-determined tour route, the "mealtime in Keystone was rushed," "there was little interaction" between staff and residents, and residents were improperly positioned. Tr. 7/29/93 (McGowan) at 152; U.S. Exh. 162.
E. Ebensburg Residents Are Eating Unsafely With No Staff Intervention.
Throughout her observations of mealtimes at Ebensburg, Ms. McGowan repeatedly saw residents engaging in unsafe eating behaviors without staff intervention. These behaviors include Ebensburg residents:
Xl-36

• eating at an excessively rapid rate, e.g., literally consuming their entire meal in two to four minutes;
• taking heaping large, overfilled spoonfuls of food; • shoveling food into their mouths; • stuffing large chunks of food into their mouths, e.g. an entire piece of cheese cake, an entire piece of celery; • overloading their mouth with food without adequate time to swallow; • drinking cups of fluid without any visible pause; • swallowing whole food without chewing; • stealing food from other residents; • eating food that had fallen to the floor; and • jabbing utensils, such as knives and spoons deep into the mouth. Tr. 7/29/93 (McGowan) at 91, 103-106, 134. These behaviors were pervasive throughout Ms. McGowan's tours. Tr. 7/29/93 (McGowan) at 103. She identified, by name, at least 57 Ebensburg residents who exhibited these behaviors, a number of whom had documented recent choking episodes. Tr. 7/29/93 at 104-105, 145; Tr. 10/12/93 (Sheppard) at 122-123; U.S. Exh. 938 at 100-102, 108-112. For example, Ms. McGowan observed Fred G. consume his entire meal on August 19, 1992 in four minutes. Tr. 7/29/93 (McGowan) at 104. Four days later, Fred choked on a piece of meat during dinner. U.S. Exh. 273 at 2. On another occasion, Ms. McGowan observed Fred scooping up and eating food that had fallen to the floor. Tr. 7/29/93 (McGowan) at 105. He had a choking episode in March 1992 requiring abdominal thrusts after he grabbed food from another residents' tray and stuffed it in his mouth. U.S. Exh. 273 at 3. Ms.
XI-37

McGowan saw Joyce Y. stuffing food into her mouth during November 1992. Tr. 7/29/93 (McGowan) at 105. Joyce had a choking episode during May 1992 where she choked on a chunk of meat and the Heimlich maneuver had to be performed. U.S. Exh. 273 at 3. Ms. McGowan also observed Estelle M. stuff an entire piece of shortcake into her mouth on August 19, 1992. Tr. 7/29/93 (McGowan) at 105. Less than one mouth later, Estelle had a choking episode at Ebensburg. U.S. Exh. 273 at 2.
Dr. Sheppard agrees that "there are certainly individuals at Ebensburg, and those individuals mentioned by McGowan, who are eating quickly." Tr. 10/12/93 (Sheppard) at 18. During her tour of Ebensburg in February 1993, Dr. Sheppard also saw instances of residents overstuffing and eating too quickly without appropriate staff intervention. Tr. 10/12/93 (Sheppard) at 165-166. During her follow-up tour in July 1993, Dr. Sheppard continued to see "unsafe eaters," including Phyllis S. who was "stuffing her mouth with bread." Tr. 10/18/93 (Sheppard) at 110. During July 1993, Dr. Sheppard further observed Joe C. taking "big spoonfuls" of food without staff attempting to moderate the amount that he was scooping up. Tr. 10/18/93 (Sheppard) at 108.
The feeding videotape also demonstrates examples of residents in need of assistance but no staff monitoring or intervention takes place. For example, Ron L. is eating heaping spoonfuls of food and throwing his head back into extension. At one point he spits into his tray. No staff are anywhere to be seen. Tr. 7/29/93 (McGowan) at 133.; U.S. Exh. 258. Donald P. is tilting his head all the way back and jabbing an empty spoon deep into his mouth as staff just walk by him. Id. at 133-134. Dr. Sheppard estimates that he has as much as four inches of the spoon in his mouth and agrees that "it's a lot." Tr. 10/12/93
XI-38

(Sheppard) at 69. William C , who is blind, sat by himself without any staff intervention for fifteen to twenty minutes. For at least ten minutes, he persistently brought the spoon to his mouth empty with no staff assistance. Id. at 135-136. Lee V. is hitting himself repetitively with no staff intervention, even though a staff person is standing beside him. Tr. 7/29/93 (McGowan) at 135. Jerry Me. is eating in a poorly aligned position where he is leaning significantly to one side and has his face in his plate without any staff intervention. Id. 17 Dr. Sheppard agreed that this is "not a great position." Tr. 10/12/93 (Sheppard) at 72. Jerry Me. has had serious medical problems and multiple hospitalizations. In 1992, he was hospitalized four times for gastrointestinal bleeding, acute gastritis, colectomy, and partial bowel obstruction. U.S. Exh. 144. In the first several months of 1993, he was hospitalized for pneumonia and fecal impaction. U.S. Exh. 144.
Even when staff are specifically assigned to monitor a resident one-on-one, they fail to intervene when the resident is exhibiting unsafe behavior. Kathy W., for example, whom Ms. McGowan observed eating at a rapid rate and stuffing her mouth on several occasions, is pictured on the feeding videotape with a psychologist sitting at the table facing her. Despite the fact that she is overloading her spoon, stuffing her face, and completes her entire meal in several minutes, the psychologist's only actions were to twice interrupt her — once to offer her a napkin and once when she was eating with her hands. Tr. 7/29/93 (McGowan) at 134-135. The psychologist does not intervene at the point where Dr. Sheppard agreed Kathy was "stuffing." Tr. 10/12/93 (Sheppard) at 71. Dr. Sheppard has observed Kathy W.
11/ Although Ms. McGowan did not identity Jerry Me. by name, Dr. Sheppard subsequently identified him, but incorrectly stated his first name as John, rather than Jerry. Tr. 10/12/93 (Sheppard) at 71.
XI-39

eat on different occasions and agreed that "there are times when this individual does eat too rapidly, when she does stuff." Tr. 10/12/93 (Sheppard) at 70.
1. Ebensburg Administrators And Staff Acknowledge That Residents Exhibit Unsafe Behaviors During Mealtimes And Staff Do Not Intervene.
Both Mr. Bellomo and Mr. O'Brien confirm that Ebensburg residents are engaging in the same types of dangerous behaviors without staff intervention that Ms. McGowan repeatedly witnessed during her tours. For example, in one month, alone, between the end of August and the end of September 1992, they documented pervasive problems during mealtimes, including approximately 20 residents whom they identified as eating at an excessively rapidly rate without staff intervention. U.S. Exhs. 165 and 165 (a)-(h). Based upon his observations, Mr. Bellomo concluded that staff needed to encourage residents to slow down during eating. U.S. Exh. 165. For example, Mr. Bellomo saw Kathryn P. eating one spoonful every two and a half to three seconds. Tr. 7/29/93 (McGowan) at 140; U.S. Exh. 165(a). He also observed Anthony M. eating at a rate of twenty spoonfuls per minute. Even after Mr. Bellomo called this to staff's attention, Anthony continued to eat at this rate. Tr. 7/29/93 (McGowan) at 140; U.S. Exh. 165(f). In addition, Mr. Bellomo watched Richard P., who has a history of choking, consume his meal in four minutes. Tr. 7/29/93 (McGowan) at 141; U.S. Exh. 165(h). During the course of one meal, Mr. O'Brien saw Gary K. finish his meal in less than two minutes, Ed Q. finish in four minutes "without coming up for air," and C.S. "just shoveled food in." Tr. 7/29/93 (McGowan) at 140; U.S. Exh. 165(b). At one point during this meal, there were 29 residents with only three staff and Mr. O'Brien had to stop one of the staff from leaving the dining room because of his

concern about the staff ratios. Id. In addition to concerns about residents gulping their food, Mr. Bellomo and Mr. O'Brien also documented residents engaging in uninterrupted selfinjurious behaviors and refusing meals without staff assistance. Tr. 7/29/93 (McGowan) at 141.
Ms. Ferut, a direct care staff person who has worked at Laurel House since 1984, has repeatedly witnessed the same types of unsafe behaviors at Ebensburg documented by Mr. Bellomo, Mr. O'Brien, and Ms. McGowan. She has voiced her concerns to management. Tr. 7/29/93 (McGowan) at 106; U.S. Exh. 611 (Ferut Dep.) at 29. Residents exhibit dangerous behaviors during mealtimes, such as jumping up and taking a plate and throwing it across the room, biting, and pica. Tr. 7/29/93 (McGowan) at 107; U.S. Exh. 611 (Ferut Dep.) at 29-30. She has seen both residents and staff get injured during mealtimes. Id. There are "a lot" of clients who choke in Laurel House. Id. She states that staff "really have to watch them because they stuff their mouth with the food." Id. In sum, in Ms. Ferut's words: "It's mind-boggling how many behaviors you have ... It's mind-boggling what you have." Id. Ms. Ferut thinks that there should be more staff assigned to mealtimes to address behaviors that occur. W. The majority of other RSA's share her belief that more staff are needed, particularly at mealtimes. Id.; U.S. Exh. 611 (Ferut Dep.) at 30. When Mr. Bellomo issued a memorandum on September 8, 1992 reflecting concerns about the rapid rate of eating of individuals at Laurel House, it did not come as a surprise to Mr. Seymour, the Unit Manager of Laurel. U.S. Exh. 631 (Seymour Dep.) at 77; Seymour Dep. Exh. 18. In fact, Mr. Seymour was aware of concerns that Mr. Bellomo had about individuals at Laurel House eating too quickly as far back as February of 1991. U.S. Exh.
XI41

631 (Seymour Dep.) at 73. Mr. Seymour was present during the breakfast that Ms. McGowan observed at Laurel House on November 12, 1992. U.S. Exh. 631 (Seymour Dep.) at 98. He observed individuals at that time whom he acknowledges were eating too quickly and stuffing their mouths with too much food. Id. at 98, 100. There are individuals at Laurel House who continue to consume too much food with each spoonful or forkful. Id. at 81. In addition, dining room monitors often report to him that residents are eating at a rapid rate. Id. at 80. As late as April 1993, the Dysphagia Team identified 42 of the 96 residents in Laurel House as "unsafe eaters." Tr. 10/12/93 (Sheppard) at 181-182.
Mr. McGuire, Unit Manager at Horizon House, has also noticed problems with meal times at Horizon, including the speed of eating and gulping drinks since he came to Horizon in February 1991. U.S. Exh. 623 (McGuire Dep.) at 9, 109-110. He has seen staff fail to intervene when an individual was eating too quickly. U.S. Exh. 623 (McGuire Dep.) at 112. Mr. McGuire knows that eating too quickly presents the potential of choking or aspiration which are obvious health risks "up to and including death." U.S. Exh. 623 (McGuire Dep.) at 112-113. There are individuals at Horizon who stuff their mouths with food. U.S. Exh. 623 (McGuire Dep.) at 113. Mr. McGuire does not think he has enough staff to intervene and prevent behaviors in which clients should not engage during meal times, such as eating too fast. U.S. Exh. 623 (McGuire Dep.) at 113, 123. There are not enough staff to address the behaviors consistently so that the behaviors change. U.S. Exh. 623 (McGuire Dep.) at 123-124.
Mr. Ratchford, Director of Therapeutic Activity Services, admits that there are Ebensburg residents who eat lunch during day programs at Old Main who eat too fast and
XI-42

stuff their mouths with food. U.S. Exh. 628 (Ratchford Dep.) at 160, 169. To Mr. Ratchford's knowledge, the staff at Old Main have not informed the psychologists about the problems with certain known feeding problems. U.S. Exh. 628 (Ratchford Dep.) at 162163. There is no PSA assigned to lunch at Old Main to help address eating too fast, although Mr. Ratchford agrees that it probably would help. U.S. Exh. 628 (Ratchford Dep.) at 176.
Ms. Frye, a member of the Dysphagia Team, thinks that the number of choking episodes would be reduced at Ebensburg if there were more staff to interact with residents and to provide one-to-one supervision. U.S. Exh. 613 (Frye Dep.) at 54. With one-to-one attention, staff could teach residents that are eating at a rapid pace to slow down. U.S. Exh. 613 (Frye Dep.) at 54. If more residents were given one-to-one attention during mealtimes, staff could also work on hand guidance skills with residents who are not feeding themselves. U.S. Exh. 613 (Frye Dep.) at 54.
2. Ebensburg Residents' Unsafe Behaviors During Mealtimes Have Resulted In Life-Threatening Risks.
Ebensburg residents' dangerous mealtime behaviors have directly resulted in harm. Both Ms. Wagner, the head of Ebensburg's Dysphagia Team, and Ms. Frye, the LOTA on the Team, admit that residents' behaviors, such as overstuffing and eating too quickly, are the most common reason why Ebensburg residents choke. U.S. Exh. 641 (Wagner Dep.) at 48; U.S. Exh. 613 (Frye Dep.) at 13. In a sixteen week period of time at the beginning of 1993, there were at least seventeen documented instances where residents choked as a result
XI-43

of their unsafe behaviors."/ U.S. Exh. 273 (attached). This averages to more than one
choking each week. The rate of choking at Ebensburg is increasing dramatically. Tr.
7/29/93 (McGowan) at 144. In 1992, there were at least twenty-nine choking incidents and
in 1991 there were at least eighteen chokings. Id.; U.S. Exh. 273."/ This represents
more than a 60% increase in chokings between 1991 and 1992. Id. Even in the face of this
significant increase, the rate of choking at Ebensburg in early 1993 continued to escalate. In
Ms. McGowan's vast experiences over the past ten years, she has never seen a facility where
chokings have been as systemic a problem as they are at Ebensburg. Tr. 7/29/93
(McGowan) at 204.
The only comparative information about choking of which Dr. Sheppard was aware
and was able to provide to the Court during her testimony was data from 1979-1980 at
Letchworth Village, another mental retardation facility. Tr. 10/12/93 (Sheppard) at 83.
Between May 1979 and June 1980, Letchworth had thirty chokings on both edible and non-
edible substances out of a population of 2,299 residents. Tr. 10/12/93 (Sheppard) at 159-
160. This is a choking rate of 1.3% for mealtime chokings and pica episodes. In 1992, the
"/ United States' Exhibit 273 summarizes sixteen chokings during this period of time. It does not include an additional choking on February 23, 1993 where John B. stole a pancake from another resident's tray, stuffed it in his mouth, and started choking. U.S. Exh. 1033 at 00395370. Despite the fact that this choking occurred while Dr. Sheppard's tour was taking place, she was unaware of this choking and no one at Ebensburg brought it to her attention. Tr. 10/19/93 (Sheppard) at 137138. This incident took place less than two weeks after John B. stole whole pieces of chicken from another resident's tray, stuffed them into his mouth, and started choking. U.S. Exh. 1033 at 00395368; U.S. Exh. 273. Dr. Sheppard also did not review the two choking episodes that took place in July 1993, around the time of her second tour of Ebensburg, including one choking episode that required an emergency hospitalization. Tr. 10/12/93 (Sheppard) at 173; U.S. Exh. 988.
"/ Because Ebensburg does not always complete an occurrence report for a choking episode, there is no way of knowing the total number of chokings. See, e j j . , U.S. Exh. 136 (no occurrence reports for John B.'s choking on February 16 and 23, 1993).
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choking rate at Ebensburg for mealtime chokings was 6.2 percent — not including pica chokings — a rate of five times that of Letchworth Village."/ By extrapolating the seventeen mealtime chokings at Ebensburg during the first sixteen weeks of 1993 to a year's worth of data, the choking rate is 11.7 percent.
The computerized list provided to Dr. Sheppard by Ebensburg that she relied on to form her opinion about the number and type of choking episodes at the facility was not complete or accurate. Tr. 10/12/93 (Sheppard) at 148, 150, 154. She did not review the circumstances surrounding the choking episodes at Ebensburg. Tr. 10/12/93 (Sheppard) at 164.
Nearly one-half of the chokings at Ebensburg in 1993 required the Heimlich maneuver or some other emergency intervention for the resident to recover from the episode. U.S. Exh. 273. For example, in an incident on April 22, 1993, Edward S. had to be transported to the emergency room at Mercy Hospital because he was gagging and cyanotic after stealing meat from another resident's tray and stuffing it in his mouth. He is on a pureed diet. Id. Vickie W. choked on January 13, 1993 after she stuffed an entire piece of cake into her mouth. She was "limp and purplish" and it took the concerted efforts of two registered nurses to revive her. One nurse finger swept Vickie's mouth while the other performed the heimlich. Oxygen had to be administered following the incident. U.S. Exh. 273 at 2. During 1991 and 1992, Ebensburg residents required the Heimlich maneuver or had to be sent to the emergency room for chokings on at least twenty-three occasions. U.S.
"/ This number does not include chokings due to pica episodes during 1992, such as when Brian B. choked during lunch and was found to have a thermometer ear tip lodged in his throat or when he was drooling and unable to swallow during breakfast because he had a paper dixie cup in his throat. U.S. Exh. 590.
XI-45

Exh. 273. For instance, Robert Y. required emergency hospitalization when he lost
consciousness and experienced acute respiratory distress from a choking incident where he
stole food from another resident's tray. Id. at 4.
Ebensburg is failing to prevent residents with a history of choking from repeated
further chokings. Charles M. had three choking episodes in five months between late 1992
and early 1993. U.S. Exh. 273. Pamela R. also had three choking episodes during roughly
the same period of time. Id. Other residents have also had multiple choking episodes,
including the following twelve people: Mary Lou F., Mary Ann R., Deborah S., Griffith S.,
Fred G., John B., Alan G., Elliot G., Sylvia B., Albert K., Sandra S., and Gary W. U.S.
Exh. 273. Staff are simply not paying adequate attention to repetitive chokers with known
unsafe eating behaviors as evidenced by the residents with choking histories whom both Mr.
Bellomo and Ms. McGowan have documented as engaging in continuing dangerous mealtime
behaviors. Tr. 7/29/93 (McGowan) at 145.
The reasons why Ebensburg residents are choking are consistent and preventable.
There are common themes apparent in Ebensburg's own reports of the choking incidents:
• staff are not monitoring, moderating, and intervening when residents are overstuffing their mouths and/or eating too fast (Charles M., Vickie W., Mary Lou F., Vincent P., Mary Ann R., Ibrahim D., James S., Larry D., David G., Alice W., and Sandra S.). Tr. 7/29/93 (McGowan) at 145; U.S. Exh. 273;
• staff are not adequately monitoring residents during mealtimes and residents are stealing food that either is not on their diet or that they then stuff into their mouth (Mary Ann R., Edward S., John B., Robert Y., and Fred G.). Id.; and
• Ebensburg is not following physician's orders imposing dietary restrictions and is giving residents food that is strictly prohibited, such as large chunks of meat given to residents on chopped diets (Pamela R., Alan G., Fred G., Eileen G., Joyce Y., Judith L., Mary Lou F., Richard P., Francis R., Jacqueline H., and Benita B.). Tr. 7/29/93 (McGowan) at 146; U.S. Exh. 273.
XI-46

Even as this case was proceeding to trial, these same types of preventable chokings persisted. On July 13, 1993, Mary Lou F., who lives in Laurel House and has a history of prior chokings, required an emergency hospitalization after she began gagging and choking on a cookie. U.S. Exh. 988. Her occurrence report notes that deserts should be chopped before being given to residents and staff did not notice that she had whole cookies on her dish. Id. Less than one week later, on July 19, 1993, Mary B., another Laurel House resident, vomited and coughed up a chunk of meat. She is only supposed to receive ground meat. Id. Staff surmise that the chunk of meat was either mistakenly placed on her tray or that she may have stolen the meat from another tray. Id. Mr. Seymour, the Unit Manager of Laurel House, knew as far back as December 1992 that problems with the consistency of food, including chopped salad, shredded salad, and beef cubes, were common reasons for choking in Laurel House. U.S. Exh. 631 (Seymour Dep.) at 83.
3. The Defendants Have Been Aware Of Problems At Ebensburg Where Individuals Are Eating At Too Rapid A Pace And Stuffing Their Mouths With Food For The Past Decade.
As far back as December 1983, State surveyors advised Ebensburg that staff were failing to intervene when residents were engaged in dangerous mealtime behaviors such as overstuffing food in their mouths. Tr. 7/29/93 (McGowan) at 154; U.S. Exh. 668 (attached). Throughout the years between 1983 and the most recent medical assistance survey that took place in October 1993, State surveyors have repeatedly cited Ebensburg for the precise type of deficiencies and unsafe practices noted by Ms. McGowan throughout her tours of Ebensburg. Tr. 7/29/93 (McGowan) at 154-156. For example, in October 1989, State surveyors saw an underweight resident shoveling food onto her bib and into her hair.
XI-47

Rather than assisting her, staff pushed her tray aside before she had finished her tray and told her she was done. Tr. 7/29/93 (McGowan) at 155; U.S. Exh. 668. In the same year but at a different mealtime, State surveyors saw a blind resident who had his mouth down into his tray and was scooping food with his hands. His head, face, and hands were covered with food. Even though staff were standing close to the resident, they offered no assistance. Tr. 7/29/93 (McGowan) at 155; U.S. Exh. 668 at 2. In a memo sent to all direct care staff dated April 6, 1990, Ebensburg administrators specifically acknowledged that there have been problems identified by State surveyors with staff failing to monitor residents, to intervene in unsafe behaviors, and to provide assistance to residents who need it. Tr. 7/29/93 (McGowan) at 153-154; U.S. Exh. 169. In October 1991 as well as November 1992, State surveyors observed residents literally "lapping up" their meals with no intervention by staff. Tr. 7/29/93 (McGowan) at 155-156; U.S. Exh. 668 at 2-3. As recently as October 1993, even after Ms. McGowan testified in this case, State surveyors still found "little staff intervention" where individuals were eating rapidly, using their fingers instead of utensils, and taking food from other residents' meal trays during mealtimes in Sunset, Villa and Laurel House. U.S. Exh. 1103 at 4, 10.
The common theme throughout the medical assistance deficiencies is that staff simply fail to intervene. They do not teach residents safe eating techniques. They do not provide assistance to underweight residents who need help with eating. They do not follow feeding plans. And they do not intervene even in the face of potentially life-threatening behavior.
XI-48

F. The Dining Environment At Ebensburg Is Itself Unsafe. Throughout her observations of mealtimes, Ms. McGowan found that the dining environment was unsafe. Tr. 7/29/93 (McGowan) at 92. There are too many people congregated together in what often becomes a very loud cacophonous environment, where it is difficult for staff to pay attention to what it is going on and for residents to concentrate on eating. Id. It is impossible to control the stimulus and there are too many distractions. Id. at 142. The environment does not lend itself to teaching appropriate eating behavior and observing individuals' eating practices. Id. at 143. Dr. Sheppard agrees that it is important to have a calm, relaxing atmosphere that allows for optimum concentration on eating, particularly where individuals have difficulty eating. Tr. 10/12/93 (Sheppard) at 162. Dr. Hinkle is in agreement, as well, that a quiet environment without distractions lends itself to safe feeding. Tr. 12/16/93 (Hinkle) at 34; U.S. Exh. 1120. Dr. Sulkes believes that meal times should be made a pleasure for dysphagic individuals with developmental disabilities. Tr. 7/27/93 (Sulkes) at 98. It is important to have the staff interact with the individual being fed. Tr. 7/27/93 (Sulkes) at 98. It is a dehumanizing experience to have to be fed by staff who are shovelling food into your mouth while talking to other staff members. Tr. 7/27/93 (Sulkes) at 98. The persistent existence of flies in the dining rooms also poses "genuine health hazards." Tr. 7/29/93 (McGowan) at 92. Ms. McGowan observed flies at every mealtime in every dining room in August 1992 and frequently during November 1992. Id. at 208-209. One year later, State surveyors continued to find flies on residents and residents' food during
XI49

mealtimes at multiple locations and on multiple days at Ebensburg during October 1993. U.S. Exh. 1103 at 10.
G. The United States' Feeding Videotape Demonstrates Systemic Deficient Practices That Depart From Accepted Professional Standards.
Ms. McGowan selected excerpts of videotapes taken under her direction by a FBI photographer of mealtimes at Ebensburg during her August and November 1992 tours. Tr. 7/29/93 (McGowan) at 108; U.S. Exh. 258. The videotape segments are illustrative of what she observed repeatedly throughout not only her 1992 tours but also her February 1993 tour of Ebensburg. Tr. 7/29/93 (McGowan) at 137. She selected the videotape segments to demonstrate significant problems that she found to be systemic during mealtimes at Ebensburg. Id. Each of the four expert witnesses who reviewed and testified about the videotape had concerns about feeding practices. Tr. 7/29/93 (McGowan) at 111-137; Tr. 10/12/93 (Sheppard) at 58, 67-87; Tr. 12/13/93 (Rubin) at 86; Tr. 12/16/93 (ffinkle) at 15. When Dr. Rubin viewed the United States' feeding videotape, he "had a number of concerns about feeding practices" that he saw in "many of the individuals who were being fed." Tr. 12/13/93 (Rubin) at 86. In particular, he was "struck by and concerned by the degree to which [he] saw individuals having difficulty with swallowing." Tr. 12/13/93 (Rubin) at 86. Dr. Rubin concluded that the "feeding practices were seriously jeopardizing the comfort, the well-being and certainly placing the individuals at risk." Tr. 12/13/93 (Rubin) at 86. It further concerned Dr. Rubin that "an appearance of distress may not be recognized as such." Tr. 12/13/93 (Rubin) at 87.
The videotape illustrates the following major deficiencies for 28 Ebensburg residents:
XI-50

• Residents being fed with unsafe practices in unsafe positions in carts where their bodies and heads are not sufficiently elevated and are improperly aligned (Barry D., Ronald E., Joseph T., Frank H., Timothy P., and Ronald P.). Tr. 7/29/93 (McGowan) at 111-116;
• Residents being fed with their necks and head in extension and in extension and rotated (Paul G., Harold B., William A., Duane P., Andrea S., Lois S., Beth S., and Sam B.). Tr. 7/29/93 (McGowan) at 116-123;
• Professional and paraprofessional staff feeding residents in unsafe positions and using unsafe practices (Ellen H., James M., Joseph R.,if/ Tim G., and John H.). Tr. 7/29/93 (McGowan) at 123-128;
• Residents experiencing distress as a result of these unsafe practices and positions (Ronald E., Tony R., James M., Raymond W., Rhett T., and David K.). Tr. 7/29/93 (McGowan) at 128-132; and
• Ambulatory residents engaging in unsafe behaviors and experiencing difficulty eating with no staff intervention (Ron. L., J^ee V., Jerry Mc.,^/ Donald P., Kathy W., and William C ) . Tr. 7/29/93 (McGowan) at 133-136.
Dr. Sheppard was not present while the mealtimes in the United States' videotape
took place. Tr. 10/18/93 (Sheppard) at 42. She did not know the nutritional and respiratory
status of residents on videotape or their hospitalization histories. Tr. 10/18/93 (Sheppard) at
52. Although she believes that "one can make judgments about adequacy of feeding
techniques from observations of the individual's reaction to the techniques." (Tr. 10/18/93
(Sheppard) at 126, lines 22-24), the Commonwealth's sur-rebuttal expert witness in feeding
strongly disagrees. Tr. 12/16/93 (Hinkle) at 19. For example, Dr. Hinkle believes that the
only way you can make a certain determination about whether an individual is in danger
when they receive food or fluid with their head in extension is by conducting a
comprehensive evaluation by a swallowing specialist. Tr. 12/16/93 (Hinkle) at 19-20, 21.
"/ Joseph R. is incorrectly identified as James R. in the transcript. "/ Jerry Me. was subsequently incorrectly identified as John Me. by Dr. Sheppard during her narration of the videotape. Tr. 10/12/93 (Sheppard) at 71.
XI-51

Dr. Sheppard admitted that she could not evaluate a number of aspects of the feeding videotape. For example, she could not ascertain the elevation of carts. Tr. 10/12/93 (Sheppard) at 46. She could not determine the angle of residents' heads. Tr. 10/12/93 (Sheppard) at 48, 65. Her ability to comment on the photographs taken from the feeding videotape (U.S. Exhs. 227-250) was even more limited. She agreed that "photographs are even more difficult to draw conclusions from than videotapes" and that she didn't even know who the residents were. Basically, all she was able to conclude about the photographs is that "these are pictures of severely handicapped individuals." Tr. 10/12/93 (Sheppard) at 75.
XI-52

XH. EBENSBURG IS HARMING ITS RESIDENTS BY FAILING TO PROVIDE THEM WITH PROACTIVE, PREVENTIVE CONTINUITY OF MEDICAL AND HEALTH CARE IN VIOLATION OF GENERALLY ACCEPTED PROFESSIONAL STANDARDS. A. Medical And Health Care Is Inadequate. "Continuity of care" is the "essence of primary care" and it simply involves making
an effort to foresee and envision medical and health problems so as to prevent them before they arise. Tr. 7/27/93 (Sulkes) at 146, lines 7-8. It is generally accepted that medical care is to be preventive and "proactive," not reactive. Tr. 7/27/93 (Sulkes) at 146. A doctor or medical staff is always to provide long-term management and care that is consistent, thoughtful and planned. Tr. 7/27/93 (Sulkes) at 146. This philosophy of medicine applies to everyone — the general population and those with developmental disabilities living in an institution. Tr. 7/27/93 (Sulkes) at 147.1/ The emphasis on preventive medicine is likely to continue to intensify in the future because proactive continuity of care is so fundamental to the care of everyone. Tr. 7/27/93 (Sulkes) at 147. Dr. Kastner agreed that in medicine in general, there is a growing emphasis on disease prevention and health promotion. Tr. 9/13/93 (Kastner) at 237-8.
Providing preventive continuity of care in a facility like Ebensburg requires good communication among the medical staff, adequate documentation, and thoughtful long-term
V For example, outside the developmental disabilities context, today's health maintenance organizations ("HMO's") look to prevent problems in the future rather than just respond to problems when they come up or when a person gets sick. Tr. 7/27/93 (Sulkes) at 146-7.
XII-1

planning. Tr. 7/27/93 (Sulkes) at 147.*/ However, Ebensburg does not provide its residents with continuity of care that would meet generally accepted standards. Tr. 7/27/93 (Sulkes) at 146, 148. Specifically, communication and documentation about long-term medical planning are not adequately undertaken and completed at Ebensburg. Tr. 7/27/93 (Sulkes) at 148-9. In addition, the documentation and communication between Ebensburg physicians and the medical staff at the local hospital, and the documentation and communication between the Ebensburg doctors and the outside consultants who work at Ebensburg are insufficient and problematic. Tr. 7/27/93 (Sulkes) at 149. Finally, Ebensburg is consistently failing to maintain sufficient physician staffing levels to adequately address its residents' acute and chronic medical needs. Tr. 7/27/93 (Sulkes) at 148. As a result continuity of medical and health care at Ebensburg has suffered. The poor coordination of care at Ebensburg potentially affects all the residents in the facility in one way or another. Tr. 7/28/93 (Sulkes) at 22.
1. Ebensburg Is Not Adequately Documenting Long-Term Care For Its Residents.
Medical documentation is essential for providing medical care to individuals, like those at Ebensburg, with a chronic condition, because the medical professionals need to address health and medical conditions over the course of years, constantly monitoring the tempo and status of the person's health. Tr. 7/27/93 (Sulkes) at 147, 157. In fact, a medical provider like Ebensburg cannot provide an institutional resident with developmental
2J Dr. Sulkes added that proactive care is the very reason to have full-time physicians working at Ebensburg; if all the Ebensburg physicians are going to do is respond to sickness or an acute event and then end up sending the individual to the hospital, there is no point in having physicians working full-time at the institution. Tr. 7/27/93 (Sulkes) at 147.
XII-2

disabilities with appropriate medical care without adequate medical documentation as reflected in the charts. Tr. 7/27/93 (Sulkes) at 84-5, 156. An oral tradition does not lend itself to the chronic care of people with disabilities. Tr. 7/27/93 (Sulkes) at 84. Thinking and talking about the residents with other doctors and colleagues to plan what will happen in the future is not enough; the product of this communication and discussion must be written down in the medical record in order to provide continuity of care. Tr. 7/27/93 (Sulkes) at 149. Otherwise, the medical discussion just becomes a conversation between two people. Tr. 7/27/93 (Sulkes) at 149. It is generally accepted that without adequate documentation, chronic care cannot take place. Tr. 7/27/93 (Sulkes) at 157; Tr. 7/28/93 (Sulkes) at 5. Dr. Kastner agreed that if a health care provider does not maintain comprehensive medical records, it cannot effectively manage a patient over time. Tr. 9/13/93 (Kastner) at 185.V
The medical record plays an important role in the active treatment of a resident receiving chronic care because the medical chart in essence tells the story of the person's life. Tr. 7/27/93 (Sulkes) at 84. It enables any new staff member to understand the resident's needs and past medical history. Tr. 7/27/93 (Sulkes) at 84. Documentation also allows a professional to communicate with other professionals on other shifts about what happened that day with this individual medically. Tr. 7/28/93 (Sulkes) at 2. As a result, the written record must be accurate, readable and complete. Tr. 7/27/93 (Sulkes) at 84. Dr. Kastner agreed that the record should serve as a means of communication between the physicians. Tr. 9/13/93 (Kastner) at 186. Dr. Kastner testified that the medical record
%J Kastner agreed that a health care provider should maintain comprehensive medical records and that if the provider does not, it is difficult to evaluate the adequacy of that care over time. Tr. 9/13/93 (Kastner) at 185.
XII-3

•fe

should be able to stand on its own, so a physician who assumes the care of a person would

be able to provide continuity in the care based on the medical record. Tr. 9/13/93 (Kastner)

at 186. He added that as the physician or other medical professional is less familiar with the

patient, the medical record assumes a greater importance. Tr. 9/13/93 (Kastner) at 186. He

testified that it is always important to maintain comprehensive records. Tr. 9/13/93 (Kastner)

at 186.

Ebensburg does not adequately document the long-term care provided to its

residents so as to meet what is generally accepted in the medical community. Tr. 7/28/93

(Sulkes) at 5. Whatever documentation is taking place is episodic and reactive rather than

proactive. Tr. 7/27/93 (Sulkes) at 149. Experts for both the Commonwealth and the United

States found problems in this area. Tr. 7/28/93 (Sulkes) at 5; Tr. 9/13/93 (Kastner) at 143-

5, 186-90. Dr. Sulkes found multiple instances where the records just were not clear. Tr.

7/28/93 (Sulkes) at 5. In addition, he found discussions of medical procedures that might

take place, but the record is not clear as to whether or not they actually took place. Tr.

7/28/93 (Sulkes) at 12. In the end, the record does not show evidence of follow-up or

closure. Tr. 7/28/93 (Sulkes) at 12. He concluded generally that there are multiple

inadequacies in charting for both acute and long-term care. Tr. 7/28/93 (Sulkes) at 11.

Ebensburg does not even meet its own policies requiring adequate medical documentation.*/

1/ In its paper policies at least, Ebensburg recognizes the need for adequate medical documentation. For example, Ebensburg Policy 147 entitled Physician's Progress Notes provides: "It is the policy of Ebensburg: That physicians will write progress notes in clients' charts for all treatments, reviews, consultations and drugs." U.S. Exh. 20. The Reference Policy states that the physician will "write progress notes in association with 60-day medication reviews which shall include an assessment of the client's condition, all medications currently used, the reason for use and the results expected or
obtained; write a progress note in association with 30-day behavior modifying agent reviews which
shall include the target behavior for their use and the results expected or obtained." U.S. Exh. 20. Finally, the Reference Policy provides that the physician will "write a progress note at the termination
(continued...)
XII-4

Dr. Kastner agreed that the "most significant deficiency at Ebensburg was the organization of the record." Tr. 9/13/93 (Kastner) at 145. He indicated that the Ebensburg medical records were somewhat "disorganized and confusing." Tr. 9/13/93 (Kastner) at 1867. Dr. Kastner testified that based upon his review of the medical records at Ebensburg, some improvements could be made. Tr. 9/13/93 (Kastner) at 186. He then cited a long list of areas in the charts that could be improved. For example, Dr. Kastner indicated that he thought they should "emphasize the medical issues more." Tr. 9/13/93 (Kastner) at 143, 145. Dr. Kastner indicated that some of the annual summaries could be more complete. Tr. 9/13/93 (Kastner) at 188. Dr. Kastner indicated that occasionally summary notes made at the time of the annual review could be more complete. Tr. 9/13/93 (Kastner) at 188. Dr. Kastner testified that with respect to the progress notes and the physicians' input into the medical section, "the physicians at Ebensburg could do a better job." Tr. 9/13/93 (Kastner) at 143. Dr. Kastner indicated that progress notes in the medical record are infrequent. Tr. 9/13/93 (Kastner) at 188-9; Def. Exh. HH at 26. Dr. Kastner also indicated that abnormal laboratory data, incident reports, consultation reports, and health promotion activities are rarely documented in the physicians' section of the medical record. Tr. 9/13/93 (Kastner) at 144, 189. Dr. Kastner indicated that the documentation of tests, procedures and evaluations could be improved at Ebensburg. Tr. 9/13/93 (Kastner) at 189. Dr. Kastner indicated that rarely is a chart note entered by the physician documenting the results of the test procedure or evaluation. Tr. 9/13/93 (Kastner) at 189. He testified that he thinks "problem lists
*/(... continued) of each acute health problem treatment program indicating that the problem has been resolved or if there is need for continuation of treatment." U.S. Exh. 20.
XII-5

should be included, that there ought to be a greater effort to document lab results and transfers and procedures and things of that type." Tr. 9/13/93 (Kastner) at 143. Dr. Kastner indicated that there should have been an acute problem list in the front of everyone's chart for use in the case of an emergency. Tr. 9/13/93 (Kastner) at 190. Without such an acute problem list, Dr. Kastner indicated that it takes "a little bit of work to go through the record to find things" relating to important aspects of specific resident's health. Tr. 9/13/93 (Kastner) at 190. In his report, Kastner indicated that it would be valuable to maintain complete lists of active and inactive problems at the front of the resident's chart. Tr. 9/13/93 (Kastner) at 145, 190. Dr. Kastner also recommended that summary charts be placed near the front of the chart in order to provide a quick overview of the client's health status. Tr. 9/13/93 (Kastner) at 190. Dr. Kastner indicated that this would be particularly valuable during an emergency situation. Tr. 9/13/93 (Kastner) at 191. Dr. Kastner also mentioned in his report that food and medication allergies are not always clearly identified in the chart. Tr. 9/13/93 (Kastner) at 191.
Poor medical documentation has long been a problem at Ebensburg. As of its 1990 findings letter, the Department of Justice had notified defendants that Ebensburg's medical records were found to be incomplete, and frequently omitted essential and/or current information. U.S. Exh. 638 (Sponsky Dep.) Exh. 50. In addition, defendants were notified that Ebensburg records did not contain sufficient information about recent hospitalizations. U.S. Exh. 638 (Sponsky Dep.) Exh. 50.
In addition, Ebensburg has known since at least 1987 about problems in medical documentation because the Commonwealth of Pennsylvania, through its Inspection of Care
XII-6

quality surveyors, has regularly found deficiencies in Ebensburg's documentation practices.
Tr. 7/28/93 (Sulkes) at ll.V The findings of the IOC group have been quite consistent
with Dr. Sulkes' findings on the inadequacy of documentation at Ebensburg. Tr. 7/28/93
(Sulkes) at 12-3. For example, one IOC survey, dated September 1988, indicates that
Ebensburg did not meet the standard of providing physician's notes that were current,
informative and justify the medical plan. Tr. 7/28/93 (Sulkes) at 13.V This IOC finding is
consistent with Dr. Sulkes' findings. Tr. 7/28/93 (Sulkes) at 14. In addition, an IOC survey
dated November 1987, indicates that again, as in the prior year, there are some discrepancies
between the computerized physician's case management goals and the physician's
documentation. Tr. 7/28/93 (Sulkes) at 14; U.S. Exh. 62. The surveyors suggest that these
be reviewed by the physicians at intervals to ensure accuracy and consistency with current
V For example, in the IOC's most recent findings about Ebensburg dated January 1993, the IOC team concluded: "The documentation of Activity Progress Notes should appear in the recipients' records to address the related supplemental procedure and/or behavioral objective. This documentation was considered a "Needs Improvement" area for the 1991 review and will be again for this review period. The Progress Notes are required to be current with the observed condition of the recipient and therefore should reflect the types of activities attended, the level of participation, recipient's response and personal preferences." U.S. Exh. 67. The January findings also listed deficiencies such as no sequential documentation for one particular client. U.S. Exh. 67. For example, among their many findings in this area, the IOC team concluded "The assessment process, critical to the Active Treatment process, is frequently found to be incomplete and/or incongruent with established goals. If the recipient has achieved maximum potential or developmentally incapable of growth, then documentation must reflect medical evidence and/or historical efforts ... The documentation requirements for the Behavior Modification process continues to need improvement. Many plans continue to reflect little to no progress, lack of revision and documentation of and the number of reinforcements and interventions ... QMRP reviews are not consistently documenting changes, progress and overall status of the IHP." U.S. Exh. 67.
'/ The IOC concluded mat there were "some discrepancies between physician documentation and case management goals. It appears that these goals are not consistently reviewed, and therefore, do not correlate with other physician documentation." U.S. Exh. 63. So there was a discrepancy between what the physicians are saying and what the staff are doing. Tr. 7/28/93 (Sulkes) at 13. It appears that the goals are not consistently reviewed and therefore do not correlate with other physician documentation. Tr. 7/28/93 (Sulkes) at 13.
XII-7

medical plans of care. Tr. 7/28/93 (Sulkes) at 14; U.S. Exh. 62. Again, this IOC finding is
quite consistent with the conclusions of Dr. Sulkes. Tr. 7/28/93 (Sulkes) at 14.
The following are just a few representative examples of poorly documented long-term
care at Ebensburg. The examples below are not the only examples of poor documentation
that Dr. Sulkes found reviewing the Ebensburg medical records. Tr. 7/28/93 (Sulkes) at 11.
• Ann R. had pneumonia identified by x-ray on January 3, 1992. Tr. 7/28/93 (Sulkes) at 5-6. Ann's condition appeared quite serious.l/ On January 10, 1992, she was admitted to the hospital and on January 20, 1992, she died. Tr. 7/28/93 (Sulkes) at 6. For the entire two-week period leading up to her death, including the week prior to her hospital admission, there were only two physician's notes: one on January 3rd that says: "pneumonia, right upper lobe," and one on the 9th which says: "lungs clear to A&P, will continue present treatment." Tr. 7/28/93 (Sulkes) at 6; U.S. Exh. 852BB.V There was no note about sending her to the hospital, no note about what was happening in the hospital. Tr. 7/28/93 (Sulkes) at 6; U.S. Exh. 852BB. The doctor's notes were inadequate here because one cannot tell from reading them whether the doctor looked at her on any days other than the 3rd and the 9th. Tr. 7/28/93 (Sulkes) at 7. This is true even when one looks at the nursing notes. U.S. Exh. 852AA. One cannot tell whether anyone listened to her lungs or examined her. Tr. 7/28/93 (Sulkes) at 7. Even though she continued to cough and run a fever, she never had her respiratory rate measured. Tr. 7/28/93 (Sulkes) at 6; U.S. Exh. 852AA. That is a fundamental measure of respiratory status. Tr. 7/28/93 (Sulkes) at 6. For a person with pneumonia, the doctor has to order respiratory rates if they are not being done as a matter of course. Tr. 7/28/93 (Sulkes) at 8. There was no indication that that was done here for Ann. Tr. 7/28/93 (Sulkes) at 8.
V She had pneumonia and a high fever on January 3-4, 1992; on January 5, she had "a deep harsh cough this p.m.; breath sounds on auscultation reveal coarse rales bilaterally and diminished breath sounds in bases bilaterally"; she often refused meals or ate poorly at meals that week; on January 9, she was noted to have a "deep harsh cough ... wheezing this afternoon"; the "deep harsh cough" continued on the 10th. U.S. Exh. 852AA.
%J Dr. Kastner testified that he reviewed Ann R.'s death record, but he did not know that she had suffered a right lower lobe pneumonia on January 3, 1992, just seventeen days before her death. Tr. 9/13/93 (Kastner) at 233. He also did not know whether or not the medical staff at Ebensburg took or noted her respiratory rate during the time between suffering the earlier bout of right lower lobe pneumonia on January 3, 1992 and her death of bilateral pneumonia on January 20, 1992. Tr. 9/13/93 (Kastner) at 234. Dr. Kastner similarly did not know if the Ebensburg nursing notes and doctors notes were adequate for Ann R. during the crucial period of time between January 3 and January 20, 1992. Tr. 9/13/93 (Kastner) at 235.
XII-8

• Nancy L., as of September 1992, was having frequent changes in her anticonvulsant or anti-seizure medications, but under the medication change section of the sixty day notes there were no medication changes listed. Tr. 7/28/93 (Sulkes) at 8.
• William P. lost thirty pounds over a sixteen month period and had known gastroesophageal reflux and yet there are no notes in his record about his weight loss. Tr. 7/28/93 (Sulkes) at 8.
• Alan G. had known GER and he was being treated with anti-reflux medications. Tr. 7/28/93 (Sulkes) at 9. Ebensburg maintained a list of residents with identified GER and yet Alan was not on this list. Tr. 7/28/93 (Sulkes) at 9. Further, in reviewing his medical chart, there was no indication that Alan's physician was aware of the problem even though the doctor was ordering medication for it. Tr. 7/28/93 (Sulkes) at 9. There was also one hospitalization that was not noted in a sixty day note. Tr. 7/28/93 (Sulkes) at 9.
• Ethel M., in 1989, had been hospitalized five times and yet had gone for 19 months without an annual medical evaluation or summary. Tr. 7/28/93 (Sulkes) at 10.
• Neal S. suffered from complex seizures and yet had no long-term plan to address this problem. Tr. 7/28/93 (Sulkes) at 10. His annual medical evaluation did not mention his admission for status epilepticus. Tr. 7/28/93 (Sulkes) at 10. In fact, even though he had stopped breathing during this episode, the annual review described his seizure control as fair. Tr. 7/28/93 (Sulkes) at 10. Neal died in January 1993. Tr. 7/28/93 (Sulkes) at 10.
• Brian B. had vomited a piece of wood that he had ingested, and yet Brian was not included on Ebensburg's list of those individuals with identified pica behavior. Tr. 7/28/93 (Sulkes) at 11.
2. Ebensburg Is Not Adequately Documenting Or Coordinating The Input From Outside Consultant Doctors Into The Residents' Long-Term Plan Of Care.
As part of providing proactive continuity of long-term care, it is generally accepted
that good communication among the primary physicians in an institution and the outside
medical consultants is necessary. Tr. 7/28/93 (Sulkes) at 16. It is important so that all
physicians treating an individual know what the medical plan is for that individual to ensure
consistency. Tr. 7/28/93 (Sulkes) at 16.
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The communication that takes place between the Ebensburg doctors and the outside consultants can be written and need not take place face-to-face. Tr. 7/28/93 (Sulkes) at 44. Nonetheless, it is generally accepted that a real dialogue must take place even if in written form so that it is clear that the primary care physician has read and understood the recommendation of the outside consultant and either adopted and implemented the recommendation or rejected it with an explanation of the reasons for the rejection. Tr. 7/28/93 (Sulkes) at 45. Poor communication can negatively affect the residents because if an appropriate recommendation is not adopted by the primary care physician, then the individual's care will suffer. Tr. 7/28/93 (Sulkes) at 18. Dr. Shertz admitted that a progress note should be entered discussing what recommendations have been made by a consultant and whether or not the primary care physician agrees with the recommendations. U.S. Exh. 632 (Shertz Dep.) at 139.!/
However, the communication between the Ebensburg primary care physicians and the outside medical consultants is not adequate to meet generally accepted standards in the field. Tr. 7/28/93 (Sulkes) at 17. There was no evidence that the doctors and the outside consultants were talking to each other even in written form. Tr. 7/28/93 (Sulkes) at 17.
'/ On paper at least, Ebensburg recognizes this. For example, Reference Policy 20 provides that the Ebensburg physician will "write progress notes summarizing results of consultations with outside specialists. Date and sign progress notes including appropriate degree/ title following name." U.S. Exh. 20. Ebensburg Reference Policy 118 provides that the Ebensburg physician will "review consultant's or team's report, initial and date it... the team will be apprised of consultant's recommendations and asked for input... a progress note must be written in the client's chart summarizing the report and any necessary orders must be written, if physician is in agreement with recommendations submitted ... if not in agreement with recommendation, physician must document on the IPN the reason for his decision not to follow the recommendation and develop appropriate alternate medical program to handle the problem." U.S. Exh. 178.
XII-10

facility and a hospital is essential in making acute care at the hospital a real part of the individual's long-term medical plan of care. Tr. 7/28/93 (Sulkes) at 20.
This aspect of the coordination of care at Ebensburg is inadequate. Tr. 7/28/93 (Sulkes) at 21. Experts for both the Commonwealth and the United States recognized problems in this area. Tr. 7/28/93 (Sulkes) at 21; Tr. 9/13/93 (Kastner) at 187. Sometimes there are notes written in the individual's medical chart prior to being sent to the hospital and often there are not. Tr. 7/28/93 (Sulkes) at 21. Often there are no notes entered when the person returns from the hospital. Tr. 7/28/93 (Sulkes) at 21. Even if the Ebensburg doctor speaks with the doctors at the hospital, without properly documenting the oral conversations, there is no record for other professionals — on other shifts or covering for a doctor when he is on vacation — to rely on in terms of future care. Tr. 7/28/93 (Sulkes) at 21. This does not meet generally accepted standards in the field or Ebensburg's own policies. Dr. Sulkes stressed that verbal communication with the hospital is "very nice," but verbal communication alone without documentation only has an impact on those people who were involved in the conversation. Tr. 7/28/93 (Sulkes) at 42.
Upon readmission, Dr. Shertz acknowledged that it is Ebensburg policy for the physician to write a progress note. U.S. Exh. 632 (Shertz Dep.) at 132.22/ However, Dr. Shertz admitted that there are probably resident medical charts that do not contain progress notes upon readmission from the hospital. U.S. Exh. 632 (Shertz Dep.) at 132. Thus,
™/ Ebensburg Reference Policy 20 provides that the physicians will "write all progress notes legibly and on the approved forms in the client's record ... write a progress note with every client evaluation, new order, or order renewal, consultation review, hospital admission and discharge. A physician note is required with any significant change in the client or any significant change in the medical care program." U.S. Exh. 20.
XII-12

Ebensburg is not meeting its own policies with respect to medical documentation of a resident's return from the hospital. Tr. 7/28/93 (Sulkes) at 43.
In addition, the Ebensburg staff relies too often on the information contained in the hospital discharge summaries; however, this practice is misguided because the summaries hardly ever return back to Ebensburg at the same time the individual returns. Tr. 7/28/93 (Sulkes) at 43. Dr. Shertz admitted that when a resident returns to Ebensburg from the hospital, the discharge summary written by the attending physician will follow later. U.S. Exh. 632 (Shertz Dep.) at 131. Further, the fact that a doctor may have simply read the discharge summary does not mean that he or she has processed the information and incorporated it into the person's medical plan of care. Tr. 7/28/93 (Sulkes) at 43.
Dr. Kastner agreed that documentation of transfers between units or between Ebensburg and Mercy Hospital were often incomplete or non-existent. Tr. 9/13/93 (Kastner) at 187. Dr. Kastner added that there are instances "when the documentation, the transfers between Ebensburg and Mercy Hospital, aren't included in the progress notes and the medical records aren't as frequent as they should be." Tr. 9/13/93 (Kastner) at 144. Dr. Kastner testified that the recording and documenting of these transfers ought to be featured more prominently in the Ebensburg medical records. Tr. 9/13/93 (Kastner) at 187. Dr. Kastner testified that this should be improved because the level of documentation available within the chart was not always sufficient to guarantee continuity of care for clients who are moved to acute care settings. Tr. 9/13/93 (Kastner) at 187. In short, he indicated that the hospitalization records could be improved. Tr. 9/13/93 (Kastner) at 163. He indicated that the Ebensburg physicians are "just going to have to make a better effort to write their notes."
XII-13

Tr. 9/13/93 (Kastner) at 163 Dr. Kastner testified that they are "just going to have to do a
better job." Tr. 9/13/93 (Kastner) at 163. There are many examples of this type of
deficiency at Ebensburg.
• Neal S. was admitted to the hospital for unremitting seizures. Tr. 7/28/93 (Sulkes) at 21. He was being closely followed by the Ebensburg neurology consultant, but when he went to the hospital, a different neurologist was in charge of his care. Tr. 7/28/93 (Sulkes) at 21-2. From reviewing the written record, Dr. Sulkes could discern no coordination between the hospital neurologist, the Ebensburg consultant neurologist and the Ebensburg primary care physician. Tr. 7/28/93 (Sulkes) at 22.
• Charles S. was admitted to the hospital with unremitting seizures. Tr. 7/28/93 (Sulkes) at 22. He had had his seizure care completely reworked in the hospital with no discussion in the record about what the plan had been at Ebensburg in terms of managing his anticonvulsants. Tr. 7/28/93 (Sulkes) at 22.
• Raymond W. was admitted to the hospital with aspiration pneumonia and was vomiting blood. Tr. 7/28/93 (Sulkes) at 22. His diagnosis was aspiration. Tr. 7/28/93 (Sulkes) at 22. When he was readmitted to Ebensburg, there was no evidence or suggestion that this event was going to result in a change in his medical plan of care or that there had even been a discussion with the hospital about this. Tr. 7/28/93 (Sulkes) at 22.
• Darlene F. had significant problems with pica behavior where she would ingest non-food sorts of objects like cigarettes. Tr. 7/28/93 (Sulkes) at 9. As a result of eating cigarettes, she developed blood tinged vomiting. Tr. 7/28/93 (Sulkes) at 9. When she was sent to the hospital, there was no note prior to her transfer to the hospital and the note written upon her return from the hospital did not describe why she had been sent to the hospital. Tr. 7/28/93 (Sulkes) at 9. In addition, there was no plan about how to address her problem pica behavior. Tr. 7/28/93 (Sulkes) at 9. Also, the taper of one of Darlene's psychotropic medications was stopped with no explanation. Tr. 7/28/93 (Sulkes) at 9-10.
• Mary Ann R. was hospitalized but her sixty day note that followed the hospitalization did not mention it. Tr. 7/28/93 (Sulkes) at 10.
• George N. was admitted to the hospital on January 10 with upper gastrointestinal bleeding and was discharged from the hospital on the 19th. Tr. 7/28/93 (Sulkes) at 10. There was no description in the record of how George looked when he came out of the hospital. Tr. 7/28/93 (Sulkes) at 10. In fact, there was no progress note written until the 29th, ten days later, when he was having respiratory distress. Tr. 7/28/93 (Sulkes) at 10. Respiratory distress is a condition serious enough to possibly have him re-admitted to the hospital. Tr. 7/28/93 (Sulkes) at 10. Yet, because there was no description of how George
XII-14

looked immediately after the hospitalization, there was no way to tell if he had deteriorated, improved or stayed the same while back at Ebensburg. Tr. 7/28/93 (Sulkes) at 10.
The actual list of examples of deficient recordkeeping practices at Ebensburg is far
more numerous than the examples above. Tr. 7/28/93 (Sulkes) at 22.1V
4. Ebensburg Is Consistently Failing To Maintain Sufficient Physician Staffing Levels.
The current overall physician staffing level at Ebensburg negatively impacts on its
ability to provide proactive care to its residents. Tr. 7/27/93 (Sulkes) at 149. A ratio of one
doctor to one hundred residents is a reasonable average for a facility like Ebensburg. Tr.
7/27/93 (Sulkes) at 150. A ratio of one to one hundred twenty would be an outside limit of
what was reasonable. Tr. 7/27/93 (Sulkes) at 150. Currently, however, there are only four
doctors on staff full-time at Ebensburg and the current doctor to client ratio at Ebensburg is
approximately one doctor to 120-125 clients. U.S. Exh. 632 (Shertz Dep.) at 28. Having
four physicians to cover medical responsibilities for the residents at a facility the size of
Ebensburg is thus at the outer limit of what is reasonably acceptable. Tr. 7/28/93 (Sulkes) at
26.
11/ Dr. Kastner testified that he did not see any problems in terms of coordination between Ebensburg and Mercy Hospital as it related to patient care. Tr. 9/13/93 (Kastner) at 162. However, Kastner did not review the medical records of any individuals discussed above. Further, Dr. Kastner based this conclusion upon an assumption that the staff of Mercy Hospital was "comfortable" with the Ebensburg residents, based upon their "familiarity" with them. Tr. 9/14/93 (Kastner) at 40; Tr. 9/13/93 (Kastner) at 163; Def. Exh. HH at 14. However, this assumption is faulty because it does not take into account residents never before hospitalized or the addition of new doctors at Mercy; Dr. Kastner also testified that he has never personally interviewed anyone at Mercy Hospital to verify that the staff there was in fact "familiar" and "comfortable" with the Ebensburg residents. Tr. 9/14/93 (Kastner) at 40. Dr. Kastner indicated that in fact, he had never even been to Mercy Hospital. Tr. 9/14/93 (Kastner) at 40-1.
Xn-15

The Ebensburg physician staffing levels regularly fall below what is acceptable however, when one doctor is absent from the facility. When one doctor is on vacation, for example, Dr. Shertz acknowledged that the other doctors need to cover for the absent one. U.S. Exh. 632 (Shertz Dep.) at 32. Dr. Shertz acknowledged that this increases each doctor's caseload to a ratio well above the 1:120-125 ratio when all four doctors are present. U.S. Exh. 632 (Shertz Dep.) at 32. In fact, when there are only three doctors present, the physician to resident ratio leaps up to 1:150 or 160. Tr. 7/27/93 (Sulkes) at 150.!!/
Dr. Sulkes concluded that this number is "too high." Tr. 7/27/93 (Sulkes) at 150. The difficulty in handling 150 or 160 residents as opposed to 100 or 120 is that the physician will have less time to pay attention to the residents who require chronic care. Tr. 7/27/93 (Sulkes) at 151. Dr. Kastner agreed that if a doctor in an institution becomes responsible for a greater number of patients, the time he has to devote to the care and treatment of each individual necessarily decreases. Tr. 9/14/93 (Kastner) at 36. Dr. Kastner indicated that there is a point at which this has a negative effect on the doctor's ability to chart and maintain medical records and this has an effect on medical care. Tr. 9/14/93 (Kastner) at 36. Making the rounds to see every resident becomes much tougher because every physician has to see that many more people. Tr. 7/27/93 (Sulkes) at 151. When the day-to-day acute problems arise, it becomes "impossible" for the doctors to adequately address the residents' long-term medical needs. Tr. 7/27/93 (Sulkes) at 151, line 6. Dr. Sulkes characterized this
l2J Individual doctors may end up assuming responsibility for even more residents. For example, Dr. Shertz admitted that if Dr. Reyes goes on vacation, Dr. O'Connor would assume responsibility for both buildings five (Laurel) and seven (Keystone) thereby doubling her normal caseload to serve about 192 individuals. U.S. Exh. 632 (Shertz Dep.) at 33, 34. In addition, Dr. Lightbourn would have to assume responsibility for buildings one (Villa) and two (Horizon) also increasing her caseload to serve about 192 clients. U.S. Exh. 632 (Shertz Dep.) at 34.
XII-16

situation as one where "[a]ll you can do is chas[e] your tail, trying to keep up with what's happening today; planning the long-term becomes very difficult." Tr. 7/27/93 (Sulkes) at 151, line 7-9 Ml
When Dr. Sulkes first visited Ebensburg, there were five full-time doctors on staff. Tr. 7/27/93 (Sulkes) at 150. He was "troubled" when the number of physicians dropped to four because that means whenever any doctor is on vacation, is sick, or is away at a meeting, there are only three physicians around to care for and treat the residents. Tr. 7/27/93 (Sulkes) at 150.
Pursuant to their contract with the Commonwealth of Pennsylvania, the Ebensburg physicians are entitled to four weeks of vacation each year. U.S. Exh. 632 (Shertz Dep.) at 31; Tr. 7/27/93 (Sulkes) at 150. Dr. Shertz and the other three Ebensburg doctors took the full four weeks of vacation they were entitled to in 1992. U.S. Exh. 632 (Shertz Dep.) at 32. In addition to vacation days off, physicians are entitled to take days off for holidays, meetings out of town like national meetings of medical societies, and continuing medical education. Tr. 7/27/93 (Sulkes) at 151. The doctors are also entitled to sick days. Tr. 7/27/93 (Sulkes) at 150. Four weeks of vacation multiplied by four doctors is sixteen weeks, and when combined with days off for meetings and sick days equates to about a third of the year when there are only three doctors in place at Ebensburg to address the residents' medical needs. Tr. 7/27/93 (Sulkes) at 150.
"/ On cross-examination, Dr. Sulkes had difficulty understanding the suggestion by opposing counsel that the Ebensburg Medical Director would turn down an offer for a fifth physician as "unnecessary" because when Dr. Sulkes first toured the facility, five physicians were employed at Ebensburg. Tr. 7/28/93 (Sulkes) at 26. Obviously someone thought a fifth physician was necessary at that time; the facility's recognition of the need for a fifth physician is bolstered by the facility's recent renewed efforts to hire an additional doctor. Tr. 7/28/93 (Sulkes) at 26; Tr. 10/19/93 (O'Brien) at 82, 113.
XII-17

Caseload and primary care responsibilities have had an impact on the Ebensburg staff
doctors' ability to juggle their many responsibilities. For example, Dr. Shertz implied that
he does not attend some committee meetings at Ebensburg because his primary care
responsibilities take priority and he does not have time to attend. U.S. Exh. 632 (Shertz
Dep.) at 81.
The care provided to Patricia S. just before her death is a troubling example of where
an Ebensburg doctor was unable to or did not attend to the medical needs of a resident. Tr.
7/27/93 (Sulkes) at 151-2. From this example, Dr. Sulkes concluded that the Ebensburg
physicians are so overtaxed with responsibilities that they cannot attend to residents' needs
when they are acutely deteriorating. Tr. 7/27/93 (Sulkes) at 156(2-5).
• On March 11, 1992, at 9:15 a.m., Patricia S. was found to be in shock. Tr. 7/27/93 (Sulkes) at 152; U.S. Exh. 474AA, 474BB. Her temperature was 93.5 degrees, her blood pressure was low (64/40) and her pulse was high (130 beats per minute). Tr. 7/27/93 (Sulkes) at 152, 153; U.S. Exh. 474AA, 474BB. Dr. Kastner agreed that Patricia was in shock. Tr. 9/13/93 (Kastner) at 236. He agreed that a person in this condition should be treated medically as soon as possible. Tr. 9/13/93 (Kastner) at 236.
Shock is a life threatening, emergency condition where the person is getting ready to die. Tr. 7/27/93 (Sulkes) at 152. The person in shock needs immediate attention. Tr. 7/28/93 (Sulkes) at 29. Dr. Kastner agreed that shock is an emergency condition requiring swift and immediate medical attention. Tr. 9/13/93 (Kastner) at 235-6. When the body is in shock, it is doing all it can to hold on. Tr. 7/28/93 (Sulkes) at 29. The longer a person is in shock prior to getting to the operating room for what ultimately becomes the bottom line corrective treatment, the less chance there is that the treatment is going to be effective. Tr. 7/28/93 (Sulkes) at 30. Certainly, if the person is dead on arrival to the emergency room, the surgeon cannot fix the problem. Tr. 7/28/93 (Sulkes) at 30. Advanced life support is needed before successful treatment is possible. Tr. 7/28/93 (Sulkes) at 30-1.
That morning at Ebensburg, a physician was notified of Patricia's condition, but no Ebensburg physician ever made it over to see her. Tr. 7/27/93 (Sulkes) at 152; U.S. Exh. 474AA, 474BB. There was a second call to the doctor and the doctor advised that an ambulance should be called, but again, the doctor did not go to personally see, care for, or treat Patricia. Tr. 7/27/93 (Sulkes) at 152; U.S. Exh. 474AA, 474BB. Patricia eventually left Ebensburg at 10:00 a.m. Tr. 7/27/93 (Sulkes) at 152. Dr. Kastner also indicated that this person should not be treated by telephone. Tr. 9/13/93 (Kastner) at 236.
XII-18

At no time from the time the shock was discovered at 9:15 a.m. to her departure via ambulance at 10:00 a.m., did an Ebensburg physician personally go to Patricia's side to help care for her during her life threatening emergency. Tr. 7/27/93 (Sulkes) at 152; U.S. Exh. 474BB. For forty-five minutes while Patricia was suffering from a life threatening emergency, no Ebensburg doctor could make it to her side to care for and treat her. Tr. 7/27/93 (Sulkes) at 154. It is clear from this example that the doctors at Ebensburg did nothing in the time that Patricia was in shock before the ambulance arrived. Tr. 7/28/93 (Sulkes) at 30. An Ebensburg incident report of the event, clearly reveals that no doctor personally examined Patricia that day before being sent to the hospital via the ambulance. Tr. 7/27/93 (Sulkes) at 154; U.S. Exh. 474BB. On the incident report, the box labelled "examination by physician" is marked "no." Tr. 7/27/93 (Sulkes) at 154; U.S. Exh. 474BB.il/
At 9:15 or 9:30 in the morning, when the physicians are present in the facility, no physician is too far away to get to a person's side who is in shock. Tr. 7/27/93 (Sulkes) at 155. The farthest away any doctor could be from a patient at Ebensburg is about five minutes. Tr. 7/27/93 (Sulkes) at 155. Dr. Sulkes concluded therefore that the decision was made to let the ambulance staff manage this person's care. Tr. 7/27/93 (Sulkes) at 155. Dr. Kastner has toured the facility and agreed that at 9:15 a.m., if all the doctors are on duty, none of them are physically more than about three to five minutes away from any of their patients who might need emergency treatment. Tr. 9/13/93 (Kastner) at 236. Dr. Sulkes added, "putting the best face on it that I can put on it... I have to conclude that physicians are so overtaxed with responsibilities that they can't get to people's sides when they are acutely deteriorating." Tr. 7/27/93 (Sulkes) at 156(2-5). He added that a less charitable interpretation of the situation would be that the doctors did not grasp the severity of her condition (which was pretty obvious) or that they just did not care. Tr. 7/27/93 (Sulkes) at 156.!!/
To further compound matters, the only physician note describing these events present in Patricia's medical record appears after her death and was written five full days after she died. Tr. 7/27/93 (Sulkes) at 152; U.S. Exh. 474CC. The Ebensburg physician's notes for Patricia clearly reveal that there is a note on March 3, and yet not another until March 16.
11/ In testifying about this issue, Dr. Kastner never addressed Dr. Sulkes' point about the poor response time of the overtaxed Ebensburg doctors caused by poor staffing ratios. Instead, Dr. Kastner testified at length about matters off the point, such as the fact that Patricia S. died of a ruptured viscus, that a ruptured viscus is a very difficult diagnosis to make, and that Patricia's parents would not consent to surgery at the hospital. Tr. 9/13/93 (Kastner) at 172, 174.
" / On cross-examination, opposing counsel brought out the issue of the parent's consent to certain unrelated medical procedures. However, Dr. Sulkes testified that it is wholly irrelevant whether or not Patricia's family gave or withheld consent for the ultimate surgery at the hospital; or whether or not they gave or withheld consent for certain GI testing in the 1980s. Tr. 7/28/93 (Sulkes) at 31-32. Unless the family expressly withheld consent for life support to be provided, the presumption is that you provide it. Tr. 7/28/93 (Sulkes) at 32.
XII-19

Tr. 7/27/93 (Sulkes) at 155; U.S. Exh. 474CC. The March 16 note was written five days after her death. Tr. 7/27/93 (Sulkes) at 155; U.S. Exh. 474CC.
B. Nursing Services At Ebensburg Are Inadequate. 1. Acute And Chronic Nursing Care Do Not Meet Professional Standards.
Nursing care at Ebensburg does not meet professionally accepted standards. Tr. 7/29/93 (McGowan) at 168. Significant health care problems of Ebensburg residents are not identified and therefore they are not addressed. This has resulted in serious illnesses and medical problems, hospitalizations, and death. Tr. 7/29/93 (McGowan) at 168-169. There are deficiencies in both acute and chronic nursing care. Id. at 168-169. Nurses do not adequately assess residents who are acutely ill. Id. at 168. Even when a resident is seriously ill, Ebensburg nurses frequently only take the resident's temperature without checking any other vital signs, which is standard nursing procedure. Id. at 170, 175. Ebensburg nurses do not conduct chest assessments and never listen to chest sounds at any time during or after a meal. Tr. 7/29/93 (McGowan) at 172; U.S. Exh. (Sponsky Dep.) at 24. They also do not conduct abdominal assessments and do not take abdominal girth measurements. Tr. 7/29/93 (McGowan) at 172, 177; U.S. Exh. 638 (Sponsky Dep.) at 19.
Ebensburg nurses also do not adequately identify and treat residents with clearly developing patterns of health deterioration which seriously compromise residents' health and/or place them at risk for hospitalization and death. Tr. 7/29/93 (McGowan) at 169. There are three particularly problematic areas of patterns of deterioration at Ebensburg where nurses fail to take steps for enhanced observation and intervention to prevent morbidity and mortality. These areas are where residents: (1) have histories of repetitive hospitalizations
XII-20

for aspiration, reflux, and bowel obstruction; (2) have repeated injuries; and (3) are showing
signs of loss of skills or deterioration in their abilities. Id. at 171.
Based upon her 400 hour review of 74 resident records, Ms. McGowan found an
overall lack of adequate assessments, monitoring, and treatment interventions for residents
with health care problems. Id. at 170-171. Marcia Stiles, who has been a registered nurse
supervisor at Ebensburg for the past fourteen years and is a member of the Dysphagia Team,
agrees that there is a need for more in-depth nursing assessment at Ebensburg. U.S. Exh.
638A (Stiles Dep.) at 85. She also sees a need for nurses to make rounds to check people
who are sick during the night before the doctor comes in the morning. U.S. Exh. 638A
(Stiles Dep.) at 86. The failure to adequately assess and treat residents with acute and
chronic illnesses departs from accepted professional nursing standards. Id. at 169-170.
The following individuals are among the many examples of Ebensburg residents who
have been hospitalized or died following the persistent deficiencies in nursing practices that
Ms. McGowan identified:
• Steven S. died in May 1991 of pneumonia. Tr. 7/29/93 (McGowan) at 179, 181. On the night before his death, he was extremely pale, gagging, and vomiting. Tr. 7/29/93 (McGowan) at 180-181. Ebensburg nurses did not take any vital signs or conduct a chest or abdominal assessment. Tr. 7/29/93 (McGowan) at 181. In fact, a nurses did not evaluate him until 7:10 the next morning. At that time he appeared to be in shock. He was not transported to the hospital until several hours later, at 9:55 a.m. Tr. 7/29/93 (McGowan) at 181.
• Sam B. died on April 12, 1993. Tr. 7/29/93 (McGowan) at 177. Nurses did not conduct assessments of his health condition in the months prior to his death when he was vomiting, having difficulty swallowing, refusing meals, and had an elevated temperature. Tr. 7/29/93 (McGowan) at 177-178.
• Pat S. died on March 12, 1992 of a ruptured viscus. Tr. 7/29/93 (McGowan) at 176. Although she had a history of chronic abdominal distension, nurses did not record any abdominal girth measurements so there was no baseline data. Tr. 7/29/93 (McGowan) at
XII-21

176. On the day of her death, Ebensburg nurses did not identify her signs and symptoms of an acutely distended abdomen and shock on a timely basis. Tr. 7/29/93 (McGowan) at 176.
• Marilyn C. died on January 1, 1990. Tr. 7/29/93 (McGowan) at 173. Prior to her death, she began having a low grade fever along with intermittent vomiting in early December 1989. Tr. 7/29/93 (McGowan) at 175. By December 11, 1989 she was unable to open her mouth. On December 15, she vomited a very large amount of dark brown liquid and was admitted to the Critical Care Unit at Mercy Hospital for a collapsed lung. Tr. 7/29/93 (McGowan) at 175. Prior to her hospitalization, Ebensburg nurses did not assess Marilyn's chest sounds. Tr. 7/29/93 (McGowan) at 175. They did not record her respiratory rate until a few days before her death and only intermittently noted that they contacted a physician in spite of her serious condition. Tr. 7/29/93 (McGowan) at 175-176.
• Ann B. required emergency hospitalization for a bowel obstruction on September 16, 1991. Tr. 7/29/93 (McGowan) at 181. While in the emergency room, she went into respiratory arrest and had to have part of her bowel removed. Tr. 7/29/93 (McGowan) at 181. Ebensburg nurses did not chart any vital signs prior to her hospitalization. Tr. 7/29/93 (McGowan) at 182. Contrary to accepted nursing practice, Ebensburg nurses treated her with Tylenol and fleet enemas despite the fact that there were clear signs and symptoms of an acute abdomen. Tr. 7/29/93 (McGowan) at 182.
• Paul G. was hospitalized for a bowel obstruction on July 22, 1992, which required a bowel resectioning operation. Tr. 7/29/93 (McGowan) at 183-184. Despite repeated vomiting episode in the days prior to his hospitalization, Ebensburg nurses only took his temperature. Id. They did not take any other vital signs and did not conduct an abdominal assessment. Id.
In the fifteen and-a-half months prior to Stephen S.'s death in May 1991, he vomited
212 times. Tr. 7/29/93 (McGowan) at 179. Despite the fact that he had a history of
hospitalizations for GI bleeding, nurses only tested his vomitus for occult blood 23% of the
time, which was 50 of his 212 instances of vomiting. Tr. 7/29/93 (McGowan) at 179.
Moreover, even though in 48 of the 50 times that nurses tested his vomitus it was positive
for occult blood, Ebensburg nurses only notified the physician in nine of those 48 instances.
Tr. 7/29/93 (McGowan) at 179. Both the United States' and defendants' experts who were
qualified and testified about gastrointestinal problems emphatically state that it is both
important and accepted professional practice to test vomitus for occult blood where there is a
XII-22

history of GI bleeding and to notify the physician of the results. Tr. 12/13/93 (Rosenthal) at 165-166; Tr. 12/13/93 (Rubin) at 85; Tr. 7/27/93 (Sulkes) at 115-6, 123-4. There is no written Ebensburg policy for testing occult blood. U.S. Exh. 638 (Sponsky Dep.) at 23. Ebensburg's Director of Nursing admits that Ebensburg nurses do not test vomitus for occult blood even when a resident has a history of GI bleeding. U.S. Exh. 638 (Sponsky Dep.) at 22.
2. There Have Been Delayed Nursing Responses To Injuries.
There are instances, as well, of a delayed nursing response to Ebensburg residents who have been injured. Tr. 7/29/93 (McGowan) at 186-187; U.S. Exh. 790. In some situations, direct care staff fail to notify the nurse when an injury occurs. In other cases, the nurse fails to recognize the seriousness of significant injuries. For example, despite the fact that Ebensburg staff have an obligation to contact a nurse immediately whenever a resident hits or kicks another resident, they did not notify a nurse when a resident was found hitting and kicking James W. in late September 1992. U.S. Exh. 790; U.S. Exh. 501 (cc); U.S. Exh. 638 (Sponsky Dep.) at 108. Instead, staff waited one-and-a-half hours to report this incident to the nurse after James started complaining of chest pain. U.S. Exh. 790; U.S. Exh. 501 (cc). Even though the nurse documented that he had bruising on his rib cage and there was a "clicking" sound when touching his ribs, all the nurse did was to give him tylenol. U.S. Exh. 501 (cc). The nurse did not notify the doctor until more than an hour later. Id. James was finally sent to the hospital at 12:30 p.m. (four hours after the original injury) and found to have a ruptured spleen, pneumothorax, and two liters of blood in his abdominal cavity. He had to have emergency surgery to remove his spleen. Id.
XII-23

Ebensburg's Director of Nursing admits that the seriousness of James' condition necessitated more immediate medical attention than waiting an hour and a half to transport him to the hospital. U.S. Exh. 638 (Sponsky Dep.) at 116. Despite the seriousness of this event, Ms. Sponsky did not even review the occurrence report until nine days later. U.S. Exh. 638 (Sponsky Dep.) at 109. As part her review, she did not investigate why the nurse was not notified for approximately 1 1/2 hours until after the incident occurred. Id. at 110. No one at Ebensburg has every evaluated whether direct care staff are reporting injuries to nurses on a timely basis and the Nursing Director does not think that it is her responsibility to look at the circumstances surrounding James' injury to determine why there was a delay in notifying the nurse. Id. at 114-115. Ms. Sponsky also does not know if anyone investigated why there was an additional 1 1/2 hour delay between the time the nurse examined James and his emergency transport to the hospital. Id. at 115. This was not an isolated incident at Ebensburg or for James. One year earlier, in late November 1991, James was found fighting with another client at 10:15 a.m. U.S. Exh. 501 (aa); U.S. Exh. 790. Despite the fact that James had a bloody mouth, staff did not report his injury to the nurse until 5:30 that evening when he complained of mouth pain and refused supper. Id. at 00210934. Although he was seen at dental clinic the following day, an Ebensburg physician did not examine him until two days later, at which time he was found to have a fractured jaw. U.S. Exh. 501 (bb).
Inadequate nursing care also resulted in the amputation of Ronnie B.'s finger. Her finger necessitated seventeen sutures when it was lacerated and crushed during an aggressive episode in mid 1990. U.S. Exh. 283. Despite a continuing fever and agitation for several days following this incident, Ebensburg nurses did not examine her wound and did not notify
XII-24

the physician. When the dressing on her finger was finally removed by the physician, there was a foul odor and gangrene on her finger. Her finger was amputated the next day. Tr. 7/29/93 (McGowan) at 182; Tr. 7/30/93 (McGowan) at 14. United States' Exhibit 790 summarizes nine additional recent events at Ebensburg in which there was a delayed nursing response to resident injuries. The defendants did not refute the accuracy of this exhibit.
3. Nursing Care Plans Are Inadequate. Even where nurses document the existence of problematic health care symptoms, they fail to develop an adequate treatment plan. Tr. 7/29/93 (McGowan) at 174-175. In devising treatment plans, nurses select from a menu of 34 "supplemental procedures," most of which were developed prior to 1988. U.S. Exh. 638 (Sponsky Dep.) at 36; U.S. Exh. 31. These procedures do not constitute adequate nursing treatment plans and do not meet accepted nursing standards. Tr. 7/29/93 (McGowan) at 190. They consist of general instructions to direct care staff rather than detailing specific nursing objectives and interventions. Id. at 190-191. These are the same procedures that the United States notified the defendants were deficient as far back as 1987 during the United States' CRIPA investigation of Ebensburg. U.S. Exh. 638 (Sponsky Dep.) Exh. 49 at 3. The United States expressed the same concern to the Commonwealth at that time, i.e, the health care plans are not individualized to identify and provide for each resident's needs. Id. Some Ebensburg residents have had the same generalized procedure for their health care problems for up to seven years without any changes. Id. at 191. Tim P., for example, has had the exact same nursing supplemental procedure for potential skin breakdown since March 1987. U.S. Exh. 973.
xn-25

Even the canned content of these nursing supplemental procedures is questionable. For example, the procedure for residents who have impaired swallowing abilities requires staff "to place food in back of mouth." U.S. Exh. (Sponsky Dep.) at 43; U.S. Exh. 31 at 00542680. Ebensburg's Director of Nursing does not know why the procedure specifies this method and does not know whether the method is appropriate. U.S. Exh. 638 (Sponsky Dep.) at 43. In fact, Dr. Sheppard testified that mid-tongue is the "preferred site for placement" of food. Tr. 10/18/93 (Sheppard) at 124. On January 14, 1993, Ms. Sponsky was uncertain about whether there was even a specific nursing supplemental procedure for gastroesophageal reflux. U.S. Exh. 637 (Sponsky Dep.) at 63-64. When the United States requested that she bring all nursing supplemental procedures with her to the completion of her deposition one month later, the implementation date appearing on the one page reflux supplemental procedure is January 27, 1993 — two weeks after Ms. Sponsky was asked about the procedure during her deposition. U.S. Exh. 638 (Sponsky Dep.) at 38; U.S. Exh. 31 at 00542677. Even this newly developed supplemental procedure is extremely general and cursory. Although Ms. Sponsky agrees that positioning is important in treating reflux and that an individual should be elevated in an upright position following mealtimes in all cases of reflux, this positioning is not part of the procedure. U.S. Exh. 636 (Sponsky Dep.) at 63; U.S. Exh. 638 (Sponsky Dep.) at 40. Ms. Sponsky does not know why this requirement has not been incorporated into the newly developed reflux supplemental procedure. U.S. Exh 638 (Sponsky Dep.) at 39-40.
XII-26

4. Nurse Recordkeeping Is Inadequate. Throughout her extensive review of Ebensburg records, Ms. McGowan found systemic problems with inadequate nursing documentation. Tr. 7/29/93 (McGowan) at 186. Ebensburg nurses fail to document adequate health care assessments of residents. Tr. 7/29/93 (McGowan) at 168. Marcia Stiles, who has been a registered nurse supervisor at Ebensburg for the past fourteen years, agrees that Ebensburg nurses need to better document their nursing assessments. U.S. Exh. 638A (Stiles Dep.) at 85-86. Nurses also do not document and summarize bowel patterns. Tr. 7/29/93 (McGowan) at 171; U.S. Exh. 638 (Sponsky Dep.) at 15. Despite a directive from the Director of Nursing about where to record weights in the record (U.S. Exh. 638 (Sponsky Dep.) at 20), data about residents' weights is not consistently recorded in the record. Tr. 7/29/93 (McGowan) at 172. It sometimes took Ms. McGowan hours simply to track a resident's weight over time. Tr. 7/29/93 (McGowan) at 172. The nursing documentation system at Ebensburg is insufficient to track patterns of deterioration. Tr. 7/29/93 (McGowan) at 172-173, 180. There is no system, for example, of comparing weight, bowel, vomiting, and seizure patterns and tracking them in comparison to other events, such as medication changes and eating patterns. Tr. 7/29/93 (McGowan) at 172-173, 177, 180. Developing a system to detect these types of patterns is particularly important in a population such as that at Ebensburg where residents are unable to voice their health complaints. Tr. 7/29/93 (McGowan) at 177. There is no policy at Ebensburg of how frequently a nurse must write a progress note. U.S. Exh. 637 (Sponsky Dep.) at 89. Consequently, nurses write progress notes erratically and recordkeeping is so inadequate that it is often difficult to track the course of
xn-27

events. Tr. 7/29/93 (McGowan) at 181-182. Even in the few instances where Ebensburg nurses are expected to write progress notes for specific events, they fail to do so. For example, although nurses are responsible for writing a progress note when they notify a physician of a resident's condition (U.S. Exh. 638 (Sponsky Dep.) at 26), they often do not do this. Tr. 7/29/93 (McGowan) at 175. In addition, Ebensburg nurses are supposed to write a progress note each time a resident vomits or has a coughing episode during a mealtime. U.S. Exh. 637 (Sponsky Dep.) at 91, 94-95. Ms. McGowan summarized thirtythree instances where she observed residents coughing, vomiting, ejecting food, and experiencing respiratory problems at various mealtimes during her tours. Tr. 7/29/93 (McGowan) at 188-189; U.S. Exh. 535. Nurses only wrote progress notes acknowledging two of these thirty-three incidents. H. There is no quality assurance mechanism at Ebensburg to even identify this type of deficiency. U.S. Exh. 637 (Sponsky Dep.) at 91-92.
5. Ebensburg Nurses Need Additional Training. Ms. McGowan believes that Ebensburg nurses need additional training. Tr. 7/29/93 (McGowan) at 210. Ms. Sponsky concurs that "training is important for nurses." U.S. Exh. 637 (Sponsky Dep.) at 88-89. She believes that it would be beneficial for the nursing department at Ebensburg to have an annual training plan and wrote a memorandum to Mr. Bellomo on June 5, 1992 outlining her ideas about how to accomplish this. U.S. Exh. 637 (Sponsky Dep.) at 98; Sponsky Dep. Exh. 13. As of January 1993, six months later, there was no training plan for nurses at Ebensburg. U.S. Exh. 637 (Sponsky Dep.) at 89. As of 1990, the Commonwealth was on notice through the United States' CRIPA investigation that Ebensburg nurses needed additional training in order to carry out their responsibilities. U.S.
XII-28

Exh. 638 (Sponsky Dep.) Exh. 50 at 4. Although there is money allocated for nurses each year for outservice training, it is not mandatory training. U.S. Exh. 637 (Sponsky Dep.) at 89. In fact, most nurses do not use the money. U.S. Exh. 624 (O'Brien Dep.) at 29-30.
There is no requirement that a nurse have any educational background or experience in working with people with mental retardation or other developmental disabilities prior to beginning work at Ebensburg. U.S. Exh. 637 (Sponsky Dep.) at 82. The nurse orientation training at Ebensburg does not cover physical assessments. U.S. Exh. 637 (Sponsky Dep.) at 84. The training also does not cover detecting and monitoring aspiration. U.S. Exh. 637 (Sponsky Dep.) at 85. Moreover, the training does not cover any specific topics related to feeding. U.S. Exh. 637 (Sponsky Dep.) at 85. Ebensburg nurses did not receive any training on gastroesophageal reflux until March 1993. Tr. 10/19/93 (O'Brien) at 85.
There is no money allocated for training Ebensburg's Director of Nursing. U.S. Exh. 637 (Sponsky Dep.) at 90. Ms. Sponsky believes that as Director of Nursing, it is important that she identify areas in which she needs training and be permitted to take the training. U.S. Exh. 637 (Sponsky Dep.) at 95. As of January 1993, the last outservice training Ms. Sponsky attended was in 1990. U.S. Exh. 637 (Sponsky Dep.) at 90. Between 1990 and 1992, there were at least three training opportunities that Ms. Sponsky identified where she was not permitted to take the training. U.S. Exh. 637 (Sponsky Dep.) at 95.
6. The Role Of The Ebensburg Director Of Nursing Is Too Limited.
Carole Sponsky has been a nurse at Ebensburg for the past thirty years. U.S. Exh. 637 (Sponsky Dep.) at 16. She has been Acting Director of Nurses since December 1988 and the Director of Nursing since June 1989. U.S. Exh. 637 (Sponsky Dep.) at 13. As
XII-29

Director of Nursing at Ebensburg, she is the individual who is ultimately responsible for ensuring the adequacy of nursing care for individuals who live at Ebensburg. U.S. Exh. 637 (Sponsky Dep.) at 41. Ms. Sponsky is specifically responsible for quality assurance in nursing on a facility-wide basis. U.S. Exh. 637 (Sponsky Dep.) at 43-44. She does not investigate deficient nursing care practices, however. U.S. Exh. 637 (Sponsky Dep.) at 48. Although there is a nursing peer review committee at Ebensburg, it was dormant for a period of time and then reconvened in September 1992, following Ms. McGowan's first tour of Ebensburg. U.S. Exh. 638 (Sponsky Dep.) at 136. Even though the goal of the nursing peer review committee is to conduct peer reviews of nursing practices, as of February 1993, the committee had not conducted any peer review of nursing activities since at least 1990. U.S. Exh. 638 (Sponsky Dep.) at 137. Ms. Sponsky accompanied Ms. McGowan during her tour of Ebensburg in August 1992. She admits that the time she spent in the living units during Ms. McGowan's tour was more than the usual amount of time she spends actually onsite in the living units at Ebensburg. U.S. Exh. 637 (Sponsky Dep.) at 100.
Although she is the Director of Nurses, Ms. Sponsky does not supervise any of the nurses at Ebensburg. U.S. Exh. 637 (Sponsky Dep.) at 35. Staff nurses at Ebensburg are supervised by the Registered Nurse Supervisor, who, in turn, is supervised by the Unit Manager. U.S. Exh. 637 (Sponsky Dep.) at 36. Although the Unit Managers are responsible for clinical supervision of the Registered Nurse Supervisors, only one of the five Unit Managers has a background in nursing. U.S. Exh. 637 (Sponsky Dep.) at 37, 38. The Nursing Department at Ebensburg does not get together for regular meetings. U.S. Exh. 622 (Malloy Dep.) at 36.
XII-30

Ebensburg nurses do not like to get "pulled" to a living unit to which they are not regularly assigned. U.S. Exh. 636 (Sponsky Dep.) at 77. In January 1993, nurses were pulled 40 times to a unit to which they were not regularly assigned. U.S. Exh. 636 (Sponsky Dep.) Exh. 25. Frequently, nurses are pulled to or from Keystone. Id. Ms. Malloy, the nursing supervisor at Keystone, admits that there have been times at Keystone where she needed an additional nurse because of the condition of residents and she has been unable to get additional help. U.S. Exh. 622 (Malloy Dep.) at 118. Some time between July 1992 and January 1993, the nurse who was working the third shift alone in Keystone reported that she was not given an orientation to Keystone and had to "feel" her way through things on the unit. U.S. Exh. 636 (Sponsky Dep.) at 75; Sponsky Dep. Exh. 11.
xn-3i

. EBENSBURG IS FAILING TO PROVIDE ITS RESIDENTS WITH ADEQUATE NEUROLOGICAL CARE. Defendants have failed to provide adequate medical care to the approximately 230-240
Ebensburg residents who have epilepsy — about one half of the population of Ebensburg. Tr. 7/30/93 (Alvarez) at 48. Ebensburg is home to the highest number of individuals with epilepsy of any institution serving those with mental retardation in the Commonwealth of Pennsylvania. U.S. Exh. 633 (Shertz Dep.) at 9. Dr. Kastner found that seizures are highly prevalent at Ebensburg. Tr. 9/13/93 (Kastner) at 191-192. Dr. Chamovitz testified that, at Ebensburg, seizures are "the most prominent symptom and complaint that is seen." Tr. 9/14/93 (Chamovitz) at 245. Seizure disorders have and continue to be a significant cause of morbidity and mortality at Ebensburg. Ebensburg fails to provide residents who have seizures with the comprehensive care and management that they need and that the profession requires.
A. Ebensburg Fails to Provide Residents in Status Epilepticus Adequate Treatment.
Ebensburg's management of status epilepticus seizures does not meet generally accepted standards. Tr. 7/30/93 (Alvarez) at 56-7. Ebensburg's poor emergency management of status seizures potentially affects all residents with epilepsy at Ebensburg because anyone with epilepsy may go into status. Tr. 7/30/93 (Alvarez) at 75. Dr. Alvarez concluded that Ebensburg is a "dangerous place to have status" occur. Tr. 7/30/93 (Alvarez) at 165.
For example, Ebensburg turned out to be a dangerous place for Stephen C. Stephen suffered hours of status at Ebensburg before being sent to Mercy Hospital. Tr. 7/30/93
XIII-1

(Alvarez) at 61; Tr. 12/13/93 (Coulter) at 28. On January 22, 1990, Stephen suffered 25 visible seizures between 9:25 a.m. and 3:45 p.m., without gaining consciousness between seizures. U.S. Exh. 1109A. Stephen's seizure chart describes the period following each seizure as "sleep (deep)." Id. Staff did not call a doctor until 11:20 a.m. — nearly two full hours after the onset of Stephen's status. Tr. 7/30/93 (Alvarez) at 62; U.S. Exh. 323AA. No Ebensburg physician ever saw Stephen, although three different physicians prescribed medications over the phone that day. Tr. 7/30/93 (Alvarez) at 63-64; U.S. Exh. 323AA. As the afternoon wore on, Stephen's seizures and condition became worse, with staff describing his "head and eyes turning to one side," "rhythmic jerking of extremities," and "cyanosis." U.S. Exh. 1109A. At 3:00 p.m., a physician was notified that things were not going well. Tr. 7/30/93 (Alvarez) at 63; U.S. Exh. 323AA, 653. Ebensburg treated Stephen's seizures with only intramuscular ("IM") and oral ("PO") medications, which did not work. Tr. 7/30/93 (Alvarez) at 61; U.S. Exh. 323AA, 653. Finally, at 5:42 p.m. eight hours after the onset of his status - an ambulance was called to take Stephen to Mercy Hospital for treatment of his uncontrolled seizures. Tr. 7/30/93 (Alvarez) at 63; U.S. Exh. 323AA, 653. Stephen died at Mercy a few days later. Tr. 7/30/93 (Alvarez) at 61; U.S. Exh. 323AA. Dr. Alvarez testified that the medical care Stephen received at Ebensburg was deficient. Tr. 7/30/93 (Alvarez) at 65. V
V Dr. Kastner did not review Stephen C.'s record. Def. Exh. HH. Without any comments about the particulars of Stephen's care, Dr. Chamovitz concluded that he felt that professional judgment was exercised in the case of Stephen C. Tr. 9/15/93 (Chamovitz) at 189. Dr. Chamovitz took a similarly broad conclusory approach in testifying about other individuals. However, at the end of his crossexamination, when asked to define "professional judgment," Dr. Chamovitz testified that he "hadn't thought about that." Id. at 239.
XIII-2

1. Status Epilepticus Is A Serious Medical Emergency. The field recognizes that status epilepticus is a serious medical emergency associated with substantial morbidity and mortality. Tr. 7/30/93 (Alvarez) at 50; Tr. 12/13/93 (Coulter) at 17, 21-22; U.S. Exh. 1107. Dr. Coulter testified that "the field has recognized and certainly has published that the major consequence ... with status epilepticus is ... on the one hand, the risk of serious injury and death, but also the risk of brain damage from the seizure itself." Tr. 12/13/93 (Coulter) at 17.?/ In addition to the risks of serious injury, brain damage from the seizure itself, and death, status may result in other medical problems like impaired breathing, resulting in brain damage due to lack of oxygen in the brain. Tr. 7/30/93 (Alvarez) at 50-51. In addition, individuals in status may lose the ability to swallow or cough, predisposing them to aspirate, and running the common risk of developing aspiration pneumonia due to status. Id- at 51. Finally, individuals in status for prolonged periods of time are at greater risk of lowered blood pressure. Id. at 219. Dr. Kastner agreed that status epilepticus can produce decreased blood pressure or decreased blood glucose levels and also secondary effects like loss of brain function as a consequence of hypoxia. Tr. 9/13/93 (Kastner) at 228.
2. Ebensburg Fails To Understand When An Individual Is In Status. The serious risks associated with status attach to the two distinct forms of status. Tr. 12/13/93 (Coulter) at 14, 17. The most familiar expression of status is where the individual continuously seizes with grand mal or petit mal convulsive seizures for thirty straight minutes
V Dr. Kastner had testified that Dr. Alvarez "exaggerated" over the urgency of responding to status, implying that Dr. Alvarez was wrong in treating status as an emergency. In responding to these comments by Dr. Kastner, Dr. Coulter testified that status is an emergency "and anybody who says differently is simply wrong." Tr. 12/13/93 (Coulter) at 34.
XIII-3

without interruption. Id. at 14; U.S. Exh. 1107. However, Dr. Coulter stressed that there is another way an individual can have status epilepticus: an individual can suffer a relatively brief convulsive seizure (of perhaps a minute or two duration), then remain unconscious in a partial comatose state (while perhaps suffering other brief convulsive seizures) for a total of thirty continuous minutes. Id; U.S. Exh. 1107. Dr. Coulter indicated that this type of status is more akin to "a coma punctuated by seizures." Id. Dr. Coulter stressed that this second type of status is "as grave as an emergency as the continuous convulsive activity that we normally think of as status." Id. at 14-15. Dr. Coulter testified that it is important to understand that "brain injury occurs even in the absence of continuous convulsive activity. Brain injury occurs even when a patient is paralyzed ... and we do not see the continuous muscular exertion of a seizure and yet the seizure rages on in the brain." Id. at 17.
Dr. Coulter testified that he found there to be a lot of "confusion" in some of defendants' testimony concerning this second type of status. Tr. 12/13/93 (Coulter) at 15. In Dr. Coulter's opinion, although Dr. Kastner recognized that there are two distinct forms of status, Dr. Kastner "did not give sufficient weight to the second type of ... coma punctuated by seizures." Id. at 14-15. In addition, in Dr. Coulter's opinion, Dr. Chamovitz, Ebensburg's consultant neurologist, "really doesn't understand the current definition of status" because Dr. Chamovitz limits his definition of status to continuous convulsive activity to the exclusion of the coma-seizures type of status. Id. at 16.V Dr.
V Dr. Chamovitz indicated that he does not have much direct knowledge of the facility's management of emergency medical care other than that he knows they have a system in place and that it "seems" to work. Tr. 9/15/93 (Chamovitz) at 218. For example, Dr. Chamovitz admitted that he did not know the ambulance response time for residents in status. Id. at 220. He added that he never thought it important to find out because he was "told that it worked." Id.
Xlll-4

Chamovitz also unnecessarily requires a patient to be "cyanotic or blue" before labelling the
condition as status. Tr. 12/13/93 (Coulter) at 1 6 / / Dr. Coulter testified on rebuttal that
being cyanotic or blue "clearly is not a necessary part of the definition of status epilepticus."
Id. Indeed, a status emergency will have begun long before cyanosis or blueness appears and
that "requiring that the patient be in such desperate straits that cyanosis occurs" is
unacceptable. Id. at 16-17.f/ Dr. Coulter explained that "by the time that degree of
cyanosis has occurred, the likelihood or the possibility of injury is already well along." Id.
at 23. The whole point of recognizing and treating status epilepticus, is to "catch it early
on" so that the seizure activity is interrupted so that things don't get to the point where the
V Dr. Chamovitz had testified that if a patient is "clonic, moving, jerking and salivating" or "foaming at the mouth" and the individual gets "bluer and bluer and bluer" for 20-30 minutes, then that is "status." Tr. 9/14/93 (Chamovitz) at 236; Tr. 12/13/93 (Coulter) at 16. Dr. Chamovitz indicated that only when that occurs are you "in trouble" and is there a "medical emergency." Tr. 9/14/93 (Chamovitz) at 236; Tr. 12/13/93 (Coulter) at 16. Dr. Kastner acknowledged that Dr. Chamovitz's statement that an individual is not in status until he gets 'bluer and bluer and bluer' was not the "best language to have used to describe status epilepticus." Tr. 12/13/93 (Kastner) at 198.
f/ Dr. Chamovitz had testified that a medical emergency only occurs when an individual has suffered for 30-40 minutes with "deep cyanosis, not a little bit of blueness around the lips; this is when your fingernails get blue and your ears get blue; that's real status." Tr. 9/14/93 (Chamovitz) at 237; Tr. 12/13/93 (Coulter) at 22. Dr. Chamovitz had also testified that if you are "blue for a long period of time, if you have decreased oxygen, but your heart is beating, you don't get brain damage until your heart stops." Tr. 9/14/93 (Chamovitz) at 237; Tr. 12/13/93 (Coulter) at 23. Dr. Coulter testified in response that "there's no evidence to support" Dr. Chamovitz's statements. Tr. 12/13/93 (Coulter) at 23. Dr. Coulter added that "you can get brain damage in the absence of convulsive activity if the muscles are paralyzed, and the heart is still beating, and yet the seizure activity is still raging on in the brain and can cause brain damage." Id- Dr. Coulter added that it "doesn't make sense to wait for cardiac arrest before worrying about whether it's a serious episode of status." Id. at 23. On surrebuttal, Dr. Chamovitz admitted that what he meant to say was that "the brain dies quicker, more quickly if the heart stops, because there is no oxygen that gets there." Tr. 12/13/93 (Chamovitz) at 206. Dr. Chamovitz testified that "I did not wish to imply that one has to have the heart stop before you have brain damage." Tr. 12/13/93 (Chamovitz) at 206.
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individual has to be so horribly cyanotic that tissue hypoxia and brain injury have
developed." W.V
3. The Generally Accepted Standards For The Proper Management And Treatment Of Status Seizures Are Clear.
The need for providing proper emergency management of status seizures is generally
accepted within the medical community specializing in the care of developmentally disabled
people. Tr. 7/30/93 (Alvarez) at 55. In addition to the body of literature that indicates that
this is well accepted, it is just common sense to treat a life-threatening situation like status
right away. Id. at 56.
The Epilepsy Foundation of America ("EFA") recently published a treatment protocol
or a "position statement" in the Journal of the American Medical Association ("JAMA")
delineating the standards in the field regarding the treatment of status. U.S. Exh. 1107; Tr.
12/13/93 (Coulter) at 54. This position statement does not represent new standards but is
merely a codification of long existing standards regarding the treatment of status. Tr.
12/13/93 (Coulter) at 54, 64.1/ Dr. Coulter testified that the EFA article in JAMA
represents more that just a typical peer reviewed article; he stressed that "it represents the
f/ On surrebuttal, Dr. Chamovitz tried to modify his definition of status to lessen the importance of cyanosis or blueness. Tr. 12/13/93 (Chamovitz) at 204. In testifying about this issue, Dr. Chamovitz admitted that he had "probably misspoke." Id.
V The Epilepsy Foundation published its position statement for the benefit of general care physicians working in community hospital settings who may encounter patients in status. Tr. 12/13/93 (Coulter) at 18. The idea for a "position statement" grew from the concern of Dr. Coulter and other members of the Epilepsy Foundation that patients in status were not receiving proper treatment in all cases in community hospitals. Id. The Foundation was confident that neurologists knew how to treat status, but they were concerned that the average hospital physician and ambulance worker did not know the medical knowledge that had accumulated in the field about status over the past ten or fifteen years. Id. The treatment protocol was therefore published in the Journal of the American Medical Association so that general physicians would see it. Id. at 19.
XIII-6

consensus of the field" in the treatment of status. Id. at 20. The EFA article was circulated to over 90 expert reviewers, including Dr. Coulter. Id. at 21; U.S. Exh. 1107.V
Dr. Kastner admitted that the EFA position statement is a "generally recognized guideline for the management of status epilepticus" and is "very well-reasoned." Tr. 12/13/93 (Kastner) at 191, 195. Dr. Grossman agreed, stating that the EFA paper was "reasonable" and "reasonably clear." Tr. 12/13/93 (Grossman) at 134.
4. Ebensburg's Treatment Of Status Is Seriously Deficient In Three Respects.
As the case of Stephen C. illustrates, there are three serious deficiencies in the facility's management of status. Tr. 7/30/93 (Alvarez) at 57-60, 75. First, and most important, Ebensburg waits too long before treating its residents for status. Id. at 57-58. It takes too long for Ebensburg physicians to react. Id. at 58. On a number of occasions, physicians have waited hours after the onset of status to make treatment decisions. Id. at 60. Ebensburg has no policy or plan for the emergency management of status epilepticus. Id. at 56; Tr. 12/13/93 (Coulter) at 40. Second, Ebensburg treats status with IM and PO medications, resulting in status seizures that are never effectively controlled. Tr. 7/30/93 (Alvarez) at 60. Third, Ebensburg physicians treat some residents in status over the telephone without ever examining them personally. Id. In addition, physicians often do not write their decisions or opinions about their treatment of status in the resident's medical chart. Tr. 7/30/93 (Alvarez) at 60.
V Dr. Grossman and Dr. Kastner were not among the 90 experts selected to review the EFA article. Tr. 12/13/93 (Grossman) at 139; Tr. 12/13/93 (Kastner) at 196. In fact, Dr. Grossman is not even board certified in neurology and he has not provided hands-on care to any institutionalized individual since 1981. Tr. 12/13/93 (Grossman) at 138-139.
XIII-7

a. Ebensburg Waits Too Long To Treat Its Residents In Status.
Ebensburg does not treat residents as being in a status emergency until the 30 minute
definitional level for status is reached in violation of generally accepted professional
standards.'/ Experts for the United States and defendants agree that the field, in general,
and the EFA treatment protocol, in particular, require that IV anticonvulsant medication
should be administered beginning at ten minutes into an episode of status. Tr. 12/13/93
(Coulter) at 32; Tr. 12/13/93 (Grossman) at 135; U.S. Exh. 1107. Dr. Grossman added that
if a seizure goes on for ten minutes, "one's anxiety level should be appropriately increased."
Id. at 135-6.™/ All of the physicians testifying about neurology issues agree that the goal
of therapy for status is rapid termination of clinical and electrical seizure activity because
clinical and experimental evidence suggest that the longer an episode of status goes untreated,
the more difficult it is to control with medication. Tr. 7/30/93 (Alvarez) at 50-51, 182; Tr.
12/13/93 (Coulter) at 17; Tr. 9/13/93 (Kastner) at 227; Tr. 12/13/93 (Kastner) at 196; Tr.
12/13/93 (Grossman) at 141; U.S. Exh. 1107.
'/ Experts for both the United States and the Commonwealth disagree with Dr. Kastner's conclusion that it is "not clear that a patient with a seizure of ten minutes or twenty minutes or thirty minutes is experiencing a medical emergency which is life-threatening." Tr. 9/13/93 (Kastner) at 119; Tr. 12/13/93 (Coulter) at 30; Tr. 12/13/93 (Grossman) at 137. Dr. Grossman noted that "we have to be very careful to recognize that the longer the seizure, the greater the possibility of subsequent neural damage." Tr. 12/13/93 (Grossman) at 137. ^7 Dr. Kastner had testified that "if someone has a seizure that's fifteen minutes, no one, I don't believe, would advocate the use of intravenous medication to disrupt that seizure." Tr. 9/13/93 (Kastner) at 120; Tr. 12/13/93 (Coulter) at 36. Dr. Coulter disagreed with Dr. Kastner's testimony, citing to the EFA position paper in which the Foundation recommended using IV medication prior to fifteen minutes. Tr. 12/13/93 (Coulter) at 36. Dr. Coulter concluded that Dr. Kastner is therefore wrong that "no one would recommend it;" in fact, he testified that "the field recommends it in its consensus document." Id.
XIII-8

The field recognizes that the thirty minute definitional time frame is not a marker for when medical intervention should begin. Tr. 12/13/93 (Coulter) at 30-32. Dr. Coulter testified that the "whole point of identifying and treating patients is to keep them from getting to" the point that they are actually in status. Id. at 31. Dr. Coulter stressed that even though the definitional time frame for status is thirty minutes, nonetheless, "we have to do something earlier, we have to begin the treatment and the interventions earlier, in order to protect the individual, and to protect the individual's neurological functioning as well as just health and safety." Id. at 31-IV A facility without IV capabilities, like Ebensburg, should call an ambulance with paramedic abilities to ensure that IV medications can be started at about the ten minute mark. Id. at 37.
Experts for both the United States and defendants agree that the field requires Ebensburg to have a policy for the treatment of status. Tr. 7/30/93 (Alvarez) at 55; Tr. 7/30/93 (Coulter) at 39; Tr. 12/13/93 (Grossman) at 141-142; U.S. Exh. 1107. In violation of generally accepted practices, Ebensburg has no policy or plan for the emergency management of status. Tr. 12/13/93 (Coulter) at 40; Tr. 7/30/93 (Alvarez) at 55-56.!!/ Ebensburg should develop a policy with the help of outside neurological expertise, the local ambulance team, and the local hospital. Tr. 12/13/93 (Coulter) at 39-40. A contingency plan for status would eliminate wasted time in gaining effective treatment for the residents of Ebensburg. Tr. 7/30/93 (Alvarez) at 154.
11/ On surrebuttal, Dr. Kastner admitted that he largely agreed with Dr. Coulter's testimony regarding managing status. Tr. 12/13/93 (Kastner) at 194. Dr. Kastner added that, overall, Dr. Coulter's comments were "very good and very appropriate." Id. \JJ Dr. Kastner did not know if Ebensburg had in place a policy for the emergency management of seizures. Tr. 9/14/93 (Kastner) at 70.
XIII-9

Ebensburg improperly relies on the past seizure history of an individual to determine
whether or not it will treat a seizure as status."/ (See discussion of Ann P. infra §
Xm.A.5.) However, Dr. Coulter testified that "any seizure can go into status epilepticus
and the fact that a patient has not developed status in the past is no guarantee that they won't
develop status on this particular episode or sometime in the future." Tr. 12/13/93 (Coulter)
at 33. By the time the seizure condition persists for ten minutes, it has reached the point
where it requires emergency treatment. Tr. 12/13/93 (Coulter) at 55. The past seizure
history of the individual is not necessarily the best indicator of whether or not this persistent
seizure condition will turn into status because on any given occasion, the individual may not
stick to the pattern possibly due to a medication error, or other internal medical reason. Id.
at 55-56. A medical professional needs to take this into account and cannot just rely on the
individual's past seizure history. Id. at 56-7."/
b. Ebensburg Treats Its Residents In Status With Intramuscular
(IM) Medication In Violation Of Generally Accepted Standards.
Experts for both the United States and defendants agree that the field, in general, and
the EFA position paper, in particular, require that IV medication — not IM medication — be
lV Dr. Kastner testified that "you really can't predict how long a seizure is going to last and, in advance, call an ambulance, anticipating that you're going to be treating status epilepticus." Tr. 9/13/93 (Kastner) at 120. In commenting on that testimony, Dr. Coulter testified that while it is true that you can't predict with any degree of certainty that a patient is going to go into status, "you also can't predict they won't." Tr. 12/13/93 (Coulter) at 33. ]tl Simply missing a dose of a medication is a very common precipitant to status. Tr. 12/13/93 (Coulter) at 35. Dr. Coulter testified that "Dr. Chamovitz may have known the patient very well for a very long time" but if he did not know of a missed medication or a medication error, for example, he would now miss the indication that this patient was going to develop a very serious episode of status. Tr. 12/13/93 (Coulter) at 35. Dr. Coulter testified that "you can never be totally assured [no matter] how well you know that individual." Id. at 36.
XIII-10

used to gain control of an individual's seizures during a status emergency. Tr. 7/30/93 (Alvarez) at 55; Tr. 12/13/93 (Coulter) at 38; Tr. 12/13/93 (Grossman) at 136; U.S. Exh. 1107. The EFA position paper specifically states that "intramuscular therapy has no place treating status epilepticus or seizures in general. Insofar as possible, drugs should be administered by the IV route only." U.S. Exh. 1107 (emphasis added). Experts for both the United States and defendants agree that IM therapy has no place in the treatment of status. Tr. 7/30/93 (Alvarez) at 55; Tr. 12/13/93 (Coulter) at 37-38; Tr. 12/13/93 (Kastner) at 195.,1V This has been a "very consistent opinion in the field of neurology for some time." Tr. 12/13/93 (Coulter) at 38.1f/
Ebensburg does not provide its residents with IV medications during status emergencies. Tr. 7/30/93 (Alvarez) at 59, 66; U.S. Exh. 633 (Shertz Dep.) at 25. Because Ebensburg has no system that treats status in a few minutes, Dr. Alvarez characterized Ebensburg's way of treating status as "very dangerous." Tr. 7/30/93 (Alvarez) at 67, 168. To treat status, Ebensburg staff typically observe the resident in status, notify the physician after a time by phone, and then provide the resident ineffective IM or PO medication, while
"/ Even Dr. Chamovitz acknowledged that IM medication "doesn't do the job completely" during a status emergency. Tr. 9/15/93 (Chamovitz) at 210. Dr. Coulter testified that there is no support for Dr. Chamovitz' theory that there are benefits to the use of IM medication in status because it makes the eventual IV treatment work faster or more effectively. Tr. 12/13/93 (Coulter) at 38-39. Indeed, Dr. Coulter testified that "you don't really know how [IM medications are] going to affect any subsequent treatment, so if anything it's contraindicated. In that sense it doesn't necessarily make your job easier. It makes it harder." Tr. 12/13/93 (Coulter) at 39. "/ IM medications are contraindicated for status because blood flow during status can be shifted away from the injection site, causing delays in absorption of the IM drug. Tr. 12/13/93 (Coulter) at 38.
XIII-11

the seizures continue."/ At some point, often involving more ineffective IM or PO medications, the decision is made to call an ambulance. Tr. 7/30/93 (Alvarez) at 66; U.S. Exh. 633 (Shertz Dep.) at 24; U.S. Exh. 652. It takes an ambulance about nine to twelve minutes to arrive at Ebensburg once a call is placed. Tr. 9/13/93 (Kastner) at 222. (See detailed discussion of specific examples at Ebensburg, infra § XIII.A.5.) Thus, valuable time is lost while ineffective measures are taken, and the patient suffers harm while the seizures continue. Tr. 7/30/93 (Alvarez) at 142. In Dr. Alvarez's opinion, Ebensburg residents would be better off with no physician, and going instead directly to Mercy Hospital. Id. at 176. Ebensburg either must learn to properly and safely perform IV medications in a status emergency situation, or it must have a clear contingency plan in place that dictates that the individuals in status should be sent to the hospital emergency room right away without any attempts at intervention at Ebensburg. Id. at 142.
c. Ebensburg Physicians Are Inappropriately Treating Residents In Status Via The Telephone Rather Than Face-to-Face.
In spite of the fact that no patient is ever more than five minutes away from a physician on campus at Ebensburg, Ebensburg physicians inappropriately treat some residents in status over the telephone, relying only on the descriptions of a nurse, without ever examining the resident personally. Tr. 7/30/93 (Alvarez) at 58, 60, 200. (See detailed discussion of specific examples at Ebensburg, infra § XIII.A.5.) This is contrary to generally accepted standards which require a doctor to treat an individual in status face-toface. Id. at 61. In properly managing the incipient stages of status epilepticus, it is
"/ The EFA treatment protocol called the use of IM medication to treat status "archaic." U.S. Exh. 1107.
XIII-12

important that the physician personally assess the situation because the physician is the
person who is the most qualified to assess the patient and to determine whether or not the
individual is in status epilepticus. Tr. 7/30/93 (Alvarez) at 54, 200.
When a doctor treats an individual in status via the telephone and not face-to-face, it
represents a "failure in the provision of care." Tr. 7/30/93 (Alvarez) at 60, 200. It is a
failure because status is a real medical emergency; it is a "life-threatening condition, a brain-
threatening condition." Id. at 60. During status, there are many differential diagnoses that
must be made which a nurse is not able to do. Id. at 60, 200.
5. Ebensburg Residents Have Been Harmed Due To The Facility's Poor Management Of Their Status Seizures.
In addition to the case of Stephen C. discussed earlier, Dr. Alvarez provided
examples to the Court of the harm that Ebensburg residents suffer due to Ebensburg's poor
emergency management of status seizures.il/
• On September 20, 1991, Keith T. suffered 22 visible seizures from 4:25 p.m. to 5:49 p.m. without ever regaining consciousness between the seizures. U.S. Exh. 1109B. The seizures each lasted between 20 to 80 seconds and were characterized by "severe jerking and loss of consciousness." Id. Staff did not notify a doctor until 5:00 p.m., and Ebensburg then treated Keith with IM medication at 5:04 p.m. — 39 minutes after the onset of Keith's status. Tr. 7/30/93 (Alvarez) at 68. Keith did not regain consciousness and, in fact, seized ten more times before he was given more IM medication at 5:40 p.m. Id.; U.S. Exh. 1109B. Keith continued to seize, and he was finally sent to Mercy Hospital, where he was treated for grand mal status. Tr. 7/30/93 (Alvarez) at 68; U.S. Exh. 1109B. It took Ebensburg's medical staff over an hour and forty-five minutes to call an ambulance from the
" / Dr. Chamovitz had implied that the individuals Dr. Alvarez cited in his testimony were not in fact suffering from status episodes. Tr. 12/13/93 (Coulter) at 25-26. Based upon his review of the records, Dr. Coulter concluded that "it's really quite clear" that the individuals cited by Dr. Alvarez did in fact suffer episodes of status epilepticus. Tr. 12/13/93 (Coulter) at 26-28; U.S. Exh. 1109 AD. For example, in the case of Stephen C , Dr. Coulter testified that "he had persistent seizures going on for several hours and did not recover consciousness in between them; and by anybody's definition, would constitute status." Id. at 28.
XIII-13

onset of Keith's status. Tr. 7/30/93 (Alvarez) at 68. Dr. Alvarez concluded that the medical care Keith received at Ebensburg was inadequate. Id."/
• Robert C. had frequent recurring seizures from November 19 through November 21, 1992, when he was finally admitted to Mercy Hospital. Tr. 7/30/93 (Alvarez) at 70-71; U.S. Exh. 321AA, 654. For this entire three day period, in spite of being repeatedly contacted about Robert's continuing seizures, no Ebensburg physician had face to face contact with Robert before 12:15 p.m. on November 21. Tr. 7/30/93 (Alvarez) at 71; U.S. Exh. 321AA.fV On November 21, 1992, Robert was in status, suffering at least eight visible seizures, starting at 1:45 a.m., without ever regaining consciousness between the seizures. Tr. 7/30/93 (Alvarez) at 71; U.S. Exh. 321AA, 654, 1109C. Cyanosis started at about 10:00 a.m. Id. Ebensburg treated Robert's seizures with IM and PO medications for days, and these medications were not effective in treating his seizures. Tr. 7/30/93 (Alvarez) at 72; Tr. 9/15/93 (Chamovitz) at 228. The decision to send Robert to Mercy was not made until 3:00 p.m. on the 21st, again by phone. Tr. 7/30/93 (Alvarez) at 72. Robert died on November 26, 1992 at Mercy Hospital. Tr. 7/30/93 (Alvarez) at 69; U.S. Exh. 321AA. Robert died of respiratory arrest secondary to pneumonia. Id. at 72. Dr. Alvarez testified that the pneumonia could have resulted from aspiration, which is a natural complication of prolonged seizures. Id. at 72-73.^/
• On October 13, 1992, Ann P. suffered 53 seizures, described as "abrupt loss of consciousness with muscle rigidity," between 9:45 a.m. and noon. Tr. 7/30/93 (Alvarez) at 74; U.S. Exh. 1109D. At Ebensburg, her seizures were treated with IM medication, which was ineffective. Id. at 74; U.S. Exh. 1109D. In fact, after the first IM injection, "seizures continued ... becoming more frequent." U.S. Exh. 1109D. Ann's status was managed by telephone. Tr. 7/30/93 (Alvarez) at 75. There are no notes at all from the doctors involved in her care. Id. at 74. Ann was eventually admitted to the hospital with a diagnosis of "status epilepticus." Id. at 75.^/
lV Dr. Kastner did not review Keith T.'s record. Def. Exh. HH.
fV United States' Exhibit 321AA shows that on 11/20, Dr. Shertz was notified, and he gave orders to "observe" and call him again if Robert had another seizure; Dr. Shertz was again notified and ordered staff to "observe for now;" Dr. Shertz was again notified and ordered "continue to observe;" on 11/21, Dr. Shertz was notified and he "stated to observe"; later that day, Dr. Shertz was again notified and he ordered staff to "observe."
22J Although Dr. Kastner reviewed Robert's death record, he could not remember the details of the hospitalization, or whether Robert had been seizing for days before his hospital ization, or whether Ebensburg physicians had had any face to face contact with Robert in the days before his hospitalization. Tr. 9/13/93 (Kastner) at 237.
^/ Ann's case illustrates the danger of relying on past history to make treatment decisions about status. About a month before her October status episode, Ann had suffered prolonged seizures that
(continued...)
XIII-14

• On January 31, 1993, Ronald A. suffered visible seizures at 10:10, 10:20, 10:54, 11:14, 11:25, 11:40, 11:52, 12:17, 12:33, 12:45, and 13:13. U.S. Exh. 909. After each seizure, Ronald's condition was "sleep (deep)." Id. At the onset of his first seizure at 10:10, Ronald was noted to be "sleeping." U.S. Exh. 908. He remained in "post-ictal sleep" until at least 13:25 when, for the first time, Ronald "responds slightly." Id. Even then, Ronald reverted back immediately to post-ictal sleep. Id. Thus, Ronald was in a seizure-coma state from at least 10:10 to 13:25 — more man three hours. U.S. Exhs. 908, 909. Dr. Kastner agreed that the IM and PO medications provided to Ronald by Ebensburg were not effective in stopping his seizures that day. Tr. 9/13/93 (Kastner) at 227.
The medical care that Stephen C , Keith T., Robert C. and Ann P. received from Ebensburg are examples of Ebensburg's unacceptable treatment of status. Tr. 7/30/93 (Alvarez) at 73-75. In each case, Ebensburg waited too long to get necessary treatment for status; ineffective IM and/or PO medications were used in the interim; physicians failed to personally assess the individual to inform treatment decisions; and physicians failed to document reasons for treatment decisions in the individual's chart. Tr. 7/30/93 (Alvarez) at 57-75. Moreover, because their seizures are prolonged by Ebensburg's inadequate treatment of status, Ebensburg residents suffer because it becomes more difficult to treat status, resulting in the use of more medications and entailing greater risk of complications. Id. at 69.
f/(...continued) stopped without medication. Tr. 9/15/93 (Chamovitz) at 190-191. "It was then, I think a month or two later, she had another episode, and they waited, thinking that she wouldn't need any medication; and so from the past history, the experience was that she would be all right. It was different. This convulsion — a series of convulsions lasted longer." Id. at 191.
XIII-15

B. Ebensburg Is Harming Its Residents With Epilepsy Bv Failing To Adequately Intervene In The Management Of Their Seizures. 1. Ebensburg Is Failing To Adequately Address Seizure Injuries.
Although the field requires an institution like Ebensburg to provide individualized plans to protect its residents prone to seizure injures, Ebensburg systemically fails to provide such protection. Tr. 7/30/93 (Alvarez) at 78, 94.f7 The field requires Ebensburg to take both preventive measures as well as measures to protect the individual during the seizure. Id. at 77. The use of helmets is one option.^/
Ebensburg fails to protect its residents prone to seizure injuries in two ways. First, Ebensburg acts too slowly in providing protective measures. Tr. 7/30/93 (Alvarez) at 92-93. Second, where protective measures have been provided, individuals often suffer repeated new serious injuries, many requiring sutures, due to ineffective or improper protections. Id. at 93. Dr. Alvarez testified that the consequence of Ebensburg's failures has been many, many preventable injuries. Id. at 79. Dr. Chamovitz admits that he has seen individuals at Ebensburg "who have scarring all over their face" from seizure injuries. Tr. 9/15/93
fV The parties agree that individuals with epilepsy have a tendency to injure themselves during seizures due to falls or due to jerking or shaking motions. Tr. 7/30/93 (Alvarez) at 76; Tr. 9/15/93 (Chamovitz) at 222. Head and face injuries are common, and can be very detrimental to both health and appearance. Tr. 7/30/93 (Alvarez) at 77. Dr. Kastner did not study seizure injuries at Ebensburg during his assessment of the care provided there. Tr. 9/13/93 (Kastner) at 221. */ Dr. Kastner indicated that in some cases the use of a helmet is appropriate to protect people who have seizures from falling and striking their head. Tr. 9/13/93 (Kastner) at 221-222. Dr. Shertz testified that "I really think we have to use helmets" in preventing further injuries such as fractures to Ebensburg residents prone to fall due to seizures. U.S. Exh. 633 (Shertz Dep.) at 44-45. Dr. Chamovitz agreed: "I think there is a place for helmets." Tr. 9/15/93 (Chamovitz) at 187.
XIII-16

(Chamovitz) at 238. Examples of residents who have been harmed due to Ebensburg's
failure to provide adequate protections from seizure injuries include:^/
• Barbara K., who has a chronic seizure disorder and, over the years, has suffered many serious accidents and injuries during seizures. Tr. 7/30/93 (Alvarez) at 79, 84. For a detailed description of some of Barbara's seizure injuries since 1991, see U.S. Exh. 268A (attached). Ebensburg knew of Barbara's recurring seizure injury problem, but for years did not act to protect her. Tr. 7/30/93 (Alvarez) at 81. For example, a direct care worker at Ebensburg, Betty Ferut, testified in her deposition that Barbara frequently gets hurt during seizures. Tr. 7/30/93 (Alvarez) at 80; U.S. Exh. 611 A. She testified that "she falls straight as a rock right on her face." Tr. 7/30/93 (Alvarez) at 80; U.S. Exh. 611A. Ms. Ferut added that she has participated in team meetings to discuss a helmet for Barbara, but the team concludes that Barbara would simply not tolerate wearing a helmet. Tr. 7/30/93 (Alvarez) at 80-81; U.S. Exh. 611A. If an individual, like Barbara, will not tolerate wearing a helmet, the psychologist must be brought in to develop and implement a helmet tolerance program to make the individual understand that the helmet is the best thing for her. Tr. 7/30/93 (Alvarez) at 207.
In addition to Ms. Ferut, other staff had recognized that Barbara needs protection. Tr. 7/30/93 (Alvarez) at 81. On October 21, 1992, Barbara fell on her chin during a seizure and split her skin open. Id. at 82; U.S. Exh. 392A. Following this injury, one staff recommended mat Ebensburg devise "some kind of chin guard" for Barbara. Tr. 7/30/93 (Alvarez) at 82; U.S. Exh. 392A. Another staff member wrote: "I believe Barbara needs a helmet with a permanent chin guard that she cannot remove." Tr. 7/30/93 (Alvarez) at 82-3; U.S. Exh. 392A. Another staff member indicated that Barbara needs to "wear helmet with face guard." Tr. 7/30/93 (Alvarez) at 83; U.S. Exh. 392A. Still another staff member indicated that Barbara needs a "helmet with chin guard." Tr. 7/30/93 (Alvarez) at 83; U.S. Exh. 392A.
Ebensburg finally provided a helmet for Barbara, but the helmet was ineffective and Barbara continued to suffer seizure fall injuries. Tr. 7/30/93 (Alvarez) at 79. For example, on March 18, 1993, Barbara suffered a seizure injury in which she cut her chin even though she had her helmet on. Tr. 7/30/93 (Alvarez) at 85-6; U.S. Exh. 392C. Following that injury, a staff member indicated that Barbara needs a "different helmet to protect her chin." Tr. 7/30/93 (Alvarez) at 86; U.S. Exh. 392C. Another staff member indicated that Barbara needs a "better helmet for protection." Tr. 7/30/93 (Alvarez) at 86; U.S. Exh. 392C. Another staff member wrote that "Barbara needs a helmet where the chin strap is unable to move around because when she has a seizure and falls, the strap does not protect her face." Tr. 7/30/93 (Alvarez) at 86-7; U.S. Exh. 392C.
*/ Dr. Kastner did not review any of the medical records of the individuals discussed below. Def. Exh. HH.
XIII-17

• Ronald A. has a long history of serious injuries from seizures. Tr. 7/30/93 (Alvarez) at 87. Among many other injuries, Ronald has suffered a fractured nose, lacerations on his eyelids and other lacerations requiring sutures. Tr. 7/30/93 (Alvarez) at 87. For details, U.S. Exh. 268B (attached), which is a chart summarizing a few of the seizure injuries Ronald has suffered since 1991. Due to its poor seizure injury management for Ronald, Ebensburg was cited by IOC surveyors in October 1991 for its failure to protect Ronald from his frequent seizure injuries. Tr. 7/30/93 (Alvarez) at 89; U.S. Exh. 66. Ebensburg finally provided a helmet for Ronald, but his helmet is inadequate because Ronald continues to suffer seizure injuries. Ronald suffered at least five injuries to his head and face in 1992 and one in early 1993. Tr. 7/30/93 (Alvarez) at 204, 216. The seizure injuries Ronald continues to suffer indicate that Ebensburg's injury management is inadequate. Tr. 7/30/93 (Alvarez) at 89.
• Michael M. has suffered many injuries due to seizures. Tr. 7/30/93 (Alvarez) at 92. However, there is no plan in place to prevent Michael's seizure injuries. Id. In addition to Michael M., Jackie B., Ronald S., and many others suffer similar problems at Ebensburg. Id. at 93.
State surveyors have repeatedly cited Ebensburg for its failure to protect residents
prone to seizure injuries from harm. For instance, in January 1993, the IOC found that
Glenn A. should be provided with a behavioral program for helmet tolerance in view of three
uncontrolled seizures and a high incidence of injuries. Tr. 7/30/93 (Alvarez) at 91; U.S.
Exh. 67.
2. Ebensburg Is Failing To Provide Adequate EEG Diagnostic Testing For Its Residents With Epilepsy.
Contrary to accepted professional standards, Ebensburg does not offer residents with
epilepsy the advantage of EEG diagnostic technology that could help medical professionals
make better decisions about when and what kind of medication to use to gain control of
seizures. Tr. 7/30/93 (Alvarez) at 94, 100-101, 108-109. Ebensburg's poor utilization of
accepted and appropriate diagnostic methods potentially affects all the residents with
epilepsy. Id. at 109.
XIII-18

The fact that certain diagnostic techniques like the EEG have not been adequately
used at Ebensburg has resulted in poor medical treatment and in many cases, excessive use
of medication. Tr. 7/30/93 (Alvarez) at 94. Any Ebensburg resident who is on several
medications and is having continuous seizures should have received the benefit of EEG
testing. Id- at 108. Dr. Chamovitz agreed that the EEG is a "useful tool." Tr. 9/15/93
(Chamovitz) at 211.
EEGs are important in diagnosing seizures because clinical manifestations are very
complex and it is often very difficult to determine whether a person is actually having an
epileptic seizure or not. Tr. 7/30/93 (Alvarez) at 49. Some people have behaviors that look
like epileptic seizures but they are not actually epileptic seizures. Id. at 49, 52.^/
One of the most common pitfalls for medical professionals is to call an epileptic
seizure a seizure when it is not. Tr. 7/30/93 (Alvarez) at 96."/ If a physician does not
recognize that certain events are not actually seizures, he or she may tend to increase the
individual's anti-epileptic medication in order to attempt to gain better control of the
*/ An epileptic seizure can have many different clinical expressions. Tr. 7/30/93 (Alvarez) at 95. Sometimes those clinical expressions might appear very similar to non-seizure related behaviors. Id. For example, one clinical expression of seizures is rigidity; however, an individual may have spasticity from serious brain damage which is not seizure related. Id. Rigidity and spasticity appear clinically similar, and without further diagnostic testing, a doctor may mistakenly treat non-seizure spasticity with anti-seizure medication. Id. Similarly, individuals may be experiencing muscle tensing or reflex activity which may appear to be a seizure, but is really not. Id. Also, some individuals with mental retardation may stare blankly forward for prolonged periods of time and, based on clinical observation alone, this behavior could easily be mistaken for an absence type of seizure activity. Id.
" / Dr. Alvarez testified that even "expert observers" can make mistakes in assessing what is an epileptic event and what is not. Tr. 7/30/93 (Alvarez) at 96. He added that certainly the rate of error increases when non-expert observers make assessments. Tr. 7/30/93 (Alvarez) at 96. He added that there is always the possibility that an event that is recorded in the medical records as an epileptic seizure is not necessarily an epileptic seizure just as there is always the possibility that something that is an epileptic seizure can be missed. Tr. 7/30/93 (Alvarez) at 96.
XIII-19

"seizures." Id. at 52. However, in this situation, the use of anticonvulsant drugs for these pseudo-seizure events is not medically indicated. Id. With treatment by drugs that are not indicated, the person's behavioral events will usually continue unabated. Id. at 96. In response to this, the professional will again usually increase the amount and/or number of anticonvulsant drugs in an attempt to gain some sort of control over the condition. Id. Dr. Chamovitz admitted that a medical professional could think a pseudo-seizure actually was a seizure and treat the event with anticonvulsive medications. Tr. 9/15/93 (Chamovitz) at 237. He further admitted that if the event is actually not a seizure, the anticonvulsant drugs will not have an effect because it is not a seizure. Id.
As a result, the individual can be provided medication that is not benefitting him and that can potentially harm him through side effects. Tr. 7/30/93 (Alvarez) at 96. Thus, it is important to ensure that what is treated as an epileptic seizure actually is an epileptic seizure. Tr. 7/30/93 (Alvarez) at 96-97. Dr. Chamovitz testified that the EEG can be a useful tool for a medical professional to use in distinguishing between a seizure and a pseudo seizure. Tr. 9/15/93 (Chamovitz) at 236-7. Dr. Chamovitz acknowledged that as a result, the EEG can aid a neurologist in the appropriate choice of medication to treat seizures. Tr. 9/15/93 (Chamovitz) at 211. Dr. Chamovitz added that an EEG reading can be "useful" for those individuals who experience events that look like seizures but in fact are not seizures, and vice versa. Tr. 9/15/93 (Chamovitz) at 236.
The current diagnostic system at Ebensburg depends too much on the observations of people who are not specifically trained in epilepsy and not enough on scientific generally accepted diagnostic techniques like the EEG. Tr. 7/30/93 (Alvarez) at 102. Without fully
XIII-20

utilizing the EEG, the Ebensburg doctors and the consultant neurologist are forced to rely on purely clinical descriptions from staff as to whether or not the behavior they witnessed was or was not a seizure. Dr. Chamovitz admitted that as an outside consulting neurologist, he necessarily has to rely on the observations and input of the direct care staff at Ebensburg for daily seizure and convulsion information about the residents he is reviewing. Tr. 9/15/93 (Chamovitz) at 206. Dr. Chamovitz testified that in differentiating between a pseudo-seizure and a real seizure, he relies on the staff "acting out" what the seizure was like. Tr. 9/15/93 (Chamovitz) at 209.
Dr. Chamovitz admitted however, that at Ebensburg some of the seizure information is not reliable because "you can't always be certain that a person recognizes a spell as a spell, a convulsion as a convulsion." Tr. 9/15/93 (Chamovitz) at 209; U.S. Exh. 606C. Dr. Chamovitz also testified that he thought the knowledge of the direct care staff in this respect certainly could be improved. Tr. 9/15/93 (Chamovitz) at 210. Dr. Chamovitz acknowledged that some people at Ebensburg are less reliable than others in discerning between real seizures and "fake spells." Tr. 7/30/93 (Alvarez) at 102.
Certainly a good clinical description of the behaviors is important but it is not sufficient. Tr. 7/30/93 (Alvarez) at 97. The use of the EEG allows medical professionals to more definitively determine whether or not an individual is having an actual seizure. Tr. 7/30/93 (Alvarez) at 97. EEGs are often combined with videotaping to provide the best method to document whether the person has had an epileptic seizure or not. Tr. 7/30/93 (Alvarez) at 97.
XIII-21

In not providing its residents with adequate EEG testing, Dr. Alvarez testified that
Ebensburg is not meeting its own policies and the language of its mission statement. Tr.
7/30/93 (Alvarez) at 100.?!/ Dr. Alvarez testified that every resident who has suspended
his seizure activity and every resident who has a seizure that was normally controlled with
medication should have the benefit of the EEG. Tr. 7/30/93 (Alvarez) at 102-103.
Examples of individuals who would have benefitted from the use of the EEG in diagnosing
their condition include:^/
• Barbara K. has a history of having 20-30 seizures per year. Tr. 7/30/93 (Alvarez) at 103. In 1991, Dr. Chamovitz suggested that Barbara was acting a little differently for the past few months. Id. He indicated that she appeared to have rubbery legs. Id. He queried whether or not this behavior was a show for attention or whether or not it was minor seizure activity. Id. After Dr. Chamovitz's comments, there was no follow up by the staff. Id. An EEG might have been helpful to determine if this behavior was a seizure or just a behavioral problem.
Barbara's behavior recurred in September 1992. Tr. 7/30/93 (Alvarez) at 103. Dr. Chamovitz concluded that "inexperienced observers have improperly recorded these spells." Id. at 103-104; U.S. Exh. 606D. Barbara would have benefitted from the use of other diagnostic methods other than just pure observation by the staff. Tr. 7/30/93 (Alvarez) at 104. This is evident based on the fact that Dr. Chamovitz could not resolve the issue only on the basis of descriptions alone. Id.
Barbara was on a high number of anticonvulsant drugs — four — and yet she was still having frequent injuries. Tr. 7/30/93 (Alvarez) at 104. This demonstrates that there is some doubt about the effectiveness of all these drugs in effectively controlling her seizures. IdWith better diagnostic testing, different treatments, and perhaps fewer medications, could be undertaken. W. No one will ever know if Barbara needs all these anticonvulsant drugs without adequate and appropriate diagnostic testing with the EEG. Id. at 104-105.
" / Ebensburg Policy 128, Classification and Management, Seizure Disorders, and the Ebensburg Philosophy and Mission Statement expressly state that the facility is to provide its residents with appropriate testing for their seizures, that the testing is to be state of the art, and that it will meet the leading edge of the standards and expectations in the field of developmental disabilities. U.S. Exh. 11, 13A.
f7 Dr. Kastner did not review the medical records for any of the individuals discussed below. Def. Exh. HH.
XIII-22

• Nancy L. is severely spastic. Tr. 7/30/93 (Alvarez) at 105. Spasticity is a condition where all the individual's muscles are very tense. Id. Due to the severity of the brain damage, Barbara does not have much control of her muscles which have a tendency to overact quite often to different stimuli. Id. To an untrained observer, however, this action could appear to be an epileptic seizure even though it is not. Id. Nancy was on anticonvulsant medication and she was lethargic as a result. Id. Based on the descriptions of the "seizures" that appeared in her medical record, however, Dr. Alvarez testified that he would have had a difficult time concluding that the events described were in fact epileptic seizures. Id. at 106. He indicated that Nancy should have received the benefit of an EEG to help the staff make a proper diagnosis. Id. Nancy may be taking medications, with serious side effects, that are of no benefit to her and this would be great harm. Id. at 107.
• Sharon McK. suffered from a particular disorder that produced a sudden loss of muscle tone. Tr. 7/30/93 (Alvarez) at 107. It was unclear whether or not this activity was seizure related. Id. Some seizures which produce a sudden loss of muscle tone are called akinetic seizures. Id. at 107-108. This type of seizure produces a lot of falling injuries. Id. at 107108. Akinetic seizures will improve with certain types of medication and will not improve with certain other types of medication. Id. at 108. If you are not sure which type of seizure the individual is experiencing, you may treat the individual with the wrong medication. Id. An EEG reading will aid in the correct diagnosis. Again, Sharon was treated with a certain type of anticonvulsant medication without the Ebensburg staff ever being sure which type of seizure she was suffering from (if in fact, she was suffering from seizures at all). Id. at 107. Sharon should have received the benefit of an EEG to help the staff make a proper diagnosis. The point of all this is to make the correct diagnosis so that the right medications can be prescribed if at all. Id- In this case, Sharon may have been given medications (with all the attendant risks of side effects) without the staff being sure that she was actually seizing. Id. at 108.
• Gerald G. was thought to have a focal type seizure but he was never provided with an EEG to determine if this was the case. Tr. 7/30/93 (Alvarez) at 108. As a result, he continued on four medications for prolonged periods of time and was subjected to medication side effects. Id. His medical records indicate that he suffered from dehydration which is a side effect of medication. Id.
3. Ebensburg Is Unduly Engaging In The Practice Of Anticonvulsant Polypharmacy.
The standard in the field is that medical professionals should try to use the least
possible amount of medication. Tr. 7/30/93 (Alvarez) at 112. Polypharmacy is the use of
several medications at once to treat one particular condition. Tr. 7/30/93 (Alvarez) at 109.
Experts for both the United States and defendants agreed that polypharmacy is something the
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medical staff should try to avoid in treating a developmentally disabled individual with epilepsy. Tr. 7/30/93 (Alvarez) at 110; Tr. 9/13/93 (Kastner) at 191; Tr. 9/14/93 (Chamovitz) at 244. Individuals should not be placed on several medications at once unless it is strictly necessary. Tr. 7/30/93 (Alvarez) at 110-111.
As far back as 1990, the Justice Department had notified Ebensburg that its practice of maintaining anticonvulsant polypharmacy was placing the long term health of its residents at risk. U.S. Exh. 638 (Sponsky Dep.) Exh. 50. And yet the deficient practices continue today.
The physicians at Ebensburg have engaged in anticonvulsant polypharmacy with some of the residents for long periods of time even though there are indications in the record that the residents are suffering from side effects. Tr. 7/30/93 (Alvarez) at 114. Dr. Kastner agreed that the percentage of individuals on anticonvulsant polypharmacy at Ebensburg was "a concern." Tr. 9/13/93 (Kastner) at 193, 195; U.S. Exh. 900. Dr. Kastner indicated that Ebensburg could do a little bit better in reducing the rates of polypharmacy. Tr. 9/13/93 (Kastner) at 195. Dr. Chamovitz also indicated that the use of anticonvulsants in combination at Ebensburg is a concern to him. U.S. Exh. 606 (Chamovitz Dep.) at 145146.??/
Individuals can be harmed by the use of polypharmacy. Tr. 7/30/93 (Alvarez) at 110. Dr. Alvarez pointed out that "antiepileptic medications are good to control and prevent
fV Dr. Kastner indicated that it would be valuable for Ebensburg to augment its monitoring activities with respect to polypharmacy practices across the facility. Tr. 9/13/93 (Kastner) at 219. Dr. Kastner indicated that "systematic analysis of outcome data may be helpful in monitoring treatment or demonstrating treatment effectiveness of anticonvulsant medication and should be performed to monitor practice in this area." Tr. 9/13/93 (Kastner) at 221.
XIII-24

seizures; but at the same time we know that antiepileptic medication has side effects." Id.fl/ Side effects can be harmful to the patient. Id. Dr. Kastner agreed that an anticonvulsant polypharmacy regimen carries with it side effects that may include cognitive dulling and side effects potentially affecting every organ system depending on the particular medication used. Tr. 9/13/93 (Kastner) at 191. Dr. Kastner also admitted that it is well known that when anticonvulsant medications are used in combination, there are also interactions between the drugs that cause side effects. Tr. 9/13/93 (Kastner) at 110. The side effects tend to increase as you increase the numbers of medications. Tr. 9/13/93 (Kastner) at 110, 191. Thus, a doctor should have a very good reason for putting an individual on any medication and certainly on multiple medications due to the medication side effects. Tr. 7/30/93 (Alvarez) at 110.
A major problem with medication side effects is that they are very subtle and are not easily detected. Tr. 7/30/93 (Alvarez) at lll.ff/ This is especially true for individuals with mental retardation who are non-verbal and who cannot convey how they feel. Id. For example, individuals with developmental disabilities may not be able to report tiredness or unsteadiness or poor motor coordination or declining health. Id.
Sometimes it may be necessary to use two or three anticonvulsant medications, but it is generally not accepted practice in the field to use four anticonvulsant drugs simultaneously
fV Some medications can produce drowsiness and induce sleep, some produce decreases in cognitive functioning, some can produce changes in the way the liver functions, and, in fact, some medications can be toxic for the liver or red or white blood cells. Tr. 7/30/93 (Alvarez) at 110. fV In fact, the side effects may not be evident until the medication is decreased or stopped. Tr. 7/30/93 (Alvarez) at 111.
XIII-25

to treat an individual's epilepsy. Tr. 7/30/93 (Alvarez) at 112.^/ As Dr. Alvarez
indicated "it is something you should avoid at any cost." Id. He indicated that in
exceptional circumstances, four anticonvulsant drugs may be used for a short period of time,
but that four drugs should not be used over the course of years. Id. at 112-113, 149,
151.fl/ A fourth drug may be added for a short period of time, i.e., a month to two
months, while you are trying to wean an individual off another anticonvulsant drug or if you
want to try a new drug. Id. at 112-113, 149, 151. A fourth drug should only be used by a
very experienced neurologist; this is not something that a primary care physician should
undertake if he does not have much training in neurology. Id. at 151. In either case, the
physician must have a good medical plan of action. Id. at 113.
Examples of Ebensburg residents who have been subjected to anticonvulsant
polypharmacy for prolonged periods of time include:^/
• Mark G., who has suffered only a small number of seizures in recent years. Tr. 7/30/93 (Alvarez) at 114.^/ However, Mark has been kept on four anticonvulsant medications over the course of years. Id. at 114, 115. The medications have produced clear side effects as evidenced in his record. Id. at 114. He has exhibited lethargy on many occasions including a number of times in February 1992. There was an awareness among the staff that Mark was lethargic from the medication, and yet nothing was done to attempt to decrease his medications. Id. at 115. The Ebensburg physicians continued Mark on four
*/ Dr. Shertz agreed that his general philosophy is to use the fewest anticonvulsant drugs as possible in treating someone with a neurologic problem, but he admitted that there are Ebensburg residents on four anticonvulsant drugs. U.S. Exh. 633 (Shertz Dep.) at 30-31. */ Dr. Chamovitz agreed that the use of four anticonvulsant drugs is not a "desirable practice." Tr. 9/14/93 (Chamovitz) at 241. 3J_/ Dr. Kastner did not review the medical records of any of the individuals discussed below. Def. Exh. HH.
*/ For example, in 1989, Mark suffered only three seizures, in 1990 no seizures were reported, in 1991 he had two seizures, and in 1992 he suffered only three seizures. Tr. 7/30/93 (Alvarez) at 114.
XIII-26

medications in spite of the fact that the outside consult neurologist suggested that Mark's medications be reduced. Id."/ The consultant neurologist recognized that Mark was suffering from a small number of seizures. Id. at 116; U.S. Exh. 351 A. In fact, the consult neurologist noted that Mark was receiving four medications even though he had only five total seizures in the last three years. U.S. Exh. 351 A. Before October 1992, Mark had not been seen by the consult neurologist since 1982 — ten years. U.S. Exh. 351A. The Ebensburg primary care doctor finally ordered a neurological consult for Mark on September 30, 1992, only two weeks after the United States' medical doctor, Dr. Sulkes, toured the facility, and only a few weeks before the United States' neurologist, Dr. Alvarez, was to tour the facility.
• Dennis B. was kept on four anticonvulsant medications even though he had very few seizures. Tr. 7/30/93 (Alvarez) at 116. On November 9, 1990, the consult neurologist suggested that the Ebensburg doctors decrease Dennis' medications, but his recommendation was never adopted or implemented at Ebensburg. Id. In fact, the Ebensburg primary care physician disagreed with the consult neurologist and decided to take full control of the case so as to keep Dennis on four anticonvulsant medications. Id. The Ebensburg doctor refused to accept the opinion of the neurologist that the patient was overmedicated. Id. This is another case of unnecessary polypharmacy that could produce harm to the patient. Id. On October 22, 1992, Dr. Chamovitz continued to express his concerns about Dennis being on four drugs. Id. at 116-7; U.S. Exh. 307A. Dr. Chamovitz wrote: "one has to be concerned that he is receiving four kinds of medication." U.S. Exh. 307A. He further noted that he and the primary care doctor would discuss "which direction we should take in an effort to effectively reduce his medication." U.S. Exh. 307A. The expert consult neurologist had not seen Dennis in about a year and a half. U.S. Exh. 307A. Dennis had continued on four anticonvulsant drugs for this entire two-year period in spite of the known written concerns of the consult neurologist. Tr. 7/30/93 (Alvarez) at 117.
• Darlene M. is receiving three anticonvulsant medications and yet the total number of her seizures is very small. Tr. 7/30/93 (Alvarez) at 117. Darlene is probably overmedicated. Id. at 118. The high amounts of medication she is receiving would tend to impair anyone's coordination. Id. Darlene has fallen regularly, but she is not having seizures. Id. Nonetheless, it was never considered that the falls may have been due to the side effects of the high amounts of medication in her system. Id. at 117-118. The neurologist was practically not involved in her care. Id. at 117. There were many problems in Darlene's neurological care: she was falling without seizing and yet she had not had the benefit of a consultation with the neurologist in a long time; there was no attempt to decrease her medications; and she was not provided with appropriate diagnostic techniques like an EEG to determine whether or not her events were in fact seizures and whether or not she should be kept on the medications. Id. at 118.
"/ On October 1, 1992, the consultant neurologist suggested that the Ebensburg doctors reduce Mark's medications: "I should like for the staff to consider trying to reduce and discontinue some of Mark's anticonvulsant medication." Tr. 7/30/93 (Alvarez) at 115-6, U.S. Exh. 351A.
XIII-27

• Louis L. had been kept on four anticonvulsant drugs. Tr. 7/30/93 (Alvarez) at 118. Even though the consult neurologist had suggested decreasing Louis' medications, the Ebensburg primary physician had taken over control of his neurological care and did not reduce his drugs until finally Louis became toxic. Id. After his medications were finally decreased, the tangible positive effects of the change were noted by the staff in his record: "he is alert. The quality of [his] life is good." Id. at 118-119. Before his medications were decreased, he was described by the staff as "drowsy." Id. at 119. In Dr. Alvarez' opinion, the Ebensburg doctors are very reluctant to change any residents' medication. Id. at 118.
4. Ebensburg Is Failing To Properly Manage The Side Effects Of Anticonvulsant Medication Administered To Its Residents.
It is generally accepted in the field of developmental neurology that an institutional
medical staff treating a developmentally disabled individual on an anticonvulsant drug
regimen is expected to properly manage the medications such that the negative side effects of
the drugs are minimized. Tr. 7/30/93 (Alvarez) at 119-20.
In the management of seizures in an individual with epilepsy, there is a need for a
team approach because anticonvulsant medication produces side effects and the entire team is
needed to monitor the individual's progress on the drug. Tr. 7/30/93 (Alvarez) at 52.!!/
Overall, Ebensburg considers side effects like lethargy to be a complication a person
with epilepsy should have to learn to live with. Tr. 7/30/93 (Alvarez) at 132. This is
simply not the case. Tr. 7/30/93 (Alvarez) at 132. Dr. Alvarez testified that "there is no
reason to keep th[ese] patientfs] lethargic." Tr. 7/30/93 (Alvarez) at 132. Lethargy in itself
can induce seizures in many people with epilepsy. Tr. 7/30/93 (Alvarez) at 132. Dr.
Alvarez testified that it is a "very tricky and dangerous area when you try to control seizures
!!/ For example, the individual might be falling more often or might be very sedated or might not be able to swallow or drink as well as before. Tr. 7/30/93 (Alvarez) at 52. Dr. Chamovitz testified "There is no question that sedation and quietness and lethargy ... can be caused by some medications." Tr. 9/14/93 (Chamovitz) at 252. As a result, you need awareness among all the people that are involved with the patients to alert the physicians that something is wrong. Tr. 7/30/93 (Alvarez) at 52.
XIII-28

with high doses of medication" because you produce lethargy. Tr. 7/30/93 (Alvarez) at 132.
A medical professional should not simply disregard the lethargy as beyond his control. Tr.
7/30/93 (Alvarez) at 132. This leads to an escalating cycle of more seizures and more
anticonvulsants to control them. Tr. 7/30/93 (Alvarez) at 132. As a result, many Ebensburg
residents end up being hospitalized for overmedication toxicity.
There is no awareness among the Ebensburg staff of any overmedication problem
among the residents and there is no demonstrated sense of urgency to act to control these
side effects. Tr. 7/30/93 (Alvarez) at 133. There is also a high degree of tolerance for
some of these side effects, and as Dr. Alvarez testified, "this shouldn't happen." Tr.
7/30/93 (Alvarez) at 133. The facility's inappropriate evaluation and management of
anticonvulsant medication side effects potentially affects all the residents with epilepsy at
Ebensburg. Tr. 7/30/93 (Alvarez) at 133.
There was a general lack of awareness among the professional staff at Ebensburg of
the negative side effects of the anticonvulsant medications provided to its residents. Tr.
7/30/93 (Alvarez) at 120. Examples include:!!/
• In January 1991, Jeffrey K. was being given five thousand milligrams of Depakote for his seizures. Tr. 7/30/93 (Alvarez) at 120. Dr. Alvarez labelled this as an "inordinately high" amount of this medication. Id. at 124.^7
On January 10, 1991, Dr. Chamovitz wrote in one of his consults for Jeffrey that five thousand milligrams is "an unusually large amount" of Depakote for a person Jeffrey's size. Tr. 7/30/93 (Alvarez) at 121; U.S. Exh. 393A. Dr. Chamovitz showed concern about this, and yet the primary care physicians did not, and they chose not to follow his advice. Tr. 7/30/93 (Alvarez) at 121. The use of this extremely high amount of medication did not
*/ Dr. Kastner did not review the medical records of any of the individuals discussed below. Def. Exh. HH. */ Dr. Alvarez testified that he rarely goes over three thousand milligrams and never goes over three thousand five hundred. Tr. 7/30/93 (Alvarez) at 121.
XIII-29

result in any better control of Jeffrey's seizures and, in fact, the seizures increased. Id. Dr. Chamovitz again raised a concern in a December 19, 1991 consult. Tr. 7/30/93 (Alvarez) at 121; U.S. Exh. 393B. He wrote that in using this high amount of Depakote, "there has not been better control of his convulsions; and actually so far, there seems to have been an increase in his convulsions." U.S. Exh. 393B.
On February 27, 1992, Jeffrey was admitted to Mercy Hospital for a seizure disorder. Tr. 7/30/93 (Alvarez) at 122; U.S. Exh. 393C. Dr. Chamovitz admitted that Jeffrey had to be admitted to the hospital because he had high blood levels which made him sedated and lethargic. Tr. 9/15/93 (Chamovitz) at 203. Dr. Chamovitz acknowledged: "The medication was not doing him any good, and he was having side effects." Tr. 9/15/93 (Chamovitz) at 203. At Mercy, the hospital staff realized that the blood level of this medication was too high so they stopped this medication completely. Tr. 7/30/93 (Alvarez) at 122; U.S. Exh. 393C. After the Depakote was stopped, Jeffrey improved. Tr. 7/30/93 (Alvarez) at 123. He returned to Ebensburg from the hospital on Tegretol; the Ebensburg nursing notes indicated that he ate well for supper later that week, and that the next week he was "alert, active, seems his usual self." Id. Dr. Chamovitz acknowledged that once the hospital had stopped the Depakote, "lo and behold, as Dr. Alvarez points out, he stopped having spells." Tr. 9/15/93 (Chamovitz) at 203. Dr. Chamovitz agreed that "It was not a good medicine for him, and the level didn't make any difference." Id. He added that "We just guessed wrong." Id. After Jeffrey's return from the hospital, i.e., after his removal from the high levels of Depakote, Dr. Chamovitz noted in a June 12, 1992 consult that there had been "a dramatic change" in Jeffrey's convulsions and clinical state. Tr. 7/30/93 (Alvarez) at 125; U.S. Exh. 393D. Dr. Chamovitz concluded that "Jeffrey has had only two convulsions recorded since he has been on this present dose of medication." U.S. Exh. 393D. Dr. Chamovitz concluded that "One has to be very pleased with Jeffrey at this time." U.S. Exh. 393D. In fact, Jeffrey only suffered two seizures in the three months after the change by the hospital. Tr. 7/30/93 (Alvarez) at 125.
Jeffrey was harmed due to overmedication; Ebensburg's inability to perceive side effects; Ebensburg's inability to recognize that its medications were increasing the number of seizures; repeated rejection of advice of Ebensburg's consultant neurologist; and lack of diagnostic techniques such as the EEC Tr. 7/30/93 (Alvarez) at 123-125.
• Neal S. was on anticonvulsant medications and was noted to be extremely lethargic for six weeks in early 1992. Tr. 7/30/93 (Alvarez) at 125. When a resident is lethargic for six weeks, that is a clear red flag that something is wrong. Id. However, no one at Ebensburg did anything to help Neal. Id. at 126. Dr. Alvarez stressed that it was "wrong" to continue someone on medication while he is lethargic for six full weeks. Id. As a result of his lethargy, Neal had suffered a drastic regression in programming. Id. at 125. A regression in programming is not a subtle side effect from a medication; it is a drastic side effect that directly affected Neal's quality of life in a negative way. Id.
Neal repeatedly suffered from blood toxicity levels above the therapeutic range. Id. at 126. For example, on March 25, 1992, his blood level of Dilantin was 26 which is high, well above the level limit of 20. Id. In addition, on April 21, 1992, his blood level of
XIII-30

Dilantin was 30, again well over the normal high level. Id. These two toxic blood level readings occurred during the period when Neal was lethargic. Id.
Besides lethargy, other consequences of Neal's overmedication included loss of appetite, excessive sleeping, and several seizures. Tr. 7/30/93 (Alvarez) at 126. These problems continued until Neal was admitted to Mercy Hospital on April 28, 1992. Id. at 127. The hospital admission report indicated that Neal suffered from lethargy and stupor, and he was unresponsive to painful or verbal stimuli. Id.; U.S. Exh. 468.
Even though Neal suffered from these and a myriad of other medical problems, he was never well evaluated by the Ebensburg primary care physician. Tr. 7/30/93 (Alvarez) at 127. There was no mention in Neal's medical record by an Ebensburg physician that he was lethargic or had a bad appetite. Tr. 7/30/93 (Alvarez) at 128. All of these problems were discovered upon his admission to Mercy Hospital.
• Sean M. was taking high doses of Dilantin and his blood level was recorded in the toxic range on May 21, 1992. Tr. 7/30/93 (Alvarez) at 129. However, there were no recorded evaluations of this episode by any Ebensburg doctor. Id. Fifteen days later, he is described in the notes as acting strange, walking around, falling and bouncing into walls and furniture. Id. This behavior is consistent with some of the side effects of Dilantin which produces a clinical state as if you were drunk. Id.; Tr. 9/15/93 (Chamovitz) at 192. Four days later, Sean was reported with another blood level reading in the toxic range. Tr. 7/30/93 (Alvarez) at 129.
• Rosemary W. was recorded with a Dilantin level of 33.5 which is well above the top therapeutic level of 20. Tr. 7/30/93 (Alvarez) at 130. She was described as unsteady and lethargic in the medical chart notes. Id. However, there were no physicians' notes in the record addressing this particular problem. Id.
• Charles S. was hospitalized for Dilantin toxicity. Tr. 7/30/93 (Alvarez) at 130; U.S. Exh. 462A. Charles had been given three anticonvulsant medications for a long time and there was indication in the 1992 annual review that he had been sedated. Tr. 7/30/93 (Alvarez) at 131. However, the medical staff was apparently never fully aware of the fact that Charles was being chronically sedated. Id. On July 16, 1992, a nurse described him as not alert enough to take medications. Id. If the individual has a history of being sedated and he is not alert enough to take medication on a given day, he must be provided with a blood level right away. Id. At the very least, the doctor should go and see the individual, but there is no evidence in the Ebensburg records that a doctor saw Charles. Id.
• Luberta H. was admitted to Mercy Hospital on December 4, 1992 for Dilantin toxicity. Tr. 7/30/93 (Alvarez) at 132-133; U.S. Exh. 372A. She had been placed on too high a level of anticonvulsant medication. Tr. 7/30/93 (Alvarez) at 133. At the time of her admission, her blood level reading was 47 which is well over the accepted high level of 20. Id. This is
twice as high as it should be. Id. At that time, she was also exhibiting a high blood level
reading of another anticonvulsant drug, Phenobarbital. Id.
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• Ronald A. was taking anticonvulsant medications and was sedated for a long time. Tr. 7/30/93 (Alvarez) at 129. The Ebensburg physicians took too long to respond to his condition. Id. at 130.
These are not the only examples that Dr. Alvarez found at Ebensburg where residents
unduly suffered from the negative side effects of anticonvulsant medications. Tr. 7/30/93
(Alvarez) at 133.
5. Ebensburg Is Failing To Fully Involve An Expert Neurologist In The Neurological Care Of Its Epileptic Residents.
Ebensburg does not fully utilize the input and services available to them from their
consultant neurologist. Tr. 7/30/93 (Alvarez) at 135. In difficult cases, where the
neurologist takes more of an active responsibility for the neurological care of the individuals,
the person will suffer less injuries and less side effects. Tr. 7/30/93 (Alvarez) at 163.
a. The Neurologist's Advice Is Ignored.
In many cases, the Ebensburg primary care physicians disregard the advice of the
consultant neurologist to the detriment of the residents' neurological care. Tr. 7/30/93
(Alvarez) at 135.11/ Dr. Alvarez testified that the fact that the Ebensburg physicians
"disregarded this advice produced harm in the patients." Tr. 7/30/93 (Alvarez) at 135.^/
*2J For example, other than the review of his written progress notes or his written consults, Dr. Chamovitz is not made part of any formalized drug review system that is currently in place at Ebensburg. U.S. Exh. 633 (Shertz Dep.) at 20-21. Dr. Chamovitz admitted that he does not participate in the drug reviews, but he indicated that it would be helpful to sit with the team because the more information he has, the better. U.S. Exh. 606 (Chamovitz Dep.) at 76-77. In addition, during the hospitalization of an Ebensburg resident, Dr. Chamovitz normally does not have any input in the medical care of the resident or the hospitalization process. U.S. Exh. 633 (Shertz Dep.) at 22.
*2.1 Dr. Alvarez testified that the neurologist should be more involved in the direct care of the residents instead of merely offering suggestions or advice that can be ignored by the primary care doctors. Tr. 7/30/93 (Alvarez) at 141. For the difficult cases, the neurologist should be the one to write the order to increase or decrease the individual's medication. Tr. 7/30/93 (Alvarez) at 141.
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Dr. Chamovitz acknowledged that in the past, the Ebensburg physicians have decided not to
follow his recommendations. Tr. 9/15/93 (Chamovitz) at 215. Dr. Chamovitz agreed with
Dr. Alvarez in criticizing the Ebensburg primary care physicians for not always taking his
advice. Tr. 9/14/93 (Chamovitz) at 256. The facility's poor utilization of its consult
neurologist potentially affects all the residents at Ebensburg with epilepsy. Tr. 7/30/93
(Alvarez) at 139.fi/ Examples of Ebensburg's improper utilization of its consulting
neurologist's advice include:
• The Ebensburg physicians and the interdisciplinary team excluded the consultant neurologist from any direct input into Andrew Lo.'s neurological care making themselves exclusively responsible for it. Tr. 7/30/93 (Alvarez) at 137. Nonetheless, Andrew was taking four anticonvulsant medications and he was suffering complications and injuries. IdAndrew was also never provided with an EEG reading. Id- at 136. At one point, Andrew developed left arm paralysis. Id. at 137. A few months later, he could not move the right arm. Id. This is the type of condition that is a red flag that should signal to any primary care physician that a neurologist with some expertise should be involved. Id. However, the consult neurologist was never called in for advice or consultation at this time in Andrew's care. Id. Andrew became sick and was hospitalized on June 14, 1992. Id. An MRI at Mercy Hospital revealed that Andrew had an infection in the cervical bones located in the spine. Id. The infection was producing an abscess that was producing compression on the spinal cord. Id. at 138. Dr. Alvarez found it incredible that the neurologist's expertise and advice were not heeded given the severity of the infection, the paralysis of the extremities, the high number of medications Andrew was taking, and the fact that he had been sedated on many prior occasions. Id. at 138. It turned out that Andrew was in fact overmedicated and the staff could not proceed with treatment. Id. The paralysis potentially could have been a bigger problem than it turned out to be for Andrew. Id.
• Dennis B. was receiving four antiepileptic medications and yet the consult neurologist was not involved in his care for seventeen months. Tr. 7/30/93 (Alvarez) at 139. When he finally did become involved, he decreased one of Dennis' medications. Id.
• Mark G. was on many different anticonvulsant medications with noted side effects. Tr. 7/30/93 (Alvarez) at 139. Even though the neurologist was requesting Mark's medications
*2J Specifically, Dr. Alvarez thought the amount of neurological services provided to Jeffrey K., Mark G., and David B. were inadequate. Tr. 7/30/93 (Alvarez) at 136.
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be decreased, this was not implemented for quite some time. Id. In the meantime, Mark suffered from negative side effects of the medication. Id.
b. The Neurologist Does Not Have Control Over the Individuals That Need Expert Input.
Another deficiency is the lack of control given to the consult neurologist over who he sees on a given visit. Dr. Chamovitz admitted that the Ebensburg physicians dictate who he will provide neurological consult services to on a given visit. Tr. 9/15/93 (Chamovitz) at 213. Dr. Shertz admitted that the outside consultant neurologist does not control which Ebensburg residents he would like to see on a given visit to the facility. U.S. Exh. 633 (Shertz Dep.) at 7-8. Whether or not the outside consultant sees a given Ebensburg resident is solely within the discretion of the Ebensburg primary care physician. U.S. Exh. 633 (Shertz Dep.) at 15.f!/ Many times, the outside neurologist, Dr. Chamovitz, has indicated in writing that he would like to see a certain patient within a "few months" (or other short time frame); however, the Ebensburg primary care physicians will often not respect this request and will not grant Dr. Chamovitz the right to see the resident. U.S. Exh. 633 (Shertz Dep.) at 15-16. Dr. Chamovitz admitted that he sees an occasional patient that he wished he had seen earlier. U.S. Exh. 606 (Chamovitz Dep.) at 100-101.
"/ Before Dr. Chamovitz arrives, a list of the residents he is to see is prepared by the Ebensburg primary care physicians. U.S. Exh. 633 (Shertz Dep.) at 7; Tr. 9/14/93 (Chamovitz) at 229. Dr. Chamovitz is not able to add to the list any residents he would like to see given the strictures of the present system. U.S. Exh. 633 (Shertz Dep.) at 8. Even if Dr. Chamovitz asks to see a patient for a follow-up visit, the patient's primary physician has the right to determine that the follow-up is not necessary. U.S. Exh. 606 (Chamovitz Dep.) at 29. The referring physician has the final say as to when Dr. Chamovitz sees a patient. U.S. Exh. 606 (Chamovitz Dep.) at 30-31.
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c. The Number Of Consult Neurology Hours Is Inadequate. The parties agree that there are not enough neurologist consult hours afforded to the residents of Ebensburg given the large number of individuals with neurological problems there. Tr. 7/30/93 (Alvarez) at 135; Tr. 9/14/93 (Chamovitz) at 229, 249. Dr. Chamovitz only provides neurological services to Ebensburg two days a month. Tr. 9/15/93 (Chamovitz) at 205.^/ Dr. Chamovitz testified that he would like to spend more than two days a month at the facility, preferably one day a week. Tr. 9/15/93 (Chamovitz) at 206; Tr. 7/30/93 (Alvarez) at 144; U.S. Exh. 606F. He testified that "I can do [the job] better if I were there once a week." Tr. 9/14/93 (Chamovitz) at 249. He indicated that more time at the facility would be "better." Tr. 7/30/93 (Alvarez) at 144; U.S. Exh. 606F. He added that more time at the facility would afford him the ability to see the residents more consistently and to interact with the direct care staff more closely. Tr. 9/15/93 (Chamovitz) at 206; Tr. 7/30/93 (Alvarez) at 144; U.S. Exh. 606F. Dr. Alvarez commented that he agreed with Dr. Chamovitz's statements. Tr. 7/30/93 (Alvarez) at 144. Dr. Chamovitz testified that the residents would benefit because the primary care physicians would have more access to and
*tl Dr. Chamovitz added that "being there only two days a month does not give me the time to do the job that I am contracted to do all of the time. I have to spend so much time on those patients who are really in trouble, that you don't have the time to see everybody else." Tr. 9/14/93 (Chamovitz) at 249-50. Dr. Chamovitz admitted that most of his consults last only about 15 minutes. U.S. Exh. 606 (Chamovitz Dep.) at 68.
XIII-35

would have improved communications with the neurologist. Tr. 9/15/93 (Chamovitz) at 206;
Tr. 7/30/93 (Alvarez) at 144-5.^/
d. Time Constraints Preclude The Neurologist From Seeing All The Individuals Who Are Candidates For Neurological Care.
According to his contract, Dr. Chamovitz is expected to see every Ebensburg resident
with epilepsy at least once a year. Tr. 7/30/93 (Alvarez) at 145. However, a September
1992 Ebensburg list of individuals with epilepsy revealed that Dr. Chamovitz has not in fact
seen every resident with epilepsy every year. Tr. 7/30/93 (Alvarez) at 145; U.S. Exh. 149.
There were several individuals with epilepsy at Ebensburg who the consult neurologist had
not seen for years. Tr. 7/30/93 (Alvarez) at 145; U.S. Exh. 149.f/ Dr. Chamovitz
testified that it is true that there are some individuals with epilepsy who he has not seen
during a given year. Tr. 9/15/93 (Chamovitz) at 223-4. Not only did Dr. Chamovitz not
meet the obligations of his contract, but more importantly, the residents of Ebensburg with
epilepsy were denied the valuable input of a consult neurologist into their medical and
neurological care for a period of years in many cases. Tr. 7/30/93 (Alvarez) at 145.^!/
*/ Dr. Chamovitz went on to testify that it would be better to have a full-time neurologist at Ebensburg. Tr. 9/15/93 (Chamovitz) at 205-6. Dr. Chamovitz admitted that he does not attend interdisciplinary team meetings. Tr. 9/15/93 (Chamovitz) at 217-8. He acknowledged that it would be helpful to sit down with the team and discuss issues, but Chamovitz admitted "time is a constraint." Tr. 9/15/93 (Chamovitz) at 218. Dr. Chamovitz testified that he might attend the team meetings if he worked there full-time. Tr. 9/15/93 (Chamovitz) at 218. He added that if he were full-time, he "would become a more integral part of the place." Tr. 9/15/93 (Chamovitz) at 218.
*2_l As of September 1992, Dr. Chamovitz had not seen over 75 out of 245 individuals with epilepsy - about a third - in the past one year period. U.S. Exh. 149. A few of the individuals he had not provided neurological consult services to since the 1970s; many more he had not seen since the 1980s. Id.
*H Only since this lawsuit was initiated, and scrutiny has been heightened, has Ebensburg required every resident who has epilepsy or is on anticonvulsant medications to be seen by the outside
(continued...)
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The Ebensburg residents would benefit from more of a combined neuro-psychiatric approach to individual care at Ebensburg. Tr. 7/30/93 (Alvarez) at 140. Dr. Alvarez advocated that Ebensburg reorganize the whole way they provide medical and neurological services, and put it into a more integrated concept. Tr. 7/30/93 (Alvarez) at 140. He testified that about 50-60 percent of the individuals at Ebensburg have neuro-psychiatric problems. Tr. 7/30/93 (Alvarez) at 143. In the neuro-psychiatric approach, the neurologist, psychiatrist and psychologist would work together and be very much involved with certain residents. Tr. 7/30/93 (Alvarez) at 140-1.
6. Ebensburg Is Not Adequately Documenting Medical And Neurological Care For Its Residents In Violation Of Generally Accepted Standards.
The quality of the medical recordkeeping at Ebensburg does not meet generally accepted professional standards. Tr. 7/30/93 (Alvarez) at 146.
Dr. Alvarez indicated that in assessing conditions at Ebensburg, it was important to review the medical records because they provided him with insight into how the physicians communicated with other physicians and other members of the team; it provided him with an insight into how the physicians developed diagnoses and suggested treatments; it showed him whether or not a certain treatment was or was not successful; it also was the only way he could review documented cases where medication side effects presented themselves clinically. Tr. 7/30/93 (Alvarez) at 47-8.
^/(...continued) neurologist. U.S. Exh. 633 (Shertz Dep.) at 8. In fact, Dr. Shertz testified that he was not looking to have the outside neurologist see everyone on anticonvulsants on any given time interval, such as every year, because he felt the Ebensburg doctors were more than capable of handling neurologic problems on their own without outside help. U.S. Exh. 633 (Shertz Dep.) at 84.
XIII-37

He testified that the medical notes were incomplete. Tr. 7/30/93 (Alvarez) at 146. For example, when reviewing Stephen C.'s record on the date he was hospitalized for uncontrolled seizures, Dr. Alvarez could not find physicians' notes describing the patient's condition, so he had to rely on the nurses' documentation. Tr. 7/30/93 (Alvarez) at 64. He added that sometimes there were no notes for days. Tr. 7/30/93 (Alvarez) at 146. Even in cases where the physicians were actively giving the residents medications, the medical notes did not reflect much of the physician's thought processes. Tr. 7/30/93 (Alvarez) at 146.
As far back as 1990, the Justice Department had notified defendants that Ebensburg erratically documented and described seizure activity, and that this impeded efforts to reduce seizure activity. U.S. Exh. 638 (Sponsky Dep.) Exh. 50.
Dr. Chamovitz testified that physicians notes in the Ebensburg medical charts are sometimes lacking especially when there is a medication change. Tr. 9/15/93 (Chamovitz) at 222. He added that "progress notes sometimes aren't as complete as they might be." Tr. 9/15/93 (Chamovitz) at 222. Dr. Chamovitz acknowledged that the physician will not always describe why there was a change in medications. U.S. Exh. 606 (Chamovitz Dep.) at 158159. Dr. Chamovitz testified that charting consistency and reliability could be better at Ebensburg. Tr. 9/15/93 (Chamovitz) at 222.
XIII-38

XIV. EBENSBURG FAILS TO PROVIDE RESIDENTS WITH ADEQUATE PHYSICAL THERAPY AND PHYSICAL MANAGEMENT SERVICES WHICH HAS RESULTED IN HARM. Based upon her week of observations at Ebensburg during November 1992, interviews
with staff, and review of records, Ms. McAllister determined that, overall, physical management practices at Ebensburg are "grossly inadequate." Tr. 7/28/93 (McAllister) at 161-162, line 6. Ms. McAllister found that at all levels — from physical therapy staffing, assessments, positioning, lifting and transferring techniques, to wheelchairs — Ebensburg's practices were substandard (and in some cases, totally non-existent), resulting in serious harm to the individuals with physical disabilities who live there. Tr. 7/28/93 (McAllister) at 119, 120, 163-165, 206-207, 210-212, 214, 216, 219-233, 225-226, 230. In fact, based upon her review of a number of similar facilities during the past several years, Ms. McAllister has not encountered a facility that is as far behind in the implementation of physical management services for individuals with significant physical disabilities as is Ebensburg. Tr. 7/29/93 (McAllister) at 26.
A. The Defendants Have Been On Notice Of Deficiencies In Services For Physically Handicapped Ebensburg Residents Since At Least 1987.
As far back as 1987, the Commonwealth was aware that Ebensburg residents were not receiving "essential" physical therapy services, placing them at undue risk of contractures, bodily deformity, and other serious threats to physical health. U.S. Exh. 638 (Sponsky Dep.) Exh. 49 at 3, 4, 6. In its letter to the defendants outlining deficiencies identified during a CRIPA investigation of Ebensburg, the United States Department of Justice specifically advised the Commonwealth, inter alia, that the number of physical therapists and
XIV-1

physical therapy aides was inadequate, the evaluation process to determine who was in need of physical therapy was deficient, and wheelchairs were ill-fitted or broken, thereby causing new physical problems or exacerbating old ones. Id. at 4. Again, in 1990, following tours by the Justice Department to determine what corrections, if any, had been made at Ebensburg, the United States put the Commonwealth on notice of continuing serious problems in the area of physical therapy. U.S. Exh. 638 (Sponsky Dep.) Exh. 50. The defendants were advised that the use of adaptive equipment at Ebensburg for residents with physical disabilities was contrary to professional standards. Id. at 4. In particular, the United States advised the defendants that Ebensburg residents were suffering injuries as a result of broken or ill-fitting wheelchairs and the lack of support afforded by wheelchairs was resulting in physical deterioration. Id. Moreover, the Commonwealth was advised that resident care was inadequate due to insufficient communication between the physical therapists and occupational therapists. Id. at 5. Ebensburg has never consulted with or brought in any independent experts in the field to evaluate Ebensburg's overall practices and to provide suggestions to Ebensburg in the areas of physical therapy and physical management. Tr. 10/15/93 (Bellomo) at 13.
Mr. Arnall, who is one of three contract physical therapists at Ebensburg, is the only person who testified for the Commonwealth at trial about physical therapy services. 1/ Mr. Arnall admitted that any opinions he offered during the trial about the adequacy of physical therapy services at Ebensburg were, therefore, judgments about his own practices and the
1/ Other Ebensburg staff and administrators testified about problems in physical therapy services at the facility through depositions which have been entered into evidence as admissions by a party opponent.
XIV-2

practices of his wife and a company employee. Tr. 9/17/93 (Arnall) at 18-19, 111. He admitted that he and his wife-partner at CAMCO are responsible for ensuring the adequacy of services that CAMCO provides at Ebensburg. Tr. 9/17/93 (Arnall) at 107-108. They have not developed a quality assurance system to measure the adequacy of care, however, despite the fact that this has been one of their contract objectives with Ebensburg Center since at least July 1, 1991. U.S. Exhs. 948, 950; Tr. 9/17/93 (Arnall) at 110-112. Mr. Amall testified that he has not developed such a quality assurance system because it would be "self-serving" and it is inappropriate for the individuals performing an activity "to adjudicate the quality and appropriateness thereof." Tr. 9/17/93 (Arnall) at 108. He defended the adequacy of his services at Ebensburg for purposes of this litigation without the benefit of having conducted any such overall assessment and based upon a limited review of issues after his deposition during the two weeks before his testimony. Tr. 9/17/93 (Arnall) at 147, 152.
B. Background On Ebensburg Residents With Physical Disabilities. At least 127 Ebensburg residents rely on wheelchairs for mobility.2/ In addition, there are eight Ebensburg residents who live in carts. Tr. 7/28/93 (McAllister) at 97. Other Ebensburg residents have physical limitations, such as unsteady gaits or walking on their toes. Tr. 7/28/93 (McAllister) at 97. Although there are residents with physical disabilities in each of the five living units at Ebensburg, the majority live in Keystone, where approximately 94 people resided as of the time of Ms. McAllister's tour. Tr. 7/28/93
2/ Ebensburg provided a list to Ms. McAllister of 117 residents with wheelchairs which was incomplete. Tr. 7/28/93 (McAllister) at 97. Counsel for the defendants indicated during cross examination that the corrected number of Ebensburg residents who use wheelchairs is actually 127. Tr. 7/29/93 (McAllister) at 51.
XIV-3

(McAllister) at 97-98. Approximately one-third of Keystone residents are immobile, i.e. they do not have any active movement. Tr. 7/28/93 (McAllister) at 98. Another one-third of Keystone residents have significant limitations, i.e. they may be able to roll over or sit independently but they have limited functional skills. Tr. 7/28/93 (McAllister) at 98. The remaining Keystone residents have minimal to moderate limitations, i.e., they have physical limitations but some functional skills. Tr. 7/28/93 (McAllister) at 98-99.
C. Intervention Is Necessary To Prevent Deformity Patterns. The individuals who live at Ebensburg who have significant deformity patterns (e.g., contractures, twisted limbs, curved spines) were not born with them. Tr. 7/28/93 (McAllister) at 107. Instead, deformity patterns generally develop over time. Id. Deformity patterns originate with brain damage or malformation that causes abnormal messages to be sent to the muscles. Id. at 107. Deformities result when there are no attempts to counteract the resulting abnormal muscle development through appropriate intervention. Id. at 107, 109, 147-148. Deformity patterns can make it difficult for a person to breathe, eat, interact with other people, and perform skills. Id. at 110. Since the 1960's, the field of physical therapy has recognized that deformity patterns can actually be prevented with appropriate intervention at an early stage. Tr. 7/28/93 (McAllister) at 157. Mr. Hauenstein agrees that if individuals are properly and consistently positioned and provided with an active physical therapy regimen, it is possible to prevent the effects of scoliosis. U.S. Exh. 619 (Hauenstein Dep.) at 67.3/
3/ Scoliosis, a common condition among Ebensburg residents, is an imbalance in the muscles surrounding the spine causing the muscles to pull harder on one side of the body.
(continued...) XIV-4

Ms. McAllister introduced Tim P. and Christine G. to the Court during her slide
presentation as examples of people who live at Ebensburg who have significant physical
disabilities and deformity patterns from scoliosis who do not receive adequate services to
meet their needs. Tim P. is thirty-three years old and lives in Keystone. He has lived at
Ebensburg since a month before he turned age three. Tr. 7/28/93 (McAllister) at 103; U.S.
Exh. 973. At the time of Tim's admission to Ebensburg, he was able to walk on his toes
with assistance and could babble. Tr. 10/15/93 (O'Brien) at 77-78; U.S. Exh. 973. Tim is
currently immobile and lives in a cart in Keystone. Tr. 7/28/93 (McAllister) at 103. His
scoliosis has developed to the point where his hip is actually up underneath his rib cage. Tr.
7/28/93 (McAllister) at 103; U.S. Exh. 670. Tim does not receive any physical therapy
services. Tr. 7/28/93 (McAllister) at 105. As a result of spending his day being "pancaked"
(turned from his stomach to his back), Tim's chest has been flattened and his muscles are
very tight through his upper chest region. Tr. 7/28/93 (McAllister) at 104. Because of this,
it is difficult for Tim to breathe and he has become a shallow breather. Id. In March 1993,
Tim was hospitalized for pneumonia. U.S. Exh 144. As of the time of Dr. Sheppard's tour
3/(... continued) Tr. 7/28/93 (McAllister) at 107-108. Where an individual does not have the muscle strength or therapeutic interventions to counteract the force of gravity, the muscles pull into a deformity pattern where the body becomes curved to one side or the other. Id. at 109. Absent appropriate therapeutic intervention (through surgery and/or therapeutic positioning), this deformity pattern can continue to the point where the hip actually pushes up underneath the rib cage and the person can become "fixed" in this position if there is no subsequent intervention. Tr. 7/28/93 (McAllister) at 109; Tr. 7/29/93 at 33, 36. This phenomena occurred in such Ebensburg residents as Tim P., Frank H., and Joe T. Tr. 7/28/93 (McAllister) at 110, 111, 112. When the hip is lodged up underneath the rib cage, it presses against the internal organs and can make it difficult for the diaphragm to function. Tr. 7/28/93 (McAllister) at 110-111; U.S. Exh. 619 (Hauenstein Dep.) at 66.
XIV-5

in July 1993, Tim's condition had deteriorated to the point that he was being fed by a gastrostomy tube. Tr. 10/18/93 (Sheppard) at 96; Tr. 7/28/93 (McAllister) at 104. See also § IX.B. 1 for a discussion of Tim's significantly low body weight.
Christine G. is twenty-nine years old and has been at Ebensburg since age nine. U.S. Exh. 363. She currently lives in Keystone, is confined to a wheelchair, and is an example of someone who has significant limitations as a result of her physical disabilities. Tr. 7/28/93 (McAllister) at 105 (U.S. Exh. 671 is a picture of Christine). Christine was able to sit independently at four months of age, she stood at age one, and she was able to walk at sixteen months. Tr. 7/28/93 (McAllister) at 106. Mr. Arnall agrees that Christine has the capability to walk. Tr. 9/17/93 (Arnall) at 32. As of January 1993, however, Christine did not receive any physical therapy services. Id. There is no physical therapist or physical therapy aide on her interdisciplinary team and neither a physical therapist or physical therapy aide attended Christine's 1993 annual review. Tr. 7/28/93 (McAllister) at 106; U.S. Exh. 363. Christine's position in her current wheelchair forces her to bend at her abdomen, as opposed to her hips. Tr. 7/28/93 (McAllister) at 105; U.S. Exh. 671. This position places a great deal of pressure on her tailbone and she has had skin irritations in that area as well as on her knees. Tr. 7/28/93 (McAllister) at 105-106. Her wheelchair seat belt is also placed across her stomach, which places a lot of pressure on her abdominal cavity. Tr. 7/28/93 (McAllister) at 105. In December of 1992, Christine was placed on a gastrostomy tube during a two month hospitalization for pneumonia. Tr. 7/28/93 (McAllister) at 106; U.S. Exh. 363. A year earlier, Christine was able to eat a chopped diet with pureed meat. Tr. 7/28/93 (McAllister) at 106.
XIV-6

D. Physical Therapy Staffing At Ebensburg Is Inadequate. Ebensburg does not have any full-time physical therapists on staff. 7/28/93 (McAllister) at 229. The only physical therapists involved at Ebensburg are part-time consultants. Id. In Ms. McAllister's opinion, the amount of time that the physical therapy consultants spend at Ebensburg is insufficient to meet the needs of Ebensburg residents. Tr. 7/28/93 (McAllister) at 230. Ms. McAllister bases her opinion both on the very limited amount of time that the physical therapists spend at Ebensburg, as well as her "gross concerns" about the adequacy of assessments, programs, positioning, and gross motor programs provided to residents and the inadequate transferring, lifting, and handling skills of staff. Id. at 230. As of December 16, 1992, there were three part-time consultants at Ebensburg who are part of a corporation called CAMCO. Tr. 9/17/93 (Arnall) at 18. The three CAMCO consultants are: Michael Arnall, Yolanda Arnall, and Antoinette Repak. U.S. Exh. 977. Mr. Arnall has been a consulting physical therapist at Ebensburg through CAMCO since 1989. Tr. 9/17/93 (Arnall) at 147. Mr. Arnall has never been employed as a staff physical therapist in a residential facility serving individuals with mental retardation. Tr. 9/17/93 (Arnall) at 9. The only consultative services that he has provided in the area of physical therapy services in a mental retardation facility other than Ebensburg is the period of time that he worked in a facility in Italy while he was on a fellowship more than 10 years ago. Tr. 9/17/93 (Arnall) at 9. His practice at CAMCO provides services to individuals in schools, which he admits is a different population than the adults at Ebensburg. 4/ He has
4/ Although Mr. Arnall also testified that CAMCO provides services to two group homes, (continued...)
XIV-7

not made any statewide or national presentations on topics related to individuals with the type of physical disabilities at Ebensburg. Tr. 9/17/93 (Arnall) at 12. The only presentation that Mr. Arnall can ever remember making that is even remotely relevant to the population at Ebensburg was one presentation sometime during the past several years on electro-diagnostic treatment which he presented to some of the staff at Ebensburg. Tr. 9/17/93 (Arnall) at 1112. Mr. Arnall has never published any articles on topics related to the types of disabilities found in the Ebensburg population. Tr. 9/17/93 (Arnall) at 12). He was unable to name any specific book, manual or article that he considered to be authoritative in the field of physical therapy or physical management of individuals with mental retardation. Tr. 9/17/93 (Arnall) at 12-13. He was not familiar with several books that specifically relate to the population at Ebensburg with multiple and complex disabilities. Tr. 9/17/93 (Arnall) at 13-14. His practice, in general, has been limited to Pennsylvania. Tr. 9/17/93 (Arnall) at 14-15. He has not been trained in issues related to mealtimes. Tr. 9/17/93 (Arnall) at 17-18.
CAMCO consultants do not provide services at Ebensburg on a daily basis. Tr. 9/17/93 (Arnall) at 131. Between January through August 1993, CAMCO provided 395 hours of service at Ebensburg. Tr. 10/13/93 (Arnall) at 105. This averages to 50 hours per month, 12.5 hours per week, or 2.5 hours per day. As of his deposition several weeks before he testified, Mr. Arnall was unable to estimate at all the amount of time he spent at Ebensburg. Tr. 9/17/93 (Arnall) at 132. He did not know the number of hours, the number of days per week, or even whether he was at Ebensburg on a weekly basis. Id. In fact, the
4/(...continued) on cross examination he admitted that neither he nor his company had provided any physical therapy services to group homes. Tr. 10/13/93 (Arnall) at 96.
XIV-8

amount of time that Mr. Arnall has personally spent at Ebensburg is minimal. In the first eight months of 1993, he only spent a total of 42.5 hours at Ebensburg. Tr. 9/17/93 (Arnall) at 137; U.S. Exh. 971. Most of the hours that Mr. Arnall spent at Ebensburg during 1993 were after June 1993, when he began providing training to staff in how to lift residents. U.S. Exh. 971. Up until the point that Ebensburg began training staff at the end of June 1993, Mr. Arnall had only spent a total of 9.5 hours at Ebensburg during 1993. Id. Mr. Arnall also spent a negligible amount of time at Ebensburg during 1992 and 1991. During 1992, he was only at Ebensburg one time for a total of 2 hours, and in 1991, he was at Ebensburg 3 times for a total of 9 hours. Tr. 9/17/93 (Arnall) at 137; U.S. Exh. 971. In fiscal year 1989-1990, Mr. O'Brien recommended revising the CAMCO contract by reducing it almost 50% because CAMCO did not have enough staff to provide physical therapy services at Ebensburg. Tr. 10/19/93 (O'Brien) at 84-85.
Between July 1991 and December 15, 1992, there was an additional part-time physical therapist, Spencer Hauenstein, who spent part of one day each week at Ebensburg. U.S. Exh. 619 (Hauenstein Dep.) at 10, 11. Typically, Mr. Hauenstein was only present at Ebensburg between 9:00 a.m. and 2:30 p.m. U.S. Exh. 619 (Hauenstein Dep.) at 13. About one-third of the time, he only worked between 9:00 a.m. and 11:30 a.m. U.S. Exh. 619 (Hauenstein Dep.) at 13. Mr. Hauenstein spent approximately 70% of his time at Keystone. U.S. Exh. 619 (Hauenstein Dep.) at 49. During his employ at Ebensburg, Mr. Hauenstein had no contact with the CAMCO physical therapists. U.S. Exh. 619 (Hauenstein Dep.) at 11, 52. Prior to retiring, he did not work with a replacement physical therapist in preparation for a transition at Keystone. U.S. Exh. 619 (Hauenstein Dep.) at 71. With his
XIV-9

retirement, Mr. Hauenstein did not feel that there was a sufficient number of physical therapists and physical therapy aides remaining at Keystone to meet the needs of residents. U.S. Exh. 619 (Hauenstein Dep.) at 105. Mr. Bonfanti, who is the Unit Manager at Keystone, thought that there was an inadequate amount of physical therapy consultation time for the individuals who live at Keystone even before Mr. Hauenstein left. U.S. Exh. 604 (Bonfanti Dep.) at 33. In particular, Mr. Bonfanti states with regard to the population at Keystone:
as they're getting older, they're requiring even more care. I think they need more physical therapy, there's no question in my mind. We do have a lot of cases of osteoporosis and I think we need more hands on there as far as expertise in that area. U.S. Exh. 604 (Bonfanti Dep.) at 33, lines 19-24. There are also no occupational therapists assigned to Keystone and Mr. Bonfanti believes there should be. U.S. Exh. 604 (Bonfanti Dep.) at 34. Mr. Bonfanti has made his desires known about the need for physical and occupational therapists at Keystone to Mr. Devine, Mr. O'Brien, and Mr. Bellomo. U.S. Exh. 604 (Bonfanti Dep.) at 37. According to Mr. Bonfanti, "it's very obvious what the needs are there." U.S. Exh. 604 (Bonfanti Dep.) at 37, lines 16-17. As of December 1992, he had been discussing the need for additional physical and occupational therapy time at Keystone with the Ebensburg administration for a year. U.S. Exh. 604 (Bonfanti Dep.) at 38. Despite these discussions, there were no commitments about increasing the physical or occupational therapy time. U.S. Exh. 604 (Bonfanti Dep.) at 37. Although Mr. Bellomo can increase, at will, the amount of physical therapy contract time at Ebensburg, he did not increase the amount of physical
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therapy contract time when Mr. Hauenstein left. Tr. 10/14/93 (Bellomo) at 48-49; U.S. Exh. 603 (Bellomo Dep.) at 107.5/
There are six physical therapy aides at Ebensburg. None of them have taken the two year training program required of a physical therapy assistant. Tr. 7/28/93 (McAllister) at 230. As of his deposition on August 31, 1993, Mr. Arnall did not know how many physical therapy aides worked at Ebensburg, or even whether there were more or less than ten physical therapy aides. Tr. 9/17/93 (Arnall) at 157-158. There are no physical therapy assistants at Ebensburg. The aides only work during the first shift on weekdays, leaving Ebensburg without support personnel at other times. Tr. 7/28/93 (McAllister) at 231; U.S. Exh. 619 (Hauenstein Dep.) at 105. Mr. Hauenstein believes that with more physical therapy aides, residents would receive more frequent treatments and more individualized attention, thus benefitting the residents and enhancing their welfare. U.S. Exh. 619 (Hauenstein Dep.) at 106.
E. The Limited Physical Therapy Related Services At Ebensburg Are Inadequate.
There are only three types of physical therapy related programs that are provided at Ebensburg, all of which are provided by physical therapy aides. Tr. 7/28/93 (McAllister) at 209. These are: (1) range of motion exercise; (2) percussion; and (3) programs to assist with ambulation. Id. at 209.
Even these few services are very limited. The average session by a physical therapy aide is 15 to 20 minutes. U.S. Exh. 619 (Hauenstein Dep.) at 58; U.S. Exh. 977. Physical
5/ Mr. Bellomo erroneously refers to CAMCO consultants as "Yolanda Arnold Associates" throughout his depositions. See U.S. Exh. 601 (Bellomo Dep.) at 96.
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therapy aides provide services to some people only two or three times a week. U.S. Exh. 619 (Hauenstein Dep.) at 58; U.S. Exh. 977. Range of motion exercises that are provided at Ebensburg are intended to maintain rather than to expand range of motion. Tr. 7/28/93 (McAllister) at 209-210. The LOTA's provide range of motion in addition to the physical therapy aides. At best, individuals at Keystone only receive five to ten minutes of range of motion by LOTA's. U.S. Exh. 610 (Fagan Dep.) at 54. There are also very few ambulation programs at Ebensburg. Tr. 7/28/93 (McAllister) at 210. Many more residents who would benefit from gait training and ambulation programs do not receive them. Id. Only five Ebensburg residents receive percussion. Tr. 9/14/93 (Kastner) at 6.6/
Mr. Arnall did not have any idea whether he had provided any physical therapy services at Ebensburg during 1993. Tr. 9/17/93 (Arnall) at 140. He did not know the name of any individual whom he had evaluated, developed a program for, and then overseen the program at Ebensburg. Tr. 9/17/93 (Arnall) at 140. He does not know when a CAMCO consultant last wrote a treatment plan or physical therapy program for someone in Keystone. Tr. 9/17/93 (Arnall) at 141-142. He does not know how many people at Ebensburg receive physical therapy services. Tr. 9/17/93 (Arnall) at 142. Mr. Arnall incorrectly testified on direct examination that 62 individuals in Keystone are receiving physical therapy services when, in fact, as he admitted on cross-examination, each one of the programs that these individuals receive are provided by physical therapy aides who, according to regulations promulgated by the Pennsylvania State Board of Physical Therapy, are strictly prohibited
6/ Mr. Arnall did not know how many individuals receive percussion at Ebensburg; for that matter, he did not know the name of any resident who received percussion. Tr. 9/17/93 (Arnall) at 154-155.
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from providing physical therapy services. Tr. 9/17/93 (Arnall) at 34, 145; U.S. Exh. 952. Physical therapists are not on site at Ebensburg to provide continual supervision of the aides. Tr. 10/13/93 (Arnall) at 87. State regulations require supportive personnel (anyone other than a physical therapist assistant who aids and assists a physical therapist) to function under the "direct on-premise supervision of a physical therapist." U.S. Exh. 952; 49 Pa. Code Ch. 40.32. "Direct on-premise supervision" is defined by regulation as:
[t]he physical presence of a physical therapist in the facility or location where the physical therapist assistant or the supportive personnel is providing patient care services, so that the physical therapist is immediately available to provide supervision, direction and control. U.S. Exh. 952; 49 Pa. Code Ch. 40.1. State regulations governing the provision of physical therapy services also specifically prohibit a physical therapist from permitting supportive personnel to "assume responsibility for patient care or document physical therapy treatment." U.S. Exh. 952; 49 Pa. Code Ch. 40.32(c). Mr. Arnall did not know the name of a single Ebensburg resident for whom he has written a progress note which consisted of more than just initialing a physical therapy aide's note. Tr. 9/17/93 (Arnall) at 140-141. The physical therapists do not even review and countersign every progress note that an aide writes, although they are required to do so. Tr. 10/13/93 (Arnall) at 92. For example, although a physical therapy aide entered a quarterly progress note in Frank H.'s record about his percussion treatment, no physical therapist had reviewed and countersigned those notes between December 1992 and June 1993. Tr. 10/13/93 (Arnall) at 93; U.S. Exh. 975. Mr. Arnall does not view this as a "failure to countersign the notes" because "they probably are going to be signed." Tr. 10/13/93 (Arnall) at 94. He agrees, however, that the purpose of
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reviewing and countersigning the physical therapy aide notes is to evaluate the progress and status of the resident to determine if any changes need to be made. Tr. 10/13/93 (Arnall) at 94. As of April 27, 1993, Ron E.'s progress notes regarding his percussion had not been reviewed and signed by a physical therapist since December 18, 1992 — four months earlier. Tr. 10/13/93 (Arnall) at 94; U.S. Exh. 343. Mr. Arnall agrees that "[w]e may not take care of the notes as rapidly as we would like to." Tr. 10/13/93 (Arnall) at 111. He explains that CAMCO has to "triage" what has to be done at Ebensburg: "[W]e get backed up once in a while, and we have many things to do, and we have to determine which are the most important ones to do first." Tr. 10/13/93 (Amall) at 111, lines 21-24.
The physical therapists also do not provide the training to physical therapy aides required by their Ebensburg contract objectives since at least July 1, 1991. Tr. 9/17/93 (Arnall) at 115. CAMCO has not developed a quarterly training program for the physical therapy staff and submitted reports to Ebensburg on this training, as required by its contract objectives with Ebensburg. Tr. 9/17/93 (Arnall) at 115.
Mr. Arnall claims that the reason physical therapists are not involved with Ebensburg residents with significant physical disabilities is because the physical therapists have been directed not to provide physical therapy by an orthopedist. Tr. 9/17/93 (Arnall) at 25. In fact, of the eight orthopedic recommendations that Mr. Arnall is relying on as the reason why he and the other physical therapists are not providing physical therapy, only one has a specific recommendation for no physical therapy. U.S. Exh. 1005. For example, Mr. Amall testified that the orthopedist recommended no physical therapy for Joe T. Tr. 10/13/93 (Arnall) at 17. Mr. Arnall is wrong. The orthopedist specifically states in his
XIV-14

recommendation that Joe "needs physical therapy because he is severely contracted, especially in the lower extremities, and hopefully that [physical therapy] will help him as well." U.S. Exh. 1005 (12/10/81 orthopedic consult for Joe T.).
The orthopedist does not see Ebensburg residents at regular intervals, only on an "as needed basis." Tr. 10/13/93 (Arnall) at 19. Some Ebensburg residents with significant physical disabilities have not been seen by the orthopedist for the past seven to twelve years. Tr. 10/13/93 (Arnall) at 19-20; U.S. Exh. 1005. The last orthopedic evaluation that Tim P. had, for example, was in December 1981. Tr. 10/13/93 (Arnall) at 32, 35; U.S. Exh. 1005.7/ At that time, Tim was twenty-one years old.8/ Mr. Arnall agrees that people in their twenty's are within the age group where skeletal maturity may not have occurred. Tr. 9/17/93 (Arnall) at 36. At the time of his 1981 orthopedic evaluation, Tim was able to sit in a wheelchair. Tr. 10/13/93 (Arnall) at 32; U.S. Exh. 1002. The orthopedist describes Tim's condition as "a mild scoliosis that appears to be not a clinical problem at this time." U.S. Exh. 1002. The orthopedist specifically recommends that Tim should go to physical therapy for stretching exercises. Tr. 10/13/93 (Arnall) at 32; U.S. Exh. 1002. The orthopedist also recommends evaluation and training to teach Tim "to use his upper
7/ Following Mr. Arnall's testimony on September 17, 1993 and before his cross examination in October 1993, Tim P. had an orthopedic evaluation on September 29, 1993. Mr. Arnall admits that Tim had had no orthopedic evaluation in the twelve year interim between his December 1981 evaluation and this most recent one. Tr. 10/13/93 (Arnall) at 35. 8/ Counsel for the United States incorrectly identified Tim's age as 24 at the time of the orthopedic evaluation. Tr. 10/13/93 (Arnall) at 32. Both Mr. Arnall and Ms. McAllister testified that Tim is currently 33, therefore he was 21, not 24, in 1981. Tr. 7/28/93 (McAllister) at 103; Tr. 9/17/93 (Arnall) at 28.
XIV-15

extremities for purposeful movements, perhaps positioning the hands in a way they can be useful for him." U.S. Exh. 1002. Twelve years later, Tim is confined to a cart with a scoliosis of his trunk that is so severe, his hip is actually up underneath his rib cage. Tr. 7/28/93 (McAllister) at 103. He can only move his hands "a little bit." Id. See also discussion supra at 5, herein, on Tim and his level of deformity pattern.
F. Ebensburg's Services To People With Physical Disabilities Do Not Comport With Accepted Standards And Principles.
Appropriate services for people with physical disabilities must begin with a comprehensive assessment to identify their individualized needs. Tr. 7/28/93 (McAllister) at 118. This assessment is the basis for developing adequate, individualized therapeutic interventions to prevent the development or progression of disabilities and to attempt reversal of any existing disabilities. Id. at 145. Because mentally retarded individuals with physical disabilities often are dependent upon staff for all aspects of their care, therapeutic interventions, by their very nature, must be broader than physical therapy in a traditional sense. Id. at 147. The therapeutic interventions must form an overall plan for guiding all staff actions in providing therapeutic care to the individual with a physical disability. Id. at 146-147. This overall plan is known as "physical management." Id. A physical management plan includes direct physical therapy when needed. Id. at 146. It also must include, however, other aspects of an individual's care throughout the day, including handling, touching, moving, transferring, positioning, facilitating active participation in one's environment, and fostering the development of skills to enable the person to function as independently as possible. Id. at 146. Staff responsible for implementing the physical management plan must be adequately trained. Tr. 7/28/93 (McAllister) at 145, 147. The
XIV-16

efficacy of the plan must be monitored and modifications to the plan made when warranted. Id. at 145. Mr. Arnall is in full agreement with Ms. McAllister's definition and conception of physical management. Tr. 10/13/93 (Amall) at 97.
A physical therapist is a licensed professional who is responsible for conducting the comprehensive assessment, designing an appropriate physical management plan, training staff in how to implement ancillary programs within the physical management plan, monitoring the efficacy of interventions, and making revisions when necessary. Tr. 7/28/93 (McAllister) at 145. In order to provide effective services that are responsive to an individual's needs, the physical therapist must work as part of an interdisciplinary process. Tr. 7/28/93 (McAllister) at 144-145. Physical therapists have a duty under the standards of practice and code of ethics promulgated by the American Physical Therapy Association to meet the needs of their clients by staying abreast of developments in their field of specialization. Tr. 7/28/93 (McAllister) at 156-157; U.S. Exh. 29.
None of the components of providing adequate services to residents with physical disabilities exist at Ebensburg. Tr. 7/28/93 (McAllister) at 119-120, 161-165, 207. Moreover, physical therapy involvement in the planning and overall care of Ebensburg residents is virtually non-existent. Id. at 123, 143-144.
1. Ebensburg Fails To Conduct Adequate Physical Therapy Assessments In Keeping With Accepted Professional Standards In The Field.
The Standards of Practice for Physical Therapy and Code of Ethics for the American Physical Therapy Association set forth basic standards for physical therapy assessments. Tr. 7/28/93 (McAllister) at 125; U.S. Exh. 29. Physical therapy assessments at Ebensburg do not meet these standards. Id. There are essential components of these standards that are
XIV-17

missing in Ebensburg assessments, including history and diagnosis, information about problems, complications and precautions, and physical and functional status. Tr. 7/28/93 (McAllister) at 125. Based upon her review of well over one hundred recent physical therapy assessments at Ebensburg, Ms. McAllister concluded that they were:
grossly inadequate in content, grossly inadequate in the analysis of the information, that the frequency that they were used was inadequate, and that the expectations that the physical therapist had when they were doing the assessments were inadequate. Tr. 7/28/93 (McAllister) at 119, 23-25; 120, lines 1-2. a. Ebensburg Physical Therapy Assessments Are Inadequate In Content
And Analysis Of Residents' Needs. In terms of content, the one page Ebensburg physical therapy assessments do not evaluate such important aspects of residents' physical status as their postures in different positions, reflexes, functional skills, and motor skills. Tr. 7/28/93 (McAllister) at 120; U.S. Exh. 34. Mr. Arnall agrees that to determine whether an individual is appropriate for some of the positions that Ms. McAllister demonstrated through her slides (e.g., an upper weight bearing position), it is necessary to conduct an individualized assessment. Tr. 10/13/93 (Arnall) at 51. He admits, however, that the physical therapists at Ebensburg rarely conduct an evaluation of a resident to determine whether they can be placed in this position. Tr. 10/13/93 (Arnall) at 54. The physical therapy assessment form in use at Ebensburg also does not contain information about the client's diagnosis and pertinent historical information. Tr. 7/28/93 (McAllister) at 120. Further, the assessment does not contain any information for the physical therapist to evaluate components of the resident's current physical management, such as positioning, transfers, and lifts. Id. The physical therapist conducting
XIV-18

the assessment does not have the resident's record while doing the assessment. U.S. Exh. 619 (Hauenstein Dep.) at 28. The physical therapy assessment also does not contain information needed to serve as the basis of a physical management plan. (McAllister) at 120, 123. Mr. Arnall admits that he can not remember ever having recommended specific positioning or precautions as a part of a physical therapy assessment of an Ebensburg resident. Tr. 9/17/93 (Arnall) at 178-179.
Tim P.'s physical therapy assessment is representative of the types of deficiencies that Ms. McAllister found to be "consistent across all the assessments." Tr. 7/28/93 (McAllister) at 123; U.S. Exh. 433 (a). Tim's assessment does not contain any information about his shoulder subluxation, neck hyperextension, wind swept legs, labored breathing, flat chest, the type of reflex or spasticity patterns he exhibits in different positions, the difference in tone throughout different parts of his body, and how to help maintain him in better alignment. Tr. 7/28/93 (McAllister) at 121, 122; U.S. Exh. 433(a). His physical therapy assessment also does not include goals, any expectations for change, or any physical management plan, including the types of positions he should be in throughout his day and movement opportunities. Id. at 123. The missing information in Ebensburg's physical therapy assessments is not contained in other parts of residents' records. Tr. 7/29/93 (McAllister) at 47.
Mr. Arnall has not taken primary responsibility for any physical therapy evaluation in the past year. Tr. 9/17/93 (Arnall) at 140. He did not conduct a physical therapy evaluation on any of the residents about whom he testified. Tr. 9/17/93 (Arnall) at 148. Instead, he "merely checked what has been done by others." Tr. 9/17/93 (Arnall) at 148, line 12. Yet,
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he "didn't actually check the evaluations for each and every person [about whom he testified]." Tr. 9/17/93 (Arnall) at 149, lines 1-2. For most, he just observed their wheelchair position. Tr. 9/17/93 (Arnall) at 150. Mr. Arnall has not had any significant involvement with the residents about whom he testified. Tr. 9/17/93 (Arnall) at 152-153.
b. The Physical Therapy Assessments At Ebensburg Are Not Conducted With The Frequency Dictated By Commonly Accepted Professional Standards.
Individuals at Ebensburg with significant physical disabilities who do not receive any services prescribed by a physical therapist only receive a physical therapy assessment once every three years. Tr. 7/28/93 (McAllister) at 126, 127; U.S. Exh. 619 (Hauenstein Dep.) at 20. Although these individuals receive an annual review, it is very cursory. Id. at 127. For example, Cathy M.'s physical therapy annual reviews for 1990, 1991, and 1992 consist of nothing more than the notation "reviewed; no PT recommended." U.S. Exh. 979.9/ Without a more frequent, meaningful assessment of Ebensburg residents with significant physical disabilities, there is no measure of whether new interventions need to be developed or existing interventions need to be changed. Tr. 7/28/93 (McAllister) at 127. In particular, there is no measure of whether deformity patterns are becoming worse and, if so, the interventions that are needed to prevent continuing deterioration. Id. There is also no measure of whether interventions have been or could be helpful in improving overall health and level of functioning for the resident. Id. A large contributing factor to Ebensburg's failure to conduct more meaningful assessments with greater frequency is that the physical
9/ Cathy M. is pictured in United States' Exhibits 740 and 751 in a poor position in her wheelchair. Her hips are not well stabilized, she is leaning over to the side, and her legs are elevated and twisted so that her knee caps are facing out to one side. Tr. 7/28/93 (McAllister) at 186, 193.
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therapists at Ebensburg universally do not have any expectations that residents' underlying disabilities and physical health deformity patterns could be improved. Id. at 127-128. In addition, the physical therapists do not have any goals or long term view about what they are trying to achieve with each individual. Id. at 128. Ebensburg's failure to adequately evaluate individuals with significant physical disabilities more frequently than once every three years is contrary to commonly accepted standards in the field of physical therapy which require a comprehensive assessment every year. Tr. 7/28/93 (McAllister) at 127; Tr. 7/29/93 (McAllister) at 44.
2. Ebensburg Does Not Develop Adequate Physical Management Plans For Residents With Physical Disabilities. a. Physical Therapists At Ebensburg Do Not Develop Physical Management Plans.
Physical management programs at Ebensburg are also "grossly inadequate." Tr. 7/28/93 (McAllister) at 162. The physical therapists do not develop physical management plans. Tr. 7/28/93 (McAllister) at 123. At best, they recommend procedures to be carried out by physical therapy aides. Tr. 10/13/93 (Arnall) at 103-104. Ethel M.'s range of motion program is an example of such a procedure. Tr. 10/13/93 (Arnall) at 104; U.S. Exh. 976. It is a one page document that was developed more than six years ago, on June 9, 1987. The author is not identified on the procedure nor are the names of the staff who are supposed to implement it. The "method" section of the form, which is supposed to detail how the range of motion is to be carried out by an aide, contains lines for filling in the blanks. None of the blanks are filled in. U.S. Exh. 976.
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b. Interdisciplinary Teams Do Not Develop Adequate Physical Management Plans.
In addition to the physical therapists at Ebensburg failing to generate physical management plans, the interdisciplinary teams also do not develop an integrated and comprehensive plan to address residents' physical management needs, particularly those residents with significant physical disabilities. Tr. 7/28/93 (McAllister) at 142-144. To begin with, the interdisciplinary teams do not have the understanding or expectations of what a physical management plan is and what it should strive to achieve. Id. at 142. In addition, the teams lack the benefit of physical therapy input in the development of residents' annual plans. Id. at 143. They do not have the basic information base from which to work because of deficient physical therapy assessments. Id. at 142. By defendants' own admission, occupational therapy assessments of residents with physical disabilities at Ebensburg are also inadequate. Ms. Graham, the Director of Occupational Therapy Services at Ebensburg, does not feel that the occupational therapy assessments she conducts on Keystone residents, which form the basis for occupational therapy services, are adequate to "pick up on their physical limitations that OT could address." U.S. Exh. 617 (Graham Dep.) at 74. Moreover, physical and occupational therapists do not participate in the annual reviews. Id. at 143. During 1992, the only occupational therapist at Ebensburg also did not attend an annual review for any resident who had an occupational therapy program for positioning, feeding, or oral motor facilitation. U.S. Exh. 618 (Graham Dep.) at 59. As a QMRP for 24 individuals and the nurse supervisor on Keystone, Ms. Malloy is involved in several annual reviews each month for individuals who live at Keystone. U.S. Exh. 622 (Malloy Dep.) at 61. Neither a physical therapist nor an occupational therapist is ever present at the annual reviews that Ms.
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Malloy attends at Keystone. U.S. Exh. 622 (Malloy Dep.) at 62. At least since July 1991, Ebensburg has imposed a contract objective, acknowledged and signed by CAMCO, that CAMCO consultants must attend annual reviews of individuals who have physical therapy programs, as well as those who have a stated need that must be addressed. U.S. Exhs. 948, 950. Mr. Arnall, who doesn't know whether he has ever sat in on an annual review of any Ebensburg resident, dismissed this objective, stating that "it's not realistic for us to be in each of these meetings, given our current schedule." Tr. 9/17/93 (Arnall) at 118, 120, lines 2-3; U.S. Exh. 948. He acknowledges, however, that important decisions about a person's physical disability must be made through interdisciplinary evaluation and review. Mr. Arnall further acknowledges that the annual review is the time when all relevant professionals get together at Ebensburg to meet with the resident and plan the goals, expectations, and services that Ebensburg will provide for the year. Tr. 9/17/93 (Arnall) at 191, lines 19-24.
c. Physical Therapists Are Not Involved In The Interdisciplinary Process. A physical therapist or physical therapy aide is often not even part of the interdisciplinary team. Tr. 7/28/93 (McAllister) at 143. Consequently, the lack of communication between team members and the lack of an integrated, coordinated approach to physical management continues throughout the year. Tr. 7/28/93 (McAllister) at 143-144. Ms. McAllister was particularly concerned about this lack of coordination because a physical therapist can not operate in isolation in providing services to a developmentally disabled individual with significant physical disabilities. Id. at 144-145. Given that an individual's physical disability can affect a number of functions, such as communication, eating, and
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health status, it is critical that the physical therapist be part of an interdisciplinary process which looks at the individual's total needs. Id. at 145.
Mr. Amall, who is not a member of any resident's interdisciplinary team, admits that the physical therapists do not have direct involvement with the occupational therapy department at Ebensburg. Tr. 9/17/93 (Amall) at 117-118; 195-196. Mr. Hauenstein concurred. Although he knew that there were Keystone residents who received services from both physical therapy and occupational therapy aides, he did not have any communication with occupational therapy staff in terms of coordinating their therapy. U.S. Exh. 619 (Hauenstein Dep.) at 53. To Mr. Hauenstein, physical and occupational therapy were "two pretty much separate programs." U.S. Exh. 619 (Hauenstein Dep.) at 53. Mr. Amall has no contact with the Dysphagia Team and neither he nor the other CAMCO physical therapists are involved at all with positioning during mealtimes. Tr. 10/13/93 (Amall) at 9596. Mr. Hauenstein also did not have any interaction with Ebensburg residents during mealtimes and was not involved in developing any feeding plans or supervising staff during feeding. U.S. Exh. 619 (Hauenstein Dep.) at 50, 113. The physical therapists at Ebensburg also have no direct involvement with the nursing department. Tr. 9/17/93 (Amall) at 196. Other than one contact with a QMRP at Ebensburg, Mr. Amall can not recall any other issue that he has ever discussed with a QMRP. Tr. 9/17/93 (Amall) at 156. In fact, he testified that his "face to face involvement with the QMRP's is not frequent." Tr. 9/17/93 (Amall) at 156-157. Mr. Hauenstein also did not know the QMRP's for the clients for whom he was responsible. Tr. 7/28/93 (McAllister) at 143-144.
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There are a number of examples of the physical therapists' lack of involvement with Ebensburg clients with significant physical disabilities. For example, no physical therapist, physical therapy aide, or physician attended Sylvia B.'s August 1992 annual review. U.S. Exh. 293 at 00347164, 00347169. In the prior twelve months, she had had a hip operation and an open area on her hip that bled at one point, required medical attention, and prevented her from being able to go to her day program. Id. at 00347288, 00347289. Her life management plan completed before her August 1992 annual review notes that "wheelchair does not appear to meet Sylvia's needs. She is no longer continent, no longer can propel herself in chair" and is "no longer able to sit on toilet." Id. at 00347500. It further notes that she needs a physical therapy evaluation to acquire a more appropriate wheelchair, needs an evaluation of the foot rest on her wheelchair, needs to increase her range of motion through physical therapy, and needs improved body positioning and comfort. Id. Neither a physical therapist nor a physical therapy aide attended Ron E.'s annual review in either 1992 or 1993, despite the fact that he receives percussion by a physical therapy aide and also has had a serious skin breakdown that lasted for more than a year. Tr. 10/13/93 (Arnall) at 2528; U.S. Exh. 343. At his 1992 annual review, Ron's interdisciplinary team identified the need for a physical therapist to evaluate his lower extremities to facilitate their separation. U.S. Exh. 343 at 00082563.
3. Ebensburg Does Not Provide Adequate Physical Management Services. a. Physical Management Is Necessary To Prevent Significant Health Risks.
Physical management is key in the prevention of deformity patterns in the first instance and in arresting further deterioration and reversing deformity patterns that have
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occurred. Tr. 7/28/93 (McAllister) at 147-148. It is accepted professional practice among physical therapists who have specialized in developmental disabilities to use physical management to attain these goals. Id. at 155. Physical therapists have been practicing the prevention of deformities through physical management for the past thirty years. Id. at 157. Physical therapists have also recognized the concept of reversing existing deformities through therapeutic positioning, handling, and equipment for the past twenty years. Id. During the past decade, the concept of using physical management for the prevention and reversal of deformities has been common information available to physical therapists who specialize in developmental disabilities. Tr. 7/28/93 (McAllister) at 157-161. Dr. Sulkes agrees that it is possible for individuals who have become contractured in form to have their deformities slowed or perhaps reversed through proper physical management. Tr. 7/27/93 (Sulkes) at 145.
There are a number of books that set forth the principles of physical management, including a training manual written by Ms. McAllister. Id. at 158-160; U.S. Exh. 71.10/ Mr. Arnall agrees that there is useful information in Ms. McAllister's publication. Tr. 9/17/93 (Arnall) at 192. Mr. Arnall also believes that the book entitled Physical Management of Multiple Handicaps by Beverly Fraser, et al., is "a definitive work in the
10/ These include: Dynamic Positioning Treatment by Eileen Cox; Physical Management of Multiple Handicaps by Beverly Fraser et al.: Transfers. Lifting Children and Adolescents by Lavon Yeager; Positioning the Client with Central Nervous System Deficits by Adrienne Bergen; Positioning for Function by Adrienne Bergen; Seating and Mobility by Elaine Treffler et al.; Seating and Moving Through the Decades, an anthology of the principles during the past ten years of seating and moving individuals; and Challenges in Physical Management: How to Assist Individuals with Severe Physical Challenges by Susanne McAllister et_al. Id. at 158-160; U.S. Exh 71.
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area, an important work," a "leading one in the field." Tr. 9/17/93 (Arnall) at 53, 103. As of his August 31, 1993 deposition, however, Mr. Arnall did not know, and could not even venture any guess, as to what parts of the book he had read, the subject matter of the parts, or when he had last reviewed the book. Tr. 9/17/93 (Arnall) at 192. Information about physical management practices has also been generally available to physical therapists through continuing education conferences and courses presented by experts and specialists in the field as well as through such groups as the American Physical Therapy Association, Rehab Engineering Services of North America ("RESNA"), a specialty organization of vendors, engineers, and therapists, and through neuro-developmental treatment ("NDT") groups. Tr. 7/28/93 (McAllister) at 160-161. During the past decade, basic principles of physical management have also been incorporated as requirements in court ordered decrees mandating necessary corrective measures in this area in mental retardation facilities. Id. at 157-158.
Mr. Arnall believes that all living things demonstrate changes of some sort. Tr. 9/17/93 (Arnall) at 189. He also believes that if an individual has a significant physical disability it is possible in some cases to change the effects of that disability, even where the individual has reached maturation, if the person has not reached his or her potential in terms of activities of daily living or ambulation. Tr. 9/17/93 (Arnall) at 189-190. He agrees that in some situations it is possible to reverse a functional scoliosis. Tr. 9/17/93 (Amall) at 190. Mr. Arnall further agrees that "certainly," efforts should be made to try and effect changes in a person with physical disabilities if change is possible. Tr. 9/17/93 (Arnall) at 190.
XIV-27

Individuals with significant disabilities who do not receive physical management are at risk of developing serious medical problems. Tr. 7/27/93 (Sulkes) at 147-152. Without appropriate physical management, deformity patterns will progressively worsen, along with a possible decrease in skills, strength, mobility, and eventually health complications and physiological changes. Tr. 7/28/93 (McAllister) at 148. As a person becomes immobile, complications such as skin breakdown, contractures, and internal physiological changes occur. Id. at 148-149; U.S. Exh. 71, Appendix II (Hazards of Immobility). When individuals are not repositioned and left in a position for a long period of time, contractures develop and portions of the body become fixed in a certain position. Tr. 7/28/93 (McAllister) at 151-152. This is similar to what occurs when a cast is placed on a broken limb and there is a limitation in flexibility and strength when the cast is removed. Id. at 151. Deformity patterns or contortions on the outside of the body reflect distortions or displacement of internal organs. Id. at 149. The distortion of internal organs can affect digestion, aspiration, breathing, and heart rate. Id. at 149-150. It can lead to such significant health problems as gastroesophageal reflux, aspiration, and osteoporosis. Id. Mr. Arnall agrees that physical deformities impact on internal organs and physiological functions. Tr. 10/13/93 (Arnall) at 44.
Frank H. is an example of an Ebensburg resident whose deformity patterns have developed due to inadequate intervention and have created significant health problems. Ms. McAllister worked with Frank during her tour of Ebensburg and provided the Court with a videotape of her work with Frank during her direct testimony. U.S. Exh. 261; see also United States' Exhibit 679 for a picture of Frank. Frank has severe scoliosis, where his
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pelvis is up under his rib cage. Tr. 7/28/93 (McAllister) at 111. His intrathoracic structures are distorted and he has restrictive lung capacity due to his scoliosis. Id. at 112. As a result, he has to rely on abdominal breathing. Id. at 139. He has limited flexibility in many of his joints and skin breakdown is starting to occur in the crease inside of his elbow where his arm is tightly bent. Id. at 139-140. His scoliosis has also affected his skin integrity in the side where his body is curved. Throughout 1992, the progress notes in his record reflect that his skin integrity in this area was "fair to poor." Id. at 112. During this time, Frank did not receive any physical therapy services. Id. at 112. In addition, Frank has developed the following deformity patterns: his neck is in hyperextension, his arms are in flexion, he has severe deformities of his wrist, and his legs are wind swept. Id- at 111; U.S. Exh. 679. Frank H. is confined to a cart. In Ms. McAllister's professional opinion, Frank H. does not have to live in a cart. Tr. 7/28/93 (McAllister) at 141. Frank H. has had multiple hospitalizations for aspiration pneumonia and has a history of gastrointestinal bleeding from the lower esophagus. Tr. 7/28/93 (McAllister) at 112; Tr. 7/29/93 (McGowan) at 113. He has also had problems with constipation and has had urinary tract infections, both of which can be caused by dehydration. Tr. 7/28/93 (McAllister) at 112.
Ron P. has severe scoliosis of his trunk. Tr. 7/28/93 (McAllister) at 114; U.S. Exh. 682. His neck is in hyperextension and his legs are wind swept. Tr. 7/28/93 (McAllister) at 114. Because he has spent so much time over the years on his stomach and his back, his chest has become flattened, his chest muscles are tightened making it difficult for his chest to expand, and it is very difficult from him to breathe. Id. at 114-115. His difficulty in breathing is exacerbated when he is positioned on his back. Id. at 114. This is because
XIV-29

gravity places pressure on his jaw and the oral motor areas. When his jaw falls back, it begins to occlude the airway and makes it difficult for air to enter. Id. at 114. When Ms. McAllister observed Ron positioned on his back, he had a great deal of mucous production, difficulty breathing, and exhibited snoring respirations. Id. at 114. At the time that Ms. McAllister saw Ron in November 1992, he had just returned to Ebensburg following a hospitalization for aspiration pneumonia. Id. at 115. He has been hospitalized twelve times since 1990 for pneumonia, bowel paralysis, and respiratory insufficiency. Tr. 7/28/93 (McGowan) at 116. Ron has had multiple episodes of aspiration pneumonia and has to be fed through a gastrostomy tube. Tr. 7/28/93 (McAllister) at 115.
Physical management can improve health and physiological function. Tr. 7/28/93 (McAllister) at 148, 163. It also assists people with significant physical disabilities to function as independently as possible. Id. Mr. Arnall agrees that positioning can have therapeutic effects such as increasing tone, increasing the mineralization of bone, encouraging mid-line upper extremity activity, encouraging head control, and encouraging relaxation. Tr. 10/13/93 (Arnall) at 43. Two key elements of physical management to attain these outcomes are therapeutic positioning and gross motor programs to facilitate a movement experience. Tr. 7/28/93 (McAllister) at 162. These therapeutic interventions do not exist at Ebensburg. Id. at 163, 164-165, 206-207.
Dr. Sulkes agrees that immobility creates significant medical problems and that Ebensburg residents have been compromised because of immobility, lack of activity, or inappropriate positioning. Tr. 7/27/93 (Sulkes) at 145. Dr. Sulkes stressed that people who are immobile and who are poorly positioned can develop problems with virtually every organ
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system. Tr. 7/27/93 (Sulkes) at 144. People who are not positioned properly to help them bear weight will suffer a degeneration of their bones. Tr. 7/27/93 (Sulkes) at 144. Their muscles will atrophy and they will become contractured. Tr. 7/27/93 (Sulkes) at 144. The essence of good motor therapy for people with cerebral palsy at any age is to appropriately position them to avoid contractures, to help the individual take advantage of normal physiology. Tr. 7/27/93 (Sulkes) at 144. If a person is positioned improperly, their lungs can not work as well. Tr. 7/27/93 (Sulkes) at 144. If one is lying in a position where the lungs can not expand fully, the oxygen exchange and carbon dioxide exchange do not work normally. Id. This places an extra strain on the heart. Id. In addition, the intestines will not move things along as well. Id. Constipation is a pervasive problem with people with developmental disabilities because they are immobile. Tr. 7/27/93 (Sulkes) at 144-5. Unless people with significant physical disabilities are moved around and positioned appropriately, their intestines do not contract normally and the stool pools in the intestines and causes blockages. Tr. 7/27/93 (Sulkes) at 145. Similarly, urine pools in the kidneys. Tr. 7/27/93 (Sulkes) at 145. Dr. Sulkes added, "I'd say name an organ system and inappropriate positioning and immobility take a toll." Tr. 7/27/93 (Sulkes) at 145.
b. Ebensburg Residents Do Not Receive Therapeutic Positioning. i. Therapeutic Positioning Is Necessary For Residents With Physical Disabilities To Prevent Health Risks.
There is agreement among physical therapists who specialize in developmental disabilities that proper alignment of the body and therapeutic positioning are essential in providing appropriate physical management. Tr. 7/28/93 (McAllister) at 156. Proper alignment means that the parts of the body are lined up as straight as possible and the nose,
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navel, knees, and toes are all pointing in the same direction. Tr. 7/28/93 (McAllister) at 178; U.S. Exh. 71 at 96(a) "Job Aid 11: Principles of Positioning." Therapeutic positioning maintains a person in the best alignment possible. By placing someone in therapeutic positioning it helps to reverse or prevent defonnities from occurring and to improve or maintain physiological function of body systems. Tr. 7/28/93 (McAllister) at 163. Therapeutic positioning also increases flexibility and strength and, by so doing, helps an individual to achieve the level of skill acquisition and functional independence that he or she is capable of achieving. Id. at 163. Therapeutic positioning facilitates teaching basic skills to people with significant physical disabilities because proper positioning can facilitate one's ability to learn basic and essential skills, such as eye and hand coordination, activating a switch to control things in the environment, and using a communication system. Id. at 165, 201; U.S. Exhs. 766, 767 (pictures of clients with whom Ms. McAllister worked using a switch and communication board). Therapeutic positioning is much more than "adaptive" positioning, which involves placing the individual in a comfortable position that simply adapts to his or her deformity pattern but has no therapeutic benefits. Id. at 162-163.
The importance of therapeutic positioning is recognized in the literature. The authors of Physical Management of Multiple Handicaps, which Mr. Arnall recognizes as a definitive work in the area, an important work," a "leading one in the field," are a physical therapist,
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an orthopedic surgeon, and an occupational therapist. Tr. 9/17/93 (Arnall) at 53, 103.11/
The authors state:
Positioning is a major part of the therapeutic program for persons with severe multiple handicaps. Proper positioning improves quality of life. It minimizes the influence of pathological forces on body posture and thus helps to maintain physical status and promote skeletal alignment. Positioning often sets the stage for performance and function. Positioning that provides a stable basis of support from which to work facilitates movement patterns and active functioning. For many individuals with multiple handicaps, positioning is the key to increased independence and improved self-esteem.
In Adrienne Bergen's book, Positioning for Function, which Mr. Arnall recognizes as
a "scholarly book" (Tr. 9/17/93 (Arnall) at 54), the author states that as a result of
positioning "[a]ll clients should show some increase in 'function.'" Tr. 10/13/93 (Amall) at
36. She describes "function" as follows:
This function may range from improved respiration to the ability to access assistive devices such as augmentive communication systems or environmental controls.
Id. Mr. Arnall agrees with the principles set forth in both of these treatises as a general
rule. Tr. 9/17/93 (Arnall) at 194; Tr. 10/13/93 (Arnall) at 36-37. In particular, he concurs
that all individuals should demonstrate some increase in function from positioning. Tr.
10/13/93 (Arnall) at 36-37. He also agrees that all individuals at Ebensburg need to undergo
positioning. Tr. 9/17/93 (Arnall) at 194.
11/ The orthopedic surgeon is Dr. Hensinger, who is a professor of surgery at the University of Michigan Medical School and Chief of Orthopedics at University Hospital. Tr. 10/13/93 (Arnall) at 9. He is a widely published and lectured surgeon who has received international acclaim and has served in several national orthopedic societies. Id.
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ii. What Little Positioning Is Done At Ebensburg Is Not Therapeutic.
Ebensburg residents do not receive any therapeutic positioning. Tr. 7/28/93 (McAllister) at 163. The only positioning devices that are available at Ebensburg are wheelchairs, carts, sidelyers, mats, and air mattresses. Tr. 9/17/93 (Arnall) at 18. Residents do not have any plans setting forth the type of therapeutic positioning programs that they should be in throughout the day. Tr. 7/28/93 (McAllister) at 142, 233. During her week long observation, Ms. McAllister did not see anyone at Ebensburg who was in an appropriate therapeutic position. Id. at 206. When residents are in carts or placed on mats at Ebensburg, there is no attempt to even place them in proper alignment. Instead, the pelvis and legs are twisted, arms are tucked underneath the body, and heads are in hyperextension. Tr. 7/28/93 (McAllister) at 170, 171, 178, 179, 180; U.S. Exh. 705 (George N.), 706 (Andrea S.), 707 (Andrea S.), 708 (Linda K.), 697 (Ron P.), 698 (Barry D.), 713, 714 (Patti W.). Mr. Arnall admits that neither he nor any of the other physical therapists at Ebensburg have developed any written plans for the individuals who live in carts to ensure that they are in the best possible alignment throughout the day. Tr. 10/13/93 (Arnall) at 5. He also agrees that the pictures taken by Ms. McAllister during her tour of Ebensburg that depict the various positions in which she observed residents are "not necessarily . . . perfect positionings." Tr. 9/17/93 (Arnall) at 76, lines 14-15.12/ The physical therapists at Ebensburg are not necessarily involved in positioning, even when a resident has a serious skin breakdown. Tr. 10/13/93 (Arnall) at 24. In Ron E.'s case, the orthopedist specifically
12/ Instead, Mr. Arnall characterizes the positions as "resting positions." Tr. 9/17/93 (Amall) at 76.
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recommended that "[a]t this point care should be taken in the positioning of the patient so that we do not have skin breakdown." Tr. 10/13/93 (Arnall) at 21; U.S. Exh. 1005. Beginning November 1990, shortly after the orthopedist made this recommendation, Ron began having a skin breakdown that continued to worsen through at least January 1992. Tr. 10/13/93 (Arnall) at 21-24; U.S. Exh. 343. Between May 1991 and January 1992, the skin breakdown prevented Ron from being positioned at all on his side. W. Although he testified at length about Ron, Mr. Arnall was not aware of Ron having had this prolonged skin breakdown. Tr. 10/13/93 (Arnall) at 21. Sylvia B. had an open area on her coccyx which began in February 1991 and continued intermittently through September 1991. U.S. Exh. 293. Her 90 day nursing summary notes that "[o]open area on coccyx is a direct result of being non-ambulatory and requiring more frequent position changes." Id. at 00347279. The open area required medical treatment, at one point was bleeding, and necessitated her being kept back from day programs. Id. at 00347279-00347289. Neither her July 1991 physical therapy assessment or review one year later even mentions the skin breakdown or anything about positioning. Id. at 00347237. Mr. Bonfanti, the Unit Manager at Keystone, admits that there is a need for more physical therapy input and assistance in positiomng individuals in Keystone on an ongoing daily basis. U.S. Exh. 604 (Bonfanti Dep.) at 78.
Where an individual is immobile and is not able to reposition himself or herself, it is critical that staff provide therapeutic positioning throughout the day, seven days a week. Tr. 7/28/93 (McAllister) at 156.13/ This simply does not occur at Ebensburg. Tr. 7/28/93
13/ United States' Exhibit 71 at Section IV, 138 (Weekday Schedule) presents examples of therapeutic positioning throughout the day and how it can be incorporated into day programs for residents.
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(McAllister) at 163. At best, positioning at Ebensburg consists of turning someone in their cart, or placing them on a bean bag or mat in the same inappropriate position that they were in while in their wheelchair or cart. Tr. 7/28/93 (McAllister) at 152-153. This positioning is not therapeutic and does not provide any alignment or support. Tr. 7/28/93 (McAllister) at 152. The only positioning plan for Tim P., for example, is to turn him from his stomach to his back. Id. at 103; Tr. 9/17/93 (Arnall) 196-197; U.S. Exh. 973. Even this is only done between the hours of 10:00 a.m. and 8:00 p.m. U.S. Exh. 973.14/ Tim is not maintained in proper alignment while in his cart. Tr. 7/28/93 (McAllister) at 103. Tim's positioning plan, which was written by a nurse, has remained unchanged since March 14, 1987, when it was developed. Tr. 9/17/93 (Arnall) at 196-197; U.S. Exh. 973. Mr. Arnall admits that someone like Tim is not born with the kind of deformity pattern and level of disability that Tim currently has. Tr. 9/17/93 (Arnall) at 197, lines 17-19. In fact, at age 3, when Tim was admitted to Ebensburg, the admitting physician notes that he was able to walk on his toes with assistance. U.S. Exh. 973. Tim's parents noted on their application for his admission to Ebensburg that Tim could take a few steps with help. Tr. 10/15/93 (O'Brien) at 77-78. Mr. Arnall agrees that "if at this time some intervention had been made to try to prevent him from becoming scoliotic, it may have helped." Tr. 9/17/93 (Arnall) at 199, lines 7-8.
The physical therapists at Ebensburg have not established any goals for Tim. Tr. 10/13/93 (Arnall) at 5. Mr. Arnall and the other physical therapists who contract with
14/ Mr. Hauenstein agrees that, at a minimum, staff should reposition individuals who can not reposition themselves every two hours. U.S. Exh. 619 (Hauenstein Dep.) at 100.
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Ebensburg believe that "obviously . . [they] cannot provide anything for him." Tr. 9/17/93 (Arnall) at 197, lines 15-16. This attitude towards Tim and other Ebensburg residents is contrary to established literature in the field, including the treatise Physical Management of Multiple Handicaps. In this book, the authors set forth a number of therapeutic positions for people who have a C-shaped scoliosis and other fixed body deformities. Physical Management of Multiple Handicaps at 167-187.
Ron E., who lives in Keystone, has a severe curve in his lower back because the extensor muscles in his back are much stronger than the flexor muscles in his stomach. Tr. 7/28/93 (McAllister) at 115-116. This results in a deformity pattern where his head and legs are bowed backwards. U.S. Exh. 687. Ron E.'s orthopedic notes indicate that during a two year period of time while Ron was under Ebensburg's care, his scoliosis increased from approximately forty-five degrees to one hundred ten degrees. Id. His deformity pattern is currently so severe that he sometimes assumes a bowed position where his head reaches his feet. Tr. 7/28/93 at 116. Ron's deformity pattern is similar to the deformity pattern exhibited by Kent, a client with whom Ms. McAllister worked in the early 1980's. Id. at 115, 117. When Ms. McAllister first started working with Kent, he lived in a cart, similar to the cart in which Ron currently lives. Id. at 116, 118; U.S. Exh. 686. By placing Kent in various therapeutic positioning devices, his trunk was straightened and his hip flexion increased to the point where he was able to be placed in a customized powered wheelchair. Tr. 7/28/93 (McAllister) at 117; U.S. Exh. 688. Within a year and a half, he went from being immobile and confined to a cart to independent mobility. Tr. 7/28/93 (McAllister) at 117-118.
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Therapeutic positions include sidelying, prone on forearms, and quadraped on forearms. Tr. 7/28/93 (McAllister) at 168, 173, 176. The individuals in these positions in the slides that Ms. McAllister presented during her testimony are individuals with whom she has worked and who have the same level of disabilities as individuals at Ebensburg. Id. at 178.
iii. Sidelying Is Inadequate At Ebensburg. Sidelying is placing an individual on a board on his her side with a strap to support the entire trunk surface to maintain good trunk alignment. Id. at 168; U.S. Exh. 703, 711). It is a therapeutic position for straightening out scoliosis and placing a person in better alignment. Tr. 7/28/93 (McAllister) at 168. By placing a person in a sidelying position, it counteracts reflex patterns of extension (curved backward) and flexion (curved forward). Id. As of the time of Ms. McAllister's tour, there were only two individuals at Ebensburg who had a sidelying program, Raymond W. and Karen S.15/ Id. at 171. Raymond's sidelying program only occurs two days a week for one hour; Karen's program is four days a week for one hour. U.S. Exh. 610 (Fagan Dep.) at 87-88, 96. Sidelying is limited to a maximum of four days a week at Ebensburg because the LOTA's work a five day work week and on the fifth day they are responsible for cleaning equipment and note writing. U.S. Exh. 610 (Fagan Dep.) at 88-89. The progress of individuals in a sidelying program is only noted
15/ A third person, George S. was supposed to be on a sidelying program but it had been changed to a supine program. U.S. 610 (Fagan Dep.) at 89. As of the time of Ms. McAllister's tour, George had been resisting even being put in a supine position since at least June 1992 but no one had reevaluated him. U.S. Exh. 610 (Fagan Dep.) at 90. Ebensburg developed a sidelying program for Tony R. following Ms. McAllister's tour. U.S. Exh. 617 (Graham Dep.) at 143.
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once every three months. U.S. Exh. 610 (Fagan Dep.) at 95. Ms. Fagan, a LOTA at Ebensburg responsible for carrying out the sidelying programs, believes that one hour a day is not sufficient to accomplish therapeutic results. U.S. Exh 610 (Fagan Dep.) at 95-96. Ms. Graham, Ebensburg's Director of Occupational Therapy, admits that sidelying at Ebensburg could be improved. U.S. Exh. 617 (Graham Dep.) at 132.
Rather than being therapeutic in nature, the sidelying apparatus at Ebensburg actually poses a risk of harm. Id. For example, the combination of a non-elevated sidelyer, along with narrow straps, places potentially harmful pressure on various parts of the body, rather than supporting and stretching out the body. Id. at 171-172. In Raymond's case, the placement of straps across his knees causes his legs to come together in an abduction pattern, creating a risk of hip dislocation. Id. at 172; U.S. Exh. 709. Raymond has subluxed hips, which means they are already partially out of the socket. Raymond's position in sidelying thus exacerbates this condition. Id. In Karen's case, the straps cut into her body and fail to support her in a therapeutic position. Tr. 7/28/93 (McAllister) at 172, 173; U.S. Exh. 710. Ms. Graham agrees with Ms. McAllister that the straps used at Ebensburg for sidelying are too narrow and that wide straps would provide more support, greater comfort, and better alignment. U.S. Exh. 617 at 151. Mr. Arnall also agrees that sidelying straps "should not be so narrow that it goes against whatever purposes you have, and it shouldn't be so narrow it's discomforting for the patient." Tr. 9/17/93 (Arnall) at 51.
The physical therapists do not have any involvement with sidelying at Ebensburg. Tr. 9/17/93 (Arnall) at 155. Mr. Arnall does not know the number of residents who have sidelying programs and, as of his deposition the night before his testimony, could not even
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provide a rough estimate of the number of individuals who have sidelying programs. Tr. 9/17/93 (Arnall) at 155-156. Mr. Hauenstein also did not have any involvement with sidelying programs at Ebensburg. Hauenstein at 101-102. He agrees, however, that sidelying has health benefits, is a good position for teaching skills, and could play a therapeutic role in terms of improving the overall alignment of the spine. U.S. Exh. 619 (Hauenstein Dep.) at 103.
iv. Prone On Forearms Is Not Used At Ebensburg. Prone on forearms is a position where an individual is on a wedge on his her stomach with weight bearing through the upper extremities. Tr. 7/28/93 (McAllister) at 173; U.S. Exh. 693, 694, 695, 696. This position has a number of health-related benefits for individuals with significant physical disabilities, including: increased muscle strength and coordination; decreased spasticity; counteracting the effects of osteoporosis by strengthening bones; and improved eating abilities through increased range, flexibility and strength of the oral motor structures. Ms. McAllister worked with Lisa, a woman in Florida, who had significant disabilities similar to a number of individuals at Ebensburg who live in carts. Tr. 7/28/93 (McAllister) at 175-176. When she was placed in a prone on forearms positions, staff found that it gave her much greater independence and control over her life. For example, she was able to lift up her head and began to gain greater control over the ability to move her head and upper trunk. Id.; U.S. Exh. 696. Prior to being placed in this position, Lisa had spent all of her time lying on her stomach and back, as is the case for some Ebensburg residents. Tr. 7/28/93 (McAllister) at 176. No one at Ebensburg is in a prone on forearms position or anything similar to it. Id. at 175.
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v. Ouadraped On Forearms Is Not Used At Ebensburg. Quadraped on forearms is a position in which the individual is on his or her stomach and is weight-bearing through the upper and lower extremities. Tr. 7/28/93 (McAllister) at 176; U.S. Exh. 700, 701, 702. This position has many of the same benefits of prone on forearms, with the added benefit of therapeutic value to the lower extremities. Tr. 7/28/93 (McAllister) at 176. For example, it is a position which helps to prevent hips from subluxing or dislocating because of increased muscle tone and strength. Id. Ms. McAllister has used this position to increase hip flexion to the point that individuals previously unable to sit upright can now sit in a wheelchair. Id. at 177. It is also a position which assists with the digestive process and clearing congested lungs. Id. at 176-177. No one at Ebensburg is in a quadraped on forearms position or anything similar to it. Id. at 177.
c. Ebensburg Residents With Physical Disabilities Do Not Receive Adequate Gross Motor Programs.
Ebensburg residents with significant physical disabilities do not receive adequate gross motor programs to facilitate a movement experience. Tr. 7/28/93 (McAllister) at 164-165. During her week long observation, Ms. McAllister did not see anyone at Ebensburg who was in an appropriate gross motor program. Id. at 207. Mr. Arnall admits that he is not involved with nor does he have any familiarity with gross motor programs at Ebensburg. At most, he may have walked by and seen what he thinks may have been a gross motor program, but he has never made the effort to actually attend and observe a gross motor program in progress. Tr. 9/17/93 (Amall) at 178. He has no idea of the duration of gross
motor programs at Ebensburg and has never recommended a gross motor program for any
individual at Ebensburg. Tr. 9/17/93 (Arnall) at 178.
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It is important for individuals at Ebensburg with physical disabilities to experience movement. Tr. 7/28/93 (McAllister) at 162. For individuals who are immobile, passive movement is important. Id. at 162. This can be provided through a wheelchair swing, an air mattress, or some other device that provides the sensation of movement. Id_. at 164, 204; U.S. Exh. 776. Mr. Arnall agrees that the opportunity to experience movement throughout the day should be provided to individuals if there is a functional or physiological reason for it. Tr. 9/17/93 (Arnall) at 177. For individuals who have some movement skills, movement programs entail teaching gross motor skills, such as crawling, head control, protective extension, or sitting balance, to improve gross motor functions. Id. at 162, 164, 202; U.S. Exhs. 768, 769, 779 (demonstrating various gross motor activities). Development of these skills enables a person to function as independently as possible rather than relying on staff for all of their needs. Id. at 164-165.
d. Ebensburg Residents Have Suffered Significant Health Problems And Lost Physical Capabilities Due To A Lack Of Adequate Physical Management Services.
As discussed above, Ebensburg residents have developed significant deformity patterns that have caused serious health problems due to Ebensburg's failure to provide adequate services to meet their needs. S»5, e j j . , discussion regarding Tim P., Christine G., Frank H., Joe T., Ron P., Ron E. Other residents have similarly regressed and lost function because of Ebensburg's failure to provide adequate physical management. Tr. 7/28/93 (McAllister) at 210-211. For example, Joe T. has lost thirty degrees of shoulder flexion and fifteen degrees of elbow extension. Id. at 114. Ron E.'s orthopedic notes indicate that his scoliosis increased during a two year period of time from approximately forty-five degrees to
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one hundred ten degrees. Id. at 211. George N. experienced a twenty degree decrease in his right shoulder abduction and a thirty degree decrease in his right wrist flexion. Id. Karen S. experienced a decrease of ten degrees in her right shoulder and twelve degrees in her left shoulder. Id. at 212. Linda B. has lost five to ten degrees of range of motion. Id. Harold B. has lost twenty degrees of shoulder flexion and ten degrees of range of motion in his right elbow. Id.
Other Ebensburg residents have lost physical skills or eating skills that they once had due to a lack of adequate physical management. Tr. 7/28/93 (McAllister) at 211. For example, Ron P. could orally eat at one time and now he is being fed through a gastrostomy tube. Id. at 115. Tim P. could walk on his toes with assistance at the time he entered Ebensburg at age three. U.S. Exh. 973. At age 21, he could sit in a wheelchair. In August 1992, he was fed orally. He now is immobile, is confined to a cart, and is fed through a gastrostomy tube.
Ebensburg residents' ability to attain skills and to participate in activities has also been limited by failure to provide appropriate positioning and physical management. For example, Frank H.'s interdisciplinary team notes that he displays emotions, responds to his name, recognizes staff, and "appears to have a high level of awareness." U.S. Exh. 975 (4/23/93 annual review at 2). He is being denied the opportunity to develop the ability to identify objects through a head pointer, however, because his position in his cart does not allow this. U.S. Exh. 975 (4/23/93 annual review at 3). He had a skills training program that began in August 1992 to identify a picture by pointing to it with a head pointer. Because of his positioning, however, he was unable to accomplish this skill. Id. Moreover,
XIV-43

although he needs glasses and his team feels that they would be beneficial to Frank, he is unable to wear them because his "head positioning in his reclining chair was not conducive to wearing the glasses successfully." Id. Ron E.'s interdisciplinary team specifically noted during his annual review that his "ability to attend out of unit recreational activities was severely limited by the fact that he is in an orthopedic cart." U.S. Exh. 343 at 5. Sylvia B. has not been able to attend day programs because of her skin breakdowns. U.S. Exh. 239.
e. Ebensburg Professional And Paraprofessional Staff Believe That Residents Would Benefit From Physical Management.
Ms. McAllister saw a change in the attitude of Ebensburg staff during the course of her tour and felt that they were very interested in learning more about physical management. Tr. 7/29/93 (McAllister) at 25.16/ As she worked with Ebensburg clients, discussed them with staff, and demonstrated better alignment, staff began to appreciate that things could be different for these clients. Tr. 7/28/93 (McAllister) at 129.
Ebensburg staff were particularly impressed with Ms. McAllister's demonstrations about proper alignment and positioning with individuals who live in Keystone. For example, Richard Bonfanti, Unit Manager at Keystone, thought her demonstrations were "quite amazing." U.S. Ex. 604 (Bonfanti Dep.) at 92. "Susanne made a definite impression on those who watched her." U.S. Ex. 604 (Bonfanti Dep.) at 94, lines 1-2. Mr. Bonfanti was "very impressed," in particular, with the fact that she was able to realign individuals by straightening them out, thereby revealing "possibly eight inches of that person's body that no one ever saw before." U.S. Ex. 604 (Bonfanti Dep.) at 92, lines 20-21. Based upon what
16/ Based upon her contact with the physical therapists, Ms. McAllister did not believe that they were interested in change and new ideas. Tr. 7/29/93 (McAllister) at 25.
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he saw during Ms. McAllister's demonstrations, Mr. Bonfanti is not satisfied that everything is currently being done that can be done in terms of positioning individuals at Keystone. U.S. Ex. 604 (Bonfanti Dep.) at 94. He sees benefits accruing to the individuals at Keystone from the facility doing more in terms of positioning; he foresees improvement in their health and appetites, decompressing their stomachs, weight gain, and an overall healthier appearance. U.S. Ex. 604 (Bonfanti Dep.) at 94-95. He "certainly" believes that some of the physical deformities of Ebensburg residents could be corrected and reversed based upon his contact with Ms. McAllister. U.S. Exh. 604 (Bonfanti Dep.) at 92. Mr. Bonfanti sees "nothing but good things" coming from the types of positioning techniques that Ms. McAllister believes should be implemented at Ebensburg. U.S. Ex. 604 (Bonfanti Dep.) at 95.
Ms. Malloy, the nurse supervisor at Keystone, who also observed the positioning demonstration by Ms. McAllister during her November 1993 tours, was equally impressed with the possibility of using therapeutic interventions not currently being used with Keystone residents. In Ms. Malloy's words, Ms. McAllister was "amazing," "her techniques; she is really good at what she does." U.S. Exh. 622 (Malloy Dep.) at 103-104. Ms. Malloy thought that as a result of Ms. McAllister's repositioning Ethel M., she was placed in a healthier position. U.S. Exh. 622 (Malloy Dep.) at 102. After observing demonstrations by Ms. McAllister with Tim P. and Joe T., Ms. Malloy learned that "they could be relaxed, that their legs could be straightened," and that Tim P., in particular, "was so calm." U.S. Exh. 622 (Malloy Dep.) at 102, 103, lines 5-6. Ms. Malloy has never had any in-service

training in positioning in the 30 years that she has been at Ebensburg. U.S. Exh. 622 (Malloy Dep.) at 109.
Mr. Bonfanti discussed Ms. McAllister's demonstrations with one of the occupational therapy aides assigned to Keystone, Sue Fagan, who was as impressed, if not more impressed, than he was. U.S. Ex. 604 (Bonfanti Dep.) at 93. Ms. Fagan states that Ms. McAllister "was fabulous with what she was doing." U.S. Exh. 610 (Fagan Dep.) at 36, lines 14-15. She was "quite impressed" with Ms. McAllister's demonstration with Tim P. U.S. Exh. 610 (Fagan Dep.) at 36, line 25. She was particularly impressed with the fact that Ms. McAllister was able to relax Tim to the point that he "was straight in his cart as compared to having curvatures." U.S. Exh. 610 (Fagan Dep.) at 37, lines 4-5. She believes that deformities could potentially be reversed if more time could be spent on positioning at Ebensburg. U.S. Exh. 610 (Fagan Dep.) at 95-96. Ms. Fagan thinks that if individuals at Ebensburg were positioned better, their health would be improved:
If they're positioned properly, especially during feeding, you're not going to see them choking, no aspiration, just breathing — I mean, just all in all general health I could see where there would be a difference. Their [skin] breakdowns. U.S. Exh. 610 (Fagan Dep.) at 108, 109, lines 3-7. Based upon Ms. McAllister's demonstrations, Ms. Fagan determined that she needed more training. U.S. Exh. 610 (Fagan Dep.) at 35. She expressed a desire, in particular, to seek some training from Ms. McAllister. U.S. Ex. 604 (Bonfanti Dep.) at 93. Lois Graham, the Director of Occupational Therapy at Ebensburg, concluded that Ebensburg could do more than what it was doing in terms of positioning and needed to look more closely at each individual client in terms of their positioning throughout the day as a
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result of her contact with Ms. McAllister and reading Ms. McAllister's manual on Challenges in Physical Management. U.S. Exh. 617 (Graham Dep.) at 71, 151-152. Ms. Graham feels that Ebensburg residents would benefit if they received better positioning. U.S. Exh. 617 (Graham Dep.) at 71. She also believes that residents' health would be improved by more appropriate positioning. U.S. Exh. 617 (Graham Dep.) at 71. Ms. Graham testified during her deposition in January 1993, however, that in order for any changes to occur at Ebensburg, she felt it would be up to her. U.S. Exh. 617 (Graham Dep.) at 154-155. She was not comfortable with that responsibility given her large workload and the fact that she was the only occupational therapist at Ebensburg. U.S. Exh. 617 (Graham Dep.) at 155. Moreover, Ms. Graham does not think that she, alone, could accomplish these changes, because it is difficult to change things at Ebensburg and "more people need to realize the needs." U.S. Exh. 617 (Graham Dep.) at 156. She does not think that Ebensburg's management understands the problems that she sees at Ebensburg because they need "more contact with what's going on day-to-day in the lives of people at Ebensburg." U.S. Exh. 617 (Graham Dep.) at 157. She additionally believes that there is "definitely" a need for Ebensburg to bring in consultants with specific expertise in oral motor, positioning, wheelchair adaptations, and splinting. U.S. Exh. 617 (Graham Dep.) at 155. Ebensburg has not consulted with or brought in any independent experts to provide suggestions to Ebensburg in the areas of physical therapy and physical management. Tr. 10/15/93 (Bellomo) at 13. Ms. Graham also concluded that she needed training as a result of her contact with Ms. McAllister. She made a request to Mr. Bellomo to attend the Ninth Annual Seating Symposium in February 1993, along with Sue Fagan, to get some more ideas
XIV-47

on functional seating and positioning. Graham I at 69-70. Ms. Graham was not permitted to attend the training although Mr. Cicotello, the Director of Training at Ebensburg, admitted that she "certainly" would have "benefited" from attending it. Tr. 10/15/93 (Bellomo) at 9; U.S. Exh. 1024 (Cicotello Dep. excerpts at 117). Ms. Graham is no longer at Ebensburg. Tr. 10/13/93 (Amall) at 8, 50; Tr. 10/15/93 (Bellomo) at 7.
Mr. O'Brien also admits that Ebensburg needs to do more work on positioning individuals and training staff with respect to positioning. U.S. Exh. 624 (O'Brien Dep.) at 40. Mr. O'Brien has concerns with respect to positioning of the Keystone population. He is concerned about whether Ebensburg is doing as much as possible for these individuals and also whether they are comfortable. U.S. Exh. 624 (O'Brien Dep.) at 41-42.
4. The Wheelchairs At Ebensburg Are Inadequate. a. Wheelchairs Are Inappropriate And Residents Are Not Positioned Properly In Them.
Both Ms. McAllister and Mr. Arnall agree that the purpose of a wheelchair should be to provide the best possible support and best possible alignment, along with comfort. Tr. 7/28/93 (McAllister) at 180; Tr. 7/29/93 (McAllister) at 13-14; Tr. 10/13/93 (Arnall) at 58. Proper alignment promotes individuals' health, safety, independent functioning, and skill acquisition. Id. Proper alignment is dependent upon an appropriate wheelchair for the individual's body as well as positioning the individual correctly in the wheelchair. A proper position of the pelvis, in a slight anterior pelvic tilt and snug against the back of the wheelchair, is essential to provide stability for the trunk and the head to keep the body in alignment. Tr. 7/28/93 (McAllister) at 181. A properly located seat belt, just below the hip bones, is critical to keep the pelvis in the appropriate position. Id. at 182. When a person is
XIV-48

fc.
slouched in his or her wheelchair (sitting in posterior pelvic tilt) and remains in this position for long periods of time, kyphotic posturing can result. Id. at 184. This is an abnormally increased backward curvature of the spine that causes a hump-like appearance of the upper back. U.S. Exh. 71, Appendix VI, Glossary, at 6. When individuals are uncomfortable in their wheelchair, they tend to squirm and shift, which puts them in improper alignment. Mr. Hauenstein, who spent most of his time in Keystone, was clear that Keystone residents "let you know if they are uncomfortable. They protest, slide out and they're in a worse position than when they started." U.S. Exh. 619 (Hauenstein Dep.) at 94. Mr. O'Brien admits that individuals in wheelchairs at Ebensburg are not comfortable all the time. U.S. Exh. 624 (O'Brien Dep.) at 40-41. Mr. Arnall agrees that how comfortable a person is in their wheelchair is a critical factor in ensuring that person's compliance in sitting in the desired position. Tr. 10/13/93 (Arnall) at 43.
During her entire week-long observation at Ebensburg, Ms. McAllister did not see anyone at Ebensburg who was in an appropriate wheelchair. Tr. 7/28/93 (McAllister) at 206. In addition, Ms. McAllister never saw a staff person attempting to properly position a resident in a wheelchair. Id. at 188-189. Ms. McAllister presented multiple slides illustrating examples of the following types of problems with wheelchairs and residents'

alignment in wheelchairs: 17/
sitting in posterior pelvic tilt collapsed trunks head below headrest feet dangling in foot troughs leaning to one side feet and legs twisted inadequately supported arms, feet, knees, legs, head, and trunks seat belts across the abdomen and thighs.
Tr. 7/28/93 (McAllister) at 184-193.
Ms. McAllister also observed Ebensburg residents, such as Michael F., in
wheelchairs with sling backs and sling seats. Tr. 7/28/93 (McAllister) at 187. Ms.
McAllister was particularly concerned about the use of these chairs because they provide no
support and are inappropriate for someone with a severe scoliosis, such as Michael. Id.
Physical therapists across the country working with a developmentally disabled person with
very poor trunk control and the type of deformity pattern exhibited by Michael F. would not
recommend a wheelchair with a sling back and sling seat. Tr. 7/28/93 (McAllister) at 57.
In Michael's case, the sling back and sling seat cause him to sink further and further into his
deformity pattern and contribute to his health problems. Tr. 7/28/93 (McAllister) at 187-
188. Michael has a hiatal hernia, poor gastric motility, gastroesophageal reflux, a poor
appetite and has lost twenty pounds in the last year. Tr. 7/28/93 (McAllister) at 187. Ms.
McAllister believes that these health problems are related to the fact that Michael's
17/ Ebensburg residents depicted in these slides, include: Robert H. (U.S. Exhs. 734, 750); Patrick G. (U.S. Exh. 735); William B. (U.S. Exh. 737); Kathy M. (U.S. Exhs. 740, 751); Janice G (U.S. Exh. 741); Michael F. (U.S. Exhs. 746, 747); David V. (U.S. Exhs. 742, 743); Christine G. (U.S. Exh. 738); Delillah H. (U.S. Exh. 739); James M. (U.S. Exh. 744); Harvey B. (U.S. Exh. 736); George S. (U.S. Exhs. 748, 749); Raymond W. (U.S. Exh. 752).
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wheelchair does not provide proper support and he "collapses" down on his side. Tr. 7/28/93 (McAllister) at 187. The side on which he collapses is the side of the body on which the stomach is located. Tr. 7/28/93 (McAllister) at 188. Ms. McAllister saw Michael F. in his wheelchair in the same or similar position pictured in U.S. Exh. 746 and 747, where he is collapsed on one side, at several times during her week long observation at Ebensburg during November 1992. Tr. 7/28/93 (McAllister) at 73. Ten months earlier, during March 1992, Mr. Bellomo was aware that Michael F.'s position in this chair was of "particular concern" to outside surveyors. U.S. Exh. 162.
A sample of additional deficiencies in wheelchairs and wheelchair positioning that Ms. McAllister observed at various locations during the course of her tour include other individuals in wheelchairs with sling backs and seats (Robert F., Kenneth B., MarK S., Tom T., and Luberta H.); seat belts improperly positioned around residents' chests (Denise D., Sylvia B.) and abdomens (Linda K., Christine G., Lydia B.); inadequate neck and head support (Denise D., Andrea S., Linda K., Christine G., Beth S., Sylvia B.); and inadequate arm and feet support (William B., Robert F., Kenneth B., Denise D., Linda K., Christine G., Sylvia B., Luberta H.). Tr. 7/28/93 (McAllister) at 213; U.S. Exh. 782. The problems with wheelchairs and wheelchair positioning for the twenty-five residents highlighted by Ms. McAllister during her testimony are exemplary only. This is not an exhaustive list of residents or Ms. McAllister's concerns about wheelchairs and wheelchair positioning at Ebensburg. Tr. 7/28/93 (McAllister) at 213.
Mr. Arnall commented about the adequacy of wheelchair positions of five Ebensburg residents pictured in Ms. McAllister's slides. He agreed that each of the five residents were
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either in an inadequate wheelchair or in an inappropriate position. 18/ Mr. Arnall's
comments are as follows:
• Robert H. (U.S. Exh. 734): "Ms. McAllister is correct that this is not a good chair for this individual." Tr. 9/17/93 (Amall) at 81, lines 20-21.
• Chris G. (U.S. Exh. 738): "Ms. McAllister criticizes the posture that this individual is in and I would agree that she is in poor posture." Tr. 9/17/93 (Amall) at 82, lines 18-20.
• Cathy M. (U.S. Exh. 740): "This is Cathy M. She is pictured in a poor position in an adaptive chair." Tr. 9/17/93 at 83, lines 23-24.
• David V. (U.S. Exh. 742,743): David is "pictured in a temporary chair, and it is not an adequate one for him." Tr. 9/17/93 (Amall) at 84, lines 6-7.
• U.S. Exh. 733: "He is not in a good position. Ms. McAllister indicates that this client is not in good position, and she is absolutely correct." Tr. 9/17/93 (Amall) at 82, lines 7-9.
b. Ebensburg Does Not Develop. Modify. And Monitor The Condition Of Wheelchairs Appropriately.
Mr. Amall admits that it is "not uncommon" that the interdisciplinary team discusses
and expresses concern about the adequacy of wheelchairs during the annual review process
and yet there is no physical therapist present at the annual review. Tr. 10/13/93 (Amall) at
80. For example:
A physical therapist is not a member of David V.'s interdisciplinary team and was
also not present during David V's January 5, 1993 annual review, despite the fact that the
18/ Mr. Amall also discusses Dellilah H. (U.S. Exh. 739), James M. (U.S. Exh. 744), and Michael F. (U.S. Exhs. 746, 747) but does not specifically comment about the appropriateness of their particular position. During cross examination, Mr. Amall admitted that Michael F.'s sling back and sling seat wheelchair "is not the best from the standpoint of a course or book on wheelchairs, but it is a negotiated position." Tr. 10/13/93 (Amall) at 86, lines 10-12.
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interdisciplinary team had requested the physical therapist on several earlier occasions to review the adequacy of his wheelchair. Tr. 9/17/93 (Arnall) at 185; U.S. Exh. 974. Just several weeks before the annual review, a referral had been sent to the physical therapist because David injured his foot, which protrudes out from his wheelchair, as staff were wheeling him through a door. United States' Exhibit 742 is a picture of David in his wheelchair. David's QMRP describes David's "most irregular11 position in his wheelchair as:
his back is twisted almost 90 degrees to the chair back, and his feet hang over the right side of his chair. U.S. Exh. 974 at 00541131. David's "wheelchair and his position in it were the central issues" at his annual review. Id. The team was advised that the physical therapy department "is backed up with requests. As such the team was told that it would be a long time before anything can be done." Id. The team considered a new wheelchair but "was reminded that '...such things take time...' and was further reminded that in one recent case two years were required to secure a new chair" for another resident. Id. At the meeting, David's mother "voiced a request that the physical therapist be made to sit in [David's] chair, as it was postulated that if the therapist had to do so, the process may be greatly speeded up." Id. 19/ Although Frank H. also receives percussion by a physical therapy aide, no physical therapist serves on his interdisciplinary team, even though the team membership was updated
19/ This annual review took place two months after the pictures of David V. (U.S. Exhs. 742, 743) were taken, which Mr. Arnall dismissed as a "temporary chair." Tr. 9/17/93 (Arnall) at 84.
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as recently as May 1993. Tr. 9/17/93 (Arnall) at 121, 122; U.S. Exh. 975. No physical therapist attended Frank's annual review in either 1992 or 1993. Tr. 9/17/93 (Arnall) at 121, 122. At both Frank's 1992 and 1993 annual review, the team agreed that a physical therapist needed to re-evaluate his cart to determine whether it was the most appropriate mode of mobility available to him. Tr. 9/17/93 (Arnall) at 122; U.S. Exh. 975. Mr. Arnall did not know whether a physical therapist had responded to the requests and could find no indication in the progress notes of Frank H.'s record that a physical therapist responded. Tr. 9/17/93 (Arnall) at 123-125.20/ He admits that the physical therapists do not always write a progress note reflecting their thought process about the appropriateness of wheelchairs in response to a specific concern. Tr. 9/17/93 (Arnall) at 129.
On both June 16, 1992 and August 13, 1992, staff identified the need to reevaluate Cathy M.'s wheelchair as part of her living area assessment. U.S. Exh. 423 at 00338974, 00339252, 00339012.21/ Despite this identified need, neither a physical therapist or physical therapy aide attended her annual review on August 25, 1992. Tr. 10/13/93 (Arnall) at 78-79. During Cathy M.'s annual review in August 1992, her interdisciplinary team
20/ Although Mr. Arnall testified in September 1993 that if a response was written, it would be contained in the progress notes, during redirect testimony one month later, Mr Amall was able to produce a "speed message" which is not contained in Frank's record and which consisted of a two sentence response from a physical therapist to the team's 1993 request for assistance with Frank. Tr. 9/17/93 (Amall) at 130; Tr. 10/13/93 (Arnall) at 113, 117. 217 Cathy M. is pictured in United States' Exhibits 740 and 751 in a poor position in her wheelchair. Her hips are not well stabilized, she is leaning over to the side, and her legs are elevated and twisted so that her knee caps are facing out to one side. Tr. 7/28/93 (McAllister) at 186, 193.
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determined that she needed not only a reevaluation of her wheelchair but physical therapy as well. Tr. 10/13/93 (Amall) at 78; U.S. Exh. 423.
Although Mr. Amall agrees that Michael F.'s sling back and sling seat wheelchair is "not the best" but claims that "it is the only one that he will agree to," no physical therapist or physical therapy aide was present at Michael's March 1993 annual review to discuss this situation. Tr. 10/13/93 (Arnall) at 84-86. Mr. Arnall's reason for why no representative from physical therapy attended Michael F.'s review is that "[t]hese are not just social occasions that everybody attends." Tr. 10/13/93 (Amall) at 84. Mr. Amall added that "[i]t's very costly to have these meetings [annual reviews] and it actually interferes with the best development of the meeting if too many people are there." Tr. 10/13/93 (Amall) at 8485.
Robert B.'s team also identified the need for physical therapy to evaluate his wheelchair during his March 1992 annual review and no physical therapist was present at the review. Tr. 10/13/93 (Amall) at 83; U.S. Exh. 300.
The evaluation process at Ebensburg for developing and modifying wheelchairs is inadequate. Tr. 7/28/93 (McAllister) at 196. Ebensburg does not evaluate residents to determine the specific properties that are needed in the wheelchair to accommodate the resident's particular needs. Id. at 196. A simulator or positioning chair is not used to evaluate the precise measurements and properties of the wheelchair for each resident. Id. at 195-196; U.S. Exh. 732. Despite the fact that the simulator has been in use for the past fifteen years, is commercially available, and has replaced the trial and error method used at Ebensburg, as of the time of Ms. McAllister's tour, the physical therapists had never heard
XIV-55

of one. Tr. 7/28/93 (McAllister) at 195; Seating and Mobility (Treffler, Hobson, et al.) at 73. Mr. Arnall agrees that a simulator is an "excellent" tool and one that has "proven to be very useful." Tr. 10/13/93 (Arnall) at 60-61.
The condition of wheelchairs is not monitored with sufficient frequency at Ebensburg to ensure that they are in good working order and not in a state of disrepair. Tr. 7/28/93 (McAllister) at 214. During her tour, Ms. McAllister observed Tom T.'s sling back wheelchair literally falling apart at the back. U.S. Exh. 782. Ebensburg residents have been injured as a result of unaddressed problems with their wheelchairs. Tr. 7/28/93 (McAllister) at 214. Recent injuries include scratches sustained by Vernon R. from sharp jagged edges of a damaged and unrepaired footrest on his wheelchair; abrasions sustained by Duane P. from his ripped wheelchair tray that had exposed staples; and "numerous" black and blue marks found on both legs of Barb C. assumed by Ebensburg staff to be the result of bolts on the footrest of her wheelchair. U.S. Exh. 86, 781. The defendants did not refute or challenge U.S. Exh. 781 which summaries these and a number of other injuries attributable to individuals' wheelchairs.
5. Ebensburg Staff Do Not Handle. Lift. And Transfer Ebensburg Residents Safely And In Accordance With Accepted Standards.
It is critical that staff move and transfer residents with physical disabilities consistently and safely. Tr. 7/28/93 (McAllister) at 162. Ebensburg staff are not following either of these principles. Id. at 216, 219-223. Staff do not comply with Ebensburg's own policy on lifting and transferring residents and there is a great deal of inconsistency in the type of transfer techniques that staff use. Tr. 7/28/93 (McAllister) at 216; U.S. Exh. 82. Contrary to Ebensburg's policy, Ms. McAllister never saw a staff person lock the wheelchair
XTV-56

brakes before conducting a transfer. Id. at 221. Moreover, aspects of Ebensburg's lifting and transfer policy do not comport with accepted professional standards. Id. at 216-218. For example, Ebensburg's policy advocates a transfer where both staff lift the person under the arm pits. Id. This creates pressure in the axilla area that can cause damage under the arm pit or in the shoulder joint. Id. The possibility for damage is particularly high in a population such as that at Ebensburg where joint integrity is already weakened due to the nature of individuals' physical disabilities. Tr. 7/29/93 (McAllister) at 48. The physical therapists who provide consultative services to Ebensburg do not advocate a lift under the arm pits. Tr. 7/28/93 (McAllister) at 218. They were not involved, however, in developing Ebensburg's lifting and transfer policy and did not seem to be aware of the policy. Id. at 218. In fact, Mr. Arnall, who has recently been responsible for training Ebensburg staff in lifting and transfers, had never seen the facility's policy on this topic until it was shown to him at his deposition on August 31, 1993. Tr. 9/17/93 (Arnall) at 163. He agrees that residents with osteoporosis are at risk of serious injury, including fractures of the humerus, if they are lifted by their arms rather than the thorax being the point of lift. Tr. 9/17/93 (Arnall) at 170.
Based upon her observation of numerous lifts and transfers of Ebensburg residents, Ms. McAllister observed the following types of unsafe practices to be pervasive at Ebensburg:
• Staff lift residents under their armpits. Tr. 7/28/93 (McAllister) at 220, 221. Mr. Arnall agrees that this is not a recommended technique. Tr. 9/17/93 (Arnall) at 170.
• Staff lift residents under the knees posing a risk of serious knee damage. Tr.
7/28/93 (McAllister) at 220, 225. Mr. Arnall agrees that this is not a recommended technique. Tr. 9/17/93 (Arnall) at 170.
XIV-57

• Staff do not have control of the head and trunk. Tr. 7/28/93 (McAllister) at 220, 221, 222. Mr. Arnall agrees that head and trunk control are important. Tr. 9/17/93 (Arnall) at 171. Mr. Hauenstein also agrees that it is important to support the head, shoulders, pelvis, and upper legs. U.S. Exh. 619 (Hauenstein Dep.) at 77.
• Staff do not provide any support to the head, leaving it dangling or suspended. Tr. 7/28/93 (McAllister) at 220, 221, 222. Mr. Arnall agrees that the head should not be unsupported or dangling. Tr. 9/17/93 (Arnall) at 171.
• Staff do not attempt to position the resident properly in a wheelchair or on the mat after the transfer and use the resident's limb for turning. Tr. 7/28/93 (McAllister) at 221, 222. Mr. Arnall agrees that residents should be repositioned in their wheelchairs. Tr. 9/17/93 (Arnall) at 176.
• Staff do not lock wheelchair brakes prior to transferring a resident. Tr. 7/28/93 (McAllister) at 221, 222. Mr. Amall and Mr. Hauenstein both agree that it is important to lock the brakes on a wheelchair before moving a client into or out of the wheelchair. 9/17/93 (Arnall) at 172; U.S. Exh. 619 (Hauenstein Dep.) at 79.
• Staff use momentum rather than controlled techniques, resulting in "flopping," "heaving," "dropping," or "throwing" residents into wheelchairs or onto mats. Tr. 7/28/93 (McAllister) at 220, 221, 222, 223. Mr. Tackett confirmed that when he worked in Keystone, he observed staff just "plopping" residents into their wheelchairs. Tr. 8/3/93 (Tackett) at 9. Both Mr. Arnall and Mr. Hauenstein agree that it is important for the staff person to be in control throughout the process of transferring, as opposed to using momentum. Tr. 9/17/93 (Arnall) at 175; U.S. Exh. 619 (Hauenstein Dep.) at 76, line 6.
• Staff pick up residents from the middle of the bed rather than the side of the bed. Tr. 7/28/93 (McAllister) at 222. Mr. Arnall agrees that it is better to position the client at the edge of a cart or bed rather than the middle before attempting a lift. Tr. 9/17/93 (Arnall) at 175.
• Staff do not arrange the environment prior to moving the resident resulting in letting go of the resident and rearranging the wheelchair during the middle of a transfer. Tr. 7/28/93 (McAllister) at 221. Mr. Arnall agrees that one of the cardinal rules in lifting is controlling the environment. Tr. 9/17/93 (Arnall) at 172. He agrees that if the environment is correctly prepared, there should be no need to let go of a client with one hand during the transfer unless there is an emergency and the environment becomes out of control. Tr. 9/17/93 (Arnall) at 171.
• Staff use poor body mechanics. Tr. 7/28/93 (McAllister) at 220, 221, 222.
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Ms. McAllister narrated a videotape demonstrating Ebensburg staff using these improper techniques with Ebensburg residents during her tour. The videotape was taken under her observation and at her direction by an FBI photographer. Tr. 7/28/93 (McAllister) at 219-223; U.S. Exh. 261 (Part II). The scenes depicted in the videotape are illustrative of the types of deficiencies that she observed throughout her week long tour of Ebensburg. Tr. 7/28/93 (McAllister) at 72. In addition, Ms. McAllister witnessed other unsafe transfers, including a resident's head hitting a footrest, a resident landing on his head in a transfer down to a mat, and staffs clothing getting caught on unlocked wheelchairs. Tr. 7/28/93 (McAllister) at 224. In another instance, Ms. McAllister witnessed a resident who was transferred into the wrong wheelchair. Id. at 225. The staff did not realize it was the wrong wheelchair until they attempted to attach the straps and they did not fit. Id. Ms. McAllister observed paraprofessional staff as well as direct care staff using unsafe lifting and transfer techniques. In one excerpt on her videotape, the two LOTA's assigned to Keystone, Sue Fagan and Jane Schneider, are lifting Karen S. from her wheelchair into a sidelyer by grabbing her under her armpits and knees and failing to support her head and upper trunk. Id. at 220. Ms. Fagan admitted that the last training she received in lifting was several years ago. U.S. Exh. 610 (Fagan Dep.) at 105.
This is no dispute that each of the unsafe practices in lifting and transfers that Ms. McAllister described in her testimony and videotape narrative are contrary to accepted professional practice. Mr. Arnall offered no testimony during his direct examination about staff performance in lifting and transferring Ebensburg residents. On cross examination he specifically agreed, however, that each and every one of the deficient practices described by
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Ms. McAllister during her testimony is not recommended. Tr. 9/17/93 (Amall) at 170-175. a. Ebensburg Residents Have Suffered Harm As A Result Of Improper Handling. Lifting. And Transferring By Staff.
Based upon her review of occurrence reports, Ms. McAllister identified thirty-five examples of situations where Ebensburg residents with physical disabilities have been injured while being handled, lifted, or transferred. Tr. 7/28/93 (McAllister) at 225-226; U.S. Exh. 85, 791 (attached). This is not an exhaustive list of injuries but merely a sampling of injuries during the past several years, primarily during 1992 and 1993. Tr. 7/28/93 (McAllister) at 227. The defendants did not refute or challenge any of these examples. Mr. Arnall has not reviewed any occurrence reports involving injuries due to lifts and transfers. Tr. 9/17/93 (Arnall) at 163, 175. He agrees, however, that if clients are not lifted appropriately, they are at risk for fracture or soft tissue injury or injury of another body part. Tr. 9/17/93 (Arnall) at 169. The examples contained in United States' Exhibits 85 and 791 reflect injuries from the types of unsafe practices identified by Ms. McAllister in the excerpts of lifting and transfers on her videotape. They include injuries from failing to support residents' heads, grasping people under their arms, failing to reposition individuals once they are transferred into their wheelchairs, and failing to adequately prepare the environment in advance (Paul G., Thomas C , David V., Michael A., Michael U., Harvey B., George S., Beth S., Mary Lou F., Melanie H., Michael F., Edward T.). U.S. Exh. 791 (attached). The injuries that Ebensburg residents have suffered include three fractured femurs, a fractured clavicle, a fractured humeral head, a fractured foot, a fractured tibia, a spiral
fracture of the leg, lacerations requiring sutures, and multiple abrasions and bruises. Id.
Some Ebensburg residents have sustained multiple injuries. For example, George S., a
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Keystone resident who is confined to a wheelchair, was found with a fracture of the humeral head and a large bruise on his upper arm on November 11, 1992, as Ms. McAllister was touring Ebensburg. U.S. Exh. 85, 971. Based upon this injury, the Unit Manager decided staff needed training on lifting and transferring. Five months earlier, George was found with a sprained foot. Supervisors recommended that staff need to "exercise caution transferring or moving him." Id. In October of 1990, George was found with a fracture of his left femur. His occurrence report notes that the probable cause and time of the injury was while he was at physical therapy. Id. Michael U. suffered a lacerated forehead on October 31, 1992 when a staff person lifted and transferred him without any assistance from the floor to his bed. Id. On January 17, 1993, a staff person was changing Michael without any assistance and Michael rolled off the changing table, abrading his chest. Id. There are other instances in which Ebensburg residents have been lifted and transferred by only one staff person despite the fact that Ebensburg's policy requires at least two staff. U.S. Exh. 705. For instance, a staff person transferred Michael A. without assistance from his wheelchair to his bed. Michael threw his head back, hitting his ear, which required sutures. Id. Mr. Tackett confirmed that he had also lifted individuals up to 150 pounds by himself when he worked in Keystone. Tr. 8/3/93 (Tackett) at 9.
Occurrence reports frequently note the need for greater care in handling nonambulatory residents and a need for staff training in lifting, transferring, and positioning residents (Thomas C , Harold B., Harvey B., George S., Linda S., Mary Lou F., Melanie H., Charles S., and Edward T.). U.S. Exh. 791. Harvey B., for example, was found with numerous bruises and scratches on his body which an Ebensburg physician concluded were
XIV-61

most likely caused by incorrect lifting procedures on more than one occasion. U.S. Exh. 131. The physician's sketch of the assorted injuries on Harvey's body fills an entire page. U.S. Exh. 131 at 00006153. It includes the following injuries: 11 bruises and scratches on his upper arms that were varying shades of colors from light blue and brown to dark purple; 4 red, brown, and purple bruises, scratches, and scabs on the back of his neck; and 10 brown and purple bruises and puncture like abrasions on his upper thigh. Id. Ebensburg staff involved with Harvey's care "indicated a deep concern for lifting training." Id. at 00006150. In other occurrence reports, staff seem to dismiss the injuries as inevitable or the normal risk of transferring a person with physical disabilities. Tr. 7/28/93 (McAllister) at 226. For instance, Beth S. was found with a fractured femur on April 16, 1993 which staff surmise may have occurred "simply" while she was being lifted or being changed. Id., U.S. Exh. 791. Paul G. lacerated his head on April 2, 1993 when his head hit the side of the bathtub while staff were transferring him. Ebensburg staff conclude "injury not preventable." Id. Duane P.'s arm was caught between the lift and the bath tub while he was being transferred on July 16, 1992. Staff excuse this incident as a "normal handling accident." Id.
Keystone has also had its "share" of staff injuries due to lifting. U.S. Exh. 604 (Bonfanti Dep.) at 16. Several weeks before Mr. Bonfanti was deposed in December 1992, two staff from Keystone were placed on disability leave because of injuries caused by lifting. U.S. Exh. 604 (Bonfanti Dep.) at 15-16.
XIV-62

6. Staff Training In Physical Management Is Inadequate At Ebensburg. Ebensburg staff do not receive adequate training in lifting and transferring residents with physical disabilities. This was reflected in the lifts and transfers observed by Ms. McAllister during her tour of Ebensburg. Tr. 7/28/93 (McAllister) at 234. All Ebensburg staff have not received a formal training program in body mechanics, transfer techniques, and positioning. Tr. 7/28/93 (McAllister) at 233. Instead, staff training consists of watching a video tape about moving boxes, rather than moving individuals with the types of physical challenges that Ebensburg residents pose. Id. at 232. Specific types of transfers are not demonstrated during staff training and the opportunity to practice transfers before being assigned to a unit is a hit or miss proposition, depending upon the size of the class. Id. Although it is accepted professional practice to require competency based training or return demonstrations in which staff must demonstrate their competency, Ebensburg did not even begin this training until June 23, 1993 —weeks before the trial began in this case. Tr. 9/17/93 (Arnall) at 161. The training was limited to lifting and transfers and did not cover repositioning residents. Tr. 9/17/93 (Arnall) at 176. As of September 17, 1993 - more than a month after the United States rested its case — only a fraction of staff had received competency based training. Tr. 9/17/93 (Arnall) at 105. Staff sometimes do not demonstrate their competency in all components of the lifting and transfer due to time constraints. Tr. 9/17/93 (Arnall) at 166. There are no outlines or reference materials for staff as part of the training. Tr. 9/17/93 (Arnall) at 164. Although restrictions are placed on staff when they are unable to perform a lift or transfer, Mr. Arnall does not know how these restrictions are monitored. Tr. 9/17/93 (Arnall) at 167. He also does not know whether
XIV-63

Ebensburg has any plans for follow-up monitoring at regular intervals to assess each staff person's continuing competency in lifting and transfers. Tr. 9/17/93 (Arnall) at 167. Prior to the competency based training in which he became involved in June, Mr. Arnall had not been involved in Ebensburg's orientation sessions for new employees. Tr. 9/17/93 (Arnall) at 160-161.
When Mr. Tackett started working in Keystone in the late fall of 1991, he was responsible for handling residents on his very first day without having had any training in how to handle them. Tr. 8/3/93 (Tackett) at 7-8. The only training that Mr. Tackett received in lifting and transferring Keystone residents during the entire time he worked there was "impromptu" and "learn as you go." Id. When staff are pulled from the building to which they are regularly assigned to work in another building, such as Keystone, they do not receive any training about the particular needs of the residents. U.S. Exh. 604 (Bonfanti Dep.) at 19. In particular, they do not receive any special training in lifting and transferring or bathing individuals at Keystone. U.S. Exh. 604 (Bonfanti Dep.) at 20-21.
It is common practice among physical therapists working with individuals with developmental disabilities to develop individualized written plans and photographic instructions for staff to follow in transferring and positioning people with significant physical disabilities. Tr. 7/28/93 (McAllister) at 64. Every Ebensburg resident who must be transferred and positioned does not have a specific individualized written plan or photographic instructions for transferring and positioning. Tr. 7/28/93 (McAllister) at 233. Mr. Arnall agrees that lifts should be individualized for clients if they have special needs.
XIV-64

Tr. 9/17/93 (Arnall) at 175-176. Yet, he did not know that Ebensburg residents did not have
individual plans. Tr. 9/17/93 (Arnall) at 176. 22/
The paraprofessional staff at Ebensburg also do not receive adequate training in
physical management techniques and issues. For example, Ms. Geriak, a LOTA at
Ebensburg, thinks that the LOTA's need more inservices. U.S. Exh. 615 (Geriak Dep.) at
113. There are changes occurring in the field of occupational therapy about which Ms.
Geriak would like to keep abreast. U.S. Exh. 615 (Geriak Dep.) at 82. In particular, Ms.
Geriak thinks there is a need to learn more and to increase the occupational therapists' skills
in the area of splinting. U.S. Exh. 615 (Geriak Dep.) at 113. She has asked for inservicing
but was told "no." U.S. Exh. 615 (Geriak Dep.) at 81.
Ms. Fagan is one of the two LOTA's assigned to Keystone House. She had never
worked with a population similar to the individuals at Keystone before she started working
there. U.S. Exh. 610 (Fagan Dep.) at 25. In addition, she has never received any training
either while she was working on her occupational therapy assistant degree, or after, that
specifically dealt with physical disabilities such as the types of disabilities that the people at
Keystone have. U.S. Exh. 610 (Fagan Dep.) at 25. Ms. Fagan did not receive any training
from Ebensburg about the specialized needs of individuals who live at Keystone before she
22/ Ebensburg belatedly began an effort to provide photographic instructions for residents in Laurel sometime during the summer of 1993. Tr. 10/15/93 (O'Brien) at 91. As of October 1993, however, this is the only living unit in which photographic instructions were developed. Id. There are only nineteen individuals who live in Laurel who use wheelchairs. U.S. Exh. 1015 (Laurel House). Mr. Arnall had never seen these pictures. Tr. 9/17/93 (Arnall) at 176. Although Mr. O'Brien testified on direct examination that the idea to take pictures came from Mr. Arnall and his staff, on cross-examination, Mr. O'Brien corrected his testimony and agreed that he did not in fact speak with Mr. Arnall about the positioning pictures. Tr. 10/15/93 at 91; Tr. 10/19/93 (O'Brien) at 82.
XIV-65

began her work there. U.S. Exh. 610 (Fagan Dep.) at 25. Ms. Fagan admits that she needs more training in positioning individuals with physical disabilities. U.S. Exh. 610 (Fagan Dep.) at 35. She states:
There might be something we need to know, you know, that we're not aware of that would help. Like when Suzanne [sic][McAllister] was here, that's what made me really feel that it would be great to know more. . . I want to leam more about it. I definitely do. U.S. Exh. 610 (Fagan Dep.) at 35, line 25; 36, lines 1-3, 11-12.
XIV-66

XV. DIRECT CARE STAFFING AT EBENSBURG IS INADEQUATE. There is no dispute that Ebensburg has an inadequate number of direct care staff.
Experts for the United States and staff at Ebensburg, including Ebensburg's facility director, agree that Ebensburg needs more direct care staff. Tr. 7/26/93 (Stark) at 222, 231; Tr. 8/4/93 (Amado) at 49-54; U.S. Exh. 600 (Bellomo Dep.) at 92-100; Bellomo Dep. Exh. 11; U.S. Exh. 608 (Devine Dep.) at 96, 98; U.S. Exh. 640 (Stratton Dep.) at 228; U.S. Exh. 615 (Goldschmidt Dep.) at 87-88; U.S. Exh. 604 (Bonfanti Dep.) at 99; U.S. Exh. 631 (Seymour Dep.) at 23-24; U.S. Exh. 623 (McGuire Dep.) at 44.
A. Ebensburg Is Not Meeting Its Direct Care Staff Quotas. On some occasions when Dr. Stark walked into a living area, there was only one staff person for 24 residents. Tr. 7/26/93 (Stark) at 169. The other staff were in the bathroom, charting, or on break. Tr. 7/26/93 (Stark) at 169. During his tours of Ebensburg, Dr. Amado also observed situations where there was insufficient direct care staff. Tr. 8/4/93 (Amado) at 48-49. For instance, during his 1992 tour, Dr. Amado walked into a day room in Sunset House at about 8:00 p.m. and found 22 residents sitting or walking around doing nothing. Not a single staff member was present when Dr. Amado arrived. Tr. 8/4/93 (Amado) at 63. Although Dr. Reid collected data on staffing levels during his tours of Ebensburg's day programs and living areas, he did not offer any testimony on the adequacy of the numbers of direct care staff at Ebensburg. Tr. 9/16/93 (Reid) at 128-129. The numbers of staff Dr. Reid observed as he conducted his tours are captured in United States' Exhibits 959-962. Dr. Reid's data reveals that in 1993, even as experts for the Commonwealth were
XV-1

touring Ebensburg, there were still insufficient numbers of direct care staff. For example, United States' Exhibit 959 is the data collected by Dr. Reid and his colleague on 13 of the living areas at Ebensburg between the hours of 3:15 p.m. and 5:10 p.m. on weekdays in February 1993. Dr. Reid's data reveals that Ebensburg was not meeting its own quotas in 10 of the 13 areas surveyed.!/ For example, when Dr. Reid entered Sunset House, East I at 4:30 p.m., there were 10 clients and one staff person. Similarly, when Dr. Reid left Sunset House, West I at about 4:45 p.m., there were 19 clients and 2 staff. United States' Exhibit 960 is the data collected by Dr. Reid and his colleague on 10 of the living areas at Ebensburg between the hours of 1:50 p.m. and 4:25 p.m. on weekdays in April 1993. For the seven areas on which Dr. Reid collected staffing data, three were not meeting quotas. In Villa West I, at 3:35 p.m., there were nine clients and one staff. United States' Exhibit 961 is the data collected in April 1993 in the day programming areas. It, too, reveals that there were areas out of compliance with Ebensburg's requirements. For instance, when Dr. Reid left one area of Gary Bain at 1:05 p.m., there were 10 clients and one staff, and when he arrived at a different area of Gary Bain at 1:25 p.m., there were seven clients and no staff.
Ebensburg administrators have also observed situations where residents are left with little or no staff on both the living areas and at day programs. For example, during an evening Justice Department tour on September 22, 1992, Mr. O'Brien confirms that there were eleven residents in a day room in Laurel House without any staff and only one staff with 12 residents in a day room in Sunset House. U.S. Exhs. 179, 180. On October 24,
V As reflected in U.S. Exh. 608 (Devine Dep.) Exh. 7, Ebensburg's standards generally require a 1:5 or 1:6 ratio on the first and second shifts during the weekdays. See discussion infra § XV.E at 12.
XV-2

1992, Mr. Bellomo observed 23 clients in East I at Keystone at noon, with only one staff who was putting clothes into a cart. U.S. Exh. 84. During his tour of Harmony House Learning Center on September 30, 1992, during day programming, Mr. Devine noted a staffing ratio of 1:11 on East 1 and that "we would not have met Title XIX Standards in the dayroom." U.S. Exh. 212. During that same observation tour, Mr. Devine spent a full half hour observing East II of Harmony House Learning Center. He documented that during that period, the ratio for ten minutes was 1:12, and the ratio was never better than 1:10. Mr. Devine observed several individuals sleeping and "no meaningful interaction." U.S. Exh. 212.
On the evening of July 13, 1992, Ebensburg's abuse investigator toured the living areas of Villa, Horizon, Harmony, Sunset and Keystone houses between the hours of 6:00 p.m. and 9:00 p.m. U.S. Exh. 614 (Fulton Dep.) Exh. 7. He recorded staffing information for 14 of the 16 living areas that he observed. Not one of the 14 areas that he observed that evening had a full complement of staff present at the time of his observations. For 7 of the 14 areas documented, the staff to client ratio was only one to eight.
Surveyors from the Association of Retarded Citizens have also documented instances of inadequate direct care staff. For instance, in June 1992, ARC surveyors toured Villa between 4:00 and 6:00 p.m. and found 24 residents and only 2 staff; one staff person was busy folding clothes. U.S. Exh. 934 at 521156.
B. Injuries And Abuse Occur When There Are Not Enough Direct Care Staff.
Employees who are the targets of abuse investigations have defended their actions or inactions by claiming that they had too many responsibilities to adequately attend to the needs
XV-3

of the clients. U.S. Exh. 614 (Fulton Dep.) at 131. Ebensburg's chief abuse investigator admits that the frustrations of taking care of so many individuals may have been a factor in abuse by direct care staff. U.S. Exh. 614 (Fulton Dep.) at 150-151; Fulton Dep. Exh. 3. For instance, Ebensburg investigated suspected abuse against Michael M. that occurred on Sunday, October 18, 1992 at 1:15 p.m. At the time of the incident, there were 2 direct care staff in the bath area with clients. One overheard the other cursing at Michael and hitting him. At the time of the incident, the 2 other direct care staff assigned to the living area were on break. There was a supervisor in the chart room, and not in the living area with the clients, at the time of the incident. Although the supervisor did hear the direct care staff yelling at Michael M., she failed to intervene. Id.
Ebensburg also investigated suspected abuse against Sandra W. Ebensburg's abuse investigator, Mr. Fulton, wrote a memo to Mr. Bellomo about his findings. U.S. Exh. 614 (Fulton Dep.) at 143-144; Fulton Dep. Exh. 4. Sandra was injured at 3:20 p.m. on her living unit, when minimum staffing on the unit was supposed to be 4, i.e., 3 direct care workers and one direct care supervisor. The supervisor was not on the unit at thetimeof the injury. Mr. Fulton asks whether Ebensburg could "justify" the staffing at the time of the injury. Id.
C. There Are Not Enough Staff To Implement Behavior Programs At Ebensburg.
Dr. Goldschmidt believes that Ebensburg needs more direct care staff. U.S. Exh. 615 (Goldschmidt Dep.) at 87-88. If there were more direct care staff, the individuals at Ebensburg could take less psychotropic medication and when the individuals became agitated and potentially dangerous to others, there would be enough staff to work directly with the
XV-4

agitated individual. U.S. Exh. 615 (Goldschmidt Dep.) at 88. Dr. Goldschmidt believes that some clients are "very violent and potentially dangerous and need more direct involvement [by staff] mostly for their own sake and to protect the other clients." U.S. Exh. 615 (Goldschmidt Dep.) at 89, lines 18-21. In addition, direct care staff are too busy with the custodial care of individuals to have time to observe the clients' behaviors and implement behavior programs. U.S. Exh. 615 (Goldschmidt Dep.) at 90. For instance, if a client pulls hair out and a one-to-one is required to implement a behavior program, that is not currently feasible. U.S. Exh. 615 (Goldschmidt Dep.) at 92. See also infra § V.D, V.E, and Vn.H.
D. The Commonwealth Refuses To Provide More Staff To Ebensburg. Direct care staffing at Ebensburg is "significantly below" the mean in other facilities in Pennsylvania. U.S. Exh. 600 (Bellomo Dep.) Exh. 11. There are only about 250 direct care staff out of the 811 full time equivalent staff employed at Ebensburg. Tr. 9/13/93 (Kastner) at 79; Def. Exh. HH at Table 9. Budgetary constraints have kept Mr. Bellomo from hiring direct care staff at Ebensburg. U.S. Exh. 600 (Bellomo Dep.) at 92. He has requested funding for more staff and authorization for additional staff positions from the Commonwealth and his requests have been denied. U.S. Exh. 600 (Bellomo Dep.) at 95-96, 97. In 1992 alone, Mr. Bellomo requested additional direct care staff at least two or three times from the Commonwealth and each time his request was disapproved. U.S. Exh. 600 (Bellomo Dep.) at 100. He requested additional staff "because of what I perceived potentially as an opportunity to make things better." U.S. Exh. 600 (Bellomo Dep.) at 92, lines 18-20.
XV-5

Some of Mr. Bellomo's requests for additional staffing were directly in response to the United States' lawsuit. U.S. Exh. 600 (Bellomo Dep.) at 101-102. For example, on October 19, 1992, he requested the authority to hire 50 direct care staff on a staggered basis over a six month period between September 1992 and March 1993. U.S. Exh. 600 (Bellomo Dep.) Exhs 10 & 11. By hiring 50 additional direct care staff, the staffing ratios at Ebensburg would be closer to a 1:4 ratio on the first and second shifts and 1:8 ratio on the third shift. U.S. Exh. 600 (Bellomo Dep.) at 114. Mr. Bellomo determined that Ebensburg could hire 50 additional staff and still be within the average per diem of other facilities in Pennsylvania. U.S. Exh. 600 (Bellomo Dep.) at 123.?/ His request for the 50 additional staff was not granted. U.S. Exh. 603 (Bellomo Dep.) at 30.
On October 19, 1992, Mr. Bellomo also requested six additional licensed occupational therapy aide positions for Ebensburg from the Office of Mental Retardation. U.S. Exh. 603 (Bellomo Dep.) at 31; Bellomo Dep. Exh. 10. He requested that they work from 11:00 a.m. to 7:00 p.m. to monitor, assist, and assess all dining programs in the facility during lunch and dinner. Id. He was also not granted the six additional LOTA positions. U.S. Exh. 603 (Bellomo Dep.) at 32.
When taking the number of residents and per diem into account, the operational costs for Ebensburg are more than a million dollars below the operable costs at other facilities in the Commonwealth of Pennsylvania. U.S. Exh. 603 (Bellomo Dep.) Dep. Exh. 11 at 1. To
V Ebensburg Center also operates for "significantly fewer dollars" than other mental retardation facilities operated by the Commonwealth of Pennsylvania. U.S. Exh. 600 (Bellomo Dep.) Exh. 11. Ebensburg Center's per diem was $182.45 for each resident during FY 91/92, whereas the average per diem statewide in Pennsylvania was $188.31. U.S. Exh. 600 (Bellomo Dep.) Exh. 11.
XV-6

hire the 50 direct care staff and 6 LOTA's that he requested, along with 4 LPN's, it would
cost the Commonwealth only slightly more than half a million dollars. U.S. Exh. 603
(Bellomo Dep.) Dep. Exh. 11 at 2. Mr. Bellomo felt that in order to put the State into a
"defensible" position for this litigation, it was necessary to hire these staff. U.S. Exh. 603
(Bellomo Dep.) Dep. Exh. 11 at 3. Despite the fact that he felt that Ebensburg would be
better served by hiring more staff than by spending significant dollars for litigation, he was
not given authorization to hire the direct care staff and LOTA's. U.S. Exh. 603 (Bellomo
Dep.) Exh. 11 at 3; U.S. Exh. 603 (Bellomo Dep.) at 30, 32.
The Office of Mental Retardation allocates a certain number of staff positions to each
State Center for the fiscal year. U.S. Exh. 635 (Sneed Dep.) at 120.!/ Staff at Ebensburg
were furloughed during February 1991 due to budgetary reasons. U.S. Exh. 635 (Sneed
Dep.) at 123. In addition, a hiring freeze was imposed on Ebensburg beginning November
1992. U.S. Exh. 635 (Sneed Dep.) at 124. The hiring freeze was in existence through
March 1993 and Dr. Sneed expected it to continue until June 1993. U.S. Exh. 635 (Sneed
U Dr. Sneed, Director of the Bureau of Direct Program Operations in the Office of Mental Retardation describes the funding process as follows: The Office of Mental Retardation submits a proposed budget to the Department of Public Welfare that reflects the minimum amount of funding needed for the residents of State facilities. U.S. Exh. 635 (Sneed Dep.) at 126. Generally, however, the proposed budget for staffing that OMR submits to DPW for State centers is a "maintenance" budget that does not project staffing increases. U.S. Exh. 635 (Sneed Dep.) at 117. The Department of Public Welfare has reduced the proposed budget for funding State centers submitted by the Office of Mental Retardation. U.S. Exh. 635 (Sneed Dep.) at 115. The Governor's budget office, in turn, has decreased the proposed budget, particularly with regard to staffing positions. U.S. Exh. 635 (Sneed Dep.) at 117, 118. The Governor's office does not consult the Office of Mental Retardation before reducing the proposed budget. U.S. Exh. 635 (Sneed Dep.) at 126. The State legislature has further reduced the budget and number of staff positions. U.S. Exh. 635 (Sneed Dep.) at 119.
XV-7

Dep.) at 126-127. The hiring freeze was imposed because there was a decrease in the Commonwealths's budget for State centers during the fiscal year and the Governor's budget office miscalculated the concomitant decrease in matching federal funds available for State centers. U.S. Exh. 635 (Sneed Dep.) at 125. Dr. Sneed, who was responsible for all stateoperated mental retardation facilities in Pennsylvania, recognizes that if a need arises at a State center that exceeds the allocated budget, the Office of Mental Retardation has "an obligation to be more creative or to go to bat for the persons we serve and bring it to the attention of our Deputy Secretary, Secretary and the Governor's office." U.S. Exh. 635 (Sneed Dep.) at 110, lines 16-20.
E. Ebensburg Administrators Have Repeatedly Requested Additional Staff. The number of staff assigned to each residential building at Ebensburg remained relatively constant for the six year period between July 1986 and July 1992. U.S. Exh. 608 (Devine Dep.) Exh. 7. All of the unit managers have requested additional staff from Mr. Devine throughout at least the past five years. U.S. Exh. 608 (Devine Dep.) at 132, 135. As of the end of December 1992, the number of staff at Ebensburg in each residential unit still did not meet the expectations of Ebensburg administrators. Unit managers have discussed with Mr. Devine the need for a 1:4 staffing ratios in their units. U.S. Exh. 608 (Devine Dep.) at 165. Most of the administrators believe that there should be at least 20 staff for the first and second shift and ten staff for the third shift in each of the five residential buildings. For example, Mr. Devine would "probably be pretty satisfied" if each unit had this staffing configuration. U.S. Exh. 608 (Devine Dep.) at 96, lines 14-16, 98. See also U.S. Exh. 604 (Bonfanti Dep.) at 22. Laurel House was the only residential
XV-8

building that had 20 staff assigned as of December 1992 and this was only for one of the shifts, excluding holidays and weekends. U.S. Exh. 608 (Devine Dep.) Exh. 7/7
Mr. Bonfanti believes that the individuals at Keystone need a 1:4 staff ratio to provide them with the care they require. U.S. Exh. 604 (Bonfanti Dep.) at 99. Among the benefits that he sees from a 1:4 staff ratio is providing individuals with additional time and attention, improving their health and safety, and reducing accidents. U.S. Exh. 604 (Bonfanti Dep.) at 100.
Mr. Seymour believes that, at a minimum, the staffing ratio should be 1:4.5 to meet the needs of individuals. U.S. Exh. 631 (Seymour Dep.) at 23. He arrives at this ratio, however, by taking fiscal restraints into account. U.S. Exh. 631 (Seymour Dep.) at 24. Without basing his opinion on fiscal restraints, Mr. Seymour believes that a 1:4 ratio should be in place to provide adequate services. Id. With a 1:4 ratio:
-individuals' safety would be enhanced; —staff would better be able to intervene in self-injurious behavior; —individuals' health would be better protected; —staff would be better able to provide functional, purposeful and useful activities; and —individuals' overall welfare would be enhanced. U.S. Exh. 631 (Seymour Dep.) at 24-25. Mr. McGuire believes that a ratio of one to four staff is needed in order to provide adequate care to the clients in Horizon House. U.S. Exh. 623 (McGuire Dep.) at 44. Client welfare is enhanced by having a one to four ratio. U.S. Exh. 623 (McGuire Dep.) at 52.
1/ There are fewer staff at Ebensburg on weekends than there are during the week. Tr. 8/4/93 (Amado) at 53. This raises additional concerns because Ebensburg does not provide any day programs on the weekends and residents are left to their own devices even more than they are during the week. Id.
XV-9

Client safety is better insured by having a one to four ratio. U.S. Exh. 623 (McGuire Dep.) at 52. The benefit of a one to four ratio is primarily in earlier intervention in situations that lead to altercations between individuals. U.S. Exh. 623 (McGuire Dep.) at 51.
There have been times that Mr. McGuire has not been able to achieve his goals given the level of staffing he currently has. U.S. Exh. 623 (McGuire Dep.) at 46. He has been frustrated in the area of functional programs because he does not have adequate staff to teach individuals the functional tasks of their programs. U.S. Exh. 623 (McGuire Dep.) at 46. There is also insufficient staff to provide adequate socialization with the clients during meal times. U.S. Exh. 623 (McGuire Dep.) at 47. Given the current level of staffing, Horizon is not able to implement small group programming to Mr. McGuire's satisfaction. U.S. Exh. 623 (McGuire Dep.) at 50. Mr. McGuire is not satisfied with the level of individualized attention from staff during program time. U.S. Exh. 623 (McGuire Dep.) at 53.
Ms. Pisula, who has headed the union representing direct care staff at Ebensburg for the past three-and-a-half years agrees that there are benefits to a one to four ratio, including increased individualized attention and occupying the individual's time, so that individuals have less time to do harm to each other. U.S. Exh. 626 (Pisula Dep.) at 44-45. In addition, with a one to four ratio, there is a better chance of intervening in aggressive or self-abusive behaviors, and that benefits the individuals' health, welfare and safety. U.S. Exh. 626 (Pisula Dep.) at 45. All individuals at Ebensburg would benefit from a one to four staff ratio because "the more staff you have, the better service you could deliver." U.S. Exh. 626 (Pisula Dep.) at 45, line 25 to 46, line 1.
XV-10

Other Ebensburg administrators acknowledge the benefits of increased staff ratios. For example, according to Mr. Devine, Ebensburg residents benefit from increased staff to client ratios because they receive "more individual care and attention and opportunities to do more things." U.S. Exh. 608 (Devine Dep.) at 95, lines 9-10. According to Dr. Stratton, more direct care staff would help improve the environmental deficiencies that exist at Ebensburg and would allow individuals to break into smaller groups. U.S. Exh. 640 (Stratton Dep.) at 228. In Dr. Stratton's opinion, Sunset and Keystone would greatly benefit from additional direct care staff. U.S. Exh. 640 (Stratton Dep.) at 228-229. Mr. Bonfanti thinks that an increase in staff at Keystone will "absolutely" enhance client welfare; "most certainly" better protect individuals' safety; and better protect client health. U.S. Exh. 604 (Bonfanti Dep.) at 24. Mr. Weimer believes that if there were additional staff on Sunset, the number of injuries would decrease. U.S. Exh. 642 at 74. He also believes that additional staff would "certainly" help Ebensburg achieve the goal of five hours of training programs off of the living units. U.S. Exh. 642 at 113.
Mr. Bellomo is ultimately responsible for deciding on staff ratios at Ebensburg. U.S. Exh. 608 (Devine Dep.) at 94. Mr. Bellomo has denied requests for additional staff from unit managers. U.S. Exh. 600 (Bellomo Dep.) at 142. For example, during February 1993, the unit manager in Horizon asked for more staff. U.S. Exh. 600 (Bellomo Dep.) at 143. Mr. Bellomo denied the request. Id. The rationale, in his words, was as follows:
I had three other quota increases sitting on my desk waiting for me to render a decision. So I could not give that particular unit manager everything he was asking for. Even though he may have had some reasonable plans. U.S. Exh. 600 (Bellomo Dep.) at 143, lines 17-21 (emphasis added).
XV-11

Mr. Devine prepared a chart that breaks down the census of each residential building at Ebensburg since 1986, the number of staff assigned for each of the three shifts (quota), and the staff-resident ratio. U.S. Exh. 608 (Devine Dep.) Exh. 7; U.S. Exh. 608 (Devine Dep.) at 83, 84, 89, 90.V Where there are 19 staff assigned to a building, one of the four living units only has four staff assigned. U.S. Exh. 604 (Bonfanti Dep.) at 21-22. When only 18 staff are assigned to a building, two of the four living units only have four staff assigned. U.S. Exh. 604 (Bonfanti Dep.) at 22. Based upon an average of 24 residents in a living area, when there are four staff assigned each staff person is responsible for six residents. When there are five staff assigned, four staff are responsible for five residents and one staff person is responsible for four residents. In actuality, therefore, the staffing ratios are actually lower (i.e., staff are responsible for a larger number of residents) than those reflected on Devine Deposition Exhibit 7, which only take the aggregate number of residents in a building and divide the number by the total number of staff assigned to the building.
As is apparent in Devine Deposition Exhibit 7, when the United States began its expert tours as part of the discovery process in this litigation August 1992, the number of staff assigned to duty in each residential building at Ebensburg began increasing. U.S. Exh. 608 (Devine Dep.) Exh. 7. In some situations, however, even with the increased number of staff, the actual staff-resident ratios as of December 1992 at Ebensburg was worse than it was in prior years. For instance, overall, the staff ratios in Horizon House were better
5_l Where there is a slash in the quota and ratio columns in the census/quotas/ratios chart, the first number that appears is the total number of staff and the ratio assigned to the building on weekdays. The number appearing after the slash is the total number of staff and the ratio assigned to the building on weekends and holidays. See, e.g.. U.S. Exh. 604 (Bonfanti Dep.) at 21-22.
XV-12

during July 1989 on all three shifts than the staff ratios in the succeeding years through
December 1992. The staff ratio in Sunset House on the third shift during July 1990 and
1991 was better than at any point in 1992. U.S. Exh. 608 (Devine Dep.) Exh. 7.
F. Staff Breaks Further Reduce The Number Of Staff Actually Present During Shifts.
The number of staff assigned to each residential building in Devine Deposition
Exhibit 7 (identified as "quota") only reflects the total number of staff assigned to the
building at the beginning of the shift, rather than throughout the duration of the shift. U.S.
Exh. 608 (Devine Dep.) at 100, 105. These numbers do not take into account the fact that
each staff person has a one hour break during the shift. U.S. Exh. 608 (Devine Dep.) at
100.V The number of staff that are actually present throughout the shift is therefore lower
during the time that staff are on their breaks. U.S. Exh. 608 (Devine Dep.) at 104-105.
Due to staff breaks, there are significant blocks of time during each shift where the staff ratio
falls below the minimum quotas set by Ebensburg.
Staff take their breaks on the first and second shifts during mealtimes and program
times.!/ Since each staff person has a one hour break during the shift, staff are on breaks a
V These breaks consist of two 15 minute "rest" breaks and a half-hour break for a meal. U.S. Exh. 608 (Devine Dep.) at 101; U.S. Exh. 604 (Bonfanti Dep.) at 25. V For instance, breaks at Keystone during the first shift are from 9:15 a.m. - 10:15 a.m., 10:45 a.m. - 1:00 p.m., and 1:15 p.m. - 2:15 p.m. U.S. Exh. 604 (Bonfanti Dep.) at 26. Breaks during the second shift are from 3:45 p.m. - 4:45 p.m., 6:00 p.m. - 8:00 p.m., and 9:15 p.m. - 10:15 p.m. Id. at 27. Breakfast at Keystone generally takes place between 7:20 a.m. and 9:30 a.m.; lunch generally takes place between 11:20 a.m. and 1:30 p.m.; and dinner takes place between 5:20 p.m. and 7 p.m. Id. at 40, 42, 43. Breaks at Laurel take place during approximately the same period of time. On first shift, the breaks are between 8:30 a.m. and 9:30 a.m., 10:45 a.m. and 12:25 p.m., and 1:00 and 2:00 p.m. On second
(continued...) XV-13

total of 4 hours during both the first and second shifts. When there are four staff assigned to a living area, they normally each take their break sequentially. U.S. Exh. 604 (Bonfanti Dep.) at 27. Consequently, there are only three staff (or a staff ratio of 1:8) for a total of at least four hours, or approximately one-half of the shift. When there are five staff assigned to a living area, three staff take their breaks sequentially and two staff take their break at the same time. U.S. Exh. 604 (Bonfanti Dep.) at 27; U.S. Exh. 611 (Ferut Dep.) at 21. As a result, for three hours during the first and second shift, there are four staff present for a ratio of 1:6. For one hour during the first and second shift, there are three staff present for a ratio of 1:8.
Staff breaks during the third shift result in situations where one staff person is responsible for 23 to 24 individuals. U.S. Exh. 623 (McGuire Dep.) at 59. For instance, as of December 1992, Keystone house had only nine staff assigned to the third shift. U.S. Exh. 604 (Bonfanti Dep.) at 25; U.S. Exh. 608 (Devine Dep.) Exh. 7. This means that one of the four living areas had three staff assigned and the remaining three had only two staff assigned. U.S. Exh. 604 (Bonfanti Dep.) at 25; U.S. Exh. 608 (Devine Dep.) at 101. Consequently, during both of the one hour breaks, or for two hours between the 11:15 p.m. - 7:00 a.m. shift, there is only one staff person to cover the 23 residents who live in the area. U.S. Exh. 608 (Devine Dep.) at 101-102, 103. Rather than a ratio of one staff person to 10.22 residents, the ratio during this two hour time block is really only one staff person to 23
V(.. .continued) shift, the breaks are between 3:30 and 4:445 p.m., 5:15 and 7:45 p.m., and 9:20 and 10:30 p.m. U.S. Exh. 631 (Seymour Dep.) Exh. 15.
XV-14

residents. According to Mr. Bonfanti, this happens "every night" at Keystone House. U.S. Exh. 604 (Bonfanti Dep.) at 29. A similar situation existed in Laurel House. As of November 1992, two of the four living areas had only two staff assigned during the third shift. U.S. Exh. 630 (Seymour Dep.) at 116. During the time that staff were on break in these living areas, there was only one staff for 24 residents. Id. at 116, 118.
As of the time of his deposition on December 2, 1992, Mr. Bonfanti had four direct care staff vacancies on the second shift for Keystone that had been unfilled for two months. U.S. Exh. 604 (Bonfanti Dep.) at 17. He had to rely on pulling staff from other units and overtime to cover these staff positions. U.S. Exh. 604 (Bonfanti Dep.) at 18. In general, Mr. Bonfanti has to rely on overtime "almost daily" to meet minimum staffing standards at Keystone. U.S. Exh. 604 (Bonfanti Dep.) at 144. He questions how effective staff can be working 16 hour days. U.S. Exh. 604 (Bonfanti Dep.) at 145.
Budgetary considerations dictate the amount of staff that are allocated to a particular unit at Ebensburg. U.S. Exh. 608 (Devine Dep.) at 169, 174. Ebensburg has not been able to meet the quotas set forth in U.S. Exh. 608 (Devine Dep.) Exh. 7 without resort to overtime on a weekly basis. U.S. Exh. 608 (Devine Dep.) at 129, 130, 233; U.S. Exh. 626 (Pisula Dep) at 47-48.V In addition, supervisors often have to work "in complement," which means working as a direct care staff person, in order to meet staff quotas. U.S. Exh. 608 (Devine Dep.) at 189, 207, 208; U.S. Exh. 608 (Devine Dep.) Exh. 3; U.S. Exh. 626
V Mr. McGuire, the Unit Manager at Horizon, admits that the utilization of overtime is an integral part of maintaining minimum staffing ratios. U.S. Exh. 623 (McGuire Dep.) at 63. He estimates that eight to ten shifts of overtime are required to meet minimum staffing levels during any given week at Horizon. U.S. Exh. 623 (McGuire Dep.) at 62.
XV-15

(Pisula Dep) at 47-48. Supervisors have frequently complained that they have had to work too many hours as direct care staff. U.S. Exh. 608 (Devine Dep.) at 210-211.!/ Supervisors have to work in complement on practically a daily basis and this has become the norm on the second and third shift at Ebensburg. U.S. Exh. 627 (Pisula Dep.) at 32. When supervisors are put into complement, they are performing two jobs and Ms. Pisula does not think supervisors can perform two jobs. U.S. Exh. 627 (Pisula Dep.) at 20. Moreover, staff are frequently "pulled" from their regularly assigned building to work in another building in order to meet staff quotas. U.S. Exh. 608 (Devine Dep.) at 222-223; U.S. Exh. 608 (Devine Dep.) Exh. 12; U.S. Exh. 626 (Pisula Dep) at 47-48. Mr. Devine recognizes that it is preferable to have the same staff work with the same residents, rather than having to pull staff from other buildings who are not familiar with the residents. U.S. Exh. 608 (Devine Dep.) at 227, 261. The union has also grieved the practice of pulling staff because direct care staff are more familiar with the individuals they serve on a daily basis and living areas function better when regular staff are serving the residents. U.S. Exh. 627 (Pisula Dep.) at 21-24. There would be less overtime, pulling of staff, and supervisors working in complement if there were more direct care staff at Ebensburg. U.S. Exh. 608 (Devine Dep.) at 208, 230-231, 233.
9J For example, United States' Exhibit 621 (Kleman Dep.) Exhibit 2, is a July 4, 1991 memorandum from Mr. Kleman to Mr. Bellomo. In it, Mr. Kleman recounts the difficulties that he was having performing his job as a residential services aide supervisor because during the preceding month, he had worked as an aide rather than a supervisor during 85% of the shifts he had worked in June. Mr. Kleman was working as an aide during this time due to a shortage of staff and in order that Ebensburg could meet the quota. U.S. Exh. 621 (Kleman Dep.) at 25; Kleman Dep. Exh. 2.
XV-16

Another way in which Ebensburg attempted to meet its staff quotas was by closing one of the residential buildings (Harmony House) and consolidating it with other units. U.S. Exh. 608 (Devine Dep.) at 60-61. This increased the number of people living in each building and resulted in what Mr. Bonfanti described as overcrowding in Keystone. U.S. Exh. 604 (Bonfanti Dep.) at 96.
Staff at Laurel House, including Betty Ferut, have expressed concerns to Ebensburg management about their ability to care for the individuals who live there because of the number of responsibilities they have. U.S. Exh. 631 (Seymour Dep.) at 106. One of Ms. Fenit's concerns is that direct care staff on the second shift have too much responsibility for ordering, logging, sorting and putting away individuals' clothes. U.S. Exh. 611 (Ferut Dep.) at 25; Ferut Dep. Exh. 1. She believes "second shift should be concentrated on the individuals and not having to worry about getting clothes put away." Id. She specifically made the recommendation that third shift, instead of second shift, should be responsible for these clothing duties after an incident on January 9, 1992 in which Eileen (Benita) B. was found coming out of the bathroom at 10:40 p.m. with blood on her face from lacerations on her eyelid and chin and feces smeared on her hands, face and feet. U.S. Exh. 611 (Ferut Dep.) Exh. 1. The laceration required sutures. Id. Staff did not witness how the injury occurred. Id. At the time at which the injury occurred, Ms. Ferut was in the office area logging clothes. U.S. Exh. 611 (Ferut Dep.) at 25; Ferut Dep. Exh. 1. The majority of direct care staff on West II agree with Ms. Ferut's concerns that clothing responsibilities take away from their client responsibilities. U.S. Exh. 611 (Ferut Dep.) at 27. Mr. Seymour, the Laurel House Unit Manager, admits that staff have expressed concerns to him about
XV-17

clothing responsibilities detracting from their ability to provide the necessary care to individuals at Laurel House. U.S. Exh. 631 (Seymour Dep.) at 109. No changes, however, have been made in the clothing responsibilities on second shift. U.S. Exh. 611 (Ferut Dep.) at 26.
XV-18

XVI. CONDITIONS DURING SURVEYS REFLECT EBENSBURG'S BEST EFFORTS. The United States announced each and every tour of Ebensburg before it occurred.
The United States' experts observed deficiencies at Ebensburg during their tours even though Ebensburg was on its best behavior during surveys. Mr. Bellomo agrees that during inspections of Ebensburg, "you would probably want to make sure that everything is as good as you can get it." U.S. Exh. 603 (Bellomo Dep.) at 178, line 24 through 179, line 1. In fact, he has expected things to be "perfect" when outside surveyors are touring and has issued memos when they are not. For instance, on August 13, 1992, Mr. Bellomo visited the Villa Learning Center and the JFK Area at 10:21 a.m., 20 minutes into day programs, and found that no one had arrived yet. He asked Mr. Devine to determine "why on a day when surveys are being conducted that we still don't have people here at mid-morning." U.S. Exh. 196; see also U.S. Exh. 162.
Both Mr. Tackett and Ms. Hebenthal agree that Ebensburg takes special steps when a survey is in process. For example, an inspection by the Association for Retarded Citizens occurred on one of the days that Mr. Tackett was working at Keystone. Tr. 8/3/93 (Tackett) at 19. On that day, the "typical" routine at Keystone was not followed. Id. As soon as the announcement was made that an inspection was taking place, he describes the transformation in preparation for the inspection as "incredible," "like night and day." Id. at 18. There were more staff than he can ever remember being present, including two physical therapists. Id. He was given a group of three residents to take outside. Id. Materials were brought out and suddenly a lot of attention was paid to the residents. Id.
XVI-1

Robin Hebenthal was sent to one of Ebensburg's living units, the Villa, on the Wednesday and Thursday of her second week of training at Ebensburg. Tr. 8/3/93 (Hebenthal) at 197. Ms. Hebenthal was training at Ebensburg during the last week in May and the first week in June 1992 in preparation for a position as a direct care staff person with mentally retarded individuals who are also mentally ill at the Commonwealth's Torrance State Hospital. Id. at 195. Ms. Hebenthal understands that the reason she was sent to the Villa was because surveyors were at Ebensburg and Ebensburg wanted to show a good staff ratio. Id. at 197. United States' Exhibit 59 shows that MA surveyors were at Ebensburg during the days that Ms. Hebenthal was assigned to Villa. The schedule of training activities given to Ms. Hebenthal at the beginning of her training did not include being assigned to Villa at the end of her training. Id. at 197. Ms. Hebenthal did not receive training regarding the needs of the individuals living at Villa or any other type of training when she was assigned to work at Villa. Id. at 198-199. When she was assigned to Villa, Ms. Hebenthal had never before worked with mentally retarded individuals, and she did not know what to do. Id. at 199.
Mr. Bellomo should have at least been aware that conditions at Ebensburg during surveys reflect the staffs best efforts because in June of 1990, a caller left a message on Ebensburg Center's Hotline pleading with Mr. Bellomo to give supervisors "a break" by not writing a memo to staff telling them "what a wonderful job they're doing." U.S. Exh. 931.7 The caller stated that staff were "not doing a good job" except when "somebody is around to see what they are doing." Id. In particular, the caller was concerned that during
V The caller did not identify him or herself. XVI-2

the MA survey which had just taken place, staff had "put on a good show" but "otherwise, it's sad what they're doing to the clients, or what they're not doing, which is more to the point." Id.
Although each of the experts for the United States' case-in-chief testified about what they observed during their tours of Ebensburg, four of the experts illustrated their testimony with videotapes, slides, and pictures. Each of these four experts testified that the vignettes on the videotapes and the scenes depicted in slides and pictures that were entered into evidence are characteristic of what they had observed during their tours of Ebensburg — regardless of whether the scenes were being filmed or not. See, e.g.. Tr. 7/26/93 (Stark) at 164, 165, 169; Tr. 7/28/93 (McAllister) at 223-224; Tr. 7/29/93 (McGowan) at 137; Tr. 8/1/93 (Russo) at 82, 86.
XVI-3

XVH. EBENSBURG IS TOO LARGE TO ADEQUATELY SERVE THE PEOPLE WHO LIVE THERE Dr. Stark believes that there are both too many people at Ebensburg and too many
people congregated together in one area. Tr. 7/26/93 (Stark) at 233-234. The result is a lack of individualization of services, which is the essence of providing services to people with mental retardation. Tr. 7/26/93 (Stark) at 65, 223. The large number of people at Ebensburg has also fostered a custodial care mode, as opposed to a habilitative one, in providing services to Ebensburg residents. Tr. 7/26/93 (Stark) at 223. Nancy Thaler, the Director of the State Office of Mental Retardation, admits that it is detrimental to the growth and development of individuals with mental retardation to congregate them in groups of 24 on one residential living unit where they spend the majority of their time. U.S. Exh. 870 (Thaler Dep.) at 57. Ms. Degretto, the Unit Manager at Villa, agrees that when 24 individuals are congregated together in one living area, aggression, self-abuse, and property damage increase as a result of the sheer number of people. U.S. Exh. 607 (Degretto Dep.) at 121, 122. She describes the scene at Villa when there are 24 individuals in one area getting ready for work as "bedlam." U.S. Exh. 607 (Degretto Dep.) at 123. Ms. Degretto has found that when individuals are in smaller groups, there are less injuries. U.S. Exh. 607 (Degretto Dep.) at 159. While Mr. Bellomo was in Laurel House on August 18, 1992 during one of Dr. Amado's tours of Ebensburg, Mr. Bellomo was not satisfied that the individuals in West II were engaged in sufficiently meaningful activity. U.S. Exh. 603 (Bellomo Dep.) at 160. There were about 18 women in an area, which he thought was too many people together. U.S. Exh. 603 (Bellomo Dep.) at 161. This is the same area from
XVII-1

which Diana D. frequently escapes because it is too noisy, there are too many aggressive people, and she just wants some quiet time to be able to look at a book or magazine. U.S. Exhs. 594, 594(a).
Both Dr. Stark and Ms. McAllister had significant concerns about overcrowding and the safety of individuals placed on the floor on mats while other residents are navigating in their wheelchairs. Tr. 7/28/93 (McAllister) at 228; Tr. 7/26/93 (Stark) at 164.7 The impression that Ms. McAllister had when she toured Ebensburg was one "of everything just being scattered around the room and haphazard." Id- at 228, lines 20-21. Mr. Fulton, who heads Ebensburg's risk management committee, has shared Ms. McAllister concerns. When he toured Keystone during the evening of July 13, 1992, he found it to be "extremely noisy" and "extremely cluttered." U.S. Exh. 614 (Fulton Dep.) Exh. 7.
State surveyors have also found Keystone to be overcrowded and unsafe. For example, in 1989, surveyors found that Keystone was so overcrowded, space was inadequate for staff and clients to maneuver. U.S. Exh. 55 at 2. In response to this deficiency, Ebensburg promised to reduce the census in Keystone. Id. When Harmony House was closed in June 1992, however, the census at Keystone increased from 88 to 94. U.S. 604 (Bonfanti Dep.) at 96. Mr. Bonfanti, the Unit Manager at Keystone, was concerned about the increase. In his words:
we knew darn well it's not going to work in Keystone. Given the carts, the chairs, there's no room. . . That's been one of my biggest complaints out there. You just can't move around
V United States' Exhibit 1023 contains examples of injuries that Ebensburg residents have sustained while crawling around the floor and on mats.
XVII-2

those bedrooms with those wheelchairs. It's tough on my staff, it's hard. It really is. U.S. 604 (Bonfanti Dep.) at 96, lines 4-6, 21-24. Mr. Bonfanti admits that Keystone is overcrowded and a reduction in the number of people who live in Keystone would enhance client welfare. U.S. 604 (Bonfanti Dep.) at 95, 98. Indeed, when State surveyors returned in 1992, they again cited Ebensburg for overcrowded conditions in Keystone. U.S. Exh. 67 at 00542862. In particular, they were concerned, as was Dr. Stark some seven months later, that areas were so congested, residents were placed on mats on the floor so close together that they were "touching each other." Id.; U.S. Exh.794 at 3.
XVII-3

XVIH. INDIVIDUALS REMAIN AT EBENSBURG IN SPITE OF DEFENDANTS' UNANIMOUS BELIEF THAT THEY WOULD BE BETTER SERVED IN THE COMMUNITY. In 1991 and 1992, more people were discharged from Ebensburg due to death than
due to community placement. Tr. 7/27/93 (Stark) at 68-69; U.S. Exh. 36 at 10; U.S. Exh. 37 at 15. Ebensburg placed three individuals into the community in 1991 and four in 1992. Id.
A. Defendants Recognize The Need For Community Placement. Without exception, defendants believe that all Ebensburg residents are capable of living in the community and would be better served in the community as opposed to living at Ebensburg. U.S. Exh. 870 (Thaler Dep.) at 23; U.S. Exh. 635 (Sneed Dep.) at 67-69; Tr. 10/14/93 (Bellomo) at 167; U.S. Exh. 600 (Bellomo Dep.) at 83-84; U.S. Exh. 603 (Bellomo Dep.) at 102; U.S. Exh. 639 (Stratton Dep.) at 18; U.S. Exh. 640 (Stratton Dep.) at 94; U.S. Exh. 628 (Ratchford Dep.) at 50-52. Before being appointed Director of the Commonwealth's Office of Mental Retardation, defendant Nancy Thaler was in charge of community services for the Department of Public Welfare ("DPW"). U.S. Exh. 870 (Thaler Dep.) at 9-10. Ms. Thaler does not believe that mentally retarded people should live in large facilities. She would like to see every person with mental retardation living in the community. "The question has been answered a thousand times in many environments and there's no doubt that large facilities must end." U.S. Exh. 870 (Thaler Dep.) at 57, lines 16-18. Ms. Thaler acknowledged that
some of the most meaningful things in an individual's life cannot occur in an institution, such
as the opportunity to establish and develop relationships with peers in the community who do
XVIII-1

not have disabilities and the ability to access all of what is available to everyone else in the community. U.S. Exh. 870 (Thaler Dep.) at 39. Ms. Thaler also acknowledged that isolation and segregation in the institution limits experiences in life, which means it limits the opportunity to grow and learn and expand and develop relationships. U.S. Exh. 870 (Thaler Dep.) at 39.
The Office of Mental Retardation's philosophy is that "all the people that we serve are capable of living in the community." U.S. Exh. 635 (Sneed Dep.) at 68, lines 15-16. Dr. Sneed believes that the needs of people with mental retardation are better met in a smaller setting and that people have "thrived" in this type of setting. U.S. Exh. 635 (Sneed Dep.) at 80.
Based upon his experience working for the Commonwealth and his experience as a surveyor for the Joint Commission on Accreditation of Hospitals for four years, surveying 200 sites in 37 different states, Mr. Snauffer knows what Pennsylvania is doing and what other states are doing. In his opinion, Pennsylvania is not where it should be. U.S. Exh. 634 (Snauffer Dep.) at 62. Pennsylvania is not moving individuals with mental retardation into the community, "when, in fact, they could live in the community." U.S. Exh. 634 (Snauffer Dep.) at 63, lines 4-5. According to Mr. Snauffer, Pennsylvania, although it has improved, has a lot to do. U.S. Exh. 634 (Snauffer Dep.) at 62. "[Pennsylvania is] not where it should be because we're dissatisfied with the way in which we deliver services. Dissatisfied in that we're not doing everything for people that we should be doing for people." U.S. Exh. 634 (Snauffer Dep.) at 62, line 23, through 63, line 2. "Pennsylvania has a lot to do relative to the provision of services to individuals living in institutions in
XVIII-2

Pennsylvania and also living in the community because there are individuals who have specific needs that are not being met, not being addressed." U.S. Exh. 634 (Snauffer Dep.) at 64, lines 10-15. Pennsylvania, Mr. Snauffer continues, is not where it wants to be with respect to providing opportunities for work and employment, for individuals living in both institutions and in the community. U.S. Exh. 634 (Snauffer Dep.) at 64. V Mentally retarded individuals in Pennsylvania "need to be able to exercise their rights and participate in citizenship," U.S. Exh. 634 (Snauffer Dep.) at 64, lines 23-24, and Pennsylvania is not where it wants to be on that. Id. Individuals with mental retardation "need opportunities to be integrated within the community and receive services within the community, whether or not they live at a state residential facility or whether they live" in the community. U.S. Exh. 634 (Snauffer Dep.) at 64, lines 18-21.
Mr. Bellomo also believes that all individuals who are currently residing at Ebensburg would benefit from living in the community. Tr. 10/14/93 (Bellomo) at 167. He believes that "congregate facilities are inferior to small community placements." U.S. Exh. 602 (Bellomo Dep.) at 9, lines 7-8.
Dr. Stratton testified that Ebensburg's overriding goal is to have all of its individuals placed in the community. U.S. Exh. 640 (Stratton Dep.) at 94. One of the goals of the psychology department is to prepare all of the individuals who live at Ebensburg for life in the community. U.S. Exh. 639 (Stratton Dep.) at 18.
V Only seven people at Ebensburg have jobs in the community. U.S. Exh. 37. The small number of client workers at Ebensburg has remained virtually unchanged since 1990. U.S. Exhs. 36, 37, 640 (Stratton Dep.) Exh. 17.
XVIII-3

According to the head of Ebensburg's Therapeutic Activity Services Department, Alan Ratchford, the goal of the Commonwealth of Pennsylvania, of Ebensburg Center, of the Therapeutic Activity Services Department, and Mr. Ratchford's personal goal is to prepare all of the individuals living at Ebensburg to leave Ebensburg and move into the community. U.S. Exh. 628 (Ratchford Dep.) at 47-48. Mr. Ratchford testified that there are many benefits of living in the community rather than living at Ebensburg, including normalization and exposure to many things that are not available at Ebensburg. U.S. Exh. 628 (Ratchford Dep.) at 48-49. "Living in a large facility, I think, has a lot of drawbacks." U.S. Exh. 628 (Ratchford Dep.) at 48 line 25 to 49 line 1. The benefits of living in a group home rather than a facility like Ebensburg include living with a lot fewer people; increased integration into the physical environment of the community; and a more normalized lifestyle. U.S. Exh. 628 (Ratchford Dep.) at 50.
B. Lack Of Funds Is Preventing Individuals Who Could Live In The Community From Moving Into The Community.
Ebensburg has specifically requested that every resident be placed in the community in the county of their origin. U.S. Exh. 602 (Bellomo Dep.) at 9. Mr. Bellomo has "made it known" to his superiors that every individual at Ebensburg "could profit from living in the community." U.S. Exh. 602 (Bellomo Dep.) at 14, line 25 through 15, line 1.
Of the 150 slots allocated by the Office of Mental Retardation for placing individuals in institutions into the community, however, none were allocated for Ebensburg residents for fiscal year 1992-93. U.S. Exh. 602 (Bellomo Dep.) at 6-7. Not a single person at Ebensburg is targeted for community placement in the 1993-94 fiscal year. U.S. Exh. 870 (Thaler Dep.) at 61.
XVIII-4

Funding is the main obstacle to providing sufficient community services to Ebensburg residents. U.S. Exh. 635 (Sneed Dep.) at 71; U.S. Exh. 634 (Snauffer Dep.) at 63; see also U.S. Exh. 640 (Stratton Dep.) at 204-205 (there are individuals at Ebensburg who should be living in the community, but the supports are not available at this time due, in part, to budgetary reasons). The legislature has not made funds available in order to establish sufficient community services. U.S. Exh. 634 (Snauffer Dep.) at 63. The Office of Mental Retardation has requested additional funds to place individuals from institutions into the community but the funds have not always been granted. U.S. Exh. 635 (Sneed Dep.) at 76. The lack of available community services enters into Ebensburg's decision about individuals' discharge plans. U.S. Exh. 640 (Stratton Dep.) at 206.
The community placement system in the Commonwealth is funded by the Department of Public Welfare. Typically, the Department allocates resources to each county government, and the counties decide who will receive services and in what form. U.S. Exh. 870 (Thaler Dep.) at 10-11. However, the Commonwealth has the ability to target a group and allocate resources to that group. U.S. Exh. 870 (Thaler Dep.) at 11. For instance, a group could be targeted because they are a class in litigation or because they live in a public facility that the Commonwealth wishes to downsize or close. U.S. Exh. 870 (Thaler Dep.) at 11.
The Commonwealth appropriated money in the 1992-93 budget and in the current 1993-94 budget to create community opportunities for individuals living in two state institutions - Western Center and Embreeville Center. U.S. Exh. 870 (Thaler Dep.) at 15. The Commonwealth has directed the counties to develop a budget request for the 1994-95
XVIII-5

budget that includes identification of the individuals from Western, Embreeville, and Ebensburg that could be served in the respective communities in the upcoming fiscal year. U.S. Exh. 870 (Thaler Dep.) at 28-29. The Commonwealth is interested in learning how many individuals at Ebensburg the counties could serve and what the cost would be. U.S. Exh. 870 (Thaler Dep.) at 29. Funds allocated by the Commonwealth for community services are matched by the federal government. U.S. Exh. 870 (Thaler Dep.) at 17.
The Office of Mental Retardation has control over community placements to the extent that it allocates financial resources to the County for community services. U.S. Exh. 635 (Sneed Dep.) at 71. The amount of funding that the Office of Mental Retardation requests for community placement are self-censored by what the Office thinks the Secretary for the Department of Public Welfare will honor. U.S. Exh. 635 (Sneed Dep.) at 76. Dr. Sneed "most certainly" wishes that he could direct more efforts and more of the Commonwealth's money away from institutions towards placing more residents into the community. U.S. Exh. 635 (Sneed Dep.) at 81.
C. Individuals Who Remain At Ebensburg Despite Determinations That They Would Be Better Served In The Community Are Being Harmed.
Dr. Amado found a plan for community placement in the record of every individual that he reviewed. Tr. 8/2/93 (Amado) at 43. However, Dr. Amado found that in many cases, the target dates for community placement for individuals identified as appropriate and ready for community placement have come and gone because the county to which the individual would return has no place for the individual. Tr. 8/4/93 (Amado) at 43-44. In other cases, the target date for community placement for individuals identified as appropriate and ready for community placement has been crossed out and a new date for community
XVIll-6

placement is picked in the future. For example, Dr. Amado found that a typical community placement plan at Ebensburg will note that "'There are no [community] openings for five years,' so the target date is set five years down the road." Tr. 8/4/93 (Amado) at 44, lines 8-10. Dr. Amado concluded that the community placement plans at Ebensburg have nothing to do with the individuals who live at Ebensburg, but are dictated by the community living spaces in the counties in the Commonwealth. Tr. 8/4/93 (Amado) at 44. Dr. Stark believes that, as is being done in other states, Ebensburg must develop a plan to place residents in the community. Tr. 7/26/93 (Stark) at 236.
Individuals who have been identified as appropriate and ready for community placement who remain at Ebensburg are being harmed while they wait for openings in the community. For instance, as early as 1991, Ebensburg staff concluded that Sandra W. needed to live in an environment that was more enriched than the environment at Ebensburg. Tr. 8/2/93 (Russo) at 70. Staff determined that the environment at Ebensburg is inappropriate for Sandra. Tr. 8/2/93 (Russo) at 70. Since this determination, Sandra has both suffered and caused many significant injuries and has been restrained more than 50 times while she awaits placement in the community. Id.; U.S. Exhs. 42(c), 993. Since 1991, she has been bitten 16 times; has banged her face on the floor while being placed in floor control due to her behaviors, and lost three teeth; was pushed, resulting in 12 sutures to her head; was kicked several times in the face; and tore off four of her toenails. Tr. 8/2/93 (Russo) at 70; U.S. Exh. 958. Between January 1991 and August 1993, Sandra bit her peers on 14 occasions, including biting off a piece of Debra S.'s nose. U.S. Exhs. 267(c), 958.
XVIII-7

As far back as August 1988, Dr. Goldschmidt, Ebensburg's consulting psychiatrist, stated that Clifford P. need to be in another setting, either a group home or university facility for rehabilitation. U.S. Exh. 440 at 1; U.S. Exh. 440(a) at 390371. Dr. Goldschmidt believed that his inappropriate behaviors were learned behaviors from years of institutionalization and might have been avoided if he had grown up in a different setting. Id. In September 1990, Clifford's psychologist recommended in his annual review that Ebensburg should "seek alternative placement in a community living or other facility affording opportunity for social development." U.S. Exh. 440 at 1; U.S. Exh. 440(a) at 61033. In November 1990, an Ebensburg staff person noted that "Clifford has few peers that he is willing to interact with during structured activities." U.S. Exh. 440(a) at 610361. The staff person stated "I also feel that Clifford will continue to regress unless a suitable community living arrangement can be found for Clifford." Id. For the next two years, Clifford's psychologist made the same recommendation. U.S. Exh. 440 at 1, 2; U.S. Exh. 440(a) at 610333, 390116. Mr. Bellomo also believes that Clifford should live in the community. Tr. 10/14/93 (Bellomo) at 116. Clifford is still at Ebensburg and is still exhibiting his "learned" inappropriate behaviors. Tr. 10/14/93 (Bellomo) at 120, 123.
In September 1992, James W. was severely injured by a peer. Tr. 7/26/93 (Weakland) at 196, 198. James suffered three broken ribs, a punctured and collapsed lung, internal bleeding, including two quarts of blood drained from his stomach with a tube, and a ruptured spleen, which had to be removed. Tr. 7/26/93 (Weakland) at 196; U.S. Exh. 501(dd). Following the September 1992 injury, James' Unit Manager wrote a memo pursuant to his responsibility to "establish a safe living area for [James W.] and his peers."
XVIII-8

James' Unit Manager wrote that "[i]deally, a community placement in a small CLA would best serve to meet his many personal daily needs in the most quiet, unrestricted environment." U.S. Exh. 501(dd) at 200339. James remains at Ebensburg. Tr. 7/26/93 (Weakland) at 186. Since September 1992, James has been injured several times. U.S. Exhs. 135, 136.
In July 1986, an episode of agitation, self-injury and aggression resulted in John C.'s placement at Ebensburg. U.S. Exh. 156. Before he moved to Ebensburg, John C. had been living in the community. U.S. Exh. 156. Shortly before he moved to Ebensburg, John was seen in his community group home by a psychologist from the Kennedy Institute. U.S. Exh. 156. A few days after he moved to Ebensburg, John was seen at the Kennedy Institute by a psychiatrist and a physician. U.S. Exh. 156. The Kennedy Institute recommended that John be placed in a "controlled environment with at least two-to-one staffing availability for intense programming periods, where he has access to a daily activity program. This environment should optimally be one of a dual diagnosis facility that can attend to his psychiatric and developmental disabilities concurrently." Id. at 1. Following this intense programming period, the doctors at the Kennedy Institute anticipated that John would be transferred back to the community. Id. at 2. Instead of being placed in a dual diagnosis facility or other similar controlled environment, followed by return to the community, John has remained at Ebensburg since that 1986 consult. In the 15 months between January 1991 and April 1992, Ebensburg restrained John for his behavior 50 times — 31 times in a restraint jacket, three times in floor control, and 16 times using emergency chemical
XVIII-9

restraints. U.S. Exh. 993; see also United States' Exhibit 222 for photographs of John's straight jacket.
D. Ebensburg's Community Placement Plans Depart From Accepted Professional Standards.
Ebensburg's community placement plans do not comport with accepted professional standards. Tr. 8/4/93 (Amado) at 43. They are not individualized and do not specify skills that need to be worked on to facilitate community placement. Tr. 8/4/93 (Amado) at 43. Oftentimes, the community placement plan objective has nothing to do with the needs of the individual — it is a function of the needs of the county. Tr. 8/4/93 (Amado) at 44. Representatives from the county of the resident's origin are required by Pennsylvania law to participate in residents' annual reviews, but they do not consistently attend the reviews, sometimes due to budget problems. Tr. 10/15/93 (Bellomo) at 36-37. Dr. Amado also testified that Ebensburg staff do not have adequate guidance to tailor their training programs to prepare individuals at Ebensburg to live in the community. Tr. 8/4/93 (Amado) at 98-99. In August 1992, the IOC surveyors found that community living skills are not adequately addressed by Ebensburg. U.S. Exh. 67 at 542851.
XVIH-10

XIX. THE DEFENDANTS HAVE BEEN AWARE OF THE DEFICIENCIES AT ISSUE IN THIS LAWSUIT FOR A LONG PERIOD OF TIME.

The defendants have been aware of the significant deficiencies at Ebensburg at issue

in this lawsuit since at least 1987 and, in some cases, for more than a decade. In 1987, the

Department of Justice notified defendants of the conditions at Ebensburg that were depriving

the residents who are confined there of their constitutional rights. U.S. Exh. 638 (Sponsky

Dep.) Exh. 49. As far back as 1987, the United States advised the Commonwealth of

serious problems in need of correction. Based upon the United States' notification, the

Commonwealth was aware that Ebensburg:

•

was failing to provide Ebensburg residents a reasonably safe environment and

that injuries due to behaviors were excessive;

•

had insufficient numbers of direct care staff at Ebensburg and that this was

leading to preventable injuries and failures to implement behavior programs;

•

was failing to provide its residents with minimally adequate training programs,

and, as a result, its residents were being unduly restrained and injured;

•

was failing to provide residents with self-injurious and physically abusive or

destructive behaviors with behavior programs to address these behaviors; the Commonwealth

was also notified that the behavior programs that did exist were "so deficient as to fall below

the level of any acceptable professional standard;"

•

needed to develop adequate behavior management programs and integrate these

with the use of psychotropic medications in order to reduce the use of chemical restraint at

Ebensburg;

•

was not providing residents "essential" physical therapy services, placing its

residents at undue risk of contractures, bodily deformity, and other serious threats to physical

health. The Commonwealth was notified that both the number and competency of the

physical therapists at Ebensburg were deficient;

•

had an inadequate evaluation process for determining who was in need of

physical therapy;

XIX-1

•

was not providing residents with adequate and appropriate wheelchairs;

instead, wheelchairs were ill-fitted or broken, thereby causing new physical problems or

exacerbating old ones;

•

did not provide individualized health care plans to identify and provide for

each resident's needs; and

•

had inadequate infection control practices.

In 1990, following tours by the Department of Justice to determine which corrections,

if any, the defendants had made at Ebensburg, the United States again notified the

Commonwealth that residents confined at Ebensburg continued to be subjected to conditions

that deprived them of their constitutional rights. U.S. Exh. 638 (Sponsky Dep.) Exh. 50.

These conditions included:

• continuing problems in behavior management services;

• excessive injuries due to behaviors;

• a "significant" number of residents who needed behavior programs and did not have them;

• "most of the existing [behavior programs] are too similar to reflect the individual needs of the resident;"

• a systemic failure to implement behavior programs, resulting in otherwise preventable injuries;

• an excessive use of physical and chemical restraints as substitutes for behavior programs;

• continuing deficiencies in physical therapy services, including the fact that residents were suffering injuries as a result of broken or ill-fitting wheelchairs and the fact that residents were deteriorating as a result of lack of support afforded by Ebensburg's wheelchairs;

• insufficient communication between the physical therapy department and occupational therapists;

• failing to provide adequate medical care to Ebensburg residents;

XIX-2

• failing to feed residents safely as evidenced by the United States' experts observing residents coughing and choking on food and mucus during meals;
• residents facing serious risks of aspiration and malnutrition;
• inadequate nutritional assessments;
• failure to document actual nutritional intake;
• incomplete medical records that frequently omitted essential and/or current information, including information about recent hospitalizations;
• inadequate psychiatric care, including a failure to appropriately diagnose residents' psychiatric problems; the United States specifically advised the Commonwealth that adequate evaluation and diagnosis are essential in selecting the appropriate psychotropic drug, if any, and evaluating the efficacy of treatment and that Ebensburg's failure to do this departed from generally accepted professional standards;
• inadequate neurology services, including the practice of maintaining anticonvulsant polypharmacy, placing the long term health of its residents at risk;
• keeping residents on low, questionably effective doses of anticonvulsants for prolonged periods of time;
• erratic documentation and description of seizure activity, impeding efforts to reduce seizure activity;
• reliance on multiple medications; and
• direct care staff who were inadequately trained and improperly responding to residents' maladaptive behaviors.
In addition to the Commonwealth being on notice through the United States'
investigatory findings, the Commonwealth was also on notice of deficiencies at Ebensburg
through its own State surveyors who inspect Ebensburg two times each year to determine its
compliance with Title XIX federal regulations (referred to herein as "MA surveys") and once
a year to determine whether the care of specific individuals complies with Title XIX federal
regulations (referred to herein as "IOC surveys" or inspection of care surveys). Tr.
XIX-3

10/13/93 (Bellomo) at 157-159. State surveyors have consistently identified deficiencies in mealtime practices, active treatment, lack of staff interaction, lack of meaningful activities, lack of privacy, failure to provide for residents' basic care needs, and inadequate behavior management practices, psychiatric treatment, data collection, and medical record keeping. U.S. Exhs. 48-67; 668; 779; 792; 794. In the face of repeated, persistent deficiencies at Ebensburg, State surveyors informed Mr. Bellomo in January 1993 that Ebensburg has had a number of deficiencies that it failed to correct following the 1990 and 1991 surveys and which still needed improvement in 1992. U.S. Exh. 67. The State surveyors concluded that Ebensburg's corrective action plans in areas in which there have been repeated deficiencies over the years have simply "not been successful." U.S. Exh. 67 at 054287.
Respectfully submitted, James P. Turner Acting Assistant Attorney General Civil Rights Division
Robinsue Frohboese Richard J. Farano Judith C. Preston Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section P.O. Box 66400 Washington, D.C. 20035-6400
XIX-4

 
 U.S. v. Pennsylvania
MR-PA-006-013
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN 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; Alan M. Bellomo, Director, Ebensburg Center;
Defendants.

Civil No. 92-33J Hon. D. Brooks Smith

APPENDIX TO UNITED STATES' PROPOSED DETAILED FINDINGS OF FACT

Tab A B C
D
E
Exhibit 89 90 91 92 268 (a) 268 (b) 273 279-S 348
360 575 589-S

LIST OF ATTACHMENTS Attachment Description
Index To Deposition Testimony Acronyms Qualifications And Methodologies Of Experts For The United States Summaries Of The Impact Of Ebensburg's Unconstitutional Care On Selected Residents Papoose Board/ Emergency Chemical Restraint
Exhibit Description Number Of Reported Injuries Causes Of Injuries During 1992 Number Of Injuries Related To Behaviors Number Of Unknown Injuries Barbara K. - Sample Of Seizure Injuries Ronald A. - Sample Of Seizure Injuries Examples Of Chokings Greg A. - Incidents And Ebensburg's Response Ebensburg's Response To Witnessed And Suspected Bites Inflicted By George F. Eileen G. - Injuries Pattern Of Harm For Ebensburg Residents Injuries Occurring While Staff Are Involved With Meals, Bathing, Toileting, And Medication Administration

590
644 645 646 668 777 778
779
780 791 792-S 793 794
926 985 (a) 998

Sample Of Incidents At Ebensburg Where Staff Were Unaware Of Pica Until Individual Found In Distress Or Foreign Object Found In Feces Or Vomit
Human Bites Suffered By Maryann R.
Human Bites Suffered By Michael B.
Human Bites Suffered By Larry D.
Examples Of Deficiencies Found By The Commonwealth Of Pennsylvania During Mealtimes At Ebensburg (1983 - 1992)
50 Months Of Injuries At Ebensburg (January 1989 To February 1993)
Andrew H. - Injuries And Ebensburg's Response
Andrew H. - Injuries Caused And Suffered From Aggressive Acts
Deficiencies Found By The Commonwealth Of Pennsylvania In
Data Collection
Behaviors Not Addressed In Behavior Plans
Examples Of Injuries Occurring During Handling, Lifting, Or Transferring of Individuals Examples Of Deficiencies Found By The Commonwealth Of Pennsylvania Involving Lack Of Active Treatment
Examples of Deficiencies Found By The Commonwealth Of Pennsylvania Involving Behavior Programs
Examples Of Deficiencies Found By The Commonwealth Of Pennsylvania Involving Lack Of Meaningful Activities And Lack Of Adequate Staff Interaction In Living Units
Human Bites Suffered By Ebensburg Residents
Incidents Occurring While Staff Are Involved With Meals, Bathing, Toileting, and Medication Administration
Incidents Of Floor Control Since Ebensburg Eliminated Use Of Papoose Board

INDEX TO DEPOSITION TESTIMONY OF EBENSBURG STAFF AND COMMONWEALTH OF PENNSYLVANIA OFFICIALS

Alan Bellomo:

Director of Ebensburg Center since 1985. Tr. 10/13/93 at 130. Since June 1991, has also been the Director of Altoona Center. Id.

Richard Bonfanti:

Unit Manager of Keystone since December 1988. U.S. Exh. 604 (Bonfanti Dep.) at 9.

William Bordner:

MR facility surveyor for the Commonwealth's Bureau of Quality Assurance, Division of Long Term Care since 1990. U.S. Exh. 605 (Bordner Dep.) at 13-15.

Irvin Chamovitz:

Consultant neurologist for Ebensburg since about 1970 except for a five year period in the late 1980's. U.S. Exh. 606 (Chamovitz Dep.) at 9.

Deborah Degretto:

Unit Manager of Villa since 1989. U.S. Exh. 607 (Degretto Dep.) at 9, 24.

David Devine:

Director of Residential Unit Management (DRUM) since October 1980. U.S. Exh. 608 (Devine Dep.) at 13, 68.

Claire Domino:

Residential Services Supervisor (RSS) at Keystone since 1986 and also serves as a Qualified Mental Retardation Professional (QMRP) for Keystone clients. U.S. Exh. 609 (Domino Dep.) at 8, 9, 13.

Susan Fagan:

LOTA at Ebensburg since October 1977. U.S. Exh. 610 (Fagan Dep.) at 9-10. Has worked as a LOTA at Keystone since 1988. Id. at 15.

Betty Ferut:

Residential Services Aide (RSA) who has worked on the second shift in West JJ in Laurel House since 1984. U.S. Exh. 611 (Ferut Dep.) at 10-12.

John Fris:

Chief Pharmacist at Ebensburg since about 1983. U.S. Exh. 612 (Fris Dep.) at 10-11.

A-l

Mary Frye:
David Fulton: Lana Geriak: Pauline Goldschmidt: Lois Graham:
Spencer Hauenstein:
Tom Huber: Elwood Kleman:
Velda Malloy:
Michael McGuire:

LOTA at Ebensburg since June 1977. U.S. Exh. 613 (Frye Dep.) at 8-9. Has been the occupational therapy representative on the Dysphagia Team since it was formed in June 1990. Id. at 12, 13, 14.
Safety Manager at Ebensburg since 1985. U.S. Exh. 614 (Fulton Dep.) at 9.
LOTA at Ebensburg since 1985. U.S. Exh. 615 (Geriak Dep.) at 8, 11, 13.
Consultant psychiatrist from 1986 until July 1993 when she resigned. U.S. Exh. 615 (Goldschmidt Dep.) at 11; Tr. 10/19/93 (O'Brien) at 81-82.
Director of Occupational Therapy Services at Ebensburg from 1988 through 1993. U.S. Exh. 617 (Graham Dep.) at 9. Had worked as an Occupational Therapist at Ebensburg since 1984. Id. at 10.
Physical Therapist who worked at Ebensburg for one day a week between July 1991 and December 1992. U.S. Exh. 122 (Hauenstein Dep.) at 10, 11. Spent approximately 70% of his time at Keystone. Id. at 49.
Coordinator of speech and hearing services at Ebensburg since July 1979. U.S. Exh. 620 (Huber Dep.) at 9, 11.
Recently became a Residential Services Worker (RSW) in the Villa. Worked first as a residential services aide and then as a residential services aide supervisor at Ebensburg since 1982. U.S. Exh. 621 (Kleman Dep.) at 10-11.
Registered Nurse Supervisor (RNS) who has worked at Ebensburg since 1963. U.S. Exh. 622 (Malloy Dep.) at 7-8. Has been the nurse supervisor who is responsible for Keystone since January 1992. Id. at 8. Over the years, she has worked in every building at Ebensburg. Id. at 9.
Unit Manager of Horizon since February 1991. U.S. Exh. 623 (McGuire Dep.) at 9.
A-2

Richard O'Brien: Jeanne Pisula:
Don Ratchford: Lois Schofield: Frank Seymour: Edward Shertz: Ralph Sneed:
William Snauffer: Carole Sponsky: Marcia Stiles:

Director of Program Services at Ebensburg since 1971. Tr. 10/15/93 (O'Brien) at 65.
Worked at Ebensburg since 1972. U.S. Exh. 626 (Pisula Dep.) at 24. For most of the past 15 years, has worked as a residential services aide in Sunset House. Id- at 8-9. Ms. Pisula has been president of a union representing 600 employees of Ebensburg since 1989. U.S. Exh. 626 (Pisula Dep.) at 2425.
Director of Therapeutic Activity Services since 1984. U.S. Exh. 628 (Ratchford Dep.) at 11.
LOTA who works three days a week at Ebensburg. Worked at Keystone between 1989 -May 1992. U.S. Exh. 629 (Schofield Dep.) at 8, 11.
Unit Manager of Laurel House since February 1991. U.S. Exh. 630 (Seymour Dep.) at 10.
Medical Director at Ebensburg since August 1986. U.S. Exh. 632 (Shertz Dep.) at 9.
Director, Bureau of Direct Program Operations in the Office of Mental Retardation with the Pennsylvania Department of Public Welfare. U.S. Exh. 635 (Sneed Dep.) at 12. In this capacity, Dr. Sneed was Mr. Bellomo's immediate supervisor. Id. at 41. Dr. Sneed held this position from June 1989 through 1993. Id. at 12.
Chief of the Division of Program Management for the Commonwealth's Office of Mental Retardation since 1985. U.S. Exh. 634 (Snauffer Dep.) at 14-15.
Director of Nursing at Ebensburg since June 1989. Was Acting Director of Nurses between December 1988 and June 1989. U.S. Exh. 636 (Sponsky Dep.) at 13. Has worked at Ebensburg for the past 32 years. Id. at 16.
Registered Nurse Supervisor at Ebensburg for the past 14 years. Serves as infection control coordinator at Ebensburg and was appointed to the Dysphagia Team in September 1992. U.S. Exh. 638(a) (Stiles Dep.) at 9, 56-57.
A-3

James Stratton: Nancy Thaler:
Kathleen Wagner: Wayne Weimer: Sharon Zoskey:

Psychology discipline coordinator at Ebensburg for about 10 years. U.S. Exh. 639 (Stratton Dep.) at 11. Has worked at Ebensburg since 1976. Id. at 15.
Deputy Secretary of the Pennsylvania Department of Public Welfare since January 1993. Responsible for all the services for individuals in the Commonwealth with mental retardation - what the Commonwealth is going to do, how they are going to do it, and when they are going to do it. U.S. Exh. 870 (Thaler Dep.) at 19.
Speech and hearing specialist at Ebensburg who has also served as the head of the Dysphagia Team since its inception in June 1990. U.S. Exh. 641 (Wagner Dep.) at 11,12, 25.
Unit Manager of Sunset since 1978. U.S. Exh. 642 (Weimer Dep.) at 10.
LOTA at Ebensburg since 1985. U.S. Exh. 643 (Zoskey Dep.) at 8.

A-4

AAMR: ARC: AAUAP: ATP: BIC: CRIPA: DPW: DRO: EEG: EFA: EPS: GER: GI: HCFA: ICF/MR: IDT: IHP: IM: IOC: IV: JAMA:

ACRONYMS American Association on Mental Retardation Association for Retarded Citizens American Association of University Affiliated Programs Active Treatment Plan (also known as IHP—Individualized Habilitation Plan) Behavior Intervention Committee Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 et seg. Department of Public Welfare Differential reinforcement of other behavior Electroencephalogram Epilepsy Foundation of America Extra-Pyramidal Symptoms Gastroesophageal reflux Gastrointestinal Health Care Financing Administration Intermediate Care Facility for the Mentally Retarded Interdisciplinary Team Individualized Habilitation Plan (also known as ATP—Active Treatment Plan) Intramuscular medication Inspection of Care Survey Intravenous medication Journal of the American Medical Association

B-l

LOTA: MA Survey: MRUM: NMS: OMR: OT: PAB: PO: PSA: PT: PTA: QMRP:
RSA: RSAS: RSW: SIB: TD: Title XIX:
UAP:

Licensed Occupational Therapy Assistant
Medical Assistance Survey Mental Retardation Unit Manager Neuroleptic Malignant Syndrome Office of Mental Retardation Occupational Therapy/Occupational Therapist Professional Advisory Board of the Epilepsy Foundation of America Oral medication Psychology Services Associate Physical Therapy/Physical Therapist Physical Therapy Aide Qualified Mental Retardation Professional (term defined by Title XTX regulations § 483.430. Def. Exh. T.) Residential Services Aide Residential Services Aide Supervisor Residential Services Worker Self-Injurious Behavior Tardive Dyskinesia
Federal law creating ICF/MR's, 42 U.S.C. § 1396 et sea.; and regulations promulgated thereunder and used to survey facilities, 42 C.F.R. § 435.1009 et seq.. University affiliated program (or facility)

B-2

QUALIFICATIONS AND METHODOLOGIES OF THE UNITED STATES' EXPERTS
The United States called ten expert witnesses, including five physicians, a nurse, a
physical therapist, and three Ph.D. psychologists. A brief summary of their qualifications
and methodologies follows:
Norberto Alvarez, M.D., was accepted as a medical expert qualified to testify about neurological services and issues surrounding neurological disorders among the developmentally disabled. Tr. 7/30/93 (Alvarez) at 45.
Dr. Alvarez is a pediatric neurologist who is licensed to practice medicine in Massachusetts. Tr. 7/30/93 (Alvarez) at 40. Dr. Alvarez currently works on the medical staff of the Children's Hospital in Boston where he works as a staff physician in the neurology department. Tr. 7/30/93 (Alvarez) at 42-43. Dr. Alvarez is also currently an assistant professor in neurology at Harvard Medical School. Tr. 7/30/93 (Alvarez) at 45.
Dr. Alvarez is board certified by the American Academy of Neurology and Psychiatry with a special competence in child neurology. Tr. 7/30/93 (Alvarez) at 42. He is also board certified by the American Board of Electroencephalography. Tr. 7/30/93 (Alvarez) at 42.
Dr. Alvarez has received extensive training in neurology. For two years, beginning in 1971, Dr. Alvarez was trained in neurology at Wayne State University. Tr. 7/30/93 (Alvarez) at 40. From 1973-75, Dr. Alvarez continued his neurology training as a fellow at Children's Hospital in Boston where he trained in electroencephalography, epilepsy, pediatric neurology and general neurology. Tr. 7/30/93 (Alvarez) at 41-42. Dr. Alvarez then spent one year working as a fellow in training at the Developmental Evaluation Clinic, which is a program devoted to persons with mental retardation and physical handicaps. Tr. 7/30/93 (Alvarez) at 42. In that year, he also trained in psychiatry. Tr. 7/30/93 (Alvarez) at 42. During that year, ninety-nine percent of the patients that Dr. Alvarez treated were handicapped and mentally retarded. Tr. 7/30/93 (Alvarez) at 42.
Dr. Alvarez has a great deal of experience working at state-run residential facilities for the developmentally disabled like Ebensburg Center. For example, as part of his responsibilities at Children's Hospital, Dr. Alvarez also provides neurological consultation services to the Wrentham State School. Tr. 7/30/93 (Alvarez) at 43. Wrentham is a staterun residential facility serving the developmentally disabled and mentally retarded. The Commonwealth of Massachusetts is responsible for running Wrentham. Tr. 7/30/93 (Alvarez) at 43. Approximately 520 individuals with developmental disabilities reside at Wrentham. Tr. 7/30/93 (Alvarez) at 43. At the present time, the individuals fall mostly in the profound to severely retarded range. Tr. II30/93 (Alvarez) at 43. Practically all of the residents at Wrentham have neurological problems. Tr. 7/30/93 (Alvarez) at 44. Dr.
C-l

Alvarez is responsible for providing neurologic care to all of these residents. Tr. 7/30/93 (Alvarez) at 44. Dr. Alvarez estimated that he spends about 60-70 percent of his time working at this state-run institution. Tr. 7/30/93 (Alvarez) at 43. At Wrentham, he serves as the Director of the Neurology Seizure Program. Tr. 7/30/93 (Alvarez) at 43-44. Specifically, he is responsible for performing medical examinations, assessments, diagnoses and for monitoring the residents' neurological care; he participates in inter-disciplinary team meetings when neurological issues are to be discussed; he is involved in Wrentham's psychiatric and neuropsychiatric programs; and he is involved in interpreting electroencephalograms (EEGs) which better enable a neurologist to see how the brain works. Tr. 7/30/93 (Alvarez) at 44. For more details about Dr. Alvarez, see U.S. Exh. 1.
Dr. Alvarez was hired by the Justice Department to visit Ebensburg Center and to provide his expert opinion on the neurological services offered there. Tr. 7/30/93 (Alvarez) at 45. Dr. Alvarez visited Ebensburg Center on two separate occasions in October 1992. Tr. 7/30/93 (Alvarez) at 46. In the course of his two visits, he spent a total of five full days at the facility. Tr. 7/30/93 (Alvarez) at 46.
On his tours, Dr. Alvarez visited the living areas and talked with the persons directly involved with the care of the residents, such as the primary care physicians, the nurses and the consult neurologist. Tr. 7/30/93 (Alvarez) at 46. Dr. Alvarez also reviewed about fifty to fifty-five resident records of individuals with a diagnosis of epilepsy. Tr. 7/30/93 (Alvarez) at 46-7. He testified that this was an adequate number of records to enable him to sufficiently evaluate the neurological services at Ebensburg Center. Tr. 7/30/93 (Alvarez) at 46-47.
In forming his conclusions about Ebensburg Center, Dr. Alvarez testified that he looked at systemic issues as opposed to merely looking at individual cases. Tr. 7/30/93 (Alvarez) at 221-222. He concluded that most of the problems he discovered at Ebensburg Center were systemic in nature. Tr. 7/30/93 (Alvarez) at 222.
Richard S. Amado, Ph.D., was qualified as an expert in the training and treatment of people with mental retardation, particularly those with behavioral and learning difficulties. Tr. 8/4/93 (Amado) at 8-9.
Dr. Amado has a doctoral degree in educational psychology and has worked with people with severe behavioral problems since 1969. Tr. 8/4/93 (Amado) at 3.
In 1978, when a state-operated residential facility for mentally retarded people in Minnesota was making a transition from a custodial care model to an active treatment model, Dr. Amado was hired as a building director to direct all facets of care for about 50 mentally retarded clients. Tr. 8/4/93 (Amado) at 4-5. Dr. Amado worked there as a building director with clinical accountability for four and a half years. Tr. 8/4/93 (Amado) at 5.
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Since that time, Dr. Amado has worked as a consultant to many residential facilities for people with mental retardation, helping institutions better serve people with whom they have not had success, and helping institutions make the transition from the custodial care model to the active treatment model. Tr. 8/4/93 (Amado) at 5-6.
Dr. Amado is also a clinical faculty member of the University of Minnesota, where he trains third year psychiatry residents working with people with retardation and related disabilities regarding best practices in the area of mental retardation and non-medication treatment alternatives. Tr. 8/4/93 (Amado) at 6. Dr. Amado was invited by his peers to serve on a number of rule and policy making committees for the State of Minnesota. Tr. 8/4/93 (Amado) at 6-7. He has also given a number of workshops, training programs, and presentations around the country on a variety of behavior management topics. Tr. 8/4/93 (Amado) at 6-7. Most recently, Dr. Amado gave a presentation at the 1993 Annual Meeting of the American Association on Mental Retardation (" AAMR"). U.S. Exh. 2. Finally, Dr. Amado has published and edited in the field. Dr. Amado was the primary author of a statewide staff training program in behavior analysis for the State of Minnesota. U.S. Exh. 2. Most recently, Dr. Amado was invited to be an editor for a new monograph series published by the AAMR called "Innovations: From Research to Practice." Tr. 8/4/93 (Amado) at 7.
Dr. Amado testified in the Welsch v. Likens right to treatment case. Tr. 8/4/93 (Amado) at 8.
Dr. Amado evaluated whether Ebensburg's behavior management services comported with accepted professional standards on two occasions — in November 1990 and in August 1992. Tr. 8/4/93 (Amado) at 10, 11. To conduct his evaluation, during both tours he observed residents and staff, interviewed staff, with particular emphasis on the psychology staff during the 1992 tour, and reviewed at least 45-50 records and other facility documentation. Tr. 8/4/93 (Amado) at 10-11. After conducting each evaluation, Dr. Amado concluded that Ebensburg's behavior management services substantially departed from accepted standards in the field. Tr. 8/4/93 (Amado) at 10-11. More importantly, Dr. Amado found that the psychology services at Ebensburg had not improved between 1990 and 1992. Tr. 8/4/93 (Amado) at 12-13. In 1990, Dr. Amado found that Ebensburg's psychology services were deficient in eleven different respects, and, in 1992, Dr. Amado found that Ebensburg remained as deficient or more deficient in all eleven areas. Tr. 8/4/93 (Amado) at 99.
David Coulter, M.D., was accepted, without objection, as a medical expert qualified to testify about medical standards, standards in the care and treatment of neurological disorders, including status epilepticus, and issues surrounding neurological disorders among the developmentally disabled and those with mental retardation. Tr. 12/13/93 (Coulter) at 12-13.
Dr. Coulter is a neurologist specializing in pediatric neurology. Tr. 12/13/93 (Coulter) at 3. Dr. Coulter is currently licensed to practice medicine in the states of
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Michigan, Texas and Massachusetts, although he only practices in Massachusetts at this time. Tr. 12/13/93 (Coulter) at 4.
Dr. Coulter currently works for Boston University School of Medicine as an associate professor in the Departments of Pediatrics and Neurology. Tr. 12/13/93 (Coulter) at 6. His principal work site is at the Boston City Hospital, a public hospital owned by the city serving the inner-city residents and the poor. Tr. 12/13/93 (Coulter) at 6. He is currently the Director of Pediatric Neurology at the Boston City Hospital. Tr. 12/13/93 (Coulter) at 6. The individuals he treats at the Boston City Hospital are all poor and come from largely minority, multi-ethnic backgrounds ~ black, Hispanic, a number of Haitian families and Cambodian families — all having the common denominator of poverty. Tr. 12/13/93 (Coulter) at 6-7. Dr. Coulter estimated that the vast majority of the individuals he treats have a developmental disability. Tr. 12/13/93 (Coulter) at 7. Approximately half of the individuals have mental retardation. Tr. 12/13/93 (Coulter) at 7.
Since 1979, Dr. Coulter has been board certified in neurology with a special competence in child neurology. Tr. 12/13/93 (Coulter) at 6. Dr. Coulter has also been board certified in pediatrics since 1981. Tr. 12/13/93 (Coulter) at 6. Since he has first been licensed to practice medicine in 1975, Dr. Coulter estimates that he has treated thousands of individuals with developmental disabilities and neurological problems. Tr. 12/13/93 (Coulter) at 6. He estimates that he has treated roughly five hundred patients a year. Tr. 12/13/93 (Coulter) at 6.
Dr. Coulter has received extensive pediatric and neurological training. Dr. Coulter began his training in neurology at Yale University Medical School (where he graduated in 1973) by researching and writing a thesis on the treatment of epilepsy, sponsored by the Epilepsy Foundation of America. Tr. 12/13/93 (Coulter) at 4. Dr. Coulter then moved on to Duke University Medical School where he received specialized pediatric training. Tr. 12/13/93 (Coulter) at 4. Dr. Coulter then completed a three year neurology residency at the University of Michigan. Tr. 12/13/93 (Coulter) at 4. In all, he received six years of neurological training at Michigan both as a resident and as a fellow. Tr. 12/13/93 (Coulter) at 4. Of the six total years, he spent two learning about adult neurology and another two years learning about pediatric neurology. Tr. 12/13/93 (Coulter) at 4-5. He received the bulk of his training under the tutelage of a doctor who had just served as President of the Child Neurology Society. Tr. 12/13/93 (Coulter) at 5. In his remaining years at Michigan, Dr. Coulter taught medical school students about epilepsy. Tr. 12/13/93 (Coulter) at 5. Virtually all of his professional time spent at the University of Michigan, involved work with individuals with developmental disabilities. Tr. 12/13/93 (Coulter) at 5. During his last two years at Michigan, Dr. Coulter was in charge of the Pediatric Epilepsy Clinic, so he was particularly and directly involved with individuals with seizures. Tr. 12/13/93 (Coulter) at 5-6.
Dr. Coulter has experience working with individuals with developmental disabilities who live in an institution. Tr. 12/13/93 (Coulter) at 7. Since 1981, he has provided regular
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on-going neurological consultation to facilities or institutions serving individuals with mental retardation. Tr. 12/13/93 (Coulter) at 7. His consultation work with institutions began in Texas where he provided neurological consultation services once a month each for the Richland State School and for the LufMn State School. Tr. 12/13/93 (Coulter) at 7-8. Specifically, he visited these institutions, saw patients, talked to staff physicians, helped them manage individuals with epilepsy and helped them diagnose difficult cases. Tr. 12/13/93 (Coulter) at 8. When he arrived in Massachusetts in 1986, Dr. Coulter began providing consult neurological services for the Perkins School for the Blind, an institutional facility housing individuals with multiple developmental disabilities, mental retardation, epilepsy, cerebral palsy, and blindness. Tr. 12/13/93 (Coulter) at 8. Dr. Coulter has served as the consult neurologist for Perkins for the past six or seven years. Tr. 12/13/93 (Coulter) at 8. His role is primarily to help make diagnoses of epilepsy and to help in the medical management of the individuals who live there. Tr. 12/13/93 (Coulter) at 8.
Dr. Coulter has been a member of the Epilepsy Foundation of America since he was a medical student on a research fellowship from the Foundation. Tr. 12/13/93 (Coulter) at 8. Dr. Coulter was elected to the Professional Advisory Board of the EFA in 1989. Tr. 12/13/93 (Coulter) at 9. The PAB asked Dr. Coulter to lead an effort to develop a document or manuscript that would deal specifically with the treatment of epilepsy and mental retardation. Tr. 12/13/93 (Coulter) at 9. The culmination of this effort is the American Journal of Mental Retardation's entire July 1993 special issue on epilepsy. Tr. 12/13/93 (Coulter) at 9. Dr. Coulter served as editor of this monograph and wrote the lead article which was an overview of all the issues involved. Tr. 12/13/93 (Coulter) at 9. In fact, opposing counsel cited to this monograph during his cross-examination of Dr. Alvarez. Tr. 9/13/93 (Kastner) at 164. While serving on the PAB, Dr. Coulter also participated on the Foundation's project on status epilepticus. Tr. 12/13/93 (Coulter) at 9-10. The EFA has also sponsored his continuing research over the years. Tr. 12/13/93 (Coulter) at 8. The EFA has asked Dr. Coulter to make a presentation at their national conference about mental retardation and epilepsy. Tr. 12/13/93 (Coulter) at 9. He testified that he has been instrumental in moving the EFA towards focusing more on mental retardation issues. Tr. 12/13/93 (Coulter) at 9.
Dr. Coulter has held positions in many other national medical organizations. Tr. 12/13/93 (Coulter) at 10. He was the president of the Academy on Mental Retardation, a group of research professionals in the field. Tr. 12/13/93 (Coulter) at 10. He has served as the head of the Medicine Division of the American Association on Mental Retardation. Tr. 12/13/93 (Coulter) at 10. He is currentiy serving on the national Board of Directors of the AAMR. Tr. 12/13/93 (Coulter) at 10. Dr. Coulter testified that he believes that he is the only doctor to have ever served on Boards of both the EFA and the AAMR. Tr. 12/13/93 (Coulter) at 10. He testified that he is not aware of any other individual who has ever been involved both at that level in the epilepsy field as well as in the mental retardation field. Tr. 12/13/93 (Coulter) at 10.
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Dr. Coulter has held editorial positions on several medical publications. Tr. 12/13/93 (Coulter) at 10-1. He has been a member of the editorial board of the Journal of Child Neurology since that publication's inception. Tr. 12/13/93 (Coulter) at 11. He has also served on the editorial staff of the American Journal on Mental Retardation for a number of years. Tr. 12/13/93 (Coulter) at 11. He has served as an associate editor of the AJMR for the past four or five years where his role has been to elicit peer reviews of manuscripts that have been submitted for publication and to evaluate the reviews. Tr. 12/13/93 (Coulter) at 11. He also make recommendations to the editor regarding whether or not the article should be published. Tr. 12/13/93 (Coulter) at 11. The American Association on Mental Retardation has recently asked Dr. Coulter to develop a new journal which will be devoted specifically to health care for people with developmental disabilities. Tr. 12/13/93 (Coulter) at 11.
Dr. Coulter has published an extensive number of peer reviewed articles in national publications like the AMA Journal, the New England Journal of Medicine, and several other neurological journals. Tr. 12/13/93 (Coulter) at 11. He has also co-authored a book that was published last year by the AAMR which served as an update or current version of the definition and classification of mental retardation. Tr. 12/13/93 (Coulter) at 11. This book is entered in this case as U.S. Exh. 570. For further details about Dr. Coulter, see U.S. Exh. 1105.
In preparing for his testimony, Dr. Coulter reviewed the trial transcripts and the exhibits used in connection with the testimony of Drs. Kastner, Chamovitz, and Alvarez. Tr. 12/13/93 (Coulter) at 13.
Jeffrey J. Fans, M.D., was accepted, without objection, as a medical expert qualified to testify about psychiatric issues concerning the mentally retarded. Tr. 8/3/93 (Fahs) at 5859.
Dr. Fahs is a neuropsychiatrist specializing in the psychiatric care of mentally retarded individuals. Tr. 8/3/93 (Fahs) at 51. Dr. Fahs is licensed to practice medicine in Norm Carolina. Tr. 8/3/93 (Fahs) at 51-2. He has been board certified by the American Board of Psychiatry and Neurology since 1985. Tr. 8/3/93 (Fahs) at 52.
The bulk of the patients Dr. Fahs sees in his psychiatric practice are mentally retarded individuals. Tr. 8/3/93 (Fahs) at 53. Dr. Fahs is currently employed as a psychiatrist at the Murdoch Center, a large state-run psychiatric facility in North Carolina serving about 750 individuals. Tr. 8/3/93 (Fahs) at 54. Dr. Fahs is the Director of Psychiatric Services at Murdoch. Tr. 8/3/93 (Fahs) at 55. He provides psychiatric care and treatment to any individual who may need it, and he regularly follows all individuals who are receiving psychotropic medications. Tr. 8/3/93 (Fahs) at 55. The individuals at Murdoch are overwhelmingly functioning in the severe and profound range of mental retardation, and there is a relatively high frequency of people with severe behavioral difficulties. Tr. 8/3/93 (Fahs) at 55.
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Dr. Fahs has had a great deal of experience providing psychiatric consult services to state-run facilities for individuals with mental retardation. Tr. 8/3/93 (Fahs) at 53-54. While he worked in Alabama, Dr. Fahs provided psychiatric services to four of the five large state-run facilities for mentally retarded individuals. Tr. 8/3/93 (Fahs) at 54. Dr. Fahs testified that the complexion of the populations at these facilities was indistinguishable from the population at Ebensburg. Tr. 8/3/93 (Fahs) at 54. The facilities each served several hundred profoundly and severely retarded individuals having a range of medical and psychiatric difficulties. Tr. 8/3/93 (Fahs) at 54. A large number of individuals had severe behavioral and psychiatric difficulties. Tr. 8/3/93 (Fahs) at 54.
Over the years, Dr. Fahs has been asked to help direct psychiatric consultations and provide training to a number of institutions across the country in many states, including Idaho, Colorado, Utah, Tennessee, West Virginia, Illinois and Virginia. Tr. 8/3/93 (Fahs) at 56.
Dr. Fahs is also currently helping the state of North Carolina devise protocols for the provision of psychiatric services. Tr. 8/3/93 (Fahs) at 56. He is also active in helping to train staff in the various North Carolina state institutions for individuals with developmental disabilities. Tr. 8/3/93 (Fahs) at 56.
Dr. Fahs currently serves on the national board of directors of the National Association for the Dually Diagnosed. Tr. 8/3/93 (Fahs) at 58. The NADD is a multidisciplinary organization concerned with issues surrounding the severe behavioral and psychiatric difficulties of people with mental retardation. Tr. 8/3/93 (Fahs) at 58. He has also presented frequently at national meetings. Tr. 8/3/93 (Fahs) at 58.
In 1978, Dr. Fahs graduated from the University of Arizona College of Medicine, where he received a Ph.D. Tr. 8/3/93 (Fahs) at 52. He then completed a flexible internship at the Tucson Hospital's Medical Education Program. Tr. 8/3/93 (Fahs) at 52. He completed his psychiatry residency at the University of North Carolina in Chapel Hill. Tr. 8/3/93 (Fahs) at 52. Dr. Fahs next completed a neurology residency at the University of Arizona. Tr. 8/3/93 (Fahs) at 53. In the final year of his psychiatric training, Dr. Fahs concentrated on treating individuals with mental retardation. Tr. 8/3/93 (Fahs) at 52-3. In that year, Dr. Fahs trained under the mentorship of one of the faculty members at the University of North Carolina who was an expert in providing psychiatric care to individuals with mental retardation. Tr. 8/3/93 (Fahs) at 53. Dr. Fahs' training enabled him to provide psychiatric consultation services to a large state-run facility for the developmentally disabled called the Caswell Center. Tr. 8/3/93 (Fahs) at 53.
While at the University of Alabama, Dr. Fahs was an assistant professor of psychiatry at the medical school. Tr. 8/3/93 (Fahs) at 57. He served as the director of the consultation liaison service; provided consultation throughout the hospital; taught second year medical school students about medical interviewing, diagnostic assessments; supervised upperclass medical students in consultation psychiatry; and provided seminar training to residents,
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fellows and co-faculty in consultation psychiatry, mental retardation, and neuropsychiatry. Tr. 8/3/93 (Fahs) at 57.
Dr. Fahs has published many peer reviewed articles that have appeared in journals such as the Journal of Developmental and Behavioral Pediatrics, the Journal of Clinical Psychiatry, the New England Journal of Medicine, the American Journal of Psychiatry and Contemporary Psychiatry, and the NADD Newsletter. Tr. 8/3/93 (Fahs) at 57. He also has had the opportunity to contribute to the American Psychiatric Association Treatment Manual on the treatment of psychiatric disorders. Tr. 8/3/93 (Fahs) at 57-58. Dr. Fahs contributed two chapters in this work: one on mental retardation and psychiatric illness and the other on the treatment of psychiatric illness in mentally retarded people. Tr. 8/3/93 (Fahs) at 58. (Dr. Kastner testified that Dr. Fahs is a "wonderful psychiatrist" and a "very skilled psychiatrist." Tr. 9/13/93 (Kastner) at 130, 132.) See also generally, U.S. Exh. 3.
Dr. Fahs was hired by the Justice Department to evaluate the provision of psychiatric services at Ebensburg. Tr. 8/3/93 (Fahs) at 59. Dr. Fahs visited Ebensburg on two separate occasions, in September 1992 and in February 1993. Tr. 8/3/93 (Fahs) at 59. Dr. Fahs toured the facility, observed a number of psychiatric consults conducted at the facility, and interviewed several members of the Ebensburg staff, administration and the consulting psychiatrist. Tr. 8/3/93 (Fahs) at 59-60. Dr. Fahs testified that he was able to see all of the living units of the facility, and the bulk, if not all, of the training areas. Tr. 8/3/93 (Fahs) at 60-61.
Dr. Fahs also reviewed about 30-40 medical records of Ebensburg individuals who were taking psychotropic medications. Tr. 8/3/93 (Fahs) at 60. The individuals selected were either randomly chosen or were looked at because Dr. Fahs had observed them during a consultation. Tr. 8/3/93 (Fahs) at 61. Dr. Fahs testified that he wanted to look at the medical records because they are an ongoing contemporaneous reflection of the care an individual is receiving. Tr. 8/3/93 (Fahs) at 61. He indicated that it also reveals the thinking process of the medical professionals. Tr. 8/3/93 (Fahs) at 61. The medical record serves as a treatment tool for the professionals in the facility, so it aided him in reviewing the quality of care the individuals had received and were receiving. Tr. 8/3/93 (Fahs) at 612. Dr. Fahs called the medical record the "keystone of medical evaluation." Tr. 8/3/93 (Fahs) at 62.
Susanne McAllister, M.S., R.P.T., was qualified as an expert in the areas of physical therapy, physical management services, and the therapeutic equipment needs of individuals with physical disabilities. Tr. 7/28/93 (McAllister) at 94. Ms. McAllister received her bachelor of science degree in psychology and biology at Dartmouth College and her masters of science degree in physical therapy at Boston University. Tr. 7/28/93 (Mcallister) at 85. In her two year training program for her master's degree, she completed courses in anatomy, physiology, chemistry, neurology, pathology, and developmental disabilities. Tr. 7/28/93 (McAllister) at 85. In addition, she completed a two year physical
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therapy training program at the University Affiliated Program at the Eunice Kennedy Shriver Center in Boston. Tr. 7/28/93 (McAllister) at 85.
Since receiving her physical therapy degree, Ms. McAllister has specialized for the past fourteen years in developmental disabilities. Tr. 7/28/93 (McAllister) at 86. Between 1987 and 1993, she was a partner in Therapeutic Concepts, a company based in Orlando, Florida with six offices around the country with approximately one hundred employees and two hundred subcontractors providing services to individuals with developmental disabilities and physical disabilities. Tr. 7/28/93 (McAllister) at 86-87. She also was a partner in Therapeutic Design, which fabricated and marketed equipment and positioning devices for individuals with physical disabilities. Tr. 7/28/93 (McAllister) at 87. More recently, she has formed a new company in Jackson, Wyoming, called Therapeutic Lifestyles which focuses on individuals who have significant physical disabilities. Tr. 7/28/93 (McAllister) at 87-88.
During the course of her career, Ms. McAllister has been involved in assisting a number of state-operated mental retardation facilities across the country in the development and implementation of physical therapy and physical management programs. Tr. 7/28/93 (McAllister) at 88-91. Her work in state operated mental retardation facilities has had an impact on thousands of individuals with developmental and physical disabilities. Tr. 7/28/93 (McAllister) at 91. Frequently, her involvement in the facilities has been pursuant to consent decrees or institutional reform court orders. Tr. 7/28/93 (McAllister) at 88-91.7 For example, in the early 1980's, Ms. McAllister was part of a court ordered physical therapy team that provided training and technical assistance in therapeutic positioning and handling and transfer programs in a state operated mental retardation facility in Sunland, Orlando. Tr. 7/28/93 (McAllister) at 88. During 1986-1987, Ms. McAllister served on a three person physical therapy task force in Lelsz v. Kavanaugh. where she was responsible for evaluating services at three state operated mental retardation facilities in Texas. Tr. 7/28/93 (McAllister) at 89. Between 1987 and 1992, Therapeutic Concepts was identified in the consent decree to develop and implement physical management programs at Hissom Memorial Center, a state operated mental retardation facility in Oklahoma. Tr. 7/28/93 (McAllister) at 88-89. From 1987-1992, Ms. McAllister was also hired by the State of Oregon to assist with the development of physical management services at Fairview Training Center pursuant to a consent decree. Tr. 7/28/93 (McAllister) at 90. In addition, between 1990-1993, she served as a member of an immediate needs assessment team created pursuant to litigation involving the Wyoming State Training Center. Tr. 7/28/93 (McAllister) at 90. The team was responsible for addressing the needs of physically challenged residents at the Center who were at greatest risk during the pendency of the litigation. Tr. 7/29/93 (McAllister) at 21-22. In other situations, state mental retardation facilities, such as the Coolidge Developmental Center in Arizona and the Hazelwood Developmental Center in
V This is the first case, however, in which Ms. McAllister has worked as an expert consultant for the United States Department of Justice. Tr. 7/28/93 (McAllister) at 91.
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Kentucky, sought her technical assistance in developing physical therapy and physical management programs. Tr. 7/28/93 (McAllister) at 89-90.
Ms. McAllister has also worked as a physical therapist at facilities for individuals with mental retardation and has published training materials for staff who work with individuals with significant physical disabilities, including Challenges in Physical Management and Physical Management for Professionals. Tr. 7/28/93 (McAllister) at 92-93; U.S. Exh. 71. She has taught courses on physical disabilities at Boston University and Lesley College in Massachusetts and has conducted a number of seminars nationwide on physical management. U.S. Exh. 4.
Ms. McAllister spent five days at Ebensburg Center between November 9 and 13, 1992, evaluating physical therapy and physical management services. Tr. 7/28/93 (McAllister) at 94-95. During the course of her tour, she spent approximately 43 hours at Ebensburg, including observing early morning and late evening activities. Id. at 94-95. Ms. McAllister visited each of the five living units at Ebensburg and the four living areas within each living unit. She spent most of her time (approximately 60 - 70%) in the Keystone unit, where the majority of individuals with significant disabilities reside. Tr. 7/28/93 (McAllister) at 98; Tr. 7/29/93 (McAllister) at 22. Ms. McAllister also spent time during her tour in program areas, the physical therapy and occupational therapy departments, the adaptive equipment shop, and the staff training department. Tr. 7/28/93 (McAllister) at 95. She additionally observed physical therapy programs, occupational therapy programs, active treatment programs, and how residents were transferred, handled, and positioned across different shifts, in different settings, and on different days. Id. at 95-96. Ms. McAllister further observed two complete meal times and worked with seven Ebensburg residents with significant physical disabilities. Id. at 96. Ms. McAllister also directed an FBI photographer to take pictures and videotapes of residents and residents' activities during the course of her tour. Id. at 96. Moreover, she interviewed direct care and professional staff, including the contract physical therapists, the occupational therapist, therapy aides, and the staff development trainer. Id. at 95, 161-162, 231. During her tour as well as following her tour, Ms. McAllister also reviewed individuals' records, Ebensburg documents and policies, staff training materials, and occurrence reports. Id. at 96, 231.
Karen Green McGowan, R.N., was qualified as an expert in the areas of nursing services and nutritional and physical management for individuals with developmental disabilities. Tr. 7/29/93 (McGowan) at 83. Ms. McGowan is a registered nurse who has specialized for the past twenty-eight years in services for individuals labeled as severely to profoundly retarded and medically fragile and complex. Id. at 75. Her specialty includes individuals who are immobile and have associated health problems such as swallowing disorders and gastrointestinal disorders, including gastroesophageal reflux. Id.
Ms. McGowan has been qualified by a federal court as an expert in the areas of physical and nutritional management for mentally retarded people with significant disabilities in a number of states, including Florida, Kentucky, Louisiana, New Hampshire, New York,
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North Dakota, Minnesota, and Oklahoma. Id. at 76-77; U.S. Exh. 5. She has held several court-appointed positions in mental retardation institutional reform litigation, including her recent appointment as the physical and nutritional management expert on a three person expert panel to assist the federal district court of Oklahoma with monitoring implementation of the decree involving the Hissom Center. Tr. 7/29/93 (McGowan) at 77.
Over the years, Ms. McGowan has provided consultation to the Willowbrook Review Panel, the Pennhurst Special Master, and the office of the Special Master in the Gary W. case. U.S. Exh. 5 at 2, 7. In addition, she was recently retained by the State of Michigan to provide training and clinical consultation to specialized nursing care facilities in the areas of safe eating, functional positioning, and safe transferring and handling. Id. at 2. For three years, Ms. McGowan served as part of a court appointed interdisciplinary nutrition team to assess and devise plans for five hundred class members of a lawsuit involving Sunland, Orlando, a mental retardation facility in Florida. Id. at 82-83. Between 1989 and 1991 she was responsible for conducting training to prepare clinicians for court certification to participate on the nutrition team. U.S. Exh. 5 at 3. Ms. McGowan has also served as a consultant in the development of the training manual for ICF/MR surveyors. Id. at 6.
For the past seventeen years, Ms. McGowan has had a private practice in which she has provided consultation primarily to state agencies and private organizations regarding services for individuals with complex physical and nutritional needs. Tr. 7/29/93 (McGowan) at 75. In particular, she has been retained by a number of states, including Connecticut, Florida, Louisiana, Michigan, Minnesota, New Jersey, New York, North Carolina, and Pennsylvania to assist in her areas of expertise by developing and implementing services and training staff in facilities, including multiple state-operated institutions involved in institutional reform litigation. Id. at 78-80. Ms. McGowan estimates that over the course of her career she has provided nutritional and physical management services, either directly or indirectly, to several thousand people. Id. at 83.
Ms. McGowan has published in the area of individuals who are medically complex, including several book chapters and a number of training manuals on physical and nutritional management and health care services for developmentally disabled people with significant health care needs. Tr. 7/29/93 (McGowan) at 76; U.S. Exh. 5 at 8-10. She has also taught numerous seminars and training courses throughout the United States and Canada in physical and nutritional management as well as general health care for individuals with developmental disabilities. Tr. 7/29/93 (McGowan) at 79-80. She is an Associate of the National Institute on Mental Retardation and has conducted a four year series of training workshops in nine Canadian provinces on providing services to individuals with complex needs. U.S. Exh. 5 at 3. She has presented a number of seminars in Pennsylvania. For example, in the late 1970's, she provided training for four weeks throughout Pennsylvania in feeding, positioning, handling, and basic health issues in individuals with developmental disabilities. Tr. 7/29/93
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(McGowan) at 80-81.!/ In the 1980's, she trained close to 200 people in Pennsylvania to provide training throughout the state on medications and related health care issues for people with developmental disabilities. U.S. Exh. 5 at 3.
Between 1987 and 1990, Ms. McGowan was the Director of Quality Assurance for Medical Services Corporation. U.S. Exh. 5 at 2. In this capacity, she was responsible for conducting quality assurance reviews and providing training to nursing and professional staff to meet federal and state standards in service delivery to people who are mentally retarded. W.
Ms. McGowan has also had experience working for seven years at a state operated mental retardation facility. Between 1965 and 1972, she worked at Glenwood State School, a state operated mental retardation facility in Glenwood, Iowa. Tr. 7/29/93 (McGowan) at 81. During her employ at Glenwood she served as the nursing representative on the diagnostic and evaluation team. Id. at 81. She later became the administrator in charge of health care services and programming for 240 medically fragile residents at the facility. U.S. Exh. 5 at 4. Following her work at in institution, Ms. McGowan was responsible for running community residential programs in Nebraska. Id- at 3.
Ms. McGowan toured Ebensburg on three separate occasions during 1992 and 1993 for a total of 11 days: August 17-21, 1992, November 11 and 12, 1992, and February 2225, 1993. Tr. 7/29/93 (McGowan) at 88. During the course of her three tours, Ms. McGowan spent approximately 90 hours at Ebensburg. Id. at 89. She observed twenty-one meals, including breakfast, lunch, and dinner in each of the five buildings in which individuals live at Ebensburg as well as in program areas. Id. at 90; U.S. Exh. 75. Approximately one-half of the meals that Ms. McGowan observed were at Keystone. Id. She directed videotaping of a variety of mealtimes during her 1992 tours. Tr. 7/29/93 (McGowan) at 108. In addition, Ms. McGowan toured all of the living units at Ebensburg, observed medication administration and handling of individuals with physical disabilities, and interviewed a number of staff, including the Director of Nurses and nursing supervisors. Tr. 7/29/93 (McGowan) at 89, 211. During her tours, as well as between and following her tours, Ms. McGowan spent approximately 400 hours reviewing the records of 74 Ebensburg residents. Id. at 170, 185. She additionally reviewed a number of related documents, including Ebensburg nursing protocols, memoranda prepared by Ebensburg administrators, mealtime feeding plans, occurrence reports, depositions, and medical assistance findings of deficiencies at Ebensburg involving meal times. Id. at 90, 140, 143, 148, 154, 186, 190.
Leslie Rubin, M.D., was qualified as a medical expert with special expertise in the provision of medical care and related services to people with developmental disabilities,
V Spencer Hauenstein, one of the contract physical therapists at Ebensburg through December 1992 attended one of Ms. McGowan's training sessions. Tr. 7/29/93 (McGowan) at 81; Hauenstein Deposition Errata Sheet.
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including the treatment of gastroesophageal reflux and feeding disorders, appropriate standards in medical care, and evaluations of the adequacy of medical services. Tr. 12/13/93 (Rubin) at 73.
Dr. Rubin is the Director of Pediatrics at the Developmental Evaluation Center at Children's Hospital in Boston, Massachusetts. Id. at 67. The Developmental Evaluation Center is one of fifty university affiliated programs around the country, created by federal law (the Developmental Disabilities Assistance and Bill of Rights Act), whose mandate is to provide clinical service, teaching, training, research, and technical assistance to individuals with developmental disabilities. Id_. at 67-68. Dr. Rubin is also an Assistant Professor of Pediatrics at Harvard Medical School. Id. at 68. He has served on a number of local, regional, national, and international committees and associations dealing with health care issues for individuals with mental retardation. Id. at 68. He is on the Board of Directors of the American Association of University Affiliated Programs (AAUAP) and is chairperson on the Interdisciplinary Council. Id- at 68. As part of his responsibilities with AAUAP, he serves on a health care task force which is developing assessing the health care needs of people with mental retardation and developing policies for health care reform. Id. at 69.
Dr. Rubin has lectured both nationally and internationally on various topics related to health care for individuals with mental retardation. Id. He has published a number of articles and book chapters and has edited a seminal book on medical care for individuals with mental retardation, cited by defendants' experts during their testimony, entitled Developmental Disabilities: Delivery of Medical Care for Children and Adults. Dr. Rubin is a fellow of the American Academy of Cerebral Palsy and Developmental Medicine and is also an editor of a book on Comprehensive Management of Cerebral Palsy. Id. at 70; U.S. Exh. 1106. Dr. Rubin has also presented papers on esophagitis and nissen fundoplication at the Academy of Cerebral Palsy. Id. at 72-73; U.S. Exh. 1106 at 14.
Dr. Rubin has served as Medical Director and Director of Medical Education at state operated mental retardation facilities in Ohio and Massachusetts and has provided consultation services to a number of other facilities providing services to individuals with developmental disabilities. Tr. 12/13/93 (Rubin) at 66-67. He has diagnosed and treated mentally retarded people who have gastroesophageal reflux and feeding disorders, as well as having supervised medical students, residents, and fellows in this area. Id. at 72. He has evaluated medical care in mental retardation facilities on behalf of the Court Monitor in Lelsz v. Kavanaugh. Columbus Medical Services, which provides peer review around the country, and the Department of Justice. Tr. 12/13/93 (Rubin) at 69.
In preparation for his testimony in this case, Dr. Rubin reviewed the trial transcript of Dr. Kastner's and Dr. Sulkes' testimony, the United States' feeding videotape, and records related to Jeff K. Tr. 12/13/93 (Rubin) at 82, 85, 104-105.
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Dennis Russo, Ph.D., was qualified as an expert in the provision of psychology services to individuals with mental retardation, with a particular expertise in behavior training programs for people with mental retardation. Tr. 8/2/93 (Russo) at 8.
Dr. Russo was awarded a Ph.D. in educational psychology in 1975. Dr. Russo started his career as a staff psychologist in a state-run institution for mentally retarded people in California. In 1975, Dr. Russo was appointed Director of Training and Clinical Services for the Department of Behavioral Psychology at the John F. Kennedy Institute in Baltimore, Maryland, a position he held for four years. During this time, Dr. Russo was also a behavioral psychology consultant and an assistant professor at the Johns Hopkins University School of Medicine.
In 1979, Dr. Russo became Chief of Behavioral Psychology in the Department of Psychiatry for The Children's Hospital in Boston, Massachusetts. From 1981 until 1989, Dr. Russo was the Director of the Behavioral Medicine Program at Children's Hospital. Dr. Russo is currently an associate professor of psychology at the Harvard Medical School. He is also currently vice-president of the health and rehabilitative services of the May Institute, a private not-for-profit corporation serving individuals with developmental disabilities.
Dr. Russo is a Diplomate of the American Board of Professional Psychology (the equivalent of board certification in the field of psychology) in the area of his specialization, behavioral psychology, and is a Diplomate of the American Board of Behavioral Psychology in Behavior Therapy. Dr. Russo is a member of and has held offices in many nationally recognized professional societies, including the office of President of the Association for Advancement of Behavior Therapy. Dr. Russo is currently on the Board of Directors of the American Board of Behavioral Psychology. Dr. Russo has published extensively in the field, and is currently on the editorial boards of six journals, including some of the major journals in the field. Dr. Russo has served on several national task forces in the field and given numerous presentations. Tr. 8/2/93 (Russo) at 2-7; U.S. Exh. 6.
Dr. Russo was a court-appointed expert in Lelsz v. Kavanaugh. where the court asked Dr. Russo to evaluate the adequacy of psychology services and protection from harm at a state institution for mentally retarded people in Texas. Tr. 8/2/93 (Russo) at 7-8.
Dr. Russo toured Ebensburg on three occasions between September 1992 and February 1993 to evaluate whether the psychology services at Ebensburg comport with generally accepted practices for psychology and to evaluate whether residents are being harmed as a result of Ebensburg's psychology services. Tr. 8/2/93 (Russo) at 9. During his tours of Ebensburg, Dr. Russo visited all of the living units and day programs at the institution at a variety of times of the day, including early morning and into the evening. Tr. 8/2/93 (Russo) at 9. Dr. Russo also interviewed a number of Ebensburg staff at both the direct care and professional level. Tr. 8/2/93 (Russo) at 9-10. Dr. Russo attended the September 23, 1992 Behavior Intervention Committee meeting. Tr. 10/15/93 (O'Brien) at 108; U.S. Exh. 42(c). Dr. Russo also directed an FBI photographer to take pictures and
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videotapes of residents and residents' activities during the course of his tour. Both during his tours and afterwards, Dr. Russo evaluated resident records. He reviewed records of approximately 50 clients, more than a 10% sample of the residents at Ebensburg. Tr. 8/2/93 (Russo) at 9.
Jack A. Stark, Ph.D., was qualified as a general expert in the area of services for people with mental retardation. Tr. 7/26/93 (Stark) at 33. He has worked in the field of mental retardation for the past twenty-five years. Tr. 7/26/93 (Stark) at 27-28. Following a period of time in the seminary at Holy Cross College in LaCrosse, Wisconsin and then earning a bachelor of arts in philosophy from St. Francis College in Milwaukee, Wisconsin, he pursued his graduate work at the University of Nebraska in Lincoln. U.S. Exh. 7 at 1. Dr. Stark received a master's degree in rehabilitation psychology, specializing in individuals with developmental disabilities and a Ph.D. in counseling psychology with an emphasis on people with disabilities and a specialization in medical psychology. Id. at 27; U.S. Exh. 7 at 1. He is a board certified psychotherapist, is on the National Registry of Health Service Providers in Psychology, and is a licensed and certified clinical psychologist in the state of Nebraska. U.S. Exh. 7 at 2.
Dr. Stark's involvement in the field of mental retardation has included direct service, administration, teaching, presentations and technical assistance, publications, grant management, and activities in national associations and organizations. His years of professional service to the field have distinguished him as a national leader in the field. In terms of direct service, Dr. Stark has worked with individuals of all age levels from preschool to the elderly. Tr. 7/26/93 (Stark) at 28. His involvement has spanned a variety of service settings from schools, community programs, vocational programs, and residential programs. Id.
For eight years between 1973 and 1981, Dr. Stark administered programs at the Meyer Children's Rehabilitation Institute in Omaha, Nebraska, a university affiliated program serving individuals with developmental disabilities, where he served at various times as Director of Adult Rehabilitation Programs and Director of the Center for Comprehensive Rehabilitation. U.S. Exh. 7 at 4. For the following eleven years he was the associate director and director of research and services for the National Center for Persons with Mental Retardation and Mental Illness (also called the Developmental Disabilities Program and National Research Center) in Omaha, Nebraska. Tr. 7/26/93 (Stark) at 28. In this capacity, he trained staff from eighty to one hundred mental retardation facilities around the country who brought their most challenging residents to the Center to learn appropriate treatment techniques. Id. at 29, 120.
Dr. Stark has been a faculty member at medical schools for the past twenty years and has taught physicians, psychiatrists, psychologists, occupational and physical therapists, and other professionals in the area of mental retardation. Id. In addition, Dr. Stark has conducted several hundred seminars across the nation, providing technical assistance to associations and facilities similar to Ebensburg. Id. His particular areas of expertise in
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mental retardation are families, vocational services, individuals with a dual diagnosis of mental retardation and mental illness, and medical breakthroughs in treating people with mental retardation. Id. at 32-33.
Dr. Stark has been publishing in the field of mental retardation for the past 22 years. He has edited or authored nine books on the topic of mental retardation, has published more than 25 monographs and articles in journals, and has written chapters in an additional 25 books on various issues in the field. Tr. 7/26/93 (Stark) at 30; U.S. Exh. 7 at 11-16. He was one of the authors of the American Association of Mental Retardation's 1992 book entitled Mental Retardation. Definition. Classification, and Systems of Supports: U.S. Exh. 570. Dr. Stark has also served in editorial capacities for journals in the field, including serving as a consulting editor for Mental Retardation. U.S. Exh. 7 at 11. Moreover, Dr. Stark has 23 years of experience in writing and directing more than 55 grants in various areas of mental retardation services which have been funded by state and federal agencies. Tr. 7/26/93 (Stark) at 30.
Dr. Stark has consulted to federal agencies, including the Administration on Developmental Disabilities and the President's Committee on Mental Retardation. Tr. 7/26/93 (Stark) at 30. He is active in a number of national organizations involved with mental retardation issues. Dr. Stark is the immediate past president of the American Association on Mental Retardation (AAMR), the largest association in the world of interdisciplinary professionals involved in mental retardation, which sets standards in the field for people with mental retardation. Id- at 31. He has been actively involved in AAMR for many years and has been elected to a variety of offices in the Association, including being elected by the membership at large to be president in 1992.
Dr. Stark was also elected to serve a two year term as President of the National Academy on Mental Retardation between 1991 and 1993. Tr. 7/26/93 (Stark) at 31; U.S. Exh. 7 at 6. The Academy has 250 members who are the leading researchers and publishers in the field of mental retardation from around the world. The Academy is compromised of a wide variety of professionals, including physicians, psychologists, physical therapists, occupational therapists, and attorneys. Id- at 31. Dr. Stark has also served on a variety of committees of the National Association for Retarded Citizens and was elected as a fellow of the AAMR and the Mental Retardation Division of the American Psychological Association. Id.; U.S. Exh. 7 at 7.
In addition to his wide ranging professionals activities in the field of mental retardation, Dr. Stark has a son who is profoundly mentally retarded and physically disabled. Tr. 7/26/93 at 33. In Dr. Stark's words, he "know[s] what it's like to take care of someone twenty-four hours a day, seven days a week, for the last twenty-one years." Id.
Prior to this litigation, Dr. Stark was never involved with the Department of Justice or any other litigation involving the rights of people in institutions. Tr. 7/26/93 (Stark) at 31-32. He has served as a court appointed expert for the Social Security Administration in a number of worker's compensation cases. Id. at 32.
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Dr. Stark toured Ebensburg on February 22 and 23, 1993. Tr. 7/26/93 (Stark) at 7677. He toured each of the living and program areas at Ebensburg and spent approximately eighteen hours observing conditions, interviewing staff, interacting with residents, and reviewing documents. Id. at 77. He toured Ebensburg early in the morning as well as late at night. Id. at 77. Dr. Stark sat in on a drug review. Tr. 7/26/93 (Stark) at 229. He interviewed each of the top management staff at Ebensburg as well as direct care staff. Dr. Stark spent approximately twenty to twenty-five days, in addition to his on-site time at the facility, reviewing documents related to Ebensburg, including policies, memoranda, individual resident records, and thousands of occurrence reports. Id.
Stephen Sulkes, M.D. was accepted, without objection, as a medical expert qualified to testify about medical and health care issues present among individuals with developmental disabilities. Tr. 7/27/93 (Sulkes) at 80. Dr. Sulkes is a licensed pediatrician specializing in the care of people with developmental disabilities. Tr. 7/27/93 (Sulkes) at 72 He has been board certified in pediatrics by the American Board of Pediatrics for the past ten years. Tr. 7/27/93 (Sulkes) at 73. Since becoming a licensed physician, Dr. Sulkes has devoted one hundred percent of his clinical medical practice to the care, treatment and research needs of those individuals with developmental disabilities. Tr. 7/27/93 (Sulkes) at 75. Dr. Sulkes estimated that the total number of individuals with developmental disabilities he has treated over the years is "[t]oo numerous to count." Tr. 7/27/93 (Sulkes) at 76.
Currently, Dr. Sulkes works at the Strong Center for Developmental Disabilities which is a division of the Department of Pediatrics at the University of Rochester School of Medicine in New York. Tr. 7/27/93 (Sulkes) at 77, 78. The Strong Center program is a federally-funded, university-affiliated program whose goal is to provide exemplary service, training and medical care for people with developmental disabilities, to undertake research and to provide technical assistance to other agencies and individuals who work with people with developmental disabilities. Tr. 7/27/93 (Sulkes) at 78.
At the Strong Center, Dr. Sulkes is the Director of Services, providing medical care for the developmentally disabled individuals at the Center; he is the Pediatric Discipline Coordinator in charge of inter-disciplinary training of physicians; and he is the coordinator of a New York state-funded fellowship training program that trains physicians, dentists, psychiatrists, psychologists in the care of those with developmental disabilities. Tr. 7/27/93 (Sulkes) at 78. Dr. Sulkes is also an Associate Professor of Pediatrics at the University of Rochester School of Medicine. Tr. 7/27/93 (Sulkes) at 79.
His work at the Strong Center keeps him in close collaboration with New York state run residential facilities for the developmentally disabled. Tr. 7/27/93 (Sulkes) at 78. Dr. Sulkes is personally quite familiar with medical care at state-run institutions for the developmentally disabled. Tr. 7/27/93 (Sulkes) at 76. He first started working as a full-time doctor in New York at the Monroe Developmental Center, a New York state facility for people with developmental disabilities. Tr. 7/27/93 (Sulkes) at 76. At the time he worked
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there, Monroe housed about the same number of people with roughly the same array of disabilities as those individuals who live currently at Ebensburg Center. Tr. 7/27/93 (Sulkes) at 76. Dr. Sulkes worked as a primary care physician for the individuals at Monroe. Tr. 7/27/93 (Sulkes) at 76. He was responsible for all the health care needs and the health care management for his residents at Monroe. Tr. 7/27/93 (Sulkes) at 77. He made daily rounds, sat in on inter-disciplinary team case reviews, addressed chronic and acute medical problems, and served as attending physician in the hospital when necessary. Tr. 7/27/93 (Sulkes) at 77.
In addition, during the time of his medical fellowship in Massachusetts, Dr. Sulkes worked as a primary care physician at the Wrentham State School, which is a Massachusetts state residential facility for people with developmental disabilities like Ebensburg Center. Tr. 7/27/93 (Sulkes) at 74. At the time he worked there, about 700 individuals lived at Wrentham and these individuals had roughly the same array of disabilities as the individuals living at Ebensburg Center. Tr. 7/27/93 (Sulkes) at 74. Also during his fellowship, Dr. Sulkes worked as a primary care physician at the Massachusetts Association for the Blind, which is a smaller Massachusetts residential facility housing about 25 individuals with mental retardation and multiple disabilities. Tr. 7/27/93 (Sulkes) at 75.
During his fellowship at the Developmental Evaluation Center (DEC) at Boston Children's Hospital, Dr. Sulkes was engaged in the practice of medicine exclusively with those individuals with developmental disabilities. Tr. 7/27/93 (Sulkes) at 75. At DEC, he received specialized clinical and didactic training in treating the developmentally disabled in both the medical and inter-disciplinary aspects of care. Tr. 7/27/93 (Sulkes) at 74. As part of his clinical training at DEC, he worked with a dysphagia or feeding team in evaluating swallowing problems, and he served as the coordinator of the Down's Syndrome program. Tr. 7/27/93 (Sulkes) at 74.
Dr. Sulkes has published a number of peer reviewed articles in such journals as the American Journal of Mental Deficiency, (now called Mental Retardation). Research in Developmental Disabilities and Pediatrics. Tr. 7/27/93 (Sulkes) at 79; U.S. Exh. 8. In the medical field specializing in the care and treatment of those with developmental disabilities, Dr. Sulkes has also engaged in a number of funded research projects, has given many regional and national presentations, and has written chapters in medical textbooks. U.S. Exh. 8. Dr. Sulkes has experience working with people with dysphagia. Tr. 7/28/93 (Sulkes) at 45. He provides consultations for people with feeding disorders and dysphagia in his current medical practice. Tr. 7/28/93 (Sulkes) at 45. He has given a presentation on interdisciplinary approaches to dysphagia to a national meeting. Tr. 7/28/93 (Sulkes) at 45. Most notably, Dr. Sulkes has published two chapters in the textbook entitled Developmental Disabilities, edited by Drs. Leslie Rubin and Allen Crocker. U.S. Exh. 8. This book was cited as an authoritative text by the defendant's feeding expert Dr. Sheppard. Tr. 10/18/93 (Sheppard) at 130.
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In April 1989, Dr. Sulkes was first hired by the United States Department of Justice to assess and develop an opinion on the quality of medical and health care services provided to the residents of Ebensburg Center. Tr. 7/27/93 (Sulkes) at 80. Dr. Sulkes testified that he did not go to Ebensburg Center with any preconceived notion of what he was going to find. Id. at 40. He visited Ebensburg Center on five separate occasions: April 1989, November 1990, January 1992, September 1992 and November 1992. Id. at 81. Dr. Sulkes spent about 80 total hours actually at the facility. Id. At one time or another, he testified that he had personally observed most if not all people who live at the facility. Id- at 83. He observed the residents both in their residential settings and in their day treatment programs. Id. at 81. Throughout his various tours, he visited all the living areas at Ebensburg Center. Id. During his tours, Dr. Sulkes interviewed many individuals working at Ebensburg Center including the facility director, Mr. Bellomo, the director of program services, Mr. O'Brien, all the physicians, the director of nursing, the head of the pharmacy, the dentist, the infection control nurse and some motor therapists. Id. at 85. In addition, Dr. Sulkes spent dozens of additional hours outside the facility further reviewing Ebensburg Center records and documents. Since 1989, Dr. Sulkes reviewed over one hundred Ebensburg Center resident medical records. W. at 83. He selected the records he wanted to review based upon his own observations of residents while he toured the facility each time, based upon his discussions with Ebensburg staff, and based upon hard data about the residents provided him by the facility. Id. at 84.
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EBENSBURG CLIENT SUMMARIES

OVERVIEW

The following summaries illustrate how the deficiencies set forth in the United States'

Detailed Findings of Fact have had an impact on the lives of but a few of the people who

live at Ebensburg. Inasmuch as evidence was presented on over 450 Ebensburg residents,

the summaries are by no means an exhaustive listing. They demonstrate the common themes

that underlie the deficient care at Ebensburg and the significant harm that has resulted to

individual residents.

The following ten Ebensburg residents are highlighted:

Ann B

1

Franklin B

5

Sam B

10

Ron E

12

Frank H

17

Jeff K

23

Tim P

30

James S

38

Denise V

44

James W

47

ANNB. 1. Ebensburg Fails to Protect Ann B. from Harm -- Undue Restraint
a. Mechanical Restraint Ann B. spends so much time restrained in her restraint chair that Defendants do not even include her time in restraint in their statistics. Def. Exh. Q. Mr. O'Brien explained that the reason Ann's time in restraint is not included in Defendants' time-in-restraint exhibit is that if it were included, "it would totally skew it." Tr. 10/15/93 (O'Brien) at 121. In early 1986, Ebensburg was restraining Ann for her self-injurious behavior with a papoose board or helmet at a rate of less than two hours per month. Tr. 8/2/93 (Russo) at 65; U.S. Exh. 93. In April 1986, Ebensburg introduced the restraint chair as part of Ann's behavior program for self-injurious behavior, which resulted in an immediate and significant increase in Ann's rate of restraint. Tr. 8/2/93 (Russo) at 65; U.S. Exh. 93. Instead of making informed clinical judgments and recognizing that Ann was one of a whole class of individuals who self-injure in order to obtain restraint, for approximately a three year period after introducing the restraint chair to Ann, Ebensburg did not change her behavior program. Ann has been spending increasing amounts of time in her chair and the rate of Ann's self-injurious behavior is increasing. Tr. 8/2/93 (Russo) at 65; U.S. Exh. 783. Except for a period of hospitalization in April 1993, Ann has been spending over 250 hours per month in her restraint chair since February 1991. U.S. Exh. 286, 783. In May 1993, Ann spent more time in her restraint chair (351 hours) than during any previous month at Ebensburg.
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Id. Ann is shown being restrained in her chair at the end of Dr. Russo's videotape. Tr. 8/2/93 (Russo) at 91-93; U.S. Exh. 260.
b. Chemical Restraint and Inadequate Psychiatric Care Ann experiences side effects from taking psychotropic medication for her selfinjurious behaviors. U.S. Exh. 640 (Stratton Dep.) Exh. 2. Dr. Goldschmidt observed in November 1992 that Ann's tongue is protruding. Id. Ann is taking Cogentin for the treatment of extra-pyramidal symptoms ("EPS"). Id. EPS is a common side effect of psychotropic medication. Tr. 8/3/93 (Fahs) at 67-68. In spite of the fact that Ann took psychotropic medications for her self-injurious behavior for many years, Dr. Goldschmidt only saw Ann five times between April 1986 and January 1992. U.S. Exh. 640 (Stratton Dep.) Exh 2. 2. Ebensburg Fails to Protect Ann from Harm -- Inadequate Behavior Program Ann's behavior program has not been revised since April 1990. U.S. Exh. 93. Dr. Russo testified that Ann's behavior program is not effective. Tr. 8/2/93 (Russo) at 65-66; U.S. Exh. 783. As the regression analyses in U.S. Exh. 783 relating to Ann show, Ebensburg's behavior program to reduce Ann's self-injurious behavior and to reduce the time that Ann spends in her chair is not working. Ann is an example of an Ebensburg resident on a behavior program whose behaviors are getting worse. U.S. Exh. 783. Ebensburg's failure to revise Ann's behavior program in a timely manner has caused tremendous harm to Ann. Tr. 8/2/93 (Russo) at 65-66. Ebensburg's failure to revise her program has created Ann's enormous dependence on the chair and, as discussed above, a
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case of chronic restraint. Tr. 8/2/93 (Russo) at 65-66. More importantly, Ebensburg has perpetuated Ann's self-injurious behavior by not adequately addressing it. Tr. 8/2/93 (Russo) at 65-66.
Ann suffers many injuries from her self-injurious behaviors. U.S. Exh. 135, 958. Between May and mid-August 1993 alone, Ann hurt herself four times through self-abuse. U.S. Exh. 958. Dr. Goldschmidt concluded that Ann's behavior is deteriorating because of the brain injuries she is sustaining due to her head banging. U.S. Exh. 640 (Stratton Dep.) Exh. 2.
The significant amount of time that Ann spends in her restraint chair is also causing Ann much harm. While in restraint, she is not receiving needed positive habilitation and skills development training. Tr. 8/2/93 (Russo) at 66, 92. 3. Ebensburg Has Failed to Obtain Outside Expertise
Defendants' psychology expert, Dr. Reid, thought that Ebensburg should be doing more for Ann, and he is not satisfied with her case. Tr. 9/16/93 (Reid) at 117. Dr. Reid relied on Ebensburg's representations that they had sought outside consultation from the Kennedy Institute, but he was not aware that the Kennedy Institute consultation occurred five years ago. Tr. 9/16/93 (Reid) at 159. At the time Ann received a consultation from the Kennedy Institute in 1988, she had been in her chair for about two years. The Kennedy Institute recognized that Ann's chair was serving a protective function, but cautioned that the chair must be considered as only a way station, and not as a final goal for Ann. Tr. 8/2/93 (Russo) at 101. The Kennedy Institute provided valuable information to Ebensburg concerning Ann's motivation for her self-injury, but Ebensburg failed to use that information
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to change its treatment for her. Tr. 8/2/93 (Russo) at 101, 103-104. Ebensburg did not do its own functional analysis of Ann's behavior until March 9, 1993. U.S. Exh. 964.
4. Ebensburg Fails to Provide Ann with Adequate Nursing Care Ann required emergency hospitalization for a bowel obstruction on September 16,
1991. Tr. 7/29/93 (McGowan) at 181. While in the emergency room, she went into respiratory arrest and had to have part of her bowel removed. Tr. 7/29/93 (McGowan) at 181. There is an indication in Ann's chart that she has suffered the bowel obstruction and has had a colostomy as a result of prolonged inactivity in her chair. Tr. 8/2/93 (Russo) at 66,92.
Ebensburg nurses did not chart any vital signs prior to her hospitalization. Tr. 7/29/93 (McGowan) at 182. Contrary to accepted nursing practice, Ebensburg nurses treated her with Tylenol and fleet enemas despite the fact that there were clear signs and symptoms of an acute abdominal condition. Tr. 7/29/93 (McGowan) at 182.

FRANKLIN B. 1. Ebensburg Fails to Protect Franklin B. from Harm — Undue Restraint
In October 1991, Ebensburg's Behavior Intervention Committee noted that Franklin B. "seems to want to be restrained." U.S. Exh. 42(c) at 4843. In spite of this knowledge, Ebensburg's use of restraints with Franklin dramatically increased in the succeeding years. In 1992, Franklin was restrained 15 times in the papoose board and 11 times in floor control. U.S. Exh. 993. In the first eight and a half months of 1993, Franklin was restrained using floor control 31 times, and in a little over ten months in 1993, Franklin was restrained 24 times with an emergency chemical restraint. U.S. Exh. 993, Defendants' Brief in Opposition to United States' Motion for Rebuttal Testimony at 35, fn. 13 (filed 11/12/93).
Franklin has been injured several times while being restrained. For instance, on October 20, 1992, Franklin banged his face on the floor during floor control procedures. As a result of the trauma, Franklin's right upper central incisor became loosened and was bleeding. U.S. Exh. 992. On May 27, 1993, Donald P. tried to bite Franklin. Franklin ran away, hitting others. Floor control was used, causing an abrasion to Franklin's back. U.S. Exh. 992. And on June 3, 1993, Franklin was tearing his clothing. Staff used floor control on Franklin. During floor control, Franklin's lower lip was injured and there were two open areas on Franklin's right forearm. Franklin also had blood all over his face. U.S. Exh. 992. 2. Ebensburg Fails to Intervene to Protect Franklin and Others from Injuries due to
Franklin's Behaviors Franklin has caused many injuries to himself and others, due, in part, to the fact that there are not enough staff at Ebensburg to protect Franklin and his peers from harm due to
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Franklin's behaviors. For example, on January 15, 1992, at 8:15 a.m. in Horizon House, in the words of one of the two supervisors who reported to work there that morning, "the staff pattern was a mess." U.S. Exh. 132 at 40544. In West n, where Ibrahim D. was fighting with Franklin, "there was total chaos." Id. Ibrahim was restrained in a papoose board. As Ibrahim was completely immobilized in the papoose board, Franklin continued aggressing toward Ibrahim and kicked him in the face, in spite of staff monitoring during the restraint use. Ibrahim suffered a lacerated lip and a "foot print on the bridge of his nose." For the next fifteen minutes, while Ibrahim remained in the papoose board, Franklin stayed in the room with Ibrahim, and Franklin kept lunging at the staff guarding Ibrahim. Staff could not remove Franklin from the area due to lack of staff. Id. at 40544(a). On February 15, 1993, staff saw Franklin slapping his face and banging his head against the wall. Staffs response was to notify the nurse, who found Franklin still actively slapping his face and banging his head when she arrived. In March 1993, Franklin became uncontrollable at his day programming site. He was throwing large wooden boxes, flipping tables, attempting to smash his chair and hit other clients, and eventually ended up breaking the loading dock door with his head. Staff requested that a psychologist intervene, but none was available. U.S. Exh. 105; Tr. 8/2/93 (Russo) at 16-18. Ebensburg rates this incident as resulting in no injury to Franklin. Id.
Between May and August 1993, Franklin caused 11 injuries to himself or others, including causing Dennis B.'s temple to bleed; slapping Eric S. in the mouth, resulting in the extraction of Eric's front tooth; and biting Elliot G. twice. In spite of the fact that
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Ebensburg acknowledged that Franklin was presenting a severe behavior disruption, his behavior program was not modified and only his medications were adjusted.
3. Ebensburg Fails to Provide Franklin with Adequate Psychiatric Care Ebensburg fails to provide Franklin was adequate psychiatric care. In particular,
Ebensburg has not done a proper psychiatric assessment for Franklin, leading to a delay in treatment while his aggression and severe agitation continue. Tr. 8/3/93 (Fahs) at 110. If Franklin had received an adequate and appropriate assessment and diagnosis, it is less likely that his aggression would have increased. Id. Overall, the psychiatric services provided to Franklin are inadequate because they are being rendered without data and they are not sufficiently coordinated with the psychiatrist, all leading to harm and injury for Franklin and his peers from continued agitation and aggression. Tr. 8/3/93 (Fahs) at 117.
At the end of the psychiatric consult provided to Franklin in June 1993, Defendants' psychiatric expert, Dr. Lubetsky, indicated that the team had still not completed a differential diagnosis on him. Tr. 9/14/93 (Lubetsky) at 181-182. Dr. Lubetsky admitted that it would have been helpful if the team had explored the precipitant of Franklin's behavior and the consequences of his behavior, but these topics had not been discussed. Tr. 9/14/93 (Lubetsky) at 182. Dr. Lubetsky indicated that it would also have been helpful to have more information about Franklin's target behaviors presented at the consult. Tr. 9/14/93 (Lubetsky) at 182-4. Dr. Lubetsky indicated that hard data and functional analysis of Franklin's behavior would help the psychiatrist appropriately treat the individual's target behavior. Tr. 9/14/93 (Lubetsky) at 185.
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The diagnoses provided for Franklin changed over the years for reasons that were not entirely clear because the reasons for the changes were not articulated in the record. Tr. 8/3/93 (Fahs) at 111. At one point his Haldol was increased presumably because his behavior had worsened. Id. However, it was difficult for Dr. Fahs to tell if his behavior actually worsened because there was no intensity behavioral data or information in the record. Id- Dr. Fahs testified that the intensity data was "conspicuous by its absence;" "there was no measure of intensity." Tr. 8/3/93 (Fahs) at 111-112. The only information on which to proceed is anecdotal. Tr. 8/3/93 (Fahs) at 112. At another time, it was problematic for Dr. Fahs that Franklin was subjected to a "major medication change and a major environmental change occurring within two days of each other." Id. Dr. Fahs testified that that is something to be avoided. Id.
The psychiatrist made several recommendations to discontinue or decrease Franklin's psychotropic drugs, but none of her recommendations were implemented. Tr. 8/3/93 (Fahs) at 114-115. Dr. Fahs was perplexed why the changes had not been made since Franklin's behaviors had worsened. Tr. 8/3/93 (Fahs) at 115. Dr. Fahs stressed the need for follow-up of recommendations from the psychiatrist. Id. There was also a recommendation to decrease one of his psychotropic medications, and yet this was never done and it was not clear why it had not been done. Id.
Franklin was scheduled to be reviewed by Ebensburg's Behavior Intervention Committee in December 1992 when Dr. Fahs was present at the facility. Tr. 8/3/93 (Fahs) at 115-116. Dr. Fahs testified that he was "anxious to see how deliberations went for consideration of a new drug." Tr. 8/3/93 (Fahs) at 116. However, at the time, Dr. Fahs
D-8

was told that Franklin could not be reviewed that day because there was no data on him. Id. Dr. Fahs testified "in my mind, what I thought was, well, so now they're going to go back and do the things that I've been mentioning earlier, provide good baseline data or whatever, and it will be reviewed again. That's the purpose of those kinds of reviews." Id. However, when Dr. Fahs was finally able to review Franklin's record after the fact, he discovered that the medication was started five days after that behavior management meeting was scheduled to have taken place. Id. This indicated to Dr. Fahs that the kind of review Franklin had been provided was not useful. Id. Dr. Fahs found it hard to imagine that an adequate amount of information could have been retroactively put together in five days to support the proposed action. Tr. 8/3/93 (Fahs) at 136. In fact, Franklin worsened a lot after the medication was started, and it was discontinued about a month later. Tr. 8/3/93 (Fahs) at 116. He continues to be agitated. Id. 4. Ebensburg Physicians Fail to Implement the Recommendations of Outside
Consultants. Causing Franklin Harm Ebensburg's consultant neurologist and consultant psychiatrist each had recommended that Franklin's anticonvulsant and psychotropic medications be tapered. However, two years passed and the tapers did not occur. Tr. 7/28/93 (Sulkes) at 8-9. There was no indication that the primary care physician ever paid any attention to the recommendations or documented any justification for not following the recommendations. Tr. 7/28/93 (Sulkes) at 18. Franklin's sixty day notes did not mention this proposed taper or any reason why he should not be given a taper in his medications. Tr. 7/28/93 (Sulkes) at 9. In addition, this proposed taper was not mentioned in Franklin's annual review. Tr. 7/28/93 (Sulkes) at 9.
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SAMB. 1. Ebensburg Failed to Provide Sam B. with Adequate Medical and Nursing Care
Sam. B. died of aspiration pneumonia in April 1993. Tr. 7/27/93 (Sulkes) at 131. Sam had been giving Ebensburg clear unmistakable warnings about his serious condition for over ten years. Tr. 7/27/93 (Sulkes) at 131. His first aspiration pneumonia occurred in 1978. Tr. 7/27/93 (Sulkes) at 132. He was diagnosed with reflux esophagitis in 1980 and he suffered bouts of pneumonia in 1980, 1983, 1985, 1986 and 1987. Tr. 7/27/93 (Sulkes) at 132. However, until things got desperate with him, and it was too late to help him, nobody at Ebensburg took any action for Sam. Tr. 7/27/93 (Sulkes) at 132.
In March 1993, Sam began to have difficulty swallowing. Tr. 7/27/93 (Sulkes) at 132. Through a barium swallow test, it was revealed that he was aspirating. Tr. 7/27/93 (Sulkes) at 132. He was later hospitalized with aspiration pneumonia, and yet, the Ebensburg doctor concluded that his condition was due to a virus in the building. Tr. 7/27/93 (Sulkes) at 132. Given his documented history of aspiration pneumonia, swallowing problems and his documented history of reflux, the aspiration problem more likely arose from a feeding or swallowing problem or from reflux, and not from a virus. Tr. 7/27/93 (Sulkes) at 132. Dr. Sulkes testified that it was M[v]ery troubling" that the Ebensburg doctor ignored the feeding, swallowing and reflux angles as being the apparent or possible cause of Sam's medical problem. Tr. 7/27/93 (Sulkes) at 133, line 6. Dr. Rosenthal agreed that if the wrong problem is being treated then good medical care is not being provided. Tr. 12/13/93 (Rosenthal) at 167. There was not even a notation in the record that indicated that
D-10

the doctor considered aspiration pneumonia and ruled it out in favor of the virus theory. Tr. 7/27/93 (Sulkes) at 133.
In addition, in the ten days prior to his death, Sam was in respiratory distress, but no one at Ebensburg requested a respiratory work-up with fundamental observation or physical examination. Tr. 7/27/93 (Sulkes) at 133. When someone is in respiratory distress, their breathing becomes faster as they try to get oxygen, but there is no notation of that and there was no request for it. Tr. 7/27/93 (Sulkes) at 133. Sam had not been provided with a Dysphagia Team consult as of January 1993. U.S. Exh. 641 (Wagner Dep.) Exh. 3.
Nurses did not conduct assessments of his health condition in the months prior to his death when he was vomiting, having difficulty swallowing, refusing meals, and had an elevated temperature. Tr. 7/29/93 (McGowan) at 177-178. 2. Ebensburg Failed to Feed Sam in a Safe Manner
Dr. Sulkes watched Sam being fed at Ebensburg, in November 1992, about five months before Sam died. Tr. 7/27/93 (Sulkes) at 99, 101, 133. At that time, Dr. Sulkes observed that Sam had been provided with no head control, there was no head control suggested in his program, and staff fed Sam while he was coughing. Tr. 7/27/93 (Sulkes) at 133.
Ms. McGowan also observed Sam being fed in a unsafe position. In particular, she saw Sam being fed with his head in extension and rotated. Tr. 7/29/93 (McGowan) at 94, 116-123. Sam is shown on the feeding videotape, entered into evidence as U.S. Exh. 258, being fed with his neck and head in extension and rotated. Tr. 7/29/93 (McGowan) at 116123. Sam is also pictured in United States' Exhibits 242 and 243.
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RONE. 1. Ebensburg Fails to Provide Ron E. with Adequate Physical Management
Ron E. lives in a cart at Ebensburg. Ron's orthopedic notes indicate that the curvature from his scoliosis increased during a two year period of time while under Ebensburg's care from approximately forty-five degrees to one hundred ten degrees. Tr. 7/28/93 (McAllister) at 115-116. This has resulted in a deformity pattern where his head and legs are bowed backwards. Tr. 7/28/93 (McAllister) at 115-116. A picture of Ron appears as United States' Exhibit 687. His deformity pattern is currently so severe that he sometimes assumes a bowed position where his head reaches his feet. Tr. 7/28/93 (McAllister) at 116. Ron's deformity pattern is similar to the deformity pattern exhibited by Kent, a client with whom Ms. McAllister worked in the early 1980's. Id. at 115, 117. When Ms. McAllister first started working with Kent, he lived in a cart, similar to the cart in which Ron currently lives. Id. at 116, 118; U.S. Exh. 686. By placing Kent in various therapeutic positioning devices, his trunk was straightened and his hip flexion increased to the point where he was able to be placed in a customized powered wheelchair. Tr. 7/28/93 (McAllister) at 117; U.S. Exh. 688. Within a year and a half, Kent progressed from being immobile and confined to a cart to independent mobility. Tr. 7/28/93 (McAllister) at 117-118.
Ebensburg staff fail to handle, lift, and transfer Ron in a safe fashion. Tr. 7/28/93 (McAllister) at 222-223. Videotape footage of staff transferring Ron from a mat on the floor to an air mattress appears in United States' Exhibit 261. Ms. McAllister was concerned that staff plopped him on the air mattress and then pulled Ron by his arms and legs to turn him over. Tr. 7/28/93 (McAllister) at 222. This places a lot of pressure on shoulder and knee
D-12

joints and places Ron at risk of injury to the joints. Id. Staff did not make any effort to place Ron in proper alignment once they turned him over. Id.
The only physical therapy related services that Ron receives is percussion, which Ebensburg did not start until late 1992. U.S. Exh. 343. The percussion is provided by a physical therapy aide, not a physical therapist. Between December 1992 and March 1993, Ron was only scheduled for 29 percussion sessions. Id. He only actually received 22 sessions because he was hospitalized for part of the time. Id. As of April 27, 1993, the last time a physical therapist had actually reviewed the physical therapy aide's quarterly progress notes was 4 months earlier, on December 18, 1992. Tr. 10/13/93 (Arnall) at 94; U.S. Exh. 343.
Neither a physical therapist nor a physical therapy aide attended Ron's annual review in either 1992 or 1993, despite the fact that he receives percussion by a physical therapy aide and also has had a serious skin breakdown that lasted for more than a year. Tr. 10/13/93 (Arnall) at 25-28; U.S. Exh. 343. At his 1992 annual review, Ron's interdisciplinary team identified the need for a physical therapist to evaluate his lower extremities to facilitate their separation. U.S. Exh. 343 at 00082563.
An orthopedic evaluation of Ron in 1990 specifically recommended that n[a]t this point care should be taken in the positioning of the patient so that we do not have skin breakdown." Tr. 10/13/93 (Arnall) at 21; U.S. Exh. 1005. Beginning November 1990, shortly after the orthopedist made this recommendation, Ron began having a skin breakdown that continued to worsen through at least January 1992. Tr. 10/13/93 (Arnall) at 21-24; U.S.
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Exh. 343. Between May 1991 and January 1992, the skin breakdown prevented Ron from being positioned at all on his side. Id. 2. Ebensburg Fails to Provide Ron with Adequate Nutritional Management and Safe
Feeding Practices Ron is fed in his cart. Tr. 7/29/93 (McGowan) at 111; U.S. Exh. 228. He is shown on two segments in United States' Exhibit 258 being fed in his cart and, in one segment, immediately after his meal. Tr. 7/29/93 (McGowan) at 111, 112, 128. Ron is coughing and experiencing distress in all three of the segments. Id. Dr. Sheppard agreed that Ron was experiencing difficulty on the videotape. Tr. 10/12/93 (Sheppard) at 47. Ms. McGowan repeatedly observed Ron experiencing distress during mealtimes during her many mealtime observations. For example, on August 18, 1992, Ron was coughing with almost every swallow and having difficulty breathing. Tr. 7/29/93 (McGowan) at 99-100. Tr. 7/29/93 (McGowan) at 100. On August 20, 1992, Ron was coughing and spurting out food during the mealtime. Immediately after the meal, he was kept flat on his back in his living unit and continued coughing in an attempt to expel what was trapped in his airway. Id. at 112, 113, 128; U.S. Exhs. 229, 258. Three months later, in November 1992, Ebensburg's Director of Occupational Therapy noted that Ron was having difficulty during mealtimes and thought that until Ebensburg got an expert in to assist with Ron, all staff can do is "trial and error." U.S. Exh. 617 (Graham Dep.) at 179. The head of Ebensburg's Dysphagia Team has also observed Ron frequently coughing and possibly choking during meals. U.S. Exh. 641 (Wagner Dep.) at 60, 61. Ron has a history of choking, emesis, and hospitalizations for aspiration pneumonia and bowel obstruction. Tr. 7/29/93 (McGowan) at 111; U.S. Exh. 144. He is frequently
D-14

constipated and Ebensburg acknowledges that his inactivity and diet contribute to his constipation. U.S. Exh. 343 (5/26/93 annual review) at 6; Tr. 7/29/93 (McGowan) at 180. His body mass index (a way of calculating his nutritional health) is only 16.92 — significantly below the lowest limit of the normal range of 21-27. U.S. Exh. 970.
Ms. McGowan has observed Ron being fed in an unsafe manner and in an unsafe position. For example, on one occasion during her tours, Ms. McGowan observed Ron being fed his entire meal in ten minutes. Tr. 7/29/93 (McGowan) at 100. Although Ron's cart is slightly elevated during the feeding process, he is fed in a position that is the equivalent of being flat because he is head is parallel to the ceiling. Tr. 7/28/93 (McGowan) at 94, 111; U.S. Exhs. 228, 258. Ms. McAllister also had concerns about the position in which Ron was fed during mealtimes. Tr. 7/28/93 (McAllister) at 199; U.S. Exhs. 228, 761.
On January 11, 1993, Mr. Bellomo wrote a memo to Mr. Bonfanti, Keystone's Unit Manager requesting a review of Ron's "specific needs in eating." U.S. Exh. 434(aaa). In particular, he queried whether a referral to the Dysphagia Team should be made. Despite Mr. Bellomo's involvement, the Dysphagia Team did not provide Ron with a comprehensive assessment until eight months later. Tr. 10/19/93 (O'Brien) at 95. * Despite the fact that Ebensburg developed the aspiration screening tool in November 1992 and Keystone was directed to screen every resident expeditiously, Ron was not screened using this tool until
1 Ron was also screened by the Dysphagia Team, but not until June 22, 1993, as part of the overall Dysphagia Team screening in Keystone House. U.S. Exh. 970 (Ron E.'s swallowing screening). Although during the screening his positioning was found to be problematic, he did not receive a comprehensive evaluation by the Dysphagia Team until three months later. Tr. 10/19/93 (O'Brien) at 95; U.S. Exh. 970
D-15

May 24, 1993 - two days before his annual review. U.S. Exh. 353 at 6; U.S. Exh. 637 (Sponsky Dep.) at 50. 3. Ebensburg Fails to Provide Ron with Meaningful Training Programs
During her November 1992 observations of what was supposed to be Ron's one hour of day programming, Ms. McAllister only witnessed a sum total of twenty seconds of staff interaction with him. Tr. 7/28/93 (McAllister) at 208-209. Ron's recreational assessment for his annual review held on May 26, 1993, indicates that his recreational activities for the entire year only included one birthday party, unit dances, VCR movies, and living area parties. U.S. Exh. 343. Ron's interdisciplinary team specifically noted during his annual review that his "ability to attend out of unit recreational activities was severely limited by the fact that he is in an orthopedic cart." U.S. Exh. 343 at 5.
D-16

FRANK H. 1. Ebensburg Fails to Provide Frank H. with Adequate Physical Mana
Frank H. is an example of an Ebensburg resident whose deformity patterns have developed due to inadequate intervention and this has caused him to suffer serious health problems. Ms. McAllister worked with Frank during her tour of Ebensburg and provided the Court with a videotape during her direct testimony of her interactions with Frank. U.S. Exh. 261; gee also U.S. Exh. 679 for a picture of Frank.
Frank has severe scoliosis, where his pelvis is up under his rib cage. Tr. 7/28/93 (McAllister) at 111. His intrathoracic structures are distorted and he has restrictive lung capacity due to his scoliosis. Id- at 112. As a result, he has to rely on abdominal breathing. Id. at 139. He has limited flexibility in many of his joints and skin breakdown is starting to occur in the crease inside of his elbow where his arm is tightly bent. Id. at 139-140. His scoliosis has also affected his skin integrity in the side where his body is curved. Throughout 1992, the progress notes in his record reflect that his skin integrity in this area was "fair to poor." Id- at 112. During this time, Frank did not receive any physical therapy services. Id. at 112. In addition, Frank has developed the following deformity patterns: his neck is in hyperextension, his arms are in flexion, he has severe deformities of his wrist, and his legs are wind swept. Id. at 111; U.S. Exh. 679. Frank is confined to a cart. In Ms. McAllister's professional opinion, Frank does not need to live in a cart. Tr. 7/28/93 (McAllister) at 141.
The only physical therapy related service that Frank receives is percussion by a physical therapy aide. The aide only writes a quarterly progress note in Frank's record
D-17

about his percussion treatment. No physical therapist had reviewed and countersigned those notes in the six month period between December 1992 and June 1993. Tr. 10/13/93 (Arnall) at 93; U.S. Exh. 975. State regulations promulgated by the Pennsylvania State Board of Physical Therapy specifically prohibit a physical therapist from permitting supportive personnel to "assume responsibility for patient care or document physical therapy treatment." U.S. Exh. 952; 49 Pa. Code Ch. 40.32(c).2
No physical therapist serves on Frank's interdisciplinary team, even though the team membership was updated as recently as May 1993. Tr. 9/17/93 (Arnall) at 121, 122; U.S. Exh. 975. No physical therapist attended Frank's annual review in either 1992 or 1993. Tr. 9/17/93 (Arnall) at 121, 122. At both Frank's 1992 and 1993 annual review, the team agreed that a physical therapist needed to re-evaluate his cart to determine whether it was the most appropriate mode of mobility available to him. Tr. 9/17/93 (Arnall) at 122; U.S. Exh. 975. Mr. Arnall did not know whether a physical therapist had responded to the requests and could find no indication in the progress notes of Frank's record that a physical therapist responded. Tr. 9/17/93 (Arnall) at 123-125.3
2 Despite this prohibition in State regulation and the fact that reviewing and countersigning notes is a contract objective, Mr. Arnall, one of Ebensburg's consulting physical therapists, does not, in fact, view the clear failure to do this in Frank's case as a "failure to countersign the notes" because "they probably are going to be signed." Tr. 10/13/93 (Arnall) at 94.
3 Although Mr. Arnall testified in September 1993 that if a response was written, it would be contained in the progress notes, during redirect testimony one month later, Mr Arnall was able to produce a "speed message" which is not contained in Frank's record and which consisted of a two sentence response from a physical therapist to the team's 1993 request for assistance with Frank. Tr. 9/17/93 (Arnall) at 130; Tr. 10/13/93 (Arnall) at 113, 117.
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2. Ebensburg Fails to Provide Frank with Adequate Medical and Nutritional Management of his Serious Health Condition a. Inadequate Medical Management Frank has been hospitalized numerous times: twice in 1989 for right lower lobe
pneumonia and aspiration pneumonia, in 1991 for aspiration pneumonia, and in 1992 for acute bronchitis. Tr. 7/27/93 (Sulkes) at 138, U.S. Exh. 144, 788. He also has a history of gastrointestinal bleeding from the lower esophagus. Tr. 7/28/93 (McAllister) at 112; Tr. 7/29/93 (McGowan) at 113. In spite of the fact that Frank continues to have aspiration episodes and it is clear that they are not isolated events, Dr. Sulkes found that no one at Ebensburg has taken the time and effort to figure out why Frank continues to suffer from aspiration pneumonia. Tr. 7/27/93 (Sulkes) at 138. The annual medical evaluation notes in Frank's chart at Ebensburg indicate that the physician's only medical plan for him is "to observe" - not to diagnose or intervene. Tr. 7/27/93 (Sulkes) at 138, lines 21-22. Dr. Rosenthal testified that if the symptoms of gastroesophageal reflux are serious, it is important to take more aggressive action than just observing. Tr. 12/13/93 (Rosenthal) at 163-4.
b. Inadequate Nutritional Management Frank's body mass index is only 13.34. This is more than 25% below the lowest limit of the accepted range of body mass, which Dr. Sheppard has found bears a significant relationship to abnormal stool, gastroesophageal reflux, vomiting, and respiratory illness. Tr. 10/18/93 (Sheppard) at 64. Dr. Sheppard agrees that a body mass index as low as Frank's places him significantly at risk due to his low body weight and compromised nutritional status. Tr. 10/18/93 (Sheppard) at 67-68.
D-19

Frank has received inadequate attention from Ebensburg's Dysphagia Team. He was hospitalized for a week with aspiration pneumonia during January 1991 and was not evaluated by the Dysphagia Team until July 6, 1993 — two and a half years later. U.S. Exh. 949; Tr. 10/18/93 (Sheppard) at 119.
c. Unsafe Feeding Practices Frank is fed in a cart in a reclined position. Tr. 7/28/93 (McAllister) at 112. Although according to his feeding plan his cart is supposed to be elevated to at least a fortyfive to sixty degree angle during feeding, when Ms. McGowan observed him during mealtimes, his cart was elevated less than thirty degrees. Tr. 7/29/93 (McGowan) at 98, 113-114. Frank has had problems with constipation and has had urinary tract infections, both of which can be caused by dehydration. Tr. 7/28/93 (McAllister) at 112. Frank has difficulty handling liquids, but special techniques needed to assist him in being able to manage liquids are not used with him. Tr. 7/29/93 (McGowan) at 114. Everyone who testified in this case about Frank's experiences during mealtimes at Ebensburg observed that he experienced distress while being fed. Ms. McGowan saw Frank coughing significantly and drooling out of both sides of his mouth as he was being fed fluids. Tr. 7/29/93 (McGowan) at 98. The head of Ebensburg's Dysphagia Team admits that she has observed Frank frequently coughing and possibly choking during meals. U.S. Exh. 641 (Wagner Dep.) at 60, 61. Dr. Sheppard observed Frank as recently as July 1993 "distressed" and "ejecting food" - almost one year after Ms. McGowan's similar observations. Tr. 10/18/93 (Sheppard) at 92. In light of Frank's history of hospitalizations
D-20

for lung related problems, Dr. Sulkes also had concerns about Frank's position in his cart when he observed Frank being fed. Tr. 7/27/93 (Sulkes) at 105.
Frank is shown on the videotape that has been entered into evidence in this case as U.S. Exh. 258, being fed spoonfuls that are mounded high with food. Tr. 7/29/03 (McGowan) at 114. Frank is unable to swallow the amount of food and is forced to eject excess food and fluid that staff is attempting to feed him. Tr. 7/29/93 (McGowan) at 114; U.S. Exhs. 231, 232. At one point, the piece of food that staff tries to feed him is so large that it fell off the spoon and landed on Frank's chest before it even gets to his mouth. Frank is also unable to manage the amount of fluids that he is being fed and it dribbles out of both sides of his mouth. Tr. 7/29/93 (McGowan) at 114; U.S. Exh. 258.4 The Commonwealth's sur-rebuttal feeding expert does not think it is "acceptable" to just continue to allow a person to eject food. Tr. 12/16/93 (Hinkle) at 27. He thinks that it is important that the amount of food that a person is fed in each spoonful is an appropriate size so that the food remains in the mouth. Tr. 12/16/93 (Hinkle) at 24. When Dr. Hinkle was presented with a description of Frank's history during his testimony (including the fact that he had been hospitalized for aspiration pneumonia), Dr. Hinkle agreed that he would have concerns if Frank was ejecting food while being fed. Tr. 12/16/93 (Hinkle) at 30. Dr. Hinkle did not think it would be appropriate to continue feeding Frank in this fashion without an assessment by a qualified professional. Tr. 12/16/93 (Hinkle) at 30. Frank was not assessed by the Dysphagia Team
4 Despite the obvious difficulties that Frank was experiencing, the Commonwealth's expert characterized this sequence in the United States' videotape as Frank appearing "fairly comfortable in terms of ease of eating." Tr. 10/12/93 (Sheppard) at 49.
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until July 6, 1993 — eleven months after the feeding videotape in which he was ejecting food. Tr. 10/18/93 (Sheppard) at 119.
Ms. McGowan also has concerns about Frank's position in his cart while he is being fed. Tr. 7/29/93 (McGowan) at 98, 113-114. She repeatedly viewed him being fed at an elevation lower than what was required by his feeding plan. Id. Dr. Sulkes has had concerns, as well, about Frank's position in his cart while he is being fed. Tr. 7/27/93 (Sulkes) at 105. Claire Domino, a supervisor at Keystone, admits that there have been problems keeping Frank adequately elevated and positioned during mealtimes. U.S. Exh. 609 (Domino Dep.) at 55. Ms. McGowan has also observed staff using other poor feeding practices with Frank, including scraping food off of his face and standing above him while feeding him. Tr. 7/29/93 (McGowan) at 118. 3. Ebensburg Fails to Provide Frank with Adequate Training Programs
Frank's interdisciplinary team notes that he displays emotions, responds to his name, recognizes staff, and "appears to have a high level of awareness." U.S. Exh. 975 (4/23/93 annual review at 2). He is being denied the opportunity to develop the ability to identify objects through a head pointer, however, because his position in his cart does not allow this. U.S. Exh. 975 (4/23/93 annual review at 3). He had a skills training program that began in August 1992 to identify a picture by pointing to it with a head pointer. Because of his positioning, however, he was unable to accomplish this skill. Id. Moreover, although he needs glasses and his team feels that they would be beneficial to Frank, he is unable to wear them because his "head positioning in his reclining chair was not conducive to wearing the glasses successfully." Id.
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JEFFK. Jeff K. died of aspiration pneumonia during the course of this trial on September 30, 1993. U.S. Exh. 1108. Jeff also had gastroesphageal reflux. U.S. Exh. 1108 at 3. Dr. Rubin describes the story of his life and death as a "sad one" which is illustrative of systemic interdisciplinary issues, including "issues of seizure management, issues of nutrition, issues of feeding, issues in the evaluation of gastroesophageal reflux, issues in the monitoring of health and well-being, in the securing of consultants, on a regular basis, in working with it and working closely with the regional hospitals to adequately deal with the patients who are referred to them." Tr. 12/13/93 (Rubin) at 110. 1. Ebensburg Failed to Provide Jeff with Adequate Seizure Management Jeff was directly harmed by Ebensburg's actions and inactions. He was harmed due to Ebensburg's overmedication of him; Ebensburg's inability to detect side effects; Ebensburg's failure to recognize that the medications it was using to treat Jeff were, in fact, increasing his number of seizures; Ebensburg's repeated rejection of advice of its consultant neurologist; and Ebensburg's lack of diagnostic techniques, such as the EEG. Tr. 7/30/93 (Alvarez) at 123-125. Jeff also did not receive an adequate amount of neurology consultation. Tr. 7/30/93 (Alvarez) at 136. In January 1991, Jeff was being given five thousand milligrams of Depakote for his seizures. Tr. 7/30/93 (Alvarez) at 120. Dr. Alvarez labelled this as an "inordinately high" amount of this medication. Id. at 124.5 Dr. Chamovitz agreed in a January 1991 consult
5 Dr. Alvarez testified that he rarely goes over three thousand milligrams and never goes over three thousand five hundred. Tr. 7/30/93 (Alvarez) at 121.
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that this dosage is "an unusually large amount" of Depakote for a person Jeffs size. Tr. 7/30/93 (Alvarez) at 121; U.S. Exh. 393A. Although Dr. Chamovitz showed concern about this, Jeffs primary care physicians did not take any action. Tr. 7/30/93 (Alvarez) at 121. The use of this extremely high amount of medication did not result in any better control of Jeffs seizures and, in fact, the seizures increased. Id. Twelve months later, Dr. Chamovitz again raised a concern in a December 19, 1991 consult. Tr. 7/30/93 (Alvarez) at 121; U.S. Exh. 393B. He wrote that in using this high amount of Depakote, "there has not been better control of his convulsions; and actually so far, there seems to have been an increase in his convulsions." U.S. Exh. 393B.
On February 27, 1992, Jeff was admitted to Mercy Hospital for a seizure disorder. Tr. 7/30/93 (Alvarez) at 122; U.S. Exh. 393C. Dr. Chamovitz admitted that Jeff had to be admitted to the hospital because he had high blood levels which made him sedated and lethargic. Tr. 9/15/93 (Chamovitz) at 203. Dr. Chamovitz acknowledged: "The medication was not doing him any good, and he was having side effects." Tr. 9/15/93 (Chamovitz) at 203. At Mercy, the hospital staff realized that the blood level of this medication was too high so they stopped this medication completely. Tr. 7/30/93 (Alvarez) at 122; U.S. Exh. 393C. After the Depakote was stopped, Jeff improved. Tr. 7/30/93 (Alvarez) at 123. He returned to Ebensburg from the hospital on Tegretol; the Ebensburg nursing notes indicated that he ate well for supper later that week, and that the next week he was "alert, active, seems his usual self." Id. Dr. Chamovitz acknowledged that once the hospital had stopped the Depakote, "lo and behold, as Dr. Alvarez points out, he stopped having spells." Tr. 9/15/93 (Chamovitz) at 203. Dr. Chamovitz agreed that "It was not a good medicine for
D-24

him, and the level didn't make any difference." Id. He added that "We just guessed wrong." Id.
When Jeffs medications were changed, he was started on Tegretol, even though he had been on Tegretol previously and it was relatively unsatisfactory. Tr. 12/13/93 (Rubin) at 106. When he began taking Tegretol, Jeff developed "petit mal seizures." Another anticonvulsant, Klonopin6, was added to treat these. Id. at 106-107. In the months before his death, a third and fourth anti-convulsant were added to Jeffs medication regimen. Id. at 107. Coincidental with the addition of the fourth anti-convulsant, Jeffs health rapidly declined. JxL 2. Ebensburg's Treatment of Jeff Is Illustrative of Medical and Nutritional Management
Issues. One of the factors contributing to Jeffs death identified by Ebensburg is "underweight compounded by his poor eating ability and dysphagia" which was "complicated by muscle relaxation from high dose Klonopin in attempt to relieve his absence seizures." U.S. Exh. 1108, Death/Discharge Summary at 10. Jeff was on Klonopin for the eleven months leading up to his death. U.S. Exh. 1108, Death/Discharge Summary at 6. In Ebensburg's review of Jeffs death, the Mortality and Morbidity Committee notes that one of the side effects of Klonopin is increased secretions, a weakening of the swallowing muscle, and dysphagia. U.S. Exh. 1108, M. & M. Comm. Mtg. Minutes at 5. In the eight months prior to his death while he was on Klonopin, Jeff went from an "independent feeder, to the staff having to feed him, to the staff being afraid to feed him, to supervisors feeding him, then to a G-tube." Id.
6 This is transcribed as "Clonopin" in the transcript. D-25

During the summer before Jeff died, Ebensburg "let the staff feed him again. He started to develop more aspiration." Id. In fact, during her tour of Ebensburg in July 1993, Dr. Sheppard observed a direct care staff person feeding Jeff thin liquids despite the fact that his feeding procedure states in big capital letters "No THIN LIQUIDS" and specifically instructs staff to thicken his liquids to a "pudding consistency." Tr. 10/18/93 (Sheppard) 88-89; U.S. Exh. 1002.7
Ebensburg's physician acknowledges that Jeffs dysphagia problems "at the end were due to the Klonopin." Id. Despite the difficulties that Jeff was having, he was not screened by the Dysphagia Team until May 14, 1993. The Dysphagia Team determined that he had severe dysphagia and observed him coughing more than forty-four times during the mealtime. U.S. Exh. 970. The Team did not note that he was on Klonopin, despite the fact such an evaluation should "critically look at the impact of medications," particularly anticonvulsants, on the ability of residents to swallow. Tr. 7/29/93 at 161-162. No one on the Dysphagia Team, however, is responsible for reviewing medications when evaluating a resident for potential dysphagia. U.S. Exh. 641 (Wagner Dep.) at 106. The Team never directly consults with Ebensburg's pharmacist. U.S. Exh. 641 (Wagner Dep.) at 107. At most, the Team only refers to the pharmacist's annual report in the resident's chart. U.S. Exh. 641 (Wagner Dep.) at 107. Although Ms. Wagner is aware that seizure medications and anti-psychotics can cause dysphagia and use of these medications is one of the most common reasons that dysphagia occurs in Ebensburg residents, she is unaware of the specific
7 Dr. Sulkes notes that even a small amount of aspiration is an irritant which is "always a set up for potentially a bigger problem." Tr. 7/27/93 at 107.
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types of seizure medications and anti-psychotics that are more likely to cause dysphagia. U.S. Exh. 641 (Wagner Dep.) at 14.
At the time of his dysphagia evaluation, Jeffs body mass index (BMI) was 15.21, this is more than 25% below the lowest number of the acceptable BMI range of 21-27. U.S. Exh. 970. Dr. Sheppard believes that an individual with this low a body weight is at significant risk due to their low body weight and compromised nutritional status. Tr. 10/18/93 (Sheppard) at 67-68.
During his review of the Mortality and Morbidity Committee review of Jeffs death, Dr. Rubin was "frustrated" that the clinical management issues discussed during the review had not been explored by the group prior to Jeffs death. Tr. 12/13/93 (Rubin) at 106. For example, during the Mortality and Morbidity Committee review of Jeff s death, Mr. Bellomo determined that it was important that Ebensburg's pharmacist provide the Dysphagia Team with a list of medications that can cause dysphagia. U.S. Exh. 1108, M. & M. Comm. Mt. Minutes at 5. This same issue had previously been raised by the United States during the deposition of John Fris, Ebensburg's pharmacist some eleven months earlier. During his deposition, Mr. Fris admitted that the Ebensburg pharmacy does not keep a list of the individuals who are prone to aspiration. U.S. Exh. 612 (Fris Dep.) at 89-90. Although he agreed that there are a number of medications that can contribute to chewing or swallowing difficulties, he was not aware of those individuals with chewing or swallowing difficulties at Ebensburg. U.S. Exh. 612 (Fris Dep.) at 92. Moreover, he has never tried to find out which individuals have serious medical conditions that could be adversely affected by medications. U.S. Exh. 612 (Fris Dep.) at 93. Mr. Fris further admitted that it is important
D-27

to have a list of all of the presenting conditions of all of the individuals at Ebensburg, but there are not enough pharmacists to maintain such a list. U.S. Exh. 612 (Fris Dep.) at 90, 93. To not have such a list is "obvious risk." U.S. Exh. 612 (Fris Dep.) at 90, line 16. 3. Ebensburg Failed to Protect Jeff from Harm
Jeff was subjected to harm while at Ebensburg. Between April 1990 and November 1991, he suffered 21 injuries, including several lacerations that required sutures or ethistrips. U.S. Exh. 136 at 00003409. Almost half of these injuries were not observed by staff. Id..8 In September 1992, Jeff lacerated his head from hitting it on a couch while he was down on the floor during mat time. U.S. Exh. 1023. In April 1993, he was self-abusive and suffered a bloody nose from his wheelchair tray. U.S. Exh. 136 at 00599893. On July 8, 1993, Jeff was found laying at the foot of his bed with a bleeding laceration on his head. In the recommendation section of his incident report, the supervisor writes "With Jeffs behaviors (throwing himself about, etc.), this small injury is within normal risk limits." U.S. Exh. 984.
Other injuries that Jeff has sustained have resulted from his behaviors, including head butting. Exh. 136 at 00003409. His aggressive behavior was treated with Haldol, a powerful psychotropic medication. U.S. Exh. 1108, Death/Discharge Summary at 9; Tr. 8/3/93 (Fahs) at 66-67; Tr. 9/14/93 (Lubetsky) at 152.
On February 13, 1992, a direct care trainee witnessed staff place a pillow case over Jeff's head while drawing blood, and when he asked why, staff replied that "we always do that." U.S. Exh. 133 at 6658. Jeffs behavior program did not permit such a procedure.
8 These are rated as a "17" in the column identified as causes. D-28

Id. at 6679. An investigation revealed that of the four regular staff in JefFs living area, only one had been inserviced on JefFs behavior program. Id. at 6673.
Jeff appears on the videotape admitted into evidence as United States' Exhibit 262. He is shown in his day program on February 23, 1993. Jeff, who used to be able to walk, make sounds, and interact, is sitting alone, removed from the rest of the group, without any staff interaction, with nothing to do, and "very bored." Tr. 7/26/93 (Stark) at 160. He is banging on the lap board on his wheelchair. Tr. 7/26/93 (Stark) at 159. Dr. Stark was struck by Jeff and focused on him with his camera. As he narrated the videotape, Dr. Stark described Jeffs frustration from his boredom with nothing to do and concluded that he was "trapped in his body, not being able to do anything, yet being aware of what is going on." Tr. 7/26/93 (Stark) at 160.
D-29

TEMP. 1. Ebensburg Has Failed to Provide Tim P. with Adequate Physical Management and
Physical Therapy and He Has Suffered Serious Deformities as a Result Tim P. is thirty-three years old. He has been at Ebensburg since a month before he turned three. Tr. 7/28/93 (McAllister) at 103; U.S. Exh. 973. At the time of his admission to Ebensburg, he was able to walk on his toes with assistance and could babble. Tr. 10/15/93 (O'Brien) at 77-78; U.S. Exh. 973. Tim's parents noted on their application for his admission to Ebensburg that Tim could take a few steps with help. Tr. 10/15/93 (O'Brien) at 77-78. Mr. Arnall agrees that "if at this time some intervention had been made to try to prevent him from becoming scoliotic, it may have helped." Tr. 9/17/93 (Arnall) at 199, lines 7-8. Tim is currently immobile and lives in a cart in Keystone. Tr. 7/28/93 (McAllister) at 103. His scoliosis has developed to the point where his hip is actually up underneath his rib cage. Tr. 7/28/93 (McAllister) at 103; U.S. Exh. 670. Tim does receive any physical therapy services. Tr. 7/28/93 (McAllister) at 105. Because he spends his day being "pancaked,'1 or turned from his stomach to his back, his chest has been flattened and his muscles are very tight through his upper chest region. Tr. 7/28/93 (McAllister) at 104. As a result, it is difficult for Tim to breathe and he has become a shallow breather. Id. Tim's physical therapy assessment is representative of the types of deficiencies that Ms. McAllister found to be "consistent across all the assessments." Tr. 7/28/93 (McAllister) at 123; U.S. Exh. 433 (a). Tim's assessment does not contain any information about his shoulder subluxation, neck hyperextension, wind swept legs, labored breathing, flat chest, the type of reflex or spasticity patterns he exhibits in different positions, the difference in tone
D-30

throughout different parts of his body, and how to help maintain him in better alignment. Tr. 7/28/93 (McAllister) at 121, 122; U.S. Exh. 433(a). His physical therapy assessment also does not include goals, any expectations for change, or any physical management plan, including the types of positions he should be in throughout his day and movement opportunities. Id. at 123.
The only positioning plan that Tim has is a nursing procedure. This is the exact same positioning plan that he has had for more than six years — since March 1987. U.S. Exh. 973. The plan only calls for turning Tim from his stomach to his back. Tr. 7/28/93 (McAllister) at 103; Tr. 9/17/93 (Arnall) 196-197; U.S. Exh. 973. Even this is only done between the hours of 10:00 a.m. and 8:00 p.m. U.S. Exh. 973.9 Tim is not maintained in proper alignment while in his cart. Tr. 7/28/93 (McAllister) at 103.
The last orthopedic evaluation that Tim had was in December 1981. Tr. 10/13/93 (Arnall) at 32, 35; U.S. Exh. 1005.10 At that time, Tim was twenty-one years old." Mr. Arnall agrees that people in their twenty's are within the age group where skeletal maturity may not have occurred. Tr. 9/17/93 (Arnall) at 36. At the time of his 1981 orthopedic
9 Mr. Hauenstein, a contract physical therapist at Keystone until December 1992, agrees that, at a minimum, staff should reposition individuals who can not reposition themselves every two hours. U.S. Exh. 619 (Hauenstein Dep.) at 100.
10 Following Mr. ArnalPs testimony on September 17, 1993 and before his cross examination in October 1993, Tim had an orthopedic evaluation on September 29, 1993. Mr. Arnall admits that Tim had had no orthopedic evaluation in the twelve year interim between his December 1981 evaluation and this most recent one. Tr. 10/13/93 (Arnall) at 35.
11 Counsel for the United States incorrectly identified Tim's age as 24 at the time of the orthopedic evaluation. Tr. 10/13/93 (Arnall) at 32. Both Mr. Arnall and Ms. McAllister testified that Tim is currently 33, therefore he was 21, not 24 in 1989. Tr. 7/28/93 (McAllister) at 103; Tr. 9/17/93 (Arnall) at 28.
D-31

evaluation, Tim was able to sit in a wheelchair. Tr. 10/13/93 (Amall) at 32; U.S. Exh. 1002. The orthopedist describes Tim's condition as "a mild scoliosis that appears to be not a clinical problem at this time." U.S. Exh. 1002. The orthopedist specifically recommends that Tim should go to physical therapy for stretching exercises. Tr. 10/13/93 (Arnall) at 32; U.S. Exh. 1002. The orthopedist also recommends evaluation and training to teach Tim "to use his upper extremities for purposeful movements, perhaps positioning the hands in a way they can be useful for him." U.S. Exh. 1002. Twelve years later, Tim can no longer sit in a wheelchair. Tr. 7/28/93 (McAllister) at 103. He can only move his hands "a little bit." Id.
The physical therapists at Ebensburg have not established any goals for Tim. Tr. 10/13/93 (Arnall) at 5. Mr. Arnall and the other physical therapists who contract with Ebensburg believe that "obviously . . [they] cannot provide anything for him." Tr. 9/17/93 (Arnall) at 197, lines 15-16. This attitude towards Tim and other Ebensburg residents is contrary to established literature in the field, including the treatise Physical Management of Multiple Handicaps. In this book, the authors set forth a number of therapeutic positions for people who have a C-shaped scoliosis and other fixed body deformities. Physical Management of Multiple Handicaps at 167-187.
The physical therapists' attitude towards Tim is also contrary to the attitude of Ebensburg staff who work with Tim. After observing demonstrations by Ms. McAllister with Tim, Ebensburg staff were excited about the possibility of doing something more for Tim. For example, Ms. Malloy, the nurse supervisor in his building, learned that Tim could be "relaxed," his legs could be straightened, and he "was so calm." U.S. Exh. 622
D-32

(Malloy Dep.) at 102, 103, lines 5-6. One of the occupational therapy aides (LOTA) in Tim's building was "quite impressed" with Ms. McAllister's demonstration with Tim. U.S. Exh. 610 (Fagan Dep.) at 36, line 25. She was particularly impressed with the fact that Ms. McAllister was able to relax Tim to the point that he "was straight in his cart as compared to having curvatures." U.S. Exh. 610 (Fagan Dep.) at 37, lines 4-5. The LOTA now believes that deformities, such as Tim's, could potentially be reversed if more time could be spent on positioning at Ebensburg. U.S. Exh. 610 (Fagan Dep.) at 95-96. 2. Ebensburg Has Failed to Provide Tim with Adequate Nutritional and Medical
Management When Dr. Sulkes observed Tim during his last tour of Ebensburg in November 1992, he had concerns about Tim and Ebensburg's failure to provide him with adequate medical care. Tr. 7/27/93 (Sulkes) at 139. Although Tim had had brown tinged vomitus and he is anemic, no one at Ebensburg had checked his stool. Tr. 7/27/93 (Sulkes) at 139; Tr. 7/29/93 (McGowan) at 115. No one had worked him up to determine where his bleeding was coming from. Tr. 7/27/93 (Sulkes) at 139. Further, Ebensburg had not provided him with a swallowing study or a barium swallow study. Tr. 7/27/93 (Sulkes) at 139. Although as of January 1993, Kathy Wagner, the head of the Dysphagia Team readily identified Tim as someone who frequently coughs and is possibly experiencing recurrent choking during meals, the Dysphagia Team had not evaluated him. U.S. Exh. 641 (Wagner Dep.) at 60, 61. In March 1993, Tim was hospitalized for pneumonia. U.S. Exh 144. Tim's body mass index (EMI) as of June 1993 was 12, which is almost 40 % below the lowest acceptable
D-33

number. U.S. Exh. 970.12 As of the time of Dr. Sheppard's tour in July 1993, Tim's condition had deteriorated to the point that he was being fed by a gastrostomy tube. Tr. 10/18/93 (Sheppard) at 96; Tr. 7/29/93 (McGowan) at 115; Tr. 7/28/93 (McAllister) at 104. 3. Ebensburg Has Failed to Safely Feed Tim
Tim also has difficulty eating. He has an abnormal swallowing pattern. Tr. 7/29/93 (McGowan) 115. Although Tim is one of only three Keystone residents who is on an occupational therapy program for feeding, he is still being fed unsafely. U.S. Exh. 617 (Graham Dep.) at 117-118; Tr. 7/29/93 (McGowan) at 115. His program was written by an occupational therapy assistant (LOTA), instead of an occupational therapist. U.S. Exh. 617 (Graham Dep.) at 118. Tim is shown on the videotape admitted into evidence as U.S. Exh. 258 being fed by a LOTA and experiencing significant distress. The LOTA who is feeding Tim, attempts to continue feeding him additional food and fluid while his mouth is full of food that he is unable to swallow. Tr. 7/29/93 (McGowan) at 115; U.S. Exh. 258. The only training that the LOTA feeding him received in how to feed individuals with developmental disabilities and physical disabilities was in 1980 from an occupational therapist at Keystone. U.S. Exh. 610 (Fagan Dep.) at 25-26, 34. The LOTA has not had any courses outside of Ebensburg on how to feed individuals with physical disabilities. U.S. Exh. 610 (Fagan Dep.) at 34. When Dr. Sheppard viewed Tim being fed on the United States' feeding videotape she admitted that "certainly there is a problem here." Tr. 10/12/93 (Sheppard) at 51. Dr. Sheppard also agreed that given Tim's "marked" and "complex" problems, there
12 Dr. Sheppard has found that BMI bears a significant relationship to abnormal stool,
gastroesophageal reflux, vomiting, and respiratory illness. Tr. 10/18/93 (Sheppard) at 64. She agrees that a body mass index as low as Tim's causes significant risk due to low body weight and compromised nutritional status. Tr. 10/18/93 (Sheppard) at 67-68.
D-34

should be an assessment to determine whether he was experiencing oral motor difficulties because another feeding technique might make his eating better. Tr. 10/12/93 (Sheppard) at 51, 52; Tr. 10/18/93 (Sheppard) at 7. Although the head of Ebensburg's Dysphagia Team agreed during her deposition in January 1993 that she had observed Tim frequently coughing and possibly choking during meals, Tim did not even have a screening by Ebensburg's Dysphagia Team until June 1993 - 6 months later. U.S. Exh. 641 (Wagner Dep.) at 60, 61; U.S. Exh. 970. In between the time the videotape was taken and June 1993, Tim was placed on a feeding tube. Tr. 7/29/93 (McGowan) at 115. When Dr. Sheppard observed Tim being fed in July 1993, staff were still feeding him unsafely by not implementing the specific instructions in his feeding plan for positioning him by elevating his cart to a certain angle. Tr. 10/18/93 (Sheppard) at 96.
Dr. Sulkes also had concerns when he saw Tim being fed during both his September and November 1992 visits. Tr. 7/27/93 (Sulkes) at 100-101. In September 1992, Dr. Sulkes saw a LOTA feeding Tim by pouring fluid from a spouted cup into Tim's mouth without ensuring that Tim's mouth had closed. Tr. 7/27/93 (Sulkes) at 100-101. He has also observed Tim being fed while he was coughing. Tr. 7/27/93 (Sulkes) at 99, 101.
On July 17, 1990, Tim had a distressed look on his face. U.S. Exh. 160 (interdisciplinary notes). He vomited a large amount of dark brown material with a piece of what the nurse thought was rubber or plastic, perhaps from a rubber glove. Id.; Tr. 7/29/93 (McGowan) at 115. He subsequently experienced heart related problems resulting from the vomiting. U.S. Exh. 160 at 2. Tim is unable to move his hands to his mouth and
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Ebensburg was unable to determine how he ingested this foreign body but recognized that
staff need to be "more conscious of their feeding responsibilities." Id. at 1.
4. Ebensburg Fails to Provide Tim with Training Programs and Meaningful Activities
Tim appears several times in the videotape taken by Dr. Stark on February 23, 1993,
that is in evidence as United States' Exhibit 262. The first time Tim appears, he is in his
one hour of day programming off of his living unit. He is in his cart, staring at the ceiling,
separated from the rest of the group, and there is no attempt to involve him in any activity.
Tr. 7/26/93 (Stark) at 159, 160. Absent any interaction with other residents or staff, Tim
spends his day staring at a fluorescent light. Tr. 7/26/93 (Stark) at 160. "That is his life, every day, is to look at that ceiling." Tr. 7/26/93 (Stark) at 160.13 Dr. Stark found that
Tim's "world is the ceiling." Tr. 7/26/93 (Stark) at 168. Dr. Stark has interacted with Tim
and believes he is very much aware of his surroundings: "As soon as you [interact with
him], he starts to smile. You can see the glimmer in his eyes." Tr. 7/26/93 (Stark) at 160.
13 Dr. Stark contrasted what he observed at Keystone with a videotape of John, his son. Tr. 7/26/93 (Stark) at 210; U.S. Exh. 262(a). Like Tim P., John had meningitis when he was a few months old and has significant physical disabilities along with his severe and profound mental retardation. Tr. 7/26/93 (Stark) at 210, 211. John has been through thirteen operations, has to be suctioned frequently, is dependent on a tube to be fed, has twenty to thirty seizures a day, and has spastic cerebral palsy. Unlike Tim, his limbs are not severely contractured because John has received adequate care over the years. In contrast to Tim, who spends his day staring at the ceiling, John is involved with other people in meaningful activities, such as cooking, swimming, and learning to operate a switch to activate a computer. Tr. 7/26/93 (Stark) at 211. Because John has only slight movement in his hands, the switch is attached to his jaw. By moving his jaw, he can activate the switch and control what is happening on the computer. Through use of the switch, John can communicate and has some control over his environment to gain some independence in his life. Tr. 7/26/93 (Stark) at 212. John has also learned to communicate by blinking his eyes and indicating "yes" or "no." This videotape of John demonstrates that even the most severely involved people with
mental retardation and physical disabilities are "capable of learning and interacting with their
environment." Tr. 7/26/93 (Stark) at 21.
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Tim has had the same schedule since October 1991. Tr. 10/15/93 (Bellomo) at 30; U.S. Exh. 1016. His schedule lists two behavioral objectives that he is supposed to be working on while he is at the learning center (activate hand held control for radio and respond to staff request), both of which were discontinued in 1992 without any replacements noted on his schedule. Tr. 10/15/93 (Bellomo) at 31; U.S. Exh. 1016. Tim spends his afternoon in his living unit where he is supposed to be working on another behavioral objective (touch the keys on a keyboard), but that objective was also discontinued in 1992 and not replaced. Id.
D-37

JAMES S. 1. Ebensburg Fails to Protect James S. from Harm -- Inadequate Psychology Services
and Training Programs a. Failure to Revise Training Programs James S. had the highest number of incidents at Ebensburg during the 50 month period between January 1989 and February 1993. Tr. 7/26/93 (Stark) at 130. During this time he sustained more than 200 injuries. U.S. Exh. 777. United States' Exhibit 479 is a compilation of some of James' more recent incident reports, along with Ebensburg's own summary chronicling its inaction in the face of continuing, significant injury and repetitive harm. Tr. 7/26/93 (Stark) at 131-132. For 40 injuries between March and October 1992, Ebensburg's only response is "no change to IHP (individual habilitation plan)" and "behavior plan to continue," with the exception of a recommendation to start a psychotropic medication, a recommendation to change his living area, and a notation that James was "counseled" after he ripped off his toenail. Tr. 7/26/93 (Stark) at 131; U.S. Exh. 479. There is no response to his injury on June 23, 1992, when he put his head through a glass window in the dining room. U.S. Exh. 479 at 00050469. b. Failure to Provide James a J^ehavior Program for his Severe Self-Injurious
Behavior James does not have a behavior program for his severe self-injurious behavior. Tr. 8/2/93 (Russo) at 75. James's annual psychological evaluation identifies several behavior deficits, including aggression, punching, kicking, biting, scratching, or throwing objects, and aggression to the environment, and self-injurious behavior such as head banging, stabbing himself with a utensil, or falling backwards. U.S. Exh. 640 (Stratton Dep.) at 144. The
D-38

only target behaviors included in James' behavior program are for aggression, which is defined as "hitting, slapping, kicking, and spitting." U.S. Exh. 640 (Stratton Dep.) Exh. 3. Although James does have a behavior program for aggression that purports to also address his self-injurious behaviors, there is insufficient documentation in James' record to suggest that James' self-injurious behavior and his aggression are related and amenable to the same treatment. Tr. 8/2/93 (Russo) at 75, 112-113; Tr. 8/3/93 (Fahs) at 130-131 (James' selfinjurious behaviors are inappropriately "lumped together" for treatment purposes with other distinct unrelated behaviors).
In November 1992, when Ebensburg approved the use of Sinequan on an emergency basis for treatment of James' depression, James' team was instructed to submit a behavior program addressing James' self-injurious behavior together with a restrictive procedure request to the Behavior Intervention Committee. U.S. Exh. 922. The December 1992 minutes of the Behavior Intervention Committee, when a restrictive procedure request for James (client #806) was submitted, reflect no discussion of a behavior program for James for his self-injurious behavior. U.S. Exh. 42(c) at 541414. One month later when the Psychology Discipline Coordinator, Dr. Stratton, was deposed, he admitted that James' behavior program could be expanded and may be confusing to staff about how to respond to James' self-injurious behavior. U.S. Exh. 640 (Stratton Dep.) at 153, 168. This aspect of James' behavior program is still the same. U.S. Exh. 856.
James has suffered many, many injuries due to his self-injurious behaviors. U.S. Exh. 479. James' injuries from self-abuse continued even at the time of trial. U.S. Exh. 958. For the period May through mid-August 1993, James engaged in self-injurious
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behavior four times, including breaking two mirrors and using the glass to cut his head open, hitting his head on the door causing four cuts to his forehead, hitting his head on a metal desk and lacerating his scalp, and removing his toenail. No change was made in his behavior program. U.S. Exh. 958.
c. Failure to Conduct a Functional Analysis of James1 Behaviors At the time of Dr. Stratton's deposition in January 1993, James did not have an adequate functional analysis. U.S. Exh. 640 (Stratton Dep.) at 175. Dr. Stratton admitted that the seriousness of James' behavior warranted a comprehensive written functional analysis before 1993. U.S. Exh. 640 (Stratton Dep.) at 176. It took Ebensburg another two and a half months to complete a functional analysis of James' behaviors. U.S. Exh. 964. During this time period, James tore off one of his toenails and one of his fingernails, hit his head on the wall hard enough to cause a scalp laceration, and hit another client on the head so hard it reopened a wound on James' hand. U.S. Exh. 479. The incident where James hit his head on the wall occurred on February 17, 1993 — one month after Dr. Stratton's deposition. On the occurrence report documenting that injury, the supervisor in James' living area was unable to make any recommendations for prevention of recurrence of James' self-abuse because there was no knowledge of what causes James' behaviors, despite the fact that his behaviors seemed to be getting worse. U.S. Exh. 479. It still took Ebensburg another 6 weeks to perform a functional analysis for James.
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d. Failure to Intervene to Prevent Injuries to James and Others due to James' Behaviors
James' case is also illustrative of Ebensburg's failure to intervene at an early stage to prevent self-injurious behavior, despite James' known history of inflicting wounds to his head with sharp objects. Tr. 7/26/93 (Stark) at 132. For example, on July 13, 1992, James came into the day room with blood on his hands and face. He showed staff that he had stabbed himself on the forehead with a pair of scissors. Tr. 7/26/93 (Stark) at 132. His occurrence report notes that he had been crying all day and was upset because his parents did not attend the family picnic. Tr. 7/26/93 (Stark) at 132; U.S. Exh. 479. According to Pennsylvania Office of Mental Retardation policy, leaving a resident who requires supervision unattended or allowing a resident access to harmful substances such as chemicals and sharp instruments constitutes neglect. Tr. 10/19/93 (O'Brien) at 61.
Staff also fails to intervene at an early stage to prevent injuries due to James' aggressive behaviors. For example, earlier in the day on January 19, 1992, James had been restrained in a papoose board due to his aggressiveness, but continued to disturb others after being released. At 10:30 a.m., James hit Ibrahim D., and Ibrahim kicked James about 10 times in the head and face before staff could separate them. U.S. Exh. 107. The Unit Manager at Villa, where the incident between James and Ibrahim took place, agrees that early intervention is the "key" to stopping aggressive behaviors. U.S. Exh. 607 (Degretto Dep.) at 163. She acknowledges that in order to intervene early, staff have to know the antecedents of the aggressive behaviors and have to know the resident. U.S. Exh. 607 (Degretto Dep.) at 163. She also identifies "positive approaches" and "communication" as big factors in early intervention. U.S. Exh. 607 (Degretto Dep.) at 163.

2. Ebensburg Fails to Protect James from Harm — Undue Restraint In spite of 106 episodes of restraint in a two year period, James's behavior program
for aggression was continued without change by Ebensburg during the period January 1990 through February 1993, except to change his drugs and replace use of the papoose board with use of floor control in late 1992. U.S. Exh. 42(c) at 4863, 4891, 4910, 4825, 4830, 4937, 541441, 541426, 541416.
James' psychologist is also failing to consider non-medication alternatives for James behaviors. For instance, on March 22, 1993, James pulled his toenail off. James' psychologist states that "he continues to receive medication to address his depression. No changes are recommended to his current programming." U.S. Exh. 117. 3. Ebensburg Fails to Provide James with Adequate Psychiatric Care
Dr. Fans concluded that James is being harmed by not receiving psychiatric treatment that is effective for him. Tr. 8/3/93 (Fahs) at 132. James continued to receive high doses of Haldol for three years without any evidence that it was helpful. Tr. 8/3/93 (Fahs) at 131. Dr. Fahs explained that this exposed James to real harm given that he must incur the significant risk of side effects from Haldol, and yet there was no evidence that it was helpful to treat his ill-defined behaviors. Id. He added that one simply needs to make the absolute best efforts possible to treat this kind of severe self-injurious behavior and James is not receiving that kind of treatment from Ebensburg. Tr. 8/3/93 (Fahs) at 132.
Dr. Fahs testified that there was a real problem with respect to the specificity and adequacy of the psychiatric assessment process given to James. Tr. 8/3/93 (Fahs) at 131. Dr. Fahs noted that James suffered a lot of injuries because of his self-injurious behavior.
D-42

Tr. 8/3/93 (Fahs) at 130. However, Dr. Fahs noted that James' self-injurious behavior had been lumped together for the sake of treatment with other distinct unrelated behaviors such as stealing, aggression, non-compliance and 'pesty-type' behavior. Tr. 8/3/93 (Fahs) at 130-1. Dr. Fahs indicated that "it just didn't make any sense to me at all" that Ebensburg would lump together head banging and stabbing yourself with a fork with non-compliance and pesty behavior. Tr. 8/3/93 (Fahs) at 131. 4. Ebensburg Fails to Intervene in James' Unsafe Eating Practices
On December 1, 1991, James choked on dinner by overstuffing his mouth and then drinking juice without pausing. U.S. Exh. 273. James choked, like other Ebensburg residents, because staff are not monitoring, moderating, and intervening when residents are overstuffing their mouths and/or eating too fast. Tr. 7/29/93 (McGowan) at 145; U.S. Exh. 273.
D-43

DENISE V. 1. Ebensburg Fails to Protect Denise V. from Harm — Inadequate Behavior Programs
Denise V.'s mother was one of two parents of Ebensburg residents who testified at trial about the long-term harm that their children have suffered at Ebensburg. Denise's mother, Marian Dekowski, chronicled the injuries that her daughter has sustained under Ebensburg's care. Tr. 7/26/93 (Dekowski) at 171. Ms. Dekowski placed Denise at Ebensburg when Denise was five years old and Denise has lived at Ebensburg for the past 31 years, except for a very short stay at Somerset State Hospital. Tr. 7/26/93 (Dekowski) at 172. When Ms. Dekowski brought Denise to Ebensburg at age five, Denise was a happy, healthy, active child who had no scars or marks on her body and could walk freely and run. Tr. 7/26/93 (Dekowski) at 172. Denise had not suffered any head injuries before she was institutionalized at Ebensburg. Tr. 7/26/93 (Dekowski) at 172.
Denise now has several scars and marks on her body and "her head has an indented look on the skull." Tr. 7/26/93 (Dekowski) at 173, line 12. Denise's head is indented because she bangs it on walls and furniture. Tr. 7/26/93 (Dekowski) at 173; U.S. Exh. 493(aa). Denise now walks with a limp. Tr. 7/26/93 (Dekowski) at 174. Ebensburg has never informed Ms. Dekowski that Denise suffered a leg injury. Tr. 7/26/93 (Dekowski) at 174. Ms. Dekowski believes Denise limps due to head injuries. Tr. 7/26/93 (Dekowski) at 174; U.S. Exh. 493(cc). While visiting Denise, Ms. Dekowski has seen "many, many bite marks on her arms, and she has marks on her face, scars." Tr. 7/26/93 (Dekowski) at 175. During one of Ms. Dekowski's visits, Denise had a black eye and her shoulders were covered with claw marks. Tr. 7/26/93 (Dekowski) at 175; U.S. Exh. 493(bb). Two days

before Ms. Dekowski testified, Denise was found with multiple bruises on her upper thighs and an abrasion on her right knee. U.S. Exh. 958 (7/24/93 Inc. Rep.). Staff do not know "how, when, or where" Denise injured herself but note that she frequently throws herself to the ground and pounds her legs. Id. Several days after Ms. Dekowski testified, Denise was again found with a bruise on her leg. U.S. Exh. 958 (7/29/93 Inc. Rep.). This time staff note the injury was discovered immediately after Denise was self-abusive.
Denise does not have a behavior program for her severe self-injurious behavior, even though she has suffered serious and repeated injuries due to her behavior of banging her head on walls, floors, and windows. Tr. 8/2/93 (Russo) at 75. Between May and August 1993, Denise engaged in self-injurious behavior on at least four occasions, including lacerating her scalp from hitting her head on a wooden divider. Ebensburg recommended that no changes be made to Denise's current behavior program. 2. Ebensburg Fails to Protect Denise from Harm -- Undue Restraints
Between January 1990 and February 1993, even though Denise had been subject to continuing restraints, Ebensburg's Behavior Intervention Committee recommended that Denise's behavior program be continued except to change her drugs and replace use of the papoose board with use of floor control in late 1992. U.S. Exh. 42(c) at 4879, 4895, 4919, 4836, 541460, 541433, 541421-22. Since January 1, 1991, Denise has been restrained a number of times due to her aggression or her self-injurious behaviors. U.S. Exh. 993.
Ebensburg is treating Denise's behaviors with behavior-modifying medications instead of providing an adequate, effective behavior program. In addition, Denise's psychologist has failed to consider non-medication alternatives for Denise's behaviors. For instance, on
D-45

December 29, 1992, Denise "had been kicking at others all evening." When she kicked Kathy W., Kathy "grabbed Denise by the shoulders and pushed her head first to the floor." Denise struck her face and head on chair legs. Denise's psychologist states "Denise's problems are mainly due to her psychiatric diagnosis. Will recommend an increase in Tegretol next drug review."
D-46

JAMES W. 1. Ebensburg Fails to Protect James W. from Harm
a. Ebensburg Staff Fail to Intervene to Protect James from his Peers' Aggression The second parent to testify about Ebensburg's failure to protect her child from harm was James W.'s mother, Mrs. Weakland. Mrs. Weakland testified about repeated, significant harm to her son, James, who, within a three year period of living at Ebensburg, had three emergency hospitalizations for such severe injuries as a ruptured globe in his eye, a fractured jaw, and a ruptured spleen along with broken ribs. Tr. 7/26/93 (Weakland) at 190-196. For the period January 1989 until February 1993, James suffered 57 injuries and incidents at Ebensburg. U.S. Exh. 777. James suffered three very serious injuries in that time period. In 1989, one of James' eyes was knocked out when he fell against a chair. Tr. 7/26/93 (Weakland) at 190-193. Ebensburg records indicate that the enucleation was not the result of an accident. U.S. Exh. 135. On November 20, 1991, at 10:15 a.m., James' jaw was fractured during a fight with Alan G., another blind Ebensburg resident, at the JFK Learning Center at Ebensburg. Tr. 7/26/93 (Weakland) at 194; U.S. Exh. 501(aa). Before staff could intervene to break up the fight, a table was upset, chairs were thrown, a bench seat was three feet from the wall, and lockers were moved. U.S. Exh. 501(aa). An Ebensburg physician did not examine James until two days later, at which time he was found to have a fractured jaw. U.S. Exh. 501(bb). James required surgery for the fracture, and his jaw was wired shut. James could only drink through a straw while his jaw was wired shut. Tr. 7/26/93 (Weakland) at 195; U.S. Exh. 501(bb). Following surgery, the discharge report from Mercy Hospital
D-47

specifically recommended that James "is to be isolated from other combative residents at Ebensburg." U.S. Exh. 501(cc) at 338273.
On September 26, 1992, at 8:30 a.m. on Horizon House's East II living area, two staff were in the dining room, one staff was in the bathroom helping with shaving, and one staff was in the dayroom. The staff person in the dayroom heard yelling from a bedroom and when he went back to investigate, he saw Keith B. hitting and kicking James. On the incident report describing the event, James' psychology services associate ("PSA") noted that James has had altercations with Keith B. in the past. U.S. Exh. 501(dd).
James was finally sent to the hospital at 12:30 p.m. (four hours after the original injury) and found to have a ruptured spleen, pneumothorax, and two liters of blood in his abdominal cavity. He had to have emergency surgery to remove his spleen. Tr. 7/26/93 (Weakland) at 196; U.S. Exhs. 501(dd)(ee)(ff); U.S. Exh. 623(aa). James developed pneumonia following the September 1992 injuries. Tr. 7/26/93 (Weakland) at 199-200; U.S. Exh. 501(gg) (excerpts from James' medical record describing the pneumonia); U.S. Exh. 501(hh) (Mercy Hospital discharge report concerning the hospitalization for pneumonia). About four weeks before trial, Mrs. Weakland saw a big cut on the lower part of James' knee and now there is a scar. Tr. 7/26/93 (Weakland) at 200. On the day that Mrs. Weakland testified about Ebensburg's failure to protect James from harm, he suffered two additional injuries. U.S. Exh. 501. Staff found James that morning with a swollen and painful knuckle that was slightly discolored. Staff do not know how it happened but James stated that he punched the wall. Id. Later that day, James was pushed from behind by another resident and hit his head on the door frame, cutting his forehead.
D-48

A staff trainee at Ebensburg, Robin Hebenthal, witnessed a large staff person throw James, who is blind, onto the couch. James stood up and "put up his dukes," and the staff pushed James onto the couch again. The staff person then said to the other staff, "Oh, let him come at me again," and "I'll break his freaking jaw again." Tr. 8/3/93 (Hebenthal) at 210, lines 12-13.
b. Failure to Provide James a Behavior Program for his Inappropriate Sexual Behaviors
Dr. Stark found that James does not have a behavior program for his inappropriate sexual behavior. U.S. Exh. 780. Mr. Bellomo knew as far back as December 1991 that James was sexually aggressive. Tr. 10/14/93 (Bellomo) at 108. In spite of this knowledge, Mr. Bellomo placed James in Keystone House to recuperate from his fractured jaw. A few weeks later, in January 1992, James was found in a Keystone bathroom stall with Keystone resident Vincent V., Vincent's underwear was down, and James was straddling him. Following three more incidents in 1992 where James was engaged in a sexual activity with another client, James' team met on October 28, 1992. James' team decided to acquire a private bedroom for James and to contact a certified sex therapist for James. U.S. Exh. 501 (summary chart of Ebensburg's response to James's sexual behaviors). James' sexual behaviors continued. After six such incidents, on November 12, 1992, Mr. Bellomo issued a memo stating that James should be moved to a private bedroom "immediately." On Thursday, November 19 at 5:10 a.m., James was found in bed with another individual disrobed from the waist down. Later that same day, at 10:00 a.m., James was found in the
bathroom on his living unit engaging in anal intercourse with Michael W., a Hepatitis B
carrier. U.S. Exh. 501. James was not moved to a private bedroom until more than two
D-49

weeks after Mr. Bellomo's memo, on November 27, 1992, nearly a month after James' team recommended that he be moved to a private bedroom. Tr. 10/13/93 (Bellomo) at 169.
An evaluation of James' sexual behavior was not completed until February 22, 1993 and the evaluation was done by a certified sexuality therapist who is a member of the sexuality team at Selingsgrove Center. Tr. 10/14/93 (Bellomo) at 111-113. This was more than a year after Mr. Bellomo first knew of James' sexual aggressiveness and four months after James' interdisciplinary team issued a plea for help.
c. Failure to Provide James a Behavior Program for his Self-Injurious Behavior James also has no behavior program for his self-injurious behavior of tearing off his fingernails and toenails. Tr. 7/26/93 (Stark) at 135; U.S. Exh. 780. James has injured himself this way on a number of occasions. U.S. Exh. 135, 136. 2. Ebensburg Fails to Provide James Minimally Adequate Training James' mother testified that before he was institutionalized, James bathed himself, combed his hair, and put on his shoes. He possessed all of his self-care skills. Tr. 7/26/93 (Weakland) at 187-188. Before being institutionalized, James could also speak in about three word sentences. Tr. 7/26/93 (Weakland) at 188. James was first institutionalized at Cresson Center in Pennsylvania. When Cresson closed in the early eighties, James was transferred to Ebensburg. At that time, James still possessed all of his self-care skills, could still talk, could still see, and was still active and healthy. Tr. 7/26/93 (Weakland) at 189. Since moving to Ebensburg only a decade ago, James has lost the ability to perform most self-care skills. Tr. 7/26/93 (Weakland) at 190. Since moving to Ebensburg, James has also lost his
D-50

ability to communicate with words. He now only speaks a "very few words." Tr. 7/26/93 (Weakland) at 190. 3. Ebensburg Fails to Provide Adequate Medical Care tn James
Despite the fact that Ebensburg staff have an obligation to contact a nurse immediately whenever a resident hits or kicks another resident, they did not notify a nurse when a resident was found hitting and kicking James in late September 1992. U.S. Exh. 790, U.S. Exh. 501 (cc); U.S. Exh. 638 (Sponsky Dep.) at 108. Instead, staff waited oneand-a-half hours to report this incident to the nurse after James started complaining of chest pain. U.S. Exh. 790; U.S. Exh. 501 (cc). Even though the nurse documented that he had bruising on his rib cage and there was a "clicking" sound when touching his ribs, all the nurse did was to give him tylenol. U.S. Exh. 501 (cc). The nurse did not notify the doctor until more than an hour later. Id. James was finally sent to the hospital at 12:30 p.m. (four hours after the original injury) and found to have a ruptured spleen, pneumothorax, and two liters of blood in his abdominal cavity. He had to have emergency surgery to remove his spleen. Id.
Ebensburg's Director of Nursing admits that the seriousness of James' condition necessitated more immediate medical attention than waiting an hour and a half to transport him to the hospital. U.S. Exh. 638 (Sponsky Dep.) at 116. Despite the seriousness of this event, Ms. Sponsky did not even review the occurrence report until nine days later. U.S. Exh. 638 (Sponsky Dep.) at 109. As part her review, she did not investigate why the nurse was not notified for approximately 1 1/2 hours until after the incident occurred. Id- at 110. No one at Ebensburg has every evaluated whether direct care staff are reporting injuries to
D-51

nurses on a timely basis and the Nursing Director does not think that it is her responsibility to look at the circumstances surrounding James' injury to determine why there was a delay in notifying the nurse. Id. at 114-115. Ms. Sponsky also does not know if anyone investigated why there was an additional 1 1/2 hour delay between the time the nurse examined James and his emergency transport to the hospital. Id. at 115.
This was not an isolated incident at Ebensburg for James. One year earlier, in late November 1991, James was found fighting with another client at 10:15 a.m. U.S. Exh. 501 (aa); U.S. Exh. 790. Despite the fact that James had a bloody mouth, staff did not report his injury to the nurse until 5:30 that evening when he complained of mouth pain and refused supper. Id. at 00210934. Although he was seen at dental clinic the following day, an Ebensburg physician did not examine him until two days later, at which time he was found to have a fractured jaw. U.S. Exh. 501 (bb). 4. Ebensburg Fails to Find a Community Placement for James Even Though It
Recognizes that Ebensburg Is Not a Safe Place for James In September 1992, after James was severely injured by a peer, James' Unit Manager wrote a memo pursuant to his responsibility to "establish a safe living area for [James] and his peers." James' Unit Manager wrote that H[i]deaUy, a community placement in a small CLA would best serve to meet his many personal daily needs in the most quiet, unrestricted environment.11 U.S. Exh. 501(dd) at 200339. However, James remains at Ebensburg. Tr. 7/26/93 (Weakland) at 186. Since September 1992, James has continued to suffer repeated injuries. U.S. Exhs. 135, 136.
D-52

United States v. Pennsylvania
Papoose Board/Emergency Chem. Restraint

10
8 "a 7
CD
6
0)

Data through 8/17/93. At least 6 additional chemical restraints between 8/17/93 - 9/8/93 and 3 other chemical restraints at unknown times between 8/17/93 11/12/93.++

Chemical Restraint

0

Papoose Board

A2M2J2 J2A2S2O2N2D2 J3F3M3A3M3J3 J3A3

+ Data taken from United States1 Exhibit 993.

^IVlOr Hi 1/ Y Gd\)

+ + D a t a { a k e n f r o m pefendants' Brief in Opposition to United States' Motion for Rebuttal Testimony at 35, fn. 13 (filed 11/12/93).

United States v. Pennsylvania
Papoose Board/Emergency Chem. Restraint

10 9 8
7
CD
6
in
CD
O

Data through 8/17/93. At least 6 additional chemical restraints between 8/17/93 - 9/8/93 and 3 other chemical restraints at unknown times between 8/17/93 11/12/93.++

Chemical Restraint

0

Papoose Board

A2M2J2 J2 A2S2O2N2D2 J3 F3M3A3M3J3 J3 A3

+ Data taken from United States' Exhibit 993.

(Month/Year) ++ Data taken from Defendants' Brief in Opposition to United States'
Motion for Rebuttal Testimony at 35, fn. 13 (filed 11/12/93).

Number of Reported Injuries at Ebensburg Center
PLAINTIFF'S EXHIBIT 89

Causes of Injuries During 1992 at Ebensburg Center

Unknown (Cause 17)

~

= 964 incidents

Behavior (Causes 4, 5, 9, 10, 11, 14 = 886 incidents

Based on a total of 2,399 incidents

1 PLAINTIFF'S ( EXHIBIT
I 90

o
o
9
"O W)
3^
£-0

O
-o'S

C

o3
X

O C

o

ooCM

tn

LL, LL*

1—

|— 2 H
zX m <X

- J LU

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Number of Unknown Injuries at Ebensbutg Centet
Twelve Months Before and After the 982
1000
800
646
600
400
200
0

2 PLAINTIFFS EXHIBIT
I 92

BARBARA K .

DATE 05/01/93 03/05/93 11/23/92 11/21/92 10/21/92
08/08/92 08/01/92 02/25/92 11/25/91
11/01/91
10/23/91 10/11/91 08/24/91 08/23/91 07/23/91 07/02/91

SAMPLE OF SEIZURE INJURIES
Fell face forward to floor re-opening old injury to elbow.
Fell to floor striking face on small toy causing puncture wound of left cheek.
Fell to floor re-opening wound on chin; sustained 1 1/2" deep laceration; required 4 sutures.
Fell, hitting forehead on chair; hematoma and swelling.
Fell hitting her chin; required 6 sutures.
Fell hitting her chin; sustained a very deep chin laceration; bleeding; required 6 sutures; days later admitted to hospital to x-ray for fracture.
Fell face forward to the floor re-opening old wound on chin.
Fell to floor re-opening old elbow injury.
Fell face forward to floor sustaining cut on chin; required 4 Ethistrips and a bandaid.
Fell with force on her face and arms in bath area; sustained deep laceration on chin requiring 7 sutures, superficial laceration on elbow.
Fell straight down on face; sustained laceration to lower lip requiring 2 inner and 3 outer sutures, reopened old wound on chin.
Fell full force to bathroom floor; bleeding; re-opened old wounds on chin and right elbow.
Fell straight down to floor; re-opened laceration on chin and extended.
Fell forward onto face; re-opened chin wound; 9 sutures.
Fell to floor; sustained deep 2" laceration of chin requiring 9 sutures.
Fell to floor; sustained a 1 1/2" jagged laceration of chin requiring 4 sutures.
Fell striking side of head on bottom of bed; sustained 1 1/2" laceration of ear near temple extending to ear canal; required 4 sutures.

«• PLAINTIFF'S EXHIBIT 268 (a)

RONALD A .

DATE 01/03/93 08/26/92 08/13/92 04/29/92
04/05/92 04/04/92 11/03/91 10/26/91 09/11/91
08/06/91

SAMPLE OF SEIZURE INJURIES Fell and hit mouth, cut lower lip.
Fell and sustained abrasions on elbow, knee, and shin.
Suffered 4 seizures; fell while running and hit head.
Fell backward and struck head on the floor; moderate amount of bleeding from laceration over old scar tissue; required 3 sutures.
Fell and re-opened old cut on occipital scalp; bleeding.
Fell and cut back of head.
Found with black and blue eye.
Fell and hit back of head; left occipital scalp bleeding.
Fell head first to floor; bleeding; abrupt loss of consciousness; sustained 1" laceration medial frontal region of head.
Fell off picnic bench and patio; bleeding from back of head; abrasions on back and head.

PLAINTIFFS EXHIBIT 268 (b)

EXAMPLES OF CHOKINGS EBENSBURG CENTER 01/21/91 TO 05/09/93

DATE 5/9/93

CLIENT MaryAnn R.

5/4/93 4/29/93 4/22/93

Chris W. Charles M. Edward S.

4/21/93 4/16/93

James R. Pamela R.

4/13/93 3/21/93 3/17/93 2/18/93 2/12/93 2/6/93 2/4/93
2/2/93

Michael B. Charles M. Deborah S. Griffith S. John B. Pamela R. Ronald A. Jonathan L.

SUMMARY OF CHOKING EPISODE
Grabbed piece of bread from another client's tray. Cyanotic. Took 7 abdominal thrusts to perform heimlich.
Choked while being fed beets. Heimlich performed.
Choked while eating grapes.
Gagging, cyanotic after stealing meat from another client's tray. Is on pureed diet. Sent to emergency room.
Choking and gagging at dinner. Had just been changed from pureed to chopped diet by Dysphagia Team.
Choked on large piece of waffle. Cyanotic; Heimlich done. Is on chopped diet but waffle pieces were larger than bite size. "On-going problem."
Choked on doughnut in bath area; heimlich performed.
Partially obstructured airway from not chewing meatball pieces. Dentures floating in mouth.
Choked on a piece of toast while being fed breakfast. Third choking episode in less than a year.
Choked on 1" square piece of overly browned and crusty cheese strata.
Choked on whole pieces of chicken he stole from another client's tray.
Choked on Pop Tart. Cyanotic, rales in chest.
Choked on breakfast. Cyanotic, heimlich done; suctioned.
"Apparent choking.11 Eyes tearing, large emesis of undigested food.

1
~ PLAINTIFF'S EXHIBIT 273

EXAMPLES OF CHOKINGS EBENSBURG CENTER 01/21/91 TO 05/09/93

DATE 1/31/93
1/13/93
12/18/92 11/25/92
11/22/92 11/9/92 10/31/92 10/1/92 9/27/92 9/16/92 9/12/92
9/5/92 8/28/92
8/23/92
7/26/92 7/16/92

CLIENT Alan G.
Vickie W.
Jeffrey C. Ivy W.
Elliot G. Charles M. David F. Pamela R. GaryK. Estelle M. Mary Lou F.
George K. Donald R.
FredG.
Irvin B. Deborah S.

SUMMARY OF CHOKING EPISODE
Choked on chunk of meat despite order for Pureed Meat. Expectorated meat 40 minutes after Heimlich.
Choked on entire piece of cake; "limp & purplish. Two RN's to remove food; one doing heimlich, other finger sweeping. Oxygen used.
Choked on chopped food at dinner.
Cyanotic, not swallowing; potatoes found impacted on roof of mouth & back of throat. Taken to Emergency Room.
Choked on piece of meat at lunch.
Airway partially obstructed by lettuce during dinner.
Choked on ice cream. Labored respirations, cyanotic.
Choked on French Toast; Heimlich done.
Choked on piece of cheese. Heimlich done.
Choked on hamburger.
Gagged and choked by overstuffing mouth with ham/potato casserole.
Choked on chunks of fruit cocktail at breakfast.
Choked twice on large piece of fish at lunch. Mouth swept to remove food.
Choked on piece of meat at dinner. Is on a chopped diet.
Choked on piece of chicken.
Choked on scrambled eggs she was being fed; difficulty breathing and swallowing; Heimlich done. Is on pureed diet.

EXAMPLES OF CHOKINGS EBENSBURG CENTER 01/21/91 TO 05/09/93

DATE 7/12/92 6/23/92 5/6/92 5/5/92
5/5/92 5/3/92
4/8/92 4/5/92 3/21/92 3/16/92 3/13/92 3/10/92 3/7/92 3/4/92

CLIENT Vincent P. GaryW. Mary Ann R. Eileen G.
Joyce Y. Alan G.
Deborahs. Sylvia B. Ibrahim D. Judith L. FredG. Mary Lxni F. Glenn A. Harold H.

SUMMARY OF CHOKING EPISODE
Choked on whole pieces of zucchini and chicken from overstuffing mouth and not chewing. Heimlich done.
Choked on toast at breakfast. Has history of choking.
Choked after stuffing half bun into her mouth. Heimlich done.
Difficulty breathing, trying to pull something from throat. After Heimlich, 2 cubes of meat dislodged from throat; is on chopped diet.
Choked on chunk of meat; is on chopped diet. Heimlich performed.
Choked on meat; Unable to swallow fluids. Ambulance called; canceled when meat expectorated 35 minutes later.
Choked and gagged on food at lunch. Abdominal thrust.
Choked on 1" x 1" cube of meat; is on chopped diet.
Unable to breathe from overstuffing mouth with food. Abdominal thrust.
Choked at dinner while being fed; food expelled later. Is on chopped diet; had whole lettuce on plate.
Choked after grabbing food from tray, stuffed food in mouth. Abdominal thrusts.,—
To Emergency Room for possible aspiration: emitted cubed meat after dinner, is on chopped diet.
Choked on meatball lodged in throat. Abdominal thrusts.
Coughing after lunch: piece of carrot, green bean and corn expelled.

EXAMPLES OF CHOKINGS EBENSBURG CENTER 01/21/91 TO 05/09/93

DATE 2/11/92 12/27/91 12/14/91
12/1/91 10/25/91 9/20/91 8/8/91
7/29/91
7/2/91
5/25/91 5/2/91 4/10/91
3/28/91
3/15/91
3/14/91 3/11/91

CLIENT Albert K. Sandra S. Elliot G.
James S.
Richard P. Louis L. Francis R.
Robert Y.
Jacqueline H.
Jeff B. Larry D. Albert K.
David G.
Linda S.
Sylvia B. Alice W.

SUMMARY OF CHOKING EPISODE
Choked on dry cake; should be moistened and cut up.
Choked on pieces of candy.
Choked after swallowing whole french fry kept in his closet.
Choked on dinner; overstuffed mouth & then drank juice without pausing.
Choked on large chunk of tuna; has chopped diet order.
Choked on dinner. Coughing, gagging, cyanotic lips.
Respiratory distress from choking on pepperoni pizza. Multiple heimlichs over railing. Is on pureed diet due to missing teeth.
To Emergency Room for possible aspiration; acute respiratory distress. Lost consciousness. Choked on lima beans from peer's tray. Developed pneumonia.
Obstructed airway due to chicken nugget size. Has no teeth and eats too fast.
Choked on pieces of hamburger. Heimlich done.
Choked on pureed meat; overstuffs mouth.
Choked on chopped meat. Staff gave several blows to back to start regular breathing.
Choked on 5 candy pumpkins when he overstuffed mouth and took a drink; cyanotic. Heimlich done.
Choked while being fed. 3 tries of Heimlich to restore breathing.
Choked, face red, gasping for air. Heimlich done.
Choked, turned blue, gasping for air; eating fast and not chewing food. Abdominal thrusts used.

EXAMPLES OF CHOKINGS EBENSBURG CENTER 01/21/91 TO 05/09/93

BATE 2/25/91 2/21/91 1/21/91

CLIENT Griffith S. Benita B. Sandra S.

SUMMARY OF CHOKING EPISODE
Choked; meat stuck in esophagus. To Emergency Room; esophagoscopy to push meat into stomach.
Aspiration; choked on large beef cubes; is on chopped diet.
Found choking on apple; abdominal thrusts. Overstuffs her mouth.

GREG A.

DATE

INCIDENT

EBENSBURG'S RESPONSE

08/10/91 08/25/91
09/17/91

During med time, found with cut on eye. Monitor.

Scratched on back of neck by client.

Staff will continue to monitor to prevent recurrence.

Hit in face by client; laceration on eyebrow; bleeding.

Aggressive behavior not common for individual who hit him; had recent med change.

10/21/91 11/03/91

Pulled sock out of client's hand; client kicked him in the mouth "very hard;", knocked out 2 teeth.
Pushed into playroom wall by another individual. Laceration on eyebrow and lip.

Behavior of both individuals currently addressed; will monitor for possible need for further interventions.
Client not usually aggressive; monitor client and modify behavior program if needed.

11/19/91 Found with lacerated ear in group of Escalation/chain reaction of behaviors not highly agitated clients in bath area who anticipated and unavoidable once started.
were pushing, shoving and hitting.

12/16791 01/09/92
01/14/92 01/17/92
03/04/92 04/27/92

Pushed against couch; bleeding eyebrow and lip. Lip wound sutured. Scratched on nose by another individual.
Client ran into him, knocking him into door. Head bleeding; area shaved and ethistripped. Sitting on floor by door. Hit on head by another individual; head bleeding.
Bitten on thigh; 3 open areas; 2 swollen areas; bleeding. Pushed; face hit corner of table. Six sutures to^close face wound.

Monitor behavior.
Aggressor's behaviors are addressed; staff will continue to try and anticipate aggressive behavior and intervene immediately.
Difficult to intervene or even anticipate this type of situation. Staff will continue to monitor.
Staff must try to keep individuals off floor, both individuals are frequently involved in altercations resulting in injuries; they will "have to be more closely monitored.
Staff will continue to monitor individuals and prevent this type of behavior.
Staff will continue to observe and try to intervene to prevent future injuries.

1
PLAINTIFFS EXHIBIT
779 SUBSTITUTED

GREG A.

DATE

INCIDENT

EBENSBURG'S RESPONSE

06710/92 Pushed; face hit chair. Laceration bleeding and swollen.

Staff will continue to prevent aggression between individuals. Client who pushed has behavior program for aggression.

08/9/92 Crawled off mat scraping knee on cement

Staff will intervene in this type of behavior to prevent injury, providing proper seating and activity.

09/05/92 Found with scratches on cheek and nose. Adequate Rx. No further recommendations at this time.

10/19/92 Found at med time with lacerations on eyebrow and below eye.

Has history of pushing and being pushed. Behavior plan to address aggression.

10/26/92 Found at med time with bleeding laceration over eye.

Head butts; intervene.

10/29/92 Scratches on neck from altercation.

Proper medical attention; no further recommendations at this time.

11/01/92

Grabbed around neck by another individual; scratches on face and neck; skin broken.

Necessary medical attention; no further recommendations at this time.

12/09/92

Found with blood on face and hands; puncture type wound on scalp. Had been head butting client

Monitor and intervene in aggression. Has behavior plan for aggression; start Ativan.

12/22/92 Found with scratch on forehead.

No occurrence report

01/12/93

Sitting by self in chair at program. When asked to come to the table for his program, staff noticed blood on cheek from open scratches.

Scratch should heal. Fingernails not excessively long. No change in treatment plan or programming necessary at this time.

02/28/93

Pushed by client during altercation; fell Expected response by client who doesn't

backwards onto floor and against wooden like to be touched. Client has behavior

arm of sofa. Bleeding area on ear.

program and medication.

04/20/93

Found during med time to have 2 1/2 inch scratch extending from eye to cheek.

Individual who is likely aggressor has acceptable nail length.

DATE 02/09/91 02/11/91 02/27/91
03/30/91 07/12/91 07/31/91 08/07/91 10/MT/91
13

EBENSBURG'S RESPONSE TO WITNESSED AND SUSPECTED BITES INFLICTED BY GEORGE F.

NAME
James R.
Philip A. Timothy T. Raymond H. Timothy T. Elliot G.

DESCRIPTION Fractured toe from bite.
Bitten on thumb. Bitten on arm; skin broken & ecchymosed. Bitten on foot while sitting at picnic table; skin broken. Bitten on foot; teeth marks present; open area. Bitten on arm; skin broken & deeply abraded.

ACTION TAKEN BY EBENSBURG CENTER
IDT Action: Increase HaldolStaff must monitor George "very closely."
sneed Memo to Bellomot "Discuss program designed to limit/reduce the behavior of [George]" "If such a program doesn't exist, have staff outline how the program will be developed and implemented (including target date(s) for implementation." "Our concern is [George] will continue to bite (attack) other relatively defenseless individuals."

12/04/91 Kenneth M.

01/07/92 03/22/92

Alan 6. James S.

06/08/92 James S.

07/12/92 Chris D.

07/17/92 07/17/92

Albert K. Albert K.

Two separate sets of teeth marks on upper & lower back; claims that George bit him.
Bitten on shoulder and arm.
Hollered from bedroom, staff found that he had been bitten on toe; skin broken; claims that George bit him.
Staff checked him when he yelled out and found George with James' foot in George's mouth; toe bleeding.
Staff heard noise and walked into bedroom; found Chris with bite mark on ankle; ecchymosis & skin broken.
Bitten while in bed; toe nail missing; open area.
While being given injection, staff found bite on buttocks; skin broken; suspected to have occurred at same time George bit his toe.

07/25/92 Charles R. 08/11/92 Charles R.
08/12/92 11/11/92 Chris D. 11/21/92 Chris D. 12/02/92 Arthur S.

Found with blood on socks; both feet bleeding; missing toe nail; George, who was seen leaving bedroom, is suspected biter.
Found with blood on sock; toe tip partially amputated and jagged, hanging, & cyanotic; sent to emergency room; possible that George bit him.
Found with toe nail completely off and black and blue; "very swollen and ecchymotic11, team consensus that George bit him.
Was found with toe severely bruised and the nail missing, team consensus that George bit him.
Found with blood on his sock; missing toe nail and abrasion on toe tip. Supervisor believes that George is "most likely causitive factor".

Data Colleotion Stated— Ebensburg begins talcing data on George's biting behavior.

01/23/93 03/08/93

Donald P. Donald P.

06/06/93

Bitten on the toe while sleeping.
Bitten on the arm; large bite mark with skin broken; claims that George bit him. PSA states: "will complete functional analysis to re-examine the behavior of [George] during the next three weeks."

Behavioral Evaluation— Recommends: (l) collect behavior data; continue Haldol therapy; (2) frequent visual monitoring; (3) redirection of behavior.

EILEEN G.

DATE 12/20/90 12/27/90 2/13/91 5/11/91 5/18/91
5/28/91 6/6/91 6/14/91 6/22/91 6/23/91 6/29/91 7/9/91

INJURY
Up all night screaming and yelling. Pushed into wall by another client, lacerating back of head. Found with lacerated scalp at 7:30 a.m.; 5 sutures required. Came out of bedroom with blood on face; laceration above eyebrow. 10:30 p.m., pushed by client and fell, hitting edge of TV; sustained laceration in comer of eye and bridge of nose; 5 sutures. Reopened laceration on eyelid during programs; 2 sutures required. 10:40 p.m. pushed by another client; lacerated eyelid. Pushed, hitting head on floor. Pushed by another client, causing old wound on scalp to bleed. Lacerated eyebrow as a result of aggression by another client. Bitten on arm and shoulder. In wheelchair due to swollen ankle; pushed over in wheelchair by 3 different individuals.

8/7/91 Moved to EII temporarily for 60 days or until injuries are caused by her. Team has concerns that Eileen may cause serious injuries to women in EII.

8/8/91
8/13/91 8/14/91 8/15/91 8/16/91

Pulled arm of individual in a wheelchair until staff intervened; grabbed the back of the neck of another individual in a wheelchair, trying to pull her down on the floor; pulled an individual to floor and then sat on top of her until staff intervened.
Stripping until staff intervened, then became aggressive toward other individuals; punching them, pushing them off furniture, and sitting on top of them; pushed someone onto floor.
Scratching and pushing 3 clients off furniture.
Pushing and shoving individuals off furniture; agitating clients, making them scream; slapping heads of clients in wheelchairs.
Stripping; climbing over furniture and pushing other individuals.

2 PLAINTIFFS

t EXHIBIT

I

360

EILEEN G.

DATE
8/23/91
8/26/91
9/7/91 9/8/91
9/10/91
9/19/91 10/28/91
10/31/91 11/3/91
11/10/91
11/11/91 11/23/91
12/3/91 12/22/91 1/24/92 2/22/92 2/22/92 2/23/92
3/10/92

INJURY
Shoving clients; agitating clients in wheelchairs, making them scream and cry.
Pushing clients off chair; climbing on top of clients while trying to sit on couch.
Pushing clients; stepping on them while on floor.
Pushed client to the floor; pulling wheelchair clients' hair; hitting and pulling their arms; refusing to stay away.
Stripping and annoying other clients; pushing, grabbing, and hitting them.
Found with black and blue areas and abrasions on leg.
Climbing over furniture and pushing clients off chairs; pulling clients while sitting in wheelchairs.
Pulling clients off furniture and wheelchairs.
Pushing and pulling clients; stripping; pulling hair of clients in wheelchairs.
Refuses to leave wheelchairs alone; pulling hair, arms of clients; stepping and falling on clients on mats.
Pushing clients off furniture; pulling hair.
Pushing and pulling clients in wheelchairs; sitting on top of clients sitting in furniture; stripping.
Stripping and head butting; knocking client to the floor.
Banging head; pushing clients off chairs; stripping.
Stripping; pushing other clients off furniture.
Bitten on leg.
Pushing clients off couch; stripping; hitting other clients.
Pushing client to the floor; pulling hair and laying on top of other clients.
Found with black and blue, swollen left ear.

DATE 3/15/92
4/24/92 6/3/92
6/23/92 8/4/92 8/17/92
9/10/92

EILEEN G.
INJURY
Sitting on clients while on mats; pulling on arms; pushing clients off chairs. Scratched by hepatitis B carrier on face and back of neck. Noted at bath time to have scratch from thigh to knee and black and blue area on calf. Scratched by peer, sustaining numerous open areas about face and neck. Bitten on index finger; 2 open wounds. Numerous superficial scratches on back between shoulders and right arm. Found with bruised lip; bites her lip and hits her face; probably selfinduced.

Pattern of Harm
For Ebensburg Residents

Failure to Provide Adequate Training
Programs

Inactivity Boredom Withdrawal Self Stimulation Frustration/Anger

Escalating Incidents of: Self-Injurious Behaviors Aggressive/Assaultive Behaviors Loss of Skills/Regression

Bodily Injury Chemical Restraint Physical and Mental Deterioration/ Inability to Care for Self
PLAINTIFF'S EXHIBIT

INJURIES OCCURRING WHILE STAFF ARE INVOLVED WITH MEALS, BATHING, TOILETING, MEDICATION ADMINISTRATION

DATE CLIENT 04/29/93 Albert K.
04/21/93 Albert B. 04/20/93 James S. 04/19/93 Carol D. 04/18/93 Michael L.

DESCRIPTION OF INJURY

WHAT STAFF WERE DOING AT TIME OF INJURY

Staff took away recreational materials and placed them on top of closet. Albert attempted to reach materials and toppled sideways in wheelchair; bleeding from head.

Medication time; staff removed materials to assist with medications.

Pushed into table by individual who had been upset all morning. Lacerated area above eye; 6 sutures to close wound. Was in "wrong place at wrong time."

Morning care; 4 staff involved in a.m. care; 1 in quiet area/dayroom.

Found with blood on face and hands; reported that he took piece off record player and inflicted puncture wounds to his forehead.

Following lunch; 1 staff on break; 2 assisting individuals after lunch; 1 toileting.

Roaming around and bumped into dressers and beds. Reopened suture site.
Found with blood on head from laceration. Blind; possible that he hit head on gazebo or door jamb.

All staff involved in a.m. care, changing and dressing clients.
Lunchtime; injury discovered when staff came back to living area to take him to lunch.

1
PLAINTIFFS EXHIBIT
589 SUBSTITUTED

INJURIES OCCURRING WHILE STAFF ARE INVOLVED WITH MEALS, BATHING, TOILETING, MEDICATION ADMINISTRATION

DATE 04/15/93 04/14/93 04/08/93 03/26/93 03/08/93

CLIENT Thomas H. Debra J. Gary K. Raymond K. James P.

DESCKIPTION OF INJURY

VWfcfflAtot- WfcRE DOING Atf Tiivifc 6 F INJURY

Found with bloodied ear from human bite. Ten sutures to repair wound.

Morning care; 1 staff returning after bloodwork who found injury; 3 involved in a.m. care.

Pushed by another individual; hit face on table. Laceration next to eye required sutures.

Medication administration.

Another client scratched him in the eye.

Medication administration.

Kicked in the head by another individual; 4 Getting ready to go to Learning

sutures to close wound.

Center. 2 staff in dayroom; 1 doing

paper work; 1 in bath area.

Pushed by another individual into corner of door, bleeding scalp.

Bathing; 3 staff in bathroom; 1 on break; 1 in dayroom; 1 left to go to another living area to release staff on overtime.

INJURIES OCCURRING WHILE STAFF ARE INVOLVED WITH MEALS, BATHING, TOILETING, MEDICATION ADMINISTRATION

DATE

CLIENT

03/06/93 Alan R.

02/28/93 Joseph C. 02/15/93 Jeffrey C. 02/07/93 John C. 01/29/93 Tracey M.

DESCRIPTION OF INJURY

WtfAT STAFF WERE DOING v A? TIME OF INJURY

Found on floor with face covered with blood. Lip required suturing. No one saw him fall and he was partially hidden by furniture arrangement in living room.

Weekend. 2 staff on break; 1 in chart room signing books; other staff circulating through day room and bathroom while weighing individuals.

Smashed fist through window. Two inch laceration on hand requiring suturing.

One staff getting ready to sort clothes; 1 getting ready for break; 1 getting carts for clothes.

Found choking individual who had bitten him so hard he had blood on his tooth. Need to retrain staff not to leave clients unobserved.

Dinner time; 1 staff on break, 2 in dining room; 2 in bathroom. Incident discovered by LPN walking through area.

Found with blood dripping from ear. Seven sutures to close wound.

Morning care. 1 staff doing a.m. care; 1 putting laundry in another room; 1 toileting.

Pushed by another individual striking head on floor. Deep laceration on eyebrow sutured.

Lunch time. 1 staff in dayroom; 1 at door; 2 in dining room.

INJURIES OCCURRING WHILE STAFF ARE INVOLVED WITH MEALS, BATHING, TOILETING, MEDICATION ADMINISTRATION

DATE

CLIENT

01/16/93 Robert W.

12/03/92 Paul M.

09/01/92 Albert K.

08/26/92 Robert W.

DESCRIPTION OF INJURY

WHAT STAFF WERE DOING AT TIME 6 F INJURY

Found in bathroom "with blood coming out Dinner time. 1 staff in "ward area;"

of his head." Deep laceration on eyebrow; 1 returning from dining room; 2 in

sutured.

dining room.

Found with 1.5" deep laceration on forehead; sutured.

Evening care. 1 staff in quiet area; 3 in bath area. Recommendation to increase number of staff.

Another individual grabbed his wheelchair and tipped him backwards. Fell to floor, striking head; unconscious for 8-10 minutes. Sent to hospital emergency room.
Need to include clients in more productive activities and decrease free time.

Breakfast; 2 staff in dining room; 1 in bathroom; 2 monitoring clients going to and coming from dining room; 1 monitoring day room; 1 in back area.

Found with blood on leg and 5" deep scratch on thigh. Staff need to be more alert and walking around monitoring individuals.

After dinner; 1 staff on break; 1 on 1:1,1 pulled from another unit; 1 who found injury.

INJURIES OCCURRING WHlLE STAFF ARE INVOLVED WITH MEALS, BATHING, TOILETING, MEDICATION ADMINISTRATION

DATE 03/22/92
01/23/92 01/11/92 01/11/92 01/09/92

CLIENT Edward S.
Sandra W. Adelbert G. Winfield M. Benita B.

DESCRIPTION OF INJURY

WHAT STAFF WERE DOING AT TIME OF INjtRY

Found with multiple marks and abrasions on face. Apparently found a razor when left unattended. Has happened before. He is blind and is consistentl/bouncing off walls, door jambs and anything else that's in his way."

Sunday, 8:a.m.; 3 staff. Need more staff on weekends.

Grabbed another individual and tried to bite her. Client pushed and shoved her against sofa. Fell, hitting her head, 11 sutures to close wound.

Lunchtime; 1 staff relieving for aide breaks; 1 in dining room; 1 on break; 1 at door; 1 involved in dentals and transport.

Multiple abrasions from cheek to chin from Lunch time; 1 staff on break; 1

another individual kicking and slapping

getting clients ready for lunch; 1

him.

setting up dining room.

Pushed by another individual into arm of chair; lacerated corner of his eye.

Evening care; staff doing charts; 1 bathing; 1 returning van after trip; 1 in quiet area.

Found coming out of bathroom with feces smeared on hands, face and feet. Eyelid and chin bleeding. Could be result of visual impairment or aggressive client.

Evening; 1 staff doing paper work; another logging clothes; 1 doing bed check in back bedroom.

INJURIES OCCURRING WHILE STAFF ARE INVOLVED WITH MEALS, BATHING, TOILETING, MEDICATION ADMINISTRATION

DATE

CLIENT

l^^S^t^C^ INJURY

12/02/91 Robert C.

Found with a broken leg. Probably fell and caught leg in gazebo which inhibits staff observations.

03/23/91 Carol D.

Walked into door, lacerating nose. Sutured.

WHAT STABF WERE DOING AT TIME OF IWURY
Lunch time; 1 staff on break; 1 preparing clients for lunch; 2 floating in and out of areas calling clients for bathroom.
Dinner time; all staff involved in evening meal.

SAMPLE OF INCIDENTS AT EBENSBURG WHERE STAFF WERE UNAWARE OF PICA UNTIL INDIVIDUAL FOUND IN
DISTRESS OR FOREIGN OBJECT FOUND IN FECES OR VOMIT

DATE CLIENT

DESCRIPTION OF INCIDENT

02/22/93 Dale J. 02/04/93 Winfield M.

Admitted to emergency room for GI bleed with possible bowel obstruction. X-ray of abdomen revealed multiple injested metallic objects.
Trouble bending; x-ray found mass of metallic objects in right lower quadrant.

01/21/93 Dale J.

Vomit tested positive for occult blood. Sent to emergency room, x-ray revealed multiple ingested metallic foreign objects.

11/27/92 Ronnie B. 10/31/92 Brain B.
09/01/92 Vincent P. 08/25/92 Vincent P.

Two inch wooden peg found in her feces.
Refused to eat breakfast; was drooling and unable to swallow. Found to have a paper dixie cup in her throat.
Vomited and staff found a cloth tag in it.
Vomited food with yarn fibers.

08/22/92 Darlene F.

Vomited while coming down the hall from dining room and when back in living area. "Throughout this large amounts of emesis cigarette filters were seen."

07/25/92 Brain B.

Choked during lunch. Found to have a thermometer ear tip lodged in his throat.

07/09/92 Winfield M. Vomitted clothing labels.

06/28/92 Winfield M. Vomitted rubber bands, clothing labels and cigarette butts.

04/22/92 Margaret M. Found coughing in bedroom. Pieces of artificial flowers pulled from her mouth.

04/13/92 Ivy W.

Unable to swallow during evening meal. Small bottle removed from her throat.

03/24/92 Winfield M. Limping; x-ray revealed zipper and numerous screws in abdomen.

\Z PLAINTIFF'S 1 I t EXHIBIT
590

SAMPLE OF INCIDENTS AT EBENSBURG WHERE STAFF WERE UNAWARE OF PICA UNTIL INDIVIDUAL FOUND IN
DISTRESS OR FOREIGN OBJECT FOUND IN FECES OR VOMIT

DATE CLIENT 02/14/92 Darlene F. 01/20/92 Darlene F.
11/01/91 Brain B.
08/20/91 Vincent V. 08/14/91 Vincent V. 04/19/91 Vincent V. 11/16/90 Vincent V. 10/22/90 Kathleen P. 10/21/90 Kathleen P. 10/20/90 Kathleen P. 09/28/90 Kathleen P. 9/19/90 Ronnie B.

DESCRIPTION OF INCIDENT
Again left living area and later vomited cigarette butts.
Left living area early in the morning and found with mouth full of cigarette butts. Later vomited the butts along with blood. Direct care staff was involved with morning care and requested permission to lock doors or more staff to supervise.
Choked during supper. Emergency transport to hospital where he threw up a piece of wood that he had ingested (1 1/2-2" x 1/2").
Vomited white plastic material; sent to hospital, fecal impaction.
While flushing toilet, staff saw 3" x 1" white plastic material in B.M.
Emesis of piece of attends.
Vomited large amount of food, liquid, and foreign objects.
4 metal nuts and snap top from soda can found in B.M.
8 nuts found in B.M.
18 nuts and soda can tab found in B.M.
9 metal bolts discovered in toilet with feces.
Passed 2" machine screw in B.M.

HUMAN BITES SUFFERED BY MARYANN R.

DATE 7/7/92 7/29/92 8/3/92 8/7/92
8/9/92
8/18/92 8/27/92 1/2/93 2/14/93 2/20/93 2/25/93 4/13/93 4/27/93

BITE
Attacked by client in the dayroom who bit her on the back and shoved her to the floor.
Bitten on the forehead while in the dayroom; open area from bite.
Sat down next to "known biter" in dayroom. Bitten on finger; bleeding.
Bitten on the shoulder while reading a magazine at the picnic table. Pink circular area on shoulder approximately 3" x 2" with teeth marks imprinted into broken skin.
Client ran up to her and bit her on the back while she was outside in the "play area." Skin broken; bleeding.
Bitten on shoulder by client who was upset that she took her toy.
Bitten on arm, elbow, and back. Skin broken; ecchymosis.
Attacked by client who bit her on her back; skin broken.
Bitten several times by client. Multiple areas on shoulders reddened with teeth prints; skin broken.
Aggressively bitten by client. Bite mark on wrist; skin broken.
Bitten on wrist; starting to ecchymosis.
Bitten on arm; large bite wound, approximately 2 1/2" in diameter; open area.
Found with a bite wound partially open, 2 1/2" in diameter on lower mid back.

PLAINTIFF'S EXHIBIT 644

HUMAN BITES SUFFERED BY MICHAEL B.

DATE

INJURY

7/24/91 Struck on head and bitten on arm by client. 8/12/91 Bitten on ring finger in quiet day room; skin broken.

8/16/91 Bitten again on ring finger.

10/17/91 Bitten on arms; 2 overlapping bite marks, approximately 1 1/2" in diameter.

12/24/91 Bitten on thumb; open areas.

12/28/91 Threw himself down on client who bit him on the shoulder; open areas.

2/2/92 Bitten on forearm while in day room.

8/17/92 Individual sitting next to him bit him on arm; areas of teeth marks approximately 1 1/2" diameter; skin broken.

8/20/92 Bitten on the left bicep while medications were being administered.

10/8/92 Bitten on forearm during medication administration; skin broken.

10/21/92 Bitten on finger while in day room; imprints of teeth on flexor and extensor aspect of finger. X-ray negative for fracture.

11/6/92 Bitten on finger; bleeding.

11/18/92 Pushed by client, fell on another individual who bit him in the abdomen.

PLAINTIFFS EXHIBIT

EXAMPLES OF DEFICIENCIES FOUND BY THE COMMONWEALTH OF PENNSYLVANIA DURING MEALTIMES AT EBENSBURG (1983 - 1992)

DATE/TYPE OF SURVEY

DEFICIENCY

12/83 MA, p.7 7/84 MA, p.5 7/84 MA, p.8 7/84 MA, p.9
12/84 MA, p.7 12/86 MA, p.4
10/87 MA, p.2

Residents were observed overstuffing food in their mouths without intervention from staff.
Dramatic weight losses are not addressed by a review of current diet and observation of client eating activity.
Staff interaction to assist residents in self help dining procedures was not observed.
Not all residents are provided with systematic training to develop eating skills, e.g., use of forks, knives, napkins, and ability to eat slowly with minimum spillage.
Proper feeding techniques were not used by the staff as residents were observed overstuffing their mouths.
There were insufficient direct care staff to adequately supervise and train clients during lunchtime and breakfast time.
Lack of feeding for clients requiring them, i.e. a)Clients were observed eating with spoons only, b) More food was observed on client's bib than he ate. d) Lack of staff intervention to acknowledge client ate properly and utilized proper utensils, etc.

10/88 MA, p. 1
1/89 MA, p.3 10/89 MA, p.6-7

Lack of feeding programs for clients requiring them, i.e. (a) Clients were observed eating with spoons only; (d) Lack of staff intervention to acknowledge client ate properly and utilized proper utensils, etc.
Many clients were observed eating with spoons.
Laurel 8:05 A.M. to 8:59 A.M.-Client #1607 who is profoundly retarded and is documented as being underweight. Client's tray was prepared and placed in front of her and staff intermittently monitored as they completed other dining room tasks. Client was observed to shovel food onto her bib, into her hair, and spillage of food within her tray. At 8:59 client was told she was done now and tray was pushed aside. Client had not completed all food within her tray.

Z PLAINTIFF'S EXHIBIT
668

EXAMPLES OF DEFICIENCIES FOUND BY THE COMMONWEALTH OF PENNSYLVANIA DURING MEALTIMES AT EBENSBURG (1983 - 1992)

DATE/TYPE OF SURVEY

DEFICIENCY

10/89 MA, p.7

Sunset—Client #383 who is blind was observed during the evening meal with his mouth down onto his tray scooping his food. Client alternated between the use of his utensil and his hands. As a result client's head, face, and hands were covered with food. Staff who were close to this individual offered no assistance/intervention.

10/89 MA, p. 19

Client #458 had written plan to pierce food with a fork 5 sessions in a review period, program data is collected Sat. and Sun.. During evening meal on 10/18 client who had direct staff interaction/assistance completed entire meal using a spoon.

10/89 MA, p.20

When observing lunch in the dining room in Keystone client #948 did not have program to locate spoon implemented. When interviewed, staff person who was assisting client was not knowledgeable of program and information was not available on record that lists programs to be carried out in the dining room.

10/89 MA, p.21

While observing client #165 in dining room, a communication program was scheduled to be implemented. Staff who was assisting in delivering the clients tray was not aware of program although was listed on record available in dining room.

10/89 MA, p.21

While observing client #919 at breakfast, staff person was implementing behavior program which he designed. He fed client very fast with no verbal interaction occurring and the client was not allowed to feed himself at all. Probably methodology was not followed as written.

10/89 MA, p.23

Clients were observed eating with spoons. Forks and knives were observed on some trays but clients were not encouraged to use these utensils.

10/90 MA, p.8

Client #1175 has a mealtime goal to put her glass on her tray with gestural prompts when she's finished eating. On 10/16/90 at the noon meal in JFK the direct care staff removed the glass from the table before the client was finished eating.

10/91 MA, p.2-3

During breakfast observations in Harmony's dining room on Oct. 22, 1991 client #964 was seen to lap up his breakfast while staff in the area made no attempt to re-direct him.

EXAMPLES OF DEFICIENCIES FOUND BY THE COMMONWEALTH OF PENNSYLVANIA DURING MEALTIMES AT EBENSBURG (1983 - 1992)

DATE/TYPE OF SURVEY

DEFICIENCY

10/91 MA, p.3 - 4

On October 22, 1991 at 5:45 P.M. during the evening meal in JFK there were 10 individuals in wheelchairs lined up against the dining room wall waiting to eat. These individuals were not engaged in any activity other than watching others eat their meal. There were 2 individuals wandering about the tables who were ignored by the staff. Another individual was seated alone at a table but not eating. This person appeared to be distressed by something which was not attended to by staff.

10/91 MA, p.8 11/92 MA, p.3-4

When observing meals in the dining room at Sunset, Harmony and Old Main, staff did not encourage client to use their knives or napkins.
During lunch at Harmony on 11/05/92, a client at one point was seen to lap up his lunch while staff in the area made no attempt to redirect him until the unit manager was made aware by the surveyor.

I * PLAINTIFF'S EXHIBIT
111

50 Months of Injuries at Ebensburg
(January 1989 to February 1993)

#of Name Injuries

#0f
Name Injuries

JAMES S.

215

WINFIELD M.

150

WAYNE P.

141

ALBERT K.

139

SANDRA W.

126

JOYCE K.

122

DONALD P.

106

JOHN B.

80

MICHAEL U.

79

MICHAEL B.

78

EDWARD T.

77

RAYMOND H.

74

SCOTT R.

72

CURTIS P.

71

DAVID W.

69

RICHARD P.

68

DONALD R.

68

THOMAS H.

67

ALBERT B.

66

CAROL D.

66

GARY K.

64

JOHN C.

58

DARREN W.

58

JAMES W.

57

ROBERT D.

56

TOMT.

56

TERRY S.

54

JAMES B.

53

DAVID G.

53

VINCE P.

53

CHARLES S.

53

JOYCE S.

53

DAVID F.

52

DEAN F.

52

GARY D.

52

PETER P.

52

JOHN G.

51

PAUL M.

51

DEBS.

51

DARLENE M.

50

MIKE M.

50

EDS.

50

BARB C.

49

ALAN G.

49

FRANCIS R.

48

ANDREW L.

47

THOMAS W.

47

ADELBERT G.

46

GREGORY A.

45

CHRIS D.

45

IRVIN B.

44

LEON G.

44

#0f
Name Injuries

Name

#of Injuries

Name

#0f
Injuries

JOHN B.

42

MARY ANN R.

42

JAMES P.

42

TOME.

40

MICHAEL L.

40

KENNETH B.

39

GREGORY G.

39

JUDY L.

39

ROBERT C.

38

MARK K.

38

MICHAEL R.

38

ANNB.

37

JOSEPH B.

37

MELANIE H.

37

MICHAEL T.

37

STEPHANW.

37

JOSEPH C.

36

JAMES E.

36

WILLIAM P.

36

DENISEV. 36

GEORGE W.

36

JEFFREY C.

35

STEPHEN D.

35

DAVID H.

35

KENM.

35

TERRY S.

35

RONALD A.

34

STEPHEN G.

29

BETTY H.

34

THOMAS H.

29

ROBERT H.

34

GEORGE K.

29

RAYMOND K.

34

JAMES R.

29

JEFFREY K.

34

ELLIOT G.

28

MARK L.

34

SHARON M.

28

ROSEMARY W.

34

ROBERT W.

27

THOMAS C.

33

JEFF B.

27

DOUG M.

33

BRAD C.

27

EDWARD Q.

33

JANICE D.

27

BRIAN B.

32

EILEEN G.

27

IBRAHIM D.

32

MARK G.

27

LORNA K.

32

JOSEPH K.

27

CLIFFORD P.

32

KENNETH L.

27

GLENN A.

31

CHARLES R.

27

FRANKLIN B.

31

FRANK U.

27

JOSEPH C.

31

JOSEPH B.

26

RENA MAE E.

31 MARY JACQUELINE B.

26

THOMAS H.

31

MINERVA P.

26

BARBARA K.

31

LINDA S.

26

NATW.

31

GRIFFITH S.

26

JOSEPHINE G.

30

JONATHAN B.

25

JOE P.

30

DENNIS B.

25

PAMELA R.

30

DAVID G.

25

D. BROCK E.

29

MARIAN M.

25

MICHAEL F.

29

MARYT.

25

MARTIN Z.

25

ANDREW H.

DATE 07/12/91
10/1/91
04/22/92
05/07/92 06/19/92 08/29/92 09/08/92
10/02/92
02/04/93 04/16/93

INJURY

EBENSBURG'S RESPONSE

Pushed into wall by another client. Six sutures; wound became infected.

Peer under scrutiny for behavior via program and other precautions. Evidence suggests Andrew provoked problem.

Pushed to concrete by another client. Abrasion on forehead; gash type wound on bridge of nose.

No occurrence report.

Found with bleeding head while in learning center. Six sutures; wound site developed staff infection.

Sutures intact; laceration should resolve. Treated by M.D. Staff will continue to report any injury at once. No change in ATP.

Head butted by client; bleeding Injury should resolve. Agitated

from both nares on nose.

entire a.m.

Pushed by client. Hit nose on Laceration clean and dry. Should

table; lacerated nose.

heal. No change in ATP.

Attacked by client and bitten on Should resolve with no further

shoulder; two open wounds.

problem. Tetanus current. No

change in ATP.

Found with swollen and bruised nose. Probably from altercation with client earlier in day.

Injury should resolve. Andrew's needs are frequently being evaluated.

Pushed into wall by another client; lacerated forehead; sutured.

Medical attention satisfactory; laceration clean and dry; should heal with no problem. No need to change ATP.

Pushed to the ground by client; Abrasion clean and dry. ATP

abrasion on forehead.

meets Andrew's needs - no need to

change.

Shoved by client; struck head on bed frame. Laceration on scalp sutured.

Laceration clean and dry. No need to change ATP.

ANDREW H. INJURIES CAUSED AND SUFFERED FROM AGGRESSIVE ACTS

DATE 07/12/91 10/01/91
04/22/92
05/07/92 06/19/92 07/17/92 07/18/92 07/19/92 08/29/92 09/02/92 09/02/92 09/08/92
10/02/92 11/09/92 02/04/93 04/16/93
04/21/93

INJURY

: .^ifcy

Pushed by peer. 6 sutures; wound became infected.

Pushed to concrete by peer. Abrasion on forehead; gash type wound on bridge of nose.

Found with bleeding head while in learning center. 6 sutures; staff infection.

Head butted by peer; epistaxis of both nares on nose.

Pushed by peer; hit nose on table; lacerated nose.

Bit peer on thigh and calf while sitting next to him.

Bit peer on arm while sitting next him.

Bit peer on arm during medication time.

Human bite on shoulder.

Bit peer on hand.

Bit another peer on arm.

Found with swollen & bruised nose. Probably from altercation with peer earlier in day.

Pushed; lacerated forehead; sutured.

Bit peer on the wrist.

Pushed by peer; abrasion on forehead, nose & mouth.

Shoved by peer; struck head on bed frame. Laceration on scalp required sutures.

Bit a peer on the hand while waiting for the bus.

DEFICIENCIES FOUND BY THE COMMONWEALTH OF PENNSYLVANIA IN DATA COLLECTION

DATE OF SURVEY 12/84 MA, p. 7 1/86 MA, p. 3 12/86 MA, p. 8 10/89 MA, p. 13 10/90 MA, p. 6
10/91 MA, p. 5 10/91 IOC, p. 2a 8/92 IOC, p. 2a 8/92 IOC, p. 2a

DEFICIENCY
Goal plans were not stated in measurable/behavioral terms.
Training and habilitation records are not functional as evidenced by: a) data- collection is inconsistent; b) data collected does not correlate to stated goal plan objectives.
Current means of data-collection are not clear, specific nor do they support written plan.
Data sheets were not available in program areas so that when behaviors occurred documentation could not be accomplished.
Behavior data did not include what level of intervention had been utilized for four (4) of the five (5) clients reviewed in Sunset House. When interviewed the psychologist and other building staff could not determine what intervention had been utilized nor what progress was being made.
Tracking of individuals' target behaviors is not specific as to what target behaviors occurred, the frequency of the behavior and the severity.
Day program/Residential Objective- Data collection is incomplete, uninformative and at times, absent.
Data collection continues with frequent instances of absence of documentation or accurate documentation.
The documentation requirements for the Behavior Modification process continues to need improvement.

^ PLAINTIFF'S

I* , EXHIBIT

*

779

BEHAVIORS NOT ADDRESSED IN BEHAVIOR PLANS

NAME .

ISSUE

Michael B.
IrvinB.

No behavior plan for Pica (eating attends, toilet paper and tooth paste) and choking people despite the fact that they are identified in his annual review.
No behavior plan for his "pesty and teasing behavior" identified as the cause of his sustaining frequent injuries, including attempted choking, punches, and bites.

George F.

No behavior plan for biting despite long history of serious biting episodes and 1991 Sneed memo asking Bellomo to provide him with a behavior program due to concern that "client will continue to bite (attack) other relatively defenseless individuals." 16 months later baseline data started but still no program.

Eileen G.

No behavior plan for long history of pushing clients off of furniture; pulling clients out of wheelchairs pulling hair, hitting, stripping, hitting her lip and biting her hand.

Andrew H.

No behavior plan for numerous biting incidents or tearing bed clothes. Prescribed anafranil for this. Chief of Psychology was supposed to evaluate and come up with recommendations during 7/92 — no recommendations as of 11/92. Chief of Psychology was supposed to attend mini-staffing in 8/92 to problem solve. Did not attend meeting. Haldol increased instead.

DaleJ.

No behavior plan for pica. Has swallowed multiple objects including parts of zippers, screws, key and other metallic objects, pieces of rug and paper. Hospitalized several times for coffee ground bright red emesis, GI bleed. Only reference to pica in his record is 10/30/92 — team met and decided he didn't have pica; concluded items must have entered him through "contaminated food item or accidental ingestion."

RuthJ.

No behavior plan for kicking people and objects (suspected to be cause of fractured foot) and striking mouth on iron railing (resulting in need to extract tooth from traumatic injury). "Is known for this type of behavior."

MarkK.

No behavior plan for SIB despite repeated episodes of slapping, pounding and scratching his face to the point of causing ecchymosis, swelling, and abrasions. Has begun biting himself.

*•* PLAINTIFFS
EXHIBIT
78C

BEHAVIORS NOT ADDRESSED IN BEHAVIOR PLANS

NAME

ISSUE

Estelle M. George M.

No behavior plan for inserting objects into her vaginal/rectal area. Repeated instances of this behavior, with such objects as chair leg, pencil, hair brush and spoon.
No behavior plan for biting or any other behavior. Inflicted serious bites during 1992; cited in 8/92 IOC survey for no behavior plan to address behaviors.

Vincent P. Bonnie R. James W. Sandy W.

No behavior plan for pica. Foreign objects have been found in his vomit.
No behavior plan for biting despite significant biting behavior.
No behavior plan for tearing off fingernails and toenails; sexual advances.
No behavior plan for SIB (pulling out toe nail, biting self) or aggressive act of grabbing hair of peers and pulling head backwards although psychologist notes that she "often will do this."

BEHAVIOR PLANS NOT REVISED DESPITE CONTINUED INJURIES TO SELF OR OTHERS

NAME- :

ISSUE

Greg A.

1988 behavior plan not revised despite numerous incidents of pushing other individuals leading to injuries and notes on occurrence reports that behavior plan should be revised.

Ronnie B.

1990 behavior plan not revised despite 1992 staff recommendation for new program to "adequately deal with her pica." Has frequent pica episodes which average 22% of intervals; 1991 x-ray revealed multiple foreign objects in colon, has been found eating room decorations; 2" wooden peg discovered in stool; has contracted worms.

John C.

1988 behavior plan for aggression not revised despite causing numerous serious injuries and significant increase in aggression. 1988 goal to be aggressive 16% or fewer intervals increased to 41 % of intervals during January 1993.

GaryK.

1988 behavior plan not revised despite frequent biting episodes, including biting peer on scrotum requiring sutures, and note on occurrence reports that program needs to be reviewed and/or revised. Psychologist did not attend 1992 annual review.

Doug M.

1988 behavior plan not revised despite the fact that "he is not functioning well in programs and in general areas of daily living." "He appears to be miserable most of his waking hours."

Clifford P.

No behavior plan to address sexual advances until 12/04/92 despite the fact that he was specifically singled out in 1990 MA survey and Ebensburg was threatened with decertification because of his sexual advances.

EXAMPLES OF INJURIES AT EBENSBURG OCCURRING DURING HANDLING, LIFTING, OR TRANSFERRING OF INDIVIDUALS

DATE 4/26/93 4/2/93 5/2/93 4/9/93
3/17/93
12/22/92
3/1/93

CLIENT BethS. Paul G. Michael B. Thomas C.
Harold B.
David V.
Ronald A.

INJURY
Found with fractured femur during a.m. care. Sent to emergency room. "May have occurred simply while she was being lifted from chair to bed or while she was being changed."
Hit head on side of bathtub while staff were transferring him into tub. Laceration on occipital area. "Injury not preventable."
Abrasion on top of toe from scraping it on tub while being moved to dressing table.
Bruise on foot thought to be from striking it on door frame or other object while being transported in his wheelchair. "Staff reminded about the need to properly position and re-position wheelchairbound individuals, as well as to ensure that they are correctly positioned prior to being moved." Staff had just been in-serviced on this following incident on 3/17/93.
Found with swollen and bruised foot. "Most likely cause seems to be related to handling and transporting." Need to in-service staff on special care needed in handling non-ambulatory individuals. Need to in-service supervisors to ensure they monitor for transport and positioning and correct staff when problems are noted.
Bruises on foot attributed to protruding feet scraping a door frame or some other object. Wheelchair "inadequate; his position is both unacceptable and uncomfortable." Back is twisted almost 90 degrees to the chair back; feet hang over chair, PT assigned to David is backed up with requests. It will be a "long time before anything can be done."
Fracture of 5th metatarsal. Client indicated it occurred while staff were transferring him to the mat.

1
* PLAINTIFFS EXHIBIT
791

EXAMPLES OF INJURIES AT EBENSBURG OCCURRING DURING HANDLING, LIFTING, OR TRANSFERRING OF INDIVIDUALS

DATE 1/31/93 8/15/91 10/31/92 1/17/93 8/4/91
6/29/92 11/12/92
10/3/90 8/7/92 7/16/92

CLIENT Joseph R. Michael A. Michael U. Michael U. Harvey B.
George S. George S.
George S. William B. DuaneP.

INJURY
Found with fractured clavicle.
Staff person transferred him alone from wheelchair to bed. Threw his head back, hitting his ear, which required sutures.
Staff person transferred him alone from floor to bed, threw his head back, and hit it on the wall. Lacerated forehead.
Rolled off changing table, abrading left side of chest. Only one staff person changing him.
Found with numerous bruises and scratches on body. Staff indicate he is lifted by arm and leg and placed in wheelchair. M.D. concluded injuries caused on at least two occasions and represented "grasp" type marks, "probably due to incorrect lifting procedure." All staff "indicated a deep concern for lifting training." Lifting procedure needs to be reviewed.
Found with sprained foot. "Staff should exercise caution transferring or moving him."
Found with fracture of humeral head with 4" x 3" bruise on inner arm. M.D. does not feel it was due to direct trauma. Unit Manager decided staff needed to be retrained on lifting/transferring.
Found with fracture of left femur. Sent to emergency room. Probable cause and time was during positioning training at physical therapy.
Abrasion on left foot from hitting footrest while staff were transferring him from changing table to wheelchair.
While being transferred to bath tub, arm slipped between tub and lift. "Normal handling accident."

EXAMPLES OF INJURIES AT EBENSBURG OCCURRING DURING HANDLING, LIFTING, OR TRANSFERRING OF INDIVIDUALS

DATE 5/27/91
5/3/91
9/17/90 2/15/90 1990 9/14/92 3/9/92 1/10/92
6/19/92
9/18/92 4/27/92
3/4/92

CLIENT Harold M.
Robert N. Andrea S. Carol D. BethS. Louis L. Kathleen M. Edward T.
Linda S.
Linda S. Mary Lou F.
BarbC.

INJURY
Tibia fractured during transfer when staff person lifted him from his wheelchair while velcro strap was still attached to his foot. Staff heard a distinctive cracking noise. Wheelchair fell over.
Staff fractured his femur above right knee while holding his legs apart to put on diaper. Sent to emergency room.
Left leg snapped while being repositioned.
Fractured right foot caught on soda machine while being transported in wheelchair.
Spiral fracture when her leg was bumped in transport while going through doorway.
Abrasion on calf area thought to have occurred while being transferred from wheelchair.
4" ecchymotic area on back thought to be from lifting.
Fell backwards onto metal door hinges after losing balance while being assisted by staff in wheelchair transfer. Abrasion on back and coccyx.
Large black and blue marks found on buttocks and leg. Thought to be because she "roughly throws self while transferring." Needs to be assisted during transfers to prevent injuries.
6-7" scratch on thigh. May have scratched herself during wheelchair transfer.
Hematoma from fall to floor as staff were attempting to move wheelchair closer to her to put her in it. New program; inexperienced staff.
Forehead bleeding from fall while staff were assisting her in transfer from couch to wheelchair.

EXAMPLES OF INJURIES AT EBENSBURG OCCURRING DURING HANDLING, LIFTING, OR TRANSFERRING OF INDIVIDUALS

DATE 8/9/92 9/17/92 3/23/93
1/18/92
1/16/91 9/7/92

CLIENT Ivy W. Griffith S. Melanie H.
Charles S.
Michael F.
Edward T.

INJURY
Slid on wet tub and fell forward onto table, lacerating nose, as staff tried to turn her in bathtub to get her on dressing table.
Slipped and scraped right side while staff were assisting him into bathtub.
Fell to floor from drying table while staff was getting attends. Staff need to keep extra attends on cart; "must maintain both physical and visual contact with individual through all stages of bathing."
Fell to floor from couch where he was placed after being taken out of wheelchair. Lacerated chin. Staff counseled to position him "in such a way to be sure he will not fall out of chair."
Left unattended while being changed. Staff needed to get washcloth. When staff returned, found Michael with a 2" laceration in the scrotum. Sent to emergency room for suturing.
Lacerated head from fall from chair after bathing while reaching for clothes. Staff away getting towels. Staff counselled on using arm with chairs after showering unsteady individuals.

EXAMPLES OF DEFICIENCIES FOUND BY THE COMMONWEALTH O F PENNSYLVANIA
INVOLVING LACK OF ACTIVE TREATMENT

DATE/TYPE OF SURVEY ,£, \',-.. 'f- * \t' ", "** 1S v - ^MJMUMl^ULriK*! , -/ ~' ~ ^" V'v™ /^J^--,'

12/83 MA p.2

Evidence that living unit personnel train residents in ADL (development of self help and social skills) was not available.

1987 IOC 00591683

Horizon House (west end): At most there is about 2 hours of active treatment confirmed by documentation and the IOC team did not feel any of the recipients on the west end are receiving active treatment...Second year in a row this has been noted.

1988 IOC, p. 00591694-5

Records contain many supplemental procedures which are staff actions and these are not indicative of training or habitation potential.

1988 IOC 00591700-1

As recognized by the Facility Director and confirmed by IOC on-site visits, day programs need improvement in quality and consistency and care must be taken to insure the programs are individualized for recipient needs.

1/89 MA p. 1

Each client is not receiving a continuous active treatment program.

1/89 MA p.2

There are eighty-four clients in Laurel and sixty-seven clients in Sunset who receive speech therapy, but there were no visible communication boards available.

1/89 MA p.2

In Sunset, 22 clients are incontinent and in Laurel, 61 clients are incontinent. However, none of these clients have a written bowel/bladder training program.

8/89 10C p.5a

The JFK Learning Center continues to need more structured programming. The building is overcrowded and many recipients are sitting with nothing to do.

10/89 MA p. 14

For 37 of our 37 records reviewed personal skill training for clients was limited to developed supplemental procedures and did not allow for individualized training to occur based on established client needs.

10/89 MA p. 15

Each client is not receiving a continuous active treatment program consisting of needed interventions.

10/89 MA p. 15

Client #951 Prof. MR JFK Bidg.: Sensorimotor Block 1330 to 1415 only structured activity was a 3 min objective, otherwise, client sat and/or walked around the room.

1
I- PLAINTIFFS EXHIBIT 792
SUBSTITUTED

EXAMPLES OF DEFICIENCIES FOUND BY THE COMMONWEALTH OF PENNSYLVANIA
INVOLVING LACK OF ACTIVE TREATMENT

DATE/TYPE OF SURVEY

DEFICIENCY

, , ,~:

10/89 MA p. 16

Client #1682 Prof. MR JFK Bldg.: Sensorimotor Block 1330 to 1415 only structured activity was a 3 minute objective. Remaining time was spent walking around, swaying forward/backward, and at times had hand in her pants.

10/89 MA p. 16 10/89 MA 16-7
10/89 MA p. 17 10/89 MA p. 17
10/89 MA 17-8

Client # 1326 Prof. MR JFK Bldg.: Communication Block 10:45 to 11:45. Staff person attempted to implement his communication objective-client refused and was not given alternate activity nor did staff attempt to implement the objective again. Client sat at table occasionally slapping his head.
Client #212 Keystone Prog.: Attending Skills 10:15 - 11:15. Objective was for client to hold an object for 20 seconds. - from 10:15-10 :42 client was sleeping. Interaction at 10:50 consisted of staff asking "What are you doing here: You aren't going to sleep NO NO NO" At 10:52 objective was implemented using a water rattle for less than 1 minute. At 10:55 RUM interacted for 2 minutes. Staff were observed talking among themselves.
Client #408 10:15-11:15 Keystone: At 10:17 client objective was implemented for 1 1/2 minutes. Additional time was spent chewing her fingers and sleeping.
Client #1607 1320-1405 JFK OT Program: Client program implemented for 15 mins. total time for the remainder of time prior to and after program client sat at a table with 4 other clients and 1 staff. Activities placed in front of the client included puzzles and musical instrument - staff intermittently attended to the client. Client activities were not individualized, structured, and/or planned based on staff interviews.
O.T. Program Area 1320-1405: Total of 20 profoundly retarded clients with varying staffing levels (up to 7 staff) with activity material in the area - 1 client not in the sample sat with her back to all other clients and faced toward stairs for 5 minutes. Staff walked around the areas randomly approaching clients with various materials. Staff often skipped over clients for long periods of time, again no activities were individualized, structured, or planned.

EXAMPLES OF DEFICIENCIES FOUND BY THE COMMONWEALTH OF PENNSYLVANIA
INVOLVING LACK OF ACTIVE TREATMENT

DATE/TYPE OF SURVEY

DEFICIENCY

10/89 MA 17-8 8/90 IOC p.2 (a) 10/90 MA p.7
10/90 MA p.8 10/91 MA p.3 10/91 MA p.3
10/91 IOC p. 2a 10/91 IOC p.2a 10/91 IOC p.5

10:15 to 10:30 AM JFK: Fourteen clients and four staff in room. Client 1393 has goal to put bottles in box. Staff sitting with her and staff and client sitting across from her with same goal. Staff talking among themselves doing goal for hand-over-hand without interacting.
The recipient is not making progress for an extended length of time on an established goal/objective and the team has not re-evaluated the plan.
Staff interviews, assessments and observations indicate that clients who display certain strengths or capabilities are not encouraged to develop these strengths either programmatically or on an informal basis. Supplemental procedures are initiated which discourage client independence and promote dependence upon staff.
Each client is not receiving a continuous active treatment program consisting of needed interventions.
Each client is not receiving a continuous active treatment program consisting of needed interventions.
Upon entering Harmony program area in Old Main at 12:43 p.m. on October 23, 1991 a female staff person was observed sitting in a client's wheelchair with her feet propped up on a box. Three other staff person's were standing around this individual, and all were engaged in conversation while ten clients were unattended. These clients did not or could not self initiate activities and had not been provided with any materials* activities.
Day Program/Residential Objectives-Goal plans are often unrealistic, unachieveable or unrevised when progress is lacking.
Day Program/Residential Objective-Goal plans are discontinued with no replacement.
The presence of active treatment is marginally evident in many records and for twenty-nine (29) recipients, it is unacceptable.

EXAMPLES OF DEFICIENCIES FOUND BY THE COMMONWEALTH O F PENNSYLVANIA
INVOLVING LACK OF ACTIVE TREATMENT

DAfE/TYPE OF SURVEY

.• DEFICIENCY .. ^ . > ; . ^ . , % ^ ' ^ ^ .

8/92 IOC pps. 2-2a

A significant number of recipients' goals are determined to be inadequate to meet identified needs for the following reasons: 1) Developmental areas of self-help and community living skills are not adequately addressed.

8/92 IOC p.5

2)

Q.M.R.P reviews are not consistently documenting

changes, progress and overall status of the I.H.P

8/92 IOC p.5

The presence of Active Treatment continues to be only marginally evident in the individual documentation for many recipients with a significant increase in those recipients identified as not receiving Active Treatment.

8/92 IOC p.7

The Habilitation Program does not maximize individual potential for one hundred and seventy (170) recipients.

8/92 IOC p.8i 11/92 MA pps. 2-3

The facility staff Corrective Action Plans for areas needing improvement have not been successful. Major Active Treatment areas continue unimproved.
Client #12 had sensori-motor and sensory integration deficits, specifically; self stimulatory behavior, withdrawal from physical interaction and poor response to training interventions. Support staff concur these needs were evident, however, these needs were neither identified nor addressed.

11/92 MA p.4

Each client is not receiving a continuous active treatment program consisting of needed interventions.

EXAMPLES OF DEFICIENCIES FOUND BY THE COMMONWEALTH OF PENNSYLVANIA
INVOLVING BEHAVIOR PROGRAMS

DATE/TYPE OF SURVEY 12/83 MA, p.5 12/83 MA, p. 10 12/83 MA, p. 10 12/84 MA, p.5 12/84 MA, p. 10
1986 IOC, p.00591621 1986 IOC, p.00591623 1986 IOC, p.00591625 1986 IOC, p.00591602
1986 IOC, P. 00591607-8 1/86 MA, p.5

DEFICIENCY
Written plans for behavior modification programs are not followed as evidenced by documentation in the records.
Many residents with severe maladaptive behaviors are not provided with behavior modification programs.
Current behavior modification programs are not periodically reviewed and up-dated. Available behavior modification plans are not detailed and specific.
Behavior modification plans were employed without securing informed written consent from the resident's parents or legal guardian.
Progress notes by the psychologist do not truly reflect the times the behavioral plan was employed. Psychologist's program plans (behavioral/modification) are not detailed nor specific as evidenced by; a) steps of program often are not clear; d) method of the plan is not always specific; e) data-collection is inconsistent.
Behavioral programs are not always consistently implemented probably because target behaviors are poorly defined.
Horizon House: Behavioral Plans are on the records but enforcement and evaluation of progress is questionable.
Sunset House: Staff were not familiar with positive reinforcement programs even though they had signed inservice training sheets.
Behavioral programs (positive reinforcement) do not always specify the target behaviors and documentation does not always validate reinforcements are given as the program directs.
A comprehensive and progressive program of behavioral management has yet to be effectively implemented.
r Documentation that intervention took place once
identified target behavior occurred was unavailable.
PLAINTIFF'S EXHIBIT
~a -

DEFICIENCIES FOUND BY THE COMMONWEALTH OF PENNSYLVANIA INVOLVING BEHAVIOR PROGRAMS

D^TE/TYPE OF SURVEY 1/86 MA, p.5 1/86 MA, p.5 12/86 MA, p.8 12/86 MA, p.8 10/87 MA, p.6
1987 IOC, p.00591684 10/88 MA, p. 1 (00591734)
1/89 MA, p. 1 8/89 IOC, p. 2a
8/89 IOC, p. 4
8/89 IOC, p. 5a

DEFICIENCY
Many residents with severe maladaptive behaviors are not provided with behavior modification programs.
Targeted behaviors are not clearly identified. (SIB)
Many clients with maladaptive behaviors are not provided with behavior modification programs.
Documentation that intervention took place once identified target behaviors occurred was unavailable.
Clients exhibiting maladaptive behaviors such as biting their fingers, placing fingers in their mouth, scratching self, hair pulling or sucking their thumbs are not addressed in a written program to decrease these behaviors.
Sunset House: Behavior plans are "canned" plans and there are frequently 2-4 target behaviors listed. The behavior plans are not always individualized.
Clients exhibiting maladaptive behaviors such as biting their fingers, placing fingers in their mouth, scratching self, hair pulling or sucking their thumbs are not addressed in a written program to decrease these behaviors.
Many clients were engaged in self-stimulatory behavior, i.e. finger flicking, finger and thumb sucking, scratching self, or hair pulling.
Behavioral management plans are not individually designed to address a target behavior but list multiple maladaptive behaviors described as "aggression." These plans appear to be prepackaged and frequently the program does not result in desired behavior outcomes.
Plans of care are incomplete on a number of records primarily due to untimely/outdated target dates on behavioral objectives and lack of a behavior plan identifying a specific target behavior.
Many recipients with self-stimulation and self-injurious behavior do not have a behavioral management plan.

DEFICIENCIES FOUND BY THE COMMONWEALTH OF PENNSYLVANIA INVOLVING BEHAVIOR PROGRAMS

DATE/TYPE OF SURVEY 8/89 IOC, p. 5b 8/89 IOC, p. 6a
10/89 MA, p.7 10/89 MA, p. 12 10/90 MA, p.6 10/90 MA, p.8-9
08/90 IOC, p.4

DEFICIENCY
The facility appears to have a generalized approach to behavioral management rather than a systematical, aggressive approach.
When a specific behavioral objective is formulated to address therapeutic/leisure skill development or to increase social interaction, the notes do not adequately define the level of participation, the recipient's response to the activity, or the recipient's personal preference.
JFK Program Area: Client #1326 hit staff person in the Communication Area-Behavior Program was not implemented. When interviewed staff in the area did not know the intervention.
Throughout the facility a minimum of 50 clients were observed exhibiting serious maladaptive behaviors (PICA, SIB, Aggression, and Property Destruction) without intervention.
Throughout the facility targeted inappropriate behaviors are lumped together under one definition, for example, aggression or self-injurious behavior, regardless of the severity of the individual target behaviors.
Client #0161's behavior management plan for handmouthing which was addressed during the 4/11/90 IPP and determined to be a programmatic need was not completely inserviced until 10/12/90. Staff interviews and collected data indicate staff are still unsure of the parameters of the program.
A considerable number of incomplete plans of care still remain primarily due to the behavioral objective segment of the IHP, incomplete diet orders, some behavioral modification plans that are not producing expected results and have not been altered or revised.

DEFICIENCIES FOUND BY THE COMMONWEALTH OF PENNSYLVANIA INVOLVING BEHAVIOR PROGRAMS

DATE/TYPE OF SURVEY 10/91 MA, p.2
10/91 MA, p.6 10/91 IOC, p.2-2a

DEFICIENCY

|

From approximately 12:45 P.M. until 1:16 P.M. on October 23, 1991 client #0895 was observed sleeping on a couch in the rear of Old Main, Harmony's program area. Afternoon programming was scheduled to start at 1:00 P.M.. At 1:16 two staff persons attempted to get the client up from what appeared to be a sound sleep. After several attempts to get the client up, he became upset and had to be restrained in a wheelchair according to plan. While in his restraint, one of the staff persons who assisted in implementing the plan gave him a drink. She held his hands down and fed him the liquid, after which she stated, 'I thought it might help to calm him down.' This was not a part of the behavior management program.

During program observations in Harmony on October 21, 1991 from 11:07 A.M. to 11:12 A.M. a staff person was observed implementing a hands-down procedure on client #1659. When questioned, staff stated it was part of the client's behavior program for self-abuse. It was determined by record review that this client has no behavior program and no self-abuse was observed prior to the procedure being implemented.
This area continues as a 'Needs Improvement' area for many of the same reasons identified in the 1990 survey. A significant number of recipients' records lack sufficient active goal plans including behavior management to meet identified needs and/or to substantiate the presence of active treatment.

DEFICIENCIES FOUND BY THE COMMONWEALTH OF PENNSYLVANIA INVOLVING BEHAVIOR PROGRAMS

DATE/TYPE OF SURVEY 10/91 IOC, p. 2a-b
8/92 IOC, p.2b
8/92 IOC, p.8a 8/92 IOC, p.8d 8/92 IOC, p.8f 8/92 IOC, p.8g

DEFICIENCY
BEHAVIOR MANAGEMENT PLANS: A significant number of recipients' plans are unacceptable due to: 1. One (1) training plan method for multi-targeted behaviors. 2. Lack of progress-lack of revision. 3. Lack of follow through when emergency restrictive procedures are implemented. 4. Supplemental procedures where active plans are needed. 7. Documentation for recipients with psychiatric diagnoses lacks adequate description of symptoms to support the diagnosis. Additionally, justification for the administration of psychotropic medication is inconsistent. Behavior plans are still required for these individuals.
Many plans continue to reflect little to no progress, lack of revision and documentation of and the number of reinforcements and interventions. The restrictive procedure process for a significant number of Plans is not acceptable for the following reasons...the targeting of the decrease for the use of a restrictive procedure as opposed to the targeting of an increase in the desired behavior.
James B. : Activity plans do not incorporate the Behavior Modification Plan to be implemented in the program areas. This indicates lack of continuity in approach and implementation to extinguish maladaptive behaviors.
George M. : Another recipient's record identifies this as the individual who bit another recipient several times. Mr Mash is identified as a Hepatitis B. carrier. The report by the psychologist does not identify biting as a problem behavior.
Rosemary w. : Recipient has no formal goal for behaviors, yet helmet is worn for behavior.
Eric S. : The present Behavior Modification Plan appears ineffective in decreasing his behaviors. Please revise.

DEFICIENCIES FOUND BY THE COMMONWEALTH OF PENNSYLVANIA INVOLVING BEHAVIOR PROGRAMS

DATE/TYPE OF SURVEY 8/92 IOC, p.8g 11/92 MA, p.3
11/92 MA, p.3
11/92 MA, p.7 11/92 MA, p.7

DEFICIENCY
Robert W.: There is documented evidence of staff witnessing S.I.B., but no documentation of the implementation of emergency behavior modification procedures.
The Individual Program plan (IPP) of individual #51 had not been effective in a reviewed time period of July to November 1992. The individual displayed nine incidents of maladaptive social behavior with peers, in this time frame. The IPP did not have a specific objective for this behavior. Interventions by the team, including counseling and following facility policy, did not have significant impact to reduce the behavior.
Nutritional assessment dated 8/19/92 stated that client #29 had pica behavior. Also, the IPP dated 9/29/92 indicated that the individual at times would ingest strings and paper. Staff interview confirmed this behavior. There was no plan in place to address this behavior.
Client #24 receives Lithium for Manic Depression. No behavior management program to address the maladaptive behaviors was available.
Client #4 has been receiving Lithium and Serentil to address hitting, kicking and using objects as weapons since admission on 11/14/91. No behavior management program was available until 11 /2/92.

EXAMPLES OF DEFICEENCEES FOUND BY THE COMMONWEALTH OF PENNSYLVANIA INVOLVING LACK OF MEANINGFUL ACTIVITIES AND LACK OF
ADEQUATE STAFF INTERACTION IN LIVDSfG UNITS

DATE/TYPE OF SURVEY 1986 IOC, p.00591621
1986 IOC, p.00591625 1986 IOC, p.00591626 10/87 MA, p. 1 1987 IOC, p.00591686 1988 IOC, p.00591704 1/89 MA, p. 1
10/89 MA, p. 5
10/89 MA, p. 5

DEFICIENCY
Upon return to units from day programming, behaviors are noted to escalate. There are no provisions for structured activities or materials available for recipients to keep busy. Most wards are barren.
Sunset House: Wards are barren, no toys, minimal furniture.
Laurel House: Wards are barren and some of the recipients appeared unstimulated, lying on floors or in chairs (east end).
Clients were observed sitting and lying on the floor.
Laurel House: Wards are barren and some of the recipients appeared unstimulated, lying on the floor or in chairs (the east end)
The living areas could use more stimulation devices.
Clients must have materials available during leisure time. A few clients were observed with magazines, but there was no evidence of table top games, balls or any other type of equipment.
7:30 AM to 7:55 AM Keystone W I: Four staff are in bedroom bathing, dressing, and transferring clients to wheelchair. Ten to 17 clients were observed alone in the dayroom exhibiting self stimulating and self injurious behaviors.
5:20 PM to 5:50 PM Sunset West II: Twelve to 13 clients were observed alone in the dayroom as clients were leaving for and/or returning from the evening meal; 1 staff is in and out of the bathroom doing ADL's and the other staff remains at the door. Clients were observed on the floor, ripping magazines, thumbsucking, and hands in their pants with no staff intervention.

^ PLAINTIFF'S EXHIBIT
794

EXAMPLES OF DEFICIENCIES FOUND BY THE COMMONWEALTH OF PENNSYLVANIA INVOLVING LACK OF MEANINGFUL ACTIVITIES AND LACK OF
ADEQUATE STAFF INTERACTION IN LIVING UNITS

DATE/TYPE OF SURVEY 10/89 MA, p. 20
10/90 IOC, p. 00004035

DEFICIENCY
While observing in Keystone West, clients #165 and 1742 and thirteen others were dressed and bathed and transported into dayroom area. During this period while others are being dressed and bathed the clients did not have interaction or were activities provided. Therefore clients were involved in self stimulating and/or self injurious behaviors.
The JFK program area, West I & West 2 for Keystone House in the Learning Center, was quiet upon walk through. Recipients were on the mats but staff was sitting at a table and there was no interaction taking place.

10/91 MA, p.4 10/91 MA, p.4

In Keystone House on 10/21/91 observations at 1:00 P.M., 2:10 P.M., and 3:00 P.M. on East I and East II, clients were lying on mats or in carts with very little staff interaction.
During several afternoon observations from 3:00 P.M. to 5:20 P.M. on living areas in Laurel there was limited productive activity noted. This was especially noted after returning from day programs when individuals were toileted and had little to do until medication time and the period of time following medications to the start of the evening meal. For example: On 10/21/91 the individuals observed on West 1 were engaged in the following: 12 individuals were not involved in any activity other than self-stimulatory behavior, sleeping or lying on the floor; 4 individuals were engaged in a non-specific table activity; and 2 were working on a formboard. On 10/22/91 during rotating observations of all areas in Laurel and specific counts in all areas indicated that on average 6 individuals were engaged in productive activity while the remaining were displaying inappropriate behaviors of engaging in self-stimulatory behaviors.

EXAMPLES OF DEFICIENCIES FOUND BY THE COMMONWEALTH OF PENNSYLVANIA INVOLVING LACK OF MEANINGFUL ACTIVITIES AND LACK OF
ADEQUATE STAFF INTERACTION IN LIVING UNITS

DATE/TYPE OF SURVEY 10/91 MA, p.5
10/91 MA, p.3 (00004081) 8/92 IOC, p. 8a

DEFICIENCY
In Villa-West II on 10/21/91 observations between 3:30 P.M. and 4:00 P.M. clients were not engaged in any purposeful activity. There were 2 boxes of leisure time activity materials on the table. Clients were told they could not have the materials until after the nurse gave medications. Medications are given between 4:15 P.M. and 4:30 P.M.. There were three clients standing around the table attempting to self-initiate activities.
Leisure time activities should be available to the clients when on the living area.
The Inspection of Care Team is recommending a decrease in the number of recipients who are housed in the Keystone area. This building's habilitation area is one of congestion and overcrowding as seen by the members of the IOC Team not being able to get around the beds. The program area in Keystone is also congested with mats on which recipients are lying touching each other and little space around the table area for the recipients and staff to carry out their program requirements.

11/92 MA, p.4 11/92 MA, p.4-5

On Sunset-West II on 11/04/92 from 3:00 until 4:15 P.M., it was noted that during this time, the only activities available to these 24 individuals were two crates of balls and four magazines. Clients were observed engaging in many maladaptive behaviors such as ripping clothes, aggressive and self stimulating behaviors. There was little or no staff interaction.
During observations on Sunset East II on 11/04/92 from 6:55 P.M. until 7:30 P.M., the residents were observed engaging in self stimulating behaviors, sleeping, wandering, or sitting without being involved in any recreational/leisure activities as specified in their activity schedules. The only materials available were two balls. There was little or no interaction from the staff to intervene with the maladaptive behaviors or to engage in alternative activities.

EXAMPLES OF DEFICD2NCD2S FOUND BY THE COMMONWEALTH OF PENNSYLVANIA INVOLVING LACK OF MEANINGFUL ACTIVITIES AND LACK OF
ADEQUATE STAFF INTERACTION IN LIVING UNITS

DATE/TYPE OF SURVEY 11/92 MA, p.5

DEFICIENCY
On Sunset East I on 11/04/92, the evening activity for these individuals was the showing of a movie. Clients were observed sleeping, one individual standing alone in the corner and another individual was continuously circling the day room in a wheel chair while a staff member watched the movie.

Date 5/1/93
5/12/93
5/16/93 5/17/93 5/21/93
5/23/93 5/24/93 5/26/93
5/26/93 5/27/93
5/30/93 6/1/93 6/2/93 6/9/93

HUMAN BITES SUFFERED BY EBENSBURG RESIDENTS (5/1/93 to 8/23/93)

Name

Description of Bite

Paul M.

Bitten on forearm while sitting quietly in dayroom. "No need to revise current living area. Routine risk."

Michael H.

Bitten on arm. 2" x 1 1/2" circular area of teeth marks and indentations. Skin slightly broken. Ice applied.

Donald P.

Found with bite on back. Area reddened and swollen. Cool compresses applied.

Randall L.

Bitten on hand by individual who grabbed him as he walked by.

Donald R.

Bitten on hand by person sitting next to him. Contusion, open areas and teeth indentations. Cool compresses applied.

David G.

Bitten on leg as he walked by another client. Teeth marks present.

Alan R.

Bitten on forearm by person sitting next to him.

Mary B.

Bitten on arm as she was lying on couch in dayroom. "3 teeth lines of a bite that broke the skin and left it black and blue." Cold compresses.

Dorothy N.

Bitten on shoulder as she was leaving to go to work. Abraised area.

Eric M.

Bitten on arm while sitting on sofa. Skin broken; area cleansed, medication and bandage applied.

James B.

Bitten on shoulder while sitting on sofa.

Donald P.

Found with bite on arm. Skin broken.

Sharon M.

Bitten on arm. Large circular bruised impression approximately 2" in diameter.

Elliott G,

Bitten on upper thigh and lower leg.

Ecchymosis; teeth marks.

Staff

discovered bite when he came running out

of his bedroom yelling that he had been

bitten.

7/11/93
7/16/93 7/18/93
7/18/93 7/20/93 7/25/93 8/14/93
8/15/93 8/18/93 8/20/93 8/23/93

Norma Jean F.

Bitten on thumb and first finger by

individual sitting next to her. Open

areas. "Norma can't move away from other

individuals.11

"Staff should closely

monitor [biter] and attempt to keep her

away from individuals who can't protect

themselves.H

Gary D.

Bitten on upper back by individual who became upset for no apparent reason. Cool compresses. Area may ecchymose.

John B.

Bitten on calf and toe when he sat near a fellow client. Skin broken on both bites. Teeth marks. Swelling. Ice applied.

Lorna K.

Bitten once on leg and twice on arm. Staff discovered bites when Lorna started to scream.

Jacqueline B. Bitten while walking to learning center. Individual ran up to her and bit her on the back. Skin broken.

Jacqueline B. Bitten on arm during altercation with peer. Large bite mark.

John B.

Found with bite mark on arm. "Although injury not observed, individual #1102 has bitten Mr. Black several times in the past."

Kathy D.

Found with possible bite wound on back of shoulder. 2" curved abrasion.

Mary T.

Bitten on arm when she sat down next to another individual. Teeth marks present.

David R.

Bitten on scapula

Mary T.

Bitten on arm

Date 5/1/93
5/12/93
5/16/93 5/17/93 5/21/93
5/23/93 5/24/93 5/26/93
5/26/93 5/27/93
5/30/93 6/1/93 6/2/93 6/9/93

HUMAN BITES SUFFERED BY EBENSBURG RESIDENTS (5/1/93 to 8/23/93)

Name

Description of Bite

Paul M.

Bitten on forearm while sitting quietly in dayroom. MNo need to revise current
living area. Routine risk."

Michael H.

Bitten on arm. 2" x 1 1/2" circular area of teeth marks and indentations. Skin slightly broken. Ice applied.

Donald P.

Found with bite on back. Area reddened and swollen. Cool compresses applied.

Randall L.

Bitten on hand by individual who grabbed him as he walked by.

Donald R.

Bitten on hand by person sitting next to him. Contusion, open areas and teeth indentations. Cool compresses applied.

David G.

Bitten on leg as he walked by another client. Teeth marks present.

Alan R.

Bitten on forearm by person sitting next to him.

Mary B.

Bitten on arm as she was lying on couch
in dayroom. "3 teeth lines of a bite
that broke the skin and left it black and blue.N Cold compresses.

Dorothy N.

Bitten on shoulder as she was leaving to go to work. Abraised area.

Eric M.

Bitten on arm while sitting on sofa. Skin broken; area cleansed, medication and bandage applied.

James B.

Bitten on shoulder while sitting on sofa.

Donald P.

Found with bite on arm. Skin broken.

Sharon M.

Bitten on arm. Large circular bruised impression approximately 2" in diameter.

Elliott G

Bitten on upper thigh and lower leg.

Ecchymosis; teeth marks.

Staff

discovered bite when he came running out

of his bedroom yelling that he had been

bitten.

6/13/93 Mary Ann R. 6/1/6/93 Mary Ann R. 6/17/93 Loretta A. 6/17/93 Brenda M. 6/17/93 Barbara K. 6/18/93 Greg A. 6/22/93 Deborah J. 6/24/93 Terry M. 6/25/93 Ronald A. 6/26/93 Mark G. 6/27/93 Paul M. 7/03/93 Roger K.
7/05/93 Michael M. 7/06/93 Stephen D.

Bitten on leg. Two oval shaped reddened areas; swelling.

Found with two bite marks on back. Teeth marks.

Bitten on leg while sitting in chair. "Loretta did not provoke the incident." Skin broken in several areas; swelling.

Bitten on finger while sitting on the couch.

Found with bite on arm. Reddened area beginning to ecchymose.

Bitten on calf and upper arm. areas.

Open

Pushed to the floor and bitten on abdomen through her pants and attends. Deborah did not provoke the aggressor.

Bitten on hand as he tried to embrace another client.

Found in bath area with bleeding mouth. Lip had been bitten by another client.

Bitten on finger by hepatitis carrier as Mark was pushing his wheelchair by biter. Skin broken.

Bitten on forearm by individual sitting next to him. Skin broken.

Bitten on arm by individual sitting next

to him in dining room. Reddened area the

size of a 50 cent piece.

Teeth

indentations.

Bitten on arm by individual sitting on sofa with him. Skin broken. Teeth marks.

Found with bite mark on arm. Skin slightly broken. Teeth indentations.

7/11/93
7/16/93 7/18/93
7/18/93 7/20/93 7/25/93 8/14/93
8/15/93 8/18/93 8/20/93 8/23/93

Nonna Jean F.

Bitten on thumb and first finger by individual sitting next to her. Open areas. "Norma can't move away from other individuals." "Staff should closely monitor [biter] and attempt to keep her away from individuals who can't protect themselves.M

Gary D.

Bitten on upper back by individual who became upset for no apparent reason. Cool compresses. Area may ecchymose.

John B.

Bitten on calf and toe when he sat near a fellow client. Skin broken on both bites. Teeth marks. Swelling. Ice applied.

Lorna K.

Bitten once on leg and twice on arm. Staff discovered bites when Lorna started to scream.

Jacqueline B. Bitten while walking to learning center. Individual ran up to her and bit her on the back. Skin broken.

Jacqueline B. Bitten on arm during altercation with peer. Large bite mark.

John B.

Found with bite mark on arm. "Although injury not observed, individual #1102 has bitten Mr. Black several times in the past."

Kathy D.

Found with possible bite wound on back of shoulder. 2" curved abrasion.

Mary T.

Bitten on arm when she sat down next to another individual. Teeth marks present.

David R.

Bitten on scapula

Mary T.

Bitten on arm

DATE 05/09/93 05/23/93
06/18/93
06/23/93

INCIDENTS OCCURRING WHILE STAFF ARE INVOLVED WITH MEALS, BATHING, TOILETING, MEDICATION ADMINISTRATION

CLIENT Greg K. Jonathan M.
Denise V.

DESCRIPTION OF INCIDENT

WHATSTAFF WERE DOING AT TIME OF INCIDENT

Pounded his ear and head on partition of toilet stall and gazebo. Abrasion on left side of head near hairline; screaming while holding left ear.

Weekend lunch time; 1 staff monitoring individuals in RLC; 1 in bath area; 2 in dining room; 1 "walking through gazebo and noticed Greg."

Was hit and pushed by another client and tripped over corner of couch while trying to get away. Laceration above eyebrow closed with ethistrips. Abrasion on lip; swollen.

Weekend dinner time; 3 staff in dining room; 1 staff in bath area; 1 in living area.

Started banging her head on the wall.

Dinner time; 3 staff assigned; 2 staff involved in holding another client who was attempting severe self-injurious behavior; 3rd staff on break. Supervisor notes that "more staff needed."

Donald P.

Came into the bath area and sat on the table so he could get help dressing. He had blood on his right thigh and both hands. "Because of all the confusion on the East II living area, Donald left the ward and decided to report his hand" to the nurse.
1 PLAINTIFFS
ff^EXHIBIT 'JV: P ^ M 8 5 (a).i:v
1 ••"•

Morning care in Villa; only 2 regular staff assigned to the living area. Another staff person had been pulled from Keystone; 4th staff person (on overtime) was on break.

06/28/93 07/08/93

David S. Edward S.

07/31/93

Sandra S.

08/11/93

Edward S.

Found with bloody sock and toe nail missing.

"Staff busy with a.m. care." 3 staff in bath area; 1 staff in quiet area; 1 staff moving from dayroom to quiet area.

Came out of bedroom and showed wound on forehead to staff. One inch laceration closed with ethistrips.

Morning care. 3 staff in bedrooms dressing individuals; 1 staff in bathroom doing grooming for a.m. care; 1 supervisor on area assigning breaks.

Was having a disagreement with 2 other individuals and was pushed into a couch. Suffered a deep laceration on her scalp and the area had to be shaved and closed with ethistrips.

Weekend morning care; one staff person on morning break; 2 staff were in the bath area; only 1 staff monitoring the dayroom.

Sitting in chair in living room and Donald R. walked by and punched Edward in the face. Cheek swollen; Dentist notified. Received antibiotics.

At time of injury, there were 4 staff and one supervisor between the dining room and living room.

United States v. Pennsylvania
Incidents of floor control since Ebensburg eliminated use of papoose board

70

Data taken from Ebensburg

computer printout regarding

60

restraint use.

CD 50
CO
o 40
_Q
c CD 30
o 20

10

0 NOV/DEC/JAN
'92-'93

FEB/MAR/APR
'93

MAY/JUN/JUL
'93

+ Last use of the Papoose Board occured on Nov. 9,1992. One instance of floor control in November before Nov. 9, 1992 is omitted

 
 902 F.Supp. 565 (1995)
UNITED STATES of America, Plaintiff, v.
COMMONWEALTH OF PENNSYLVANIA, Robert Casey, Governor of the Commonwealth of Pennsylvania, Karen F. Snyder, Acting Secretary Department of Public Welfare, Steven M. Eidelman, Deputy Secretary of Mental Retardation Office of Mental Retardation, Alan M.
Bellomo, Director Ebensburg Center, Defendants.
Civ. A. No. 92-33J.
United States District Court, W.D. Pennsylvania.
July 27, 1995.
5676789012345 *566 *567 *568 *569 *570 *571 *572 *573 *574 *575 *576 Robinsue Frohboese, Judith Preston, U.S. Dept. of Justice, Civil Rights Division, Washington, DC, for plaintiff.
Thomas York, Eckert Seamans Cherin & Mellott, Harrisburg, PA, Christine Demichele, Department of Public Welfare, Office of Legal Counsel, Harrisburg, PA, for defendants.

TABLE OF CONTENTS I. Introduction ............................................................ 577 II. Standard Of Proof ....................................................... 578
A. CRIPA Actions ......................................................... 578 B. Substantive Due Process Rights of Institutionalized Mentally Retarded
Persons ............................................................. 580 C. The Professional Judgment Standard ................................... 582 III. Findings of Fact and Conclusions Regarding Liberty Interests at Issue in this
Litigation ............................................................ 584 A. The Center's Structure and Services .................................. 584 B. Adequate Basic Care .................................................. 588 C. Adequate Medical Care ................................................ 591
1. Neurological Care ................................................. 591

577 *577

2. Psychiatric Care .................................................. 598
a. Psychiatric Assessment Techniques .............................. 598 b. Differential Diagnosis ......................................... 601 c. Psychiatric Treatment .......................................... 604

3. Gastroesophageal Reflux and Aspiration ............................ 607
4. Nutritional Management ............................................ 611 a. Screening ...................................................... 611 b. Assessment ..................................................... 612 c. Intervention ................................................... 614 d. Monitoring ..................................................... 614 e. Training ....................................................... 615
5. Physical Therapy .................................................. 616 a. Assessment ..................................................... 619 b. Wheelchairs .................................................... 622 c. Transfers ...................................................... 624
6. General Medical Care .............................................. 626
7. General Nursing Care .............................................. 628
D. Adequate Training and Freedom From Undue Restraint ................... 631
E. Reasonable Safety and Protection From Harm ........................... 640
IV. CONCLUSION .............................................................. 649
OPINION AND ORDER
D. BROOKS SMITH, District Judge.
I. INTRODUCTION
This action presents a claim by the Attorney General, on behalf of the United States of America ("United States"), under the Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. §§ 1997-1997j ("CRIPA"). The United States contends that the Commonwealth of Pennsylvania ("Commonwealth") and the individually-named defendants (officers of the Executive Branch of the Commonwealth sued in their official capacities) are depriving institutionalized mentally retarded persons at the Ebensburg Center (the "Center") of rights, privileges or immunities secured by the Constitution of the United States. Complaint (Docket No. 1), ¶¶ 1, 6-11. The United States seeks equitable relief, the sole remedy authorized by CRIPA (see 42 U.S.C. § 1997a(a)), and asks this Court to enjoin defendants from "continuing the acts, practices and omissions" at the Center which allegedly violate the Constitution, and "to require defendants to take such action as will provide constitutional conditions of care to persons" who reside at the Center. Complaint, p. 5.
The instant CRIPA action was tried before this Court over the course of twenty (20) days. Extensive testimony by lay and expert witnesses was presented, hundreds of exhibits were received into evidence, and this Court conducted a detailed view of the facility in the presence of counsel.
Inasmuch as "[d]ecisional law interpreting [CRIPA] is virtually nonexistent" (United States v. Pennsylvania, 863 F.Supp. 217, 218 (E.D.Pa.1994)), and in order to properly evaluate the evidence presented, I will first address the applicable standard of proof. Thereafter, for each alleged constitutional violation, I will discuss the nature of the duty owed, my findings of fact regarding the alleged violative conduct, and my conclusion regarding whether a violation exists.
For the reasons explained below, I find that the residents at the Ebensburg Center are not being deprived of their 578 rights, privileges, or immunities secured or protected by *578 the Constitution or laws of the United States.
Accordingly, the United States' request for injunctive relief shall be denied.

II. STANDARD OF PROOF
A. CRIPA Actions
The Commonwealth submits that the standard of proof in this CRIPA action requires the United States to satisfy five elements set forth in 42 U.S.C. § 1997a. According to the Commonwealth, the United States must demonstrate:
1. egregious and flagrant conditions in a State institution resulting in;
2. a deprivation of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States;
3. said deprivation is pursuant to a pattern or practice of resistance to the full enjoyment of such rights, privileges or immunities; and
4. said deprivation causes;
5. grievous harm to persons residing in an institution.
See Docket No. 22, pp. 34-35.[1] The United States argues that the Commonwealth's extrapolation of these elements from 42 U.S.C. § 1997a is in error because that statute merely establishes the elements of the "Attorney General's `reasonable cause' determination that conditions at the institution in question merit Department of Justice involvement." 30/3-4.
None of CRIPA's provisions specifically address the elements which must be demonstrated by the United States at trial in order to obtain the equitable relief sought. See 42 U.S.C. §§ 1997-1997j. Section 1997a is entitled "Initiation of civil actions," and subsection (a)'s caption reads: "Discretionary authority of Attorney General; preconditions." 42 U.S.C. § 1997a. Subsection (a) provides:
Whenever the Attorney General has reasonable cause to believe that any State ... is subjecting persons residing in or confined to an institution, as defined in section 1997 of this title, 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, privileges, or immunities, the Attorney General, for or in the name of the United States, may institute a civil action in any appropriate United States district court against such party for such equitable relief as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment of such rights, privileges, or immunities ...
42 U.S.C. § 1997a(a) (emphasis added).
The plain language of § 1997a(a) reveals that the statute simply confers standing upon the Attorney General, thereby providing authority for the United States to initiate a lawsuit on behalf of mentally retarded persons, and others, who reside or are confined in an institution. See Patsy v. Florida Bd. of Regents, 457 U.S. 496, 507-08, 102 S.Ct. 2557, 2563, 73 L.Ed.2d 172 (1982) ("The Civil Rights of Institutionalized Persons Act ... was enacted primarily to ensure that the United States Attorney General has `legal standing to enforce existing constitutional and Federal statutory rights of institutionalized persons.'" (quoting H.R.Conf.Rep. No. 96-897, 9 (1980) U.S.Code Cong. & Admin.News 1980, p. 787, 833); United States v. Pennsylvania, 863 F.Supp. at 219-20 ("From this language [in § 1997a(a)] 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 enough to warrant federal involvement. Once such a determination is made by the Attorney General, the standard of proof to be borne by the United States at trial 579 must be the same as any other plaintiff."); United States v. Tennessee, *579 798 F.Supp. 483, 488 (W.D.Tenn.1992) ("CRIPA is a standing statute.").

The five elements identified by the Commonwealth apply only to the Attorney General's "reasonable cause" determination, which must be made before the Attorney General may properly institute a CRIPA action. 42 U.S.C. § 1997a(a). One court has concluded that this plain reading of the statute is supported by its legislative history.[2] Inasmuch as I conclude that it is clear from the text that § 1997a(a) is a standing statute, I believe an examination of its legislative history is unnecessary.[3]
As the Supreme Court of the United States has noted, CRIPA is legislation pertaining to "a specific class of § 1983 actions." Felder v. Casey, 487 U.S. 131, 148, 108 S.Ct. 2302, 2312, 101 L.Ed.2d 123 (1988) (state statute creating exhaustion requirement for § 1983 action held violative of Supremacy Clause). For purposes of the instant action, it is important to remember that § 1983 did not create any new rights, but was enacted by Congress "to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position." Monroe v. Pape, 365 U.S. 167, 172, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 (1961) (emphasis added). See also Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981) (Section 1983 provides "a `civil remedy' for deprivations of federally protected rights caused by persons acting under color of state law without any express requirement of a particular state of mind.").
The Supreme Court has identified "two essential elements" to a § 1983 civil rights action:
(1) whether the conduct complained of was committed by a person acting under color of state law; and
(2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.
Id. Accord Shaw v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir.1990). Because CRIPA was enacted to provide standing for the Attorney General to initiate civil rights actions on behalf of institutionalized persons, the "essential elements" that the United States must prove are the same as in any civil rights action. See United States v. Pennsylvania, 863 F.Supp. at 220 ("[T]he United States has no greater standard of proof than an individual plaintiff would bear in a case alleging the same illegal conduct on the part of a state.").
In this case, the United States alleges 0907 and the Commonwealth does not dispute 0907 that "defendants have acted or failed to act ... under color of state law." Complaint, ¶ 15. The core of the dispute here concerns whether defendants have "deprive[d] residents of Ebensburg of rights, privileges, or immunities secured or protected by the Constitution of the United States." Id., ¶ 21. The individually-named defendants have been sued in their official capacities, which "`generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985) (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978)). Accord Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989) ("Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself.").[4]
580 *580 In an official-capacity suit, a "governmental entity is liable ... only when the entity itself is a `"moving force"' behind the deprivation; thus, in an official-capacity suit the entity's `policy or custom' must have played a part in the violation of federal law." Graham, 473 U.S. at 166, 105 S.Ct. at 3105 (citations omitted). The United States' Complaint in this action alleges that the Commonwealth's "policy or custom" as implemented at the Center has violated the residents' constitutional rights. See Complaint, ¶ 21 ("The acts and omissions alleged ... 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 residents of Ebensburg of such rights, privileges or immunities.").

B. Substantive Due Process Rights of Institutionalized Mentally Retarded Persons
The United States contends that the Commonwealth has subjected the residents of the Center to a deprivation of their liberty interests protected by the Due Process clause of the Fourteenth Amendment of the United States Constitution,[5] because they have not been provided:
a. adequate basic care 0907 in particular, adequate food, shelter, clothing, and hygiene;
b. adequate medical care;
c. freedom from undue restraint, and training programs to ensure freedom from undue restraint; and
d. safe conditions.
In Youngberg v. Romeo, 457 U.S. 307, 314, 102 S.Ct. 2452, 2457, 73 L.Ed.2d 28 (1982), the Supreme Court considered "for the first time the substantive rights of involuntarily committed mentally retarded persons under the Fourteenth Amendment to the Constitution." The Youngberg Court acknowledged that "[t]he mere fact that Romeo has been committed [to a Pennsylvania state institution] under proper procedures does not deprive him of all substantive liberty interests under the Fourteenth Amendment." Id. (emphasis added).
The defendants in Youngberg (three administrators of the Pennsylvania institution) "concede[d] a duty to provide adequate food, shelter, clothing, and medical care." Id. at 324, 102 S.Ct. at 2462. The Supreme Court noted that these duties "are the essentials of the care that the State must provide." Id. Separate and apart from these interests, however, the plaintiff argued that he had "a constitutionally protected liberty interest in safety, freedom of movement, and training within the institution; and that [the defendants] infringed these rights by failing to provide constitutionally required conditions of confinement." Id. at 315, 102 S.Ct. at 2457. The Court's task, 581 therefore, was to "decide whether liberty interests also exist in safety, freedom of movement, and training," *581 and, if so, to "decide whether they have been infringed in this case." Id.
The Youngberg Court found that the first two claims 0907 safe conditions and freedom from bodily restraint 0907 involved "liberty interests recognized by prior decisions of this Court, interests that involuntary commitment proceedings do not extinguish." Id. (footnote omitted). The plaintiff's other claim 0907 a constitutional right to minimally adequate training 0907 was, in the words of the Court, "more troubling." Id. at 316, 102 S.Ct. at 2458.
In addressing the asserted right to training, we start from established principles. As a general matter, a State is under no constitutional duty to provide substantive services for those within its border. When a person is institutionalized 0907 and wholly dependent on the State 0907 it is conceded by petitioner that a duty to provide certain services and care does exist, although even then a State necessarily has considerable discretion in determining the nature and scope of its responsibilities. Nor must a State "choose between attacking every aspect of a problem or not attacking the problem at all."
Id. at 317, 102 S.Ct. at 2459 (citations omitted). The Court noted that the plaintiff's "primary needs" were "bodily safety and a minimum of physical restraint," and the plaintiff "clearly claim[ed] training related to these needs." Id. at 317-18, 102 S.Ct. at 2459. The Court therefore held that "[i]n the circumstances presented by this case, and on the basis of the record developed to date, we agree ... that [the plaintiff's] liberty interests require the State to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint." Id. at 319, 102 S.Ct. at 2460.[6]
Significantly, although the Court found that a constitutional liberty interest existed that required Pennsylvania to provide "minimally adequate or reasonable training," the Court cautioned against adopting an unrestrained notion of liberty interests that would impose additional duties on a State:

It is not feasible, as is evident from the variety of language and formulations in the opinions below

and the various briefs here, to define or identify the type of training that may be required in every

case. A court properly may start with the generalization that there is a right to minimally adequate

training. The basic requirement of adequacy, in terms more familiar to courts, may be stated as

that training which is reasonable in light of identifiable liberty interests and the circumstances of

the case. A federal court, of course, must identify a constitutional predicate for the imposition of

582

any affirmative duty on a State. *582 Id. at 319 n. 25, 102 S.Ct. at 2460 n. 25 (emphasis added).

After establishing that the plaintiff in Youngberg retained "liberty interests in safety and freedom from bodily restraint," the Court explained the need to set forth a standard to apply in determining whether the State has violated these substantive due process rights of an involuntarily committed mentally retarded individual.

The question ... is not simply whether a liberty interest has been infringed but whether the extent or nature of the restraint or lack of absolute safety is such as to violate due process.

* * * * * *

[W]hether [the plaintiff's] constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests. If there is to be any uniformity in protecting these interests, this balancing cannot be left to the unguided discretion of a judge or jury.

Id. at 320-21, 102 S.Ct. at 2460-61. The Court then held that "`the Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professional choices should have been made.'" Id. at 321, 102 S.Ct. at 2461 (emphasis added) (citation omitted).[7]

With respect to the plaintiff's claim for minimally adequate training, the Youngberg Court explained the deference to be shown in applying the "professional judgment" standard:

In this case, the minimally adequate training required by the Constitution is such training as may be reasonable in light of respondent's liberty interests in safety and freedom from unreasonable restraints. In determining what is "reasonable" 0907 in this and in any case presenting a claim for training by a State 0907 we emphasize that the courts must show deference to the judgment exercised by a qualified professional. By so limiting judicial review of challenges to conditions in state institutions, interference by the federal judiciary with the internal operations of these institutions should be minimized.... [T]he decision, if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.

Id. at 322-23, 102 S.Ct. at 2462-63 (emphasis added) (footnotes omitted). See also Society for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239, 1248 (2d Cir.1984) ("Youngberg held that due process is satisfied if restraints are imposed on mentally retarded individuals in accordance with the judgment of qualified professionals and that courts should defer to this professional judgment.").

C. The Professional Judgment Standard

The United States contends that the "professional judgment" standard set forth in Youngberg is not applicable, 583 but if it is applicable, the standard pertains only to the claim regarding training. 87/30-33.[8] The United *583
States' argument is based on a tortured reading of Youngberg, and completely ignores Third Circuit precedent interpreting Youngberg, which is binding on this Court. See Shaw v. Strackhouse, 920 F.2d 1135, 1146 (3d Cir.1992) ("Absent even a hint that the Court meant to so limit its holding, we must read Youngberg at face value and apply the professional judgment standard to all failure to protect, excessive restraint, and failure to habilitate claims brought by mentally retarded persons who are institutionalized, whether such claims are brought independently or in tandem.").

The United States argues: "As contemplated in Youngberg, safety is an objective standard that can be measured through objective criteria." 87/30. The United States fails to explain how this novel proposition is "contemplated" in Youngberg, and fails to indicate the source of the "objective standard" that this Court should apply. To the contrary, the Supreme Court in Youngberg specifically stated that, in determining whether the constitutional rights of an institutionalized individual have been violated, a court must balance the individual's liberty interests against the relevant state interests, and that "[i]f there is to be any uniformity in protecting these interests, this balancing cannot be left to the unguided discretion of a judge or jury." 457 U.S. at 321, 102 S.Ct. at 2461. For this very reason, the Supreme Court set forth the "professional judgment" standard. The United States' argument must be rejected.[9]
In Shaw, the Third Circuit attempted to clarify the meaning of the "professional judgment" standard established in Youngberg, and stressed that mere negligence "cannot trigger due process protection." Id. at 1146.
Professional judgment is a relatively deferential standard. It requires only that a state actor exercise professional judgment in choosing the appropriate course of action. Negligence, however, imposes on a state official the burden of choosing, from among alternatives, a course of action consistent with the exercise of `due care.' That means, as we see it, rejecting negligent alternatives that might nonetheless satisfy the demands of professional judgment. .... [Professional judgment] appears to us to be a substantially less onerous standard than negligence from the viewpoint of the public actor. Indeed, in our view, professional judgment more closely approximates 0907 although, as we have discussed, remains somewhat less deferential than 0907 a recklessness or gross negligence standard. Professional judgment, like recklessness and gross negligence, generally falls somewhere between simple negligence and intentional misconduct.
Id. (emphasis added). Accord Society for Good Will to Retarded Children, 737 F.2d at 1248 ("`[P]rofessional judgment' has nothing to do with what course of action would make patients `safer, happier and more productive.' Rather, it is a standard that determines whether a particular decision has substantially met professionally accepted minimum standards.").
As Shaw and other cases decided since Youngberg explain, the "professional judgment" standard (i.e., deciding whether a decisionmaker's action, or inaction, constituted "such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment," 457 U.S. at 323, 102 S.Ct. at 2462,) is a less onerous standard for a state 584 actor to meet than that of negligence *584 or medical malpractice. Optimal courses of treatment as determined by some expert, while laudable, do not establish the minimal constitutional standard. Society for Good Will to Retarded Children, 737 F.2d at 1248.[10] Instead, the factfinder must determine whether the decision made by the professional comports with minimally accepted professional standards.
In making this determination, expert testimony is "relevant not because of the experts' own opinions 0907 which are likely to diverge widely 0907 but because that testimony may shed light on what constitutes minimally accepted standards across the profession." Society for Good Will to Retarded Children, Inc., 737 F.2d at 1248.
The role of the experts is only to assist the court in ascertaining what the minimum professional standard is; the ultimate question is whether "`professional judgment in fact was exercised.'" Even if every expert testifying at trial agrees that another type of treatment or residence setting might be better, the federal courts may only decide whether the treatment or residence setting that actually was selected was a "substantial departure" from prevailing standards of practice.
Id. at 1248-49 (citations omitted). Accord Society for Good Will to Retarded Children, Inc. v. Cuomo, 902 F.2d 1085, 1090 (2d Cir. 1990) (district court erred in finding constitutional violations without first determining whether the conditions and treatment substantially departed from accepted professional judgment; "the district court should use expert testimony to identify `substantial departures', but not to choose from among several professionally acceptable remedies").

III. FINDINGS OF FACT AND CONCLUSIONS REGARDING LIBERTY INTERESTS AT ISSUE IN THIS LITIGATION
The United States alleges that four separate categories of "liberty interests" have been violated at the Center. To properly analyze the evidence, I must evaluate (1) the nature of the liberty interests of the residents at issue (and defendants' corresponding duty to protect those rights); and (2) whether defendants' official customs and policies, as implemented at the Center, so substantially departed from accepted professional judgment, practice, or standards as to demonstrate that defendants actually did not base their decisions on professional judgment.
This case has been carefully and exhaustively litigated by the United States and the defendants. Constraints of time and space do not permit me to respond to every one of the manifold factual and legal contentions raised by the United States with respect to the liberty interests at issue in this litigation. As the lengthy opinion which follows demonstrates, however, I have attempted to address in detail the more serious issues, while confronting the remaining issues in a general manner. Before addressing the United States' contentions, a brief overview of the Center's structure and services is in order.
A. The Center's Structure and Services
The Ebensburg Center is an institution operated by the Commonwealth for mentally retarded persons, serving Bedford, Blair, Cambria and Somerset Counties. The Center is licensed as an intermediate care facility for persons with mental retardation and is geared toward caring for individuals with significant behavioral deficits who require assistance to meet their daily needs, and who have been unable to procure like services elsewhere. Exh. 11. The Center has a full operating license under the federal standards of the Title XIX Medicaid Program, which is a prerequisite for participating in the Medicaid Program. 62/158.
The Center was built in the 1950s. Many of the residents were placed at the center as children, and currently the median age of the residents is 32.5 years. 62/163. The Center's 475 residents live in five buildings or living units, each of which has four separate wings. There are approximately 96 residents to each building or 24 residents to 585 each *585 wing. 62/140-41; Exh. 608/62.[11] The Center currently provides four private rooms per unit and plans to increase the number of private rooms available. Exh. 603/104; 63/27.
The living units are the Keystone House, Laurel House, Sunset House, Horizon House, and the Villa House. The Keystone Unit houses the residents who are more profoundly mentally retarded and more physically disabled. Some physically handicapped residents also live in the Laurel, Horizon, Sunset and Villa living units. 34/98. Approximately one third of the residents of the Keystone unit are essentially immobile 0907 meaning that, as a result of their physical handicaps, they have no active movement, except for the ability to move their head, or to slightly move an arm or leg. 34/98. The physical handicaps manifested by the residents at the Center are a result of damage to the brain. 34/107.
Laurel Unit houses mentally retarded women. Some of the mentally retarded men reside in the Sunset House. Horizon House houses residents who are visually impaired or blind. Villa is home for the Center's higher functioning individuals who are mildly to moderately mentally retarded. 43/81.
The Center has been budgeted a total of 790 full-time staff, which includes direct staff, professional staff and administrative staff. Exh. 601/53, 95. Additional staff may be requested during or before the fiscal year from a pool of staff serving facilities operated by the state. Exh. 600/95-99. Approximately 366 of the Center's staff are involved solely with direct care. Exh. 600/99.
Alan M. Bellomo was appointed as Director of the Ebensburg Center in 1985 and continues to serve in that capacity. 62/130. As Director, he oversees the total operation of the facility to insure that the residents are receiving adequate services, care and treatment. Exh. 600/51-52. All staff of the Center are ultimately responsible to Mr. Bellomo. Exh. 600/52. Mr. Bellomo relies in part on the judgments of his division director, disciplinary

coordinator, outside reviews, advocacy groups and family association members to keep him updated on the needs of the facility. Exh. 600/63.
Mr. Bellomo reports to Dr. Sneed, who is the Director of the Bureau of Direct Program Operations for the OMR. 63/25. Dr. Sneed supervises the direction of eight other mental retardation facilities and is supervised himself by the Pennsylvania Deputy Secretary for Mental Retardation. Exh. 600/64-67. Dr. Sneed speaks with Mr. Bellomo at least once a week and attends monthly meetings with Mr. Bellomo. Exh. 600/67-73.
Under Mr. Bellomo's direction, the Center's Executive Staff perform rounds of the facility to remain abreast of resident's concerns and care. These rounds give management the opportunity to know the residents personally, provide oversight when there would otherwise be none, and give the employees an opportunity to speak openly with facility management. Exh. 600/11-12; 63/89; 63/59. Management submits weekly observations and criticisms of the facility to Mr. Bellomo for consideration. Exh. 603/10. Mr. Bellomo addresses these concerns as they arise and creates incremental plans to relieve problems. Exh. 600/25-27.
As facility director, Mr. Bellomo also chairs the Executive Staff and Risk Management committees and participates on the Mortality and Morbidity Review and Budget committees. Exh. 600/49. Mr. Bellomo often attends the annual reviews that occur at the facility. Id. Additionally, Mr. Bellomo chairs town meetings so that he may address concerns of the residents. Exh. 600/49.
586 *586 As part of his management and oversight, Mr. Bellomo receives copies of the Center's incident reports. Exh. 600/42-43; 63/16. Mr. Fulton, the Center's safety director, also receives copies of the incident reports. As safety director, Mr. Fulton investigates all suspicious injuries, as well as any incident which Mr. Bellomo believes warrants further investigation. Exh. 601/131-35.
Richard G. O'Brien has been Director of Program Services at the Center since 1982. 64/65. As Director of Program Services, Mr. O'Brien is responsible for monitoring discipline coordinators in the areas of psychology, nursing, speech pathology, volunteer resources and social services. He also is responsible for the contract services provided to the Center by Liberty Health Care, Mercy Hospital, Camco's physical therapy services, and various laboratory services. In addition, Mr. O'Brien is responsible for the operation of and monitoring of the quality assurance program. 64/66. This program insures that Ebensburg complies with various federal standards and properly implements the standard for Intermediate Care Facilities for the Mentally Retarded (ICFMR). Exh. 600/53.
The Center is organized along the lines of a "unit system" 0907 a method of operation that became popular in the 1970s in an effort "to get away from the clearly delineated 0907 what became isolated 0907 roles of different professionals." 51/17. The unit system strives to better coordinate the services of all the professional disciplines that are provided to the residents, with each unit director or manager administratively supervising the provision of services to his or her residents. 51/17-19.
Under the unit system, all of the living units are served by the Center's Director of Residential Unit Management (DRUM), David Devine. Mr. Devine supervises each building's Unit Manager, and Mr. Devine is ultimately responsible for providing adequate residential services and care to the residents of the facility. Exh. 608/22; 63/8. Mr. Devine's direct supervisor is Mr. Bellomo. Exh. 608/34.
The Unit Managers run each unit in three shifts. The first shift is supervised by a Residential Service Supervisor (RSS), who is a Qualified Mental Retardation Professional (QMRP). The QMRP is the staff person responsible for a resident's case management, which includes a ninety-day review to insure that all services are being properly provided. The QMRP also coordinates that resident's annual staffing and insures that any provider of a program service documents activity in the chart. 64/130. The RSS also supervises the Residential Service Aids (RSAs) who provide direct care to the residents. Exh. 608/190. Residential Service Aide Supervisors (RSAS) and Residential Service Night Aide Supervisors (RSNAS) act as RSA supervisors on the second and third shifts, respectively. Exh. 601/78.
Mr. Devine also is responsible for scheduling staff and meeting direct care employee quotas. Quotas, the minimum number of RSAs allowed for a shift, are set by Mr. Bellomo to insure that residents receive adequate attention and care. Currently, the Center employs approximately 366 full-time and twenty-nine substitute RSAs to

meet the existing quotas. Exh. 601/7-8. Professional staff are not included when determining the quota, but the record reveals that approximately 30% of the RSAS' time per month is spent working in cooperation with the RSA quota, providing hands-on care and at the same time monitoring their staff. Exh. 600/140; Exh. 601/69-71; Exh. 608/97. RSASs are not included in the quota because they also are responsible for administrative tasks, such as assisting in the design and implementation of the residents' programs. Exh. 601/78.
On occasion, Mr. Devine also uses unit "pulls" to meet his minimum quota. Generally RSAs are "pulled" from one unit to work in another so that both units are able to make quota for that shift. Exh. 601/78-80. Occasionally, Mr. Devine must pull nurses, so that the Registered Nurse Supervisors are properly supported. Exh. 601/80. The Center's quota minimums exceed Title XIX's requirements and are reviewed on a monthly basis by the OMR. Exh. 600/149, 152.
Mr. Devine's duties also include the supervision of infection control, all staff of the third shift, as well as three 587 nurse supervisors. Finally, as DRUM, Mr. Devine sits on *587 the Executive Staff Safety Committee, Risk
Committee, Budget Committee, Approved Purchase Committee, Record Committee, Probationary Review, Mortality/Morbidity Committee, and the Policy Committee. Exh. 608/16-18, 188.
Mary Kay Bennett acts as the Center's guardian officer, and ensures that the residents' money is safeguarded and reasonably spent. Exh. 603/25, 56. Ms. Bennett is court-appointed and supervised by a western regional officer. Exh. 603/25-26.
The state, through the Pennsylvania Protection and Advocacy Organization (PP & A), also provides some residents with advocates. PP & A is recognized by Pennsylvania's governor as an advocate for the disabled and occasionally subcontracts its duties with the state Association for Retarded Citizens (ARC). Due to an inadequacy of representation, however, the Center began a program which utilizes citizens from the Ebensburg area as "special friends" and advocates for the residents. The special friends form relationships with the residents, visit on holidays, and attend the residents' annual care review if possible. Exh. 603/26-27.
The facility also attempts to place residents in the surrounding area so that they have an opportunity to live in a non-institutional community. 63/171. Mr. Bellomo recommends that residents be placed in the community, but the county's mental health/mental retardation administrator makes final determinations on placement. Exh. 600/81; 63/18. Although the Center has residents who could be placed in the community, no such facilities are currently available. In an effort to ameliorate this unfortunate situation, for those residents who qualify for community placement, the facility awards "grounds privileges," which allows those residents to walk independently on the grounds or go to the mini-mall located near the facility. 63/160.
The standards of Title XIX require that facilities such as the Center be subjected to an unannounced, annual survey. 62/158. The survey team is present for approximately one week and scrutinizes the Center for its compliance with approximately 475 different standards. 64/42. The survey team then provides a report to the Center listing its concerns, and the Center must provide a plan of correction, which specifies a particular date for compliance. Thereafter, the survey team will return unannounced to ascertain if the various deficiencies previously cited have, in fact, been completely corrected. 64/42.
As a result of a Title XIX survey in October 1990, the Center received a Provisional I license under Title XIX for January 31, 1991, to July 31, 1991. 62/144; Exh. 1101. The provisional license was recommended by the Title XIX survey team to the OMR (which is responsible for the licensure process and is under the aegis of the Pennsylvania Department of Public Welfare). 62/144-45. The survey team recommended the provisional license as a result of problematic sexual behavior presented by one male resident, Clifford P. The Title XIX survey team was of the opinion that the Center had to develop a sexuality program to address this problematic sexual behavior before a full operating license could be recommended. 602/113. Significantly, the Title XIX survey team noted "the deficiencies during this survey do not individually or collectively jeopardize client health and safety or seriously impair the facility's ability to render care." 62/144. The Provisional I license issued by the Pennsylvania Department of Public Welfare was not equivalent to the decertification process that exists under the Health Care Finance Administration. 62/147.

Subsequently, the Provisional I license was replaced by a full operating license issued by the Pennsylvania Department of Public Welfare. The record contains no evidence of the issuance of any other provisional license. A full operating license under the Title XIX Medicaid Program is not an indication that a facility does not have any deficiencies. In fact, it is rare for a Title XIX survey team not to find some deficiencies in a facility which it has inspected. 64/44.
In addition to the Title XIX Medicaid Program inspection and licensing process, the Center also is subject to the Inspection of Care (IoC) survey process carried out by the Office of Medical Assistance, a division of the 588 Pennsylvania Department of Public Welfare. *588 The federal Title XIX survey and the Pennsylvania IoC survey are two separate processes. 62/159; compare Exh. 60 (11/92 Title XIX survey) and Exh. 67 (8/92 IOC survey). The IoC surveyors who visit the facility actually go page by page through all records of the Center, noting any deficiency which is apparent. A plan of correction for these deficiencies must be submitted and approved by the Office of Medical Assistance. 62/158-59; Exh. 63. If a plan of correction is not approved and implemented, the Center risks the loss of Medicaid funding. Exh. 63. The record does not contain any evidence of any plans of correction which have not been approved or implemented.
B. Adequate Basic Care
The United States contends that defendants have failed to provide the residents at the Center with the constitutionally required level of basic care. In particular, the United States alleges that insects have been found on food and on the residents,[12] the clothing of some residents has been soiled, residents have not been bathed properly, and there is a disregard for the privacy of residents. 87/89; 92/22-3.[13]
As noted above, adequate food, shelter and clothing are "essentials of ... care that the State must provide" to the residents of the Center. Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462. The United States' allegations with respect to inadequate food (nutritional management) are addressed below in the discussion concerning adequate medical care, and I limit this portion of the opinion to the right to receive adequate shelter and clothing.
In Society for Good Will, 737 F.2d at 1244, the Court of Appeals for the Second Circuit affirmed a district court's finding that "the quality of the shelter at [a state operated school for the mentally retarded] did not meet constitutional minimums." The Second Circuit noted the conditions of filth, insect and rodent infestation, unsanitary conditions resulting in the transmission of various diseases, and inordinately hot rooms and/or temperature control problems, and held that the record contained sufficient evidence to support the district court's conclusion that the shelter was constitutionally infirm. Id. The court specifically noted that the problems at the facility were pervasive, and were not simply isolated lapses in care 0907 "there was sufficient evidence for the district court to conclude that problems in the living conditions at [the institution] were either not being corrected or were arising on a recurring basis and that these problems caused the living environment to fall below constitutional standards." Id.
In this case, the United States has persistently focused on two incidents involving insects as a basis for its assertion that the Center, as an institution, has failed to provide adequate shelter. The first instance involved the discovery of ants on two residents who had been placed on floor mats in the day room to sleep overnight because their rooms were being painted. The staff discovered the ants on their bodies on two separate mornings (i.e., the first resident was discovered with ants on her body on one morning, and the other resident was discovered with ants the following morning). Exh. 87. Thereafter, the staff took steps to exterminate the insects, and the residents' beds were moved out to the day room for overnight sleeping purposes while the rooms were being painted. Id. at 00000918.
The other, more serious incident involved the discovery of an infestation of maggots in a resident's ear. Exh. 1022. Just how this infestation occurred could not be definitively established, but the Center's investigation concluded that this resident's ear most likely became infested as a result of outdoor activity in the grass, which was confirmed by the emergency room physician. 63/77. No other similar incidents were reported.
589

*589 These two isolated instances related to insects, without more, are insufficient to demonstrate that the Center provides constitutionally inadequate basic care by tolerating insect infestations. To the contrary, the Commonwealth proffered credible evidence that these incidents were promptly reported by the staff. Upon notification of circumstances warranting attention, professional judgment was exercised; the situations were addressed, and the problems did not recur.
As the Third Circuit in Shaw explained (in addressing a claim for alleged inadequate safety), isolated examples of problems, while regrettable, do not establish constitutional violations.
Although the failure to prevent a "pattern of attacks, injuries, or violent behavior" is actionable, "[t]he right to protection is not activated by an isolated mishap, or called into question by each bruise that a patient may suffer." We do not mean to minimize the seriousness of Shaw's February 3 injury. We conclude, however, that the failure of the responsible staff member to keep watch over Shaw at the instant he happened to leave or be taken from his ward on February 3 amounts to just such an "isolated mishap." It cannot amount to more than simple negligence.
920 F.2d at 1143 (citation omitted). See also Society for Good Will, 737 F.2d at 1245 ("While there have been occasions when patients' specific medical problems have been treated improperly, the district court's decision should not have been based on isolated instances of improper treatment, but on a finding that medical care was inadequate on a class-wide basis. Isolated instances of inadequate care, or even of malpractice, do not demonstrate a constitutional violation.").
The United States also asserts that the clothing provided to the residents of the Center violates constitutional minimum standards because, on occasions, residents have been found with soiled clothing and soiled diapers. In support of its position, the United States cites expert testimony regarding a patient who he discovered with vomitus on his face and clothing. Dr. Stark, a psychologist who specializes in the care of persons with developmental disabilities, testified that he notified someone about the resident's condition, and that it "took a while" for someone to clean it up. Dr. Stark also stated that he saw residents with food stains on their clothes, and that some residents had a body odor and others an odor of urine. 43/220.
Obviously, the presence of vomitus on one's person is unpleasant for that individual and repugnant to others. Again, however, the record indicates that this was an isolated occurrence, and, without more, I cannot deem this incident indicative of a failure by the Center to provide adequate clothing for the residents or to promptly respond to situations requiring care and attention. In particular, I note that the record contains credible testimony that the staff at the Center felt inhibited and hesitated to intervene on behalf of the residents in the presence of the United States' experts. 62/198.
Moreover, even if I consider this incident together with the testimony that residents had food stains on their clothes, I cannot find defendants constitutionally deficient in providing adequate clothing to the residents. There are stains which by their nature alter the appearance of clothing, but which do not automatically make it unfit to wear. The United States' own witness, Mr. Tackett, acknowledged that the Center routinely changed the clothing of those residents in the Keystone unit who "needed it." 38/17. In addition, the United States' photographic exhibits reveal that each resident had clean, presentable, and properly-fitting clothing. See, e.g., Exhs. 670-71, 678-82, 705, 709-10, 713, 734-40. This is a trivial matter that does not warrant the constitutional analysis which the Government's contention requires of me.
With respect to the United States' contention that the residents smell like urine, the United States cites the conclusory testimony of Dr. Stark (which provided no evidence with respect to the frequency of this alleged problem), 43/220, and a November 6, 1992, Medical Assistance Survey. Exh. 60. The November 1992 Survey states that a Medicaid standard had not been met because 12 residents were confined to their wheelchairs for 5 590 hours without being changed, *590 and when changed, the Attends (a brand name of an adult diaper) worn by those residents were heavily saturated with urine. Exh. 60, 00503763. There is no reference to urine saturated residents or urine saturated Attends in any other of the Medical Assistance Surveys from 1983 to 1992 (see Exhs. 48-59) nor is there any other testimony in this regard. This single discovery by the survey team hardly proves a prevalent condition at the Center.

The United States contends the residents are not bathed properly, citing the testimony of Mr. Tackett, a former Center employee, and an anonymous complaint at a union meeting about residents being "hosed up one side and down the other." Exh. 995. As I indicated during the trial of this matter, the anonymous complaint at a union meeting about bathing the residents is not competent evidence. It is hearsay which is being offered to prove the truth of the matter asserted, Fed.R.Evid. 801(c). The declarant has not been subject to cross-examination, nor is his/her identity even known. Moreover, the reliability of the evidence is suspect in light of the fact that the employee would not repeat the allegation at the request of the Center so that the Center might seek to validate the complaint and, if necessary, address it. 64/46-47. There is no evidence to suggest that the employee wished to remain anonymous because he feared retaliation.
Mr. Tackett testified that the bathing process in the Keystone living unit was like an assembly line, "it could have been longer ... it was done very quickly...." 38/27-28. The substance of his testimony does not establish an inadequate bathing process. Although the procedure is done quickly, it is routine for the staff. Mr. Tackett's testimony does not assert that the residents were still dirty after being bathed, that they smelled, or that they were not bathed frequently enough. Rather, his testimony suggests no more than that they were bathed too quickly. This hardly demonstrates a failure to exercise professional judgment, or that the Center's bathing practices did not meet minimum professional standards.
Finally, the United States submits that the Center fails to provide adequate care for the residents because it does not provide the residents with privacy. Although the Supreme Court in Youngberg did not explicitly acknowledge a "right to privacy" for institutionalized mentally retarded individuals, it is only logical to infer from the Court's recognition of the right to adequate clothing that there exists a correlative right to avoid being viewed unclothed. 457 U.S. at 324, 102 S.Ct. at 2462; see also Association for Retarded Citizens of North Dakota, 561 F.Supp. at 491.
The United States points to the fact that privacy issues have been addressed in every annual state survey, and yet the Center has failed to respond effectively. The United States further notes that even Mr. Bellomo observed an incident involving seven residents clothed in only Attends, milling about a hallway while locked out of their rooms. Exh. 109. These problems with privacy have by and large occurred in the Sunset, Horizon or Villa living units, where the residents are more mobile.
The November/December 1983 Medical Assistance Survey for the Center noted a lack of privacy for residents during toileting and bathing. Exh. 48, # 00800265. In the October 1989 Medical Assistance Survey, a deficiency was noted because residents in Keystone were dressed, changed and bathed without privacy, and two residents in Horizon II used the bathroom stalls without closing the privacy curtain. Exh. 56, # 00800324. In October of 1990, the Medical Assistance Survey noted a deficiency because a resident was observed while in a Villa unit TV room without a blouse on, and another resident was observed walking naked from the bathroom to the TV room. Exh. 57, # 00004041.
For each of these deficiencies, the Center's Plan of Correction provided for inservicing or teaching the staff regarding the need to afford greater privacy to residents. The privacy issues were not ignored, and I find that the Plan of Correction implemented at the Center fully comports with accepted professional standards. The record is 591 clear that the Center responded to the breaches of privacy by instituting more training. The *591 professional judgment exercised, therefore, is not a substantial departure from accepted professional standards.
The fact that the training did not bring about a complete cessation of incidents like those described above does not compel the finding of a violation of the residents' right to privacy. Improvements were made, and the United States failed to offer any testimony, expert or otherwise, concerning how the Center's action in responding to the privacy breaches constituted a substantial deviation from acceptable professional standards.[14]
To summarize, I find that the United States has failed to prove that the cited lapses in basic care at the Center 0907 either individually or in total 0907 have risen to the level of a constitutional violation, much less that the Commonwealth's official "policy or custom" played any role in the alleged deprivation of care. See Graham, 473 U.S. at 166, 105 S.Ct. at 3105 (in official-capacity suit, the governmental entity's "policy or custom" must have played a part in the violation of federal law). In response to each of the problems with care discussed above

(which occurred in different areas over the course of several years at this large institution), the Center responded with corrective measures pursuant to the exercise of professional judgment. While the lapses by the Center may have been negligent 0907 and are at least regrettable 0907 I conclude that the basic care provided at the Center does not constitute a substantial deviation from professional standards and is not constitutionally infirm.
C. Adequate Medical Care
The right of an institutionalized mentally retarded person to receive adequate medical care 0907 acknowledged without discussion by the Supreme Court in Youngberg as a substantive liberty interest protected by the Fourteenth Amendment (457 U.S. at 315, 324, 102 S.Ct. at 2457-58, 2462) 0907 has been discussed by a number of courts. See, e.g., Society for Good Will, 737 F.2d at 1245 (district court's finding of inadequate medical care at facility was clearly erroneous; "Isolated instances of inadequate care, or even of malpractice, do not demonstrate a constitutional violation."); Lelsz v. Kavanagh, 673 F.Supp. 828, 834 (N.D.Tex.1987) (constitutionally required medical care "includes not only life-preserving or emergency care, but also regular and preventive treatment for ordinary or chronic ailments."). The United States challenges the following areas of medical care at the Center: neurologic care; psychiatric care; treatment of gastroesophageal reflux and aspiration; nutritional management; physical therapy and physical management; general medical care; and general nursing care.
1. NEUROLOGIC CARE
The United States contends that the Center's efforts to provide emergent neurological care for its residents who sustain status epilepticus[15] constitutes a substantial deviation from accepted professional judgment. 87/77-82. It further contends that the Center's provision of regular and preventive neurological care is likewise deficient. In 592 particular, *592 the United States claims that the Center's treatment of residents with seizure disorders substantially deviates from accepted professional judgment because: (1) the residents receive more medication and combinations of medication to prevent seizures and sustain more adverse side effects than are acceptable, 87/84-86; (2) some of the residents receive anticonvulsant medication despite the fact that a diagnostic test, which has not been administered, may indicate that the resident does not experience seizure activity, 87/83-84; and (3) residents who experience seizure activity continue to sustain injuries of varying magnitude, 87/83.
In one sense, any seizure activity is an emergency. True status epilepticus, however, presents special concerns not only because of the seizure and its associated loss of consciousness, but also because of the potential to compromise an individual's respiratory status and the ability to oxygenate the tissues of the brain and other vital organs. 49/235; 36/50-51; 81/17. The longer the seizure activity persists, the more difficult it is to control with medication. 81/141. On the other hand, most seizures spontaneously cease within a few minutes. 36/201. A seizure that lasts one, two or three minutes and then ends with the resident responding, while clinically significant, is not an emergency situation. 81/34. To further complicate the assessment of status epilepticus and its treatment, neither the onset nor the duration of a seizure can be predicted. Exh. 1107, p. 854; 81/33, 119-20.
Against this backdrop, I must determine whether the Center's care of its residents with status epilepticus constitutes a substantial deviation from acceptable professional standards. Dr. Alvarez, an expert neurologist for the United States, testified that the Center's treatment of status epilepticus 0907 which consists of observation and monitoring, the administration of oral or intramuscular anticonvulsants pursuant to a physician's order, and ambulance transportation to a hospital 0907 is not acceptable treatment. Dr. Alvarez testified that the most acceptable treatment for status epilepticus is the use of intravenous Valium, and that the intramuscular administration of anticonvulsants is a substantial deviation from acceptable professional standards. 36/55; Exh. 1107. The Commonwealth responded with evidence from Dr. Chamovitz, the Center's consulting neurologist, that the Center is not licensed to provide intravenous therapy to its patients (64/171-2; Exh. 633 (1-19-93), pp. 25-26)), but that the treatment provided for residents in status epilepticus comported with acceptable medical treatment.
On rebuttal, Dr. Coulter, also a neurologist, emphasized the deficiency in the Center's treatment of status by reference to a protocol recommended by the Epilepsy Foundation of America (EFA) stating that "intramuscular

therapy has no place treating status epilepticus or seizures in general." Exh. 1107/856. Dr. Coulter explained that the treatment protocol "pull[ed] together for the general medical community what neurologists have known for ten or fifteen years." 81/24. Dr. Coulter noted that although the EFA treatment protocol recommendation was not new, it had been recently codified and published in the August 18, 1993 Journal of the American Medical Association. 81/64. He noted that neurologists are the medical professionals most qualified to treat status epilepticus, and that the thrust of the EFA treatment protocol recommendation was for other medical practitioners who encountered patients in status. 81/18. The protocol recommendation was published in the JAMA for that reason 0907 "the intent was to put it in a place where all general physicians would see it ..." 81/19.
The primary care physicians at the Center who ordered the intramuscular administration of anticonvulsants are not neurologists, but general practitioners. This is the audience the EFA treatment protocol was hoping to reach. As Dr. Coulter's testimony and the EFA treatment protocol itself establish, the "[t]reatment of status epilepticus varie[d], and archaic therapies with sedatives, insufficient doses, and intramuscular administration [were] still practiced in some areas." 81/18-25; Exh. 1107/854. As such, there was a tacit acknowledgment within the medical community that the protocol for the treatment of status epilepticus among medical practitioners, other 593 than neurologists, before *593 the publication of the EFA treatment protocol in August of 1993, was anything but clear. 81/18, 25; see also 48/118-21 (Dr. Kastner's testimony regarding confusion in medical literature about treatment of status epilepticus).[16]
As a result, the direction by the Center's primary care physicians to administer anticonvulsants intramuscularly to treat status epilepticus was made pursuant to an exercise of professional judgment that had some basis in accepted professional practice among general practitioners at that time. The Center's administration of anticonvulsants intramuscularly for the treatment of status epilepticus during the period for which testimony was offered did not violate constitutional minimum standards.[17]
The Center's treatment of status epilepticus also includes observation and monitoring of the resident, and ambulance transportation to a hospital. Both Dr. Chamovitz and Dr. Coulter testified that this is the accepted modality of treatment for their patients who reside at home. 49/231-34; 81/33. Inasmuch as the Center is the "home" for the residents, both of these interventions are acceptable professional practices. Moreover, the observation and monitoring of a resident would appear to be a necessary component for purposes of determining whether that resident actually is in a state approaching status epilepticus, or has reached the point where additional services should be provided. 81/59. Once a determination has been made that the resident requires treatment that cannot be rendered at the Center, ambulance transportation is appropriate. 49/231-34. The Center's contract with an ambulance association provides access to practitioners licensed to administer advanced life support services in conjunction with a physician from one of the local hospitals. 64/98-99.[18]
Dr. Alvarez also challenged as deficient the regular neurologic care for the residents pertaining to the administration of anticonvulsants. Dr. Alvarez alleged that there were too many residents on multiple anticonvulsants, despite the fact that they had few seizures or were experiencing side effects. 36/114. It is undisputed that the acceptable standard for the treatment of seizures is the administration of the smallest dosage of anticonvulsant medications necessary to control seizures. 36/112; 48/126. However, if one anticonvulsant does not control an individual's seizures, another anticonvulsant may be added to the regime. If two anticonvulsants do not control the seizures, a third anticonvulsant may be added. Occasionally, if an individual's seizures still are not controlled, a fourth anticonvulsant may be added. 36/112-13; 49/241. Dr. Alvarez admitted that he himself had some patients on four anticonvulsants to control their seizures. 36/149-50.
Dr. Alvarez supported his opinion that the Center had too many of its residents on multiple anticonvulsant 594 medications by reviewing *594 the medication regime of residents on four anticonvulsants. See Exhs. 307(a) and
351(a). Dr. Alvarez noted that the recommendation of the consulting neurologist, Dr. Chamovitz, to reduce the dosage of certain anticonvulsants for these residents on four different medications had been ignored by the primary care physician.
In response to this testimony by Dr. Alvarez, however, Dr. Chamovitz explained that the decisions of the primary care physicians not to reduce the number of and dosages of anticonvulsants were acceptable professional practices. Dr. Chamovitz described the manner in which he discussed his recommendation with the primary care

physicians, who ultimately implemented or rejected them, and that the rejection of his recommendation was based on the fact that the primary care physician was more familiar with the resident and aware of previous unsuccessful efforts to reduce the amount of medication needed to control a resident's seizure disorder. 49/241, 244-47. Dr. Chamovitz also testified regarding his confidence in the judgment of the primary care physicians, who although they were not neurologists, were very well versed in the treatment of seizures because 50% of the Center's population is epileptic. 49/245.
Dr. Alvarez opined that even though polypharmacy with four drugs may be acceptable in some circumstances, it should only be instituted for a short period of time and for no more than two months. 36/112-13. The United States contends that the Center's use of four anticonvulsants has gone on for years, as opposed to acceptable short periods of time. In response, Dr. Chamovitz testified that although treatment with four anticonvulsants is not desirable, it is acceptable practice. 49/241.
Significantly, the Center has a total of 312 residents with a diagnosis of epilepsy, Exh. HH, Table 6, of whom 240 are prescribed anticonvulsant medication. Of the 312 epileptic residents, 17.63% are treated with polypharmacy: 13.46% are treated with three anticonvulsants and 4.17% treated with four anticonvulsants. Exh. HH, Table 6.[19] In addition, the Center has improved its treatment of seizures by reducing the number of anticonvulsants prescribed to control seizure activity. Dr. Kastner, a former Department of Justice consultant and a pediatrician who works with the developmentally disabled, testified that the Center's efforts to reduce polypharmacy started in 1990, shortly after the publication by researchers in the field of a protocol calling for such action. 48/110. The result of this effort was illustrated by Dr. Kastner in a table documenting the treatment from 1990 through 1992 of the epileptic residents for whom Dr. Shertz, one of the Center's primary care physicians, provided care. 48/109-10; Exh. HH, Table 7. Dr. Kastner opined that the "rate of polypharmacy is not high" at the Center. 48/111.
Although it is preferable for residents with seizure disorders to be treated with less than four anticonvulsants where possible, I find that the administration of multiple anticonvulsants to some of the Center's residents does not itself constitute a violation of the residents' right to adequate neurological care. My role is not to decide whether adding this drug or continuing that one is the better course of treatment; rather, I am to evaluate whether the care provided met professionally accepted minimum standards. See Society for Good Will, 902 F.2d at 1090 ("In its inquiry, the district court should use expert testimony to identify `substantial departures', but not to choose from among several professionally acceptable remedies."). In each case of polypharmacy, the decision to use an additional anticonvulsant was the result of the exercise of professional judgment that is consistent with acceptable professional standards. 49/247.
Dr. Alvarez also claimed that the regular neurologic care for the residents was deficient because the residents 595 manifested too many side effects and no efforts were made to reduce the incidence of the side effects. *595
36/120. According to Dr. Alvarez, a successful treatment for seizure disorders involves obtaining control of an individual's seizures with the least amount of medication and with the fewest possible side effects. 36/152. To support his opinion that the residents manifested too many side effects from their anticonvulsant medications, Dr. Alvarez noted that Jeffrey K. continued to receive dosages of Depakote in an amount exceeding that recommended by the manufacturer, even though Dr. Chamovitz had questioned the high dosage. Exh. 393. Despite the high levels of Depakote, Jeffrey K.'s seizures were not controlled, and he was transferred to a local hospital for treatment. Although his Depakote level was within the therapeutic range, Jeffrey K. had developed thrombocytopenia,[20] a side effect of Depakote. In explaining the Center's care of Jeffrey K., Dr. Chamovitz testified that the treatment was acceptable because the high dosage was being administered in an effort to keep his blood level in the therapeutic range, in order to determine its effectiveness. 50/201-02. Thus, for this patient, the high dosage was consistent with the treatment recommendation of the manufacturer.
Dr. Alvarez also pointed to the case of Neil S. 36/125-7. Dr. Alvarez noted the documentation of persistent lethargy over a period of months, and blood levels of Dilantin which exceeded the upper limit of the therapeutic range. Neil S. was eventually hospitalized, treated for an infection, and his Dilantin dosage was reduced. His blood level returned to the therapeutic range, and he was discharged alert and improved. Exh. 468. See also Exhs. 462A (Charles S.), 372A (Roberta H.), and 36/125-33 for other residents with dilantin toxicity.

Dr. Alvarez was critical of the care provided to Neil S. and these residents because, despite the manifestation of sedation and lethargy, common symptoms of Dilantin therapy, either no blood levels were obtained (i.e., the residents' blood levels were not tested) or the anticonvulsant dosage was not adjusted in response to high blood levels. 36/127-32. Dr. Chamovitz testified that the blood levels are routinely monitored. But Dr. Chamovitz's testimony failed to establish why blood levels were not obtained when there is evidence of lethargy and sedation, or why the dosage of an anticonvulsant was not adjusted in light of facially toxic levels.[21] The Center provided no explanation, through documentary evidence or otherwise, for why these anticonvulsants were continued without adjustment.
Although monitoring by observation and obtaining more frequent blood levels may be acceptable in some cases, in the situations highlighted by Dr. Alvarez, there is no indication that the Center's physicians made any conscious decision whatsoever regarding this aspect of treatment. As a result, professional judgment was not exercised. For this reason, I find the Center's care in monitoring and responding to sedation caused by Dilantin 596 [22] substantially deviates *596 from acceptable professional standards for patients with seizure disorders.
Injunctive relief in this action, however, is not warranted because the United States did not even attempt to establish that this lapse in the Center's neurological care was the result of the Commonwealth's "policy or custom" as implemented at the Center. See Graham, 473 U.S. at 166, 105 S.Ct. at 3105 (in official-capacity suit, entity's "policy or custom" must have played a part in the violation of federal law). The United States' constitutional challenge to neurological care in this "official-capacity" action, therefore, fails as a matter of law.
The provision of regular neurologic care to the Center's residents also was faulted by Dr. Alvarez because the Center does not utilize videotaped EEGs. Dr. Alvarez explained that a videotaped EEG is a noninvasive diagnostic procedure that entails gluing electrodes to a patient's scalp, with the patient's brain activity then being recorded, while videotaping the patient. If the videotape captures a seizure event, the physician may be able to determine (in some cases) by comparing the tracing of the brain's electrical activity and the patient's activity on the videotape, whether what is being observed is in fact seizure activity. 36/97-98. Such identification is helpful because the detection of pseudoseizure activity would obviate the need for trial or long term administration of anticonvulsant medication. 36/97.
Dr. Alvarez's testimony clearly establishes that utilizing a videotaped EEG is one option, and is a course of treatment to which many in the medical community aspire. Other evidence presented at trial, however, revealed that other acceptable options exist within the medical community to determine if activity is seizure-related, including direct observation of seizure activity, prescribing medication and evaluating its effectiveness. 50/236. Deciding whether to perform a particular diagnostic study is a matter of professional judgment. 49/239; see also Exh. 633 (1-19-93)/28-29.[23] The fact that Dr. Chamovitz did not believe that he needed a videotaped EEG to validate the existence of seizure activity supports a finding that the Center exercised professional judgment in this regard. 49/239.[24] Dr. Alvarez's opinion appears to be attributable to the fact that he espouses a newer school of thought. But the adherence by a professional to the older of two widely-accepted schools of thought does not establish a failure to exercise acceptable professional judgment.
Finally, Dr. Alvarez opined that the Center's provision of neurological care was not proper, and therefore deficient, because residents who experienced seizure activity continued to sustain injuries of varying magnitude. 36/78-79. Dr. Alvarez testified that physical injuries are common with epileptics because the sudden loss of muscle tone during the seizure causes the epileptic to fall or hit objects. 36/76. Dr. Alvarez stated that an institution has the responsibility to provide an individualized plan of protection and prevention for epileptics who are prone to sustain injuries as a result of seizure activity. 36/78.
To support his opinion, Dr. Alvarez again cited examples of care for individual residents. For example, he noted the care provided to Barbara K., who frequently sustained injuries as a result of seizure activity which caused her to "fall[] straight as a rock right on her face." 36/80; Exh. 611-A. Dr. Alvarez testified that her seizures occurred once or twice a month, that the use of a helmet was discussed at interdisciplinary team meetings, Exh. 268a, but that there was a substantial delay in obtaining one for her. He further noted that even when a helmet was procured for her, she continued to sustain injuries. 36/81-87, Exh. 392(c).

The addressing of Barbara K's falls by an interdisciplinary team and the obtaining of protective gear illustrate that 597 professional judgment was exercised on her *597 behalf.[25] The record indicates that the delay in obtaining the
helmet was not due to any omission by the medical professionals at the Center, but rather was attributable to the Human Rights Committee, an independent body which must approve all restrictive devices placed on the residents. Exh. 392(a). Past efforts to use a helmet had been unsuccessful with this resident, and that factor may have contributed to the delay in its approval. Exh. 392(c), # 00203661.
In addition, the continued occurrence of injuries after securing the helmet for Barbara K. does not in and of itself indicate that professional judgment has not been exercised. Instead, it indicates that a helmet may not protect a resident from all possible injuries. 49/257; 50/187-88.
Dr. Alvarez also cited the care of Ronald A. as an example of how the Center's provision of neurological care to prevent injuries from seizure activity was deficient. Ronald A. sustained multiple cuts and bruises because of falls due to seizures, and at one point, the Pennsylvania Inspection of Care report noted Ronald's injuries and questioned whether a helmet had been considered. 36/87-91; Exhs. 66 and 268(b). Ronald A.'s seizures were not as frequent as Barbara K.'s seizures, however (compare Exhs. 268a and 268b), occurring on a sporadic basis, with periods of four to five months between seizure activity. Dr. Alvarez opined that in light of the Inspection of Care report and the Center's documentation, the Center was aware of the seizure related injuries and failed to utilize a protective helmet. See also Exh. 67 (Pennsylvania Inspection of Care recommending helmet tolerance in view of three uncontrolled seizures and injuries for resident Glenn A.).[26]
Dr. Alvarez' opinion that the Center's care is constitutionally deficient, based on the Center's alleged failure to use protective helmets, is not persuasive. As with the control of seizures through polypharmacy, there are tradeoffs in the use of physical restraints between protection from injury and freedom from restraint. Because helmets are a restrictive measure and constitute an infringement of a resident's liberty interests if implemented, the right to be protected from harm due to seizure activity requires such protection as may be reasonable in light of the liberty interest in freedom from unreasonable restraints. See Youngberg, 457 U.S. at 316, 102 S.Ct. at 2458. At the Center, the final decisionmaker with regard to implementing the use of a helmet is the Human Rights Committee 0907 an independent body that conducts an evaluation and either approves or rejects the proposed restrictive device. Exh. 93. Because the Center utilizes this additional step to insure that professional standards are followed before restraining an individual, I do not find the neurological care deficient for those instances when a helmet has not been approved, or approved as quickly as Dr. Alvarez would have liked.
The United States' arguments with respect to this aspect of the Center's neurological care suffer from an additional flaw. For a number of reasons, the frequency and severity of injuries sustained by the residents who have seizure disorders 0907 disorders which obviously are difficult to control 0907 cannot of themselves constitute sufficient evidence to establish a lack of professional judgment. The evidence showed that a protective helmet, 598 like a football helmet, will respond *598 to the impact it receives and cannot provide complete protection. 50/188. The helmet may shift and injuries may occur despite the helmet's presence. In addition, helmets may not be able to prevent injuries that result from contact with a portion of the head not intended to be protected by the helmet. See Exh. 392b, # 00590535 (injury from impact with flat block held by resident at time of seizure).
Seizures by their nature are unpredictable, and injuries can occur when helmets have been removed for reasons of hygiene and for sleeping. See Exh. 392b, # 00001073 (seizure occurred in bathroom before bathing). All that Dr. Alvarez' testimony established was the frequency of injuries. It did not include discussion of either the nature of the injuries or why the Center's care for those residents failed to meet minimum professional standards. See 36/92-94. The mere quantification of injuries, without more, does not establish the failure to exercise professional judgment.
2. PSYCHIATRIC CARE
According to the United States, the defendants' provision of psychiatric services is constitutionally inadequate because the Center: (1) fails to provide adequate psychiatric assessments; (2) fails to provide adequate psychiatric diagnoses; (3) fails to provide adequate psychiatric treatment; and (4) fails to provide adequate

monitoring of the psychiatric treatment. 84/IX. The right of an institutionalized mentally retarded person to receive adequate medical care, as acknowledged by the Supreme Court in Youngberg, 457 U.S. at 315, 102 S.Ct. at 2457-58, must include provision for psychiatric care, where needed.
a. Psychiatric Assessment Techniques
At the Center, psychiatric care is provided by a contract psychiatrist consultant, a psychology department, and the direct care staff. From 1986 to July 1993, Dr. Pauline Goldschmidt was the Center's contract psychiatrist consultant (Exh. 616, exh. 1; 64/81), and she provided psychiatric services to the Center twice each month during two eighthour sessions. The services were provided to residents pursuant to referrals from the primary care physicians and the interdisciplinary team. Dr. Goldschmidt's psychiatric services consisted of psychiatric evaluations, management of psychotropic medications, and supervision of the screening for side effects such as tardive dyskinesia. Exh. 616, exh. 3; 64/80.[27]
The Center employs Dr. Stratton, a psychologist, as the Director of Psychology. 62/220-21. Dr. Stratton supervises the psychological services provided to the residents by eight psychological service associates (PSAs). 62/220-1; 51/19. Six of the PSAs have master's degrees and the remaining two have bachelor's degrees. 37/15-16. The PSAs work Mondays through Fridays during daylight hours and are not available on evenings and weekends. 37/16. Psychological services can be obtained during off hours by contacting the professional on call. 51/20.
The PSAs have varying caseloads. Five have caseloads of forty-eight residents, two have caseloads of seventytwo residents, and one has a caseload of ninety-six residents. 37/15. Some psychological services are performed by nonpsychology staff. 51/135.
The United States contends that accepted professional practice requires the utilization of a disciplined medical approach to the provision of adequate psychiatric care. This approach entails obtaining an assessment of the resident, rendering a diagnosis, formulating a treatment plan, monitoring the treatment plan for its effectiveness, and revising it as indicated. 38/63-64. The United States asserts that the Center's psychiatric assessments are constitutionally deficient because the Center fails to employ this disciplined medical model. According to the United States' experts, the behavioral data and information collected by the Center is either non-existent or 599 inadequate, and the psychiatric *599 consults are chaotic, disorganized, undisciplined and too infrequent. 84/ IX/4-15.
Dr. Fahs, a neuropsychiatrist who specializes in the psychological care of mentally retarded individuals, testified that the Center's psychiatric assessments are inadequate because 100% of the records he reviewed were deficient. 38/79, 85, 88. Dr. Fahs explained that a psychiatrist usually sees an individual because of a particular concern which, in a population like that of the Center, is typically labeled as a "target behavior." In a setting such as the Center, the target behavior "presents" (i.e., is manifested) as aggression or self-injurious behavior (SIB). 38/71. In addition to the target behavior, other behavioral difficulties may be present. 38/72. A proper psychiatric assessment involves the collection of information from an interdisciplinary team, including doctors, staff, and other personnel, in an effort to gain a thorough picture of the resident. 38/71. The team should gather information regarding the resident's symptoms, his behavior and his functioning with others. 49/144-45. Such information should detail the frequency, intensity and duration of the target behavior, as well as any other behavioral difficulties. 38/73. Objective information of this nature is essential for an assessment of a mentally retarded individual, since subjective symptoms may not be communicated effectively. 49/145. An assessment should also include information regarding the resident's past psychiatric history, past medication history, as well as the individual's past and present medical history. Such longitudinal data may facilitate the approach to treatment. 38/74. Dr. Fahs claimed that these components of a psychiatric assessment are universally accepted in the psychiatric profession. 38/75.
Dr. Fahs testified that the Center's assessments are inadequate for a number of reasons. 38/75. First, Dr. Fahs found the assessments deficient in that the Center collects the information for a psychiatric assessment on a universal data collection sheet (UDCS). 38/76. The UDCS is the data collection tool used to chart all behaviors

for all of the residents. 38/76. It is designed to collect a single type of interval data; that is, it tabulates the frequency of the target behavior by noting whether the target behavior occurred during a particular hour interval. The UDCS does not necessarily denote the number of times the target behavior occurs during that hour interval, nor does the UDCS account for the intensity or duration of the target behavior. 38/76. Additionally, the UDCS is geared to deal with only one target behavior. As a result, if there is more than one target behavior, or if other behavioral difficulties are present, it is difficult to distinguish this on the UDCS. 38/77.
Dr. Fahs next identified deficiencies with the psychiatric consultations that allegedly contribute to the overall inadequacy of the assessments. He observed some of the psychiatric assessments performed by Dr. Goldschmidt, and testified that the assessments were chaotic, disorganized and totally lacking in the conveyance of relevant information to the psychiatrist. 38/77. In particular, Dr. Fahs stated that behavioral information that was in the chart was not conveyed to the psychiatrist. 38/78. In addition, according to Dr. Fahs, Dr. Goldschmidt had related that she did not feel that she had sufficient time to complete a psychiatric assessment. 38/82.
Dr. Lubetsky, a psychiatrist and Director of the John Merck Multiple Disabilities Program, testified as one of the Center's expert witnesses in this area. He also had observed the psychiatric consultations of Dr. Goldschmidt. According to Dr. Lubetsky, each of Dr. Goldschmidt's consultations was performed at the resident's living unit, in the presence of the resident's psychologist, QMRP, primary care physician (if possible), and a member of the direct care staff. Often these consultations were attended by the Center's pharmacist. 49/109-10. Dr. Lubetsky testified further that Dr. Goldschmidt then obtained information from the staff members present concerning the resident's behaviors, daily activities, and medications. Dr. Lubetsky noted that if Dr. Goldschmidt did not receive enough information, she would ask questions. 49/112-13. In light of these observations, Dr. Lubetsky concluded that the consultations were adequate and satisfied professional standards.
600 *600 Dr. Lubetsky agreed with Dr. Fahs that there was room for improvement in two areas. First, he opined that completing the consultation form before the consultation would improve the process. However, he did not believe that this flaw impaired Dr. Goldschmidt's ability to make a professional judgment. 49/114. Second, Dr. Lubetsky stated that documentation of the psychiatrist's "thought processes" during the consultation should be improved. According to Dr. Lubetsky, the events that occurred at the consult were not well-summarized in the chart. Nevertheless, Dr. Lubetsky concluded that this deficiency did not impair Dr. Goldschmidt's clinical treatment or preclude the exercise of professional judgment, and that Dr. Goldschmidt's reliance on information orallyconveyed at the consultation was not an impediment to the exercise of her professional judgment. He observed that psychiatrists in private practice often rely entirely on such information to render a professional judgment in the treatment of their clients. 49/114-15, 118.
Dr. Lubetsky's observations were confirmed by Dr. Hauser, another psychiatrist, who explained that the Center utilized an interdisciplinary team approach in providing psychiatric care. 50/27. Like Dr. Lubetsky, Dr. Hauser found Dr. Goldschmidt's written documentation of her consults to be sparse, and provided the Center with a form that he had created for purposes of documenting his own psychiatric consultations. The Center has since adopted the form and incorporated it into the psychiatric consultations. 50/58-60. Dr. Hauser noted that by providing his own form, he was not implying that the Center's care was deficient in this regard, but only that it was an area that could be improved. 50/60.
Dr. Hauser also evaluated the collection of data regarding a resident's target behaviors. He noted that the Center collects some hard data, and that this data is used at the consultations. 50/65. According to Dr. Hauser, hard data is not an essential resource for the psychiatrist because subjective data from the resident and the staff also are obtained at the consultation. Dr. Hauser testified that reliance on subjective data is consistent with acceptable professional standards, because most psychiatrists rarely have hard data available to them. 50/64. Dr. Hauser unequivocably testified that professional judgment can be exercised without hard data to formulate an appropriate treatment plan, and that Dr. Goldschmidt received sufficient information to enable her to exercise professional judgment. 50/63, 68.
According to Dr. Hauser, the characterization of Dr. Goldschmidt's consultations as chaotic and disorganized probably resulted from the fact that the resident himself usually was present at the consult. Dr. Hauser, however, did not believe that the consultations were chaotic or disorganized. He noted that the presence of the resident at a consultation may, in fact, be an effective means of understanding the residents' behaviors. 50/106. Dr. Hauser

conceded that the rooms where the consultations occurred were not ideally suited for the procedures, and that staff seemed to be always coming and going, much like consultations he has completed in group homes. 50/107.
Despite these sub-optimal conditions, Dr. Hauser found that Dr. Goldschmidt was able to gather and process data, talk with staff about treatment, and render a recommendation. 50/68-69, 108. He further noted that in his discussion with Dr. Goldschmidt, she reported that she did have an adequate amount of time in which to perform her consultations.[28] 50/68.
Dr. Lubetsky's and Dr. Hauser's opinions that the psychiatric assessments at the Center meet acceptable 601 minimum professional *601 standards are persuasive.[29] I find that accepted professional practice includes use
of assessments completed by an interdisciplinary team, collecting both objective data and subjective data. Because psychiatric assessments at the Center are consistent with accepted professional practice, they evidence the exercise of professional judgment, and do not violate the Constitution. 50/27.
b. Differential Diagnoses
Dr. Fahs also testified that the Center fails to provide adequate psychiatric diagnoses for its residents because it does not properly formulate "differential diagnoses" for the residents. A differential diagnosis is the result of an evaluation which considers information obtained in the assessment phase to identify a resident's possible disorders. 38/160-61. After identifying the possible disorders, a practitioner then considers which particular disorder is most likely that resident's actual diagnosis. 50/71; 49/147. That is, the practitioner gives full consideration to the alternative hypotheses and selects the most likely cause for the resident's problem. 50/71.
The utilization of the differential diagnosis is an accepted practice in psychiatry. 38/85; 50/71. Initially, the process is "mental" in nature. 50/71. After completion of this thought process, however, standard professional practice requires some documentation in support of the diagnosis. 50/71. The United States asserts that the Center's care is deficient in this regard because the records do not contain documentation concerning the alternative diagnoses and the basis for the selection of the working diagnosis. 38/85. Dr. Fahs testified that Dr. Goldschmidt's documentation was too succinct, and that it failed to explain why alternative diagnoses were not applicable and/or why changes were made. Instead, Dr. Fahs found that considerations of the differential diagnostic possibilities were scattered throughout the chart. 38/85-87. The United States points out that Pennsylvania's Inspection of Care Survey also found this area deficient in its October 21, 1991 survey. 38/90; Exh. 67/2-B.
Dr. Fahs contends that the Center's failure to employ the differential diagnosis method is evident from the fact that diagnoses are added or changed after treatment already has been initiated. 38/87. According to Dr. Fahs, the diagnosis normally precedes the treatment selection, and a faulty diagnosis results in a high probability that an improper treatment will be selected. 38/87, 89.
Dr. Fahs cited the diagnoses for several residents as examples of diagnoses which substantially depart from accepted professional practice. He pointed to the diagnosis of schizophrenia for one profoundly retarded resident who had self injurious behavior (SIB) and aggressive behavior, and noted that virtually universal agreement exists within the medical community that it is impossible to make a diagnosis of schizophrenia in a profoundly retarded person. 38/102. Dr. Fahs found no support for the diagnosis of schizophrenia in that resident's record except for his SIB and aggression toward others. 38/103. Another resident, Gary K., "seemed to be depressed," but had only a "so-called" diagnosis of aggressive behavior. 38/107. Dr. Fahs stated that aggression is not a diagnosis, and that the diagnosis of depression had never been articulated in the resident's chart. 38/107-08.
The case of Darren W. also was cited as an example of a disorganized diagnostic process. Darren W. was being 602 treated for akathisia[30] with Inderal. The medication was abruptly discontinued, however, after a diagnosis of
*602 asthma was made. Dr. Fahs criticized this diagnosis because asthma typically is a childhood disorder. 38/121-28. Darren W.'s condition deteriorated after this abrupt change, and he was then diagnosed with obsessive compulsive disorder (OCD). Dr. Fahs claimed that there was no supporting evidence for the OCD diagnosis. 38/128. He further testified that no supporting evidence existed for the diagnosis of OCD in any of the other residents receiving Anafranil, a medication used to treat OCD. 38/129.

Dr. Lubetsky explained in reply that psychiatric diagnosis of the developmentally disabled is very difficult. 49/119. Indeed, diagnosis of psychiatric conditions is difficult in a population that is not developmentally disabled. See Heller v. Doe, ___ U.S. ___, ___, 113 S.Ct. 2637, 2644, 125 L.Ed.2d 257 (1993). Dr. Lubetsky explained:
It's very difficult to use the DSM-3, which is a guideline for making psychiatric diagnoses; ... it is very difficult to use [the DSM-3] in the developmentally disabled population, mainly because of the cognitive impairment, the lower functioning I.Q.s, and the nonverbal nature of many of the clients; so it is very difficult to make a diagnosis.
The best attempt is to utilize those guidelines and see if you can come up with a differential diagnosis which is a variety of considerations. Many times the best you can come up with is looking at the symptoms and attempting to cluster the symptoms to give you some guide to make a choice about medication.
In addition, you're always working through the diagnostic process. As you are seeing clients over years, your opinion may change about their diagnosis depending on the pattern of their symptoms, the pattern of behaviors. In response to medication. In general, psychiatry 0907 what you're taught is to try to make the best diagnosis you can and try not to make your diagnosis based on the response to a medication.
But I think most physicians will also agree that they do look at the response to medication to help in re-thinking whether a diagnosis was accurate or whether there's another diagnosis to consider.
49/119-20.
Taken together, all of the experts' testimony of Dr. Lubetsky and Dr. Hauser provides strong evidence for the proposition that rendering a differential diagnosis for the mentally retarded is more of an art than a science. Against this backdrop, Dr. Fahs' specific cases of allegedly flawed differential diagnoses are, at worst, indicative of erroneous psychiatric evaluations, not constitutional violations.
Dr. Hauser explained that it is an accepted national standard in psychiatry that a diagnosis follow the classifications of the American Psychiatric Association's Diagnostic and Statistical Manual, 3rd edition revised, DSM-3-R. 50/36. Unfortunately, the DSM-3-R was not designed for specific use with developmentally disabled persons, who often are nonverbal. 50/37. Nevertheless, Dr. Hauser found that pressure exists at the Center to use the DSM-3-R coded diagnoses for purposes of "inspection surveys" which are conducted on a regular basis by the Pennsylvania Department of Welfare and other agencies for purposes of accreditation and licensure (Medicare, Medicaid, etc.). 50/40. The DSM-3-R is the most current DSM, and certain diagnostic terms used in earlier editions of the DSM have become outdated. This outdated nomenclature, however, may continue to be used for certain residents. 50/41.
The allegedly erroneous diagnosis of the resident with schizophrenia, though outdated according to Hauser, was generally consistent with the first Diagnostic and Statistical Manual and the liberal application of the diagnosis of schizophrenia for anyone manifesting a psychosis. 50/89-90. That is, the diagnosis is "a lingering artifact of the historical context" of diagnosing patients. 50/92. Dr. Hauser also observed that the persistence in the diagnosis of schizophrenia may be due to the fact that DSM-3-R does not account for persons who no longer can be diagnosed as schizophrenic because of their limited cognitive functioning. 50/90. In any event, Dr. Hauser was 603 not troubled by the persistence of this diagnosis at the Center, *603 because the treatment for schizophrenia was appropriate treatment for that resident, who under DSM-3-R would be diagnosed with atypical psychosis. 50/91. The use of the outdated nomenclature, though perhaps not technically accurate, did not detrimentally affect the residents' treatment.
In contrast to Dr. Fahs' finding, Dr. Lubetsky testified that Gary K.'s chart did include the diagnosis of depression. 49/124. Nevertheless, even if the chart did not include that diagnosis, the documentation of the resident's behavior was indicative of depression, and he was treated with an antidepressant in a low dose in an effort not to precipitate seizure activity. 49/124-5; 38/189. This course was consistent with Dr. Lubetsky's observation that, at times, the best that one can do is look at the symptoms, and attempt to "cluster" the symptoms in order to find

some guide to selecting a medication to treat that individual. Again, the Center's treatment of the resident was consistent with acceptable psychiatric practice, and the constitutional standard is concerned with the care provided to the residents, not conformity of nomenclature to the latest APA revision of the DSM.
According to Dr. Hauser, Darren W.'s asthma diagnosis and the discontinuation of the medication Inderal was not improper. Typically, asthma is considered a childhood ailment, but the diagnosis actually is consistent with the diagnosis of a bronchospastic condition, regardless of one's age. As Dr. Hauser explained, Inderal may have the side effect of causing bronchospasms, which would exacerbate an individual's asthmatic or other bronchospastic condition. As a result, as Dr. Fahs conceded on cross-examination (38/141-42), Inderal should be discontinued to avoid precipitating any bronchospasms, regardless of the risk of any withdrawal reaction that may occur. 50/108-11.
Dr. Hauser also testified that he did not find the diagnosis of OCD for Darren W. or other residents troublesome. While Dr. Fahs claimed that too many residents (although he could not provide the exact number) had this diagnosis (38/165-66), Dr. Hauser explained that one of the exciting developments in the field of psychiatry is the increasing recognition of OCD as a disorder affecting millions of individuals. 50/112. Dr. Hauser then explained that if the disorder OCD is widespread in the general population, it is logical that this disorder will be more prevalent among mentally retarded individuals. 50/112-13. Consequently, when Dr. Hauser sees a mentally retarded patient with "ritualistic behavior" (i.e., behavior that occurs over and over again), he is willing to try treatment with a drug used for OCD. 50/114.[31]
I find that it is within acceptable professional practice for a complete differential diagnosis to be constructed from documentation found throughout a resident's chart. This, in fact, is what Dr. Fahs found: "a piece here in the record, a piece here in the record, a piece here in the record ..." 38/85-6. Moreover, a correct differential diagnosis may be dynamic, initially eluding the practitioner and only becoming clear as time passes and additional data is available to consider. For this reason, treatment may have to be geared to the symptoms presented, as opposed to treatment of a diagnosis consistent with the DSM-3-R.
Documentation alone cannot establish that there is a deficiency that reaches constitutional dimensions. The focus must be on whether professional judgment was exercised, that is, whether the practitioner has considered the options and has made a differential psychiatric diagnosis for a resident that is in keeping with minimal professional standards. I find the Center meets this requirement.
I credit the testimony of Dr. Lubetsky and agree that the thought processes in this area of care at the Center are evident from the live consultations, although those consultations could often be better documented. 49/114. As 604 Dr. Lubetsky pointed out, the *604 mini-staffing notes in the charts detail why changes are made, as well as the status of the residents' care. 49/115. Accordingly, I find that the live consultations and the treatment process itself do not fall below accepted professional standards.[32] While I agree that the Center's documentation of the differential diagnosis can and should be improved, the problems with documentation do not prohibit the exercise of professional judgment.
c. Psychiatric Treatment
The United States alleges that the Center fails to provide adequate psychiatric treatment in these respects: (1) the decision-making process for treatment is inadequate because different treatment options are inadequately considered and there is a poor coordination of treatment efforts; (2) inappropriate treatment selection unnecessarily exposes residents to the risks of drug side effects and unnecessary chemical restraint; and (3) the Center fails to provide adequate and appropriate behavioral programs at the treatment stage. See 83/IX-22-29.
The United States relies heavily upon Dr. Fahs' testimony in support of its first and third contentions.[33] Dr. Fahs testified that treatment efforts include behavioral treatment, drug therapy, or manipulation of an individual's social environment. More than one treatment may be appropriate at any particular time. 38/91. Thus, consideration of the available treatment modalities should result in the selection of the "treatment which has the best benefit to

risk ratio." 38/91. Ideally, treatment changes should not coincide with other changes in a resident's environment, medication regimen or behavior programming. 38/105-06.
Dr. Fahs claimed that some of the Center's documentation gave the illusion that different treatment options were weighed, but he found that, generally, this was not the case. 38/92-93. According to Dr. Fahs, behavioral programs were not considered, and drug changes were not coordinated with program changes, and vice versa. 38/93. Dr. Fahs testified that, instead of careful consideration of treatment options, the Center relied on the diagnosis as justifying the treatment. 38/93. He further believed that the residents responded only by luck, and that they would continue to suffer from behavioral difficulties. 38/93.[34]
Dr. Fahs, Dr. Hauser and Dr. Lubetsky all agreed that non-drug treatment should be provided together with medication in treating psychiatric impairments. 38/113; 50/46; 49/148-49. Dr. Fahs explained that non-drug treatments should be selected before drug treatment if the benefit from each is equal because they do not pose the risk of side effects. 38/92, 169. Dr. Hauser agreed that the premature initiation of medication is a red flag in the field of psychiatry. 50/46.
I find that Dr. Hauser's testimony about trends in treatment at the Center to be credible evidence of acceptable professional judgment in psychiatric treatment. Dr. Hauser testified that the Center was: (1) reducing the number of antipsychotic medications prescribed, as well as reducing the dosage when used, 50/24; (2) administering only those medications which are necessary and avoiding the administration of multiple psychotropic medications, 50/33; (3) prescribing medications in concordance with the diagnosis, 50/36; (4) prescribing alternative medications to treat psychiatric manifestations, 50/26; (5) decreasing the restrictiveness of the intervention used 605 to treat psychiatric impairments, 50/27; and (6) resorting to an interdisciplinary team process to provide *605 psychiatric care, 50/27.[35]
The exercise of professional judgment in the selection of the proper treatment for a resident "requires thinking" about the modalities of treatment, and administering treatment that meets minimum professional standards. 38/91. The Center meets this requirement. Its weakness is its documentation of the process, a weakness that is not in dispute. But, even in the face of this shortcoming, the Center still provides psychiatric care that meets minimum professional standards.[36]
As noted above, the United States also contends that inappropriate treatment selection unnecessarily exposes the Center's residents to the risks of drug side effects. Dr. Fahs testified that accepted professional standards mandate that prescriptions for antipsychotic medications should be avoided if they are not indicated. 38/65. Dr. Hauser agreed, and noted that the current trend in the field of psychiatry is to avoid unnecessary antipsychotic medication in order to guard against the development of side effects such as tardive dyskinesia, neuroleptic malignant syndrome, and extrapyramidal syndrome. 50/24.
While the United States contends that residents are unnecessarily exposed to side effects such as neuroleptic malignant syndrome, it fails to cite one example of a resident who developed this syndrome. On the other hand, tardive dyskinesia (TD) is known to afflict some residents at the Center, but the record in this case contains no evidence to suggest that residents actually in need of medication who have this condition became afflicted as the result of the unnecessary administration of antipsychotic medication. Instead, the United States' evidence on this issue pertains solely to the Center's alleged inadequacy in screening to detect this condition, a matter discussed infra.[37]
Dr. Fahs asserts that a determination regarding the adequacy of the Center's psychiatric care cannot be based on just the raw percentage of residents on psychotropic drugs. Instead, he believes that the "only way the care could be determined is by looking at each individual, each individual client." 38/135. Dr. Fahs further testified that the Center's Behavioral Intervention Committee (BIC) and the 30-day review, elaborate "convoluted mechanisms" established to guard against inappropriate psychotropic drug use, fail to safeguard the residents. These procedural safeguards, according to Dr. Fahs, actually were just rote exercises that entailed minimal review of a resident's psychological status and the need for chemical treatment. 38/135-37.

Although Dr. Fahs rejected the relevance of the Center's raw percentage of residents on psychotropic 606 medications, I do not. Dr. Hauser testified that percentages are "just *606 numbers" which can be misused or
taken out of context, but he still believed that there is "some usefulness for looking at frequencies of use of medication or the breakdown of categories of medication." 50/119. The percentages can serve as "red flags" indicating that something is wrong. 50/120-21. Dr. Hauser related how he initially counted the number of residents on antipsychotics and antidepressants in order to determine whether the use of these drugs at the Center was "in the ballpark" of what is reported for similar facilities. One of the sources he used was a book authored by Dr. Fahs. 50/120. Dr. Hauser concluded that the overall percentages were consistent with medication management in similar populations. 50/121.
Dr. Lubetsky, agreeing with Dr. Hauser, found that the Center had a "rough average of twenty-five percent of clients on psychotropics," 49/127, and that this was within the broad range of twenty-five to forty percent use of psychotropics reported in the American Journal on Mental Retardation. In addition, Dr. Lubetsky reviewed individual cases and concluded that the Center's use of psychotropic medications was within accepted professional practice. 49/128. Based upon my review of all of this evidence, I agree with the Commonwealth that its use of psychotropic medications meets constitutional minimum standards.
Finally, the United States argues that the Center fails to adequately monitor the psychiatric treatment provided. Dr. Fahs described this "monitoring" component of the medical approach as an objective weighing of the benefit the person is receiving from the treatment versus the impact of any side effects 0907 or, stated another way, "monitoring" entails an evaluation of whether the drug did what it was prescribed to do, and whether this result can be proved. 38/99. If monitoring demonstrates that the drug did not benefit the resident, then the treatment should be changed. 49/153. Dr. Fahs testified that the Center's monitoring was inadequate in 100% of the cases he reviewed. 38/101.
The record at trial established that the medical community places great emphasis on monitoring the effects of antipsychotic medications to detect the development of tardive dyskinesia (TD), an irreversible side effect of certain antipsychotic medications. 50/34. TD is a red flag 0907 it is an area closely scrutinized by the medical community, as well as surveyors, in an effort to reduce its occurrence. 50/34. As a result, a tracking form (the AIMS form[38]) has been developed by the medical community to screen for TD.
Dr. Fahs opined that the Center's monitoring efforts in general were inadequate, and he supported his opinion by specifically referencing the Center's monitoring efforts with regard to TD. Dr. Fahs claimed that the Center had a policy in place requiring the AIMS screening, but he believed that the Center did not engage in a regular, consistent review for side effects, including TD. 38/100.
Dr. Fahs' testimony also addressed the alleged inadequacy of the Center's monitoring efforts with respect to chemical restraints. Dr. Fahs defined chemical restraints somewhat loosely as including both the emergency sedation of a resident as well as the administration of medication without any indication of its efficacy. 38/94-95. Dr. Fahs concluded that the emergency chemical restraints at the Center were adequate, but that the Center routinely administered medication that might not be helping the residents, and that this practice resulted in an unnecessary "chemical restraint." 38/95.
In response to Dr. Fahs, Dr. Lubetsky explained that the AIMS tracking form actually was utilized and could be found in many of the charts. 49/111, 192. Dr. Lubetsky's observation is corroborated by the Inspection of Care Survey for August 1992, which noted an AIMs form in James R.'s chart. Exh. 67\8D. The evidence also demonstrated that Dr. Goldschmidt consistently made an effort to reduce the overall use of antipsychotic 607 medication by either refusing to prescribe the medication for a resident or reducing the *607 dosage for a resident who had previously been prescribed the medication. 50/25; Exh. 616\53, 61.
The presence of TD in residents, some of whom may have developed TD before the medical profession began screening and prevention measures, does not of itself indicate that the Center has failed to exercise professional judgment in monitoring the usage of antipsychotic medications. To the contrary, the record evidence indicates that when Dr. Goldschmidt began treating the Center's residents in 1986, she noticed that a number of individuals already had TD as a result of the long-term administration of antipsychotics. Exh. 616\53, 102. As a result, Dr.

Goldschmidt insisted that the Center monitor residents for this very condition in an attempt to avoid the development and/or exacerbation of side effects. Some residents continued to receive antipsychotics because the benefit derived outweighed the detriment of discontinuing the medication. 50/35. At least since 1986, professional judgment has been exercised in monitoring for TD.
Dr. Hauser described the emergency sedation aspect of chemical restraint, and explained that "chemical restraint" may also be found when medication is chronically used to restrain an individual. Signs of this type of chemical restraint are use of high doses of antipsychotic medications which cause stiffness, rigidity, and a blank facial expression in residents. 50/122. Dr. Hauser testified that he did not observe any chemical restraint of this nature at the Center.
I find Dr. Hauser's testimony persuasive in determining whether the Center meets the minimum standard of professional judgment in avoiding unnecessary chemical restraints that would result in stiffness, rigidity, and the constraining of one's movement. See Sabo v. O'Bannon, 586 F.Supp. 1132, 1140 (E.D.Pa.1984) ("Because the use of `soft' restraints was found to implicate a liberty interest in Youngberg, it can scarcely be doubted that the use of drugs in order to restrain a patient must activate a similar interest."). As Dr. Hauser explained, the Center has consistently endeavored to reduce the dosage of antipsychotics and thereby avoid unnecessary chemical restraints.
In summary, the psychiatric care provided satisfies constitutional requirements. The Center's weak point is its documentation, but this deficiency does not preclude the exercise of professional judgment. The assessment and treatment routines established at the Center are not "substantial departures" from accepted professional standards.
3. GASTROESOPHAGEAL REFLUX AND ASPIRATION
Dr. Sulkes, one of the United States' experts, testified that the Center fails to provide appropriate medical care to residents with gastroesophageal reflux (GER) and/or who are at risk of aspiration, because the Center fails both to identify the residents who have GER and/or are at risk of aspirating, and fails to provide a proper medical "work-up" and treatment of the residents.[39]
Aspiration is the "inspiratory sucking into the airways [i.e. lungs] of fluid or [a] foreign body...." Stedman's Medical Dictionary 143 (25th ed. 1990). GER is the escape of the stomach contents into the esophagus, 41/88, a condition which afflicts approximately 10-15% of developmentally disabled children and adults. Crocker, Allen C., and Rubin, I. Leslie, Developmental Disabilities: Delivery of Medical Care for Children and Adults 178-79 (1989). Individuals with GER are at risk of aspirating because the stomach contents may travel backward from the esophagus into the pharynx and enter the trachea and lungs, 41/88, which predisposes the person to developing pneumonia. Reflux into the esophagus also causes discomfort because the stomach contents are normally very acidic, and over time, may erode the mucosa of the esophagus and precipitate bleeding. 41/89-90.
The United States contends that in "several cases, individuals had documented reflux and nevertheless were continuing to suffer bouts of aspiration pneumonia." 84/X-10, citing 34/107. The United States asserts that most 608 of the residents reviewed *608 by Dr. Sulkes died at some point from 1988 to 1992. The occurrence of aspiration pneumonia, or even deaths without evidence that it was the result of medical treatment which substantially deviated from accepted professional practice, however tragic a loss, does not compel a finding that the constitution was violated.
Dr. Sulkes reviewed the care of Margaret D., who died in January 1992. Dr. Sulkes testified that her condition of reflux was known since at least 1979. 41/114. Treatment in 1991 included prescriptions of anti-reflux medication and iron for anemia. Margaret D. also received postural drainage and percussion on a regular basis. Despite these treatments, seven months later, she developed problems with mucous and choking after eating. Margaret D.'s physician noted that she experienced the excess mucous and choking only after eating, and he questioned whether she had an allergic rhinitis. He started treatment with an antihistamine, but did not order any further evaluation of the reflux. 41/115.

Two months later, Margaret D. was hospitalized for aspiration pneumonia. Her sixty-day nursing note after this hospitalization indicated that the same treatment was to continue. Tussi-organidin, an expectorant, was added to her medication regime. Exh. 331aa, # 00523176. Antibiotics were instituted when it was discovered that her mucous had pus in it. Thereafter, Margaret D. lost weight, and she continued to produce large amounts of thick mucous. At some point, the Center initiated manual suctioning of the mucous secretions to aid Margaret D.'s breathing. Exh. 331AA. No other intervention was initiated despite persistent documentation of chronic congestion and coughing. 41/119. In January 1992, during treatment for postural drainage, Margaret D. died. 41/120. According to Dr. Sulkes, there was a "lack of close monitoring and lack of a sufficiently aggressive work up early on, diagnostically, which might have led to some medical interventions, that might have prevented all of this ..." 41/120.
The record at trial revealed, however, that the Center exercised professional judgment consistent with accepted medical practice in the treatment of Margaret D. The Center staff documented her persistent trouble with coughing and mucous production, monitored her condition, and treated her with anti-reflux medications. 34/82.
Steven S. died in May 1991 due to complications resulting from GER. Dr. Sulkes opined that Steven S. needed aggressive management of GER early on and did not receive it. He further testified that, in his opinion, Steven S. entered a "pipeline that ... carried him inexorably on to his death. All the way along, interventions might be available, but nobody thinks about them until it's way too late for them to do any good." 41/121.
The record reveals that the Center was aware of Steven S.'s GER since at least 1989. Id. In November of 1990, a gastrostomy tube was inserted into his stomach. This procedure had little effect, according to Dr. Sulkes, and emesis was discovered in Steven S.'s mouth as early as November 13, 1990. In December of 1990, blood was discovered in the emesis. Later that month, Steven S. was hospitalized for pneumonia. 41/122.
Dr. Sulkes lamented that this resident could have received fundoplication surgery up to two years before his death, but that he never did. 41/123. Fundoplication, using a cuff of the stomach muscle to wrap around the bottom of the esophagus as support for a weak gastroesophageal sphincter, could have prevented the escape of stomach contents into the esophagus when the stomach muscle contracted, 34/69, but the mortality rate for this surgery approaches fifty percent. 34/71. Fundoplication is major surgery, however, and the decision whether to perform this procedure is largely dependent upon the individual's health. The physician must assess the risks of additional surgery against the possible medical benefits to be obtained. 34/69.
Steven S.'s physicians were aware of his condition and treated it by surgically inserting a gastrostomy tube. Unfortunately, Steven S.'s gastrostomy tube did not remedy the problem. Whether to proceed with fundoplication 609 surgery was highly dependent upon Steven S.' individual medical condition, *609 and was a matter to be resolved pursuant to the sound discretion of the professional. 81/157. Experts in the field of gastroenterology for mentally retarded persons remain divided over the benefits of gastrostomy alone, as opposed to gastrostomy coupled with fundoplication surgeries. See Exh. HH., Bui, Hum D., et al., Does Gastrostomy and Fundoplication Prevent Aspiration Pneumonia in Mentally Retarded Persons, 94 American Journal on Mental Retardation 16-19 (1989). Accordingly, I find that the Center's decision not to perform fundoplication surgery on Steven S. does not fall outside the realm of acceptable medical practice.
Keith T. also had GER and died. Keith T. had spastic quadriparesis, profound mental retardation and a history of problems with aspiration. 41/125-26. Dr. Sulkes noted that Keith T. had respiratory problems dating back to a respiratory arrest in 1986, and had been hospitalized repeatedly for aspiration pneumonia. In April of 1991, documentation indicated that Keith T. had reflux when he was sleeping which precipitated bronchospasms. One of his anti-reflux medications was increased at that time, 41/126, and he was continued on antacids, 41/127. The Center's care for Keith T.'s GER included well-recognized treatments in this field: anti-reflux medications, antacids, and even fundoplication surgery. 34/77, 82-83. Once fundoplication surgery is performed, positioning therapy and medications remain the only viable treatment options for such an individual. See 81/155.
Dr. Sulkes testified that at least some of Keith T.'s hospitalizations, as well as his death, were preventable. 41/128. Dr. Sulkes found it problematic that Keith T. had never had an evaluation for feeding problems, never had

an evaluation to determine whether he had reflux, and had no records showing consults with a gastroenterologist. 41/126.
In rendering his opinion concerning the acceptability of care provided to this resident, however, Dr. Sulkes failed to acknowledge that Keith T. had undergone fundoplication surgery. This omission is particularly glaring in light of the importance placed on this surgical procedure by Dr. Sulkes in rendering his opinion regarding the acceptability of Steven S.'s care. The record is clear that fundoplication surgery is complicated and could not have been performed by the Center's medical staff. Gastroenterological consults necessarily occurred to determine that such surgery was warranted, in light of Keith T.'s compromised medical status. See 34/55. I find that the Center rendered care which was consistent with accepted professional standards in the case of Keith T.
Jeff K. also died of aspiration pneumonia. Dr. Rubin, an expert pediatrician retained by the United States, noted that Jeff K. had a seizure disorder which required multiple medication changes. He then developed petit mal seizures which increased in frequency. Thereafter, Jeff K. became very difficult to feed, and he sustained a significant weight loss. A gastrostomy tube was placed, and he continued to lose weight while he was hospitalized. 81/109. Subsequently, he died.
Dr. Rubin opined that the medical care Jeff K. received was not consistent with accepted professional standards of care because it is well recognized among surgeons and gastroenterologists that a gastrostomy should not be done in individuals who have GER. The procedure, he testified, increases the risk of vomiting and aspiration because large amounts of food may be put into the stomach over a short amount of time. 81/109-10.
Dr. Rubin formulated his opinion regarding Jeff K.'s care after reviewing several documents, including a "Mortality and Morbidity" report prepared after his death. Jeff K.'s physician detailed in the report the patient's increasingly uncontrolled seizure disorder, and how the side effects from the anticonvulsant medication and the frequent petit mal seizures interfered with his ability to eat. As a result, a gastrostomy tube was placed to feed Jeff K. He then received his nutritional feeding continuously over a twenty-four hour period (not large servings over a short period of time, as Dr. Rubin erroneously assumed). Exh. 1108.
610 I find that Jeff K.'s care was consistent with accepted professional standards. *610 His treating physician was very familiar with his seizure disorder and its refractory nature. She also recognized that his seizure medications produced viscous secretions that affected his ability to swallow. As a result, a gastrostomy tube was used to avoid aspiration while eating. Exh. 1108.
While Dr. Rubin contends Jeff K. should not have had a gastrostomy tube to feed him in light of his reflux, I have not been able to find any reference in his record to GER or reflux. Rather, it appears from the record that the complications and risk of aspiration resulted from the thickness of his oral and pharyngeal secretions, factors which made the safe feeding of Jeff K. more complicated. Furthermore, Dr. Rubin's opinion regarding the inadequacy of Jeff K.'s care is undermined by his statement that he was impressed by the thoughtfulness that the staff had given to the Mortality and Morbidity report. 81/105-06. This thoroughness, I believe, more accurately reflects the quality of care that Jeff K. received at the Center.
The United States also challenged the care of three other residents: Sam B., James O., and Bobby Y. Sam B. died of aspiration pneumonia in April 1993 after a diagnosis of reflux esophagitis in 1980 and recurrent pneumonias thereafter. 41/132-33. Dr. Sulkes contended that after ten years of warnings, in March of 1993, Sam B. experienced increased difficulty swallowing and aspirated barium when a diagnostic procedure was being performed. 41/132. Despite this incident, the Center failed to request a respiratory evaluation.
James O. was hospitalized twenty-three times before his death in 1989. At no point in time did James O. have a swallowing work-up or a gastrointestinal or respiratory evaluation. Rather, his sixty-day medical note consistently noted as the plan of treatment "continue present therapy and care." 41/139.
Bobby Y. also died of aspiration pneumonia in December 1988. 41/139. Dysphagia had been diagnosed eleven years earlier, but his medical record revealed only two corresponding interventions. Id.
I cannot, based on the trial record, determine whether the care Sam B., James O., and Bobby Y. substantially deviated from accepted medical practice. The particulars of their care, despite the diagnosis of GER or the

identification of the risk of aspiration, are absent. Nevertheless, Dr. Sulkes concluded that the Center's care was constitutionally inadequate because these residents died of aspiration pneumonia without the benefit of certain evaluations. I will not find constitutional violations merely on the basis of the unfortunate fact of their deaths and Dr. Sulkes' conclusory statements that are not supported by the record.
Finally, the United States cited the treatment of several current residents in support of its contention that the Center's medical care of GER is inadequate. For example, Dr. Sulkes disagreed with the Center's treatment of Patricia W. In response, the Commonwealth submitted testimony by a pulmonologist who examined her and concluded that "[g]iven her severe kyphoscoliosis, she will inexorably progress to chronic respiratory failure as a result of her respirative lung disease and repetitive pulmonary infections. Your current therapy is just about optimal, given her inability to cooperate.... I think her survival to this time is a testimony to the care you have provided her." 34/38. The pulmonologist's opinion supports a determination that the Center's care met the constitutional minimum.
That residents have died or sustained recurrent pneumonias does not support a conclusion that the Center is violating their constitutional rights to adequate medical care. Dr. Sulkes focused his analysis and testimony on the residents at Keystone, who are the most medically compromised at the Center. It is well-recognized that "[t]he life expectancy of people with mental retardation is shorter than that of the general population." Exh. HH, Eyman, Richard K., et al., The Life Expectancy of Profoundly Handicapped People with Mental Retardation, The New England Journal of Medicine 584 (1990). Life expectancy in that population is further decreased if motor disability 611 is present. 34/60. Consequently, it is to be expected that some of the Keystone residents, who are *611 severely and profoundly retarded and physically disabled, may become ill at times and not recover, even though advanced medical care is being provided. GER by its nature is chronic, and it is accepted that non-surgical medical management should be attempted before resorting to surgical interventions. 81/155. During that period of nonsurgical management, it is to be expected in some cases that the condition may worsen, and even if surgery can be performed, it is not a cure-all. 81/155. I find that the Center follows accepted medical principles in treating GER and the risk of aspiration.
4. NUTRITIONAL MANAGEMENT
The United States contends not just that the Center fails to provide adequate nutritional management to its residents, but that nutritional management does not even exist at the Center. 84/X-41. In particular, the United States asserts that the Center (1) fails to identify residents who are nutritionally at risk; (2) fails to assess residents with regard to their nutritional management needs; (3) fails to adequately and appropriately intervene at mealtime for residents with nutritional management needs; (4) fails to adequately monitor mealtime intake and interventions; (5) fails to provide adequate staff training in how to implement feeding plans; and (6) fails to insure that its professional staff is adequately trained in nutritional management. 84/X.
Youngberg establishes that the Center has a duty to provide food for its residents. Food is "an essential of the care that the State must provide." 457 U.S. at 324, 102 S.Ct. at 2462. There is no dispute that the Center provides food portions which are generous. 35/104. But the provision of food in a disabled population is not met simply by preparing food and presenting it at mealtimes. Consequently, the Center must provide for the management of the nutritional status of its residents pursuant to the exercise of professional judgment which is consistent with accepted professional standards of practice. 457 U.S. at 323, 102 S.Ct. at 2462.
a. Screening
The United States' expert witness, Ms. McGowan, testified that the Center fails to identify residents who are nutritionally at risk. Such identification is the first element in any adequate nutritional management system. 35/159-60. Residents at risk include those with feeding, swallowing and oral motor disorders, in addition to those residents who have any history of choking. 35/159. The constitutional flaw, according to the United States, is that the Center does not have any screenings for these disorders, and even when screening devices are prepared, the devices are inadequate and screenings are not completed as quickly as they should be. The United States points to the facts that dysphagia screening has been completed only in the Laurel unit and that the Keystone

unit was in the process of screening as late as July 1993. The Center now plans to incorporate aspiration screening into each resident's care at the annual review, Exh. 637/42, but, the United States contends that the Center's efforts to identify residents who are nutritionally at risk has been too little, too late.
Ms. McGowan testified that identification of residents who are at risk nutritionally should be accomplished by identifying
people that look like they might be in trouble, then you go on to some more indepth type of assessment, so that you can both figure out if, in fact, your screen produced persons who really were having difficulties, and then you actually go in some depth, take a look at what real kind of problems they're having, because they are not always what they seem.
35/160. Dr. Sheppard, the Commonwealth's witness, did not dispute that identification of potential nutritional problems by screening is important. 61/100. I conclude that accepted professional practice requires some type of screening mechanism to determine which residents are nutritionally at risk.
The Center has attempted to implement screening of residents at risk, by implementing an aspiration screening procedure, Exh. 855. The Center's dysphagia team has developed a dysphagia screening to be conducted on all 612 residents, and has responded to *612 weaknesses noted by Dr. Sheppard and has developed a swallowing and screening tool. 61/102.
On direct examination, Dr. Sheppard was asked if the Center met accepted professional standards prior to the implementation of its screening tool for swallowing and screening. Dr. Sheppard hedged her response and opined:
[T]here was an aspiration screening tool that had been developed by the nursing staff, and there was good attention to individuals who were more severely involved, who were at risk for aspiration. I think most of the individuals in the Keystone Unit had been evaluated by the dysphagia team, and individuals who had had choking episodes were evaluated by the team following any choking episode; so individuals who were more impaired, who had a greater degree of dysphagia were being attended to; and certainly acceptable professional standards were being met in that area. It was the individuals who were less impaired that were not being 0907 getting the attention that they needed; and also there was nothing in place that would track the deterioration with age of these individuals. Those individuals have marginal skills, so in that sense it was a needed component to make the program good; but I must say that there are not many institutions that have these things in place that I've been in, and so I think they were doing a job that was certainly acceptable by general practice.
61/103-04.
In light of Dr. Sheppard's demeanor during her testimony and the context of her opinion, I conclude that there were deficiencies in identifying residents who were nutritionally at risk prior to the development of the various screening mechanisms. However, since Dr. Sheppard's inspection, the Center has developed various screening devices, and is in the process of implementing and revising them. I therefore find that no deficiencies remain to be remedied.
b. Assessment
The United States also asserts that the Center fails to assess residents with regard to their nutritional management needs. In February of 1990, it notified the Center that it failed "to ensure that all residents' nutritional needs are met." Exh. 637, exh. 50, p. 3. Ms. McGowan testified that the assessment phase is an interdisciplinary process that evaluates the resident and how his nutritional status is impacted by his neurological system, medications, psychiatric factors, gastrointestinal conditions, respiratory status, and musculoskeletal considerations (such as positioning). 35/161-64. She opined that the Center focuses on "what happens during the actual meal time.... [But,] they are missing many of the real important components of this process." 35/164.

As explained above, the Center's efforts to identify residents who are nutritionally at risk were inadequate until it developed and implemented better screening procedures. Following this development and implementation by the Center, however, Dr. Sheppard concluded that residents "who presented with a problem [were] being attended to." 61/104. Dr. Sheppard's review of John B.'s chart illustrated her opinion. She noted how this resident had a problem with weight loss associated with a refusal to eat. The annual review noted the following: his loss of weight; that he was essentially a dependent eater; he had a body mass index of nineteen; his weight was adequate although it was the low range of normal; he had a pureed diet with double portions; he had good lip and jaw closure, but was practically edentulous; and his response with efforts to encourage independent feeding. Dr. Sheppard further noted input from the following disciplines regarding John B.'s nutritional status: dietary, nursing, OT, pharmacy, and the physician. 61/94-95. She opined that John B. had a moderate problem in light of the fact that his nutrition was fairly good, he was still eating, and he was not showing any compromise of his respiratory system. Dr. Sheppard concluded that the Center's nutritional management for this resident was appropriate and adequate. 61/96.
I am persuaded by Dr. Sheppard's testimony and find that the nutritional assessments performed by the Center 613 satisfy *613 accepted professional standards. Although the annual review is not labeled "Nutritional Assessment,"
it satisfies the interdisciplinary process which is required by the accepted professional standards and addresses the acuity of the problem and the necessary interventions. The adequacy of the nutritional assessments performed by the Center is further supported by the fact that the assessments regarding physical therapy (PT), psychiatric issues, and neurologic care, all of which affect nutrition and feeding, have been found constitutionally sound.
The United States attempts to undermine Dr. Sheppard's testimony regarding nutritional assessments by pointing out the fact that Dr. Sheppard recommends utilizing the "body mass index" (BMI)[40] as a gauge of nutritional health and the fact that the BMI for the majority of the Keystone residents was below the normal range. Exhs. 967, 970. This statistic in and of itself has no bearing on the sufficiency of the assessment. Rather, it is a confirmation of the fragility of the population of the Keystone unit and the prevalence of dysphagia. 65/67.
The United States asserts that the inadequacy of the Center's assessments is evident in not only those assessments completed by the dysphagia team, but also those which the team has failed to conduct. The dysphagia team was created approximately in June of 1990. Exh. 641/12. The team includes the following: Kathleen Wagner, a speech therapist; Mary Frye, a Licensed Occupational Therapy Aide (LOTA); Karen Fulton, a registered dietician; and Marcia Stiles, a registered nurse (RN). Exh. 641/17. This team was created in response to what was perceived as the fragmented way dysphagia and swallowing difficulties were being managed, not because of any one incident that had occurred. Exh. 641/21. A regular scheduled meeting time was established in October of 1992. Exh. 641/26.
The dysphagia team first received referrals in January of 1991, Exh. 641/48, and the number of referrals has increased each year since then. Exh. 641/51. As of January 1993, the team relied exclusively on referrals in determining which residents to evaluate. Exh. 641/44. Any resident that had a choking episode was referred to the dysphagia team. Exh. 641/47; 35/166. The dysphagia assessment focused on the resident's ability to swallow. 35/165.
Since the team's inception, the basis for seeking dysphagia assessments has expanded. Dysphagia assessments increased over time as they were deemed necessary due to feeding problems or residents who were at risk of aspirating. Subsequently, a "meal observation" form was created as a means of identifying unsafe eaters. Exh. 637, exh. 16. This tool was to be completed by direct care staff. Subsequently, the team developed a dysphagia screening tool which was applied on a unit wide basis starting in April of 1993 in the Laurel unit. 61/130. The dysphagia screenings were then conducted at Keystone. Id.
The United States submits that the nutritional assessments which have been completed are inadequate. It notes that Dr. Sheppard agreed that the dysphagia evaluations need to include contributing causes and information regarding oral anatomy, 61/199, and points out that the team does not evaluate the effect of the resident's medication regimen.

These contentions do not alter my previous conclusion. Nutritional assessments are addressed by an interdisciplinary approach. Undoubtedly, there are ways to improve these assessments, but they meet professional standards. As Dr. Sheppard explained:

[T]here is a range of dysphagia problems that can be managed with fairly routine modifications and meal time procedures, and elaborate evaluations are not truly needed in those individuals. The 0907 many of the mildly and moderately impaired individuals can be managed with limited assessment information.

614

It's when you have the severely involved individual who is eating at the very limits *614 of their

capability, and eating poorly, that having total information may be more critical because there may

be things in it that you 0907 that it would lead you to do that, would help this individual continue to be

able to eat orally; and it's in those individuals that a 0907 a 0907 the most comprehensive evaluation is

useful.

61/201. I credit this opinion, which sheds light on the constitutional minimum required in this area. The record reveals that the Center's nutritional assessments meet the needs of the residents (i.e., the basic evaluation is in place, which can be augmented when the need arises).

c. Intervention

The United States asserts that the Center's mealtime interventions for nutritional management are inadequate. To the extent this contention raises the issue of unsafe feeding by the staff, that issue is addressed in the section regarding unsafe staff actions, under the duty to provide reasonable safety, and will not be repeated herein. See infra at § III.E.
The thrust of the United States' position, however, is that the Center failed to develop feeding plans for each resident who must be fed by staff (i.e., those requiring assistance) until after Ms. McGowan's tour in 1992. Even though such feeding plans were then developed, the United States contends that this last minute effort is deficient because the feeding plans devised do not adequately address proper positioning and feeding techniques. See 84/X-56.
Ms. McGowan noted that the Center developed supplemental procedures for most of the individuals in Keystone which related to feeding techniques. 35/148. She reviewed the supplemental procedure for all 94 residents of the Keystone unit and found 25 of them to be "completely inappropriate." 35/149. That is, the photographs incorporated in the supplemental procedure showed heads in extension, poor positioning, and staff pushing the head back into extension. Id. She further opined that the feeding plans devised after her first tour of the Center were deficient because they did not detail "where to put the food in the mouth, what kinds of pressure needs to be applied, how then to pull the spoon out of the mouth, what things not to do in terms of scraping the face; and so there are 0907 that needs to be very specific for direct care staff, because they 0907 they can't generalize those instructions to the very specific and very individual requirement of many of these individuals." 36/31-32.
Dr. Sheppard agreed that a feeding plan should address proper positioning and bolus presentation. 61/201. Dr. Sheppard noted that there are "specific components to bolus presentation; and for any one individual, fewer or more of those elements may be needed in the descriptives. Usually you only include in the prescription those elements that are special for this individual." 61/202. Dr. Sheppard concluded that the Center's feeding plans include the elements "as is appropriate, those items that are considered to be modified for this individual and need to be special...." 61/203.
My review of some of the supplemental procedures reveals that the Center included specific components regarding bolus presentation. For example, James M.'s supplemental procedure directed that "[f]irm pressure is applied on midline of tongue with spoon." Exh. 137. Tim P.'s procedure addressed the feeder's positioning during the meal, presentation of the spoon and the manipulation of the spoon. Id. Moreover, the Center included components as appropriate for the individual. For example, Michael F.'s procedure notes that he will cooperatively open mouth and swallow when the food is placed on the tongue. Common sense dictates that the

plan for this resident need not include any components regarding how to apply pressure to open the mouth, prompt the swallow, or remove the spoon. Accordingly, upon my review of the Center's plans and the testimony of both experts, I find that the Center meets the minimum professional standards in this regard. The Center's feeding plans include the elements appropriate for each individual.
d. Monitoring
615 The United States also asserts that the Center fails to adequately monitor mealtime *615 intake and interventions. It contends that the Center did not have any system in place in living units other than Keystone to record the amount of food that residents consume until October 1993. The United States submits that it is accepted professional practice to have some type of mechanism to monitor how well residents eat at mealtimes. 61/133.
The Center has a policy regarding meal refusals by residents. The policy was documented in August of 1992 after Ms. McGowan's evaluation of the Center revealed there was no written policy. Prior to the approval of this written policy, however, the Center had been "doing exactly what the policy said for many, many, many years ... it was well understood by all staff that this was the procedure to be followed." Exh. 637/11. A "Meal Checklist" form was also generated in October of 1992 after Ms. McGowan's evaluation of the Center. Exh. 673, exh. 16. This checklist is completed daily for each resident and indicates the quality of the resident's intake. All forms are forwarded to the Unit Manager on Fridays after review by the nurse. Id. Although the checklist was generated in October of 1992, "the nurses have always summarized appetite or lack of appetite or an individual's preference for foods." Exh. 637/21.
I find that the Center has in place an adequate mechanism for monitoring how well residents eat at mealtimes as evidenced by the "unwritten policy," which was eventually memorialized in Ebensburg Center Policy # 356, as well as the long-standing nursing practice of documenting in a resident's summary the status of his or her appetite. These practices are consistent with accepted professional practice, which requires some mechanism for tracking meal times. 61/133-34.
The United States, however, contends that even these policies are flawed because they do not address liquids. It points out that policy # 356 states: "when an individual refuses a meal, or a substantial portion of a meal, staff are to notify the nurse on duty. When an individual has refused three consecutive meals, the nurse will notify the physician. Liquid supplements are not considered an individual's meal." Exh. 637, exh. 15. This policy refers to refusals, and it is logical that a refusal of liquid supplement, an addition to one's regular meal, would not constitute a meal refusal. Consequently, this policy has no relevance to the Center's practice of monitoring the liquid intake at a meal.
As further support for its argument that the Center fails to properly monitor liquid intake, the United States asserts that Ms. Sponsky, the Director of Nursing, does not "consider liquids as part of a meal." Exh. 637/13. Ms. Sponsky's indication that liquids are not considered part of the meal was not emphatic. She admitted that she could not say whether a failure to take in liquids during a meal would be reported to the nurse and she did not know how the staff actually implemented the policy. Dr. Sheppard noted, however, that liquids are addressed in some of the units. She described how Keystone documents intake for food and liquids, and that the assessment of the meal in the Laurel unit included liquid intake as a component of the meal in its entirety. 61/135-36. She specifically recalled documentation noting "liquids refused" and her observations of mealtime intake, including liquids, were 100% congruent with the documentation of the feeders. 61/137.
The United States further contends that the Center's nutritional care is flawed because no formal policy exists for summarizing the information from the meal checklist. Dr. Sheppard noted that the information is conveyed to the physician after three meal refusals and to the QMRP after four fair intakes, i.e., 50% to 74% of meal, and asserted that she was not sure that a written policy is so important. 61/139; see Exh. 637, Exh. 16. Dr. Sheppard's opinion is persuasive. At some point, the utility of a "summary of summaries" is questionable. I find professional judgment was exercised in monitoring mealtime intake which was consistent with accepted standards of practice.

e. Training
The United States' next contention is that the Center fails to adequately train staff to implement feeding plans. 616 Ms. McGowan testified that staff training is key to ensuring *616 adequate nutritional management. 35/161-61.
Ms. McGowan claimed that competency-based training should be part of feeding training. 34/28. Such training not only addresses general principles, but also gears the training for each feeder to the unique needs of each individual. 35/161-2. The United States contends that even the Center's expert, Dr. Sheppard, agreed that staff need frequent training that is specific with respect to the residents for whose feeding they are responsible. 84/ X-60.
Dr. Sheppard's actual testimony, however, recognizes that professional literature regarding effectiveness of staff training and repetition is not extensive. In her opinion, staff training needs must be based on an assessment of the staff's abilities, how well feeding procedures have been retained and how effectively such skills have been implemented to determine how frequent training must be provided. 65/18. Dr. Sheppard then noted that although there had not been any formal training sessions by the dysphagia team, numerous mini-staffings are given every time a special procedure is developed or changed. Dr. Sheppard specifically opined that "there were professional judgments involved in determining how the program was to proceed." 65/20.
The United States submits, however, that Dr. Sheppard's opinion is not credible because the method utilized to train the direct care staff was nothing more than reading the supplemental procedure books for feedings. 65/21. I am not persuaded by this assertion in light of Velda Malloy's deposition testimony. Ms. Malloy is an RN who has worked at the facility since 1963 and served as a supervisor and QMRP in the Keystone unit since 1992. Exh. 622/8. Ms. Malloy noted that she feeds residents in Keystone and had been trained in the supplemental procedure. She further explained that she helped write the procedures after first discussing the specific needs of each individual with the OT (Lois Graham), a speech therapist (Kathy Wagner), and the direct care staff. In addition, Ms. Malloy actually observed the staff feeding every individual. Exh. 622/84. Ms. Malloy explained that the direct care staff consult the special procedure books and ask questions of the professional staff that are always present in the dining room. Exh. 622/89. She further noted that if staff are feeding inappropriately, they are approached immediately by a professional to address the proper method of feeding. Exh. 622/95-96.
I find the Center's efforts to provide adequate staff training to implement the feeding plans satisfies the accepted professional practice described by both Ms. McGowan and Dr. Sheppard. In light of the staff's knowledge base in feeding the residents, training need not start at square one. Day-to-day assessments of actual feedings by the professionals present in the dining room provide ample opportunity for additional training to correct deficiencies or reinforce the proper method. Professional judgment is exercised.
The United States' final claim of deficiencies in the nutritional area is that the Center fails to insure that its professional staff is adequately trained in nutritional management. The evidence offered by the United States in support of this contention is nothing more than a list of training that the professionals at the Center would like to receive. That the Center's professionals desire additional training hardly proves a constitutional violation.
5. PHYSICAL THERAPY
The United States contends that the Center's physical therapy ("PT") services[41] are a substantial deviation from acceptable professional practice because the Center allegedly: (1) fails to conduct proper PT assessments; (2) fails to develop and provide adequate physical management for residents with physical disabilities; (3) fails to provide acceptable wheelchairs; (4) fails to properly handle, lift and transfer residents; and (5) fails to adequately train its staff in the physical management of its residents. 84/XIV.
617 *617 The United States argues that the Constitution requires the Center to provide physical therapy services which enhance the residents' capacity to function, i.e., help the residents to live as safely and as independently as possible. The United States believes that physical therapy, a professional discipline concerned with maintaining, restoring and/or acquiring one's maximum range of motion, should achieve the following benefits for

the residents: (1) enable them to move more easily and efficiently; (2) avoid the development of contractures, deformities, and acute curvatures of the spine due to scoliosis; and (3) provide them with the opportunity to learn functional skills to enhance their independence. In effect, the United States argues that the Constitution requires the Center to provide residents not just maintenance to avoid or minimize loss, but also the therapy necessary to reach their maximum potential.
In support of this proposition, the United States cites the analysis of District Judge McCalla as set forth in his supplemental findings of fact in United States v. Tennessee, No. 92-2062-M1/A (February 17, 1994), ¶¶ 113-14 ( see 92/Exh. A for the full text of Judge McCalla's supplemental findings of fact). As pronounced by Judge McCalla, the constitutional duty to provide physical therapy is quite far-reaching, and entails the provision of services at an institution in an effort to obtain the greatest possible amount of movement for the residents, resulting in their greatest possible independence.
Although mentally retarded individuals do not lose their liberty interests simply by virtue of their institutionalization, Youngberg, 457 U.S. at 315-16, 102 S.Ct. at 2458, the Supreme Court in DeShaney cautioned against an overly-expansive interpretation of the Due Process Clause, and clarified that the Clause "generally confer[s] no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." 489 U.S. at 196, 109 S.Ct. at 1003. As the DeShaney Court explained, Youngberg stands for the simple, albeit important, proposition "that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general wellbeing." DeShaney, 489 U.S. at 199-200, 109 S.Ct. at 1005.
This constitutional obligation, however, differs dramatically from the type of affirmative duty that the United States seeks to place upon the Commonwealth here 0907 to actually improve the condition of the residents by means of its physical therapy services. Justice Blackmun's concurrence in Youngberg, joined by Justice Brennan and Justice O'Connor, suggests that the failure of a State to preserve self-care skills acquired before institutionalization (an issue that was not before the Court in Youngberg) may present a question of whether there has been a constitutional deprivation. 457 U.S. at 329, 102 S.Ct. at 2465 (Blackmun, J., concurring). Consistent with the reasoning of Justice Blackmun's concurrence in Youngberg, I hold that the constitution imposes a duty upon the Commonwealth, pursuant to the exercise of professional judgment, to provide PT services at the Center which maintain the residents' maximum ability to move, but not a duty to achieve some optimal level of performance. [42]
Stated differently, an infringement of a mentally retarded resident's liberty interests may occur if a loss in movement results from the Center's failure to provide necessary physical therapy training and/or services, but not every instance where there is a loss of movement indicates that a constitutional violation has occurred. The 618 failure of the Commonwealth to provide training at *618 the Center which improves the residents' basic care skills, absent proof that the failure to provide training results in the loss of a recognized liberty interest (e.g., minimally adequate or reasonable training to ensure safety and freedom from undue restraint, as recognized in Youngberg), does not implicate constitutional Due Process concerns.
Where the state does not provide treatment designed to improve a mentally retarded individual's condition, it deprives the individual of nothing guaranteed by the Constitution; it simply fails to grant a benefit of optimal treatment that it is under no constitutional obligation to grant.
Society for Good Will, 737 F.2d at 1250.
As explained below, pursuant to the foregoing standards, I find that the Center provides a broad spectrum of physical therapy services, and that professional judgment is exercised in an effort to preserve and/or maintain the residents maximum ability to move. Accordingly, I find no constitutional deprivation.
Most of the physical therapy services provided at the Center are rendered to residents who have a physical handicap. The Keystone unit is home to most of the residents who have one or more physical handicaps that impair their ability to move. Some physically handicapped residents also live in the Laurel, Horizon, Sunset and Villa living units. 34/98.

Approximately one-third of the residents of the Keystone unit are essentially immobile because of their physical handicaps. They have no active movement except for the ability to move their head or an arm or a leg slightly. 34/98. Another one-third of the residents of the Keystone unit have significant limitations. They may be able to perform a functional skill such as rolling over or sitting up, but not the host of functional skills that would enable them to move independently. 34/98. The other one-third of the residents of the Keystone unit have limitations of a minimal to moderate degree in their ability to move. Their physical handicaps impair but do not preclude independent movement. 34/98.
The physical handicaps manifested by the residents at the Center are the result of damage to the brain early in their lives, in almost all cases before preschool age. 34/107. As the residents age, they progress through three stages of development. The first stage is consistent with neuroplasticity, and involves a period of growth in response to abnormal neurological influences and secondary muscle imbalances. This stage lasts until approximately age seven. During this first stage, deformities actually begin to develop, and PT intervention is useful in order to prevent or limit their development. 52/45-47.
The second stage is that of skeletal maturation. This period spans from approximately age seven until skeletal maturity has been attained, and intervention efforts are geared toward retarding any progression of deformities that developed during the neuroplasticity stage. 52/45-47.
The third and final stage begins after skeletal maturity has been attained. At that point, the Center's intervention efforts focus on attempting to prevent the further progression of deformities, maintaining comfort, and providing positioning that is conducive to general health considerations. 52/45-47, 58.
The residents at the Center who have physical handicaps have attained skeletal maturity. 52/60-61. As a result, the physical handicaps arising from the structural deformities are fixed and cannot be reversed. 52/60-61. These residents have a corresponding limitation in movement, and they have been in the positions they present for fifteen to twenty years. 32/151-52. The United States' PT expert, Ms. McAllister, and the Commonwealth's PT expert, Mr. Arnall, are diametrically opposed on the possibility of reversing postural deformities after skeletal maturity. My conclusion from hearing them testify is that Ms. McAllister may be on the leading edge of the PT field, but that Mr. Arnall represents the mainstream school of thought. The constitutional duty imposed by Youngberg and Shaw does not require the Center to embrace an unorthodox method, even if it is promising.
619 For these residents, maintenance of maximum movement has several benefits: (1) it *619 prevents a loss of mobility and skills associated with that movement; (2) it prevents a loss of strength; (3) it prevents the development of pressure areas, since movement can be effected to eliminate pressure; and (4) it can slow the progression of osteoporosis. 34/149-50. In short, preservation of a resident's maximum ability to move prevents or delays the development of osteoporosis or contractures, which, in conjunction with the structural deformity, may contort the body and affect the internal organs. 34/149.
The Center contracts for the services of a licensed physical therapist (LPT) to oversee the provision of PT services to Center residents. Prior to December 1992, the Center contracted for the part-time services of three LPTs, which was equivalent to one full-time LPT position. One of the contract LPTs retired at the end of December 1992, however, and had not been replaced as of the time of trial. Exh. 619, p. 11. One LPT was physically present on the premises for 222 hours from July 1989 to August 1993. Exh. 97. The facts do not indicate how many hours the other LPT spent at the Center during that same time period. The LPTs supervise six full-time physical therapy aides (PTAs). 34/229.
The Center also provides physical management services by employing one or two full-time licensed occupational therapists (OT), eight licensed occupational therapy assistants (LOTAs), and six occupational therapy aides. 64/131; 34/230-1. The Center staff provides PT and occupational therapy (OT) services Monday through Fridays, from 8:00 a.m. to 4:00 p.m. 34/231.
PT and physical management services at the Center are initiated and maintained pursuant to the order of a licensed physician. 52/28. See 63 P.S. §§ 1309, 1514. The PT and OT services at the Center are provided in the same manner as a care provider in a private home. 62/107; 34/146-47.

The Center performs an annual assessment for each resident who receives any PT or OT service. 34/126; Exh. 619/20. If a resident is not receiving any PT or OT service, then that resident is assessed for PT needs every three years. 34/127; Exh. 691/20. If a resident uses a wheelchair but otherwise receives no PT or OT services, that resident also is assessed for PT every three years. 32/127.
The annual assessment for a resident receiving PT services is not attended by the LPT or the OT. Rather, a physical therapy aide or a LOTA attends and provides information to the primary care physician about that resident and the modalities employed. Discussion at the annual assessment does not necessarily address additional measures which could improve the resident's program. 32/127.
The PT's annual assessments are recorded on an interdisciplinary report. The report includes the PT's assessment of the resident's physical abilities (including range of motion flexion and abduction, strength and tone), and any recommendations the PT has for that particular resident. Exh. 34. Each patient's medical history 0907 including ICD-9 codes,[43] physical development, and health and behavior modification programs 0907 is kept in a separate chart. 52/40-41. Documentation of PT or OT service provided is done periodically by the physical therapy aide or the LOTA. The LPT or OT countersigns the documentation. 62/92, 94.
a. Assessment
The United States asserts that the Center fails to conduct PT assessments according to acceptable professional practice. 34/119. The United States asserts that an adequate PT assessment of a resident's physical handicaps must establish what movement patterns a resident possesses and how that resident's movement is limited, which enables the development of a plan to maintain the degree of movement the resident possesses. 34/115.
The United States points to the fact that the Center utilizes a one-page PT assessment form (Exh. 34), which is rarely completed in its entirety. The form does not provide an area to denote the resident's diagnosis or pertinent 620 historical information (e.g., a resident's ability to maintain different positions *620 or perform functional and motor skills; the resident's existing reflexes; issues pertinent to the resident's physical management such as positioning, transfers and lifting). 34/120. In short, the United States asserts that the Center's PT forms provide neither a baseline of the resident's physical condition nor the most appropriate means to care for the resident. In contrast, the United States proffers an eighteen-page assessment form created by its PT expert, Ms. McAllister. Her form contains the areas and analyses that she contends are commonly accepted in the field. 34/124; see Exh. 71, Appendix III.
The United States also contends that the Center fails to meet acceptable professional standards by performing assessments only every three years, 34/127, and that the analysis performed at the assessments is inadequate, usually providing no more information than "reviewed,; no PT recommended." Exh. 979. Ms. McAllister testified that the assessments are flawed because they assume that the goal for the residents is nothing more than maintenance. 34/128.
The Center's assessments fall short of the assessments urged by the United States. The United States' own expert admits, however, that those residents with physical disabilities receive a PT assessment. 35/3. The record reveals that a great deal of the information that the United States argues should be placed on the proffered eighteen-page assessment form is available elsewhere in the resident's chart. 52/40-42. Other sections of the eighteen-page form simply are not applicable to a number of residents. See Exh. 71, Appendix III (portions of assessment tool pertaining to sitting and walking inapplicable to resident who is confined to cart).[44] The documentation of the Center's PT assessments is not constitutionally infirm. See 52/41-42 (forms are adequate in light of the fact that other portions of the chart, as well as supplemental procedures, detail and provide additional information).
I also find the frequency of the PT assessments meet the professional judgment standard. The United States argues that the acceptable professional practice requires yearly assessments, relying on Ms. McAllister's opinion that yearly assessments are appropriate if there is an expectation of change for those individuals and that such assessments are commonly accepted in the field of PT. 34/127. Other credible record evidence indicates that

there is no published standard within the field with respect to the need for annual evaluations, and that the standard to which Ms. McAllister testified is merely a personal opinion. 48/151; see also 52/41; Exh. 619/54 (the frequency of assessments at the Center is consistent with accepted standards for such a fixed and stable population). More importantly, the Due Process Clause does not require that the State improve the resident's condition. The record indicates that the Center's assessments are adequate for maintenance, which is constitutionally acceptable.[45]
One key aspect of the PT treatment provided to the Center's residents is the modality of range of motion (ROM) exercises. ROM may be active or passive in nature, and is geared toward maintaining the movement patterns 621 that residents currently possess. ROM sustains the integrity and existing mobility *621 of the joint. 34/209; 52/102. The ROM exercise (that is, the movement of the joint by flexion and contraction of the muscles) helps to hold the minerals in the bone matrix by preventing further osteoporosis and increasing fragility of the bone. 34/151. Therefore, ROM is therapeutic for the residents because it maintains their current movement capabilities. 35/43; 52/102. ROM exercises are being provided to many of the residents of the Keystone unit, including the residents who are confined to carts. Due to the skeletal fragility of the residents in carts, the Center's orthopedic physician recommends ROM as the safest therapy. 52/25-27. The Center's LOTAs provide this service for the resident's upper extremities. 52/25. ROM for the lower extremities is provided by the PTAs. 610/59-60.
In addition to ROM exercises, the Center regularly changes the position of those residents who are physically handicapped and unable to effectively move. Repositioning a resident helps to maintain the integrity of the skin, avoids the development of pressure sores, and provides comfort. 34/152; 52/56. The residents of the Keystone unit who are confined to carts are routinely provided position changes. Currently, no resident at the Center has a decubitus (bed sore). 35/60; 52/91. Although residents sometimes experience redness of the skin, that condition is not necessarily indicative of skin breakdown. 52/91.
In addition to position changes, the Center utilizes "splinting" to assist in the prevention of skin irritations. Exh. 610/58. After residents undergo ROM therapy, they are "splinted" to allow air to reach their joints and to maintain their maximum amount of range. Exh. 610/59. Although one individual's range was actually increased due to splinting, the Center generally uses splinting to maintain the existing ROM and to improve the skin integrity. Exh. 610/59.
Another modality of treatment provided to eight of the Keystone residents is chest physiotherapy or percussion. 52/103. This assists the resident to effectively mobilize and expectorate fluid accumulations or secretions in his/ her lungs, in an effort to decrease congestion and improve breathing. 32/20; Exh. 619/60.
Therapeutic positioning is also used at the Center to sustain the integrity and mobility of a joint. 52/102. Therapeutic positioning places a resident in a manner which attempts to approximate normal body alignment. 34/163. In addition, some therapeutic positions afford an opportunity for the muscles to work in opposition to the forces of gravity or the reflex pattern of spasticity manifested by the resident, allowing for weight bearing by certain joints. 34/165. As a result of therapeutic positioning, the muscles that are worked may be strengthened, and the mobility of some joints maintained. 34/163. It also may promote improved breathing and avoid the compression of organs. 52/31.
Therapeutic positioning, which provides an opportunity to experience normal body alignment conditions, and weight bearing may be contraindicated for some residents due to the progression of their physical handicaps and the attendant complications of immobility. Contraindicators are a fragile skeletal system and joints which are dislocated, common features of Center residents. 52/30-31.
If therapeutic positioning is contraindicated, adaptive positioning may be provided. This is positioning which places an individual in a comfortable position. It essentially adapts to the resident's deformity pattern. 34/162. Adaptive positioning is used for the eight Keystone unit residents who utilize carts during the day. Adaptive positioning is therapeutic for these individuals in that it aids in the prevention of further deterioration. 52/94.
Another modality of PT provided to approximately 125 (or one-fourth) of the Center's residents is gross motor function programming. 52/35. This programming, administered by mobility experts, vision specialists, and

psychology staff, maintains or improves a resident's skills or ability to move utilizing large muscle groups, and includes activities such as ball throwing, treadmill walking and bicycle use. 52/35.
Despite the numerous PT services provided to the residents, the United States argues that the Center fails to 622 develop and provide *622 adequate physical management for residents with physical disabilities, and that too
many of the residents do not receive necessary therapeutic positioning and gross motor function programs to improve their functional capabilities. The United States notes that it is undisputed that the Center does not, in therapeutic positioning, place any resident in the "prone on forms" position or the "quadruped" position. 34/175, 177.[46]
On the other hand, the record reveals that the Center initiated "side-lying" into its program in the early 1980's (Exh. 610/28-29); "side-lying" positions oppose the reflex pattern of extension of the back and flexion into the fetal position. 34/168-69; Exhs. 710, 989. Mr. Arnall, the Center's contract LPT, asserts that its residents who are confined to a cart are not provided therapeutic positioning because of the fragility of their skeletal systems. 52/61. This assertion is supported by Ms. McAllister's published training guide, which states that certain positioning may be contraindicated for individual residents due to the resident's physical condition. Exh. 71, App. VI. Mr. Arnall further explained that the therapy received by residents is consistent with the recommendations of physicians treating those particular residents. 52/25-30. Furthermore, he noted that many of the residents are receiving physical management services in ROM exercises, or another modality of treatment. 52/63-67.[47]
I find that the Center's physical management of the residents does not substantially deviate from accepted professional practice. The fragility of many of the residents' skeletal systems is not disputed and warrants serious consideration by the professionals. The decision not to provide some residents with therapeutic positioning which may stress delicate joints is accepted practice. Moreover, the record reveals that professional judgment has been exercised in determining what physical management efforts will be deployed, whether ROM, splinting, percussion, or adaptive positioning. Here, as in many other areas of care at issue in this litigation, although the Center may not utilize the "best" or the "most current" options available, I find that professional judgment is exercised, and that the care meets the constitutional minimum.[48]
b. Wheelchairs
The United States contends that the Center fails to provide wheelchairs that meet acceptable professional standards. Approximately 117 to 127 residents at the Center use a wheelchair as their primary means of mobility. 34/97. When a resident is placed in a wheelchair, the optimal position is for the pelvis to be tipped slightly forward in an anterior pelvic tilt. This places pressure on the ischial tuberosity and off of the tailbone or coccyx. This body 623 position, if maintained, resembles an L, and is very stable and provides an element of control for one's trunk *623 and head. 34/181. The seat belt to a wheelchair is one means of attempting to maintain a resident in the anterior pelvic tilt position. Seat belts should traverse a resident's body at the top of their pelvis or across their hip bones. 34/182. The seat belt should not be too tight. 34/189.
A loose seat belt and the movement of a resident while positioned in a wheelchair can result in that resident assuming a "C" position. 52/82-6. A "C" position is synonymous with a posterior pelvic tilt position in which an individual is positioned more on their tailbone or coccyx. As a result, the head falls forward and down, and the shoulders follow. 34/182.
Wheelchairs are individualized for the residents by the adaptive equipment department to provide a comfortable chair that is safe and properly supports the resident. Exh. 619/82-83. The Center's PTs, PTAs, and nurses monitor the needs of the residents, and the PTs determine the modifications necessary for the resident's safety, positioning and comfort. Exh. 619/81, 83-84. One section at a time of the wheelchair is modified in order to evaluate how the revision will work; at times, the adaptation process may take several weeks. Exh. 619/82, 86. While the resident's chair is in the adaptive equipment department, another chair is provided for him or her. Exh. 619/86. The LPT supervises the adaptations which have been requested. 52/99.

Ms. McAllister, testified that she did not see anyone in an appropriate wheelchair during her entire week-long observation at the Center. 34/206. Ms. McAllister also claimed that the staff never properly positioned residents in their wheelchairs. 34/188-89. The United States listed positioning deficiencies for thirteen residents which were described by photographs and a videotape. 84/XIV-50 n. 17.
Ms. McAllister opined that accepted professional practice requires the utilization of a mechanized positioning chair or simulator to produce wheelchairs for residents which meet their needs. 34/193-95; Exh. 731. A positioning chair is capable of having every conceivable angle and dimension changed while an individual is in the chair in an effort to identify exactly which position is best for that individual, based on comfort, safety and proper support. 34/194. The Center does not have a positioning chair. 34/195; Exh. 619/87. Instead, it continues to utilize the services of the adaptive equipment shop and the professional judgment of the LPT or OTR to adapt and modify standardized wheelchairs purchased from manufacturers. 52/98-101; 32/195; Exh. 619/84, 88.
The United States contends that positioning chairs or simulators have replaced the trial and error method of adapting wheelchairs that is used by the Center. 84/XIV-55. Mr. Arnall, however, who testified on behalf of the Center, explained that the simulator is a "high tech" substitute for adaptive wheelchairs which may increase convenience, but cannot act as a substitute for professional judgment. 52/98.
That technology can now boast a sophisticated piece of equipment as a replacement for the earlier trial and error method offers no insight whatsoever into whether an appropriate exercise of professional judgment has been made. Because the Center's method is accepted within the practice and demands of the exercise of professional judgment by the PTs (Exh. 619/87; 52/101), I find that it satisfies the obligations imposed by the Constitution.
The United States' arguments with respect to the thirteen residents who allegedly were provided with improper wheelchairs and/or positioned improperly are not compelling. 34/180-99. The Commonwealth explained that a number of those residents have the ability to move themselves from the correct positions in which the staff initially placed them. Exh. 619/80. Rather than unduly restrain the resident via a seat belt or other device, the resident is permitted to move and is repositioned as needed. 52/82.
In addition, as noted before, the record demonstrates that some of the staff were reluctant to intervene or act on behalf of the residents in the presence of the United States' experts. Other factors, such as the preferences of a resident or his family for a particular wheelchair, also have played a part in the Center's determination whether to 624 obtain *624 a more therapeutic wheelchair for the resident. 52/81.
c. Transfers
The United States also asserts that the Center fails to handle, lift and transfer residents according to acceptable professional standards. Residents are lifted and transferred to and from wheelchairs on a daily basis. These lifts should be accomplished by two care providers. Exh. 24. Some of the lifts and transfers are accomplished by the care providers placing their arms underneath the resident's arms and/or knees to lift them from one surface and lower them onto another. Such action exerts a pressure which, if sustained, could cause damage to the resident's arteries and nerves, and possibly to a joint. 34/216-17. Usually, such lifts and transfers do not last longer than thirty seconds. 52/104. The LPTs who provide PT services to the Center prefer to lift residents by placing their arms under a resident's arms and around the trunk, and then taking the forearms and positioning the resident close to their own trunk and lifting in conjunction with someone who is controlling the legs. This is set forth in the Center's policy regarding lifting and transferring. Exh. 82.
Ms. McAllister concluded that the staff's handling and lifting of residents is flawed because: (1) staff lift residents under the armpits; (2) staff lift residents under the knees; (3) staff do not control the head and trunk of the resident being lifted; (4) staff do not position the resident properly in a wheelchair or on the mat; (5) staff use the resident's limbs for turning; (6) staff resort to momentum for lifting and transferring which results in a "whisk and thud" transfer; (7) staff fail to arrange the environment before initiating the lift and transfer; and (8) staff use poor body mechanics. 84/XIV-58.

As a result of these flaws, Ms. McAllister contends the staff's care with regard to lifting and transferring residents fails to meet acceptable standards and subjects the residents to harm. 34/217, 221. The United States argues that Ms. McAllister's opinion is supported by the number of injuries sustained by residents while being lifted and transferred. Exhs. 85 and 791. The injuries allegedly resulting from improper lifting range from abrasions, black and blue marks, scratches and/or lacerations, to fractures. Exh. 791.
Some residents sustain injuries while being lifted or transferred. The injuries range from abrasions to bruises, scratches, lacerations or fractures. Exh. 85. Historically, the LPTs have provided training to the care providers regarding lifting. 52/105. The Center currently is in the process of completing a Competency Based Lifting and Transferring Technique Inservice which is geared to review and reinforce principles relevant to safe lifting and transferring. Exh. 85, # 00004032; 52/105. The competency based training insures that each provider is capable of lifting and transferring an individual by actually performing a certain type lift and transfer under the supervision of an instructor. 52/105, 164-66. Such lifts would not be accomplished by the lifting of a resident under their arms.
The Center does not dispute that the cardinal rules for lifting and transferring are: (1) to control the environment; (2) to stay off the arms; (3) to lift as high on the legs toward the pelvis as possible; and (4) to control the body parts which do not have control or are abnormal. 52/172. Additionally, staff from the Center indicated that the Center's training with respect to lifting is consistent with the lifting procedures desired by Ms. McAllister. Exh. 610/105. The Commonwealth's evidence indicated, however, that the most "changeable" part of the environment is the resident, who may change the situation in the course of any transfer. 52/172; Exh. 85, # 00591020 (appropriate lifting procedures followed, resident jerked own head causing laceration); Exh. 85, # 0076504 (resident threw head back when being properly placed into bed, causing injury).
In addition, residents with osteoporosis may be injured during lifting and transferring even when the lifting complies with acceptable standards. Exh. 85, # 00006442 (fracture in resident with severe osteoporosis may have occurred during PT, seizure activity or self-repositioning). Finally, some of the injuries submitted by the 625 United States *625 did not occur during lifting. Exh. 85, # 00589451 (injury occurred while resident was lying on the changing table).[49]
Historically, when the Center found that an injury occurred due to improper lifting methods, the Center provided additional staff training. For example, Harvey B. received "grasp" type bruises on two occasions caused by improper lifting. The facility director recommended lifting retraining, which had already been prescheduled by the Center's Facility Training Department, and additional training was provided by the Center as recommended. Exh. 85, Aug. 12, 1991, # 00589452.
I recognize that there are incidents which have resulted in harm to the residents. For example, the United States points to the fracture sustained by Harold M. when he was lifted from his wheelchair and his leg was still contained in a velcro strap utilized to maintain his leg on the leg supports of his wheelchair. Exh. 85 (incident review of Harold M. of 6/11/91). Obviously, this lift was improper because the care provider negligently failed to release the velcro strap prior to lifting the resident, although she believed that she had. Isolated injuries, though extremely unfortunate, are bound to happen within a population which requires lifting and transferring on a daily basis. See Society for Good Will, 737 F.2d at 1245. The record does not reveal that such injuries due to improper lifting are commonplace, however, or that they go uncorrected.
In light of the residents' abilities to dramatically change a lift which is in progress, the presence of significant osteoporosis in this population, and the fact that the Center has a lifting policy which incorporates for the most part the above cardinal rules (Exh. 82), I do not find the Center's care in this regard constitutionally remiss. The evidence is clear that the presence of significant osteoporosis results in injuries which are neither related to actions by the staff (e.g., fractures precipitated possibly by self-repositioning or seizure), nor totally precluded by the complete adherence to acceptable professional standards.
Finally, the United States asserts that the Center fails to adequately train its staff in the physical management of residents, arguing that too often training is learned on the job and no formal inservice is provided. The United States claims that the Center's own staff recognizes the need for more inservices, and it points to the testimony of Mr. Tackett, who stated that he was handling residents on his first day on the job. 38/7-8. In addition, the

United States faults the Center because it does not have an individualized written or photographed plan for handling each resident.
I do not find persuasive the United States' contention that the Center's own staff recognizes the need for more training. This "admission" was obtained in a discussion after a demonstration by Ms. McAllister of positioning techniques for one of the residents. Exh. 610/35-36; Exh. 615/113. Ms. McAllister, an enthusiastic and motivating individual, sparked an interest in several staff members that undoubtedly will benefit the residents. Hopefully, the Center will take advantage of that interest and encourage learning opportunities in this and other areas of care. The professed desire of staff to receive continuing education, however, is hardly evidence of a deficiency which violates the Constitution.
Ms. McAllister testified that she believes that an individualized plan illustrated by photographs is common practice with therapists who work with the developmentally disabled. 35/63-64. She acknowledged, however, that such a plan comports with her own, personal standard for optimal treatment, and that only two states (Florida and 626 Oregon) have embraced it. As a result, Ms. McAllister's testimony merely establishes the existence of various *626 options from which a professional could choose, and provides no support for a finding that the Center's training substantially departs from accepted practice. See Youngberg, 457 U.S. at 321, 102 S.Ct. at 2461 ("`[T]he Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.'").
The record demonstrated that the Center's training for direct care staff in this area included the viewing of a videotape about proper body mechanics and demonstrations of various lifts. 34/232-33. The Center's training sometimes provided the opportunity for return demonstrations, but this varied according to the class size. 34/232. The fact that each new hire was not provided an opportunity for a return demonstration on each type of lift, however, is not significant. The record is clear that training was provided, basic lifts were demonstrated, and inservices were given thereafter on an "as needed" basis. 52/105; see Exh. 85. I also note that the Center's practice requires that lifts be performed by two persons, thereby providing an additional "check" on improper lifting techniques. As a result, I find that there has been an ongoing exercise of professional judgment at the Center to provide training with regard to lifting and transferring.
To summarize, I find that the Center's provision of PT services meets accepted professional standards. The United States' expert lamented that the Center provides only "maintenance, pure and simple." But that is what the Constitution permits. See Society for Good Will, 737 F.2d at 1250. While it may be regrettable that the Center's residents do not receive the optimal PT services available nationwide, my task is to determine only whether the record demonstrates that the physical therapy services provided at the Center substantially deviate from accepted professional practices. I find that they do not.
6. GENERAL MEDICAL CARE
The United States contends that the Center fails to provide adequate continuity of care. Such care allows medical professionals to be "proactive" or preventive in nature, as opposed to being merely reactive. 41/146. Continuity of care is provided by a physician or group of physicians who provide medical care for an individual on a consistent basis for all of that individual's ailments. This long-term relationship between the medical practitioner and patient enables the medical practitioner to anticipate and identify problems which may arise. As a result, the medical practitioner can initiate treatment either to prevent or reduce the intensity of problems. 41/147.
Dr. Sulkes believes that proactive care is essential for the developmentally disabled population, and is "the reason to have physicians in a place like [the Center]." 41/147. He further opined that the Center's proactive care is inadequate because the size of the medical staff is too small and the medical record documentation upon which long-term proactive care is based is deficient. 41/148.[50]
Dr. Sulkes noted that the Center has four physicians, each physician with a caseload of approximately 120 residents. Dr. Sulkes believes this doctor/patient ratio is reasonable. 41/150. Vacations, holidays, sick time, and continuing education commitments raise the real average caseload, Dr. Sulkes contends, to 160 residents per

doctor, which is too high because the physician must consider chronic problems, see more residents and consider long-range planning. 41/150.
Dr. Kastner, a pediatrician who works with the developmentally disabled, testified on behalf of the Center that the 627 increased caseloads *627 resulting from a physician being temporarily unavailable was not unacceptably high.
He was "completely comfortable with a physician managing a hundred-nineteen residents and with that ratio going up when a physician is ill, on vacation, or at a continuing education program." 48/99. He noted that he has observed staffing ratios ranging from one physician per 96 patients, to one physician for 258 patients, 48/99, although he found the latter ratio unacceptable. 48/99.
Dr. Shertz, the Center's medical director and a physician, noted that the actual caseload for each physician varies, and that the residents with the "greatest medical problems have a better physician ratio." Exh. 632/32. Dr. O'Connor covers the Keystone living unit and her caseload is approximately 92 residents. Dr. Shertz' caseload is approximately 90 residents, and Drs. Lightbourne and Rayes have a caseload of approximately 130 residents. Exh. 632/33. Nor does coverage of another physician's caseload necessarily result in an equal division of that caseload among the three other physicians. The distribution is dictated by the demands of the caseloads which staff physicians have at the time that coverage is needed. Exh. 632/35-37. Dr. Shertz believed that the coverage provided was adequate and did not feel that another physician was necessary. Exh. 632/37-38. Dr. Shertz' comfort with the staffing ratios was partly attributable to the fact that the Center's physicians have a low turnover rate, which has enabled the physicians to become familiar with all of the residents over time. Exh. 632/41.
I find that the Center's physician staffing ratio is within acceptable professional standards, and takes into account both the medical needs of the residents, as well as the familiarity of the physicians with those residents.
Dr. Sulkes' opinion that inadequate medical record documentation exists at the Center is grounded in his contention that that documentation does not accurately depict the resident's long-term care, and fails to coordinate and document input from consultants and/or hospitals. 84/XII-2-15. Dr. Sulkes opined that medical documentation enables the practitioner to grasp a long-term picture of the resident's health, and prevents medical problems from getting "lost in the shuffle." 41/157. Dr. Sulkes further described that there should be two levels of medical documentation: documentation of acute medical problems, and documentation on a chronic level. 34/2-3. He acknowledged, however, that the Center has three levels of documentation: daily progress notes for documenting acute medical matters; sixty-day notes for an overview of that two-month time period; and an annual review, which provides a summary of the chronic care for that resident. 34/3.
Despite these three levels of documentation, Dr. Sulkes concluded that the Center's documentation did not accord with accepted professional practice, and that it was incomplete, episodic and reactive. 41/149; 34/5. Dr. Sulkes opined that the documentation failed to establish follow-up on medical problems or acknowledgment of the resolution of a medical problem. 34/12. The United States contends that this inadequacy in documentation was noted in the January 1993 Inspection of Care survey. 34/12, citing Exh. 67/8-E.
Dr. Kastner agreed with Dr. Sulkes that there were problems with the medical records maintained by the Center. 48/142-45. He explained that the medical records were maintained on the residential living units, and that staff were familiar with and able to use the records. He noted that a resident's medical record did not include a list of active and inactive problems, but did include incident reports, and behavioral data. Laboratory data, procedure results and consultation reports also were maintained in the record, but there was rarely any documentation by the physician regarding such results or evaluations. Annual review notes were generally thorough and effective at maintaining continuity of care, he said, but could be more complete. Transfers from the Center to Mercy Hospital were noted as either incomplete or non-existent. Exh. HH, § G. As a result, Dr. Kastner opined that the medical records at the Center were "somewhat disorganized," Id. and the "most significant deficiency was the organization of the record." 48/145.
628 *628 Inadequate medical record documentation does not mandate finding that medical care is constitutionally deficient. Paperwork exists to aid in patient care, not to satisfy some independent constitutional duty. Dr. Kastner concluded that these were "[w]eaknesses at the Center I did not feel were significant and did not adversely affect the quality of [care]." 48/148; see also Exh. HH, § G. Furthermore, he opined that "[i]n general, these [summary

notes] are thorough and effective at maintaining continuity of care," and "[o]verall, the medical records of clients at the Ebensburg Center are effectively used by the medical staff to provide care to the residents." Exh. HH, § G.
Dr. Kastner also noted that residents have one comprehensive record that addresses not only medical care, but also habilitative programming, social services and other areas of concern. 48/142. This comprehensiveness, he noted, is both "its strength and weakness" because some parts are emphasized at the expense of other portions. 48/142-43. He also acknowledged that, as a physician, he feels that the record should emphasize medical issues, although the Center "made a very clear decision to deemphasize the medical nature of the records." 48/143.
I find the Center's medical record documentation, though sometimes flawed or inadequate, meets the acceptable professional practice standard. It is effective at maintaining continuity of care, which is how Dr. Sulkes defined proactive medicine. In addition, Dr. Kastner's objective testimony[51] shed light on what constitutes minimally accepted standards across the medical profession because it noted that the physician input into the medical record could be better, "just like in anyplace." 48/143. Despite guidelines which require extensive documentation by physicians, accepted professional practice tolerates documentation which does not necessarily meet those goals.
7. GENERAL NURSING CARE
The United States contends that the Center provides inadequate nursing care in the following respects: (1) acute and chronic nursing care does not meet professional standards; (2) nursing responses to injuries have been delayed; (3) nursing care plans are inadequate; (4) nurse recordkeeping is inadequate; (5) nurses need additional training; and, (6) the role of the Ebensburg Director of Nursing is too limited. 84/XII-20-29.
The United States' expert in nursing care, Ms. McGowan, asserted that acute and chronic nursing care did not meet professionally accepted standards. 35/168. In particular, she asserted that nursing care failed to identify or assess significant health care problems and formulate adequate treatment interventions for residents. 35/170-01. She claimed that, as a result, the health of some residents has deteriorated and necessitated hospitalization at times. 35/168-69.
Ms. McGowan opined that nursing care assessments, which should be initiated when a resident's health is compromised or at risk, are inadequate because they fail to include such basic nursing measures as auscultation of breath sounds, measurement of abdominal girth, testing for occult (hidden) blood in vomitus or stool, or a resident's vital signs. The failure of the nursing staff to initiate tests of vomitus or stool for occult blood does not show deficiencies in nursing care. Carole Sponsky, the Center's Director of Nursing, explained that tests for occult blood are performed by the laboratory pursuant to the order of the physician. Exh. 638/22. This testing is diagnostic, and may be executed by a registered nurse only as part of a medical regimen prescribed by a licensed physician. See 63 P.S. § 212. There was no evidence that nursing staff failed to carry out testing as directed.
The remainder of the United States' evidence about acute and chronic nursing care concerned the treatment of seven residents who died between 1990 and 1993, and testimony from a Center nurse acknowledging that assessments need to be more "in-depth." Exh. 638A/85. It is undisputed that nursing assessments can be 629 improved at the Center. *629 The relevant question, as in other areas, is whether the assessments meet minimum constitutional standards.
I credit the testimony of Marcia Stiles. Ms. Stiles, an employee of the Center for at least fourteen years as a registered nurse supervisor (RNS), conceded that she would like to see more "in-depth" assessments and documentation of such assessments. Nonetheless, she opined that nursing care was adequate. Exh. 638A/85-86. Carole Sponsky, the Director of Nursing, echoed this sentiment. Exh. 636/41. In contrast, Ms. McGowan could find nothing at the Center that was adequate. I am skeptical of such a blanket condemnation. The Center has 472 residents who receive nursing care, and the occurrence of seven deaths over a three-year period, while regrettable, does not demonstrate in and of itself constitutionally inadequate acute and chronic nursing care.

The United States also alleges that the Center's nursing care is inadequate because there have been delayed nursing responses to injuries; one resident, James W., was seriously injured by a resident who was hitting and kicking him. An RSA discovered the incident at approximately 8:30 a.m. and failed to report the same to the nurse until approximately 11:00 a.m., when James W. complained of chest pain. The nurse assessed James W. and observed bruising of the left lower rib cage and noted a "clicking" sound upon palpation. The nurse notified Dr. Shertz at 11:15 a.m., he ordered James W. sent to Mercy Hospital for evaluation, and an ambulance transported James W. to Mercy Hospital at 12:30 p.m. A CT scan at the hospital revealed a ruptured spleen, and a pneumothorax. A splenectomy had to be performed and a chest tube inserted. Exh. 501(dd)
The United States contends that such delayed response was unacceptable in light of professional standards. The initial delay in reporting the incident, however, was attributable to action by the RSA, and not the nursing staff. Exh. 501(dd). Therefore, nursing care cannot be found constitutionally remiss on this basis. Nor do I find the lapse of time between the report to the nurse and the nurse's report to Dr. Shertz 0907 fifteen minutes 0907 a substantial deviation from accepted nursing practice which requires the nurse to assess the resident and then advise the medical practitioner of her findings. Further, no evidence showed that James W. suffered any additional harm due to the delay in treatment.
The United States also points to alleged delayed responses in nine other recent incidents as further support for its contention that nursing care is inadequate. Exh. 790. Review of that exhibit, however, again shows that the delay in seven of the nine instances was attributable to the RSA staff, not the nursing staff. Id. Again, this cannot be the basis for finding nursing care constitutionally deficient. The evidence is insufficient to establish that the nursing care is inadequate because of delayed responses to injuries.
Documentation by the nurses at the Center is also constitutionally inadequate, according to the United States. The United States asserts that Ms. Stiles admitted the inadequacy of the recordkeeping. The United States also points to Ms. McGowan's testimony that in reviewing the records of residents, she "often had to search in as many as four or five different places to track one piece of information." 35/172. Ms. McGowan stated that the "[c]harting system is faulty. The nurses are not using accepted patterns." 35/180.
Ms. McGowan's testimony, however, failed to shed any light on what constitutes accepted minimum professional "patterns" for nursing care documentation. Because nursing documentation is used by both the nursing staff and the physicians, it is logical that nursing documentation would be consistent with the physicians' documentation and include entries on both an acute and chronic level. See 34/2-3 (two levels of medical documentation for medical practitioners) and discussion of physician proactive care, supra.
In this case, the evidence establishes that nurses document on two levels as well. Nursing documentation regarding acute care is set forth on the interdisciplinary progress notes addressing day-to-day matters. Exh. 630 637/13-14, 27; Exh. 622/49-54. Nursing documentation regarding chronic care is set *630 forth on the 90-day summaries. Exh. 637/27; Exh. 622/55. In addition to these two types of documentation, there is a daily log on each unit and a "Cardex" for each resident that relates the treatment ordered for that resident by the various disciplines. Exh. 636/72. There are also "quarterly physical assessments, nursing physical exams, ... and annual in-depth assessments ..." Exh. 638A/86.
While it may have been onerous for Ms. McGowan to search through the file to find such information, she does not work at the Center and therefore lacks the familiarity that would come from using the chart on a regular basis. Her personal viewpoint does not warrant a finding of constitutional inadequacy. Neither does the United States' assertion that Marcia Stiles "agrees that Ebensburg nurses need to better document their nursing assessments." 84/XII-27. Ms. Stiles stated that she would "like to see more in-depth assessment. I'd like to see documentation showing that assessment." Exh. 638A/85-6. She then elaborated that there is "a lot I'd like to see." Id. "I'm not criticizing what we're doing now, it's just that it can always be better." Exh. 638A/86. I find Ms. Stiles' testimony insightful. She finds the documentation acceptable, but she acknowledges that it can be improved. Undoubtedly it can. But the fact that there is a better way to accomplish a task is not tantamount to a constitutional violation.
Next, the United States submits that the nursing care is inadequate because nursing care plans do not meet accepted standards. Instead, the nursing care plans consist of nursing diagnoses which are not supported by

data, and objectives which are not capable of being measured. 35/190-91. In addition, the United States notes that the nursing care plans are not individualized to identify, and provide for, each resident's needs, but instead consist of general instructions to direct care staff. See Exh. 638/exh. 30. As an example of a nursing care plan which fails to meet accepted professional standards, the United States points to the nursing care plan for Tim P., a resident confined to a cart at the Keystone unit.
The Center's nursing care plans are general, see Exh. 638/exh. 30, but the nursing staff modifies the plan to suit the residents' individual needs. Exh. 637/65. In fact, the nursing care plan for Tim P., which has been applied since March 1987, has been individualized, specifically references his cart, and addresses the potential for skin breakdown. Exh. 973. This nursing care plan for skin breakdown has been in effect pursuant to consistent reviews for its continued application. Id. The mere fact that it has been on Tim P.'s chart since March 1987, is of no significance. Tim P.'s inability to bear weight (i.e., he has been confined to a cart) has been a constant. He therefore remains at risk for skin breakdown, and it is logical that the nurses continue to monitor him for signs of this condition.
The Center's standardized nursing care plans for problems frequently encountered by its residents, standing alone, would not comport with the accepted professional practice, which requires individualized plans. However, because these standardized plans are modified, amended and tailored for each of the Center's residents, I find that the plans fulfill the requirements of accepted professional practice and cannot be deemed constitutionally deficient.
The United States also asserts that the Center is deficient because the nurses lack sufficient training. 35/210. The United States cites Ms. Sponsky's deposition testimony that "training is important for nurses" (Exh. 637/88-89), and faults the Center for not requiring nurses to have any educational background or experience in working with the developmentally disabled at the time of hire, nor requiring additional training once hired. Exh. 637/82, 89. The Center's collective bargaining agreement with its nurses provides for the allotment of a certain sum of money for training. Exh. 624/29. The United States suggests that the Center's assistant director, Mr. O'Brien, acknowledged that "most nurses do not use that." Exh. 624/29.
The United States' position that the nursing care is deficient because of inadequate training constitutes nothing 631 more than an assertion that mandatory continuing education *631 for the nursing staff would be better than the
current practice, payment for optional training outside the Center. Whether another set of rules regarding training and/or mandatory continuing education for nurses would be better is not the issue that is before me. The Center's practice regarding additional training for its nurses is not a substantial departure from accepted professional practice. Pennsylvania's Professional Nursing Law, 63 P.S. §§ 211, et seq., does not require the acquisition of a specified number of continuing education hours per year for license renewal. See also Exh. 624/29-30. Moreover, the record demonstrates that the Center does provide additional training, both optional and otherwise, for its nurses. As noted previously, the Center's collective bargaining agreement with its nursing staff includes an allotment for each nurse to obtain training outside of the Center, and some of the nurses take advantage of this opportunity. Exh. 624/29-30. In addition, training is offered at the Center on both a formal and informal basis throughout the year. Exh. 638/69. While the United States contends that Mr. O'Brien acknowledged that most nurses do not use the money for outservice training, I note that his deposition testimony did not specifically refer to the Center's nursing staff, but instead was a statement applicable to nurses throughout the Commonwealth.
Finally, the United States contends that the nursing care is inadequate because the role of the Center's Director of Nursing is too limited. It submits testimony from the Center's Director of Nursing and another nurse at the Center as support for this contention. See 84/XII-29-30. The United States offered no evidence to establish what constitutes an acceptable standard for a Director of Nursing position. I cannot create out of whole cloth what the acceptable standard should be.
D. Adequate Training And Freedom From Undue Restraint
The next category of "liberty interests" secured by the Constitution that the United States claims has been violated at the Center concerns the right to adequate training and freedom from undue restraints. According to the United States, the administrators of state public institutions must provide training programs and other services

that are "based upon appropriate assessments, developed to meet residents' individualized needs, consistently implemented, and designed to teach residents those skills necessary to live more normally and to avoid developing or exhibiting dangerous and other anti-social behaviors." 87/13.
The United States argues that the Center's training and behavior management practices are deficient in (1) assessment; (2) program development; (3) program implementation; and (4) program review. 87/15. The United States claims that the Center's living areas are barren and lack meaningful activity; the Center generally fails to develop and implement training programs, and those programs that do exist are inadequate (they are not appropriately revised, skills training programs lack psychology input, occupational therapy services are inadequate, and the speech and hearing staff at the Center fail to meet the residents' needs); the Center's behavior management services are deficient and do not comport with accepted professional standards; the Center has insufficient psychologists to provide services that meet accepted standards; the behavior programs are not individualized, effective, properly implemented, properly reviewed or properly revised. See 83/VI-1 through VII-60.
This failure to provide adequate training and behavior programs, the United States claims, has resulted in residents suffering "both serious injury and undue restraint" (87/13-14) in the following respects: 1) the Center's failure to implement proper training programs has resulted in the deterioration of residents' self-care skills and/or has failed to provide residents with the ability to enhance their level of functioning; 2) the Center has failed to implement behavior training programs and/or therapeutic living environments to address maladaptive behaviors, and residents are harming themselves and others; and 3) instead of developing training programs to address 632 maladaptive behaviors, *632 the Center relies upon physical and chemical restraints to control the residents.[52]
A number of these issues are addressed elsewhere in this opinion, in part or in full (e.g., the Center's duty with respect to safety; the Center's duty with respect to training; the issue of chemical restraints), and those discussions will not be reiterated here. For the reasons explained in the discussion above concerning physical therapy services, I reject the United States' contention that the Center is under a constitutional duty to provide services that enhance the residents' level of functioning. See Society for Good Will, 737 F.2d at 1250 ("We conclude that [the deprivation of a liberty interest] exists when institution officials fail to exercise professional judgment in devising programs that seek to allow patients to live as humanely and decently as when they entered the school, i.e., when there is no individually oriented, professionally devised program to help [the] residents maintain the fundamental self-care skills with which they entered the Center." (citing Youngberg, 457 U.S. at 327, 102 S.Ct. at 2464)) (emphasis added).
As with all other areas in this case, the parties on both sides presented expert testimony concerning training programs, the treatment of maladaptive behaviors in the mentally retarded population, and the provision of behavior management programs. The United States' three psychology experts (Dr. Stark, Dr. Russo, and Dr. Amado) and the Center's psychology expert (Dr. Reid) all agreed that "the more programming with meaningful activities that go on, generally the fewer accidents and injuries that occur." 51/35. See 43/53 ("[I]f you fail to provide adequate training programs to anybody, any human being, what happens after a while is that inactivity, boredom ... withdrawal, self stimulation, frustration, anger begins to set in. That leads to ... self injurious behavior."). Beyond this basic starting point, however, the parties' positions widely diverged.
At trial, Dr. Stark testified on behalf of the United States about the progress that has been made in the provision of services to mentally retarded individuals (43/67-71), asserting that care providers have "gotten away from custodial care." 67/71.
Custodial care, meaning where you feed them, you clothe them, you just take care of their very basic needs. We're saying that that's not enough. We've gone to teaching, adaptive functioning skills. People have a right to habilitation, they have a right to training.
67/71-72. Dr. Stark's testimony, however, while certainly well-intended and a fine demonstration of the care to which many professionals aspire, provided little assistance to the Court in determining the applicable constitutional standard with respect to minimally adequate training and behavior management programs. See 67/85 ("My second concern is that the environment at Ebensburg is one which could be described as largely 633 custodial as opposed to a teaching environment."); *633 67/223 ("And it simply is very hard to work in this

environment to accomplish the kinds of things that can be accomplished. There's too many people, there's no individualization, and there's no hope that 0907 the attitude is certainly not an habilitative attitude or it's an environment, custodial care."); 67/224 ("The point that I'm making here and the bottom line is that an awful lot can be done with that kind of money if you re-think and re-allocate how things are done, which are 0907 we're losing ground here. People are getting hurt at an accelerated pace. And they're going to continue to get hurt because the aggression I feel is increasing; because what's happened is that people feel there's nothing that can be done and there's nowhere to go, and there's a loss of hope.... [T]hese individuals have had their body taken, but they still have a heart and a soul and a mind. And we need to attend to that.").[53]
According to Dr. Stark, he reviewed a large number of the Center's "Incidence Occurrence Reports" (a form at the Center which lists the name of a resident, categorizes the type of injury that has occurred, contains a narrative description, any medical interventions that took place, and what recommendations were made (43/101-02)), and determined that one of the reasons for what he characterized as "a lot of aggressive behavior, self injurious behavior" (43/105) at the Center was that "there's no meaningful activity going on. There's no training, there's no habilitation. And that causes that ... cycle of harm." 43/106. See also 43/120 ("Lots of times people, when you just get them doing something meaningful, enjoyable, and you could get rid of a lot of these behaviors."); 43/125 ("Aggression breeds aggression. People are both victimized and they're victimizers. It's almost as if there is a climate of aggression at this facility, and it's disturbing to see that it continues to be sort of a way of life there. It's like it's an accepted thing or it's like this is what mental retardation is supposed to be like, and it's not."); 43/163 ("This [type of activity] is what we did twenty years ago. This kind of thing is like walking back in time for me, into the early seventies. This kind of program, it's not programming; it's simply trying to keep somebody busy and putting something in front of them.").
Dr. Stark acknowledged on cross-examination that he could not point to any objective standard in support of his conclusion that too many injuries were occurring at the Center, and that this was simply his personal, professional opinion. 41/27.[54] In addition, much of Dr. Stark's testimony appeared to be offered for its shock value, or was conclusory and failed to provide an informative analysis of the situation.[55] Because of this, I accord little evidentiary weight to his testimony.
634 *634 At trial, the Commonwealth presented compelling testimony by an expert in psychiatry, Dr. Hauser, about the complexities and the competing concerns in providing treatment for mentally retarded individuals:
[A]fter a process of the primary psychiatrist and even a second opinion, there might be controversy about management. There might be controversy because of the natural tendency for polarization. You'll have the behavioral psychologist saying, "We should tackle this behaviorally"; and you have the medical doctors saying, "We should treat this with medication more aggressively"; and then you might have an advocate for the client saying, "Don't use medication, you're just trying to sedate them"; and then you might have a guardian saying, "What are the whole bunch of you doing," ... 0907 so people are stuck, people are in conflict. There are competing principles, and you might call in someone like me to try to help everybody achieve a consensus and focus back on the client and try to think of a treatment plan.
* * * * * *
There is definitely a tension between the two modalities of treatment [behavioral treatment and mental illness treatment], and that tension can reach the point of an adversarial process; and it has happened in the field of care for people with retardation over decades that that polarization has switched back and forth, and it has eventually come to rest now in the effort to have a combined approach or a comprehensive treatment plan of which behavioral modalities are one component and medication modalities are another; and it takes some effort and teamwork to get people to coordinate the care from the two different disciplines.
But there is inevitable tension because some people will believe that further behavioral effort will work and allow to you [sic] avoid medication, but those same people are at risk for avoiding medication when it's appropriate.

50/56, 81-82.
The evidence at trial revealed that within this "polarized field" of care for mentally retarded individuals (where opinions differ widely concerning the appropriate training and treatment to provide to any given individual), the Center has an interdisciplinary system in place which allows it to exercise professional judgment and provide 635 training and behavioral management services within the sphere of acceptable professional practice. *635 For each concern raised by the United States' experts, the Commonwealth responded with credible expert testimony which demonstrated that professional judgment had, in fact, been exercised, and that the care provided did not substantially depart from acceptable professional practice.
Dr. Reid, an expert in applied behavior analysis, behavioral disorders, skill acquisition training and psychology services to the mentally retarded, testified at trial on behalf of the Commonwealth defendants. Dr. Reid, who in the past has been retained by other facilities involved in Department of Justice investigations and has found certain institutions to be inadequate (51/42), provided a broad overview of the psychological services provided at Ebensburg and compared them to the services provided in other institutional facilities and community-type agencies. 51/11. Dr. Reid explained that he made two separate visits to the Center to "evaluate the environment and the degree to which people living at [the Center] were participating in meaningful therapeutic activities" and to collect data "regarding the degree to which psychological programs for people with severe behavioral problems" were implemented by the Center's staff. 51/8.
With respect to the United States' contention that the Center is barren and lacks meaningful activities, Dr. Reid testified that he "found the treatment environment overall, based on the data we collected, comparing it to other institutional facilities and community-type agencies, that the degree to which people living at Ebensburg Center are participating in what we call active treatment or meaningful purposeful activities, while there's certainly room for improvement, it's representative of about the average in the field." 51/11.[56]
As Dr. Reid explained, the Center is organized along the lines of a "unit system":
A unit system is ... [a] method of operation that really became popular in the 1970's, and the purpose there was to get away from the clearly delineated 0907 what became isolated 0907 roles of different professionals. Prior to the unit system there were a whole lot of problems in service settings in which the psychologist would come in and do one thing, the occupational therapist would come in and do one thing, and no one had any idea of what the other person was doing; and there was no person really responsible for coordinating all those services for one particular client.
The unit system generally was established to try to get a better coordination of all those services.
* * * * * *
[I]n our field not many things are perfect; and the unit system certainly isn't perfect, but I think the biggest advantage of the unit system is that it does allow for better coordination of services across disciplines.
51/17-18.
The Center has three levels of behavior programs, which are categorized according to the restrictiveness of the intervention. Not everyone at the Center has a serious behavior disorder or needs a behavior program plan. 51/16. A nonrestrictive program is designated as a "Level One." A "Level Two" program is more restrictive, and a "Level Three" program calls for intervention of physical restraints if a resident's maladaptive behavior poses the risk of harm to himself. 51/10; 37/26; Exh. 592.
The Level Two and Level Three behavior programs follow standard forms, Exh. 592, and are tailored to the resident. For each resident, the program identifies the undesirable behavior, the positive reinforcers for that resident, and the situations which help predict the occurrence of that behavior. The program also contains 636 training of adaptive *636 behaviors (rather than merely attempting to eliminate undesirable behaviors (51/21)), as

well as "DROs" (differential reinforcement of other behavior),[57] which the psychology staff create and implement. 51/21. Since behaviors such as biting, self-injurious conduct, aggression, kicking, and hitting are not limited to a single resident, it is to be expected that some behavior plans will be similar. See Exh. 856.
Dr. Reid specifically reviewed all of the plans for residents with the most severe behavior problems, and testified that "all of those were individualized." 51/21 ("There were individual differences in behavior definitions listed in the programs. There were individual differences in the reinforcers to be used or the consequences for desirable behavior. There were differences in the situations likely to evoke behavior problems. There are a lot of similarities across the programs, too, but there were differences.").[58] Dr. Reid also concluded that psychologists are involved in the development of "positive habilitative plans." 51/24-25.
The behavior plans are implemented throughout a resident's day 0907 during leisure time as well as during active treatment. "Active treatment" is a means of providing stimulation to a resident to promote the acquisition or maintenance of skills and to reduce the occurrence of maladaptive behaviors. 51/44-45.[59] Most professionals now agree that such treatment should attempt to incorporate the use of "age appropriate" materials (for example, avoiding the use of a child's toy in a training program for an adult). This cannot always be achieved, however, because some residents have mental retardation of a severe and profound nature, and some age appropriate materials do not provide safety features that are found in age inappropriate materials, such as those designed for young children. 51/35-36.[60] Most workshops, day activity centers, group homes and schools for mentally retarded individuals still utilize age inappropriate materials (51/36), and I do not find the Center's continued use of such materials a substantial departure from acceptable professional practice.
I further note that training is provided by the Center at the Gary Bain Center, a sheltered workshop that serves as a vocational program. Approximately one hundred individuals attend the workshop (some nonresidents participate in the program, but the vast majority are residents of the Center), Mondays through Fridays, from approximately 9:00 a.m. to 3:00 p.m. 37/17; 51/173. Dr. Russo, testifying on behalf of the United States, found 637 the Gary Bain Center to be a *637 positive aspect of the Center, and stated that it "is a program that is very representative of supported work programs for the mentally retarded." 37/120. See also 51/38 (the Center provides a variety of paid employment training opportunities for the residents).
The Center's primary data collection system with respect to behavior management, which is "relatively standard in the field" (51/28), involves the staff recording "on a twenty-four hour basis the frequency of target behaviors, behaviors that have been defined through the program plan." Id. For individual, special cases, the Center may utilize other data collection systems as well, "which is a pretty standard process, too; to have one overlying recording process, and then in individual cases bring in others." 51/28-29. The intensity or duration of behaviors are not documented as part of the Center's standard practice, but most schools, group homes and institutions do not maintain such data. 51/98-99. The data collection at the Center is adequate to provide acceptable treatment. 51/152.
With respect to the review approval and monitoring process for treatment plans (which Dr. Reid characterized as "excellent"), the Center is properly structured, with its "key people" reviewing programs beforehand, the behavior management committee meeting regularly, and the senior staff at the Center reviewing accidents and injuries. 51/36, 120-21; Exh. 93. Credible evidence was presented at trial that the staff implements the behavior programs effectively. 51/112.
In deciding whether medication should be utilized as part of a resident's program, "the model of service delivery at Ebensburg, as well as most agencies in the country, is a team process" (51/30), and the psychologists are involved in making the decision. As Dr. Reid explained:
[A] psychologist certainly should be involved in the process through which it is decided whether medication is or is not going to be used in regard to behavior problems. It's not the psychologist's responsibility to prescribe it, or make a final determination; that should be the psychiatrist. But we certainly want a lot of individuals to have comments and offer recommendations.
Id.

In light of all of the foregoing, I find that the Center's interdisciplinary approach to providing training and behavior management services does not substantially depart from acceptable professional standards. In reaching this conclusion, I credit the expert testimony of Dr. Reid, who compared the services at Ebensburg with those provided at other places of care for mentally retarded individuals. 51/9-10. The "weaknesses" at the Center are an unfortunate part of the difficult task that confronts care providers in this field, both institutions and other care environments. 51/162-63. This is not to say, however, that because things are "bad" elsewhere, the problems at the Center are acceptable. As Dr. Reid explained:

Some of the weaknesses that I found at Ebensburg are characteristic ... of weaknesses in lots of different types of programs serving groups of people with severe disabilities, be it institutions, schools, group homes or whatever.

Now, I'm not saying, getting back to your other question, if you find a whole bunch of agencies that are providing, in my opinion, poor services, does then finding one agency providing similar services make them adequate; no, I wouldn't make that conclusion. What I'm saying is, you know, our technology or lack thereof, if you will, of providing services to people with severe disabilities 0907 and keep in mind I don't mean to be lecturing 0907 but people at Ebensburg Center and the other agencies I'm talking about, they are a very small portion of the people with mental retardation. They have the most serious type of mental retardation and other types of problems.

Our ability to provide an optimal therapeutic environment for them, frankly, is not real good. And I

can go into what's considered the best school program that I know of, and I can find, a lot of time,

a lot of weaknesses; so that's kind of how I'm evaluating it. If the weaknesses I found on [sic] the

638

Ebensburg Center were much more serious or much more prevalent than *638 what I typically see

in applied settings, then I would be very seriously concerned; and I have found those in agencies,

but I did not find those at Ebensburg.

* * * * * *

What I'm saying is it's within the realm of standard practice, and it's not just 0907 keep in mind the day treatment programs at Ebensburg were compared to school programs serving people with severe disabilities. The living units were compared to other living units in other institutions. It's not just an institutional area.

What I'm saying, if you take all the observations in the classroom 0907 and I do qualify it, all the classrooms, thirty or forty something classrooms were in North and South Carolina, more restrictive part of the country.... The institutions were in a lot of different states. But Ebensburg services were at a par with what the average of those services in all those other sites were.

51/161-62.

The injuries that occur at the Center, which are sometimes quite serious and obviously not desirable, are "not unusual by any means" in similar care settings. 51/173.[61] The staff at the Center is "concerned and involved" (50/126-27), and expects the residents "to be able to benefit from the staffs' interaction and from the treatment modalities." 50/97.

The United States claims that the Center does not utilize a "functional analysis" in its treatment of the residents' maladaptive behaviors, and that the failure to utilize functional analysis in conducting a behavioral suppression program constitutes malpractice.[62] Functional analysis endeavors to ascertain the function of a certain behavior for a particular individual 0907 a "way in which causation is potentially inferred for a behavior problem, and it's a way in which one attributes a possible treatment to the behavior." 37/43. See also 51/26; Exh. 30/8. Ideally, if it can be ascertained why a resident resorts to maladaptive behaviors, behavior management plans can be developed which might be more effective in decreasing the incidence of maladaptive behavior and replacing it with alternative acceptable adaptive behavior. Exh. 30/9.[63]

Functional analysis does not always identify the cause of the behavior. Experts in the field do not agree on the degree to which it actually results in better treatment, and whether a formal functional analysis is necessary in order to exercise professional judgment in providing treatment. 51/26-27, 103. The Center began to perform formal written functional analyses on some of its residents beginning in March of 1993, and less formal, broadly defined "functional analyses" (as utilized in Pennsylvania's 1988 statewide policy on this issue) have been performed at the Center for "quite some time." 51/100-02; Exhs. 963, 964.
The United States complains that the Center does not have psychologists on duty on weekends and nights, and 639 that the Center does not have enough qualified psychologists. *639 The Commonwealth's expert responded:
Well, I can assume that [having psychologists on duty on weekends and nights] could improve services; it would be extremely rare. I know of no residential agency in a community setting or state institution that has that. I mean what's generally expected is that there is some administrative person or senior person on administrative watch or on call that can be contacted on the weekends, twenty-four hours a day, if a psychologist is needed. Typically, it would be that person's responsibility to pull in the psychologist.
* * * * * *
I do not find a problem with the number of psychological staff [the Center has]. I based my conclusion on the finding that I thought their services are within the realm of acceptable practice. So then I assumed if their services fall within that realm, that they have sufficient staff to do that. I also assumed they could probably do more if they had more staff.
51/19-20. See also 51/129, 135. I find that the Center meets the constitutional minimum in this regard.[64]
With respect to the United States' contention that the Center does not properly address the problem behavior of biting, the Commonwealth responded with credible evidence that "many people manifest the behavior of biting, and it is a challenging problem to deal with in a facility like Ebensburg." 50/125. See also 51/14. Regardless of the treatment employed or the vigilance of the staff, the behavior cannot be eliminated in some individuals. 50/125-26; 51/14. Also, when medication and restraints are lowered, there is a corresponding rise in biting incidents. 50/126 ("If you have a certain level of biting and then you alter the level of one of the treatments, then it's inevitable if they're related, that the biting will go up or down depending on the impact on that particular person; and that you should assess that, and then weighing the risks and benefits of either leaving the medication low and having the behavior high or ... having the medication high and then have the behavior go lower again."). The record further reveals that, to the extent that "biting" has been identified as a target behavior in any given resident, the Center has an adequate treatment plan in place, including documentation, review of injuries, and follow-up action. 51/146-47.
The United States challenged the Center's behavior programs by examining the care of Ann B., a resident who spends a great deal of time in a restraint chair to prevent injuries caused by self-injury. In response, Dr. Reid explained:
[Ann B.] has a lot of restraint, and that is not good, no doubt about that, and I was alarmed when I saw that. So I checked into it further. She's obviously a difficult case, very difficult harmful selfinjurious behavior; and what I found when I looked into it was that Ebensburg staff had had considerable difficulty in finding ways to reduce her self-injury. They are currently primarily trying to protect her.
And my comment was: "Well, you need to do more." I mean we just can't keep this 0907 this is one case, mind you; and in response to that what they said, ... "We're not sure what to do. We have ... sought external consultation," from the Kennedy Institute, I believe, and ... they were doing the kind of things that should be done when you have a very difficult case, calling in external consults.
Okay. From what I could tell, that external consultation, nor Ebensburg's efforts at that point, had been successful in figuring out how to treat this gal's real severe self-injury, so they were

protecting her. So it's a case that I'm not comfortable with. I work with cases like that too, where I

don't know what to do, I haven't been able to find anybody else who does. The problem is they

have gone through the process of seeking external professional help; good. If you're asking am I

640

satisfied *640 with this case, no, I'm not. I hope Ebensburg is not and they continue to find ways to

get her out of restraint.

51/116-17. Professional judgment has been exercised by the Center in attempting to treat the residents' severe behavior problems.[65]

Contrary to the United States' claim that the Center relies excessively upon physical and chemical restraints to control the residents, I find that the record contains ample credible evidence that the Center's use of restraints does not substantially depart from acceptable professional practice. See, e.g., 50/47 (Center's use of medication came after trying alternatives); 51/43 (Center's use of restraint is well below levels of restraint that occurs in settings serving similar populations); 51/70-71 (restraint used for safety and habilitative purposes).

E. Reasonable Safety And Protection From Harm

The United States claims that defendants have violated the residents' due process right to adequate safety by failing to protect them from harm in numerous ways. As explained above, the Supreme Court in Youngberg recognized safety as an "unquestioned duty" that the state must provide to institutionalized residents. 457 U.S. at 324, 102 S.Ct. at 2462. The United States argues that the number of incidents and injuries at the Center is increasing, and that serious injuries are pervasive, chronic and repeated. According to the United States, these injuries primarily have been caused by inadequate staff supervision, unsafe staff actions (particularly with respect to feeding and lifting), the failure of staff to intervene to stop dangerous behavior, and the general failure of staff to protect residents from repeated and preventable harm.
The United States contends that the total number of incidents and injuries sustained by residents at the Center has increased over the past four years. 43/88. It notes that the total number of reported incidents from February 1991 until February 1992 was 1,707. The number of reported incidents increased the following year to 2,433 (43/97), a 43% increase.
The United States also complains that a large proportion of the incidents are due to unknown causes or are behavior related. 43/103. Dr. Stark opined that such injuries are "easily preventable if the environment is structured properly." 43/103-04. He also claimed that the mentally retarded are not necessarily more injury-prone than the general population. 43/28. As an example, he noted that his son, who is "as severe as anybody" at the Center, had only one incident the whole year. 43/28.
Dr. Stark characterized the incidents occurring at the Center as widespread. He found that 77% of all of the residents had one incident during 1991, and that in 1992, 86% of the residents were involved in at least one incident. 43/98-99. He further noted that 131 residents were involved in an incident every other month during a fifty-month period from January 1989 to February 1993. Id., Exh. 777. Dr. Stark's testimony specifically referenced a number of incidents that resulted in relatively serious injuries. According to Dr. Stark, the harm the residents sustain is visible "as you look at these individuals and talk to them, you can see that there is a lot of withdrawal, a lot of anger, a lot of scarring 0907 both physical and emotional, mental scarring." 43/149.
Dr. Stark also claimed that the Center underreported incidents (43/19), and that the actual number of incidents is higher than the number of reports completed.[66] In addition, Dr. Stark faults the Center for allegedly minimizing the seriousness of the injuries, arguing that the Center rates most incidents as minor by designating them as an 641 "01." Dr. Stark contends that, in reality, many of the incidents such as biting, pica and choking, *641 are more serious and should be rated accordingly. 43/32, 34-35.
According to the directives of the Pennsylvania OMR, whenever a resident has been involved in a situation that could have resulted in an injury to a resident, an incident report must be completed. Mr. Bellomo explained that the Center fills out a report for the resident who did or could have sustained an injury, as well as a separate report for any resident who acted as an aggressor. 63/15. Consequently, situations involving two residents result in at

least two incident reports; situations involving three residents result in at least three reports. 41/49. An incident report must be completed regardless of physical manifestation of an injury. 64/73.
Mr. O'Brien explained that the incident reports categorize the seriousness of an injury, and that the categories are determined by the Pennsylvania OMR. 64/81. There are three categories: 01, 02 and 03. An 01 incident is a minor injury which need not be reported to the OMR. If an incident requires a physician's intervention, it is categorized as an 02 injury. Such incidents are reportable to the OMR and include injuries such as fractures, sutures, unacceptable absences where non-facility persons participate in the search, clinically significant medication administration errors, reportable communicable infectious diseases, and deaths not categorized as an 03 injury. An 03 incident involves serious injuries that must be communicated to the OMR within twelve hours of its occurrence, including suspicious situations requiring some type of follow-up by an outside agency. Exh. 73. Such incidents include fires, abuse with serious physical injury, sexual abuse, negligence, accidental deaths, sudden/unexplained deaths without known causes, and unusual injuries of an unknown origin. 41/31; 63/105; Exh. 73.
The record reveals that the standards for classifying an occurrence are changed occasionally by the OMR. 64/81. For example, in July of 1992, injuries requiring the utilization of ethistrips or butterfly bandages could no longer be classified as an 01 incident; instead, such injuries are now reportable as an 02 incident. 62/82. Despite this change to include more injuries as 02 incidents as opposed to 01, the number of occurrences of injuries of a more serious nature at the Center actually has remained stable. See 64/83 (from 1991 to 1992, 153 02 injuries (which did not include ethistrip or butterfly treatments); from 1992 to 1993, 155 02 injuries (which did include ethistrip or butterfly treatments)).
The Center's incident reports not only provide a classification regarding the seriousness of the event, but also set forth information regarding the cause and effect of the incident, and the body part affected. Exh. 73. From February 10, 1992, to February 10, 1993, the cause for 40.8% of the occurrences was unknown, the cause for 34% was attributable to behavior, and the cause of 25.2% was due to other factors. Exh. FF. In an effort to better document incidents, the Center instituted daily "risk management" meetings in March of 1993. 63/77. These meetings address all incident reports from the previous 24 hours, and enable management to obtain any missing information from the reports much more quickly and efficiently than before. As a result, the percentage of occurrences attributable to an unknown cause has decreased to 28.1% since implementation of the meetings. 64/74-77; Exh. GG.
The Center has repeatedly attempted to improve, and has improved, its incident reporting system. As of March 1993, the night nurse supervisor must review the nurses' log in each living unit for any occurrence which happened that day requiring an incident report. At the risk management meeting the following day, the review of the nurses' log is presented. The absence of an incident report for any occurrence noted in this review log prompts an immediate request for completion of the necessary report. 64/123-24. In this sense, the Center has developed a cross-checking system to monitor the incident reporting procedure.
Dr. Kastner responded to many of the United States' criticisms about the number of incidents occurring at the Center. He disagreed with Dr. Stark's opinion that the mentally retarded population does not have to be more injury prone than the general population. 48/147. Dr. Kastner explained that the frequency of epilepsy is higher in 642 the mentally *642 retarded population, and that factor alone places those individuals at risk of injuries. In addition, psychiatric and behavioral concerns further compound the risk of injuries. Given the extreme disabilities of the Center's population, "it's impossible to imagine that we could prevent all injuries." 48/148. See also 51/125 (number of injuries for Center's residents with severe behavior problems not unusual).
I conclude that the Center has not violated the residents' constitutional right to reasonably safe conditions. The increasing number of reported incidents is of minimal significance, because the evidence shows that the Center instituted daily risk management meetings in an effort to improve incident reporting. 66/56-57. It is to be expected, then, that the number of incidents reported would increase. See 63/83. It is also to be expected that as the use of restraints and psychiatric medications decreases, the number of incidents would increase. See Youngberg, 457 U.S. at 320, 102 S.Ct. at 2460 ("an institution cannot protect residents from all danger of violence if it is to permit them to have freedom of movement.").[67]

Nor do I find the actual number of incident reports troubling. First, a fair number of the incident reports involve relatively minor occurrences, such as bruises, brush burns, scratches, and red marks. Exh. 85. Additionally, as noted above, one incident often generates more than one report. See Exh. 117 (incident reports completed on aggressor). I find Dr. Kastner's opinion that it is "almost impossible to accept that" the mentally retarded population is not more injury prone to be more credible than Dr. Stark's opinion. 48/147. See also 6/61 ("[P]eople with developmental disability at times are physically challenged and, therefore, it makes it more difficult for them to be able to get from one place to another. By definition also, people who have a developmental disability often have difficulty in making sound judgments; and, therefore, they will occasionally put themselves in harm's way."); 37/118 (aggression cannot always be predicted).[68]
Moreover, the number of injuries cannot be the sole criterion for determining whether the Center has violated its constitutional duty to provide reasonably safe conditions. As Judge Marsh observed in a CRIPA action resolved by consent decree, "the injury itself is not a constitutional violation unless it was the result of an unconstitutional action or omission by the defendants." Accordingly, in order to establish a constitutional violation in this area, the United States cannot simply rely on numbers, but must demonstrate that the Center failed to exercise professional judgment in addressing the issue of safety.
The United States contends that mealtimes at the Center are unsafe and a substantial departure from accepted professional practice because: (1) the Center allegedly permits eating to occur while the residents are in unsafe positions; (2) staff feed residents using unsafe practices; (3) residents eat unsafely without staff intervention; and (4) the dining environment is generally unsafe. 84/XI-1.
The United States relies upon the opinion of its expert Ms. McGowan to prove what they consider to be unsafe practices. Ms. McGowan is a registered nurse who has extensive experience with severely and profoundly retarded individuals who have developmental disabilities. 35/75. She has concentrated her career over the last ten to twelve years on "teaching health professionals to identify the unique set of health problems that are 643 inherent to this population." 35/76. She was offered as an expert in nursing *643 services and nutritional and physical management services for individuals with developmental disabilities. 35/84. Ms. McGowan has no formal education in nutritional and physical management services, or in speech pathology. She explained that the knowledge she has acquired is from working extensively with interdisciplinary projects. 35/84.
During a tour of the Center, Ms. McGowan directed the videotaping of several meals. This evidence was offered by the United States and was described by Ms. McGowan, in an attempt to demonstrate the unsafe eating behaviors of some residents. 35/109-36.
Ms. McGowan testified that the dining area was "unsafe and very dehumanizing. That is, too many people, in a very loud cacophonous environment, where you can't pay attention to anything that is going on. There was some genuine health hazards around; flies all over the place." 35/92. She further testified that she recommended to Mr. Bellomo that the Center should "get out of those mass dining rooms.... If I had my option here, I'd blow these damn things up." 35/142.
Ms. McGowan had little difficulty containing her distaste for the dining environment at the Center. But expert testimony is "relevant not because of the experts' own opinions 0907 which are likely to diverge widely 0907 but because that testimony may shed light on what constitutes minimally accepted standards across the profession." Society for Good Will, 737 F.2d at 1248. In this instance, Ms. McGowan's testimony fails to shed any light on what the constitutional minimum is with regard to dining facilities. Ms. McGowan's characterizations of the dining room were disputed by the Center's expert, Dr. Sheppard (61/42), and a videotape of the mealtime practices did not reveal any overwhelming problem with flies. See Exh. 258. I find no constitutional violation by the Center based on its continuing use of dining rooms.
Ms. McGowan also opined that residents engage in unsafe eating behaviors such as: eating at excessively rapid rates, taking large overfilled spoonfuls of food, shoveling food into their mouths, stuffing large chunks of food in their mouths, drinking cups of fluid without any visible pause, swallowing whole food without chewing, stealing food from other residents, eating food that had fallen to the floor, and jabbing utensils deep into their mouths. 35/91, 103-06, 134. Her opinion hinged largely on the amount and frequency of the food that was placed into the

mouths of the residents and the potential for aspiration of that food due to poor head position, poor clearance of the oral cavity, or staff inattention to defensive mechanisms such as coughing. The United States asserts that more staff are needed at mealtimes to remedy these conditions. The United States notes that in a sixteen week period of time at the beginning of 1993, there were sixteen documented instances of a resident choking as a result of unsafe eating behaviors. Exh. 273; 35/144.
Ms. McGowan illustrated her testimony with a videotape of Kathy W. feeding herself at an extremely rapid pace. Exh. 258. A staff person across the table monitored the meal, but only intervened to offer a napkin when the meal was over. 35/134. The United States asserts that fast paced eating is exhibited by many residents, and that the Center is aware of the behavior but fails to intervene. It points to memoranda from Mr. Bellomo regarding the excessively rapid rate of eating by residents and the need to slow down the pace of eating. Exh. 165. Mr. Bellomo documented that meals concluded in as little as six, nine and twelve minutes. Exh. 165. He also documented eating at a rate of a spoonful every two and one half to three seconds. Exh. 165a.
To the lay observer, eating at a rate of a spoonful every three seconds or completing a meal in four or six minutes appears to be too fast. The Center's expert, Dr. Sheppard, a speech pathologist with training in eating and swallowing disorders, viewed the United States' videotape and analyzed the behaviors of the residents. 61/45-74. Dr. Sheppard's analysis carefully discussed the delivery of the food to the resident, the resident's control of his or her body, the resident's ability to receive and transport the bolus of food, and the actual swallowing. She noted 644 the *644 pacing of individuals during their meals as it related to their swallowing. Dr. Sheppard agreed that Kathy W. does indeed stuff food and eat too rapidly at times, but she noted she was swallowing between mouthfuls in the videotape. 61/70. Dr. Sheppard cautioned that intervention is not simple with a resident like Kathy W., due to her psychiatric history. Intervention may cause her to decompensate and stop eating, or further aggravate the stuffing because the individual is afraid her food will be taken away. 61/70-01. In addition, Dr. Sheppard opined that ten to twenty minutes is an optimum for duration of a meal, 61/88, with the appropriate focus being actual swallowing, not the overall pace, 61/89.
I find Dr. Sheppard's testimony persuasive. The duration of a meal should not be the sole criterion of whether care meets an accepted professional standard. I observed from the videotape that residents were afforded, for the most part, the opportunity to swallow before the next bite of food was offered. See Exh. 258.
The United States contends that the incidence of choking at the Center is evidence of the Center's inadequate care in feeding. It asserts that the Center has a 6.2% choking rate, 84/XI-45, and that rate continues to increase over time, 35/144. This increase is unacceptable, the United States contends, because Ms. McGowan's experiences over the past ten years have not included a facility with such a systemic choking problem. 35/204.
The increase in the choking rate is readily explained by the evidence. Choking is often prompted by food stuffing or stealing of a sudden nature which is not necessarily capable of correction by adding more staff to monitor a meal. See Exh. 273 (3 of 16 incidents involved stealing food and 1 incident was the result of stuffing). It is also doubtful that increased monitoring would prevent choking incidents for residents who have had or require a change in the consistency of their diet and a tailoring thereto of permissible foods. See Exh. 273 (Deborah S. choked on chopped bread, which now must be pureed as well; Charles M., who choked on grapes after his diet was modified from pureed to chopped; James R., who choked after diet modification from pureed to chopped). Moreover, as Dr. Sheppard noted, the Center's population is stable and aging, and statistics for a general population reveal an increase in choking with age. 61/80, 84. Dr. Sheppard further opined that she did not find the choking incidents at the Center high in light of the nature of the Center's population and the marked swallowing problems. 61/85.
The United States contends, however, that the Center had notice of its deficiency in this regard because it has been cited since at least 1983 in the Inspection of Care surveys for deficiencies. Exh. 688. Dr. Sheppard noted, however, that of the twenty-one incidents listed as deficiencies in Inspection of Care Surveys, the few that relate to health and safety matters in the dining rooms occurred before 1989. 61/86.
The Center's care with regard to mealtimes for residents who feed themselves meets the constitutional minimum. The upper end of the continuum of acceptable care is described by Ms. McGowan's testimony, which would require constant surveillance and monitoring in hopes of eliminating choking altogether. This objective is

laudable, but it does not establish the minimum required by the Constitution. Moreover, the standard espoused by Ms. McGowan would restrict the residents' opportunity to eat on their own.
The United States' submits that the Center feeds residents at excessively rapid rates, feeds residents too large a quantity to swallow, uses spouted cups which do not permit the staff to control the volume of liquid delivered, feeds residents while they are coughing or their heads are in hyperextension, feeds residents while standing above their eye level, forcing the residents to place their heads in extension to be fed, scrapes food off of residents' faces, does not adhere to feeding programs, and the Center has too many different staff members feed residents with complex needs. 84/XI-19-20.[69]
645 *645 Dr. Sheppard opined that the practices utilized by the Center at mealtimes, with the exception of very isolated instances, comports with accepted professional standards, and that the Center exercises appropriate professional judgment. 61/74-75.
Dr. Sheppard opined that the rate of feeding a resident need not consume a full thirty minutes, contrary to the opinion of Ms. McGowan. Dr. Sheppard testified that for severely compromised individuals, a meal of ten to twenty minutes may be optimal, and the focus should be the ability to swallow. She further noted that the time provided to swallow for many residents need not be very long since the bolus does not require any chewing, and socialization is minimal because the resident's focus is eating. 61/19. Moreover, although some residents ate rapidly, Dr. Sheppard observed that they were eating "steadily and moving food into their mouths in a continuous manner, that they swallow between each subsequent mouthful in eighty or ninety percent of the instances." 61/18.
I find Dr. Sheppard's opinion insightful in light of what I observed while viewing the videotape during the direct examination of Ms. McGowan and Dr. Sheppard. I find that residents who are fed either pace their feeder, or their feeder paces them. For example, Dr. Sheppard noted how Paul G. was able to control his upper body movement as a means of signalling his feeder regarding when he was ready for food, and the feeder used cues such as placing the spoon where he wanted Paul G.'s head to be, and shaping his position for swallowing by tapping his shoulders. 61/54-55. Harold B. also was allegedly fed unsafely because food was placed in his mouth while his head was rotated, the spoonfuls were overflowing and the pace was too fast. 61/117-8. Dr. Sheppard noted, however, that Harold B. "tends to move [his head] off of upright a few degrees for reception and then to bring it forward for oral transport ..." 61/55. She further noted that while the spoons were large, the feeder paced the resident so he could swallow before the next spoonful. Significantly, she observed that a nonchewable bolus can be moved through the mouth rather quickly even by an individual with a degree of disability. 61/56.
The United States submits that staff feed residents too large a quantity to swallow. I observed instances where residents were fed quantities which were too large for them. See Exh. 258. Most notably, Frank was a dependent feeder in a cart who was presented spoonfuls of food and a spouted cup. Dr. Sheppard observed that Frank regulated the amount he was going to swallow by ejecting the rest and signaling his feeder with his head movements. 61/49-50. I viewed the tape differently since it appeared to me that the feeder consistently provided Frank quantities which were too large. This was, however, an isolated instance within the evidence presented, and was not the norm even for those episodes depicted in the videotape.
The use of spouted cups is also a practice within the realm of accepted professional practice, because swallowing is provided for when the cup is used. For example, Beth S. was allegedly fed with a spouted cup for a solid fifteen seconds without a break. 35/120. Carefully viewing the videotape, however, Dr. Sheppard explained that "[o]ne can see by the throat sequential sips and swallows by this individual as the liquid is dispensed." 61/58. [70] She further noted there was not overfilling and the cup was withdrawn for the resident to take a breath and 646 finish what was in her mouth. 16/59. *646 While the United States submits that Dr. Sheppard opined that the spouted cups are a departure from accepted professional practice in her deposition and again at trial, Dr. Sheppard actually opined that she "would have made other choices, maybe, in regard to the spouted cups." 61/205. Dr. Sheppard's disapproval of spouted cups does not equate with a finding of a substantial deviation from accepted professional practice.

Dr. Sheppard also disputed the contention that staff fed residents while they were coughing. She observed that coughing consistently caused the feeders to stop feeding. This was evident in the videotape for Ronald E. Exh. 258; 61/48.
The United States vigorously asserts that the Center's care is constitutionally flawed because staff feed residents with their heads in improper positions such as hyperextension or rotation. 35/92. Ideally, a resident should have his head perpendicular to the floor when being fed. This position helps prevent the aspiration of food or drink while swallowing because the airway is covered by the epiglottis. 35/92-94. The videotape showed residents who accepted food from their feeder with their heads in hyperextension or rotated to one side. An example would be Harold B. accepting food with his head off of upright and then bringing his head forward to swallow. 61/55. Paul G., another example, also extended his head back to receive food. Because Paul G. uses his head and upper body to signal his feeder and establish a pace, Dr. Sheppard opined that a feeder should not immobilize his head to bring it to the desired neutral position because this could upset and irritate the resident and compromise his nutritional status. 61/53.
Dr. Sheppard further opined that the delivery of food to a resident who has his head slightly tilted back is acceptable if the resident brings his head forward during the swallowing phase. 61/79. She also opined that she did not observe any staff actively pushing a resident's head back to feed him or her. 61/20. She further stated that a bald spot on the back of a resident's head is indicative that a resident spends a significant time on his back; it is not the result of a nutritional management procedure that pushes a resident's head back. 61/45.
Based on my observations of the tape, which revealed residents who were being fed with ease, and Dr. Sheppard's testimony and opinion, I find that the Center's feeding practices with regard to head position when receiving food are not departures from accepted practice. They are often an accommodation of a resident's behavior which may pose a risk of aspiration or choking. These risks are weighed against the fact that correction of some of these behaviors may prompt residents to decompensate and not eat, or would require restraint (or additional restraint) to properly position their head to receive food which otherwise would not be necessary. Such action is consistent with the accepted professional judgment in the field.
Ms. McGowan asserted that scraping food from a resident's face is wrong because it causes "involuntary reflexes in individuals whose oral motor skills are already compromised." 35/114. Ms. McGowan fails to indicate how this adversely affects the residents, however. In contrast, Dr. Sheppard noted that certain reflexes may be elicited by touching the face. But, she opined that face wiping may be appropriate depending on the individual. 61/43-44. As a result, the fact that some food is scraped from a resident's face without more is not tantamount to a substantial departure from accepted professional standards.
The United States also contends that there is a failure to have the same staff members regularly assigned to feed residents with complex needs, but fails to indicate any testimony that supports such a finding. In contrast, Susan Fagan, a LOTA, testified in her deposition that she and another LOTA regularly alternate feeding Timmy P., Michael B., and James C. for breakfast and lunch. The LOTAs work Mondays through Fridays, and they alternate feedings so as to be current with regard to that resident's status. Exh. 610/61-62.
In light of the above, I find that the Center's care in feeding residents is constitutionally adequate. This conclusion 647 is based largely on my observation of the videotape, *647 evidence which to a great degree requires no
elaboration, and on the testimony of Dr. Sheppard, which I found to be persuasive. In contrast, Ms. McGowan's assessments were less complete, evaluating the factors affecting the resident's ability to eat, but rarely analyzing the mouth action of the resident. This may be due to the fact that she has no formal training as a speech pathologist, a discipline requiring considerable knowledge of disorders related to the use of the mouth.
Finally, the United States asserts that the Center uses the following unsafe positions to feed residents: flat on their back during the meal and immediately thereafter; head in hyperextension; head in hyper-extension and rotated; and trunks in improper alignment. I will not address hyperextension of the head again.
With respect to the argument that residents are being fed while flat on their backs, Ms. McGowan testified that such a practice is unacceptable because it can result in aspiration. It is clear to me, even as a matter of common sense and lay experience, that this is not a desirable way to be fed, but what positions are acceptable if a

resident cannot be positioned upright? It appears that the alternatives which are professionally acceptable are to elevate the head and trunk above the pelvis and legs, and to position the resident in an elevated right side-lying position. 34/199-200.
The United States asserts that the Center positions no one in the right side-lying position even though its speech therapist admits that it is an acceptable position. However, Dr. Sheppard's testimony that the elevated right side lying position should only be used if the individual has adequate control on that side of his mouth to effect the transport from the teeth to the pharynx. 61/97-98. The United States failed to proffer any evidence indicating that the residents at issue possessed the necessary mouth control, and in the absence of such evidence, I will not infer a substantial deviation from accepted practice from the Center's failure to use a particular feeding position.
The videotape illustrated that the Center does elevate the head and trunk of the residents. Even Ms. McAllister, the United States' PT expert, acknowledged that the Center staff is aware that the residents who are confined to carts need to be elevated. 34/199. She asserted, however, that the deficiency is that the head is usually all that is elevated. Id. I find that the Center's care in this regard is not constitutionally inadequate. Evidence showed that the staff strive to elevate the head and trunk above the pelvis and legs. See Exh. 258. Moreover, the fact that the Center exercises professional judgment in feeding residents is apparent in the decisions which are made to change the method of providing nutrition for residents. The record indicates that the assessment of the impossibility of easily feeding a resident at some point results in the decision to institute some mechanical means of meeting the resident's nutritional requirements, such as gastrostomy tubes. See supra re: Keith T. and Steven S.
I also note that the United States' contention that mealtimes are unsafe because residents' bodies are not properly aligned is another attempt to argue the inadequacy of the Center's wheelchairs. This point has already been covered in the section regarding physical therapy and physical management, and will not be addressed here. The section on physical therapy and physical management also addressed the United States' contention that the staff do not lift and transfer residents according to accepted professional standards. See supra § III.C.4.
The United States also argues that the Center does not adequately supervise and monitor residents, which results in injuries and the violation of the residents' right to reasonably safe conditions. The United States asserts that the majority of incidents are due to unknown causes and occur when the staff are involved in other functions. It specifically focuses on the occurrences of elopement and pica incidents[71] as evidence of inadequate supervision.
648 *648 The Center characterizes a wide range of occurrences as "elopements." An "elopement" is noted whenever a resident actually leaves the Center's grounds, as well as when a resident simply leaves a room without authorization and/or hides from staff. 41/50. The record reveals that the Center has taken several steps to curtail the number of elopements. For example, head counts are routinely taken on an hourly basis and in conjunction with the transfer of residents from one area to another. See Exh. 594c; 594a: 594d, # 00006800; and 594f, # 00560867. See also Exh. 594d, # 00006800 (Center's escort procedure revised after head count detected that resident was left behind in program area).
Elopements involve individuals who are mobile and able to navigate to a certain extent. As a result, competing liberty interests are at issue. See Youngberg, 457 U.S. at 320, 102 S.Ct. at 2460 ("[A]n institution cannot protect its residents from all danger of violence if it is to permit them to have any freedom of movement."). Expert testimony, therefore, should identify the parameters of acceptable professional practice (i.e., providing the residents with freedom of movement, while also attempting to prevent, detect and respond to elopements in such a population). Here, however, to a large extent, the United States simply relies on the fact that elopements occur, without providing any evidence that such occurrences demonstrate a substantial deviation from accepted professional practice.
For example, the United States points to a statistic that 31 elopements occurred from July 1, 1990 to June 26, 1993. Exh. 594(g). This statistic is taken from a report that fails to set forth any underlying factual details of the elopements. Consequently, it is impossible to determine whether any individual elopement actually involved the disappearance of a resident (or simply an attempt to elude staff), or whether the elopement was due to a lapse in monitoring by the Center's staff. Without such evidence, I am unable to determine whether a problem of

constitutional proportions exists at the Center. Moreover, I note that the record contains evidence of action by the Center in response to specific incidents of elopement. See, e.g., Exh. 594, # 00590686 (Diana D. eloped on two occasions, staff surmised the elopements demonstrated an effort to obtain a quiet place to look at magazines, and Diana D.'s interdisciplinary team revised her care to provide for a period of time on a quieter unit).[72]
The United States submits that incidents involving pica prove that staff are not adequately supervising and monitoring residents. It argues that the Center's staff were often unaware that residents had ingested a substance not fit to eat until after the resident was found in distress or the inedible object was discovered by observation of feces or vomitus, or confirmed by x-ray. 43/116. Dr. Russo admitted that pica is a common problem in the mentally retarded population, and that it is difficult to treat. 37/106, 108. In fact, pica is not curable; it can only be managed. 37/108.[73] My evaluation, therefore, focuses not on pica itself, but on the Center's efforts to manage this problem.
The record reveals that residents with pica have "flare-ups" of this behavior problem. See Exh. 590. The record also contains ample evidence demonstrating the Center's management of these flare-ups. See Exh. 590 649 (Margaret M., who had no history of *649 pica, ingested part of a silk flower arrangement in her bedroom; staff intervention consisted of closely monitoring to determine if a new behavior was developing and referral to the dysphagia team for evaluation); Exh. 638, exh. 46 (refinement of Center's policy regarding disposal of medical treatment, diagnostic and examination material after resident ingested plastic cover from thermometer).
Finally, the United States faults the Center's efforts to address residents' inappropriate sexual behaviors, specifically citing the care of James W. and Clifford P. See, Exhs. 501(a) and 440. For both of these residents, however, the Center held numerous staff meetings/interdisciplinary team conferences, and contacted outside consultants and therapists in an effort to contain the residents' dangerous behaviors. See Exh. 501(a); Exh. 440; 63/119-20. In fact, Clifford P. was even transferred to another facility, Torrance Mental Retardation Unit, with the hope that he would improve. Unfortunately, that facility was unable to handle Clifford P.'s problems, and he was transferred back to the Center. 63/119-20.
At times, the Center's efforts to address these problems have been hindered by the unavailability of outside experts in this field. 63/116-119. The Center therefore has taken the initiative to send two of its staff members to attend classes to become certified sex therapists. The Center also has contracted with a sex therapist, Dr. Farr, to provide in-service training for its staff regarding how to deal in-house with problematic sexual behavior. 63/119. Thus, while the sexual behavior problems of certain residents pose a grave risk of harm, the Center exercises professional judgment in addressing these behaviors.
IV. CONCLUSION
Professional judgment has been exercised in the provision of care to mentally retarded individuals residing at Ebensburg Center. The Center's care, although frequently not optimal, is, with the exception of blood level monitoring, a now remedied defect, consistent with accepted professional practice, and thereby meets the requirements of the Constitution. Moreover, where there have been lapses in care, the United States has failed to demonstrate that those deficiencies were the result of the Commonwealth's official customs and policies as implemented at the Center.
Advocates for the mentally retarded often strongly disagree on what constitutes appropriate care for these individuals. My task, however, has been to determine whether the Center exercised professional judgment in providing the minimum level of care required by the Constitution, not whether the difficult lives of the Center's residents can be improved. It is clear that many of the residents 0907 probably most of them 0907 would be better served by placement in the community. Mr. Bellomo conceded as much, but vigorously defended the quality of care offered by the Center:
Do I think that it's better for people to live in a ranch-style home on the corner of someplace with a white picket fence and a station wagon in the driveway rather than living in a large congregate facility? Absolutely. And I believe Pennsylvania is moving in that direction. We have finally gotten

to the point where there are more people living in the community than there are living in institutional settings, and I think that is a commendable trend.
And until such time as I could see that those four hundred seventy-five people that live with us are going to be afforded that opportunity, it's my job to be critical of everything that goes on at the facility that I don't think is meeting the needs 0907 the very specific, the very special, and the deserved kind of recognition that these people have. I'm not in the 0907 I will not accept any kind of suggestion that we are overlooking things and that people that are living at our facility are not being afforded an adequate level of service.
63/170-71.
One of the hallmarks of a good and just society is the concern it shows for the needs of its least fortunate and most vulnerable members. If this litigation has proved anything, it is that the care of mentally retarded citizens 650 evokes powerful emotions, that deeply *650 committed advocacy on behalf of the mentally retarded in this country is alive and well, and that it transcends differing schools of thought and competing professional interests. My lengthy review of the evidence, and especially my vivid recollection of the view conducted of the Center and its operations, has not left me unmoved. Indeed, it has left an indelible mark.
The operation of Ebensburg Center by the decent, fallible, human beings who administer it and who toil there in stressful and often thankless tasks conforms with constitutional dictates. Its administrators and employees must not, however, turn a deaf ear to their critics or to the voices of innovation. Constitutional minimums are not goals to which any professional should aspire. Much can be improved, and fiscal constraints should be no impediment to an institution's leadership to constantly exhort its professionals: "We can do better."
An appropriate order follows:
AND NOW, this 27th day of July, 1995, consistent with the foregoing opinion, the United States' Motion for Judgment (Docket No. 111) is DENIED. Judgment is entered for the defendants. The Clerk of Court shall mark this case CLOSED.
[1] Because resolution of this matter is fact intensive, frequent citations to the record appear throughout this opinion. In an effort to minimize the length of this adjudication (admittedly not by much), all record citations will reference the docket number and the appropriate page(s) separated by a diagonal slash. Hence, Docket No. 22, pp. 34-35, would be designated by 22/34-35.
[2] United States v. Pennsylvania, 863 F.Supp. at 219.
[3] See Chicago v. Environmental Defense Fund, ___ U.S. ___, ___, 114 S.Ct. 1588, 1593, 128 L.Ed.2d 302 (1994) (when text of statute is clear, it is inappropriate to resort to legislative history for purposes of interpreting statute).
[4] For purposes of the Eleventh Amendment, the Supreme Court has held that "official-capacity actions for prospective relief are not treated as actions against the State." Graham, 473 U.S. at 167 n. 14, 105 S.Ct. at 3106 n. 14 (citing Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)). In Ex parte Young, the Supreme Court held that the Eleventh Amendment interposes no bar to an action in federal court for prospective injunctive relief against a defendant official named in his or her official capacity because the defendant state official "comes into conflict with the superior authority of [the] Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct." 209 U.S. at 159-60, 28 S.Ct. at 454. Although the Eleventh Amendment typically bars actions for damages in federal court against States and state officials sued in their official capacities (see Will, 491 U.S. at 66, 109 S.Ct. at 2309-10 (§ 1983 was not intended "to disregard the well-established immunity of a State from being sued without its consent"; in actions for damages, neither States nor state officials acting in their official capacities are considered "persons" within the meaning of § 1983)), the Eleventh Amendment poses no bar to actions for prospective injunctive relief against state officials sued in their official capacities, and in such circumstances, the state officials are considered "persons" for purposes of § 1983. 473 U.S. at 167 n. 14, 105 S.Ct. at 3106 n. 14. Nevertheless,

the Court still considers such actions for prospective injunctive relief as addressing the State's official policy or custom. Graham, 473 U.S. at 167 n. 14, 105 S.Ct. at 3106 n. 14 ("[I]mplementation of state policy or custom may be reached in federal court only because official-capacity actions for prospective relief are not treated as actions against the State."). Moreover, the Eleventh Amendment does not apply to suits by the United States against a State. United States v. Mississippi, 380 U.S. 128, 140-41, 85 S.Ct. 808, 814-15, 13 L.Ed.2d 717 (1965).
[5] The Fourteenth Amendment provides, in pertinent part, that a State shall not "deprive any person of life, liberty, or property, without due process of law...." U.S. Const. amend. XIV, § 1.
[6] The Commonwealth, as it did at an earlier stage of this proceeding, argues that the Supreme Court's decision in DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), limits the reach of Youngberg (and the Due Process protections recognized there) to those mentally retarded individuals who have been involuntarily committed to the Center. See 489 U.S. at 199-200, 109 S.Ct. at 1005 ( Youngberg stands "only for the proposition that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being."); Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d 459, 465-66 (3d Cir.1990) (severely mentally retarded individual's Due Process rights not curtailed by the state because his parents voluntarily placed him at the facility and, pursuant to the reasoning in DeShaney, he was not deprived of freedom "`through incarceration, institutionalization or other similar restraint of personal liberty'"). But see United States v. Pennsylvania, 832 F.Supp. 122, 124 (E.D.Pa.1994) ("[W]here 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."). The instant action challenges the Commonwealth's policy and customs as implemented "across the board" at the Center (as opposed to an action vindicating the liberty interests of a single individual, as in Fialkowski). The testimony presented during the trial demonstrated that, with respect to some of the residents, their backgrounds and the severity of their conditions make it difficult to characterize their institutionalization as being "voluntary." In addition, the Commonwealth appears to concede that some of the individuals at the Center were placed there involuntarily. See Docket No. 22, at 34 ("Most, if not all, of the residents at Ebensburg Center are voluntarily placed without any restraint.").
[7] The Court defined a "professional" decision-maker as "a person competent, whether by education, training or experience, to make the particular decision at issue. Long-term treatment decisions normally should be made by persons with degrees in medicine or nursing, or with appropriate training in areas such as psychology, physical therapy, or the care and training of the retarded. Of course, day-to-day decisions regarding care 0907 including decisions that must be made without delay 0907 necessarily will be made in many instances by employees without formal training but who are subject to the supervision of qualified persons." Id. at 323 n. 30, 102 S.Ct. at 2462 n. 30.
[8] The United States' argument is undermined by its own Complaint in this action, which makes repeated references to the defendants' alleged failure to exercise "professional judgment." See, e.g., Complaint, ¶ 20 ("Defendants have failed and are continuing to fail to prescribe and administer psychotropic medication safely and pursuant to the exercise of professional judgment by appropriately qualified staff."). The United States' effort to avoid application of the professional judgment standard 0907 and its presentation of evidence and argument throughout this case that was not tailored to address the professional judgment standard (instead, for example, presenting evidence of and argument about "deficient care" or "malpractice") 0907 was unhelpful to this Court as it labored with the difficult task of adjudicating this factually complex controversy.
[9] Alternatively, the United States submits that the "professional judgment" standard is not applicable in this case because CRIPA actions enable the Attorney General to seek only equitable relief, and Youngberg's professional judgment standard was fashioned in response to a § 1983 action for money damages so that professionals would not be "required to make each decision in the shadow of an action for damages." 87/31-32 (quoting Youngberg, 457 U.S. at 325, 102 S.Ct. at 2463). The United States' injunctive relief argument is unavailing for the reasons explained in Association for Retarded Citizens of North Dakota v. Olson, 561 F.Supp. 473, 487-88 (D.N.D.1982)

(relying on principles of federalism and avoiding unnecessary judicial intervention in state institutions), aff'd, 713 F.2d 1384 (8th Cir.1983).
[10] Cf. DeShaney, 489 U.S. at 202, 109 S.Ct. at 1006 ("[T]he claim here is based on the Due Process Clause of the Fourteenth Amendment, which, as we have said many times, does not transform every tort committed by a state actor into a constitutional violation.").
[11] The deposition testimony admitted in this case is delineated by the United States' line designations and the Commonwealth of Pennsylvania's counter-line designations, while some citations to the record refer to testimony which is neither. Such testimony was considered, and cited in some instances, because it aided me in understanding the context of the testimony. In addition, some testimony was considered because it was a means of fully appreciating the structure of and the services provided by the Center. The consideration of such evidence is consistent with the spirit of Federal Rule of Evidence 106, which provides: "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it."
[12] The issue of "flies on the food" is addressed, infra, in the discussion concerning alleged constitutional deficiencies at meal time.
[13] The United States also contends that instances when the staff has been unable to locate a resident's whereabouts support a conclusion that inadequate care is provided. This is an issue of safety and will be discussed in that section of the opinion.
[14] It is worth noting that some of the breaches of privacy (involving the more mobile residents) cited by the United States do not necessarily reflect even ineffective training on the part of the Center. For example, there is no indication that the staff had any involvement in the incident involving the two residents in the Horizon unit who used the bathroom without closing the curtains in the stall. If staff were not toileting these individuals, the fact that the state surveyor observed the residents utilizing the stall without closing the curtain does not necessarily indicate a failure on the part of the Center to respond appropriately to a breach of privacy. I note that the record contains evidence of appropriate responses by the staff to privacy issues. See Exh. 594b, # 00050400 (wherein an RSA observed a resident who was stripping and directed her to the toilet).
[15] Status epilepticus is a condition in which a resident manifests seizure activity that is either constant or recurrent without full recovery of consciousness before the next seizure activity begins. 48/118; 81/14; Exh. 1107, p. 854. Usually the diagnosis of status epilepticus is made in hindsight because the time frame of thirty minutes is a diagnostic criterion. That is, constant seizure activity of more than thirty minutes is consistent with the diagnosis of status epilepticus. Recurrent seizure activity within a thirty minute time frame that is not accompanied by a full recovery of consciousness also is consistent with a diagnosis of status epilepticus. Id.
[16] I take judicial notice (Fed.R.Evid. 201) that the 1995 Physicians' Desk Reference provides that "[i]njectable valium is a useful adjunct in status epilepticus ... and severe recurrent convulsive seizures." PDR, at 2077. The intravenous route is preferred, but if that route is impossible, the intramuscular route may be used. Id., at 2078.
[17] Intramuscularly administered Valium for the treatment of status epilepticus in the future may in fact constitute a departure from professional judgment inasmuch as it is now clear to the Center that this means of treatment has lost acceptance within the medical community. Rectal administration of anticonvulsants, however, appears to remain acceptable. 81/59; Exh. 1107.
[18] Dr. Alvarez believed that the Center's decision to summon ambulance transportation was inadequate because it was usually delayed. 36/218. This was reiterated by Dr. Coulter on rebuttal, when he testified that after ten minutes of seizure activity, it is appropriate to call an ambulance. 81/33. According to these doctors, the "ten minute time frame" should serve as a point to access emergency services, because continuous seizure activity may develop into status epilepticus. 81/33. This facet of the Center's treatment of status epilepticus does not alter my decision regarding the constitutionality of treatment rendered up to the time of trial, because I have found the primary care physicians exercised acceptable professional judgment in the administration of intramuscular valium. This treatment necessarily has an impact on the physicians' decisions as to the appropriate time to

summon emergency services. The various components of treatment for status epilepticus cannot be dissected and evaluated in a vacuum 0907 particularly since it cannot be ascertained with any certitude in many of the situations when an ambulance should have been summoned.
[19] While the United States contends that these percentages are skewed by including in the calculations 72 residents who are no longer epileptic, I note that the United States' own expert, Dr. Sulkes, recommended to the Center that it should have a neurologic consult for all residents who have a diagnosis of epilepsy, regardless of whether they experience active seizures. 64/88-89.
[20] Thrombocytopenia is a condition in which the circulating blood has an abnormally small number of platelets, the blood component which functions in clotting. Stedman's Medical Dictionary, 1596 (25th ed. 1990).
[21] Dr. Chamovitz also explained that a Dilantin level may increase due to an infectious process or the dumping of Dilantin into the blood stream from soft tissues. 50/192, 193, 195. Although that testimony is relevant to understanding how a resident's Dilantin level may suddenly exceed the upper limit of the therapeutic range, it has no relevance to why the professional did not act to address a side effect that has become apparent over a course of time, or a blood level that may be toxic.
[22] This finding pertains only to the Center's care as it relates to detecting and responding to the side effect of sedation produced by Dilantin. Although reference is made in passing to other side effects, the record does not present any discussion of a failure to detect or respond to other side effects on a widespread basis, and I need not address it. Presumably, this is why Dr. Chamovitz testified about routine monitoring of liver enzymes and blood counts which may be adversely affected by anticonvulsant therapy. 49/244. I also note that this finding pertains to the anticonvulsant Dilantin. The record is inadequate to make a determination regarding the acceptability of the Center's detection and response to side effects produced by other anticonvulsants. See 84/28-32 (United States' proposed finding re: Center's failure to manage side effects and citation of seven residents, five of whom suffered from Dilantin toxicity).
[23] Dr. Alvarez found Dr. Chamovitz to be a competent neurologist. 36/159.
[24] Indeed, Dr. Kastner believed that the "value of the EEG is over-estimated...." 48/165. Some individuals with seizure activity have a normal EEG and some individuals without a seizure disorder have abnormal EEGs. 49/240; 48/164-5; Exh. 633 (1-19-93), p. 28.
[25] For example, in an incident report of an injury sustained after Barbara K. began wearing the helmet, an RSAS suggested that Barbara K. should be kept in the T.V. room for the administration of her afternoon medications. This change was suggested because it appeared that her afternoon seizure activity often was triggered by her physical movement from the T.V. room to the day room for her medications. The OMRP agreed to implement the suggestion. Exh. 392(c). This is another exercise of professional judgment, as it manifests an assessment of the situation, and a decision to incorporate the suggestion into her plan of care. Similarly, elbow pads were obtained for Barbara K. to further decrease the incidence of injuries. Exh. 392(b), # 00600458.
[26] Dr. Alvarez also noted several other residents who sustained injuries as a result of their seizure activity. According to Dr. Alvarez, some injuries necessitated sutures. The focus of Dr. Alvarez' opinion centered on the failure to utilize helmets generally, and the failure to utilize helmets that would protect the residents from injury. 36/94, 154.
[27] Tardive dyskinesia (TD) is an irreversible side effect of certain antipsychotic medications. 50/34. TD produces an involuntary movement disorder (50/34), and the onset of this disorder is insidious, usually occurring only after the anti-psychotic drug has been administered for years. 38/67. The disorder is manifested by tremors of the face, mouth, and hands as a result of a change in the brain's chemistry. 49/12.
[28] With respect to the issue of whether Dr. Goldschmidt is afforded sufficient time for her consultations, the United States points to testimony from Dr. Fahs, Dr. Lubetsky, Dr. Hauser and Dr. Goldschmidt in support of its position that more time at the Center would improve psychiatric services. It goes without saying that it would benefit the residents if Dr. Goldschmidt could spend more time at the Center, but the issue in this litigation is whether the care provided is constitutionally deficient, not whether it could be improved. My review of the record

fails to identify any evidence indicating that the two monthly, eight-hour sessions at the Center constitute a substantial deviation from accepted professional practice.
[29] Dr. Lubetsky's candor was telling. He had never before testified as an expert, and he candidly identified weaknesses in the Center's psychiatric practice 0907 weaknesses which the United States stressed in its efforts to characterize the care provided at the Center as unconstitutional. The United States ignores the fact that the weaknesses identified by Dr. Lubetsky were areas that he said could be improved. They did not constitute substantial departures from acceptable professional practices, and Dr. Hauser confirmed Dr. Lubetsky's findings.
[30] Dr. Fahs defined "akathisia" as a neuropsychiatric condition marked by excessive restlessness, typically manifested by an individual engaged in a significant amount of general movement and pacing. The condition also may be associated with overactivity, aggression and other behavioral difficulties. 38/121.
[31] Darren W.'s behavior described by Dr. Fahs included overactivity, pica (persistence in eating that which is inedible), severe rectal digging and smearing of his feces 0907 behavior that was persistent enough to require resort to the use of a jumpsuit to preclude further rectal digging. 38/125.
[32] In making these findings, I also credit Dr. Hauser's opinion that the psychiatric services at the Center are within the range of accepted professional standards. 50/67, 128.
[33] I will address the United States' first and last contentions at the same time, because behavioral programs actually constitute one component of the treatment options that, according to the United States, are neither considered nor coordinated with other treatment efforts at the Center.
[34] The United States further submits that the Center has been cited repeatedly for its failure to integrate adequate behavior programs with its use of psychotropic medications, and even Dr. Goldschmidt noted that certain PSAs at the Center rely on psychotropic medications. Exh. 615/59. Finally, the United States relies upon Dr. Fahs' testimony regarding the alleged inadequacy of the treatment of six residents at the Center. See 83/ IX-32-39.
[35] Dr. Hauser specifically noted that the Center used the interdisciplinary team approach (50/27), as evidenced not only by having the professional disciplines and direct care staff present during a psychiatric consultation but also by the use of a 30-day review, the behavior intervention committee, and the Human Rights Committee. Consideration by the team of the treatment options is evidenced by the fact that the Center has consistently reduced the dosage of antipsychotics prescribed, as well as the number of residents who receive them. 50/24-25. In addition, the Center has initiated treatment with alternative medications. 50/26-27.
[36] I find the opinions rendered by Dr. Hauser and Dr. Lubetsky highly persuasive and credible. These experts attempted to maintain an objective analysis. Both recognized that few institutions are perfect, and both readily noted the documentation as the Center's weakness. The lack of documentation, however, did not preclude them from proceeding with their analysis of the psychiatric care provided to the residents. Dr. Fahs, on the other hand, essentially concluded that the lack of documentation indicated that deficient psychiatric care was being provided to the residents, and he did not take the additional (and necessary) step of determining whether the underlying process was as flawed as the documentation. In addition, Dr. Fahs reviewed thirty to forty records in rendering his opinion in this area, but he highlighted the care of only six residents. Although Dr. Fahs' testimony indicates his disagreement with the treatment chosen for these six residents, it does not support a finding that the processes for providing psychiatric care at the Center are generally flawed or that professional judgment is not being exercised.
[37] The United States' position with respect to the side effect of extrapyramidal syndrome is, at best, a makeweight argument. The United States' experts did not address this syndrome, and neither will I.
[38] The significance of the letters in the acronym AIMS is not discussed in the record by any of the experts.
[39] The United States' contention with respect to deficiencies in identification of residents with GER is addressed in the section regarding nutritional management. See infra at § III.C.4.

[40] The BMI is a ratio of weight to height that gives an indication of the adequacy of the weight. It is a standard utilized with the developmentally disabled because of the fact that their growth is atypical. 61/100.
[41] PT, as developed by the United States in its pleadings and arguments, encompasses physical management, which is the manner in which the residents are handled, touched, transferred, positioned and facilitated to be functional, active individuals. 34/146. For that reason, this opinion will treat physical management as a component of PT, and not as a separate discipline.
[42] In articulating the duty imposed by the Constitution as it pertains to the provision of PT services for institutionalized mentally retarded residents, I am determining only the duty owed by the Center to its current population, which has a median age of 32.5 years, and all of whom have reached skeletal maturity. 62/163; 43/79. I note that the duty articulated by Judge McCalla in United States v. Tennessee, supra, applied to a population which included individuals under the age of 22 years. While I have no occasion to decide this issue here, the nature of the duty to provide PT services may differ for individuals in a developmental stage.
[43] ICD-9 codes is a reference to the International Classification of Disease Codes. That is, a system used to denote the applicable diagnosis(es). 52/40.
[44] Portions of Ms. McAllister's eighteen-page form may serve as an excellent tool for detailing the range of motion that a resident has attained and how the Center is endeavoring to maintain that movement. That does not mean that the Constitution requires the Center to adopt it.
[45] The United States argues that the Center's PT assessment analysis should be considered inadequate because the expectations of the assessments entail "maintenance, pure and simple." 34/128. The United States argues that the expectations should be to prevent the development of physical disabilities, prevent continued deterioration and attempt to reverse some of the deformity patterns. 34/155. Ms. McAllister opined that these expectations are accepted across the country, noting that they have been relied upon in numerous lawsuits regarding individuals living in institutions. 34/158.
I accord little weight to any standard that is based on the result of lawsuits which have been resolved by consent decrees as opposed to adjudications. 34/158. The explication of a constitutional obligation should not be guided by settlement agreements, which may contain terms requiring the provision of services above and beyond the constitutional minimum simply in order to reach an amicable resolution among the parties and to avoid further litigation.
[46] The United States asserts that the Center staff believes that more could be accomplished with regard to physical management efforts than has been accomplished to date (see Exh. 604/94; Exh. 610/35-36), and that the Director of Occupational Therapy, Lois Graham, admitted that the residents would benefit if they received better positioning. Once again, it is not in dispute that the residents at the Center would benefit by the deployment of additional physical management efforts. The goals of the Center staff are irrelevant to whether the Center fails to meet its constitutional obligations. None of the Center's staff stated that positioning was inadequate or that the positioning employed at the Center was a substantial deviation from accepted professional practice.
[47] Mr. Arnall admits that despite these measures, some residents have sustained a loss of movement. For example, Joe T. lost some ROM in his upper extremities despite receiving ROM exercises and a splinting program. 52/66. This regression is explained, however, in Ms. McAllister's published training manual, which acknowledges that adults become increasingly immobile as a result of abnormal development patterns, slower rates of skill acquisition, and their increasing size. This process, as explained by Ms. McAllister, can render an adult "stuck" in one position or lead to a decrease in developed skills. Exh. 71.
[48] As noted earlier, the United States contends that the Center's gross motor function program is inadequate. I find that the United States wholly failed to carry its burden in this regard because its expert, Ms. McAllister, spent most of her time at the Center focusing on the residents of Keystone, although the majority of residents who receive gross motor programs are located in the Horizon Unit and the JFK Learning Center. 52/35.

[49] Some of the injuries attributed by the United States to flawed lifting and transferring have an unknown origin or no relation to lifting and transferring. For example, Beth S. sustained a fractured femur in April of 1993. Her injury was detected during morning care and it was surmised that it could have occurred while being lifted or changed. Exh. 85(a). Michael F. sustained a two inch laceration of his scrotum. His injury was detected during perianal care for a soiled Attend, and the injury could not be accounted for or related in any manner to a mechanical defect. Exh. 85, # MR 34-Sequence no. 0010D.
[50] The proposed findings of fact submitted by the United States regarding proactive medicine concentrate on the staffing ratios for the physicians and the inadequate documentation. See 84/XII. Mr. Bellomo testified that the Center routinely conducts the following: screenings for tuberculosis, the administration of flu vaccines, mammograms, chromosome studies, routine blood work such as chemistry and blood counts, pap smears, urinalysis, breast exams, and visual screening including glaucoma testing. 62/186. All of these measures constitute proactive medicine inasmuch as they are provided for the purpose of identifying an ailment before symptoms become apparent.
[51] Dr. Kastner scrutinized the Center and was willing to acknowledge not only its pros, but also its cons. I note his past experience as an expert consultant for the Department of Justice, various states and other entities. 48/27.
[52] The general tenor of the United States' position on these points is best summarized by its description of the alleged "pattern of harm" at the Center:
This pattern of harm is pervasive at [the Center]. There are too many individuals with special needs confined in too small a space with too few staff and a lack of meaningful and stimulating things for the residents to do. This cramped and monotonous existence would be difficult for most individuals to endure for a prolonged period of time. It has been dangerous and destructive for the mentally retarded individuals who have been subjected to decades of this existence at [the Center]. Residents live in groups of approximately twenty-four individuals, with whom they spend the majority of their time, day after day, idle in large dayrooms on the living units. The residents do not have adequate activities and staff interaction, particularly during mealtimes, medication administration, and afternoon and evening hours. Significant periods of the day are consumed waiting for toileting, and dressing, for the many residents for whom they are responsible. Rather than staff using these occasions as learning opportunities, these duties take on a custodial function. The scanty block of time during weekdays devoted to "program" hours off the living units is similarly wrought with much idle time for a number of individuals. Often, staff spend so little time with residents that programming is rendered meaningless.
87/16 n. 7. See also 87/14 ("Behavior management programs are grossly inadequate to address residents' serious behaviors, many of which have been created by the Defendants' deficient care and long term institutionalization in the first instance.").
[53] Dr. Stark acknowledged on cross-examination that he (as well as the associations with which he works) favors community placement for mentally retarded individuals over an institutional setting. 43/234. This bias was apparent throughout Dr. Stark's testimony. See 43/235 (Q. "Do you also remember, Doctor, criticizing Ebensburg because you say there is, quote, no mandate to move people out." A. "Yes, sir; I do remember that. And that was described to me by Mr. O'Brien, who I asked him if they were moving people out, and I was told that they were not and that that 0907 that Ebensburg as an institution would always have to be there because there are not services in the community, which I disagree with."); 43/236 ("You asked me what my professional feelings are, the feelings of my association, the feelings that we have promulgated, our policies throughout the country, and in law. We gave an award to the State of New Hampshire because it's closed all of its institutions. State of New York has made a mandate to close theirs by the year two thousand. This is happening around the country, to close institutions, particularly larger institutions."); 43/237 (Q. "Doctor, if you were giving an unbiased report, why weren't you able to think of even a single positive thing at Ebensburg when I asked you at the deposition to name one single positive thing?" A. "Single positive thing?" Q. "That's correct." A. "I don't know; was that the end of the day?").

[54] Dr. Stark also acknowledged on cross-examination that the Center had recently revised its reporting criteria for injuries to include incidents that were "no injuries and very minor injuries." 41/30. This change in reporting to include additional incidents (previously unreported as "incidents") may have contributed to the alleged increase in injuries about which Dr. Stark testified.
[55] For example, Dr. Stark made reference in his testimony to "Doug":
Another person, thirty-three, Doug, bit off three fingers of his hand in 1984, bit them off. All of his teeth were extracted following the incident. A lot of self injurious behavior, has not progressed ... I observed Doug during my tour, and he's 0907 an extremely agitated individual. The type of individual that I've treated, written about, trained about, etcetera. And he's been on the scene, behavior program since March of '88. That's five years or so. There's changes in time, but most of that is medication, not much of a change in behavior program.
43/150. On cross-examination, however, the following exchange took place:
Q. Doctor, would it surprise you if I told you the medical records indicate this history from him: He bit his index finger, he went to the hospital, it became infected, it was amputated at the hospital. He nibbled on his thumb and mutilated it; that had to be amputated also at the hospital. The doctor at the hospital 0907 doctor recommend that his teeth be pulled, and they were pulled at the hospital.
A. That's fine. I think that's a pretty drastic move by any doctor to recommend that a person with mental retardation have their teeth pulled because you can't set up a behavioral program to keep them from biting their fingers.
Q. You do understand [the Center has] no control over Mercy Hospital ...
A. I think you ought to have control over the hospital. I think somebody ought to stand up for that individual's rights and say to that doctor who recommended that that that not be done.
41/63-64. See also 62/147-49 (following amputation of right index finger while in Mercy Hospital, on "the first post op day, despite high doses of sedation, [Doug] became very difficult to control, and he was subsequently found to have bitten his amputation site and both his thumbs.... It was feared that his self-abusive behavior would result in a loss of all his digits. This was thoroughly discussed with the family [by the doctors at Mercy Hospital], and it was agreed that he should undergo surgical removal of all his teeth.... the night prior to the full mouth dental extraction [at the hospital] 0907 his behavior became erratic and very difficult to control; and he subsequently autoamputated the distal phalanges of his right thumb with his teeth and also bit the left thumbnail off. The following morning the distal thumb was surgically amputated and the left thumbnail completely excised. Full mouth dental extraction was simultaneously performed ...").
[56] Dr. Reid acknowledged that "although the degree to which their residents are involved in meaningful activities is representative of the average it could certainly be improved. The less time people spend doing nothing, the better." Id. See also 51/23 ("This is not to say that there shouldn't be improvements. I think there should, but that's a kind of service delivery that never goes away. I mean keeping individuals with severe and profound mental retardation involved in meaningful activities is very difficult. It takes constant effort. So I would not agree that they [the residents] were perpetually in a situation of nonactivity. But I think it's an area that Ebensburg is doing relatively well, in light of the task at hand.").
[57] As explained by Dr. Reid, "if an individual is engaging in aberrant or maladaptive behavior, say aggression, then the DRO component of a program would be that we would want to reinforce that person for any other behavior besides aggression, with the idea being we could increase other behavior; as other behavior increases, the aggression is going to go down." 51/22.
[58] In responding to the criticism by the United States that many clients have only one behavior program even though they have a multiplicity of problem behaviors, Dr. Reid explained, "[I]t varies from client to client and need to need. Sometimes individuals will need separate programs for separate [problems]; sometimes one program is sufficient for all the behavior problems. In some cases particular behavior problems are part of what we call `response class.' They all serve the same function for the individual, even though their topography is different;

and in that case one program would be sufficient. So it's an individual thing. In some cases one program is sufficient, and in other cases they're not." 51/31. It is a matter of professional judgment.
[59] Dr. Reid did not find it problematic that the Center has been cited in state surveys as failing to provide active treatment to some residents, because the Center has never been "decertified" (which would occur if the Center was truly not providing such services). 51/83. See also 51/82 ("You know, I've gone through a lot of ICF state surveys. I have not in the Commonwealth of Pennsylvania. I've never seen a survey except one time in my twenty years in the field where they didn't cite anything. And I've experienced a lot of surveys. So, in all honesty, I don't put a whole lot of weight on ICF level deficiencies. If a facility has been decertified or is going through the steps to be decertified, then I would look at that carefully ...").
[60] See also 51/95 ("By definition if it's a toy, unless it's an adult toy, it's not going to be age appropriate. It might be therapeutic, it might not. By definition, it's age inappropriate if it's a children's toy being used by an adult.").
[61] See also 51/125 ("Now, if you take people with severe disabilities, with severe behavior problems 0907 and I assume you're taking the fifteen people whose programs I reviewed ... 0907 those reflect the most serious behavior problems at Ebensburg Center; and their current rate of injuries resulting from those is one per person per month. This might sound crude; that's not an unusual rate of injuries for those types of behaviors, for the most severe behavior disorder cases out of all of Ebensburg's client population. That would not be unusual. I 0907 I'm not saying it's acceptable. Serious injuries are not acceptable, but they occur. That would not be unusual in a similar population in any setting I'm aware of, one per month."); 51/14 ("[M]y experience over the last twenty years is that [the mentally retarded population is] more accident-prone; and it seems to me to be expected, given the high incidence of seizure disorders, the many types of physical disabilities that interfere with coordination.").
[62] Malpractice, as explained a number of times already in this opinion, is not the governing standard in this action. Here, again, the United States chose to present evidence that was not tailored to the applicable constitutional standard.
[63] The Pennsylvania Office of Mental Retardation's Statewide Behavior Management Policy, dated December 1, 1988, identifies functional analyses as a component of developing a formal habilitative plan, including the development of alternative acceptable adaptive behaviors. Exh. 30, p. 1.
[64] Much of Dr. Stark's testimony suggested that the goal of care for the mentally retarded is to nurture them, much as if they were in a family home. Obviously, in that setting it would not be possible to have a psychologist always on duty as the United States suggests the Constitution demands.
[65] For another example of the challenged care of a resident and the Commonwealth's demonstration that professional judgment was exercised see 50/103-06 (treatment of Franklin B.) ("This is where we all have to sit together and tolerate the uncertainty and make a kind of a coherent treatment plan for the future and methodically try things.").
[66] Mr. O'Brien conceded that there are a few occasions when this occurs. 66/56.
[67] In light of these findings, I also reject the United States' virtually identical contention that the Center has systematically failed to determine the cause of injuries and/or to take preventative action.
[68] Dr. Kastner also observed that Dr. Stark and some of the United States' other experts appeared to be more concerned with advocacy, rather than addressing the constitutional analysis of minimally adequate treatment. "They want these clients to not have injuries; and because they want the injuries to disappear, they should disappear." 48/148. I concur with Dr. Kastner's observation. Dr. Stark's testimony constitutes advocacy for optimal treatment 0907 treatment approximating that which his son has been provided.
[69] The United States consistently expands the number of alleged constitutional deficiencies by stating the same allegation in several different ways. For example, in this list of unsafe feeding practices, the United States lists "feeding residents at excessively rapid rates" and also lists feeding "in such a manner that they do not allow sufficient time to swallow between bites." Again, the United States lists as an infirmity "feeding residents with their head in hyperextension" and rewords this flaw by also listing feeding "by standing above their eye level forcing

the residents to place their head in extension to be fed." Such duplication is not confined to this section about feeding, and it has resulted in the unnecessary expenditure of time and effort in the preparation of this opinion for a case which, even in the absence of such redundancy, is hugely fact-intensive.
[70] Dr. Sheppard refers to this resident as Andrea S. 61/57. Although Ms. McGowan and Dr. Sheppard used different names, the residents are the same, as revealed by a comparison of the transcripts and the discussion of this resident immediately after Duane P. 35/118-19; 61/57-58.
[71] Pica is an "abnormal craving to eat substances not fit for food...." Webster's New World Dictionary 1021, 3rd College Ed. (1988).
[72] The United States emphasizes the elopement of Joseph C., one of the residents with ground privileges on October 1, 1992. See Exh. 313 (Joseph C. missing overnight and found hiding the following morning in trunk of employee's car). This incident, admittedly quite serious, cannot reasonably be characterized as a lapse in the Center's care of this individual. This particular elopement by Joseph C. was uncharacteristic of his prior behavior; his absence was immediately noted and efforts were made to locate him. A reassessment and revision of Joseph C.'s behavior plan followed, which included a consult with Dr. Goldschmidt.
[73] Dr. Russo argued that the Center fails to individualize its behavior programs for residents with pica. 37/74-75. Dr. Russo's testimony, however, does not establish that the Center's care with regard to pica is a substantial departure from accepted practice. See 37/106 (admitting that, although he knew how to assess and evaluate pica, he did not know how he would treat it in any particular case). I have already rejected the United States' contentions with respect to behavior programs, and that discussion will not be repeated here.
Save trees - read court opinions online on Google Scholar.

 
 WBR:AEP:PSL:CLK:JAV:jac

1

DJ 168-64-7

U.S. v. Pennsylvania
|||||| | | |||| | | ||l || ||| | | | MR-PA-006-001

AUG 8 1986

CERTIFIED HAIL RKT'JRH RECEIPT REQUESTED
Honorable Richard Thornburgh Governor Commonwealth of Pennsylvania Governor*8 Executive office Room 225 liain Capitol Building
Harrisburg, PA 17120
Re: Investigation of Ebensburg Center
Dear Governor Thornburgh: I an writing to let you know of our intention to investigate
conditions at the Ebensburg Center, Ebensburg, Pennsylvania. This investigation is pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. i 1997.
The purpose of this investigation will be to determine whether there exist any violations of the federal constitutional or statutory rights of persons residing in this facility with respect to abuse, lack of supervision, inadequate staffing, undue restraints, inadequate medical care, including abuse of medications, and denial of minimally adequate training. The initiation of this investigation in no way indicates any prejudgnent on our part that federal rights have been violated. If any violations are found, we will look forward to conferring with you and your staff concerning corrective actions that might be appropriate.
As a means of commencing this investigation, I wish to propose an initial meeting in the near future between our attorneys and representatives of your office. It has. been our experience that such a preliminary conference can substantially expedite the investigation process. We will also wish to arrange for our attorneys, consultants, and perhaps agents of the Federal Bureau of Investigation to visit the facility. We shall be in touch with your staff to work out the specifics of our meeting and later visits.

cc: Records Chrono Peabody Katz FitzGerald Hold John Wilson

Lawrence

I greatly appreciate your cooperation in this natter. Sincerely,
Um. Bradford Reynolds Assistant Attorney General
Civil Rights Division
cc: Leroy S. Zimraernan, Esquire Attorney General llr. Walter Cohen Director
Department of Public Welfare
ilr. Alan M. Bellono, Director Ebensburg Center J. Alan Johnson, Esquire United States Attorney

 
 U.S. Departmeu. of Justice Civil Rights Diyision

Office of the Assistant Attorney General

Washington, D.C. 20530

Honorable Robert Casey Governor Commonwealth of Pennsylvania Governor's Executive Office Room 225 Main Capitol Building Harrisburg, Pennsylvania 17120

Re: Notice of Findings Regarding the Ebensburg Center. 42 U.S.C. Section 1997b(aUll

Dear Governor Casey:

On August 8, 1986, we notified you that, pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. Section 1997, we were commencing an investigation into conditions at the Ebensburg Center in Ebensburg, Pennsylvania. As contemplated by the statute, 42 U.S.C. Section.1997b, we are writing to inform you of the findings of our investigation and the minimum measures required to remedy the unconstitutional conditions at the Ebensburg Center identified by our investigation.

As part of our investigation, Special Litigation Section

attorneys conducted tours of Ebensburg with three private

consultants. Our consultants examined resident records,

interviewed the facility director and numerous staff members and

spoke with residents. We also reviewed numerous documents

provided by the facility, concerning a wide range of procedures

and activities.

. •

Our extensive investigation reveals that conditions exist at Ebensburg which deprive residents of their constitutional rights. Institutionalized mentally retarded persons have a constitutional right to adequate medical care and such training as an appropriate professional would consider reasonable to ensure their safety and freedom from undue bodily restraints. Younaberq v. Romeo. 457 u'.S. 307, 324 (1982).

Set out below are our findings and recommendations. We will discuss only those conditions which we believe are violative of constitutional rights. Those unconstitutional conditions include Ebensburg's failure to provide minimally adequate training

U.S. v. Pennsylvania

I,

MR-PA-006-002

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;i

sufficient to protect residents from unreasonable risks to their health and safety and from undue bodily restraints and the • facility's failure to provide minimally adequate medical care.

INADEQUATE TRAINING AND UNDUE PHYSICAL RESTRAINT

Ebensburg Center fails to provide its residents with adequate training programs and, as a result, systematically overuses, and misuses, physical restraints.

a. Absence of Training Programs. Professionally designed and implemented training programs for mentally retarded individuals with self-injurious or aggressive behaviors are an important means of eliminating or reducing those behaviors. The Supreme Court in Younobera specifically held that mentally retarded individuals are constitutionally entitled to such training as an appropriate professional would consider reasonable to ensure their safety and freedom from undue bodily restraint. Ebensburg fails to provide such training, and residents suffer physical injuries and undue bodily restraint as a result.

Our psychologist consultant's review of resident charts revealed that physical restraints are used excessively. Our consultant attributed the undue use of restraint, in part, to the absence of adequate behavior management procedures. Adequate training for residents is also critical to prevent undue use of chemical restraint. At the time of our psychopharmacologist's tour almost one-half of Ebensburg's residents received psychotropic medication. While our expert noted that efforts are underway to reduce drug usage, the success of such efforts depends on much greater attempts to develop appropriate behavior training programs and integrate psychotropic medication use with such programs.

When training programs are written for Ebensburg residents, many are so deficient as to fall below the level of any acceptable professional standard. For effective behavior management to take place, Ebensburg must properly assess the needs of residents, develop appropriate training programs, and insure that such programs are implemented by professionals who are competent and qualified to do so.
b. Use of Restraints. As noted above, physical restraints are used at Ebensburg in- lieu of minimally adequate training programs. In addition, they are used for the convenience of staff and as punishment. Our expert concluded that there is a systematic overuse, and misuse, of physical restraints at the facility.
Our review of resident records found numerous cases in which residents had standing orders for restraints irrespective of need. These orders are clear evidence that restraints are not

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;.•'

being used for particular residents for specific reasons and are

being used randomly by staff absent any justification. Such use

represents a substantial departure from accepted professional

judgment.

—

In sum, the undue use of bodily restraint at Ebensburg is consistent with an insufficient and improperly trained staff and the lack of appropriately implemented behavior management procedures. The presence of these factors has forced the Ebensburg staff into an over reliance on physical restraint.

c. Resident Safety. As a result of Ebensburg's failure to provide minimally adequate training programs, residents at the facility are not being provided with a reasonably safe environment. Our review of resident records noted a high rate of ma1adaptive and self-injurious behavior resulting in a high injury rate among the resident population. Without professionally designed training programs and a sufficient number of trained staff to implement those programs, Ebensburg residents will continue to suffer otherwise preventable harm.

MEDICAL CARE

a. Nursing Services. Ebensburg residents are also put at unnecessary risk of harm due to the lack of a sufficient number of adequately trained nursing staff members. The existing nursing staff is poorly organized and lacks the coordination and communication with other staff essential to the exercise of professional judgment regarding residents' medical and nursing care. Health care plans are not individualized to identify and provide for each resident's needs. Clinical supervision of nurses is almost non-existent and nurses, in turn, do not supervise direct care staff responsible for basic health care surveillance. Our nursing consultant concluded that the lines of authority, responsibility and accountability for nursing are so unclear and fragmented as to seriously compromise the continuity of care provided.

b. Infection Control. Aside from staffing, measures are not in place to either prevent, identify, or control infections acquired at Ebensburg or brought into the facility from the community. Even basic elements of an infection control program are not in place and a system for reporting, evaluating, and maintaining records of infections among patients and staff does not exist. Such procedures are especially necessary, because of the numerous potentially infectious injuries residents receive from bites, scratches, falls and various forms of self-injurious behaviors existing at Ebensburg.

c. Physical Management of Severely Handicapped Residents. A review of the physical therapy staff and services available at Ebensburg shows that residents are not receiving adequate

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.-;

physical therapy services. Such therapy is; essential given the large number of physical deformities and mobility problems among the resident population. Ebensburg does not employ a sufficient number of physical therapists and therapy aids to ensure-that residents are not suffering skeletal or muscular breakdown from the lack of such therapy. Essential adaptive equipment, such as wheelchairs, is often broken or ill-fitted, thus causing new physical problems or exacerbating old ones.

INSUFFICIENT NUMBER OF QUALIFIED STAFF

Ebensburg is currently understaffed at both the direct care and professional levels. Moreover, staff are not fully qualified to assume all their job responsibilities and are poorly supervised. An insufficient number of qualified staff at the Center contributes to, and exacerbates, the deficiencies in care previously mentioned.

a. Prbfessional Staff. By far the most serious shortage of staff at Ebensberg Center is in the nursing department. Physical disabilities, mobility and visual handicaps, diseases, complex medical conditions, digestive -problems, and age-related needs are common among Ebensburg residents. Frequent accidents and other incidents often resulting in injury from scratches, bites, cuts, bruises, and fractures, and the accompanying risk of infections posed by open wounds, add to the demands on nursing staff. At present, there are too few nurses to provide needed services. The number of nurses actually on duty during a one week period reviewed by our nursing expert fell well below the facility's own minimum staffing levels. The six nursing supervisors spend at least one third of their time on administrative duties; there is no nursing supervision on the evening or night shifts. The administration of medications facility-wide alone requires Ebensburg nurses to prepare, dispense, and document administration of 2411 regularly scheduled individual doses of medication. These duties leave no nurse to appropriately respond to emergencies and accidents, and perform treatments direct' care staff cannot provide. It^ is crucial that Ebensburg Center increase its nursing staff if residents are not to remain at risk to their health and safety.

There are also too few physical therapists and therapy aids to serve the many Ebensburg residents with severe physical disabilities. Our expert criticized both the evaluation process for determining who is in need of physical therapy to prevent body deformities, contractures, and other physical problems, and the ability of the existing physical therapy staff to provide such services to those residents the facility identifies as in need. Residents in need of these health related services are placed at undue risk of contractures, bodily deformity, and other serious threats to their physical health.

n

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;?•

2. Ebensburg must hire and deploy a sufficient number

of adequately trained direct care andfother professional

staff to provide residents with the training described in

the preceding paragraph.

.'- -"

3. Ebensburg must hire and deploy a sufficient number of adequately trained nursing staff members to prevent residents from being placed at undue risks to their health and safety.

4. Ebensburg must establish an effective infection control program that will ensure continual prevention, identification and response to infections.

5. Ebensburg must hire and deploy a sufficient number of adequately trained physical therapists and physical therapy aids to ensure that residents are not at an undue risk from skeletal or muscular breakdown or the development of other physical conditions posing serious risks to their physical health.

We are willing to make our experts available to the Commonwealth of Pennsylvania to provide technical assistance in remedying the deficiencies we have identified. Information about federal financial assistance which may be available to assist with the remediation process can be obtained through the United States Department of Health and Human Services Regional Office and through the United States Department of Education by contacting the individuals listed in the attached information guide.

Our attorneys will be contacting Counsel for the Department of Public Welfare shortly to arrange for a meeting to discuss this matter in greater detail. To date, we have been able to conduct this investigation in the spirit of cooperation intended by the Civil Rights of Institutionalized Persons Act, and look forward to continuing to work with state officials in that spirit toward an amicable resolution of this matter.

Sincerely,

Wm. BradforaReynolds Assistant Attorney General
Civil Rights Division

o

o

- 7 -
cc: Leroy S. Zimmerman, Esquire Attorney General
John F. White, Jr. Secretary, Department of Public
Welfare
John A. Kane, Esquire Chief Counsel Department of Public Welfare
Alan M. Bellomo Director, Ebensburg Center
J. Alan Johnson, Esquire United States Attorney

 
 U.S. v. Pennsylvania

MR-PA-006-004
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,
Plaintiff,
v.
COMMONWEALTH OF PENNSYLVANIA; Robert Casey, Governor of the Commonwealth of Pennsylvania; Karen F. Snider, Acting Secretary Department of Public Welfare; Steven M. Eidelman, Deputy Secretary of Mental Retardation Office of Mental Retardation; Alan M. Bellomo, Director Ebensburg Center;
Defendants.

Civil Action No Complaint Civil Rights

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 Ebensburg Center ("Ebensburg") of rights, privileges or immunities secured or protected by the Constitution of the United States.
2. This Court has jurisdiction over this action pursuant 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 Western District of Pennsylvania is proper pursuant to 28 U.S.C. §1391. All claims set forth in the Complaint arose in said District.
6. Defendant COMMONWEALTH OF PENNSYLVANIA owns and operates Ebensburg, a state facility for mentally retarded people located in Ebensburg, 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 Acting Secretary of DPW and, in this capacity, exercises administrative control of, and responsibility for, Ebensburg.
9. Defendant STEVEN M. EIDELMAN is the Deputy Secretary of Mental Retardation, Office of Mental Retardation who, along with Defendant WHITE, is responsible for the administration of Ebensburg.
10. Defendant ALAN M. BELLOMO is the Director of Ebensburg and is responsible for the day-to-day operations of Ebensburg.
11. The individual Defendants named in paragraphs 7, 8, 9 and 10 above are officers of the Executive Branch of the
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Commonwealth of Pennsylvania and are sued in their official capacities.
12. Ebensburg is an institution within the meaning of 42 U.S.C. §1997(1).
13. Persons residing at Ebensburg 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 Ebensburg, 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.
16. Defendants have failed and are continuing to fail to provide residents residing at Ebensburg with that level of individualized training and behavioral programming necessary to ensure that residents are free from undue bodily restraint, including chemical restraint, or unreasonable risks to their personal safety.
17. Defendants have failed and are continuing to fail to provide adequate medical care to Ebensburg residents.
18. Defendants have failed and are continuing to fail to employ staff and practices needed to maintain professionally based recordkeeping and record review systems to ensure that resident records contain accurate, up-to-date and relevant information as is necessary to enable staff to exercise

professional judgment regarding medical treatment and training decisions.
19. Defendants have failed and are continuing to fail to ensure that bodily restraints are administered to persons confined at Ebensburg only pursuant to the exercise of professional judgment by appropriately qualified professionals and are not used as punishment, in lieu of treatment, or for the convenience of staff.
20. Defendants have failed and are continuing to fail to prescribe and administer psychotropic medication safely and pursuant to the exercise of professional judgment by appropriately qualified staff.
21. The acts and omissions alleged in paragraph 16 through 20 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 residents of Ebensburg of such rights, privileges or immunities.
22. Unless restrained by this Court, Defendants will continue to engage in the conduct and practices set forth in paragraphs 16 through 20 that deprive residents of Ebensburg of rights, privileges, or immunities secured or protected by the Constitution of the United States, and cause irreparable harm to Ebensburg residents.
23. The Attorney General is authorized under 4 2 U.S.C. §1997a to seek only equitable relief.
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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 Ebensburg set forth in paragraphs 16 through 20 above, and to require defendants to take such action as will provide constitutional conditions of care to persons who reside at Ebensburg. The United States further prays that this Court grant such other and further equitable relief as it may deem just and proper.
Respectfully submitted,

IOMAS W. CORBETT, United States Western Distri
"Pennsylvania

WILLIAM P. BARR Attorney General of the United States
(CTOBiN R. DUNNE \Assistant Attorney General Civil Rights Division
ARTHUR E. PEABODY^TR. Chief Special Litigation Section
MELLIE H. NELSON Deputy Chief Special Litigation Section

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SUSAN BOVfERS PHILIP A. GUZMAN JUDITH C- PRESTON Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 320 First Street, NW Washington, DC 20530 (202) 514-6252 (202) 514-6264 (202) 514-6258
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(§ffltz of ti|* Attorney (general
H3aBt|tngt0n. S.OL 2D53D

CERTIFICATE OF THE ATTORNEY GENERAL

I, William P. Barr, 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 13th day of January Washington, D.C.

, 1992, at

WILLIAM P. BARR Attorney General
of the United States

 
 U.S. v. Pennsylvania
MR-PA-006-005
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN 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; Alan M. Bellomo, Director, Ebensburg Center;
Defendants.

Civil No. 92-33J Hon. D. Brooks Smith

I

1

UNITED STATES7 PROPOSED ORDER

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

)

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

:-•

)

'•!

COMMONWEALTH OF PENNSYLVANIA;

) Civil No. 92-33J

Robert Casey, Governor of the

) Hon. D. Brooks Smith

;7.

Commonwealth of Pennsylvania;

)

Karen F. Snider, Secretary,

)

Department of Public Welfare;

)

Nancy Thaler, Deputy Secretary

)

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of Mental Retardation,

)

H

Office of Mental Retardation;

)

Alan M. Bellomo, Director,

)

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Ebensburg Center;

)

,$

)

Defendants.

)

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)

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ORDER

Based upon the evidence adduced during the trial of this

1

case, the post-trial memoranda submitted by the parties, and the

entire record herein,

IT IS HEREBY ORDERED THAT Defendants, the Commonwealth of

:-

Pennsylvania, et <al., shall take the following measures by the

dates indicated below to correct the unconstitutional conditions

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of confinement at Ebensburg Center, Ebensburg, Pennsylvania.

I. PRIORITY MEASURES TO PROTECT EBENSBURG RESIDENTS FROM HARM The Commonwealth shall immediately take steps to eliminate
the risk of harm to Ebensburg residents resulting from their behaviors, the actions of other residents and staff, and/or their physical or medical condition. In order to achieve and maintain this outcome, the Commonwealth shall take the following actions within ten days of this Order:
A. Provide adequate staff supervision and intervention to protect residents when they become self-injurious or aggressive, including 1:1 staffing for residents exhibiting serious selfinjurious or aggressive behaviors and any other resident who requires such staffing to ensure safety.
B. Provide adequate staff supervision and intervention to prevent residents from engaging in dangerous mealtime behaviors, including eating too rapidly or putting too much food in their mouths.
C. Cease using intramuscular medication and medication by mouth to treat status epilepticus and ensure that any resident in status receives immediate and adequate emergency assistance.
D. Ensure that a physician examines and assesses residents experiencing acute or emergency illness or injury, as opposed to treating them over the telephone.
E. Ensure that direct care staff immediately report any potential injuries to a nurse and ensure that the nurse contacts a physician who responds in a timely manner to any emergency.

6. In order to ensure consistent implementation of training

programs, within 120 days of the entry of this Order, the

Commonwealth shall provide adequate competency-based training for

all staff responsible for implementing the programs to train

staff in how to implement the programs and collect appropriate

data. The Commonwealth shall thereafter conduct regular,

periodic follow-up evaluations of staff competency in

implementing programs and provide additional training, as

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necessary.

7. Within 120 days of the entry of this Order, the

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Commonwealth shall implement systems for verifying that the

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recorded data are reliable and ensuring that qualified

professionals review and appropriately modify any individual's

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training program where the individual has exhibited no measurable

progress for a reasonable period of time. In order to accomplish

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this, the Commonwealth shall implement, at a minimum, the

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following actions:

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a. The individual's IDT shall evaluate the efficacy of the

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training programs for each individual with the following

frequency:

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(i) For individuals with self-injurious, aggressive,

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biting, or pica behavior, the IDT shall meet on at least a

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monthly basis, or more frequently, if necessary, to review the

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individual's progress in the training programs.

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(ii) For individuals exhibiting deterioration or new dangerous behaviors, the IDT shall meet immediately to review the efficacy of the training programs.
(iii) For all other individuals, the IDT shall meet on at least a quarterly basis to review the individual's progress in the training programs and evaluate the efficacy of the programs. The IDT shall base its review of the efficacy of the training programs on the data collected as well as the occurrence of incidents and use of restraints. If the IDT identifies the need to revise the training program, it shall be revised and consistently implemented within 15 days.
b. Ensure that at every meeting of Ebensburg's Behavior
Intervention Committee ("BIC"), there is adequate professional representation, including a psychologist, physician, psychiatrist, and pharmacist. The BIC shall review the training programs of and progress notes relating to each individual who exhibits self-injurious or aggressive behavior and/or is subject to restrictive programming, frequent behavior control procedures, or receives behavior modifying medication, to ascertain whether: (i) there are sufficient behavioral data recorded, (ii) such data are reliable, and (iii) the continuation of the current training 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 training or treatment program is otherwise not justified, the matter shall be referred to the appropriate IDT which shall, within 15 days from the
- 9-

referral, modify the existing program and/or data collection

procedure in accordance with accepted professional standards and

ensure that the modifications are implemented.

8. Within 120 days of the entry of this Order, Defendants

shall provide adequate hearing, vision, and communication

services to residents. To this end, and at a minimum, Defendants

shall:

a. Develop, and implement programs, including the use of

augmentive devices as needed, for each resident with

communication deficits, including deaf or hearing impaired

residents, to teach appropriate communication skills, including

sign language and the use of communications boards. For hearing

impaired residents for whom amplification is effective,

amplification devices shall be provided, along with any training

necessary to allow the resident to use or become accustomed to

wearing such devices. On units housing resident who are being

I

taught sign language, at least one direct care staff person on each shift shall be taught sign language.

I

b. Assess and evaluate each resident with a vision

impairment to determine his or her need for eyeglasses. Where

needed, eyeglasses shall be provided along with training designed

to ensure the resident can and does wear them.

IV. BODILY RESTRAINTS

The Commonwealth shall ensure that bodily restraints are

used only pursuant to accepted professional standards and that

they are never used as punishment, in lieu of training programs,

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or for the convenience of staff. In order to fulfill this

requirement, the Commonwealth shall take, at a minimum, the

following actions within the deadlines set forth below:

A. Immediately refrain from resuming use of papoose boards

and restraint jackets, except when an individual determination

has been made that such restraint is necessary for physical

support during the execution of medical or surgical procedures.

Where a papoose board or other mechanical restraint is necessary

during a medical or surgical procedure, the resident shall have a

behavior plan to reduce or eliminate the need for such restraint.

B. Within 3 0 days of the entry of this Order, identify each

Ebensburg resident who has had a mechanical restraint, personal

restraint, emergency chemical restraint, or long-term chemical

restraint during the past year.

C. Within 60 days of the entry of this Order, conduct a

formal, written, comprehensive functional analysis of each

individual identified pursuant to 5 IV.B, herein.

D. Within 90 days of the entry of this Order, for each

person identified pursuant to f IV.B, herein, develop a

comprehensive training plan in accordance with 5 III.F, above.

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In addition, develop an individualized behavior management plan,

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specifying:

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1. the behavior to be eliminated, the function of the

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behavior to be eliminated, and the specific behavior, clearly and

objectively defined, which triggers the use of the restraint;

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2. behaviors to be taught to the individual to replace

1

the behavior that initiates the use of the restraint and other

programs to reduce or eliminate the use of such restraint;

3. the restriction, i.e.. type of restraint

authorized, including the restriction's maximum duration and

other limitations, when employed;

4. the professional responsible for the program and

the staff authorized to implement it;

5. the frequency and manner in which behavioral data

are to be recorded by direct care staff; and

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6. the date on which the program will terminated.

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E. Within 180 days of the entry of this Order, the use of

mechanical, personal, or chemical restraint as part of a training

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program shall be prohibited except in those situations where

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there is written evidence in the individual's record that other,

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less restrictive techniques have been systematically tried and

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consistently implemented as part of a professionally designed

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training program and accurate, objective data have demonstrated

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such techniques to be ineffective. Any use of restraint shall be

the least restrictive form of restraint.

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F. Within 120 days of the entry of this Order, the

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individual's primary psychologist shall review each use of

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mechanical, personal, or chemical emergency restraint and

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ascertain the circumstances under which such restraint was used.

The review shall take place within 24 hours. The results of this review shall be promptly reported to the BIC, which will review

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the information and, within four days of the completion of the

review, determine whether the individual needs a behavior program

or whether an existing program should be modified. Restrictive

measures will be continued in individuals' programs only if

reliable data supports the necessity of their continued use. The

BIC shall record these recommendations and transmit them to

appropriate staff as well as Ebensburg Center management, who

shall be responsible for ensuring that any new program or revised

•

programs are developed and implemented promptly following receipt

of the recommendations.

§

V. MEDICAL CARE

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The Commonwealth shall ensure that Ebensburg individuals

receive adequate preventive, chronic, routine, acute, and

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emergency medical care. In order to fulfill this requirement,

the Commonwealth shall take, at a minimum, the following actions

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within the deadlines set forth below:

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A. Immediately ensure that each individual is provided

with a specialty consultation on a timely basis when necessary to

9

evaluate or treat the individual's medical problems. In

particular, Defendants shall ensure that each resident whose

medical condition warrants a gastroenterology consultation

receives an adequate consultation and appropriate diagnostic

tests.

B. Immediately ensure that each resident's primary care

physician takes appropriate action to respond to recommendations

of outside medical specialists, including regular consultants,

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and laboratory findings, documenting what action has been taken and the reason therefor.
C. Within 30 days of the entry of this Order, ensure that the individual's primary care physician meets with any consultant providing a specialty consultation at Ebensburg for the individual.
D. Within 30 days of the entry of this Order, provide adequate respiratory therapy services to individuals who need them and ensure that decisions regarding respiratory therapy services are made by the individual's physician, in consultation with the nurse, respiratory therapist, physical therapist and the involvement of the IDT.
E. Within 45 days of the entry of this Order, ensure that each individual with a chronic medical problem has appropriate assessments of the problem and a medical plan of care to address the problem that comports with current accepted standards of care for people with developmental disabilities.
F. Within 60 days of the entry of this Order, ensure that each individual's medical status and progress in response to the individual's medical plan of care is fully and adequately reviewed by the primary care physician at least every 30 days and during a comprehensive, cumulative annual review.
G. Within 30 days of the entry of this Order, develop and implement a peer review and quality assurance system to ensure that all physicians and nurses treating individuals at Ebensburg are operating within accepted standards of care for people with

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developmental disabilities and regularly receive continuing education in the health care of people with developmental disabilities.
H. Within 90 days of entry of this Order, retain the services of medical specialists to train Ebensburg's primary care physicians 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 feeding and nutrition; and 4. Behavioral and psychiatric disorders, including psychopharmacologic treatment of such disorders and sideeffects of behavior modifying medication. Defendants shall document that such training occurred, including maintaining a list of those in attendance as well as clinical areas covered. I. Within 120 days of the entry of this Order, ensure that all physicians who treat individuals at Ebensburg have hospital privileges at the local hospital where Ebensburg individuals are sent for emergency and acute care and that such physicians are active participants in the individual's course of care while at the hospital, where appropriate. When an individual is returned

,•

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from the hospital, the primary care physician shall write orders

;

specifying the individual's follow-up care.

VI. PSYCHIATRIC TREATMENT AND USE OF PSYCHOTROPIC MEDICATIONS

The Commonwealth shall provide adequate and appropriate

routine and emergency psychiatric and mental health services in

accordance with accepted professional standards to residents who

need such services. Psychotropic medication shall only be used

in accordance with accepted professional standards and shall not

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be used as punishment, in lieu of a training program, for

behavior control, or for the convenience of staff. To this end,

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Defendants shall, at a minimum:

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A. Within 6 months of entry of this Order, cease using

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chronic psychotropic medications to control behaviors where the

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use of such medications is solely for behavior control purposes

and not for the treatment of a mental illness or psychiatric

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disorder that has been diagnosed by a board certified

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psychiatrist, with experience in treating individuals with a dual

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diagnosis of mental illness and mental retardation, based upon

6

objective, accurate data.

B. Within 90 days of entry of this Order, conduct a

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comprehensive assessment of each individual who receives

psychotropic medications. At a minimum, this assessment shall

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include a formal, written, comprehensive functional analysis and

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objective data collected pursuant to 5 III.B, above.

C. Within 120 days of entry of this Order, have a board

certified psychiatrist, with experience in treating individuals

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with a dual diagnosis of mental illness and mental retardation, conduct a comprehensive evaluation of each Ebensburg resident receiving psychotropic medication. This evaluation shall include, at a minimum:
1. observation of the resident; 2. examination of relevant portions of the resident's medical and behavioral record; 3. review of the assessment information conducted pursuant to 5 V L B , herein; 4. a meeting with Ebensburg staff who have been involved in the care and treatment of the individual, including the resident's primary care physician, nurse, psychologist, direct care staff, and other relevant members of the IDT; 5. formulation of a diagnosis, considering differential diagnoses where appropriate; 6. consultation with the assigned psychologist to determine whether the existing behavior management program is appropriate and whether different programs or interventions could be developed to address the resident's target behaviors and/or symptoms so as to reduce or eliminate the need for psychotropic medications; 7. review of the current medication regimen of each individual to determine whether the type and dosage of the medication is appropriate, and recommendation of any changes in the medication regimen;

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8. in consultation with the resident's primary care

physician, psychologist, nurse, and other appropriate members of

the resident's IDT, a determination as to whether the harmful

effects of the resident's mental illness clearly outweigh the

possible harmful side effects of the psychotropic medication and

whether all reasonable alternate treatment strategies are likely

to be less effective or potentially more dangerous than the

medication; and

9. development of an overall treatment plan for each

resident with a diagnosis of mental illness.

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D. Once treatment has begun, conduct formal, written,

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ongoing monitoring and review of the efficacy of any drug or non-

drug treatment used for any mental illness or psychiatric

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disorder. Such monitoring and review shall utilize objective

data collected pursuant to 1(111.B so as to ensure that the

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individual is receiving benefit from the treatment.

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E. Within 120 days of entry of this Order, provide

psychiatric or psychological counselling to each resident whose

9

mental health needs require such counselling. In particular,

Defendants shall provide adequate counseling for maladaptive

1

sexual behavior.

F. Within 90 days of entry of this Order, transfer any

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resident whose psychiatric needs require acute or long-term

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psychiatric treatment to an appropriate mental health facility.

G. Within 120 days, review the efficacy of psychotropic

medication usage on a monthly basis for every resident who

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receives them. A psychiatrist with experience in mental illness

v

and mental retardation shall be present at the review, along with

other professional and direct care staff involved in the

resident's care and treatment.

H. Within 60 days, develop and implement an adequate system

for detecting, reporting, and responding to any drug-induced side

effects of psychotropic medication, including tardive dyskinesia

and extra pyramidal symptoms.

:

I. Within 120 days of entry of this Order, require a

psychiatrist to serve on the IDT of any resident whose individual

1

plan of service includes the use of behavior modifying medication

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or for whom such has been recommended. In addition, a

psychiatrist shall serve on the IDT of any individual who

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receives, or is recommended to receive, other mental health

services.

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VII. SEIZURE MANAGEMENT AND USE OF ANTICONVULSANTS

B

Defendants shall provide adequate and appropriate routine,

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chronic, and emergency seizure management to all individuals at

9

Ebensburg with epilepsy in accordance with accepted professional

standards of care. In order to fulfill this requirement, the

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Commonwealth shall implement, at a minimum, the following steps

within the deadlines set forth below:

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A. Within 10 days of entry of this Order, develop and

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implement a protocol in accordance with the policies contained in

the position statement of the Epilepsy Foundation of America,

entitled "Treatment of Convulsive Status Epilepticus" and

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published in the Journal of the American Medical Association on

i

August 18, 1993, that specifies the steps that Ebensburg will

take whenever a resident is experiencing status epilepticus.

B. Within 90 days of this Order, identify residents who

sustain injuries during seizure activity and, for each such

resident, develop and implement adequate protection measures to

prevent injuries during seizures and monitor the measures to

ensure they are being implemented and are effective.

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C. Within 90 days from the entry of this Order, provide

each Ebensburg resident with epilepsy or with a history of

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seizure disorders with a comprehensive assessment by a board

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certified neurologist with experience in developmental

disabilities. Such assessment shall include, at a minimum:

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1. a diagnosis of the seizure type according to the

International Classification of Epileptic Seizures;

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2. an EEG or other appropriate brain imaging study,

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where appropriate;

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3. a description of the etiology of the epilepsy;

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4. an evaluation of whether the type of anticonvulsant

medication(s) is appropriate for the type of seizure and

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represents the fewest number of medications appropriate for

effective seizure management; and

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5. the remedial plan when inappropriate multiple

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medications are identified.

D. Within 120 days of entry of this Order, ensure that

Ebensburg residents are not kept on anticonvulsants that serve no

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therapeutic purpose or are maintained on potentially toxic levels

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for prolonged periods with no documented rationale in the record

demonstrating the efficacy of such treatment.

;

E. Within 120 days of entry of this Order, ensure that a

board certified neurologist with experience treating mentally

retarded individuals with epilepsy reviews each Ebensburg

resident with epilepsy at least annually, and more frequently if

the resident's condition warrants it.

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VIII. NURSING CARE

Defendants shall ensure that residents receive adequate

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nursing care, and that Ebensburg nurses perform their

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responsibilities in keeping with accepted professional standards

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of care by adequately identifying health care problems, notifying

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physicians of health care problems, monitoring and intervening to

ameliorate such problems, and keeping appropriate records of

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residents' health care status. To this end, and at a minimum,

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Defendants shall ensure that, by not later than 120 days following entry of this Order, nurses are trained to and do

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perform the following functions:

A. Conduct adequate, comprehensive assessments of the

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nursing care needs of Ebensburg residents.

B. Properly identify or evaluate residents experiencing

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acute events such as vomiting, increased respiratory rate or

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other acute episodes, to determine the etiology of the event or

illness.

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C. Develop and implement a system for recording important

'.

information about a resident's status, including weight, seizure

activity, reactions to medications, and bowel patterns, in flow

chart form to track and monitor changes in the resident's status.

D. Recognize and react to significant changes in residents'

nutritional and medical status, such as weight and hydration.

E. Routinely perform ongoing monitoring of serious medical

conditions, including such basic procedures as taking vital signs

and abdominal girth measurements, where warranted.

F. Develop and implement adequate and appropriate

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comprehensive nursing care plans to address each resident's

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health care needs, in accordance with accepted professional

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practices.

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G. Develop and implement a policy outlining the

circumstances under which Ebensburg nurses must contact a

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physician to report a change in the resident's medical condition,

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an injury to the resident, or a physical complaint.

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H. Develop and implement a protocol for recording nursing

8

progress notes.

I. Develop and implement an adequate quality assurance

system to monitor nursing care practices and take corrective

action when problems are identified.

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J. Ensure that residents are bathed adequately and that

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sanitation and infection control techniques are used to control

the prevalence of flies and ants in living, program, and dining

areas.

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IX. NUTRITIONAL MANAGEMENT

The Commonwealth shall provide each individual at Ebensburg

with adequate and appropriate nutritional management in

accordance with accepted standards of care. In order to fulfill

this requirement, Defendants shall implement, at a minimum, the

following steps within the deadlines set forth below:

A. Coordinator of Nutritional Management

Within 20 days of the entry of this Order, designate, with

the approval of the United States, a competent and qualified

professional to serve as a Coordinator of all services at

Ebensburg involving the feeding and nutritional management of

Ebensburg residents. The Coordinator shall have the requisite

skills and experience to oversee feeding and nutritional/physical

management services at Ebensburg, to provide advice and guidance

to Ebensburg staff, and to train them with respect to feeding and

nutritional/physical management practices which comport with

accepted professional standards. The Coordinator shall provide

I

monthly reports to the Monitor with respect to Defendants'

i

compliance activities in this area.

B. Steps to be taken for residents at risk due to

aspiration, serious complications from gastroesphaaeal

reflux, and malnutrition

1. For individuals whose nutritional, respiratory, or

medical condition pose life-threatening risks, within 20 days of

the entry of this Order, have qualified professionals

comprehensively evaluate and identify medical, surgical, dietary,

feeding, and positioning needs of each such individual. Such

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evaluations shall be inter-disciplinary, shall include any

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necessary diagnostic tests, and shall, where appropriate, be

conducted by an oral motor specialist, a primary care physician,

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a gastroenterologist, a nurse, and any other necessary

specialists. Immediately after such evaluation, an appropriate

interdisciplinary team shall develop and implement a

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comprehensive treatment plan.

2. Within 15 days of the entry of this Order, develop

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screening indicators according to accepted professionals

standards to identify individuals who are aspirating, are at risk

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of aspirating, have silent aspiration syndrome, and/or who have

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symptoms of gastroesphageal reflux.

3. Within 35 days of the entry of this Order, have

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qualified and adequately trained staff use the screening

indicators to screen every Ebensburg resident.

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4. Within 60 days of the entry of this Order, have

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qualified professionals comprehensively evaluate each individual

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identified pursuant to fl IX.B.I, herein, and identify the

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medical, dietary, feeding, and positioning needs of each such

individual. Such evaluations shall be inter-disciplinary, shall

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include any necessary diagnostic tests, and shall, where

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appropriate, be conducted by an oral motor specialist, a primary

^

care physician, a gastroenterologist, a nurse, and any other

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necessary specialists.

5. Within 75 days of the entry of this Order, take any

appropriate medical or surgical steps to ameliorate the

-24-

individual's aspiration risk and develop and implement an

individualized feeding and positioning plan for each individual

identified as at risk of serious illness, injury, or death due to

aspiration.

C. Other Individuals with Nutritional Management Difficulties

1. Within 90 days of the entry of this Order, identify

each individual who has nutritional management problems,

including difficulty swallowing, chewing, or retaining,

assimilating, or eliminating food and/or liquids.

2. Within 120 days of the entry of this Order, have an

interdisciplinary team of oral motor specialists, a dietician, a

physician, and a pharmacist comprehensively assess each

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individual identified pursuant to 5 IX.C.I, herein, to identify

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the physiological and/or pharmacological causes for the

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nutritional management problems.

3. Within 30 days after each nutritional assessment is

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completed, take any necessary medical or surgical steps and have

a qualified professional develop and ensure the implementation of

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a written feeding and positioning program for each individual for

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whom such a need is identified.

D. Procedures and protocols

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1. Within 30 days of entry of this Order, develop and

implement a procedure for synthesizing and summarizing data about

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each Ebensburg resident's mealtime food and liquid intake.

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2. Within 30 days of the entry of this Order, develop

and implement a protocol governing the circumstances under

-25-

information must be communicated to a physician regarding an

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individual's nutritional status, including but not limited to

episodes of choking, emesis, constipation, diarrhea, and food

refusal.

3. Within 30 days of the entry of this Order, develop

and implement a nursing care protocol for treatment and enhanced

;

monitoring of residents who are at risk of aspiration.

E. Staff Training

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1. Within 60 days of the entry of this Order, train

all Ebensburg nurses and other appropriate staff to regularly

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assess individuals for gastroesophageal reflux, chronic

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aspiration syndrome, silent aspiration syndrome, and signs and

symptoms of gastrointestinal problems and establish procedures to

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ensure that such assessments take place on a regular basis.

2. Within 5 days of the development of a feeding plan

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for any Ebensburg resident, have qualified professional staff

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train every direct care staff person responsible for feeding the individual for whom the plan has been devised. The training

1

shall be competency based and require a return demonstration.

Thereafter, staff responsible for feeding the individual shall

have regular, periodic, refresher competency based training.

Such training shall be documented.

3. Within 5 days of completing an individualized

feeding plan for any Ebensburg resident, develop photographic and

written instructions for staff that illustrate the plan.

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4. Within 60 days of the entry of this Order, develop and implement a quality assurance system to ensure that staff correctly feed residents according to their individualized feeding plan.
F. Individuals who eat in an unsafe manner 1. Within 20 days of the entry of this Order, identify
each individual who eats in an unsafe manner because of rapid eating, body or head position, placing too much food in the mouth, taking additional bites of food before swallowing, and /or a history of choking, coughing, or vomiting during or immediately after a meal.
2. Within 50 days of the entry of this Order, have a team of qualified professionals, including oral-motor specialists and psychologists, assess each individual identified pursuant to 5 IX.F.I, herein, and develop an individualized mealtime plan to address the individual's difficulty with eating and teach the resident appropriate eating skills.
3. Train each staff person who works with each individual identified pursuant to f IX.F.I, herein, in how to implement the individualized mealtime plan through competency based training and return demonstrations and ensure that the mealtime plan is implemented appropriately and consistently by routine monitoring of each staff person while he or she is implementing the mealtime plan.
4. Develop and implement a system at each mealtime to monitor and supervise individuals who eat independently to ensure
-27-

that they follow safe eating practices and to identify and

I

correct any unsafe meal practices.

X. PHYSICAL MANAGEMENT

The Commonwealth shall provide each individual at Ebensburg

with adequate and appropriate physical management in accordance

with accepted standards of care. The goal of residents' physical

\

management programs at Ebensburg shall be to enhance the capacity

of the individual to function, i.e.. to help him or her to live

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safely and as independently as possible. In order to fulfill

this requirement, the Commonwealth shall implement, at a minimum,

the following steps within the deadlines set forth below:

§

A. Coordinator of Physical Management

Within 20 days of the entry of this Order, designate, with

S3.

the approval of the United States, a competent and qualified

professional to serve as a Coordinator of all services at

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Ebensburg involving the physical management of Ebensburg

_

residents. The Coordinator shall have the requisite skills and

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experience to oversee physical management services at Ebensburg,

S

to provide advice and guidance to Ebensburg staff, and to train

them with respect to feeding and nutritional/physical management

'.;.V:

practices which comport with accepted professional standards.

^

The Coordinator shall provide monthly reports to the Monitor with

^

respect to Defendants' compliance activities in this area.

H

B. Assessment

1. With 30 days of the entry of this Order, develop a

comprehensive assessment form for physical therapists to use in

-28-

evaluating and assessing Ebensburg residents with physical

1

disabilities.

2. Within 90 days of the entry of this Order and at

least annually thereafter, have qualified professionals,

including, when appropriate, physiatrists, orthopedists, physical

therapists, and occupational therapists, conduct a comprehensive,

:

interdisciplinary assessment of each Ebensburg resident with a

physical disability to determine the need for medical, surgical,

.

physical therapy, or occupational services, therapeutic

equipment, and/or therapeutic positioning. Priority shall be

%

given to residents who are immobile and have significant

«g

limitations in independent functioning.

C. Physical Management Plans

H

Within 60 days for residents who are immobile and have

significant limitations in independent functioning, and within

?|!

120 days for all other residents, develop a physical management

plan.

1. The physical management plan shall have the

following components:

a. the range of therapeutic positions throughout

¥:'

the day, including therapeutic positioning and opportunities for

movement. Immobile residents shall have a sufficient number of wsi

»

positions to ensure that they are not placed into any single

®

position for longer than two consecutive hours, unless

therapeutically justified;

-29-

b. individualized lifting, transferring, and

'

handling techniques;

c. the goals to be achieved for the individual,

including the prevention of continued deterioration, the reversal

of existing deformity patterns, and the development of functional

skills.

2. For individuals who are immobile and currently confined

to carts, their physical management plan shall specify the

particular steps that Ebensburg will take to attempt to reverse

the deformity patterns.

&9

D. Lifts and transfers

«s

1. Within 15 days of the entry of this Order,

3d

identify each individual who is unable to independently lift

||

and/or transfer him or herself from a bed, wheelchair, chair,

sofa, mat, toilet, or bath and/or each individual who needs

!i£j

assistance in transferring from one position to another.

M

2. Within 45 days of the entry of this Order, have a

qualified professional assess each individual identified pursuant

9

to 5 X.D.I, herein, and develop an individualized lift and

transfer for each such individual.

;v

3. Within 15 days of the entry of this Order, train

r

each staff person who works with each individual identified

•**

pursuant to 5 X.D.I, herein, in how to carry out the

f£

individualized lift and/or transfer through competency based

training and return demonstrations and ensure that the lift

and/or transfer are performed appropriately and consistently by -30-

t\
fjj§ es
P.
|lj _ • B
~'C, .-.,
(:4
-*H

routine monitoring of each staff person while he or she is performing the lift and/or assisting with the transfer.
4. Within 90 days of the entry of this Order, ensure that each lift, transfer, and/or positioning plan is consistently implemented.
E. Wheelchairs Defendants shall ensure that every Ebensburg resident who uses a wheelchair has an appropriate wheelchair that provides maximum alignment and therapeutic support. To this end, the Commonwealth shall take the following actions by the dates indicated below:
1. Within 60 days of the entry of this Order, develop a comprehensive assessment tool to evaluate the wheelchair positioning needs for each Ebensburg resident who needs a wheelchair.
2. Within 120 days of the entry of this Order, purchase a positioning simulator to measure appropriate positions for residents who use a wheelchair.
3. Within 6 months of the entry of this Order, evaluate each resident who uses a wheelchair, using the comprehensive assessment tool and the positioning simulator and identify necessary modifications in the wheelchair.
4. Within one year of the entry of this Order, provide every Ebensburg resident who uses a wheelchair and needs modifications to the wheelchair based upon the assessment, with an appropriately modified or new wheelchair.
-31-

F. Staff Training

The Commonwealth shall ensure that only adequately trained

staff lift, transfer, and handle residents. To this end, the

Commonwealth shall take the following actions by the dates

indicated below:

1. Within 5 days of development of a physical

management plan, ensure that no staff member is responsible for

positioning, lifting, or transferring a resident before being

trained and demonstrating competency in the individual's

position, lift, or transfer.

P

2. Within 5 days of development of a physical

3?;

management plan, take pictures and write instructions for staff

reference that illustrate the steps to be taken to implement each

;|j

resident's individualized positioning, lifting, and/or

transferring plan.

;>.;

3. Within 45 days of the entry of this Order,

1

institute a system for providing regular, periodic competency

w

based refresher training to staff.

4. Within 60 days of the entry of this Order, develop

and implement a quality assurance system to ensure that staff

correctly position, lift, transfer, and handle residents

throughout the day, in accordance with their individualized

physical management plan.

XI. STAFFING

A. By no later than 180 days of the entry of this Order,

the Commonwealth shall ensure that a sufficient number of staff

-32-

are employed or under contract to attain and consistently

maintain at least the following numbers of staff and/or ratios of

staff to Ebensburg residents as those set forth in subparagraphs

1-6 below:

1. Direct Care Workers

Day and evening shifts

1:4

Night shift

1:8

These ratios shall be maintained at all times, including

during staff breaks, on holidays, and on weekends. The number of

direct care staff present and on duty on any shift shall be

increased, when necessary, to ensure adequate supervision,

health, safety, training, treatment, and/or care of any

individual. Where 1:1 staffing is provided to ensure adequate

supervision, health, safety, training, treatment, and/or care of

any individual, such 1:1 staff shall not be counted in any ratio.

Staff whose primary responsibilities are administrative and who

do not provide direct service to individuals on a regular,

routine basis shall not be counted in computing the direct care

staff ratios. The direct care staff ratio shall be attained and

maintained without excessive reliance on overtime and pulling of

staff from their regularly assigned living area.

2. Physicians: 1: 100

3. Board Certified Neurologist with experience working with people with epilepsy and mental retardation: At least eight (8) hours each week and available on an as needed basis for emergency consultation and consultation while hospitalized.

-33-

4. Board Certified Psychiatrist with experience

working with people with a dual diagnosis of mental illness and

mental retardation: At least eight (8) hours each week and

available on an as needed basis for emergency consultation and

consultation while hospitalized.

5. Psychologists with experience working with people

with mental retardation: 1:30 (at least 1/4 of which have a

Ph.D. in psychology; the remainder shall have at least a master's

:-

degree, and shall work under the clinical supervision of the

Ph.D. psychologists).

H

6. A sufficient number of Occupational and Physical

~»

Therapists, as well as occupational and physical therapy

assistants to implement the provisions of this Order.

H,

B. At the Commonwealth's discretion, the ratios may be

: y > •••

obtained by hiring additional needed staff or by reducing the

3rj

population of Ebensburg. If the Commonwealth decides to meet the

—

ratios by reducing the population, this must be reflected in the

™

Plan developed pursuant to XIII.A, herein. Residents must be

9

transferred to appropriate community placements. The

determination as to which individuals shall be transferred and

7i

the places to which they are transferred will be made by

professional staff qualified to make such decisions. Prior to
m

•&

placing any resident in the community, Defendants shall ensure

1|

that the alternative placement meets all of the needs of the

resident, including residential and day programs, medical, and

any specialized services.

-34-

XII. RECORDKEEPING

The Commonwealth shall: (a) establish and maintain a record

for each individual that shall include current information with

respect to his/her care, medical treatment, and training, and

shall be organized in a fashion that will enable those reviewing

it to exercise professional judgment in providing care, medical

I'r

treatment, and training to the individual: and (b) require staff

tr'*.
•,.-*,;

to utilize such records in making care, medical treatment and

%.

training decisions. In order to fulfill these requirements, the

Commonwealth shall, at a minimum, take the following steps within

fP

the deadlines set forth below:

«l

A. Within 90 days of entry of this Order, evaluate the

current recordkeeping practices in use at Ebensburg and make such

S

modifications as are necessary to ensure that all components of

the system, including, but not limited to, accidents and

Sgj

injuries, general care, medical care, and the development and

_

implementation of training programs, including the collection of

'

appropriate data, are consistent with generally accepted

B

standards.

B. Within 90 days of the entry of this Order, ensure that

p>

entries made by primary care physicians, nurses, and medical

fn

specialists in individual records are timely and accurate, and

®

that they describe the individual's physical condition and course

H

of treatment by:

1. developing policies and procedures governing entries in medical records;

-35-

2. training primary care physicians, registered nurses and medical consultants in the policies and procedures;
3. developing and, thereafter, implementing quality assurance procedures that include a systematic and periodic review of a sample of medical records to ascertain whether entries made therein contain appropriate substantive information, and;
4. taking, as necessary, corrective action to ensure that staff and medical consultants are accountable for accurate and meaningful recordkeeping.
C. Within 90 days of the entry of this Order, develop and, thereafter, continually implement quality assurance procedures that include a systematic review of a sample of individuals' behavioral data required to be recorded by direct care staff to ascertain whether there is sufficient data recorded and to verify that such data are reliable.
D. Within 60 days of the entry of this Order, enter into agreements with local acute care hospitals and skilled nursing facilities serving Ebensburg residents that establish written procedures to ensure that adequate and accurate written information is communicated between such acute care hospitals and skilled nursing facilities and Ebensburg. XIII. COMMUNITY PLACEMENTS
In order to implement Ebensburg residents' community placement plans, the Commonwealth shall take the following actions within the deadlines set forth below:
-36-

A. Within 6 months of entry of this Order, develop and file with the Court an overall long term plan ("Plan") for transition of Ebensburg residents into appropriate community placements that meed their needs. Subject to the provisions in 5B and flC, herein, the Plan shall be ordered by the Court and fully enforceable. In order to develop this Plan, the Commonwealth shall take the following actions:
1. Review the community placement plan of each Ebensburg resident to determine whether it: (a) adequately assesses and identifies the services needed for the individual to be served in a community-based program outside Ebensburg, including, but not limited to, a description of the residential and day programs required, medical and other specialized services, and services to address other individualized needs; and (b) establishes a realistic time frame.
2. Where necessary, revise the community placement plan or develop a new plan.
3. Based upon the community placement evaluation of each Ebensburg resident, develop a plan for creating community services that do not exist, establish a schedule for the phased in transition of residents into the community, and seek adequate funding for the plan. Priority shall be given to those residents whose continued lnstitutionalization at Ebensburg poses the greatest risk of harm.
B. The United States shall have 60 days to review the Plan, provide Defendants with its comments, and meet with them to
-37-

resolve any disagreements about the Plan. Any agreed upon

-••

changes in the Plan shall be filed with the Court and shall be

enforceable.

C. If the parties are unable to resolve their

disagreements, the Court shall hold a hearing to determine the

adequacy of the plan and issue its ruling.

-i

D. To the extent that community facilities become available

in the interim that meet the needs of Ebensburg residents,

%.

Defendants are enjoined from failing to place such residents in

those facilities. A resident shall only be placed in a program

j§

which meets all of his or her individual needs.

i»

E. Defendants are also enjoined from failing to make

available to Ebensburg residents the same opportunities for

H

community placement as are available to residents of other

Commonwealth facilities.

tj

F. Defendants shall monitor each resident they place in a

_

community-based program. Such monitoring shall be conducted on a

•

quarterly basis and ensure that the specific community-based

B

program or facility into which Defendants have placed a resident

is fully meeting his or her needs as identified in the resident's

^

Individual Habilitation Plan. Such monitoring shall be reflected

in a written report to be filed with the United States and the

'&

Court within 15 days after the conclusion of a quarterly

|§

reporting period.

-38-

XIV. APPOINTMENT. DUTIES AND PRIVILEGES OF MONITOR

\

A Monitor to be designated by the United States, following

consultation with the Defendants and approval by the Court, shall

monitor each and every provision of this Order pursuant to the

following provisions:

A. Within 30 days after the entry of this Order and

following consultation with the Defendants, the United States

shall submit to the Court its designated monitor for approval.

B. Following approval, the Monitor shall on a quarterly

basis monitor Defendants' compliance with each provision of this

H

Order. The Monitor shall have the authority to retain a

eg

reasonable number of consultants to assist in the monitoring

™

process. All consultants utilized shall be approved by the

P

United States.

C. Within 3 0 days following the completion of a quarterly

X;-

reporting period, the Monitor and any other consultants retained

_

to assist the Monitor shall file a written report with the

™

parties and the Court describing, inter alia, each of the

ffi

following:

1. The steps and other activities taken, or not taken,

;

by Defendants to comply with the requirements of each

separate paragraph of this Order;

1

-

2. Specific observations that indicate whether

H

Defendants are implementing the specific staff-to-

resident ratios specified herein, that such staff are

present and on duty in the specific units to which they

-39-

are assigned, and whether staffing is otherwise

*

adequate to meet the requirements of this Order;

3. A determination of compliance, partial compliance,

or non-compliance with each paragraph of this Order and

the basis for each determination; and

4. Barriers encountered by Defendants in seeking to

implement remedies necessary for compliance with this

Order.

V--

D. The Monitor shall have unlimited access to all

residents, staff, records (including individual resident records)

§§

files, facilities, buildings, and premises that are the subject

«

of this action. Defendants shall not refuse any reasonable

request for documents or other information and shall permit

H

confidential interviews of staff. At the Monitor's request, a

single representative of Ebensburg shall coordinate tours of

Ei.

sj

Ebensburg, the gathering of documents, and the provision of any

_

other information the Monitor may request. The Monitor need not

give advance notice of any tours of Ebensburg but shall give

reasonable notice of intent to review any documents which must be

gathered in order to facilitate review. These provisions shall

also apply to any consultant retained to assist the Monitor.

E. The costs of the Monitor and required monitoring

activities shall be borne by Defendants.

F. The Monitor shall remain in office and perform the

requirements of this paragraph until further order of this Court.

-40-

XV. JURISDICTION AND ENFORCEMENT

A. The Court shall retain jurisdiction of this action for

all purposes under this Order until the Commonwealth shall have fully and faithfully implemented all provisions of the Order and until this action is dismissed.

B. The Monitor, his/her chosen consultants, and the United States and its consultants shall have access to Ebensburg without

notice to the Commonwealth of Pennsylvania. Access shall include the right to inspect and tour Ebensburg's buildings, review facility records, resident charts and other documents, conduct

interviews with staff outside the presence of supervisory staff, and observe activities normally conducted at Ebensburg. The

Monitor and the United States may request information in writing from the Defendants relating to conditions at Ebensburg or compliance with this Order and the Defendants shall respond, in

writing, within 20 days. The Monitor shall be copied on all correspondence between the Defendants and United States.

C. Retaliation against any staff person for providing

information to the Monitor or United States shall be a violation of this Order, subject to contempt of court.

IT IS SO ORDERED, this

day of

, 1994,

at Johnstown, Pennsylvania.

D. Brooks Smith UNITED STATES DISTRICT JUDGE
-41-

 
 No. 95-3541

U.S. v. Pennsylvania MR-PA-006-007

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
THOMAS J. RIDGE, Governor of the Commonwealth of Pennsylvania; FEATHER HOUSTOUN, Secretary, Department of Public Welfare; NANCY THALER, Deputy Secretary of Mental Retardation, Office of Mental Retardation; ALAN M. BELLOMO, Director, Ebensburg Center; COMMONWEALTH OF PENNSYLVANIA,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRIEF FOR THE APPELLEES
ECKERT SEAMANS CHERIN & MELLOTT Thomas B. York, Esquire Douglas J. Davison, Esquire One S. Market Sq. Bldg., 213 Market St. Harrisburg, PA 17101 (717) 237-6000
COMMONWEALTH OF PENNSYLVANIA John A. Kane, Esquire Christine D. DeMichele, Esquire DPW, Office of Legal Counsel P. O. Box 2675 Harrisburg, PA 17105-2675 (717) 783-2800

TABLE OF CONTENTS

PAGE

STATEMENT OF RELATED CASES AND PROCEEDINGS

1

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

1

STATEMENT OF THE ISSUES

1

STATEMENT OF THE CASE

1

SUMMARY OF ARGUMENT

28

ARGUMENT

29

I. THE DECISION OF THE DISTRICT COURT IS FURTHER

SUPPORTED BY DOJ'S FAILURE TO COMPLY WITH

APPLICABLE STANDARDS DICTATED BY CRIPA

30

II. THE DISTRICT COURT DID NOT ERR IN DENYING RELIEF

BECAUSE DOJ FAILED TO DEMONSTRATE THAT CARE AND

SERVICES AT EBENSBURG SUBSTANTIALLY DEPARTED FROM

ACCEPTED PROFESSIONAL STANDARDS AND BECAUSE THE

RESIDENTS DO NOT POSSESS ANY CONSTITUTIONAL RIGHT

TO AN "ENHANCED ABILITY TO FUNCTION."

32

III. THE DISTRICT COURT DID NOT ERR IN DENYING

INJUNCTIVE RELIEF BECAUSE DOJ FAILED TO

DEMONSTRATE THAT AN ALLEGED LAPSE IN CARE WAS

THE RESULT OF THE COMMONWEALTH'S "POLICY OR

CUSTOM" OR THAT THE ALLEGED LAPSE IN CARE WAS

MORE THAN A FEW ISOLATED INCIDENTS

43

CONCLUSION

50

TABLE OF AUTHORITIES
CASES Anderson v. Bessemmer City.
470 U.S. 564, 573 (1985)
Armstead v. Pingree. 629 F.Supp. 273, 276 (M.D. Fla. 1986)
Baldridge v. Clinton. 139 F.R.D. 119, 127 (E.D. Ark. 1991)
Bronson v. Bd. of Ed.r etc.. 510 F.Supp. 1251, 1265 (S.D. Ohio 1980)
Cameron v. Tomes. 783 F.Supp. 1511, 1515 (D. Mass. 1992)
Chaloux v. Killeen. 886 F.2d 247, 250-251 (9th Cir. 1989)
Clark v. Cohen. 794 F.2d 79, 95-98 (3d Cir.) (Becker, L, concurring), cert, denied. 479 U.S. 962 (1986)
Collins v. City of Harker Heights Tex.. U.S. at , 112 S. Ct. 1061, 1070 (1992)
Daniels v. Williams. 474 U.S. 327, 328 (1986)
David v. Hubbard. 506 F.Supp. 915, 922-923 (N.D. Ohio 1980)
DeShaney v. Winnebago County Department of Social Services. 489 U.S. 189 (1989)
Doe v. Gaughan. 617 F.Supp. 1477, 1487 (D. Mass. 1985)
n

PAGE
30 36 35 39 35 46
39, 41 50
48, 49 35 40
34, 35

Feagley v. Waddill. 868 F.2d 1437, 1440 (5th Cir. 1989)
Felder v. Casey. 487 U.S. 131, 148 (1988)
Fialkowski v. Greenwich Home. 921 F.2d 459, 461 (3d Cir. 1990)
Geiseking v. Schafer.
672 F.Supp. 1249, 1266 (W.D. Mo. 1987)
Graham. 473 U.S. at 166
Gregory v. Chehi. 843 F.2d 111, 120 (3rd Cir. 1988)
Griffith v. Ledbetter. 711 F.Supp. 1108, 1111-1112 (N.D. Ga. 1989)
Halderman v. Pennhurst State School and Hospital. 784 F.Supp. 215 (E.D. Pa. 1992) aff'd 977 F.2d 568 (3d Cir. 1992)
Higgs v. Latham. 946 F.2d 895 (6th Cir. 1991)
In re: Bernard N. Gibson. 157 B.R. 366, 372 n.4 (S.D. Ohio 1993)
Jordan v. Tennessee. 738 F.Supp. 258 (M.D. Tenn. 1990)
Kentucky v. Graham. 473 U.S. 159, 165-166 (1985)
Lansford-Coaidale Water Authority v. Tonolli Corp.. 4 F.3d 1209, 1214 (3d Cir. 1993)
Los Angeles Police Protective League v. Gates. 995 F.2d 1469, 1477-1478 (9th Circuit 1993)
Martin v. Voinovich. 840 F.Supp. 1175, 1207 n.26 (S.D. Ohio 1993)
in

36 44 32
36 43, 45, 46
45 36
32 32 39 32 46 29 46 32

Monahan v. Dorchester Counseling Center. 961 F.2d 987 (1st Cir. 1992)
Monell v. New York City Dep't of Services. 436 U.S. 658, 690 (1978)
Monroe v. Pape. 365 U.S. 167, 172 (1961)
P.C. v. McLaughlin. 913 F.2d 1033, 1042 (2nd Cir. 1990)
Parham v. J.R.. 442 U.S. 584, 608 n. 16 (1979)
Parratt v. Taylor. 451 U.S. 527, 535 (1981)
Patsy v. Florida Bd. of Regents. 457 U.S. 496, 507-508 (1982)
Planned Parenthood v. Casey. 947 F.2d 682, 694 (3d Cir. 1991)
Ragan v. Tri-County Excavating, Inc.. 62 F.3d 501, 507 (3d Cir. 1995)
Rennie v. Klein. 720 F.2d 266, 272 (3d Cir. 1983) (Adams, J., concurring)
Ridlen v. Four County Counseling Center. 809 F.Supp. 1343 (N.D. Ind. 1992)
Scothorn v. Kansas. 772 F.Supp. 556, 561 (D. Kan. 1991)
Shaw v. Strackhouse. 920 F.2d 1135, 1143 (3d Cir. 1990)
Society for Good Will to Retarded Children v. Cuomo. 737 F.2d 1239, 1248 (2nd Cir. 1984)
Spivey v. Elliott. 29 F.3d 1522 (11th Cir. 1994)
IV

32 46 44 34, 35 49 44 44 38 29 40 32 34 6, 33, 48 34-36, 48, 49 33

Thomas S. v. Flaherty. 902 F.2d 250, 252 (4th Cir. 1990) .
United States v. Pennsylvania. 832 F.Supp. 122 (E.D. Pa. 1993)
United States v. Pennsylvania. 863 F.Supp. 217, 220
United States v. Tennessee. 798 F.Supp. 483, 488 (W.D.Tenn. 1992)
United States v.Commonwealth of Pennsylvania. 902 F.Supp. 565, 582-583, n. 8 (W.D. Pa. 1995)
Walton v. Alexander. 44 F.3d 1297 (5th Cir. 1995)
Wilson v. Formigoni. 832 F.Supp. 1152 (N.D. 111. 1993)
Youngberg v. Romeo. 457 U.S. 307 (1982)
STATUTES
28 U.S.C. §1291
28 U.S.C. §1331
28 U.S.C. §1343(a)(4)
28 U.S.C. §1345
42 U.S.C. §1983
42 U.S.C. §1997 el S£Q 42 U.S.C. §1997a(a)
42 U.S.C. §1997b 42 U.S.C. §1997b(a)
v

34 32 45 44 3 33 32 6, 33-36, 39, 40, 47, 49
1 1 1 1 44-46 1 30, 31, 47 30 30

FEDERAL RULES OF APPELLATE PROCEDURE

Fed.R.App.P. 52(a)

29

OTHER

21 C.J.S. § 141(a);

20 Am.Jur.2d § 159

39

H.R.Conf.Rep. No. 96-897, 899 (1980)

U.S. Code Cong. & Admin. News 1980, p. 787, 833

44

H.R.Conf.Rep. No. 897, 96th Cong. 2d Sess. 11, 12 (1980),

U.S. Code Cong. & Admin. News 1980 at 836

48

U. S. Code Congressional and Administrative News,

Vol. 3, 96th Congress, Second Session, 1980,

H. Conf. Rep. No. 96-897, p. 835

32

VI

STATEMENT OF RELATED CASES AND PROCEEDINGS
This case has not been before this Court previously, and counsel for the
Commonwealth are unaware of any related case pending or about to be presented before this
Court or any other court or any agency, state or federal.
STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION
The District Court has jurisdiction over this matter pursuant to 28 U.S.C. §1331,
§1343(a)(4), and §1345 in that this action was commenced 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 el SSQ. ("CRIPA").
Pursuant to 28 U.S.C. §1291, this Court has appellate jurisdiction over the District
Court's final order dated July 27, 1995 entering judgment for the Defendants (now
Appellees).
STATEMENT OF THE ISSUES
I. Whether the decision of the District Court is further supported by the Department of Justice's (DOJ's) failure to comply with applicable standards dictated by CRIPA?
II. Whether the District Court erred in denying relief where DOJ failed to demonstrate that care and services at Ebensburg substantially departed from accepted professional standards and where the residents do not possess any constitutional right to an "enhanced ability to function"?
III. Whether the District Court erred in denying injunctive relief where DOJ failed to demonstrate that an alleged lapse in care was the result of the Commonwealth's "policy or custom" or that the alleged lapse in care was more than a few isolated incidents? STATEMENT OF THE CASE
The most remarkable aspect of the record in this case is not what is contained in the
record but what is absent from the record. DOJ has presented a case based almost entirely
upon "circumstantial evidence" which does not support its ultimate conclusions. Essentially,

DOJ establishes that injuries and medical problems have occurred in the Ebensburg Center ("Ebensburg") population and then asks the Court to make a leap of faith, without any evaluation of the underlying causes, that these "problems" would not occur in the absence of a constitutional violation.1 DOJ fails to analyze and critically review the situations to determine if indeed the "problems" were caused by a substantial departure from accepted professional standards. They focus on the sensational case, again without providing underlying analysis to support their claims, is an effort to shock the Court into an emotional response to support their unjustified claims. They provide virtually no standards of care to be applied other than the biased, subjective and personal opinions of a few experts, some of which are not in the mainstream of their profession and others who lack formal training within the areas they seek to testify. In summary, the record, as described below to the extent limited space permits, demonstrates a complete failure on the part of DOJ to meet their burden of proof.
DOJ's experts failed, with the exception of Richard Amado, Ph.D., a psychologist, to even testify that there was a substantial departure from accepted professional standards or that there was an absence of professional judgment.
The District Court emphasized how the DOJ had failed to meet its burden of proof in stating: "The United States' effort to avoid application of the professional judgment standard — and its presentation of evidence and argument throughout this case that was not tailored to
1 The District Court correctly stated that the "occurrence of aspiration pneumonia, or even deaths without evidence that it was the result of medical treatment which substantially deviated from accepted professional practice, however tragic a loss, does not compel a finding that the constitution was violated." 902 F.Supp. at 608. "The mere quantification of injuries, without more, does not establish the failure to exercise professional judgment." 902 F.Supp. at 598.

address the professional judgment standard (instead, for example, presenting evidence of and argument about "deficient care" or "malpractice") ~ was unhelpful to this Court as it labored with the difficult task of adjudicating this factually complex controversy." United States v. Commonwealth of Pennsylvania. 902 F.Supp. 565, 582-583, n. 8 (W.D. Pa. 1995).
Even DOJ's experts sometimes recognized the exercise of professional judgment at Ebensburg. DOJ's expert Stephen Sulkes, M.D., a pediatrician, admitted that the doctors, dysphagia team, and other professionals were exercising professional judgment. (App. 123). DOJ's expert Norberto Alvarez, M.D., a neurologist, also admitted that doctors at Ebensburg have exercised professional judgment. (App. 284).
DOJ's experts were constantly attempting to substitute their professional judgment for that of the treating professionals. Their opinions, however, did not establish that another course of treatment would have even benefitted the residents. For example, after criticizing the death of Steven S., Sulkes stated: "The outcomes might, indeed, have been the same; but, on the other hand, he might still be alive if that calculated risk [of fundoplication surgery] had been taken." (App. 122).
The DOJ utilizes experts who possess a personal bias against institutional settings. For example, Jack Stark, Ph.D., a psychologist, claims that no one can best be served in an institution and that his organization gave an award to New Hampshire for closing institutions. (App. 64, 1841, 65). In fact, Stark's bias was so severe that he could not identify even a single positive thing at Ebensburg. (App. 66). DOJ's expert Suzanne McAllister, a physical therapist, did not see anyone in an appropriate wheelchair, in an appropriate position at mealtime, or in an appropriate gross motor program. (App. 128-129). She admits that she never toured any facility and found it to be adequate. (App. 148-151). DOJ's expert Karen Green McGowan, a nurse, stated that she would take institutional dining rooms and would

"blow those damn things up." (App. 153). She did not see a single piece of equipment appropriate to support eating even though there were 176 pieces of adaptive feeding equipment as ordered by a registered occupational therapist. (App. 1851). McGowan admits she never found a facility that she reviewed to be adequate. (App. 172-173). Alvarez believes all large institutions should be closed. (App. 260). DOJ's expert Charles Russo, Ph.D., a psychologist, has never reviewed a facility, including the five (5) facilities he reviewed for DOJ, and found any of them to be adequate. (App. 316-317). Similarly, Amado has reviewed six (6) facilities for DOJ and has found all of them to be deficient. (App. 489). DOJ's expert Jeffrey Fahs, M.D., a psychiatrist, also found all three (3) facilities he reviewed for DOJ to be deficient. (App. 403).
DOJ's experts were guilty of making assumptions without any foundation in fact. Sulkes already concluded at his deposition that medical documentation was inadequate even though he could cite to only one example. (App. 1842). He also claimed that there were "numerous" carts but he could not state any number and he stated: "if you tell me how many carts there are, I will tell you whether I think that's too many or not...but I still think there were too many carts." (App. 114). McAllister alleged there were problems with skin breakdowns but her only support for that claim was a "red" crease on one individual. (App. 1843-1844). McAllister concluded at her deposition that there was a problem with lifting individuals at Ebensburg but could only identify one incident where there was an injury. (App. 1845). McGowan claimed that nurses are not appreciated at Ebensburg based solely on the fact that the chief nurse had an office apart from other offices. (App. 1848). She also alleged that there was undiagnosed gastroesophageal reflux, when she did not find any undiagnosed cases, because she had read literature that said there is a higher frequency at facilities than previously thought. (App. 1849). Fahs theorized that Obsessive Compulsive
4

Disorder (OCD) is too frequently diagnosed at Ebensburg but he did not know how many people had this diagnosis at Ebensburg or at other institutions. (App. 412). He made the same claim as to the use of Anafranil even though he similarly lacked any numbers or statistics. (App. 399, 414). Similarly, Fahs testified at deposition that he was already concerned with the use of the drugs Limbitrol and Triavil at Ebensburg, but he later dropped this alleged concern when he learned that only one (1) person was receiving these drugs. (App. 418; App. 536).
The expert in physical therapy on which DOJ relies admits that she practices neurodevelopmental therapy (NDT) and that there is medical literature that highly questions NDT's effectiveness. (App. 1846-1847). The Commonwealth's expert Theodore Kastner, M.D., an expert in the area of medical care of people with developmental disabilities, testified that the professional literature says NDT is controversial as to its effectiveness. (App. 506). The Commonwealth's expert Michael Arnall, a certified orthopedic physical therapist, testified that NDT focuses on a much younger population and is therefore not appropriate for the Ebensburg residents. (App. 844). Furthermore, McAllister was taught positioning techniques by McGowan, a nurse with no formal training in physical therapy. (App. 1850).
Although DOJ"s physical therapist claims that residents of Ebensburg could greatly benefit from her personal method of treatment, a professional treatise referenced by her states: "little can be expected in the way of significant motor or functional gain beyond the early years of development. In fact, a decrease in function and movement may be anticipated as deformities develop...." (App. 1854-1855). Arnall testified that concerning Ebensburg residents "the soft tissue injuries or the soft tissue deformities, including dislocations, all must be taken into account when doing positioning...and contraindicate positioning as Ms.
5

McAllister has recommended...." (App. 853). Arnall further stated that the deformities in individuals focused on by McAllister cannot be reversed. (App. 852). He also advised the Court that regression in this population is inevitable regardless of the type of intervention. (App. 1856). The trial judge recognized that "not every instance where there is a loss of movement indicates that a constitutional violation has occurred." 902 F.Supp. at 617.
Arnall, unlike McAllister, does not believe that residents should be restrained in "ideal" positions when there is no benefit to the positioning. (App. 845).2 He emphasizes for this population the need to maintain comfort. (App. 850). Arnall is concerned that we are imposing restraint: on the mentally retarded population that we would not use on the nonmentally retarded population. (App. 845). He appropriately asks: "why would we do this to the mentally retarded population, when our orthopedist, when the professional literature, when the feeling of the mainstream of the field is that it has no point. (App. 859-860).
DOJ's neurologist, Alvarez, testified that Ebensburg's neurologist was competent. (App. 255-256). In fact, Alvarez stated: "Looking at the consultation in the neurological section by Dr. Chamovitz, I had the impression that he was competent and the consultations were appropriate and he was trying to decrease medications. His advice was followed, things were okay." (App. 256).
Alvarez claims that certain individuals did not receive appropriate treatment for seizures but his testimony is not clear on whether these individuals were suffering a series of distinct seizures or whether they were experiencing uninterrupted seizures that might become
2 The District Court chose to give more weight to the testimony of Arnall than to the testimony of McAllister. The trial judge writes: "My conclusion from hearing them testify is that McAllister may be on the leading edge of the PT field, but that Arnall represents the mainstream school of thought. The constitutional duty imposed by Youngberg and Shaw does not require the Center to embrace an unorthodox method, even if it is promising." 902 F.Supp. at 618.

status. In any case, Irvin Chamovitz, M.D., Ebensburg Center's neurologist, believes that professional judgment was exercised in their treatment. (App. 728-730, 767).
Kastner confirmed that the definition and treatment of status is quite ambiguous. (App. 506). "The problem with status epilepticus is you're asked to observe a patient having a seizure and look into a crystal ball and say: 'Yes, this seizure is going to last longer than thirty minutes; let's call the ambulance now."1 (App. 525). Both Kastner and Chamovitz believe that you should not call an ambulance within a few minutes of the start of a seizure. (App. 527; App. 603). David Coulter, M.D., another DOJ expert, a neurologist, admits that it is possible for a seizure to go on for twenty (20) minutes and then stop. (App. 1071). He also admitted that he would not ignore a patient's history that showed his seizures usually end in ten (10) to fifteen (15) minutes and give the patient IV medication. (App. 1087-1088). He confirmed that you cannot be certain of results when you treat status and he disagreed with Alvarez that IV medication is the only guarantee that you can control seizures. (App. 1083-1084). Herbert Grossman, M.D., a neurologist, an expert for the Commonwealth, stated that it was a judgment call when you should summon an ambulance and "the ultimate decision resides with whomever is assuming the responsibility of diagnosis and care." (App. 1096-1097). You do not make this decision with a stopwatch but rather through clinical findings. (App. 1097). When to give IV medication is a matter of clinical judgment based upon the history of the individual and the previous seizure pattern. (App. 1097).
DOJ's neurologist recognized the risk of respiratory arrest with the use of IV medications. (App. 247). Chamovitz confirmed that IV medication may be given by the

ambulance crew on-site at Ebensburg or in transport to Mercy Hospital. (App. 606).3 Chamovitz knows that the emergency care is adequate and that the system for treating status works. (App. 756-757). Kastner testified that the relationship with the local hospital "precludes the need for an infirmary or intensive care facility [at Ebensburg] with the use of intravenous treatments." (App. 517). In fact, Kastner felt it was more appropriate that emergency services be performed by people with emergency training. (App. 518). Coulter agreed that you can rely on ambulance services to administer IV medication. (App. 1089). The Chief of Medicine at Ebensburg Center, Dr. Shertz, confirmed that since Ebensburg is not a hospital he did not want to give IV therapy there. (App. 1250). When Alvarez was asked what he would do if called by parents of a mentally retarded individual who is having seizures, he states: "Usually what I tell the parents, that if the patient is having seizures, and if the seizure lasts more than a few minutes, they should go to the emergency room." (App. 252). When he was asked whether there was more danger in having status at home or at Ebensburg he stated: "I think at the present it's the same." (App. 260-261). When asked if there should be IV capability at a group home or a community living arrangement he responded: "I don't think that's necessary for them to do that." (App. 268-269).
The JAMA article discussing treatment of status upon which DOJ relies for a standard is dated August 18, 1993, after the trial had started. (App. 1085). As pointed out by Kastner, it is grossly unfair to hold physicians accountable to a "standard" which was not published until after the time treatment was rendered. (App. 1103, 1104).
3 The District Court found: "Inasmuch as the Center is the "home" for the residents, both of these interventions [observation and monitoring along with ambulance transportation for treating status] are acceptable professional practices." 902 F.Supp. at 593.
8

DOJ distorts the testimony of its own expert, Coulter, by claiming that the Epilepsy Foundation of America protocol requires anticonvulsant drugs to be administered "once a seizure has continued for ten minutes." (Appellant's brief at 15). Coulter states that "actually, it says between ten and twenty minutes after the onset of the seizure." (App. 1072). Similarly, DOJ misrepresents Grossman's testimony. Grossman exphasizes clinical judgment by the individual professional and refers to time periods over ten (10) minutes. (App. 1097-1098).
At trial, DOJ referred to the seizure episodes of five (5) individuals: Stephen C ; Keith T.; Robert C ; Ann P.; and Ronald A., to support the allegation that Ebensburg residents suffer harm due to Ebensburg's treatment. The United States' own expert, Alvarez, was unable to testify that Steven C. and Keith T. suffered harm as a result of the treatment they received. He was merely able to state, "...there was a potential for harm...." (App. 189). Alvarez testified: "In the case of — in the first case, Steven C , as you know, he died at the hospital. And there was, yes, an epilepsy related. I don't know what the relationship was. We cannot prove it; I'm not saying there is a relationship, but certainly you put a question mark, whether this person should have received faster treatment. The outcome, the final outcome could have been different." (App. 189) (emphasis added). Concerning Robert C , Alvarez himself testified that Robert C. died in the hospital and that he died of respiratory arrest secondary to pneumonia. The United States even indicates that Alvarez was not certain that the pneumonia had been related, in any way, to the seizures: "the pneumonia could be related to the seizures." (App. 192). Regarding Ann P., considering past history, Chamovitz testified: "I think they [Ebensburg physicians] exercised good judgment." (App. 730). Regarding Ronald A., Kastner stated: " I want to make it clear I do not believe that this represents a chart of an individual in status epilepticus. This is an
9

individual who is having a loss of seizure control. But it is not status epilepticus." (App. 760). Kastner explained: "I mean there's a period of time where this person didn't have a seizure for five hours;. Is he in a state of immediate distress or is he potentially going to suffer harm during that period? I couldn't say that I would agree with that assessment. I think the physician is observing the patient carefully, providing an interval treatment, and deferring judgment as to whether a referral is appropriate." (App. 760).
DOJ deceptively claims that ambulances are not summoned until medication has failed to work "for some time — up to several hours in some cases." (Appellant's brief at 16). This allegation falsely implies that individuals remain in continuous seizure or in status for hours before calling an ambulance. The evidence does not show that these individuals were in status or that they had continuous seizures. (App. 179-195). Furthermore, Alvarez was unable to identify any harm to the individuals as a result of the "delay." (App. 189, 192193).
Kastner found neurological care at Ebensburg to be quite strong and stronger than many other institutions. (App. 524). He did not find that the care at Ebensburg would be any different as to quality than the care provided by Alvarez. (App. 529, App. 563).
DOJ raises the issue of side effects of some medications. Certain medications at lower doses will cause sedative effects in some patients while other patients can receive larger amounts without any sedation at all. (App. 616). Chamovitz testified that he would only accept some lethargy if there was good control; he would not accept lethargy or sedation if it interfered with the individual's lifestyle. (App. 617, 618).
DOJ complains that there were side effects to Dilantin administration and it cited four (4) individuals at trial, Sean M., Rosemary W., Charles S., and Luberta H. Chamovitz, however, testified that it was not unusual "to have someone who is on an adequate amount of
10

Dilantin, not too high, mid levels, or lower, and do very, very well; and get up in the
morning, and [unexpectedly] not be able to stand." (App. 731). Chamovitz testified:
"... [Y]ou stop the medication, and the levels gradually come down; and you get back to the
levels that you should be, and within a week to ten days or less you have an individual who
is back where he was." (App. 732). Chamovitz testified that the administration of Dilantin
at Ebensburg Center is done pursuant to professional judgment consistent with professionally
accepted standards. (App. 735).
DOJ refers to the risk of incurring side effects from the administration of drugs.
Martin Lubetsky, M.D., a psychiatrist, an expert for the Commonwealth, clearly saw AIMS
testing for tardive dyskinesia every six (6) months. (App. 572, 593). Lubetsky also found,
despite DOJ's unsubstantiated concerns, that Ebensburg has a low number of clients who
have tardive dyskinesia. (App. 593). The Commonwealth's expert, Mark Hauser, M.D., a
psychiatrist, stated:
And one of the important things to look for in someone who has tardive dyskinesia is whether it's possible to take them off the antipsychotic medication.... If the clinical care and the medication management is appropriate, you'll already be attempting to administer the lowest dose even before they get TD; so that once you see evidence of TD, you might not be able to lower the dose any further. ...I found that the effort was being made at Ebensburg Center to reduce the doses of antipsychotic medication, or if a decision has been made to continue to administer the same dose, to justify in the chart that in spite of the presence of involuntary movements, we believe that the administration of this medication continues to be warranted; and I found that to be the case at Ebensburg Center.
(App. 623-625). There is absolutely no evidence of record to support the claim that tardive
dyskinesia or other side effects are a "problem" at Ebensburg.
Ebensburg is accused of not monitoring the side effects of drugs. DOJ's psychiatrist,
Fahs, however, admits that some of his patients suffer side effects and some even have
11

tardive dyskinesia. (App. 417). Hauser observed a consistent effort to reduce overall use of antipsychotic medication. (App. 621). He also found that Ebensburg was aware of recent developments in the use of medication and were making use of the newest medications. (App. 626). He did not see the use of chemical restraint. (App. 663). Lubetsky observed an attempt to discontinue neuroleptic medication. (App. 581). He found that psychotropic drug use fell within accepted professional standards. (App. 592-593). He found that Ebensburg reviews psychotropic medication with the psychiatrist every six (6) months. (App. 1854).4 Kastner found that the rate of psychotropic drug use was low at Ebensburg. (App. 515). He also found that the level of neuroleptic medication use was low. (App. 521). He observed that psychotropic drugs are not being used as a form of restraint. (App. 520).
The United States and the Commonwealth experts agree that polypharmacy is something the medical staff should try to avoid in treating a developmentally disabled individual with epilepsy. A more accurate statement is that medical staff should manage patients with the fewest anticonvulsants as possible: in some situations it may be necessary to administer polypharmacy. (App. 560; App. 609) (emphasis added). While Kastner personally would like to reduce the rate of polypharmacy, Kastner did not testify that these percentages were high. (App. 561, 562). Chamovitz indicated that the use of anticonvulsants in combination is a concern to him but stated: "Yes, it's a concern but it's under control." (App. 1225) (emphasis added). Kastner stated: "I think what Dr. Shertz is doing is quite valuable and provides a clear documentation of the effectiveness of the interventions that he is trying to make in terms of controlling seizures and reducing
4 The District Court found "the opinions rendered by Dr. Hauser and Dr. Lubetsky highly persuasive and credible" because "[t]hese experts attempted to maintain an objective analysis." 902 F.Supp. at 605.
12

polypharmacy." (App. 564). Furthermore, Kastner added: "I believe they do a good job and they should be able to document that so that I don't have to stand here and defend their record. Let their record speak for itself." (App. 565).
Not only does DOJ's expert Alvarez use four (4) anticonvulsants on occasion, but he has admitted to using more than that number. (App. 248-249). He also admits that he has thirty (30) percent of his patients on more than one drug. (App. 277).
Kastner found that Ebensburg averaged only about one and one half (1 1/2) anticonvulsant medications per client receiving such medications. (App. 516). Only five (5) percent are on four (4) anticonvulsants and no one is on five (5) anticonvulsants at Ebensburg. (App. 522-523). Ebensburg has more serious patients than does Alvarez yet only forty-five (45) percent are on polypharmacy. (App. 529). Kastner found that the rate of polypharmacy at Ebensburg is not high and is quite similar to what Alvarez describes in his practice. (App. 524).
Chamovitz testified that four (4) anticonvulsants can be an acceptable practice. (App. 608). He mentioned that you monitor with liver function studies and blood tests at all times. (App. 609). He also says that you are always trying to cut back on the number of drugs. (App. 609). He believes the use of anticonvulsant drugs at Ebensburg is within the range of accepted professional standards. (App. 612).
In particular, DOJ argues that the primary care physician often does not follow the advice of the neurologist. This fact does not establish a lack of professional judgment but rather establishes a disagreement among professionals. In fact, in the general public, Alvarez acknowledges that a primary care physician "is not obligated to follow the specification" of a consultant. (App. 257). Alvarez recognizes that the primary care physician has the ultimate responsibility. (App. 258). Not atypically, he then goes on to contradict himself by saying
13

that the neurologist should kick the primary physician out. (App. 258). He claims that he, contrary to the normal deference to a primary care physician, "do[es] the change in medication, and [he] ;5end[s] it off to the primary care physician." (App. 259). He states: "This is what I have done. I will not let them know that this is what I will do. I tell them this is what I have done." (App. 259).
Chamovitz respects the primary care physician and recognizes that ultimate responsibility for the client rests with the primary care physician. (App. 619). He strongly disagrees with Alvarez that the primary care physicians at Ebensburg do not have any experience in managing seizure cases. (App. 610-611). Chamovitz also relates that if he feels very strongly about something, the primary care physicians will follow his advice. (App. 766).
DOJ's allegation that there is a high incidence of injuries at Ebensburg was without any foundation in fact. Their expert, Stark, claimed that he saw "numerous" injuries but he could not quantify the number and he could only personally opine that "numerous is numerous." (App. 1836). Although Stark referred to "a lot" of injuries, he offered no basis of comparison to support his personal opinion. (App. 76-77). Amado, who also claimed that injuries were "high," had no basis for comparison. (App. 493). He had no data from across the country that would support his claim. (App. 495).
Although Stark claimed an increase in injuries from one year to the next, he admitted, however, not so coincidentally, the dividing line he chose between the years was approximately when Etoensburg changed its reporting criteria to capture more incidents of no
14

injury and of minor injury. (App. 79).5 In contradiction of Stark's claim that significant injuries had increased, the number of serious injuries or serious incidents, which are coded as 02 or 03 on Ebensburg's records, remained virtually the same. (App. 1021; App. 1058).
DOJ's reliance: upon a total number of "incidents" as supporting a finding of a high number of "injuries" is misplaced. "Incidents" do not equate with "injuries." For example, in the six (6) months preceding the trial, there were 290 "incidents" that did not involve "injuries." (App. 1059). These "incidents" included such things as falling out of bed, cotton balls in ears, spitting on hands, hair pulled, and lying on the floor. (App. 1060).
As of January of 1993, mechanical restraints, seclusion, and time-outs have not been used at Ebensburg Center. (App. 512). As pointed out by Kastner, it would not be surprising "to see an increase in the number of incidents that occur because there are no other restraints in place." (App. 513). Also, Kastner mentions that the level of neuroleptic medication use is low at Ebensburg. (App. 521). "As you decrease the amount of neuroleptic medication in use, you may see increases in incidents or accidents because you're not restraining clients...." (App. 521).
Based upon a study of injury rates at facilities for the developmentally disabled, Ebensburg Center has both a lower than average rate of injury and a lower than average percentage of bites within those injuries. (App. 948-950). Injury levels for the mentally retarded and developmentally disabled are higher than the injury levels for the general
5 The District Court correctly chose to give very little weight to the testimony of Stark who could not name a single positive thing about Ebensburg and who "could not point to any objective standard in support of his conclusion that too many injuries were occurring." 902 F.Supp. 633. The trial judge states that "much of Dr. Stark's testimony appeared to be offered for its shock value, or was conclusory and failed to provide an informative analysis of the situation." 902 F.Supp. at 633.
15

population. (App. 542; App. 774; App. 947). People with developmental disabilities suffer a high rate of injuries both in an institution and in a community setting. (App. 547).
DOJ irresponsibly and unjustifiably proclaims that "Ebensburg is a dangerous place to live." (Appellant's brief at 4). The DOJ has absolutely no comparative data with other institutions or with community placements to support this outrageous claim. The record is completely devoid of any evidence that would demonstrate that Ebensburg is any more "dangerous" than any home setting, any community placement, or any other institution.
The DOJ alleges, without any foundation in the record, that the "evidence at trial demonstrated that a substantial proportion of these injuries...are preventable." (Appellant's brief at 5). This absurd allegation is apparently based solely upon Amado's unsubstantiated opinion that if there v/as earlier intervention then the "injury might never have happened." (App. 477) (emphasis added). We are once again not provided with any analysis of the situations where injuries occurred. The DOJ continues to simplistically argue that if injuries occurred then a constitutional violation exists. Similarly, DOJ provides no analytical support for its claim that direct care staff are not adequately trained to intervene. (Appellant's brief at 5). Apparently, this claim is based upon such vague testimony as "[w]hat the literature on psychological treatment does suggest is that potentially these behaviors are modifiable." (App. 309) (emphasis added). Russo claims that Ebensburg does not "assess" the outcome of their training efforts, but the record does not show that Russo performed any scientific assessment of outcomes that would allow him to judge training. (App. 311).
DOJ also claims that there is a lack of intervention by staff to stop injuries. Their expert, Amado, supported this claim by referring to only two (2) individuals that were allegedly injured due to lack of intervention. (App. 477-479). The testimony of Amado does not show that there was any opportunity for staff to intervene nor does Amado consider that
16

residents do at times have a right to privacy and may not be observable to staff. Furthermore, Amado, admitted that injuries are going to occur no matter how involved the staff is. (App. 4-OQ). Reid testified that he did not see any staff falling to Intervene to stop injuries. (App. 772-773).
DOJ experts allege a lack of intervention by staff when a client is aggressing or hitting himself. Russo however states: "If a person was aggressing or hitting themselves to get attention of staff, the presence of staff, even under a treatment program is inappropriate." (App. 294). The Honorable D. Brooks Smith found "credible testimony that the staff at the Center felt inhibited and hesitated to intervene on behalf of the residents in the presence of the United States' experts." 902 F.Supp. at 589.
The opinion of the District Court states that "the number of injuries cannot be the sole criterion for determining whether the Center has violated its constitutional duty to provide a reasonably safe environment.... Accordingly, in order to establish a constitutional violation in this area, the United States cannot simply rely on numbers, but must demonstrate that the Center failed to exercise professional judgment in addressing the issue of safety." 902 F.Supp. at 642.
The DOJ prefers the sensationalism of keying on isolated incidents that possess some "shock" value. These isolated incidents do not represent the standard of care at Ebensburg. DOJ refers to only two (2) mornings over many years where two residents were found covered with ants. (Appellant's brief at 8, n. 9). The trial judge noted that "staff took steps to exterminate the insects, and the resident's beds were moved...while the[ir] rooms were being painted." 902 F.Supp. at 588. Although an unfortunate incident, DOJ deceptively implies that this is a recurring problem at Ebensburg when it clearly is not. In the tradition of tabloid journalism, the DOJ next refers to an infestation of maggot-like insects in one
17

resident's ear. (Appellant's brief at 8, n. 9). Although again a highly regrettable occurrence, the District Court recognized that "[n]o other similar incidents were reported." 902 F.Supp. at 588. The District Court also found that "the Center's investigation concluded that this resident's ear most likely became infested as a result of outdoor activity in the grass." 902 F.Supp. at 588. There is absolutely no evidence to show that Ebensburg staff were aware or should have been aware of these incidents before they did discover them.
Dr. James Stratton, Ebensburg Center's Chief Psychologist, believes the residential staff are adequately trained in crisis intervention and in how to work with individuals to develop new skills. (App. 1342-1344). Stratton testified that each staff person on each shift is trained for every psychology training plan. (App. 1866-1867). This training occurs "to a great degree." (App. 1867). Summaries of interventions are provided for staff who are pulled to the building from another building and who are not specifically trained in the psychology training plans of individuals. (App. 1868).
Hauser testified that biting is a "challenging problem and that many of [his] mentally retarded patients exhibit biting." (App. 664). He stated that he has patients "for whom no amount of exceptional effort, including the presence of vigilant staff, has been enough to stop this in certain people." (App. 665). The Commonwealth's expert Dennis Reid, Ph.D., a psychologist, testified that biting is a common problem in the mentally retarded population and that there are a lot of cases where it is not possible to totally eliminate biting. (App. 774). When DOJ's psychologists were asked if they had any advice on biting behavior, they essentially said: "No, biting is a very, very difficult behavior to work with, and we're not sure." (App. 1015).
The DOJ is critical that individuals at Ebensburg suffer recurring incidents of pica behavior. Russo admits that pica is a common problem with the mentally retarded. (App.
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305-306). Regarding a particular client, Russo admits that he does not know how he would treat pica and he noted that any treatment might not be successful. (App. 321-322). While he could not state with 100% certainty, Stratton believes a comprehensive assessment has been done for every individual who has pica at Ebensburg. (App. 1294-1295). Russo also states that it is "inappropriate to speak necessarily of the absolute elimination of a learned behavior" such as pica. (App. 323). He points out that "we don't cure, we manage." (App. 323). He states: "I would indeed expect, given the history of pica, to see periodic flare-ups and a requirement to return to my analysis and basically see if the old strategies worked, etcetera." (App. 324). Russo stated that: "It's a behavior that can be stunningly amenable to treatment or not amenable to treatment." (App. 322).
DOJ alleges that there are a few cases where individual behavior programs were not revised after individuals hurt themselves or hurt others. A focus on individual cases is inappropriate. It is also inappropriate to assume that all programs can be or should be changed because there is an injury. Reid correctly looked "into kind of the risk management system, if you will, to see if there was a system in terms of — if somebody is injured, is that documented, does someone in a position of authority look at that and promptfly] take followup action. And [he] did find that kind of system where they actually look at it quite frequently, the senior staff." (App. 820). Reid observed the proper system that enabled and evidenced the exercise of professional judgment in responding to injuries.
The DOJ psychology experts did not conduct a psychological evaluation of any of the individuals about whom they criticized the treatment. Reid explains in a responsible fashion that: "I would prefer only to answer from the general field perspective because to make that type of response in regard to an individual person, I could not get that information from the record. Professionally I'd be obligated to go in, do an evaluation of that individual myself,
19

okay, and then determine what was appropriate in terms of meeting his or her needs. And I have done none of those individual intense evaluations for anyone living at Ebensburg Center." (App. 824-825). None of plaintiff's experts testified that they conducted any such individual intense evaluations. Instead, the plaintiff's experts irresponsibly attempt to pass off their guesses as professional opinions.
Although the DOJ asserts that there were no behavior plans for some individuals who experience self-injurious behavior, the examples upon which the DOJ relies do not support this conclusion. For example, at trial, DOJ claims that Denise V. "does not have a behavior program for her severe self-injurious behavior." Plaintiff's own expert, Russo, admits that Denise has a behavior plan for aggression. (App. 307). As stated by Dr. Hauser: "...selfinjurious behavior is generally considered to be aggression against one's self." (App. 712). Dr. Reid states that he prefers one behavior program to address target behaviors. (App. 829). The plaintiff merely complains because there is not a behavior program that is entitled "Self-Injurious Behavior (SIB) Plan." In another example, DOJ alleges that James S. does not have a behavior program for self-injurious behavior. DOJ admits, however, that James has a behavior program which "purports to also address his self-injurious behaviors." Russo testified:
Q. Are you aware, Doctor, that the psychology staff at Ebensburg Center agreed that his self-injurious behavior and aggression were related, so they addressed them under one program?
A. I was not aware of that fact. Q. Do you feel that's inappropriate? A. I feel that I didn't have sufficient data available to
me; there was not a clear paper trail to suggest common motivation.
20

(App. 326-327). Obviously, Russo needed more information to decide whether the SIB was correctly addressed along with aggression.
Reid stated that the psychologists are involved in positive habilitation plans through the interdisciplinary team process. (App. 782-783). He found there to be comprehensive habilitation plans. (App. 813). Frank Seymour testified that every individual in the living area that he supervised at Ebensburg Center who possessed aggressive or self-abusive behaviors had an adequate behavior management plan. (App. 1247). Stratton feels comfortable that facility-wide every challenging behavior, with the exception of those identified as very low frequency behaviors, have a psychology training plan to address those challenging behaviors. (App. 1298-1299).
Reid specifically testified that he did not see any evidence of deterioration in basic self-care skills due to inadequate training or treatment. (App. 794). He also believes there is a sufficient emphasis on positive skill development at Ebensburg. (App. 1316). Stratton believes in most cases the activities are successful in trying to increase the individual competence and to provide stimulation. (App. 1273). Stratton testified that in most cases Ebensburg does an adequate job in teaching individuals daily living leisure and social skills. (App. 1322-1323). Stratton testified that according to his observations, there are a number of people that are physiologically incapable of being toilet trained and most do not have the skills to completely dress themselves. Ebensburg has, however, afforded these individuals an adequate opportunity to learn these skills. (App. 1275-1280). Reid verified that the Ebensburg behavior programs did attend to developing adaptive behaviors. (App. 779).
DOJ's allegation that Ebensburg fails to revise adaptive and behavioral programs that are ineffective is again without foundation. (Appellant's brief at 13). This argument is based upon the false assumption that if injuries continue then the program must be ineffective.
21

The DOJ again misrepresents the record by claiming there are "[m]any residents who are subjected to chemical or mechanical restraints are not provided with programs that might reduce the need for those restraints." (Appellant's brief at 13). The cited testimony does not even mention mechanical restraints which were discontinued at Ebensburg. Furthermore, Russo is not a psychiatrist or medical doctor and lacks the expertise to judge whether medication is appropriate. Fahs merely relies upon survey deficiencies without having conducted any personal evaluation of residents to determine the appropriateness of medications. Stratton testified that anybody who is on a behavior modifying drug has a training plan. (App. 1296).
In regard to training and behavior management services, the District Court found that "[fjor each concern raised by the United States' experts, the Commonwealth responded with credible expert testimony which demonstrated that professional judgment had, in fact, been exercised...." 902 F. Supp. at 635.
Reid found that the degree to which Ebensburg was able to involve its clients in meaningful activities is at least equivalent to what goes on in other institutional or community settings. (App. 781). Ebensburg is even better than a typical school classroom in keeping its clients involved in purposeful activities. (App. 804-805). The environment at Ebensburg meets or exceeds accepted professional standards. (App. 782). Reid has stated that in regard to meaningful activity and programming that "what Ebensburg is doing is at least as good — actually, it's a little bit better than what most agencies are doing serving this population" and that "Ebensburg is doing a relatively good job." (App. 772).
Reid has compiled data from many state facilities for the purpose of comparison. Only six (6) of sixty (60) living units in his data were not certified by HCFA. (App. 1853). He described: "We were trying to establish the norms that go from the very worst to the
22

very best." (App. 796-797). Additionally, Reid found that Ebensburg met accepted professional standards even if only compared to the better HCFA-certified facilities. (App. 834). DOJ deceptively alleges that Reid found that residents were engaged in purposeful, age-appropriate activities only 48.4% of the time. (Appellant's brief at 12). The DOJ knows, but conveniently ignores, that the statistical sampling conducted by Reid is to establish a number for comparison to other settings. The number obtained by Reid has no significance in a vacuum without comparison to other environments. In comparison to schools, community programs, and other institutions, the number obtained by Reid shows an above average level of active treatment at Ebensburg.
The DOJ complains that Ebensburg is not providing five (5) hours of active treatment to every individual as suggested by state policy. (Appellant's brief at 11). Their own expert, Amado, however, admits that for some residents five hours "would be too demanding." (App. 467).
Reid found the review, approval, and monitoring process pertaining to treatment plans was excellent. (App. 791). He found psychological services to evidence the exercise of professional judgment and to meet accepted professional standards. (App. 794). He did not observe any deterioration in basic self-care skills due to any inadequate training or treatment. (App. 794). He also found that Ebensburg did a highly commendable job of not using restraint and that the use of restraint was well below that in other settings serving similar populations. (App. 794-795). He further noted that professional judgment was exercised regarding individual's safety. (App. 795).
DOJ claims that staff waited one and a half hours to report a resident hitting and kicking James W. to the nurse, only after James started complaining of a chest pain, and the nurse did not notify the doctor until more than an hour later. Apparently, staff were not
23

initially aware of any injury to James because James was proclaiming that he had won the fight. (App. 954). The fact that a nurse took about an hour to report it to a physician does not show a lack of professional judgment. Furthermore, this is at best an isolated incident of a delay in reporting an injury. DOJ claims that this was not an isolated incident for James. In November 1991, James was found fighting with another client, and he was seen at the dental clinic the following day, but an Ebensburg physician did not examine him until two (2) days later, at which time he was found to have a fractured jaw. Once again, there is absolutely no evidence that Ebensburg staff were aware or should have been aware of James' fractured jaw. There is no testimony that James ever communicated any pain or that the broken jaw was in any way observable.
DOJ bases its entire argument on "nursing care delays" on eleven (11) incidents from 1991 to 1993 prepared by McGowan. (App. 1177-1178).6 The few cases of alleged delay, at best, out of hundreds of incidents over the relevant time period, establish a few isolated incidents. Furthermore, we are again not provided with any analysis of the situations to demonstrate that the "delay" was unreasonable. If staff did not initially know that a resident was injured, there was no reason to initially report to the nurse. Furthermore, some of the examples of "delay" do not show any injury at all (Ken S. slapped in the face, Denise V. banged head, Joyce Y. fell and hit head) or only a relatively minor injury (Robert W. had "discolored eye," Winfield M. had red area around eye, Douglas W. had ecchymosis on
6 Judge Smith credited the testimony of Marcia Stiles, a registered nurse supervisor at Ebensburg, who stated that nursing care was adequate. 902 F.Supp. at 629. In contrast, he questioned the testimony of DOJ's expert and stated: "In contrast [to Stiles], Ms. McGowan could find nothing at the Center that was adequate. I am skeptical of such a blanket condemnation." 902 F.Supp. at 565.
24

forehead). Absolutely no testimony established that any of these individuals were harmed by the delay in that they suffered a more severe injury.
The DOJ relies upon the testimony of Damien Tackett, an individual who was only briefly employed at Ebensburg, who never reported the alleged abuse he witnessed to his supervisor, who only filed a report after a supervisor indirectly heard of the alleged abuse and invited Tackett to file a report, and who refused to cooperate in the investigation by Ebensburg of the alleged abuse. (App. 350-356). The District Court acknowledged that "the reliability of the evidence [involving Tackett] is suspect in light of the fact that the employee would not repeat the allegation at the request of the Center...." 902 F.Supp. at 590. The reliance upon the testimony of Robin Hebenthal that she witnessed abuse is also questionable. She worked only a few days at Ebensburg and was upset that she was not offered a permanent position. (App. 445-446). She also confirmed that the abuse she allegedly witnessed consisted of isolated incidents and that there are only a "few bad apples" at the facility. (App. 457-461). Out of hundreds, and perhaps thousands, of present and past employees at Ebensburg, the DOJ relies upon the testimony of only two (2) short-term temporary employees that there was abuse of residents. At best, these incidents of abuse are isolated occurrences. At worst, we have individuals of questionable reliability alleging abuse.
DOJ outrageously alleges that "Hebenthal and Tackett experienced intimidation after reporting the abuse" and irresponsibly imply that the "intimidation" was by Ebensburg. (Appellant's brief at 9). This so-called intimidation was for Tackett as follows:
1. He discussed the matter with another aide and "basically, what [he] was told was keep [his] mouth shut." "Her exact words were, 'Damien, if I were you, I wouldn't say anything. This is just friendly advice, this is the kind of thing that closes down centers.'" (App. 342) (emphasis added).
2. Another aide told him she did not know what to do but then that aide reported the information to the supervisor. (App. 342). 25

3. The supervisor wanted to see him and discussed the situation with him. The supervisor told him, if necessary, he would have a supervisor to observe twenty-four (24) hours a day. (App. 342).
4. After his name was placed on the witness list, he claims he received "phone calls and hanging up, and, 'Damien, we know where you are.'" (App. 358). There was absolutely no verified connection of these calls to Ebensburg.
Tackett admits that he was actually encouraged by the supervisor to file a report of the
"abuse" and that no one discouraged him. (App. 356). As to the so-called "intimidation" of
Hebenthal there was the following:
1. When she went to identify the client for the investigation, she claims: "I had every single staff member standing there at the door, waiting to lynch me." (App. 449). There is absolutely no evidence of any verbal or physical confrontation with other staff.
2. She claims that someone, who she never identifies, followed her home. She claims she went to the State Police and "they got off [her] back." (App. 449). There is no evidence of record that anyone from Ebensburg, especially not any person in an official capacity, followed her home.
Hebenthal admits that there were no obstructions or difficulties placed in her way to file a
complaint of abuse. (App. 460). Clearly, the allegation of "intimidation" or of a
"conspiracy of silence" is a gross exaggeration based upon the paranoid reaction of these
individual witnesses.
The DOJ falsely represents that the "court did not consider, however, whether staff
adequately identified and intervened in incipient instances of harmful behaviors, nor did it
consider the claim that staff had abused residents." (Appellant's brief at 18-19). The Court
clearly addressed these claims generally and, in the few instances where specific examples
were given, the Court addressed the issues specifically. 902 F.Supp. at 631-649.
Although the DOJ attempts to rely on Medical Assistance (MA) surveys to support
their claim that Ebensburg is deficient, they ignore statements in the surveys such as: "The
deficiencies during this survey do not individually or collectively jeopardize client health and
26

safety or seriously impair the facility's ability to render care." (App. 937). DOJ relies upon deficiencies that have been cited in MA and Inspection of Care (IOC) surveys. Even DOJ's expert, Russo, acknowledges that the May Institute where he works has been cited for deficiencies in behavioral programs. (App. 329-330). As discussed by Reid, he has never seen a survey, except once in twenty (20) years, where nothing was cited as a deficiency. (App. 809). Reid understands that if a facility is truly not providing something important the surveyors will pursue decertification. (App. 810). If deficiencies in any survey had been systemic or if such deficiencies had threatened the safety of clients, then action would have been taken to revoke Ebensburg's license. (App. 1110-1112).
The District Court noted that the deficiencies found in MA and IOC surveys have been corrected. The District Court stated that the "record does not contain any evidence of any plans of correction which have not been approved or implemented." 902 F.Supp. at 588.
Kastner found that Goldschmidt was "doing an average job or an above average job." (App. 534). He found psychiatric care at the facility to be above average. (App. 533). He does not believe that psychiatric services fall below accepted professional standards. (App. 558; App. 571). The pattern of care at Ebensburg is superior to the standard care received in a typical ICF-MR. (App. 574). Hauser felt there was adequate psychiatric care rendered at Ebensburg. (App. 630). He found that psychiatry staff exercised professional judgment and psychiatry services were within the range of accepted professional standards. (App. 631, 668). Kastner found that "physicians at Ebensburg are doing an appropriate job in managing the care of clients." (App. 539). Lubetsky found that Pauline Goldschmidt, M.D., Ebensburg Center's psychiatrist exercised professional judgment. (App. 583-584). He also found that psychiatric services met accepted professional standards. (App. 584, 595-596).
27

DOJ claims that Ebensburg was aware of deficiencies because of two (2) form letters
that were sent by the United States Department of Justice. (Appellant's brief at Addendum B
and Addendum C). The plaintiff should be embarrassed to rely on such vague and general
letters that obviously did not serve as any guidance to Ebensburg to make improvements.
SUMMARY OF ARGUMENT
I. DOJ has failed to comply with the requirements of CRIPA in that it has not demonstrated egregious and flagrant conditions, grievous harm, and a pattern or practice of constitutional deprivation. It has also failed to provide a reasonable time period to make corrections of alleged problems by not providing statutorily-required information to the Commonwealth. As a result, DOJ lacked standing to institute this action and failed to meet its burden of proof at trial.
II. The evidence of record overwhelmingly supports a finding that professional judgment was exercised at Ebensburg. The DOJ failed to demonstrate that care or treatment at Ebensburg substantially departed from accepted professional standards. The residents at Ebensburg, contrary to the testimony of DOJ's experts, are not entitled to optimal care. DOJ's argument that there is a right to enhanced ability to function is based upon a tortured reading of the relevant case law and upon a distortion of relevant facts. The criticism by DOJ that the District Court did not consider certain issues is unfounded where DOJ never produced evidence to support those issues. The DOJ without any legal authority incorrectly implies a right to specialized physicians when treating general physicians are qualified to provide medical services.
III. The District Court correctly required DOJ to demonstrate that any alleged lapses of care were the result of the Commonwealth's "policy or custom" or were more than a few isolated incidents. Under the standards of §1983, "policy or custom" must be established when, as here, individuals are sued in their official capacities. Furthermore, the "policy or custom" is consistent with the requirement in CRIPA that DOJ show a "pattern or practice." Also, case law that does not allow a constitutional deprivation to be based upon isolated incidents supports a "policy or custom" requirement.
ARGUMENT
Counter-statement of Standard of Review
As noted by the District Court, "the instant CRIPA action was tried...over the course
of 20 days, [e]xtensive testimony by lay and expert witnesses was presented, hundreds of
28

exhibits were received into evidence, and [the District Court] conducted a detailed view of the facility in the presence of counsel." 902 F.Supp. at 577. Accordingly, the District Court stated that "resolution of this matter is fact intensive...." 902 F.Supp. at 578 n.l.
On review, this Court will "breakdown the issues into their legal and factual components" and engage in plenary review of the legal components and deferential review of the factual components. Lansford-Coaldale Water Authority v. Tonolli Corp.. 4 F.3d 1209, 1214 (3d Cir. 1993) (citations omitted). This Court reviews factual findings for clear error and is "bound to defer to the District Court's fact finding if evidence supports those findings." Ragan v. Tri-Countv Excavating. Inc.. 62 F.3d 501, 507 (3d Cir. 1995). Under the clearly erroneous standard, a finding of fact may be reversed on appeal only "if it is completely devoid of a credible evidentiary basis or bears no rational relationship to the supporting data." Id. (citations omitted). When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court's findings. Id. (citations omitted). Therefore, an appellate court may not substitute its findings for that of the District Court or retry the issues of fact de novo, but is limited to making an assessment of whether there is enough evidence on record to support such findings. Id- (citations omitted). The Supreme Court has stated that a clear error of fact should not be found unless a review of the record leaves the appellate court with the "definite and firm conviction that a mistake has been committed." Anderson v. Bessemmer City. 470 U.S. 564, 573 (1985).
I. THE DECISION OF THE DISTRICT COURT IS FURTHER SUPPORTED BY DOJ'S FAILURE TO COMPLY WITH APPLICABLE STANDARDS DICTATED BY CRIPA.
29

DOJ has failed to comply with the requirements of CRIPA. This failure to follow the statutory prescriptions means that the DOJ never established standing to bring this alleged cause of action and that DOJ failed to meet its burden of proof at trial.7
CRIPA states: Whenever the Attorney General has reasonable cause to believe that any State...is subjecting persons residing in...an institution...to egregious and flagrant conditions which deprive such persons of rights...secured or protected by the Constitution...causing such persons to suffer grievous harm, and that such deprivation is pursuant to a pattern or practice..., the Attorney General may institute a civil action....
42 U.S.C. §1997a(a) (emphasis added). The Attorney General must also certify to the court that he has notified the state in writing of the "alleged conditions which deprive rights," "the supporting facts giving rise to the alleged conditions," and "the minimum measures which he believes may remedy the alleged conditions." 42 U.S.C. §1997b(a). The Attorney General must be "satisfied that the appropriate officials have had a reasonable time to take appropriate action to correct such conditions." 42 U.S.C. § 1997b.
DOJ has never demonstrated these essential elements. In particular, DOJ did not provide any writing that clearly described any alleged conditions other than in broad, conclusory terms in a boilerplate letter. (See Appellant's brief at Addendum B and Addendum C). Also, the letters do not supply the supporting facts that would allow a state to verify any alleged problems. Additionally, the letters do not offer any statement of the minimum measures needed to remedy any problems. As a result, since the Commonwealth
7 The District Court found that "the statute simply confers standing upon the Attorney General to initiate a lawsuit." 902 F.Supp. at 578.
30

never received this necessary information, there was never any reasonable time to take appropriate action.8

Furthermore, as evidenced by the Statement of the Case, the DOJ never established at trial that there were egregious and flagrant conditions, grievous harm, or a pattern or

practice. In fact, DOJ completely ignored these statutory requirements at trial. The legislative history supports a finding that DOJ must meet the requirements of

CRIPA.

This section [1997a] grants authority to the Attorney General to initiate actions in Federal courts for such equitable relief as may be appropriate when he has reasonable cause to believe that a State or political subdivision of a State or person acting on behalf of a State or political subdivision is subjecting persons residing in or confined to any institution to egregious or flagrant conditions which deprive them of rights protected by the Constitution or laws of the United States. In order for the Attorney General to initiate a suit under this section he must have reasonable cause to believe that the deprivation of rights is part of a "pattern or practice" of denial rather than an isolated or accidental incident.

The 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. This is a higher standard than that required of plaintiffs other than the United States. This is not intended to expand or restrict the existing rights of plaintiffs other than the United States. This standard applies to the United States only in actions brought under this Act. Congress recognizes that this Act does not require that private litigants meet the "egregious or flagrant standard" in any action which they may have the power to bring.

8 Amazingly, DOJ brought to the Commonwealth's attention for the first time at trial, many months after the alleged discovery, alleged life-threatening conditions. Certainly, there was no reasonable time for the Commonwealth to review and remedy such alleged problems.
31

U. S. Code Congressional and Administrative News, Vol. 3, 96th Congress, Second Session,
1980, H. Conf. Rep. No. 96-897, p. 835. The legislative history demonstrates that DOJ is
obligated to comply with a standard that is more burdensome than that applied to other
plaintiffs.
In an effort to escape accountability, DOJ will argue that CRIPA is merely a
"standing" statute. The statute itself does not state that it merely established "standing," that
the states may not challenge the certification of the Attorney General, or that all of its
requirements are discarded when a case proceeds to trial.
II. THE DISTRICT COURT DID NOT ERR IN DENYING RELIEF BECAUSE DOJ FAILED TO DEMONSTRATE THAT CARE AND SERVICES AT EBENSBURG SUBSTANTIALLY DEPARTED FROM ACCEPTED PROFESSIONAL STANDARDS AND BECAUSE THE RESIDENTS DO NOT POSSESS ANY CONSTITUTIONAL RIGHT TO AN "ENHANCED ABILITY TO FUNCTION."
The evidence of record supports the finding by the trial judge that professional
judgment was exercised in the care and treatment of Ebensburg residents.9
9 The Courts are split: on whether voluntary residents in state funded or operated institutions for the mentally disabled have a substantive due process right to services provided by the institution. Several Courts have found that voluntary residents have no substantive due process rights. Fialkowski v. Greenwich Home. 921 F.2d 459, 461 (3d Cir. 1990); Monahan v. Dorchester Counseling Center. 961 F.2d 987 (1st Cir. 1992); Higgs v. Latham. 946 F.2d 895 (6th Cir. 1991); (text in Westlaw -- though not published in the Federal Reporter, an opinion considered binding in the Sixth Circuit, Martin v. Voinovich. 840 F.Supp. 1175, 1207 n.26 (S.D. Ohio 1993)); Ridlen v. Four County Counseling Center. 809 F.Supp. 1343 (N.D. Ind. 1992); Jordan v. Tennessee. 738 F.Supp. 258 (M.D. Tenn. 1990).
Some Courts have found that voluntary residents have substantive due process rights. Wilson v. Formigoni. 832 F.Supp. 1152 (N.D. 111. 1993); United States v. Pennsylvania. 832 F.Supp. 122 (E.D. Pa. 1993); Halderman v. Pennhurst State School and Hospital. 784 F.Supp. 215 (E.D. Pa. 1992) afCi 977 F.2d 568 (3d Cir. 1992) (because the affirmance was without a published opinion, only the District Court's result (denying defendants' 60(b) motion), and not its reasoning was affirmed).
In more recent cases, the Courts examine not merely how the individual got into State custody, but to what extent the State exercises control and dominion over the individual. See
(continued...)
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As stated in Youngherg v. Romeo. 457 U.S. 307 (1982):
[A] decision if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.
457 U.S. at 323. Shaw v. Strackhouse. 920 F.2d 1135, 1143 (3d Cir. 1990), has held that
negligence is not a violation of constitutional rights. In ShawT the Court explains:
Professional judgment is a relatively deferential standard. It requires only that a state actor exercise professional judgment in choosing the appropriate course of action. Negligence, however, imposes on a state official the burden of choosing, from among alternatives, a course of action consistent with the exercise of "due care." That means, as we see it, rejecting negligent alternatives that might nonetheless satisfy the demands of professional judgment...[Professional judgment appears to us to be a substantially less onerous standard than negligence from the viewpoint of the public action. Indeed, in our view, professional judgment more closely approximates — although, as we have discussed, remains somewhat less deferential than — a recklessness or gross negligence standard.
920F.2dat 1146.
9(... continued) Walton v. Alexander. 44 F.3d 1297 (5th Cir. 1995), and Spivey v. Elliott. 29 F.3d 1522 (11th Cir. 1994). In both the Walton and the Spivey cases, the plaintiffs were enrolled in state-run schools for the hearing impaired and plaintiffs were sexually assaulted by classmates. The Walton Court concluded that since no special relationship existed between the State and the plaintiff, the State owed no constitutional duty of protection from harm. Walton at 1299. The Court stated "a special relationship only arises when a person is involuntarily confined or otherwise restrained against his will pursuant to a governmental order or by the affirmative exercise of state power...[t]his relationship does not arise solely because the state exercises custodial control over an individual such as is the case when a person voluntarily resides in a state facility." Walton at 1299. The Spivey Court, however, a virtually identical case to Walton, decided that a special relationship did exist between the State and the plaintiff, but concluded that the State was nonetheless entitled to qualified immunity. Spivey at 1526-1527.
If this Court should find that voluntary residents such as those at Ebensburg do not have substantive due process rights, then the ruling of the District Court in favor of the Commonwealth should be upheld for this additional reason.
33

A state has considerable discretion in determining the nature and scope of its responsibilities. Youngberg. 457 U.S. at 317. "The constitution only requires that the court determine whether professional judgment in fact was exercised. The court may not specify which of several professionally accepted choices should have been made." Scothorn v. Kansas, 772 F.Supp. 556, 561 (D. Kan. 1991). The Court should not "weigh the decisions of treating professionals against the testimony of the [plaintiff's] professionals to decide which of several acceptable standards should apply. Thomas S. v. Flaherty. 902 F.2d 250, 252 (4th Cir. 1990). If the plaintiff only proves a difference of professional opinion as to which practices are appropriate and which are not, this does not establish a constitutional deprivation. Doe v. Gaughan. 617 F.Supp. 1477, 1487 (D. Mass. 1985). The professional judgment standard is met even where experts disagree with care or treatment decisions that were actually made or where they think another course of conduct would have been better. Society for Good Will to Retarded Children v. Cuomo. 737 F.2d 1239, 1248 (2nd Cir. 1984).
Even where medical problems have been treated improperly, the Court should not base its decision concerning professional judgment on "isolated instances of improper treatment." Society for Good Will. 737 F.2d at 1245. "Isolated incidents of inadequate care, or even of malpractice, do not demonstrate a constitutional violation." 727 F.2d at 1245.
The Constitution does not guarantee a mentally retarded person the right to live in the community or the right to the least restrictive environment. P.C. v. McLaughlin. 913 F.2d 1033, 1042 (2nd Cir. 1990); Society for Good Will. 737 F.2d at 1249; Baldridge v. Clinton. 139 F.R.D. 119, 127 (E.D. Ark. 1991). "A patient does not have a constitutional right to an ideal environment or an ideal treatment plan, or even a guarantee that the patient will be cured." Cameron v. Tomes. 783 F.Supp. 1511, 1515 (D. Mass. 1992). A court may not
34

order a state to provide all things that are considered "optimally desirable" in a facility. David v. Hubhard. 506 F.Supp. 915, 922-923 (N.D. Ohio 1980).
"The requirement that professional judgment be exercised is not an invitation to a court reviewing it to ascertain whether in fact the best course of action was taken." P.C.. 913 F.2d at 1043. " [Professional judgment has nothing to do with what course of action would make patients safer, happier and more productive." Society for Good Will. 737 F.2d at 1248. The issue is "not whether the optimal course of treatment as determined by some experts is being followed." 737 F.2d at 1248. As stated in Doe, where there was an issue of understaffing and overcrowding: "The constitution does not require a state to provide an ideal environment for each person in its mental institution. Rather it must provide an environment in which professional judgment may be exercised." 617 F.Supp. at 1488. In affirming Doe, the Second Circuit wrote:
In the present case, the district court found that while overcrowding and the lack of staffing in some of the professional positions was making treatment more difficult, nevertheless the professional staff was still able to exercise its professional judgment and provide adequate treatment to [its] patients. 808 F.2d 871, 885 (1st Cir. 1986). There is some question as to what treatment must be provided to the mentally retarded at a state facility. Youngberg only held that a state must provide "such training as an appropriate professional would consider reasonable to ensure...safety and to facilitate [the] ability to function free from bodily restraints." 457 U.S. at 324. If a professional makes a decision there is a presumption of correctness which "is necessary to enable institutions of this type — often, unfortunately, overcrowded and understaffed ~ to continue to function." 457 U.S. at 324. Some courts, relying on the concurring opinion of Justice Blackmun in
35

Youngberg. have expanded the right to treatment to include a due process right to "training
sufficient to prevent basic self-care skills from deteriorating." Society for Good Will to
Retarded Children v. Cuomo. 737 F.2d 1239, 1250 (2d Cir. 1984). See also. Armstead v.
Eingl££, 629 F.Supp. 273, 276 (M.D. Fla. 1986). The Court clarified its position by stating:
Our holding, however, does not include a right to such training as will improve a resident's basic self-care skills beyond those with which he or she entered [the facility] and does not encompass skills that are not basic to self care.... Where the staff does not provide treatment designed to improve a mentally retarded individual's condition, it deprives the individual of nothing guaranteed by the Constitution; it simply fails to grant a benefit of optimal treatment that it is under no constitutional obligation to grant.
Society for Good Will. 737 F.2d at 1250. Sss. also. Griffith v. Ledbetter. 711 F.Supp. 1108,
1111-1112 (N.D. Ga. 1989). The cases are clear that treatment need not provide "qualitative
betterment" of a mentally retarded person's life. Feagley v. Waddill. 868 F.2d 1437, 1440
(5th Cir. 1989). See also. Geiseking v. Schafer. 672 F.Supp. 1249, 1266 (W.D. Mo. 1987).
As the Statement of the Case reveals, there is little or no evidence in the record to
establish a substantial departure from accepted professional standards. There was most
certainly not any evidence that established a situation that approached recklessness or gross
negligence. In fact, all of the Commonwealth's experts, who in most cases were apparently
found more credible by the trial judge, testified that they not only saw an exercise of
professional judgment but that they also found that Ebensburg met accepted professional
standards. The Commonwealth did not merely defend at the lower standard of professional
judgment but presented credible and compelling evidence that Ebensburg achieved the higher
standard of creating an environment that complied with accepted professional standards.
DOJ, at best, in a few instances has only shown a difference of professional opinion.
In most other cases, where DOJ merely cites to the fact that residents experience injuries or
36

medical problems, DOJ's professionals do not even provide a reasoned professional opinion as to what alternative course should have been taken. Instead, the DOJ experts not only inappropriately invite the Court to ascertain what is the best course of action but they absurdly ask the Court to supply a remedy of its own creation. The record is almost totally devoid of any evidence describing what relief is appropriate. Even if the District Court had been willing to ignore the relevant case law and incorrectly attempted to substitute its judgment for that of the treating professionals, the trial judge would have had inadequate guidance in the record as to what relief should be fashioned.10 The law is clear that the Court should not accept DOJ's invitation to replace the professional judgment of the treating professionals with a course of treatment chosen by the Court itself.
In reality, by arguing that Ebensburg must comply with the personal subjective opinions of their experts, DOJ is advocating an ideal environment or an ideal treatment plan. This Court should reject the effort to impose upon the Commonwealth all things that are optimally desireable.
As pointed out in the Statement of the Case, there are several allegations by DOJ that establish only isolated incidents. There is no evidence to demonstrate that these isolated incidents are representative of care and treatment at Ebensburg and, therefore, the Court should not base any decision concerning professional judgment on this evidence.
The record is filled with evidence to demonstrate that an overall system is in place at Ebensburg to provide training to reasonably ensure the safety of residents and to facilitate the
10 Nearing the completion of the case, having placed virtually no evidence on record as to a remedy, DOJ suddenly sought to admit into evidence a resolution by the Pennsylvania Association for Retarded Citizens that stated all institutions for the mentally retarded should be closed by the year 2000. (App. 1857-1859, 1960-1865). Apparently, the relief sought by DOJ was the closure of Ebensburg even though there was no statutory or other legal authority for it to pursue such a political agenda.
37

ability to function free from bodily restraints. There is absolutely no evidence of record that
shows there is any deterioration of self-care skills related to insufficient training. In fact,
DOJ's experts never testified that they evaluated training but instead merely argue that
training must be inadequate if injuries and restraints continue to occur.
In attempting to expand the rights of institutionalized individuals to include habilitation
that enhances the ability to function, the DOJ makes several arguments which are
unsupported both factually and legally. The Court should reject these arguments.
The DOJ refers to the "interest in leaving the state's custody once the
institutionalization has served its purpose." (Appellant's brief at 25). The argument, and
supporting cases cited, refer to individuals who are involuntarily committed. Most residents
at Ebensburg are not involuntarily committed but rather have such severe medical disabilities
or other problems as to make their continuing institutionalization likely. They are, however,
free to leave the facility and could be removed by a family member or guardian. DOJ's
reference to a "jailhouse" is totally inappropriate to the Ebensburg situation. Furthermore, the opinion principally relied upon by DOJ, is a concurring opinion11 that merely recognizes
the "non-deterioration" principle that institutionalized persons may have a right to training to
prevent deterioration of basic self-care skills. Clark v. Cohen. 794 F.2d 79, 95-98 (3d Cir.)
11 Many of DOJ's arguments rely upon concurring opinions. This Court has noted, however, the "awkwardness in attributing precedential value to an opinion of one Supreme Court justice to which no other justice adhered...." Planned Parenthood v. Casey. 947 F.2d 682, 694 (3d Cir. 1991) (citation omitted). Additionally, it is well settled that a concurring opinion, while merely persuasive, is not binding and does not constitute authority under the doctrine of stare decisis, or have any precedential value. 21 C.J.S. § 141(a); 20 Am.Jur.2d § 159; see also Bronson v. Bd. of Ed., etc.. 510 F.Supp. 1251, 1265 (S.D. Ohio 1980) ("concurring opinions have no legal effect, and thus, are in no way binding on any court."); In re: Bernard N. Gibson. 157 B.R. 366, 372 n.4 (S.D. Ohio 1993) ("a concurring opinion is a view personal to the concurring judge and not the opinion of the court [and, therefore,]...not dispositive of the issue.")
38

(Becker, J., concurring), cert, denied. 479 U.S. 962 (1986). The Clark decision, along with the concurring opinion, does not recognize any broad right to enhancement of ability to function.
The DOJ incorrectly states that the District Court held "that residents have no right to training aimed at improving their conditions." (Appellant's brief at 28) (emphasis added). The District Court did not speak to "aiming" for improvement. Obviously, the habilitation programs at Ebensburg are "aimed" at improvement and are not written to stop in their implementation upon reaching only a level of maintenance. Judge Smith actually states that "the Center is under no constitutional duty to provide services that enhance the residents' level of functioning." 902 F.Supp. at 632. The District Court did not recognize a right to improvement other than in limited areas such as there is "the loss of a recognized liberty interest (e.g. minimally adequate or reasonable training to ensure safety and freedom from undue restraint, as recognized in YoungbergV 902 F.Supp. 618. Clearly, contrary to the claim of DOJ, the District Court did not ignore the requirements of Youngberg. 902 F.Supp. at 581-582.
DOJ erroneously claims that Youngberg "recognized that the state has a duty to seek improvements in residents' condition." (Appellant's brief at 28). There is absolutely no such general statement of a right to improvement in Youngberg.
The DOJ again relies on a concurring opinion that "professional judgment of a physician acting with the power of state authority requires more than comparable professional decisions." Rennie v. Klein. 720 F.2d 266, 272 (3d Cir. 1983) (Adams, J., concurring). The Third Circuit and the Supreme Court have not recognized such a standard. Furthermore, there is no evidence of record to support a finding that Ebensburg did not meet a modified professional judgment standard. In fact, the record supports a finding that Ebensburg met
39

accepted professional standards which is a higher standard than any interpretation of professional judgment.
DOJ mistakenly claims that the District Court incorrectly relied upon DeShaney v. Winnehago County Department of Social Services. 489 U.S. 189 (1989). The DOJ falsely implies that the trial court ignored the Youngherg standards in relying on DeShaney. (Appellant's brief at 30). To the contrary, Judge Smith immediately follows his citation to DeShaney with a reference to Youngberg. 902 F.Supp. at 617-618.
The DOJ grossly misrepresents that the District Court "held that the state has w. duty to seek to improve residents' conditions — even where doing so would serve the interests in safety or freedom from restraint." (Appellant's brief at 32). There is no such ruling by the District Court. Rather, this is the tortured reading of the decision by DOJ because DOJ never established that certain training or treatment was related to safety or freedom from restraint. For example, there was no need for Judge Smith to address safety or freedom from restraint where DOJ alleged a right to non-mainstream physical therapy techniques that were contraindicated for this population. There was no issue established by DOJ concerning safety or freedom from restraint.
DOJ alleges that the concurring opinion in Clark endorsed a modified nondeterioration rule thai: "would oblige the state to seek to improve residents' conditions at least as much as they would have improved outside the institution." (Appellant's brief at 32, n. 22). DOJ cites this language out of context to overly exaggerate to breadth of this statement. The concurring opinion only recognizes such a right to improvement as follows: "Consider a patient who is committed at an early age, who remains in confinement for a significant period of time, but whose self-care skills might have improved even if she had never been committed." 794 F.2d at 96. Judge Becker was not referring to an older population as exists
40

at Ebensburg. Furthermore, DOJ has failed completely to tie any need for training to the early developmental years of Ebensburg residents.
The DOJ ironically criticizes the District Court for "focus[ing] exclusively on the number of injuries at the Center" in addressing residents' interest in physical safety. (Appellant's brief at 36-37). This focus was dictated by DOJ's sole reliance on injury numbers to support its claim that there was inadequate safety. The District Court's statements were meant to demonstrate how DOJ had failed to meet its burden of proof. Now, the DOJ seeks to twist around their own failure of proof to support an argument that the District Court should have addressed something more. The trial court cannot address evidence that has never been placed before it. DOJ's entire argument, including alleged inadequate direct care staffing, is based upon a claim that many injuries are occurring so there must be something wrong. The trial court soundly rejected such a false assumption where there was no underlying analysis of the situations to determine if there was a substantial departure from accepted professional standards.
Similarly, DOJ unfairly alleges that the District Court erred when it concluded that nurses responded in a timely manner when again DOJ dismally failed in its burden of proof. (Appellant's brief at 41). The trial court correctly held that the nurses responded promptly when injuries were brought to their attention and DOJ knows it cannot dispute this finding. Now, even though not argued below, the DOJ claims that direct care staff demonstrated deliberate indifference in their delay in notifying the nurses. The record, however, once again, is devoid of any underlying analysis of the alleged situations resulting in delay. In an overly simplistic fashion, DOJ again merely argues that if a delay occurred it must mean that something was amiss. There is no evidence as to when staff actually were aware of the injury or were aware that the injury was severe enough to seek the aid of a nurse.
41

Furthermore, the record shows only isolated incidents that did not result in harm to the residents. DOJ should not visit its own inadequacies in presenting evidence upon the District Court in the form of criticism of the trial judge's ruling.
As pointed out in the Statement of the Case, the allegations by DOJ regarding abuse and a "conspiracy of silence" have so little foundation that the District Court was correct in finding generally that there was adequate protection of physical safety. (Appellant's brief at 42). There is no specific need to address every exaggerated, and possibly unreliable, isolated incident of abuse to render an adequate opinion.
The misrepresentation as to the District Court's opinion continues where the DOJ claims that the trial court "improperly held that a state's duty to provide medical care is limited by the qualifications of the staff it hires." (Appellant's brief at 43). Once again, DOJ is forced to make such a convoluted argument because it failed to show that treating physicians did not exercise professional judgment in treating seizures. (See Statement of the Case). The trial court did not hold, as DOJ implies, that staff can exercise professional judgment without being qualified in their areas of expertise. The treating physicians at Ebensburg were qualified to treat seizures and there is no evidence disputing that they were qualified physicians. In actuality, it is DOJ that now impliedly argues that states must hire only neurologists to treat seizures. DOJ again is attempting to impose, through the back door this time, a standard of optimal treatment. No court has recognized a constitutional right to specialized physicians, especially where, as here, the treating physicians had access to a specialist.
DOJ's argument that since Ebensburg is not licensed to provide intravenous therapy then injunctive relief may still be warranted is in contradiction of the evidence. (Appellant's brief at 46, n. 26). DOJ conveniently ignores that there are many settings, including private
42

homes, that do not have IV capability. Also, all the experts, including Alvarez,
acknowledged that it is acceptable to rely upon ambulance service and outside hospitals for
IV administration.
III. THE DISTRICT COURT DID NOT ERR IN DENYING INJUNCTIVE RELIEF BECAUSE DOJ FAILED TO DEMONSTRATE THAT AN ALLEGED LAPSE IN CARE WAS THE RESULT OF THE COMMONWEALTH'S "POLICY OR CUSTOM" OR THAT THE ALLEGED LAPSE IN CARE WAS MORE THAN A FEW ISOLATED INCIDENTS.
In its brief, DOJ alleges that the District Court somehow erred by concluding that
injunctive relief was not appropriate with respect to the Center's management of the side
effects of the anti-convulsant medication known as Dilantin. See Appellant's brief at 46.
Specifically, the District Court, on this issue, concluded as follows:
Injunctive relief in this action, however, is not warranted because the United States did not even attempt to establish that this lapse in the Center's neurological care was the result of the Commonwealth's "policy or custom" as implemented at the Center. See Graham. 473 U.S. at 166...(in official-capacity suit, entity's "policy or custom" must have played a part in the violation of federal law). The United States' constitutional challenge to neurological care in this "official-capacity" action, therefore, fails as a matter of law.
902F.Supp. at 596.12
For the reasons which follow, the Appellant's arguments should be rejected, and this
Court should affirm the District Court.
12 The record shows that only a few individuals suffered a side effect to Dilantin. DOJ's expert, Alvarez, did not conduct a physical examination of these individuals and did not determine that any of them were receiving an excessive dose of Dilantin. Alvarez did not opine that there was a substantial departure from accepted professional standards in Dilantin administration and the monitoring of side effects. Once again, DOJ inappropriately alleges a constitutional violation based solely upon the occurrence of an unfortunate event without any supporting analysis by a professional as to whether it substantially departed from acceptable standards.
43

As the Supreme Court has noted, CRIPA is legislation pertaining to "a specific class of §1983 actions." Felder v. Casey. 487 U.S. 131, 148 (1988). Significantly, §1983 did not create any new rights, but was enacted by Congress "to give a remedy to parties deprived of constitutional rights, privileges, and immunities by an official's abuse of his position." Monroe v. Pape. 365 U.S. 167, 172 (1961) (emphasis added). See also. Parratt v. Taylor. 451 U.S. 527, 535 (1981) (Section 1983 provides "a 'civil remedy' for deprivations of federally protected rights caused by persons acting under color of state law without any express requirement of a particular state of mind."). Additionally, because CRIPA was enacted to provide standing for the Attorney General to initiate civil rights actions on behalf of institutionalized persons13, the "essential elements" that the Appellant must approve are the same as in any civil rights action. See United States v. Pennsylvania. 863 F.Supp. 217, 220 ("[T]he United States has no greater standard of proof than an individual plaintiff would bear in a case alleging the same illegal conduct on the part of a state."). Here, the Appellant sued the Commonwealth of Pennsylvania, and several individual defendants, "in their official capacities," alleging that defendants' "acts and omissions... 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 deprived residents of Ebensburg of such rights, privileges or immunities." Complaint, 1111, 21 (emphasis added).
As this Court has observed, the difference between suits filed against public officials "in their governmental and personal capacities has tended at times to become muddled."
13 See Patsy v. Florida Bd. of Regents. 457 U.S. 496, 507-508 (1982) ("The Civil Rights of Institutionalized Persons Act...was enacted primarily to ensure that the United States Attorney General has 'legal standing to enforce existing constitutional Federal statutory rights of institutionalized persons'" rquoting H.R.Conf.Rep. No. 96-897, 899 (1980) U.S. Code Cong. & Admin. News 1980, p. 787, 833); United States v. Tennessee. 798 F.Supp. 483, 488 (W.D.Tenn. 1992) ("CRIPA is a standing statute.").
44

Gregory v. Chehi. 843 F.2d 111, 120 (3rd Cir. 1988) (emphasis added). In Graham, the Supreme Court emphasized the need to observe the distinction between personal-capacity suits and official-capacity suits, explaining as follows:
Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent. As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.
On the merits, to establish personal liability in a §1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right. More is required in an official-capacity action, however, for a governmental entity is liable under §1983 only when the entity itself was a 'moving force' behind the deprivation; thus, in an officialcapacity suit, the entity's 'policy or custom' must have played a part in the violation of federal law. Kentucky v. Graham. 473 U.S. 159, 165-166 (1985) (internal quotation marks, citations, and footnotes omitted and emphasis added); see also Monell v. New York City Dep't of Services. 436 U.S. 658, 690 (1978) ("[T]he touchstone of the §1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the
Constitution...."). Government entities, "therefore, can be sued directly under §1983 for monetary,
declaratory, or injunctive relief where, as here, the action that is alleged to be
45

unconstitutional implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body's officers." Monell, 436 U.S. at 690.14
Thus, under well-settled, binding law, in order to be entitled to relief against
defendants, Appellant must prove (as the District Court found) that the Center's alleged
misconduct was the result of the Commonwealth's "policy or custom." Because the District
Court found that Appellant "did not even attempt" to prove a "policy or custom," the district
court held that Appellant was not entitled to any relief; the District Court did not err.
The Appellant argues that instead "of requiring proof of a 'policy or custom' to justify
equitable relief, the District Court should have applied the standards set forth in CRIPA
itself." See Appellant's brief at 49. In fact, the plain language of the statute on its face
confirms that requiring proof of a "policy or custom" is fully consistent with CRIPA. Under
CRIPA, 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
14 Appellant, at footnote 28 of its brief, contends that the "policy or custom" rule articulated by the Court in Monell does not apply in this case because the Appellant seeks only prospective relief. See Appellant's brief at 49 n.28. Appellant's argument, however, is in direct conflict with Monell. in which the Court, as noted, supia, did not distinguish among cases based upon the type of relief sought and stated that government entities "can be sued directly under §1983 for monetary, declaratory, or injunctive relief where, as here, the action as alleged to be unconstitutional, implements or executes a policy.... " Id. In fact, the Ninth Circuit case on which the Appellant relies, Chaloux v. Killeen. 886 F.2d 247, 250-251 (9th Cir. 1989) has been recently called into question in Circuit Judge Fletcher's concurring opinion in Los Angeles Police Protective League v. Gates. 995 F.2d 1469, 1477-1478 (9th Circuit 1993) (Stating that the holding in Chaloux is "in conflict with Monell," observing that Monell "does not distinguish among cases based on the type of relief sought; it simply holds that a municipality may not be sued at all unless the challenged conduct represents the official policy or custom," and requesting the panel to "avoid the further propagation of an
unsound legal proposition that is at odds with Supreme Court precedent." 999 F.2d at 1477-
1478 n.4). Because Appellant's argument is directly contradicted by the plain language of Monell. and the case on which Appellant relies has recently been called into question, the Appellant's argument is without merit and should be rejected by this Court.
46

flagrant conditions" is causing "grievous harm" to institutionalized persons. 42 U.S.C. §1997a(a). Indeed, the Joint Explanatory Statement of the Committee Conference states that the "Government must show that the unlawful acts by the defendant was not an isolated or accidental departure from an otherwise lawful practice." Thus, the requirement in the statute for a "pattern or practice" clearly supports the conclusion that the "policy or custom" rule should apply to actions under CRIPA. For these reasons, the District Court did not err in applying the "policy or custom" rule in this case.
Regardless of whether the "policy or custom" rule applies to this CRIPA action, it is clear that the evidence purportedly supporting the District Court's conclusion with respect to the anti-convulsant medication Dilantin, is insufficient to support a finding of a constitutional deprivation as it does not show a "pattern or practice," but rather illustrates at best isolated mishaps. It is firmly established that, a "federal court, of course, must identify a constitutional predicate for the imposition of any affirmative duty on a state." Youngberg. 457 U.S. 307, 319 n.25. As noted above, an action may be instituted under CRIPA only when the requisite "pattern or practice" exists. See 42 U.S.C. §1997a(a). Also, the "government must show that the unlawful act by the defendant was not an isolated or accidental departure from an otherwise lawful practice." See H.R.Conf.Rep. No. 897, 96th Cong. 2d Sess. 11, 12 (1980), U.S. Code Cong. & Admin. News 1980 at 836. Indeed, as noted by the District Court, this Court in Shaw explained that isolated examples of actions or omissions, while regrettable, do not establish constitutional violations. See 902 F.Supp. at 589 (citing Shaw. 920 F.2d at 1143) ("Although the failure to prevent a 'pattern of attacks, injuries, or violent behavior' is actionable, [t]he right to protection is not activated by an isolated mishap....") (citations omitted); see also Society for Good Will. 737 F.2d at 1245 ("[Wjhile there have been occasions when patients' specific medical problems have been
47

treated improperly, the District Court's decision should not have been based on isolated instances of improper treatment, but on a finding that medical care was inadequate on a classwide basis. Isolated instances of inadequate care, or even of malpractice, did not demonstrate a constitutional violation.").15 The Supreme Court has specifically concluded that "the Due Process; Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." See Daniels v. Williams. 474 U.S. 327, 328 (1986) (emphasis in original).
An examination of the District Court's conclusion with respect to monitoring and responding to sedation caused by Dilantin reveals that this finding is, indeed, such an "isolated mishap" and therefore may not support a finding for a constitutional deprivation. Specifically, the District Court stated that "professional judgment was not exercised" only in the "situations highlighted by Dr. Alvarez." 902 F.Supp. at 565. Dr. Alvarez "highlighted" only "situations" involving a few patients: Neil S., Charles S., Roberta H., and "other residents with Dilantin toxicity."16 Further, the District Court specifically limited its finding with regard to Dilantin by stating: "The finding pertains only to the Center's care as it relates to detecting and responding to the side effect of sedation produced by Dilantin." 902 F.Supp. at 595 n.22. Moreover, and perhaps more importantly, the District Court concluded that the Center's act and/or omissions with regard to the "detecting and responding to the side effects of sedation produced by Dilantin" was simply a "lapse in the Center's neurological care...." 902 F.Supp. 596. This is precisely the reason why the District Court, in the first
15 DOJ does not dispute this principle of law. See Appellant's brief at 49 ("a few, isolated instances of dereliction might not justify institution-wide relief...."). 16 Although the DOJ devotes several pages of its brief to the District Court's finding with regard to anti-convulsant medication, the DOJ fails to cite to any portion of the record which it prepared and, rather, cites only to the District Court's Opinion.
48

place, refused to hold that the DOJ was entitled to injunctive relief, i.e. there is a total lack
of any record evidence that such a "lapse" in the Center's neurological care" was the result
of any "policy or custom". M- For these reasons, the evidence produced at trial by
Appellants, at best, constitutes "isolated instances of inadequate care, or even of malpractice,
[which] do not demonstrate a constitutional violation." See Society for Good Will. 737 F.2d
at 1245. "To hold that injury caused by such conduct is a deprivation within the meaning of
the [Constitution] would trivialize the centuries-old principle of due process of law."
Daniels, 474 U.S. at 332."
17 Additionally, to hold that the problems associated with the effects of Dilantin rise to the level of a constitutional deprivation would improperly encourage judicial micromanagement of state-operated facilities for mentally retarded persons. This would erroneously broaden judicial review in this context which, as the Supreme Court has repeatedly stated, is limited. See Youngberg. 457 U.S. at 322 ("in determining what is 'reasonable' - in this and in any case presenting a claim for training by a state — we emphasis that courts must show deference to the judgment exercised by a qualified professional. By so limiting judicial review of challenges to conditions in state institutions, interference by the federal judiciary with the internal operations of these institutions should be minimized."); Parham v. J.R.. 442 U.S. 584, 608 n. 16 (1979) (In limiting judicial review of medical decisions made by professionals, "it is incumbent on courts to design procedures that protect the rights of the individual without unduly burdening the legitimate efforts of the states to deal with difficult social problems."); see also. Collins v. City of Harker Heights Tex.. U.S. at , 112 S. Ct. 1061, 1070 (1992) (Noting that the basis for refusing to characterize the governmental entity's omission as arbitrary "in a constitutional sense rests on the presumption that the administration of Government programs is based on a rational decision-making process that takes account of competing social, political, and economic forces. Decisions concerning the allocation of resources to individual programs,...involve a host of policy choices that must be made by locally-elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country.") (citations omitted).
49

CONCLUSION Wherefore, the Commonwealth respectfully requests that this Court affirm the judgment of the District Court.
Respectfully submitted, ECKERT SEAMANS CHERIN & MELLOTT

Dated: April 23, 1996

Thomas B. York, Esquire Douglas J. Davison, Esquire
One South Market Square Building 213 Market Street Harrisburg, PA 17101 (717) 237-6000
COMMONWEALTH OF PENNSYLVANIA
John A. Kane, Esquire Christine D. DeMichele, Esquire Office of Legal Counsel Department of Public Welfare P. O. Box 2675 Harrisburg, PA 17105-2675 (717) 783-2800
Attorneys for Appellees

50

CERTIFICATE OF BAR MEMBERSHIP I hereby certify that I am a member in good standing of the Bar of this Court.
THOMAS B. YORK

CERTIFICATE OF SERVICE
I hereby certify that two (2) true and correct copies of the foregoing Brief for the
Appellees were served on the following counsel of record by deposit in the United States
mail, first class postage prepaid, this 23rd day of April, 1996.
Samuel Bagenstos, Esquire Appellate Section Civil Rights Division U. S. Department of Justice P. O. Box 66078 Washington, DC 20035-6078
ECKERT SEAMANS CHERIN & MELLOTT
Thomas B. York, Esquire Douglas J. Davison, Esquire
One South Market Square Building 213 Market Street Harrisburg, PA 17101 (717) 237-6000
COMMONWEALTH OF PENNSYLVANIA
John A. Kane, Esquire Christine D. DeMichele, Esquire Office of Legal Counsel Department of Public Welfare P. O. Box 2675 Harrisburg, PA 17105-2675 (717) 783-2800
Attorneys for Appellees

 
 U.S. v. Pennsylvania
IlllllIIIIII

No. 95-3541

MR-PA-006-008

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
THOMAS J. RIDGE, Governor of the Commonwealth of Pennsylvania; FEATHER HOUSTOUN, Secretary, Dept. of
Public Welfare; NANCY THALER, Deputy Secretary of Mental Retardation, Office of Mental Retardation;
ALAN M. BELLOMO, Director, Ebensburg Center; COMMONWEALTH OF PENNSYLVANIA,
Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BRIEF FOR THE UNITED STATES AS APPELLANT

..^
FA - "

DEVAL L. PATRICK
Assistant Attorney General
STEVEN H. ROSENBAUM SAMUEL R. BAGENSTOS
Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-2174

STATEMENT OF RELATED CASES AND PROCEEDINGS This case has not been before this Court previously, and counsel for the United States is unaware of any related case currently pending or about to be presented in this Court or any other court or agency.

TABLE OF CONTENTS
STATEMENT OF JURISDICTION STATEMENT OF THE ISSUES STATEMENT OF THE CASE
A. Procedural History B. Statement of Facts
1. The Center's Failure to Assure Residents' Safety a. Preventable Injuries b. Nursing Care Delays c. Abuse of Residents
2. The Center's Failure to Provide Adequate Adaptive Training, Behavioral Programming, and Physical Therapy a. Adaptive Training and Behavioral Programming b. Physical Therapy
3. The Center's Failure to Provide Adequate Treatment for Seizure Disorders a. Status Epilepticus b. Regular Administration of Anticonvulsants
C. The District Court's Opinion STANDARD OF REVIEW SUMMARY OF ARGUMENT ARGUMENT
I. THE DISTRICT COURT ERRED IN HOLDING THAT THE STATE NEED NOT PROVIDE HABILITATION THAT ENHANCES RESIDENTS' ABILITY TO FUNCTION

PAGE 1 1 2 2 3
4 4 8 8
10
10 14
15 15
17 18 2 0 2 0 24
24

PAGE

A. Residents Of State-Operated Mental

Retardation Facilities Have A

Constitutional Right To

Habilitation That Serves

Independent Liberty Interests

24

B. Youngberg Dictates That The State

Must Provide Training That Seeks To

Improve Residents' Conditions

28

C. The Ebensburg Center Fails To

Provide Training Directed At

Improving Residents' Ability To

Exercise Their Liberty Interests

33

II. THE DISTRICT COURT ERRED IN CONCLUDING THAT

THE STATE ADEQUATELY PROTECTED RESIDENTS'

INTEREST IN PHYSICAL SAFETY

3 6

A. The District Court Failed To

Consider Whether The Center

Adequately Assures That Direct Care

Staff Intervene To Prevent Injuries

From Harmful Behaviors

3 6

B. The District Court Erroneously

Refused To Hold The State

Responsible For The Center's

Nursing Care Delays Because Those

Delays Were The Fault Of Direct

Care Staff And Not Nursing Staff

41

C. The District Court Entirely Ignored

The Claim That Direct Care Staff

Have Abused Ebensburg Residents

42

III. THE DISTRICT COURT ERRONEOUSLY REFUSED TO

ISSUE RELIEF AGAINST THE STATE'S INADEQUATE

TREATMENT OF SEIZURE DISORDERS

43

A. The District Court Improperly Held

That A State's Duty To Provide

Medical Care Is Limited By The

Qualifications Of The Staff It

Hires

43

B. The District Court Erroneously Refused To
Issue Injunctive Relief Against The Center's "Widespread" Failure To Monitor The Side Effects Of Anticonvulsant Medication . . . . 46

- ii -

CONCLUSION

PAGE 50

TABLE OP AUTHORITIES

CASES:

Association for Retarded Citizens v. Olsen, 561 F. Supp. 473 (D. N.D. 1982), aff'd, 713 F.2d 1384 (8th Cir. 1983)

34-35

Bradley v. Pittsburgh Bd. of E d u c ,

910 F.2d 1172 (3d Cir. 1990)

38

Chaloux v. Killeen. 886 F.2d 247 (9th Cir. 1989)

49

City of Canton v. Harris. 489 U.S. 378 (1989) . . 39, 40, 48, 50

Clark v. Cohen. 794 F.2d 79 (3d Cir.), cert, denied, 479 U.S. 962 (1986)
Collins v. City of Harker Heights, 112 S. Ct. 1061 (1992)
DeShaney v. Winnebago County Dep't of Social Servs. . 489 U.S. 189 (1989)

passim 48 30

Educational Testing Servs. v. Katzman.

793 F.2d 533 (3d Cir. 1986)

38

Fagan v. City of Vineland. 22 F.2d 1283

(3d Cir. 1994)

39, 41, 46

Foucha v. Louisiana, 504 U.S. 71 (1992)

25

H. Prang Trucking Co. v. Local Union No. 469, 613 F.2d 1235 (3d Cir. 1980)
Hanson v. Clark County. 867 F.2d 1115

37-38

(8th Cir. 1989)

30

Humphrey v. Cady. 405 U.S. 504 (1972)

25, 29

Jackson v. Indiana. 406 U.S. 715 (1972)

25

K.H. v. Morgan. 914 F.2d 846 (7th Cir. 1990)

45

Lelsz v. Kavanagh. 807 F.2d 1243 (5th Cir.),

cert, dismissed, 483 U.S. 1057 (1987)

30

- iii -

CASES (cont'd) ::

PAGE

Mark v. Borough of Hatboro. 51 F.3d 1137

(3d Cir.), cert, denied, 116 S. Ct. 165

(1995)

39

Monell v. Department of Social Servs..

436 U.S. 658 (1978)

47

Nix v. Norman. 879 F.2d 429 (8th Cir. 1989)

49

O'Connor v. Donaldson. 422 U.S. 563 (1975)
Philadephia Police & Fire Ass'n for Handicapped Children. Inc. v. City of Philadelphia. 874 F.2d 156 (3d Cir. 1989)

25, 29 10, 30

Professional Plan Examiners v. LeFante. 750 F.2d 282 (3d Cir. 1984)

38, 43

Rennie v. Klein. 720 F.2d 272 (3d Cir. 1983)

29

Romeo v. Youngberg. 644 F.2d 147 (3d Cir. 1980) (en bane), judgment vacated, 457 U.S. 370 (1982)

passim

Scott v. Plante. 691 F.2d 634 (3d Cir. 1982)

45

Shaw v. Strackhouse. 920 F.2d 1135 (3d Cir. 1990)
Sheet Metal Workers, Local 19 v. 23 00 Group. Inc.. 949 F.2d 1274 (3d Cir. 1991)

passim 20

Society for Good Will to Retarded Children. Inc. v. Cuomo. 737 F.2d 1239 (2d Cir. 1984)

28, 30, 31

Spell v. McDaniel. 824 F.2d 1380 (4th Cir. 1987), cert, denied, 484 U.S. 1027 (1988)
Thomas S. v. Flaherty. 699 F. Supp. 1178 (W.D.N.C. 1988), aff'd, 902 F.2d 250 (4th Cir.), cert, denied, 498 U.S. 951 (1990)

...

42 28, 35

United States v., Pennsylvania. 902 F. Supp. 565 (W.D. Pa. 1995)

passim

Youngberg v. Romeo, 457 U.S. 307 (1982)

passim

- IV -

CASES (cont'd):
Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989)
CONSTITUTION AND STATUTES:
Due Process Clause (Fourteenth Amendment)
Civil Rights of Institutionalized Persons Act:
42 U.S.C. 1997 et sea. 42 U.S.C. 1997a(a) 42 U.S.C. 1997b(a) 28 U.S.C. 1291 28 U.S.C. 1331 28 U.S.C. 1343 (a) (4) 28 U.S.C. 1345
42 U.S.C. 1983
50 Pa. Stat. Ann. § 4406 (b) (.1995)

PAGE
49
24
2 49
2 1 1 1 1 47 4

- v -

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 95-3541
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
THOMAS J. RIDGE, Governor of the Commonwealth of Pennsylvania; FEATHER HOUSTOUN, Secretary, Dept. of
Public Welfare; NANCY THALER, Deputy Secretary of Mental Retardation, Office of Mental Retardation;
ALAN M. BELLOMO, Director, Ebensburg Center; COMMONWEALTH OF PENNSYLVANIA, Defendants-Appellees,
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRIEF FOR THE UNITED STATES AS APPELLANT
STATEMENT OF JURISDICTION
The district court had jurisdiction of this case pursuant to
28 U.S.C. 1331, 1343(a)(4) and 1345. Final judgment was entered
on July 28, 1995 (R. 114),^ and the United States filed a time-
ly notice of appeal on September 25, 1995 (R. 118). This Court
has jurisdiction based on 28 U.S.C. 1291.
STATEMENT OF THE ISSUES
1. Whether residents of the Ebensburg Center, a state-
i/nJ.A. " refers to page numbers in the Joint Appendix. "R. " refers to entries on the district court's docket sheet. "
Tr. " refers to pages in the transcript of trial proceedings for the dates indicated. "U.S. Exh. " refers to exhibit numbers in the trial record. Pursuant to a stipulation between the parties to protect the privacy of individuals at Ebensburg, particular residents are identified in this brief by their first name and the initial of their last name.

- 2operated mental retardation facility, have a constitutional right to habilitation that increases their ability to function.
2. Whether the Ebensburg Center adequately protects residents' constitutional right to safe conditions.
3. Whether the Ebensburg Center provides constitutionally adequate treatment to residents with seizure disorders.^
STATEMENT OF THE CASE A. Procedural History This case arises under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. 1997 et sea. (CRIPA). Pursuant to CRIPA's notice requirement (42 U.S.C. 1997b(a)), the United States notified the Commonwealth of Pennsylvania in 1987 of its finding "that conditions exist at Ebensburg which deprive residents of their constitutional rights." Letter from Wm. Bradford Reynolds, Assistant Attorney General, to Robert Casey, Governor (Nov. 18, 1987) (attached as Addendum B ) ; see also Letter from James P. Turner, Acting Assistant Attorney General, to Robert Casey, Governor (Feb. 9, 1990) (attached as Addendum C) (finding that constitutional violations continued). On February 10, 1992, the United States filed a complaint in the United States District Court for the Western District of Pennsylvania (R. 1 ) . Trial commenced on July 26, 1993, and concluded on December 13, 1993. On July 28, 19915, the district court entered judgment for the
-''The district court ruled upon all of these issues in its Memorandum Opinion and Order of July 27, 1995. United States v. Pennsylvania. 902 F. Supp. 565 (W.D. Pa. 1995) (attached as Addendum A ) .

- 3defendants (R. 114).
B. Statement of Facts This case involves a constitutional challenge to conditions at the Ebensburg Center. The Center is a state-operated facility for mentally retarded persons. Pennsylvania. 902 F. Supp. at 584. It was built in t-'ie 1950s, and it is located in Ebensburg, Pennsylvania. Ibid. The Center houses approximately 475 residents. Ibid. All of its residents are adults, although most were initially admitted to the institution as children. Ibid.; J.A. 23 (Stark). The Center's residents are persons with developmental disabilities and mental retardation; many have associated physical disabilities and medical needs and are "individuals with significant behavioral deficits who require assistance to meet their daily needs, and who have been unable to procure like services elsewhere." Pennsylvania. 902 F. Supp. at 584. In the past, such individuals have been institutionalized to provide continual attention for their "medical, physical, social, educational and psychological" needs (U.S. Exh. 593 at 5 ) . The President's Committee' on Mental Retardation recognized in 1970 that programs for mentally retarded persons "need to be planned for maximum adjustment, since each individual has potential for some progress, no matter how severely impaired" (ibid.). Indeed, the district court found it "clear that many of [Ebensburg's] residents -- probably most of them -- would be better served by placement in the community." Pennsylvania. 902 F. Supp. at 649.

- 4But only a handful of residents leave the institution for community placements each year; most spend the balance of their lives at the Center (7/26/93 Tr. 77-79 (Stark)).
Ebensburg is far more a custodial than a therapeutic institution. See, e.g.. 8/2/93 Tr. 31-34 (Russo). Under Pennsylvania law, persons are committed for "care and treatment." 50 Pa. Stat. Ann. 4406(b). The Center's Mission Statement declares that the institution's "goal for each person admitted is to assist that person in improving and building on the skills he or she already possesses, so that he or she may achieve maximum functioning and move on successfully to other, more normalized life experiences" (J.A. 1116) . But despite these aspirations, residents spend their time waiting in large, open day rooms "with little in the way of activities or materials for very significant parts of their day" (8/2/93 Tr. 32 (Russo)). The Center is understaffed, and those staff who are present are not appropriately trained. See p. 5, infra. Residents are left unsupervised and injure themselves and others in preventable ways. See pp. 58, infra. And Ebensburg fails to provide appropriate habilitative programming and physical therapy; indeed, it often fails to provide adequate medical care. See pp. 10-18, infra.
1. The Center's Failure to Assure Residents' Safety. a. Preventable Injuries. Ebensburg is a dangerous place to live. Residents suffer a significant number of injuries. As the district court observed, "the total number of reported incidents from February 1991 until February 1992 was

- 51,707. The number of reported incidents increased the following year to 2,433 * * *, a 43% increase." Pennsylvania, 902 F. Supp. at 64 0 (citation omitted). The evidence at trial demonstrated that a substantial proportion of these injuries -- particularly those resulting from residents' behaviors -- are preventable (J.A. 476-477 (Amado)). In many cases, it would be possible for direct care staff to identify incipient instances of aggressive or self-injurious behavior and to intervene before any serious harm occurs (ibid.). As one of Ebensburg's unit managers testified, early intervention is the "key" to stopping potentially injurious behaviors (J.A. 1227). But the direct care staff at Ebensburg are not adequately trained to identify incipient harmful behaviors, nor are they adequately trained to intervene to prevent them from escalating (J.A. 309-311 (Russo); J.A. 487488 (Amado) (finding "an ongoing failure to intervene successfully and, in many cases, to intervene at all in these repeated demonstrations of injury")).-' Indeed, in many cases there are simply not enough direct care staff present to provide the necessary interventions (8/4/93 Tr. 48-54 (Amado)).
The Commonwealth's own officials have acknowledged these deficiencies. A 1993 survey conducted by the Pennsylvania Department of Health found that the Center failed to comply with the federal regulation mandating intervention, for " [s]taff
-''Dr. James Stratton, Ebensburg's chief of psychology, agreed that the Center's direct care staff are not adequately trained in basic behavior management principles during orientation (J.A. 1342; but see J.A. 979-980 (Bellomo) (disagreeing with Dr. Stratton) ) .

- 6intervention was minimal" when "[i]ndividuals were engaged in stereotypic, self-stimulatory and self-injurious behaviors" (J.A. 12 03). One surveyor characterized this deficiency as "systemic" in nature (J.A. 1113-1115 (Bordner)).
At least in part because of the absence of staff intervention, Ebensburcf residents suffer numerous injuries at the hands of other residents. See, e.g.. J.A. 477-479 (Amado) (examples of aggressive behavior "where individuals are acting in ways to suggest they should be closely monitored, but the staff are unable to monitor or intervene and behavior gets out of control"). For example, residents were bitten by other residents at least 240 times in 1991 and 1992 (J.A. 1136-1146). At least 60 of these biting incidents involved carriers of Hepatitis B (ibid.). and several involved particularly serious injuries. See, e.g.. J.A. 1141 (James P. required sutured scrotum following bite on 3/12/92); J.A. 1146 (Debra S. had part of her nose bitten off on 1/28/91); J.A. 1139 (Albert K. required sutured foot following deep bite wound on 7/14/92); J.A. 1163 (Thomas H. required 10 sutures on his ear following bite). Several residents have repeatedly engaged in biting or other aggressive behavior. -' Several others have repeatedly been injured due to ag-
*xSee, e.g.. J.A. 1193; U.S. Exh. 267 (c), 860 (James B. bit other residents 14 times between February 1992 and August 1993); J.A. 1154-1157 (George F. bit or was suspected of biting other residents 20 times); see also J.A. 1158-1160 (Eileen G. suffered at least 8 injuries as a result of other residents' aggression between December 1990 and July 1991; after being transferred to another living unit in August 1991, she engaged in aggressive behavior at least 21 times over the next 12 months).

- 7-
gression.-7 Even when specific residents have suffered repeated
injuries, however, Ebensburg staff have not taken sufficient
action to prevent recurrences.-'
Staff have also failed to intervene on many occasions when
residents have injured themselves. See, e.g.. J.A. 485-486,
1458-1489, 1674-1717. Such self-injurious behavior has led to
serious harm,27 and many residents have injured themselves on
multiple occasions.-7 For example, many residents have engaged
in repeated pica behavior (eating foreign objects). See J.A.
-7See, e.g., J.A. 1170 (Mary Ann R. bitten on 13 occasions between July of 1.992 and April .of 1993); J.A. 1171 (Michael B. bitten on 13 occasions between July of 1991 and November of 1992, including 6 occasions between August and November of 1992); J.A. 1172 (Larry D. bitten on 10 occasions between February and December of 1992; 7 occasions involved multiple bites); see also J.A. 43-54, 1599-1646, U.S. Exh. 135 (all describing injuries suffered by James W., including having one of his eyes knocked out, having his jaw broken, having three ribs broken, and suffering a ruptured spleen); J.A. 40 (DeKowski) (describing Denise V.: "She has many, many bite marks on her arms, and she has marks on her face, scars.").
i7See, e.g., J.A,. 1152-1153 (Greg A. suffered 24 injuries between August 1991 and April 1993, most as a result of aggressive behavior; although staff committed to monitor his behavior to prevent recurrence, injuries repeatedly recurred); J.A. 1546-1598 (Gary K. suffered at least 19 injuries between July of 1991 and April of 1993, including 7 after Center's psychiatric consultant recommended that staff watch him closely to see if he had been abused).
2/See, e.g.. J.A. 38-39 (DeKowski) (Denise V. has indented skull from repeated head-banging behavior); Pennsylvania. 902 F. Supp. at 633 n.55 (one resident nibbled on and mutilated three of his fingers to the point where they had to be amputated); see generally J.A. 1458-1489 (compiling examples of self-injurious behavior where staff failed to intervene); J.A. 1674-1717 (same).
^7See, e.g., J.A. 29-32 (Stark) (James S. had 215 incidents between January 1989 and February 1993); U.S. Exh. 479 (compiling 4 0 of James S.'s recent incident reports).

- 8-
1168-1169 (listing nine individuals who engaged in repeated pica
incidents); J.A. 1829-1830 (Carol D., who has known pica behav-
ior, found on the floor blue in the face on 8/4/93; nurse removed
six inches of shirt from her throat). Inedible objects have
repeatedly been discovered in residents' feces or vomit (J.A.
1168-1169). Unsafe eating behaviors have also led to numerous choking incidents (J.A. 1147-1151; U.S. Exh. 988) A1
b. Nursing Care Delays. In addition to failing to
intervene to prevent injuries, Ebensburg direct care staff have
failed to summon nurses in a timely fashion after discovering
injuries. See J.A. 1177-1178. On several occasions, staff have
delayed contacting nurses for up to a day. See ibid, (nurses
were not informed until next day on three occasions where resi-
dents suffered injuries in fights; no nursing response until day
after Joyce Y. fell and hit her head on the corner of a table).
Staff have sometimes waited hours to summon nurses even when residents have suffered broken bones.—7
c. Abuse of Residents. Direct care staff have also
abused residents. Robin Hebenthal spent a day and a half on one
-7Incidents involving insects also raise questions concerning staff intervention. For example, on consecutive mornings in 1992, two residents were found "covered" with "massive amounts of ants" (U.S. Exh. 87). Although Ebensburg staff are responsible for 24-hour care, no staffer noticed the ants until the residents were awakened in the morning (ibid.). Just days before trial, staff discovered a full-blown infestation of maggot-like insects in the bloody drainage of one resident's ear (U.S. Exh. 1022) . —7See ibid, (staff waited one and one-half hours to contact nurse when James W. suffered broken ribs); ibid, (staff waited over seven hours to contact nurse when James W. suffered broken jaw).

- 9-
of Ebensburg's living units during a two-week training session at
the Center in 1992 (J.A. 423, 426-427 (Hebenthal)). During that
time, she witnessed several incidents of abuse (J.A. 427-439,
1485-1489). One staff member threw a resident into a wall from
eight feet away (J.A. 429-430). The same staffer later responded
to a resident who was having difficulty tying his shoes by
"slappfing him] upside the head," knocking him over, and telling
him "to get his F-ing shoes tied" (J.A. 431). A second staff
member "forcibly, violently grabbed * * * by the shirt" a resi-
dent who tried to sit next to her on a bus and moved him to another seat (J.A. 432) .—/ On another occasion, the staffer
refused to allow a resident to get up off of a couch; he tried
three or four times to get up, and she violently pushed him back down each time (J.A. 434-435) .—/ Hebenthal witnessed other
incidents of staff abuse (J.A. 433, 438, 439), as did Damien
Tackett, who worked at Ebensburg for three to four months in 1992
(J.A. 336-340 (Tackett)). Both Hebenthal and Tackett experienced
intimidation after reporting the abuse they saw (J.A. 341-342,
355, 358 (Tackett); J.A. 449, 459-460 (Hebenthal)).
—7On the same bus ride, the same staff member told a resident that "he was a 'dumb nigger'" (ibid.). Also on the same bus ride, another staff member used "unnecessary force" when responding to a resident who was rocking himself (J.A. 435-436). —fK staff member treated James W., who is blind, in a similar manner. See J.A. 436-438. The staffer would throw James into a couch (J.A. 437). James would stand up and "defensively, but almost playfully," put his fists up (ibid.). The staffer would then push James back to the couch, saying "'[o]h, let him come at me again,' * * * 'I'll break his freaking jaw again'" (ibid.). (James's jaw had previously been broken in a fight with another resident. See nn. 5, 10, supra.)

- 10 2. The Center's Failure to Provide Adequate Adaptive Training, Behavioral Programming, and Physical Therapy. Habilitation -- the education and training of mentally retarded persons - - i s the intended purpose of institutionalization. See generally Philadelphia Police & Fire Ass'n for Handicapped Children, Inc. v. Citv of Philadelphia. 874 F.2d 156, 158 (3d Cir. 1989) ("The mentally retarded require special and continuing care called 'habilitation' to function optimally in society. Habilitation entails 'teaching and training the retarded basic life and social skills,' * * * such as walking, talking, eating, toileting, socializing, using money, traveling, and working."). Although Ebensburg purports to aim at improving residents' conditions (J.A. 1116), the evidence demonstrated that the Center provides merely a custodial environment. As actually implemented at Ebensburg, the Center's training in adaptive skills, its behavioral programming, and its physical therapy are all directed at one purpose: "maintenance, pure and simple" (J.A. 127 (McAllister) (discussing physical therapy)). a. Adaptive Training and Behavioral Programming. There are two essential types of training for mentally retarded persons: adaptive training and behavioral training. The two are conceptually distinct -- adaptive training aims at the general development of living skills, while behavioral training aims at the elimination of specific harmful behaviors. See J.A. 471-473 (Amado). They are closely related, however, for aggressive and self-injurious behaviors often result from boredom or frustra-

- 11 tion. See, e.g., J.A. 468, 472. Mentally retarded individuals who are left in idleness often turn to harmful behaviors. See, e.g., ibid. Such behaviors can take the form of aggression or self-injury, particularly because residents often become frustrated or angry when they have nothing to do or cannot communicate their needs. See, e.g.. ibid. As both parties' experts recognized, training in adaptive skills provides residents with meaningful activity and a means of communication; it therefore reduces the incidence of harmful behaviors. See, e.g.. Pennsylvania, 902 F. Supp. at 632.
Despite these facts, Ebensburg fails even to follow its own policies regarding habilitation. Ebensburg policy requires that all residents receive active treatment (that is, adaptive and behavioral training) that "includes professionally developed and supervised activities, experiences or therapies for a minimum of five hours per day, over and above the time spent training clients to become independent in bathing, toileting, dressing and eating" (J.A. 1123). Such an active treatment policy comports with firmly established professional practice (J.A. 465-466 (Amado)). But witnesses who toured the facilities during the times scheduled for active programming observed that many residents received only a few minutes of active treatment during that time. See, e.g., J.A. 467 (Amado) (only "fifteen to twenty minutes of actual active treatment" during the five-hour period); J.A. 37 (Stark) ("real meaningful interaction" is "minutes, not

- 12 -
hours"); see also J.A. 480-484 (Amado).n/
The state's own surveyors have repeatedly found Ebensburg
deficient in its compliance with the Medicaid regulation requir-
ing continuous active treatment. See J.A. 1179-1182 (compiling
deficiencies in active treatment dating back to 1987). Indeed,
the testimony of the Commonwealth's psychological expert made
clear that the time spent on active treatment at Ebensburg is far
less than the five hours dictated by the state's policy. During
his April 1993 tour, Dr. Reid evaluated the training provided to
residents at day treatment sites during the five-hour period;
those residents were engaged in purposeful, age-appropriate
activities only 48.4% of the time (J.A. 806-807).^
The Center also fails to provide important categories of
training to many residents. Although witnesses for both parties
testified that every Ebensburg resident has some potential for
—7The Center has also failed to comply with its policy regarding nondiscrimination in training. Pursuant to that policy, all residents must be "scheduled for and receive" the five hours of active treatment, "regardless of the client's age, degree of retardation, or accompanying handicaps" (J.A. 1125). Most of the residents in the Center's Keystone House, however, are scheduled for only one hour of treatment off of the living units per day. See J.A. 1232-1233; J.A. 466 (Amado); J.A. 1013-1014 (Bellomo). (Keystone residents are the most severely disabled individuals at Ebensburg. J.A. 1032-1033 (O'Brien).) The Center's director of program services admitted that not all Keystone residents spend even part of their day in functional activities (ibid.).
il/Even the 48.4% figure overstates the extent to which residents participated in active treatment. Dr. Reid testified that he measured only whether residents were engaging in an age-appropriate activity with an apparent purpose, not whether residents were engaged in activities prescribed by their active treatment plans (J.A. 798-802). Active treatment requires more than simply engagement in an age-appropriate activity with an apparent purpose (ibid.).

- 13 growth, development, and learning,—; numerous residents who exhibit serious - - a t times life-threatening -- behaviors have not received behavioral programs to reduce those problems. See, e.g.. J.A. 307-309 (Russo) (listing 16 such residents); J.A. 1174-1176 (listing 11 more such residents); J.A. 1183-1186 (state surveys dating back to 1983 identifying deficiencies in this area). Many residents who are subjected to chemical or mechanical restraints are not provided with programs that might reduce the need for those restraints. See, e.g., J.A. 295-296 (Russo) (noting 14 such cases); J.A. 359-369 (Fahs) (noting examples cited by state surveyors). Moreover, the Center fails to train residents in important basic skills. For example, Ebensburg policy requires that "[e]very client who does not eliminate appropriately and independently and showfs] signs of readiness shall be engaged in a toilet training program" (J.A. 1120). But although a large number of residents are incontinent, only 11 residents were engaged in toilet training programs at the time of trial (J.A. 291-293 (Russo)). In 1989, state surveyors found 83 incontinent residents in two buildings they sampled; none was on a toilet training program (J.A. 1179).
Underscoring the Center's focus on avoiding deterioration rather than improving residents' conditions, Ebensburg often fails to revise adaptive and behavioral programs when they are ineffective. See, e.g.. J.A. 300-307 (Russo); J.A. 474-475
J.A. 1347 (Deposition of defendant Thaler); J.A. 17-18 (Stark).

- 14 (Amado); J.A. 1176. Rather, staff often simply lower their expectations for the resident's performance (ibid.; see also J.A. 1181-1182, 1205-1206 (state surveys in 1990, 1991, 1992, and 1993, all finding that Ebensburg failed to reevaluate programs)).
b. Physical Therapy. The Center's physical therapy services also are geared only at avoiding regression in residents' conditions. Ebensburg's principal physical therapist, Michael Arnall, testified that the Center's "goal is not reversal [of deformities]. The goal is not to go on to skill acquisition. The goal is to, instead, support and avoid life-threatening conditions and provide comfort" (J.A. 851 (Arnall)). Thus, for example, the Center does not employ various positioning techniques that might improve residents' conditions (7/28/93 Tr. 14 8152, 163 (McAllister); 10/13/93 Tr. 8-16 (Arnall)). To justify this limited objective, Mr. Arnall stated that individuals who have reached skeletal maturity (like the residents at Ebensburg) cannot reverse their deformities or acquire new skills (10/13/93 Tr. 8-16 (Arnall)). Nevertheless, he admitted that it is possible in some cases to change the effects of a disability even after the individual has reached skeletal maturity (J.A. 875876). For such individuals appropriate physical therapy can go beyond avoiding deterioration: it can "improve or maintain physiological function * * * [and] do that in a way that facilitates change and growth in that individual, whether it be increased flexibility, increased strength, or a skill acquisition and functional independence" (7/28/93 Tr. 163 (McAllister)).

- 15 3. The Center's Failure to Provide Adequate Treatment for Seizure Disorders. Seizure disorders affect most individuals at Ebensburg. Fully 312 of the Center's 475 residents have been diagnosed with epilepsy. Pennsylvania. 902 F. Supp. at 594. The evidence at trial demonstrated that the Center's treatment of seizure disorders was deficient in two principal respects. a. Status Epilepticus. Status epilepticus is a particularly serious type of seizure, one lasting 3 0 minutes or more. Id. at 591 n.15. Such prolonged seizures present significant risks, both because seizure activity itself can cause brain damage and because status seizures can impair individuals' ability to breathe. See Pennsylvania, 902 F. Supp. at 592; J.A. 175-176 (Alvarez); J.A. 1062 (Coulter). The Epilepsy Foundation of America (EFA) has issued a protocol for treating status epilepticus (J.A. 1209-1215). That protocol, which "represents the consensus of the field" of neurology, "pull[ed] together for the general medical community what neurologists have known for ten or fifteen years" (J.A. 1065, 1069 (Coulter); see also Pennsylvania. 902 F. Supp. at 592). Pursuant to the EFA protocol, anticonvulsant drugs must be administered once a seizure has continued for ten minutes (J.A. 1212 (table); J.A. 1072 (Coulter); J.A. 1097 (Grossman)). Although status epilepticus cannot be diagnosed until thirty minutes of seizure activity have occurred, the ten-minute time frame is necessary to head off the harmful effects of status (J.A. 1070-1072 (Coulter)). If a physician waits until the

- 16 thirty-minute point before treatment, the "processes * * * that are going to lead to significant brain damage" will already be in place (J.A. 1071). Not only must medication be administered within ten minutes, insofar as possible it must "be administered by the [intravenous] route only" (J.A. 1211). In particular, intramuscular therapy (injecting the anticonvulsants into the muscles rather than the veins) is ineffective in treating status epilepticus (J.A. 1073-1075 (Coulter)). The EFA protocol states that "intramuscular therapy has no place treating status epilepticus or seizures in general" (J.A. 1211).
The Center's treatment of status epilepticus does not comport with the EFA protocol. Ebensburg "is not licensed to provide intravenous therapy to its patients." Pennsylvania. 902 F. Supp. at 592. Accordingly, the Center's treatment of status epilepticus "consists of observation and monitoring, the administration of oral or intramuscular anticonvulsants pursuant to a physician's order, and ambulance transportation to a hospital." Ibid. Because the Center does not administer intravenous medication, residents can obtain intravenous injections of anticonvulsants only after an ambulance is summoned and paramedics arrive. But Ebensburg does not call ambulances in sufficient time to begin administering intravenous medication within 10 minutes (J.A. 179-195 (Alvarez)). Ambulances are often not summoned until oral or intramuscular medication has failed to work for some time -- up to several hours in some cases (ibid.).

- 17 b. Regular Administration of Anticonvulsants. More than half of all Ebensburg residents receive some form of anticonvulsant medication on a regular basis. Pennsylvania. 902 F. Supp. at 594. Such medications can be effective in controlling and preventing seizures, but they also cause side effects (J.A. 216 (Alvarez)). For that reason, experts for both parties agreed that anticonvulsants should be prescribed with care, side effects should be monitored by knowledgeable professionals, and individuals "should not be placed on several medications at once unless strictly necessary" (J.A. 216-217; see also J.A. 560 (Kastner)). The Center's administration of anticonvulsant medication does not comport with those standards. Fifty-five Ebensburg residents regularly receive three or more anticonvulsants, and 13 residents regularly receive four anticonvulsants. Pennsylvania. 902 F. Supp. at 594. On a number of occasions, primary care physicians have overruled recommendations made by the Center's consulting neurologist to reduce individual residents' anticonvulsant dosages. Ibid. As a result, several residents have received four anticonvulsants for months or even years (J.A. 219224 (Alvarez)). In addition, the Center often fails to monitor the side effects experienced by residents who receive anticonvulsant medications. In several cases, Ebensburg physicians did not test the level of medication in residents' blood, despite the manifestation of common side effects. Pennsylvania. 902 F. Supp. at 595. Even when blood levels were tested, the Center often failed to adjust, the dosage "in light of facially toxic levels."

- 18 Ibid. "The Center provided no explanation, through documentaryevidence or otherwise, for why these anticonvulsants were continued without adjustment." Ibid.
C. The District Court's Opinion On July 27, 1995, the district court issued an opinion and order rejecting all of the United States' claims.^ Purporting to apply the "professional judgment" standard set forth in Younabera v. Romeo, 457 U.S. 307 (1982), the court held that none of the conditions Ebensburg residents must endure warranted injunctive relief. See Pennsylvania. 902 F. Supp. at 580-584. In concluding that Ebensburg adequately protects residents' physical safety, the district court first found that "[t]he increasing number of reported incidents is of minimal significance, " because of steps the Center had recently taken to improve incident reporting and reduce the use of restraints. Id. at 642. The court also found the number of incident reports not "troubling, " because "a fair number * * * involve relatively minor occurrences." Ibid. The court then went on to find that the Center's feeding practices were safe, id. at 642-647, that injuries did not unduly occur due to unknown causes and when staff were involved in other functions, id. at 647-649, and that the Center responded properly to the inappropriate sexual behaviors of two residents, id. at 64 9. The court did not consider, however, whether staff adequately identified and intervened in
—before issuing its opinion, the district court denied the United States' motion to reopen the record to admit documentary evidence regarding recent deaths at Ebensburg (R. 105, 112).

- 19 -
incipient instances of harmful behaviors, nor did it consider the claim that staff had abused residents. With regard to the nursing care delays, the court found no constitutional violation because "[t]he initial delay in reporting the incident * * * was attributable to action by the [direct care staff], and not the nursing staff. * * *. Therefore, nursing care cannot be found constitutionally remiss on this basis." Id. at 629.
The district court also rejected the claim that the Center failed to provide adequate habilitation. The court held that the Commonwealth need only provide programming that seeks to maintain residents in their current conditions, rather than to enhance their ability to exercise their liberty interests. See id. at 617, 632. It concluded that the Center's programming was adequate to meet that goal. Id. at 616-622, 631-640. The district court made no finding that Ebensburg sought to improve residents' conditions. See, e.g., id. at 620 ("[T]he Center's assessments are adequate foi: maintenance, which is constitutionally acceptable . ") .
Finally, the district court rejected the challenges to the Center's seizure: treatment. Although it acknowledged that Ebensburg's use of intramuscular medication to treat seizures departed from the standards that neurologists have applied for over a decade, the court found no constitutional violation. Id. at 592-593. It relied on the fact that "[t]he primary care physicians at the Center who ordered the intramuscular administration of anticonvulsants are not neurologists, but general

- 20 practitioners." Ibid.—' The district court also found that "the Center's care in monitoring and responding to sedation caused by Dilantin substantially deviates from acceptable professional standards." Id. at 595-596 (footnote omitted). The court refused to issue an injunction, however, because the United States had not attempted to prove that this deficiency resulted from a state "policy or custom," a requirement the district court concluded was a prerequisite for liability. Id. at 596.
STANDARD OF REVIEW This appeal presents only questions of law, which are reviewed de novo. See Sheet Metal Workers. Local 19 v. 2300 Group, Inc.. 949 F.2d 1274, 1278 (3d Cir. 1991). Underlying factual findings are reviewed for clear error. See ibid.
SUMMARY OF ARGUMENT This case involves the duties the Commonwealth of Pennsylvania owes to the mentally retarded individuals entrusted to the Ebensburg Center for care and treatment. Under the standards applied by the district court, those duties are quite narrow: the Commonwealth need not provide habilitation geared at enhancing residents' conditions; it need not train its direct care staff to intervene to prevent residents from harming themselves and other residents; and it need not provide seizure treatment that satisfies the minimum standards of the neurological profes-
—because Ebensburg's delays in summoning ambulances were inextricably intertwined with the use of intramuscular medication, the court declined to consider whether those delays violated constitutional standards. Id. at 593 n.18.

- 21 sion. The district court's holdings reflect an unduly restrictive view of the rights of institutionalized persons, one inconsistent with Younqberq v. Romeo, 457 U.S. 307 (1982).
I. The district court held that the Center need only provide its residents training and other programming directed at maintaining them in their current conditions. In its view, state-operated mental retardation institutions have no obligation to provide habilitation that aims at improving residents' conditions. That holding is erroneous as a matter of law.
Under Youngberq, state institutions have an obligation to provide "minimally adequate or reasonable training" directed at serving the constitutionally-based liberty interests of institutionalized persons. Among those interests are the right to leave confinement once the purpose of commitment has been served, the rights to safety and freedom from restraint, and the right to autonomy. Where training or other programming would enhance the ability of institutional residents to exercise one of these interests, the state has an obligation to exercise professional judgment in providing it. Indeed, Younqberq itself held that the state has a duty to attempt to improve residents' conditions, for it held that the plaintiff had a right to training that would reduce his aggressive behavior.
While the district court found that Ebensburg provides sufficient habilitation to maintain residents in their current conditions, it made no finding that the Center's programming reflects an adequate attempt to enhance residents' ability to

- 22 exercise their liberty interests. The record demonstrates that Ebensburg does not provide sufficient training to improve residents' ability to exercise those interests.
II. In concluding that the Center adequately protected residents from physical injuries, the district court did not even consider whether Ebensburg staff were adequately trained to identify and respond to incidents of aggressive or self-abusive behavior. Nor did it consider whether Ebensburg employed a sufficient number of direct care staff. Rather, the court focused only on the number of injuries at the Center. That was error. The Commonwealth has an obligation to ensure that staff receive professionally adequate training to protect residents from harm. Where residents are injured because of the failure to provide such training to staff, the Center has failed to satisfy its constitutional duty. Ebensburg staff are not properly trained to identify incipient incidents of aggressive or selfinjurious behavior, nor are they properly trained to intervene to prevent those incidents from escalating. In many cases, there simply are not enough staff to allow for adequate intervention. As a result, numerous residents have suffered preventable injuries, many on multiple occasions. Because the district court failed entirely to consider this question, its judgment cannot stand.
The district court also failed to consider whether Ebensburg direct care staff summoned nurses in an adequate manner following reports of injuries. Professional judgment cannot be exercised

- 23 where nurses or other professionals are not on the scene. But the district court found it irrelevant that nursing care had been delayed in many cases; because the delays were the fault of direct care staff and not nurses, the court held that nursing care could not be found inadequate on that basis. Regardless of which state employees were at fault, however, the state has an obligation to ensure that professional judgment is exercised, and the state is liable for prospective relief if it fails to do so.
Finally, the district court entirely ignored the evidence that Ebensburg staff had abused residents. Intentional abuse of institutionalized persons clearly violates the Constitution.
III. The district court also erred in refusing to issue relief against the Center's treatment of seizure disorders. In the area of status epilepticus seizures, the district court acknowledged that Ebensburg's practices did not meet the minimal standards that represent the consensus of the neurological profession. Nevertheless, the court found no constitutional violation; it relied on the fact that the Center's primary care physicians are general practitioners, not neurologists. But whether or not the Center's general practitioners can be held to the obligation to know the proper standards for treating status epilepticus, the Commonwealth has an obligation to ensure that its policies are designed by professionals with appropriate expertise. At Ebensburg, where over half of the residents suffer from seizure disorders, those professionals are neurologists.
The district court also erred in refusing to issue relief

- 24 against the Center's failure to monitor the side effects of anticonvulsant medications. The court found that the Center had failed to exercise professional judgment in this area. But although it found a constitutional violation, it held that relief was not warranted because the violation did not result from any Ebensburg "policy or custom." The district court erred in importing Section 1983's "policy or custom" rule into this CRIPA action seeking prospective relief for the state's failure to assure the exercise of professional judgment. Even if that requirement applies, the constitutional violation found by the district court bespeaks deliberate indifference, which itself constitutes a "policy or custom."
ARGUMENT I
THE DISTRICT COURT ERRED IN HOLDING THAT THE STATE NEED NOT PROVIDE HABILITATION THAT ENHANCES RESIDENTS' ABILITY TO FUNCTION A. Residents Of State-Operated Mental Retardation Facilities
Have A Constitutional Right To Habilitation That Serves Independent Liberty Interests
Under the Due Process Clause, states have an obligation to provide habilitation to institutionalized mentally retarded persons. In Youngberg v. Romeo. 457 U.S. 307 (1982), the Supreme Court endorsed then-Chief Judge Seitz's view that committed persons have "a constitutional right to minimally adequate care and treatment." Id. at 318-319 (quoting Romeo v. Youngberg. 644 F.2d 147, 176 (3d Cir. 1980) (en bane) (Seitz, C.J., concurring)) . While, " [a]s a general matter, a State is under no constitutional duty to provide substantive services for those

- 25 within its border," 457 U.S. at 317, the situation is different for those in state institutions. Because institutionalized persons are "wholly dependent on the State," the state owes them "a duty to provide certain services and care." Ibid.
In particular, institutionalized persons have a right to receive training to protect their independent liberty interests. See id. at 318. Institutionalization involves a "massive curtailment of liberty," Humphrey v. Cadv. 405 U.S. 504, 509 (1972), but it does not extinguish all of the substantive liberty interests protected by the Due Process Clause. See Younqberg, 457 U.S. at 315-316.. Where training is necessary to protect liberty interests that survive institutionalization, the state has a duty to provide it. See id. at 318.
The most basic liberty interest retained after commitment is the interest in leaving the state's custody once the institutionalization has served its purpose. " [D]ue process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." Jackson v. Indiana, 406 U.S. 715, 738 (1972). Even if a state is initially justified in institutionalizing an individual for his or her own protection or the protection of others, the commitment cannot constitutionally continue once institutionalization is no longer necessary for these ends. See O'Connor v. Donaldson, 422 U.S. 563, 575-576 (1975); accord Foucha v. Louisiana. 504 U.S. 71, 77-83 (1992). This interest places a corresponding duty on the state to provide habilitation that seeks to "enable [institu-

- 26 tionalized persons] to leave their commitment." Clark v. Cohen, 794 F.2d 79, 94 (3d Cir.) (Becker, J., concurring), cert, denied, 479 U.S. 962 (1986). "Just as one confined for civil contempt of court must 'have the keys to the jailhouse in his pocket,' so those involuntarily civilly committed must be provided with the means to end their commitment, otherwise civil commitment would be equivalent to placement in 'a penitentiary where one could be held indefinitely for no convicted offense.'" Ibid.
In Younqberq. the Court identified several other liberty interests that survive institutionalization. These interests include: "a right to adequate food, shelter, clothing, and medical care," 457 U.S. at 315; a "right to personal security," ibid.; and "a right to freedom from bodily restraint." Id. at 316. Romeo, the plaintiff in Younqberq. sought training directed at two of these interests: safety and freedom from restraint. Id. at 317-318. —' Agreeing with the view expressed by thenChief Judge Seitz, the Supreme Court held that the state was required to provide "minimally adequate or reasonable training" that would serve these interests by reducing Romeo's aggressive behavior. Id. at 318-319.
—'Because Romeo had stipulated that "no amount of training [would] make possible his release," id. at 317, the Court was not called upon to decide the extent of the state's duty to provide training that would hasten the end of a commitment. In addition, because all of the training Romeo sought would have served the interests in safety and freedom from restraint, the Court was not called upon to decide "whether a mentally retarded person, involuntarily committed to a state institution, has some general constitutional right to training per se, even when no type or amount of training would lead to freedom." Id. at 318.

- 27 Finally, institutionalized persons retain the "right to personal autonomy." Clark, 794 F.2d at 96 (Becker, J., concurring) (collecting cases). This interest places a corresponding duty on the state to provide training in basic self-care skills. "The mentally disabled cannot have meaningful autonomy, and hence meaningful liberty, without basic skills; * * * It is indeed a sad fact that for many mentally disabled people self-care skills are xas much liberty as they ever will know.'" Ibid, (quoting Youngberg, 457 U.S. at 327 (Blackmun, J., concurring)). The right to training recognized in Youngberg is not absolute, however. It is subject to the "professional judgment" standard originally formulated by then-Chief Judge Seitz. Under that standard, "'the Constitution only requires that the courts make certain that professional judgment was in fact exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.'" Id. at 321 (quoting Romeo. 644 F.2d at 178 (Seitz, C.J., concurring) ). The state has an obligation to ensure that "a qualified professional" exercises judgment in designing a plan of training to serve residents' liberty interests, and the state must also assure that those decisions are implemented. Id. at 322. A violation exists "when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Id. at 323.

- 28 B. Younqberg Dictates That The State Must Provide Training That
Seeks To Improve Residents' Conditions
The district court did not dispute that the state has an obligation to provide habilitation. It held, however, that residents have no right to training aimed at improving their conditions. See Pennsylvania. 902 F. Supp. at 618 (quoting Society for Good Will to Retarded Children. Inc. v. Cuomo. 737 F.2d 1239, 1250 (2d Cir. 1984)). Thus, in the areas of physical therapy, adaptive training, and behavioral programming, the court "reject ted] the United States' contention that the Center is under a constitutional duty to provide services that enhance the residents' level of functioning." Id. at 632 (emphasis in original); see also id. at 617 (rejecting contention that state has a duty "to actually improve the condition of the residents by means of its physical therapy services") (emphasis in original).
That holding is inconsistent with Younaberg. The Younabera Court itself recognized that the state has a duty to seek improvements in residents' conditions: the Court held that Romeo's right to safety and freedom from restraints imposed a corresponding duty on the state to provide habilitation that would "reduce his aggressive behavior" and thereby tend to increase his safety and render restraint unnecessary. 457 U.S. at 318.—/ In so
also Thomas S. v. Flaherty. 699 F. Supp. 1178, 1200-1201 (W.D.N.C. 1988) (right to "minimally adequate habilitation in a setting designed to reduce self-abuse and aggression"; "habilitation which will tend to render unnecessary the use of chemical restraint, shackles, solitary confinement, locked wards, or prolonged isolation from one's normal community; and conditions of life which are normal enough to promote rather than detract
(continued...)

- 29 holding, the Court recognized that the "massive curtailment of liberty" inherent in institutionalization, Humphrey, 405 U.S. at 509, cannot be justified if the state seeks only to "warehouse" institutionalized persons. See Donaldson, 422 U.S. at 573576.—' Rather, such an imposition can be justified only if the state, exercising professional judgment, seeks in return to enhance institutional residents' ability to exercise their remaining liberty interests. See Clark. 794 F.2d at 93-94 (Becker, J., concurring). The state has such a duty even if it entails providing residents of institutions with services that would not be available to them outside of the institutional setting. Cf. Rennie v. Klein. 720 F.2d 266, 272 (3d Cir. 1983) (en bane) (Adams, J., concurring) ("The professional judgment of a physician acting with the power of state authority requires more than comparable professional decisions in a voluntary doctor-patient relationship.").
The district court gave two reasons for holding that the state has no obligation to seek to improve the condition of institutionalized persons. Neither is persuasive. First, the court relied on the Supreme Court's statement that the Due Process Clause "generally confer[s] no affirmative right to
—'{.. .continued) from one's chances of living with fewer restrictions on one's movement") (emphasis added), aff'd, 902 F.2d 250 (4th Cir.), cert, denied, 498 U.S. 951 (1990).
also Rennie v. Klein. 720 F.2d 266, 271 (3d Cir. 1983) (en bane) (Adams, J., concurring); id. at 274 (Seitz, C.J., concurring) .

- 30 governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." DeShaney v. Winnebago County Dep't of Social Servs.. 489 U.S. 189, 196 (1989) (quoted in Pennsylvania. 902 F. Supp. at 617). But DeShaney's general rule has no application to the institutional setting, where residents are "wholly dependent on the State." Youngberg, 457 U.S. at 317; see DeShanev, 489 U.S. at 199-200 (citing Youngberg) . This Court has noted that DeShaney does not alter the affirmative duties the state owes to those within its physical custody. See Philadelphia Police & Fire Ass'n. 874 F.2d at 167168.
Second, the court adopted the Second Circuit's dictum that "treatment designed to improve a mentally retarded individual's condition" constitutes "a benefit of optimal treatment that [the state] is under no constitutional obligation to grant." Society for Good Will. 737 F.2d at 1250 (quoted in Pennsylvania, 902 F. Supp. at 618). The district court was correct that Youngberg does not establish a right to "optimal treatment." See Hanson v. Clark County, 867 F.2d 1115, 1120 (8th Cir. 1989); Lelsz v. Kavanagh. 807 F.2d 1243, 1251 (5th Cir.), cert, dismissed, 483 U.S. 1057 (1987); see also Romeo. 644 F.2d at 180 (Seitz, C.J., concurring). But the mere fact that training seeks to improve a resident's condition does not make it "optimal" training. There may well be a range of professionally acceptable training programs that aim at the objective of improving residents' ability

- 31 to exercise their liberty interests. The state need not choose the "optimal" program from within this range. It need only exercise professional judgment in implementing a habilitation program that seeks to achieve the goal of improvement.
Indeed, even the Second Circuit, on whose dicta the district court purported to rely, did not entirely foreswear the state's duty to seek improvements in residents' conditions. Rather, it explicitly reaffirmed Youngberg's holding that institutionalized persons have a right to "'such training as an appropriate professional would consider reasonable to ensure [their] safety and to facilitate [their] ability to function free from bodily restraints.'" Society for Good Will. 737 F.2d at 1249 (quoting Youngberg, 457 U.S. at 324) . In the language quoted by the district court, the Second Circuit was considering only the question whether states have a duty to provide training beyond that necessary to serve those two liberty interests. In particular, the court was considering whether the state has an obligation to provide training in basic self-care skills, even where that training would not increase safety or freedom from restraint. See ibid. In that narrow context, the Second Circuit found no "right to such training as will improve a resident's basic self-care skills beyond those with which he or she entered" the institution. Id. at 1 2 5 0 . ^
—;That conclusion was dicta, because the district court had found that the state had failed to satisfy even the obligation to avoid deterioration of residents' conditions - - a n obligation the Second Circuit clearly recognized. See id. at 1251.

- 32 -
The district court's holding, however, was not limited to
self-care skills. Rather, the district court held that the state
has no duty to seek to improve residents' conditions -- even
where doing so would serve the interests in safety or freedom
from restraint. See p. 28, supra. That holding cannot be
squared with Younqberq. Because, in the circumstances of this
case, training in self-care skills is necessary to serve the core
liberty interests in safety and freedom from restraint, see pp.
34-35, infra, this Court need not decide whether the liberty
interest in autonomy independently obliges the state to seek to
improve residents' ability to care for themselves. Even if self-
care skills did not affect safety and freedom from restraint,
however, the analytical framework set forth in Younqberq would
still dictate that the state must seek to improve residents'
ability to exercise autonomy by teaching those skills. See
Clark, 794 F.2d at 96, 98 (Becker, J., concurring).^7
—''Both Justice Blackmun, concurring in Younqberq, and Judge Becker, concurring in Clark, argued that the Due Process Clause at least imposes a duty on the state to ensure "nondeterioration" of residents' basic self-care skills. See Younqberq, 457 U.S. at 327 (Blackmun, J., concurring); Clark. 794 F.2d at 96 (Becker, J., concurring). However, because of the postures of those cases, neither concurring opinion reached a conclusion regarding whether nondeterioration represented the outer extent of a state's duty. See n. 18, supra (noting limited nature of issues presented in Younqberq). In Clark. Judge Becker endorsed a modified non-deterioration rule -- one that would oblige the state to seek to improve residents' conditions at least as much as they would have improved outside of the institution. See Clark. 794 F.2d at 96 (Becker, J., concurring). Moreover, he noted that due process principles might well justify "a right to even greater habilitation than the modified non-deterioration principle would allow." Id. at 98. As we explain in the text, the logic of Younqberq does support a right to greater habilitation than the modified nondeterioration principle would allow.

- 33 C. The Ebensburg Center Fails To Provide Training Directed At
Improving Residents' Ability To Exercise Their Liberty Interests As we have explained, the district court erred as a matter of law in holding that states have no duty to provide training directed at improving the condition of institutionalized persons. Youngberg dictates that a state has an obligation to exercise professional judgment in designing and implementing training programs that seek to enhance the ability of residents to exercise their liberty interests. Applying the correct legal standard, the record fully supports the conclusion that the Commonwealth has failed to provide adequate training to Ebensburg residents. Notably, the district court made no finding that the Center exercised professional judgment in seeking to improve residents' conditions. Rather, the court evaluated the Center's programming against its rule of "nondeterioration." See Pennsylvania. 902 F. Supp. at 617-618, 620, 632.
But the record makes clear that, whatever the adequacy of its efforts to prevent residents' conditions from deteriorating, the Ebensburg Center does not exercise professional judgment to enhance residents' ability to exercise their liberty interests. For example, the district court utterly failed to consider evidence demonstrating that many Ebensburg residents who exhibit self-injurious or aggressive behaviors have not been provided behavioral programs to reduce the incidence of those behaviors. See p. 13, supra. The state's own surveyors have repeatedly noted these and other deficiencies in the Center's behavioral

- 34 programming. See pp. 12-14, supra. Even when the Center has provided programs to reduce the harmful behaviors of particular residents, it has not revised these programs when they have failed to spur improvement. See pp. 13-14, supra. As a result of the Center's ineffectiveness in reducing the incidence of these behaviors, many residents have suffered injuries, and many others have been restrained. See pp. 6-7, 13, supra. The failure to provide training that would reduce the risk of injuries and the need for restraints indicates the absence of professional judgment. Youngberq. 457 U.S. at 324.
The district court also neglected to consider evidence demonstrating that the Center's adaptive training is inadequate. Not only does adaptive training serve the liberty interest in autonomy, see p. 27, supra, it also serves the interests in safety and freedom from restraint. As both parties' experts testified, the incidence of aggressive and self-injurious behaviors will decrease as an institution spends more time teaching basic skills, because harmful behaviors often result from idleness. See pp. 10-11, supra. Even if the skills taught -- such as tying one's shoes or dressing oneself properly -- are entirely unrelated to a resident's maladaptive behaviors, the very act of teaching these skills will provide the resident with meaningful activity. See ibid. The ability to care for one's self also "free[s] residents from the restraint of others who now 'help' [them] perform basic functions." Association for Retarded Citizens v. Olson. 561 F. Supp. 473, 487 (D. N.D. 1982), aff'd,

- 35 713 F.2d 1384 (8th Cir. 1983). But many Ebensburg residents do not receive training to acquire important basic skills, often in contravention of the Center's own policies. See p. 13, supra. And the Center fails to comply with its policies requiring that every resident receive five hours of active treatment per day. See pp. 11-12, supra. The state's own surveyors have found numerous deficiencies in the Center's active treatment through the years. See J.A. 1179-1182. Where, as here, an institution's policies reflect the exercise of professional judgment, the failure to follow those policies is strong evidence that professional judgments are not being implemented. See Thomas S. v. Flaherty, 902 F.2d 250, 252 (4th Cir.), cert, denied, 498 U.S. 951 (1990).
Finally, the Center's physical therapy program, as implemented, merely seeks to avoid deterioration and not to improve residents' skills. See p. 14, supra. The Center justifies this practice by noting that all Ebensburg residents are adults who have reached skeletal maturity, but the Center's principal physical therapist admits that some individuals who have reached skeletal maturity can improve their conditions through physical therapy. See ibid.. Where certain physical therapy techniques could enhance residents' ability to move and improve their medical condition, the failure to provide those techniques impinges on the liberty interests in safety, medical care, and freedom from restraint.
In light of this evidence, the district court's error in

- 36 defining the right to habilitation necessarily affected its decision. The judgment must accordingly be reversed and the case remanded for further proceedings.
II THE DISTRICT COURT ERRED IN CONCLUDING THAT THE STATE ADEQUATELY PROTECTED RESIDENTS' INTEREST IN PHYSICAL SAFETY A. The District Court Failed To Consider Whether The Center Adequately Assures That Direct Care Staff Intervene To Prevent Injuries From Harmful Behaviors States have an affirmative obligation to protect the physical safety of institutionalized persons. Younaberq. 457 U.S. at 315. The extent of the state's duty is measured by Younaberq's "professional judgment" standard. Shaw v. Strackhouse, 92 0 F.2d 1135, 1145-1146 (3d Cir. 1990). In the district court, the United States contended that Ebensburg fails to provide adequate protection for residents' safety. We contended, inter alia, that many injuries result from the failure of direct care staff to intervene appropriately when residents are injuring themselves or other residents. See Pennsylvania, 902 F. Supp. at 640. The district court did not even consider whether the Center exercises professional judgment to ensure that direct care staff intervene to prevent residents from injuring themselves and other residents. In particular, the court did not consider whether direct care staff are properly trained to intervene, nor did it consider whether there are sufficient numbers of staff to permit adequate interventions. Rather, the court focused exclusively on the number of injuries at the Center. The district court believed that "the increasing number of reported incidents [at

- 37 Ebensburg] is of minimal significance" because the Center had recently improved its incident reporting. Id. at 642. The court also found "the actual number of incident reports" not to be "troubling" because "a fair number of the incident reports involve relatively minor occurrences," "one incident often generates more than one report," and the residents of the Center are more injury-prone than the general population. Ibid. Finally, the district court stated that "the number of injuries cannot be the sole criterion for determining whether the Center has violated its constitutional duty." Ibid.
The district court's stated principle was of course correct: the number of injuries is not determinative of whether a constitutional violation exists. The proper question is whether the injuries that occur result from the failure to exercise professional judgment. Shaw. 920 F.2d at 1145-1146. But the district court ignored this very principle, for it looked only to the number of injuries. The court entirely neglected to consider evidence demonstrating that there are not enough direct care staff at the Center and that Ebensburg staff are not adequately trained to intervene to prevent residents from injuring themselves and others. See pp. 5-6, supra.
By failing even to consider whether the state was exercising professional judgment in assuring that direct care staff intervene, the district court never determined whether the state was carrying out its constitutional duty. Accordingly, its decision cannot stand. See H. Prang Trucking Co. v. Local Union No. 469,

- 38 613 F.2d 1235, 1238-1239 (3d Cir. 1980) (where district court fails to make articulated findings on important legal and factual issues, decision must be vacated); accord Professional Plan Examiners v. LeFante. 750 F.2d 282, 289 (3d Cir. 1984). This Court should either remand to the district court for consideration of the failure-to-intervene issue, see Bradley v. Pittsburgh Bd. of Educ.. 910 F.2d 1172, 1178-1179 (3d Cir. 1990), or should itself decide the issue. See Educational Testing Servs. v. Katzman. 793 F.2d 533, 537 (3d Cir. 1986).
Applying the correct legal standard, the record fully supports the conclusion that the Center has failed to satisfy constitutional standards in protecting residents from injuring themselves and other residents. Professional judgment is not exercised where an institution fails to take precautions or protective measures in the face of a history of injuries and an apparent risk of future harm. See Shaw, 920 F.2d at 1148-1149. "At a minimum, the defendants have an affirmative obligation to discover the needs of mentally retarded patients for protection and to respond to those needs in an adequate manner." Romeo, 644 F.2d at 177 (Seitz, C.J., concurring). This affirmative state obligation -- which necessarily includes providing a sufficient number of staff and training them adequately -- is broader than the obligation states have in the prison context to avoid "deliberate indifference" to the safety needs of prisoners. See ibid.; see also Youngberg. 457 U.S. at 321-322; Shaw, 920 F.2d at 11441145. But the failure to provide appropriate staff training may

- 39 well rise even to the level of deliberate indifference. See Faaan v. City of Vineland, 22 F.2d 1283, 1291 (3d Cir. 1994). Where common experience or the history of injuries occurring in a particular setting makes it obvious to an institution's policymakers that injuries result from the lack of staff training, the failure to provide additional training constitutes deliberate indifference. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1154 (3d Cir.) (quoting Citv of Canton v. Harris. 489 U.S. 378, 390 (1989)), cert, denied, 116 S. Ct. 165 (1995).
Ample evidence in the record demonstrates that the Center fails to exercise professional judgment -- indeed, that it is deliberately indifferent - - i n assuring that direct care staff intervene to prevent residents from injuring themselves and other residents. The United States' expert witnesses found numerous cases where Ebensburg staff failed to intervene appropriately when residents exhibited harmful behaviors. See p. 5, supra. The state's own surveyors found in 1993 that the lack of intervention constituted a "systemic" deficiency at the Center. See pp. 5-6, supra. The record also contains evidence of numerous incidents where residents injured themselves or other residents in circumstances indicating that intervention would have avoided harm, see pp. 6-8, supra, and numerous residents who have repeatedly been harmed due to aggression or self-injurious behavior. See ibid.. This evidence, which the district court did not discuss, not only demonstrates the harm that has resulted from the inability of Ebensburg staff to intervene; it also demon-

- 40 strates that the need for additional training and/or staffing in this area should have been obvious to policymakers at the Center. It therefore establishes both a failure to exercise professional judgment, see Shaw. 920 F.2d at 1148-1149, and deliberate indifference, see City of Canton. 489 U.S. at 390.
Some instcinces in which staff failed to intervene may themselves have: amounted to deliberate indifference or the failure to exercise professional judgment -- particularly instances involving individuals who had repeatedly exhibited aggressive or self-injurious behaviors. See Shaw, 920 F.2d at 114 9 (where a resident has been subjected to attacks, and circumstances indicate that future attacks are likely, the failure to take action demonstrates that professional judgment was not exercised). But each instance of a lack of intervention need not violate the professional judgment standard in order to establish an institution-wide failure to satisfy constitutional requirements. Rather, "the failure to prevent a 'pattern of attacks, injuries, or violent behavior' is actionable," id. at 1143 (quoting Romeo, 644 F.2d at 163), even if any particular injury results from nothing more than negligence.
For example, although medical malpractice does not per se constitute a substantial departure from accepted professional judgment, a hospital in which malpractice occurred on a daily basis would surely be considered to violate the professional judgment standard: while any one instance of malpractice would be insufficient to establish liability, the sheer frequency of

- 41 negligent acts would demonstrate that the hospital substantially departed from accepted professional practice on an institutionwide basis. Where, as here, an institution neglects its responsibilities on a systemic basis, the state is liable regardless of whether its staff members violated the Constitution in any particular instance. See Faaan. 22 F.3d at 1292-1294. B. The District Court Erroneously Refused To Hold The State
Responsible For The Center's Nursing Care Delays Because Those Delays Were The Fault Of Direct Care Staff And Not Nursing Staff
The district court also erred when it concluded that Ebensburg nurses responded to injuries in a sufficiently timely manner to protect residents' right to safety. The district court noted several incidents in which nurses were not summoned for periods ranging from several hours to a day after residents' injuries were first discovered by direct care staff. Pennsylvania, 902 F. Supp. at 629. However, because the delays in most of these instances were attributable to the direct care staff (who failed to call the nurses) rather than the nurses themselves, the court concluded that "nursing care cannot be found constitutionally remiss on this basis." Ibid.
The district court misapplied Younaberg. Youngberg places a duty on the state to assure that professional judgment is exercised in serving the medical needs of institutional residents. If nurses are not summoned in a timely manner following residents' injuries, they cannot exercise their professional judgment to determine the appropriate response. See Shaw, 920 F.2d at 114 7 (nurses are "professionals" under Youngberg). While the

- 42 -
nurses may not be personally liable for delays that occurred due to no fault of their own -- and the direct care staff may not be personally liable unless their failure to summon the nurses constituted deliberate indifference, see ibid. -- the state is liable for prospective relief regardless of which of its agents is responsible for the failure to exercise professional judgment. As this Court explained in Shaw, the state has a responsibility to ensure that "tsjomeone" sees to the safety of institutional residents. Id. at 1150. By failing to recognize this principle, the district court committed an error of law. C. The District Court Entirely Ignored The Claim That Direct
Care Staff Have Abused Ebensburg Residents Ebensburg residents have an unquestioned liberty interest in
being free from attacks by staff members. See Romeo, 644 F.2d at 177 (Seitz, C.J., concurring). The record contains substantial evidence that Ebensburg staff have abused residents on a variety of occasions, and that individuals who have reported abuse have experienced intimidation. See pp. 8-10, supra. A series of incidents of abuse coupled with such a "conspiracy of silence" may well be sufficient to justify injunctive relief against the state.—7 But the district court did not consider the issue of staff abuse; none of its findings even arguably addresses the question. This Court should, at a minimum, remand for consider
^7Cf. Spell v. McDaniel, 824 F.2d 1380, 1392 (4th Cir. 1987) (municipal liability under 42 U.S.C. 1983), cert, denied, 484 U.S. 1027 (1988).

- 43 ation of the issue. See Professional Plan Examiners, 750 F.2d at 289; H. Prang Trucking Co.. 613 F.2d at 1238-1239.
Ill THE DISTRICT COURT ERRONEOUSLY REFUSED TO ISSUE RELIEF AGAINST THE STATE'S INADEQUATE TREATMENT OF SEIZURE DISORDERS A. The District Court Improperly Held That A State's Duty To Provide Medical Care Is Limited By The Qualifications Of The Staff It Hires Under Youngberg, residents of state institutions are entitled to adequate medical care. See Youngberg, 457 U.S. at 321324. Medical treatment violates the Constitution where it represents a "substantial departure from accepted professional judgment, practice, or standards." Id. at 323. In determining whether the Center's response to status epilepticus seizures was constitutionally adequate, the district court ignored these principles. Although the consensus of the neurological profession requires that anticonvulsant medication be administered intravenously after ten minutes of seizure activity, the Center does not follow that practice. See pp. 15-17, supra. Rather, the Center simply observes the seizure activity, then administers intramuscular medication, then, after some further period of time (often significantly beyond the ten-minute mark), summons an ambulance to transport the resident to the hospital. As the district court noted, the Center's practices are inconsistent with a protocol developed by the Epilepsy Foundation of America (EFA), which "pull[ed] together for the general medical community what neurologists have known for ten or fifteen years." Pennsylvania, 902 F. Supp. at 592 (internal quotation marks omitted).

- 44 That protocol states that "intramuscular therapy has no place treating status epilepticus or seizures in general." Ibid. (internal quotation marks omitted).
In finding no constitutional violation, the district court reasoned that "[t]he primary care physicians at the Center who ordered the intramuscular administration of anticonvulsants are not neurologists, but general practitioners." Pennsylvania, 902 F. Supp. at 592. The court found that general practitioners were not consistently aware of the accepted practice among neurologists before the publication of the EFA protocol in 1993. Id. at 592-593. Accordingly, the court concluded that the use of intramuscular medication by general practitioners at Ebensburg did not violate the Constitution. Ibid.—7 Moreover, because it concluded that the Center's practice of administering intramuscular medication was inextricably intertwined with its delays in calling ambulances for residents suffering seizures, the district court saw no need to consider whether those delays violated the Constitution. Id. at 593 n.18.
The district court misconstrued Younqberg. The state's obligation to provide professionally appropriate medical care to institutionalized persons necessarily includes a duty to provide professional staff who are qualified to make the decisions needed
—''By contrast, the district court concluded that the Center's general practitioners were justified in overruling the recommendations of Ebensburg's consulting neurologist regarding the administration of anticonvulsants. The court concluded that "the primary care physicians, * * * although they were not neurologists, were very well versed in the treatment of seizures because 50% of the Center's population is epileptic." Id. at 594.

- 45 -
by the resident: population. Medical judgments are entitled to deference only when made by persons "competent, whether by education, training or experience, to make the particular decision at issue." Younqberq. 457 U.S. at 323 n.30. The district court should therefore have measured the Center's seizure management procedures against the accepted practices among neurologists -- "the medical professionals most qualified to treat status epilepticus." Pennsylvania. 902 F. Supp. at 592. It should not have measured those procedures against the "archaic therapies" that were "still practiced in some areas" by general practitioners . Ibid.
In essence, the district court applied a rule that a state's duty to provide adequate medical care is limited by the qualifications of the medical personnel it chooses to hire. If a state hires relatively unqualified personnel, and they do the best they can, the state cannot be liable for injunctive relief. That rule is inconsistent with Younqberq. The state has an obligation to assure that residents are treated by "professional[s] competent in the relevant discipline." Scott v. Plante, 691 F.2d 634, 637 (3d Cir. 1982).—' It may be proper to relieve the Center's general practitioners of individual damages liability for providing intramuscular treatments. But even if the physicians hired by the state are not liable, the state retains an obligation to
^7Cf. K.H. v. Morgan. 914 F.2d 846, 851 (7th Cir. 1990) ("It should have been obvious from the day Younqberq was decided that a state could not avoid the responsibilities which that decision had placed on it merely by delegating custodial responsibility to irresponsible private persons * * * . " ) .

- 46 provide institutional residents with a plan of medical care designed by the appropriate professionals. See Fagan. 22 F.3d at 1292 (noting circumstances where government can be liable even if its agents are not). Here, where approximately half of the Center's population suffers from epilepsy, the state must provide residents with medical care that comports with the minimum standards of the neurological profession.—'' B. The District Court Erroneously Refused To Issue Injunctive
Relief Against The Center's "Widespread" Failure To Monitor The Side Effects Of Anticonvulsant Medication
The district court found that the Center's improper management of the side effects of anticonvulsant medication violated the Constitution. The court noted that the Center had "failed to establish why blood levels were not obtained when there is evidence of lethargy and sedation, or why the dosage of an anticonvulsant was not adjusted in light of facially toxic levels." Pennsylvania. 902 F. Supp. at 595. The court found that "there is no indication that the Center's physicians made any conscious decision whatsoever regarding this aspect of treatment. As a result, professional judgment was not exer-
—7The district court noted that "[i]ntramuscularly administered Valium for the treatment of status epilepticus in the future may in fact constitute a departure from professional judgment inasmuch as it is now clear to the Center that this means of treatment has lost acceptance within the medical community." Pennsylvania. 902 F. Supp. at 593 n.17. The court also noted that the Center is not licensed to provide intravenous therapy. Id. at 592. Accordingly, even under the district court's theory injunctive relief may well be warranted.

cised." Ibid.^7

- 47 -

Nonetheless, the court concluded that injunctive relief was

not warranted "because the United States did not even attempt to

establish that this lapse in the Center's neurological care was

the result of the Commonwealth's 'policy or custom' as implement-

ed at the Center." Id. at 596. The district court relied on the

rule that government entities are not liable under 42 U.S.C. 1983

absent a showing that a "policy or custom" caused the constitu-

tional violation. See id. at 579. Because the court concluded

that the United States bears the same burden in a CRIPA action

that a private party would bear in a Section 1983 action, ibid.,

it held that "[t]he United States' constitutional challenge to

neurological care in this 'official-capacity' action, therefore,

fails as a matter of law." Id. at 596.

The district court correctly concluded that the United

States must meet, the same burden of proving a substantive consti-

tutional violation when suing under CRIPA as must private plain-

tiffs who sue under Section 1983. Pennsylvania. 902 F. Supp. at

580. But its application of a "policy or custom" requirement was

error. The Supreme Court crafted that requirement to effectuate

Congress's intent in passing Section 1983. See Monell v. Depart-

ment of Social Servs., 436 U.S. 658, 690-695 (1978). In particu-

—;The court limited its finding to the side effect of lethargy caused by the anticonvulsant medication Dilantin because "the record does not present any discussion of a failure to detect or respond to other side effects on a widespread basis," and "[t]he record is inadequate to make a determination regarding the acceptability of the Center's detection and response to side effects produced by other anticonvulsants." Id. at 595 n.22.

- 48 lar, the Court held that Congress intended for municipalities to be vicariously liable under Section 1983 for the torts of their agents, but that Congress intended to impose a greater burden on plaintiffs than the respondeat superior rule applied at common law. Ibid. The district court gave no reason why Section 1983's unique vicarious liability rules should apply in a CRIPA action.
Moreover, this case does not involve vicarious liability -the subject of the "policy or custom" rule. That rule governs the circumstances under which a government entity will be liable when the entity's agents -- and not necessarily the government entity itself -- violate the Constitution. See, e.g.. Collins v. City of Harker Heights. 112 S. Ct. 1061, 1067 (1992) (noting that the Court had "rejected the * * * argument that only unconstitutional policies can create municipal liability under [Section 1983]"). In particular, a government entity's policymakers must be at least deliberately indifferent to the consequences of their actions in order for the entity to be vicariously liable for the constitutional torts of its agents under Section 1983. See City of Canton, 489 U.S. at 388.
The substantive claim in this case involves the state's independent liability. Under Youngberg. the state itself -through its policymakers -- has an affirmative obligation to ensure that professional judgment is exercised in the treatment of institutionalized persons. This affirmative duty is broader than the obligation government policymakers have in all contexts to avoid deliberate indifference to the constitutional violations

- 49 of subordinate officials. See Shaw, 920 F.2d at 1145. The broader duties imposed on the state by the professional judgment standard would be meaningless if the state's liability turned on the existence of a "policy or custom" -- and hence on state policymakers' deliberate indifference. This is particularly true in a case seeking only prospective relief.^
Instead of requiring proof of a "custom or policy" to justify equitable relief, the district court should have applied the standard set forth in CRIPA itself. The United States is entitled to "such equitable relief as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment" of residents' rights. 42 U.S.C. 1997a(a). That standard is satisfied here. The district court found that the Center did not exercise professional judgment in monitoring the side effects of Dilantin, and it suggested that the problem was at least to some extent "widespread." See Pennsylvania, 902 F. Supp. at 595 n.22. While a few, isolated instances of dereliction might not justify institution-wide relief, the persistent pattern of neglect found by the district court renders an injunction "appropriate" in traditional terms -- the Center's practices create an actual risk of irreparable injury for which there would be no adequate remedy at law.
—''indeed, the "policy or custom" rule does not even apply in Section 1983 cases that, like this case, seek only prospective relief. See Chaloux v. Killeen. 886 F.2d 247, 250-251 (9th Cir. 1989); cf. Will v. Michigan Dep't of State Police. 491 U.S. 58, 71 n.10 (1989); but see Nix v. Norman. 879 F.2d 429, 433 (8th Cir. 1989) (applying "policy or custom" rule in Section 1983 case seeking prospective relief).

- 50 -
Indeed, that pattern of neglect would warrant injunctive
relief even if the "policy or custom" requirement applied. The
record demonstrates that the defendants recognized the danger of
failing to monitor anticonvulsant medication levels, and the
instances in which residents suffered harm from that failure
should have put. the institution's policymakers on notice of the
need to assure that monitoring was occurring. See pp. 17-18,
supra. In light of these facts, the lack of monitoring consti-
tutes deliberate indifference; as such, it establishes a "policy
or custom." See City of Canton. 489 U.S. at 388.
CONCLUSION
The judgment of the district court should be reversed and
the case remanded for further proceedings.
Respectfully Submitted,
DEVAL L. PATRICK Assistant Attorney General
/I
STEVEN H. ROSENBAUM // SAMUEL R. BAGENSTOS
Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-2174

i
ADDENDUM A

U.S. v. COM. OF PENNSYLVANIA
C I U U M : F.Supp. MS (W.D.P.. IMS)

565

park "to preserve and commemorate for the

people of the United States the area associat- UNITED STATES of America, Plaintiff,

ed with the heroic suffering, hardship, and

determination and resolve of General George

v.

Washington's Continental Army during the winter of 1777-1778 at Valley Forge". 16 U.S.CA § 410aa (1992).

COMMONWEALTH OF PENNSYLVANIA, Robert Casey, Governor of the Commonwealth of Pennsylvania, Karen

As Magistrate Judge Smith mentioned to F. Snyder, Acting Secretary Department

appellants at the hearing, the National Park of Public Welfare, Steven M. Eidelman,

Service expends significant public funds in its Deputy Secretary of Mental Retardation

efforts to attract visitors, including countless Office of Mental Retardation, Alan M.

children, to national parks. K.T. at 7. Bellomo, Director Eberuburg Center,

Those visitors explore wherever they please Defendants.

in this Park, and should be able to do so

without concern of happening upon an open

Civ. A. No. 92-33J.

sex act. As demonstrated by their behavior, these appellants clearly knew that the public would accept Congress's invitation to wander

United States District Court, W.D. Pennsylvania.

about the Park, but proceeded nevertheless.

July 27, 1995.

This case is therefore more compelling

than United Stales v. Lanen, 716 F.Supp.

208 (D.Md.1989), where the appellant was convicted of disorderly conduct after he was seen, masturbating in the stall of a restroom in a park, where arguably one might expect considerably more privacy. We thus respectfully part company with the view of our colleague, Judge Ditter, that when people engage in sexual activities outdoors in a public park, "the public [i]s not involved at all." Malone, 822 F.Supp. at 1188. While we agree with our colleague that some places in the Park are less visible or open than others, this distinction cannot change the legal and practical reality that every square inch of the Park's grounds is public, and thus Park grounds cannot supply a venue for sex akin to the privacy of a room.

United States sued Commonwealth of Pennsylvania and state officials claiming institution violated retarded persons' constitutional rights and brought suit pursuant to Civil Rights of Institutionalized Persons Act (CRIPA) and moved for injunctive relief. The District Court, D. Brooks Smith, J., held that: (1) CRIPA is standing statute; (2) institution had duty to provide adequate food, shelter, clothing, medical care, safety and freedom from bodily restraint and related training, and minimally adequate training; (3) professional judgment standard was to be used; (4) court could not specify which of several professional choices should have been made; (5) isolated examples of problems did not establish constitutional violations; (6)

III. Conclusion

residents had right to avoid being viewed unclothed; (7) United States failed to show

Because we find that appellants engaged in an obscene act that recklessly created a risk of public alarm, we shall affirm their convictions for disorderly conduct We shall also reverse the appellants' convictions for open lewdness in light of the Government's concession as to this charge.

that lapses in basic care rose to level of constitutional violation or that state's official policy or custom played any role in alleged deprivation of care; (8) institution failed to exercise professional judgment concerning monitoring blood levels of medication and deviated from acceptable professional standards; but (9) injunctive relief was not war-

ranted; and (10) professional judgment was

exercised in provision of care to residents.

Judgment for defendants.

566

902 FEDERAL SUPPLEMENT

1. Civil Rights «=»202
Plain language of Civil Rights of Institutionalized Persons Act (CRIPA) confers standing on Attorney General and provides authority for United States to initiate lawsuit on behalf of mentally retarded persons and others who reside at or are confined in institution. Civil Rights of Institutionalized Persons Act, § 3(a), 42 U.S.C.A. § I997a(a).
2. Civil Rights «=>202
Elements in Civil Rights of Institutionalized Persons Act (CRIPA) apply to Attorney General's "reasonable cause" determination which must be made before Attorney General may properly institute CRIPA action. Civil Rights of Institutionalized Persons Act, § 3(a), 42 U.S.CA § 1997a(a).
3. Statutes «=»217.4
When text of statute is clear, it is inappropriate to resort to legislative history for purposes of interpreting statute.

7. States <S=»191.10 Suing state officials in their official ca-
pacities generally represents another way of pleading action against entity of which officer is agent, is suit against official's office, and as such is no different from suit against State itself.
8. Federal Courts «=»265, 269 Eleventh Amendment typically bars ac-
tions for damages in federal court against States and state officials sued in their official capacities. U.S.CA. ConstAmend. 11.
9. Federal Courts *>272 Eleventh Amendment poses no bar to
actions for prospective injunctive relief against state officials sued in their official capacities, and in such circumstances, state officials are considered persons for purposes of civil rights claims, but court still considers action as addressing State's official policy or custom. U.S.CA ConstAmend. 11; 42 U.S.CA § 1983.

4. Civil Rights *»191
Civil Rights of Institutionalized Persons Act (CRIPA) is legislation pertaining t'j specific class of federal civil rights actions. Civil Rights of Institutionalized Persons Act, § 2 et seq., 42 U.S.CA § 1997 et seq.
5. Civil Rights
Federal civil rights statute did not create any new rights, but was enacted to give remedy to parties deprived of constitutional rights, privileges and immunities by official's abuse of position. 42 U.S.CA § 1983.
6. Civil Rights ®=»192, 196.1
As Civil Rights of Institutionalized Persons Act (CRIPA) was enacted to provide standing for Attorney General to initiate civil rights actions on behalf of institutionalized persons; essential elements that must be proven are, whether conduct complained of was committed by person acting under color of state law and whether that conduct deprived person of rights, privileges, or immunities secured by Constitution or laws of United States. Civil Rights of Institutionalized Persons Act, § 2 et seq., 42 U.S.CA. § 1997 et seq.

10. Federal Courts «=»265 Eleventh Amendment does not apply to
suits by United States against State. U.S.CA ConstAmend. 11.
11. Civil Rights *=»206(3) In federal civil rights official capacity
suit, governmental entity is liable only when entity itself is moving force behind deprivation, thus, entity's policy or custom must play part in violation of federal law. 42 U.S.CA § 1983.
12. Constitutional Law «=»255(5) Fact that mentally retarded person has
been involuntarily committed to state institution under proper procedures does not deprive him of all substantive liberty interests under Fourteenth Amendment. U.S.CA ConstAmend. 14.
13. Mental Health ©=»51.5 State has duty to provide adequate food,
shelter, clothing, and medical care to mentally retarded persons who are committed.
14. Mental Health ©=51.1, 51.10 Involuntary commitment proceedings do
not extinguish right to safe conditions and freedom from bodily restraint.

U.S. v. COM. OF PENNSYLVANIA

CUt MM 902 F.Supp. MS (W.O.Pa. 1993)

15. Constitutional Law <fc=255(5)

20. Constitutional Law «=255(5)

567

Mental Health «=»51.5

Mere negligence cannot trigger due pro-

There is right to minimally adequate training for involuntarily committed mentally retarded persons; "minimally adequate training" is that which is reasonable in light of identifiable liberty interests and circumstances of case.
See publication Words and Phrases for other judicial constructions and definitions.
16. Constitutional Law <t=»82(5)
Federal court must identify constitutional predicate for imposition of any affirmative duty on state.

cess protection under professional judgment standard in determining whether institutionalized individual's rights have been violated.
21. Mental Health *=»51.1
Application of professional judgment standard to determine whether institutionalized individual's rights were violated requires that state actor exercise professional judgment in choosing appropriate course of action and falls somewhere between simple negligence and intentional misconduct standards.
22. Mental Health *-51.1

17. Constitutional Law *»255(5)
Mental Health «=»51.10, 52.1
Standard for determining whether state violated institutionalized individual's rights is whether extent or nature of restraint or lack of absolute safety violates due process; determination must be made by balancing individual's liberty interests against relevant state interests, that balancing cannot be left to judge or jury, and courts must make certain that professional judgment was exercised and courts cannot specify which of several professional choices should have been made. U.S.C.A. Const-Amend. 14.
18. Mental Health «=»5L20
In applying professional judgment standard to determine involuntarily committed mentally retarded person's claim for minimally adequate training, deference is given to judgment exercised by qualified professional and decision made by professional is presumptively valid; liability may be imposed only when decision by professional is such substantial departure from accepted professional judgement practice as to demonstrate decision was not actually based on such judgment.
19. Mental Health «=»51.5, 51.10, 52.1
Court must apply professional judgment standard to all failure to protect, excessive restraint, and failure to habilitate claims brought by mentally retarded persons who are institutionalized, whether claims are brought independently or in tandem.

Professional judgment standard, in determining whether institutionalized individuals rights were violated, is less onerous standard than negligence or medical malpractice and optimal courses of treatment as determined by expert do not establish minimal constitutional standard, instead, factfinder must determine whether decision made by professional comports with minimally accepted professional standards.
23. Evidence *»512
In determining professional judgment standard to find whether institutionalized individuals' rights were violated, expert testimony is relevant not because of expert's own opinions but because testimony may shed light on what constitutes minimally accepted standards across profession, and court should not use expert testimony to choose from among several professionally acceptable remedies.
24. Constitutional Law «=>255(5)
In determining whether institutionalized individuals' liberty interests were violated, District Court had to evaluate nature of liberty interests of residents at issue and defendants' corresponding duty to protect those rights, and whether defendants' official customs and policies as implemented at institution so substantially departed from accepted professional judgment, practice, or standards as to demonstrate that defendants actually did not base their decisions on professional judgement

568

902 FEDERAL SUPPLEMENT

25. Mental Health ®=»52.1 Two isolated instances related to insects
on residents, without more, were insufficient to demonstrate that institution provided constitutionally inadequate basic care by tolerating insect infestations where incidents were promptly reported by staff and professional judgment was exercised, situations were addressed, and problems did not recur.
26. Constitutional Law e»255(5) Mental Health «=»51.5 Isolated examples of problems, inade-
quate care, or malpractice at institution do not establish constitutional violations and right to protection is not activated by isolated mishap.
27. Mental Health «=>51.1 One instance of vomitus on institutional-
ized resident's face and clothing, without more, was not indicative of failure by institution to provide adequate clothing for residents or to promptly respond to situations requiring care and attention.
28. Mental Health «=>51.1
Institution was not constitutionally deficient in providing adequate clothing to residents based on presence of stains on clothing where evidence showed that institution routinely changed clothing of residents who needed it and that each resident had clean, presentable, and properly-fitting clothes.
29. Mental Health Single discovery of problem with chang-
ing residents' diapers by medical assistance survey team did not prove prevalent condition at institution.
30. Evidence «=»317(9) Testimony about anonymous complaint
at union meeting about bathing institutionalized residents was not competent and was hearsay when it was offered to prove residents were not bathed properly where identity of declarant was not known and declarant was not subject to cross-examination.
31. Evidence <s=»571(3) State failed to show institution's bathing
practices did not meet minimum professional standards or that institution failed to exer-

cise professional judgment where expert testimony did not establish inadequate bathing process, did not assert residents were dirty after being bathed or that they smelled or that they were not bathed frequently enough, even though expert testified that bathing was done very quickly.
32. Constitutional Law c»82(7)
There exists correlative right to privacy for institutionalized mentally retarded individuals to avoid being viewed unclothed.
33. Constitutional Law *»82(7)
Institutionalized residents' right to privacy was not violated, and professional judgment that was exercised did not substantially depart from accepted professional standards, where institution responded to breaches of privacy by instituting more training, privacy issues were not ignored, and plan of correction that was implemented comported with accepted professional standards.
34. Constitutional Law «=»82(7)
Finding violation of institutionalized residents' right to privacy was not compelled by fact that training after privacy breaches did not stop all incidents where improvements were made and where there was no testimony that institution's action in responding to privacy breaches constituted substantial deviation from acceptable professional standards.
35. Mental Health «=»51.1
Basic care provided by institution did not violate constitution, did not constitute substantial deviation from professional standards, and no official policy or custom played any role in alleged deprivation of care where institution responded to problems with corrective measures pursuant to exercise of professional judgment, even though institution's lapses in care may have been negligent.
36. Constitutional Law ©=255(5)
Institutionalized mentally retarded person has right to receive adequate medical care and substantive liberty interest is protected by Fourteenth Amendment. U.S.C.A. ConstAmend. 14.

ILS. v. COM. OF PENNSYLVANIA
C I U M M 2 F^upp. 563 (WJJ.P*. 1W5)

569

37. MenUl Health e»51.15

42. Mental Health «=>52.1

Institution's administration of anticonvulsants intramuscularly for treatment of status epilepticus before 1993 did not violate constitutional minimum standards where decision was made pursuant to exercise of professional judgment that had some basis in accepted professional practice among general practitioners at that time; however, intramuscular administration of Valium (diazepam) for treatment of status epilepticus in future may constitute departure from professional judgment.
38. Mental Health «»51.5
Institution's administration of multiple anticonvulsants to some residents did not constitute violation of residents' right to adequate neurological care where in each case of polypharmacy, decision to use additional anticonvulsant was result of exercise of professional judgment that was consistent with acceptable professional standards.

Professional judgment was exercised where resident's falls and injuries were addressed by interdisciplinary team and protective gear was obtained and fact injuries continued after securing helmet for resident did not in and of itself indicate that professional judgment had not been exercised.
43. Mental Health «=»51.5
Professional judgment was exercised where it manifested assessment of situation and decision to incorporate suggestion into plan of care.
44. Mental Health *»51.10, 52.1
Institutionalized resident's right to be protected from harm due to seizure activity requires protection as may be reasonable in light of liberty interest in freedom from unreasonable restraints; protective helmets are restrictive measure and constitute infringement of resident's liberty interests.

39. Mental Health e»51.5
Professional judgment was not exercised in monitoring and responding to sedation caused by Dilantin (phenytoin) where there was no indication that institution's physicians made any conscious decision whatsoever regarding that aspect of treatment; however, injunctive relief was not warranted because United States did not attempt to establish that lapse in institution's neurological care was result of state's policy or custom as implemented at institution and constitutional challenge to neurological care in official capacity action failed as matter of law.
40. Mental Health e=»51.5
Deciding whether to perform particular diagnostic study is matter of professional judgment.
41. Mental Health ©=51.20
Adherence by professional to older of two widely-accepted schools of thought did not establish failure to exercise acceptable professional judgment and finding that institution exercised professional judgment in determining if activity was seizure-related was supported by physician's testimony.

45. Mental Health 051.10, 52.1
Institution's neurologic care of residents was not deficient where protective helmet was not approved, or not approved quickly, where final decisionmaker with regard to using helmet was human rights committee which was independent body that conducted evaluation and either approved or rejected proposed restrictive device.
46. Mental Health «=52.1
Frequency and severity of injuries sustained by institutionalized residents who have seizure disorders did not constitute sufficient evidence to establish lack of professional judgment regarding use of protective helmets; failure to exercise professional judgment was not established where there was mere quantification of injuries and expert testimony did not discuss nature of injuries or why institution's care for those residents failed to meet minimum professional standards.
47. Mental Health <£»51.5
Right of institutionalized mentally retarded persons to receive adequate medical care includes provision for psychiatric care where needed.

570

902 FEDERAL SUPPLEMENT

48. Mental Health «=»51.5
Accepted professional practice for psychiatric assessments included use of assessments completed by interdisciplinary team and collecting both objective and subjective data and institution's psychiatric assessments that were consistent with accepted professional practice evidenced exercise of professional judgment and did not violate Constitution.
49. Mental Health e»51.5
Specific cases of allegedly flawed differential diagnoses were at worst indicative of erroneous psychiatric evaluations of institutionalized residents and were not constitutional violations.

tering treatment that meets minimum professional standards.
54. Mental Health «=»51.5
Institution provided psychiatric care that met minimum professional standards even though documentation was weak; expert testimony failed to supporting finding that processes for providing psychiatric care were generally flawed or that professional judgment was not being exercised where expert concluded lack of documentation indicated deficient psychiatric care was being provided and expert did not take additional and necessary step of determining whether underlying process was as flawed as documentation.

50. Mental Health «=>51.5
Constitutional standard of psychiatric care for institutionalized residents is concerned with care provided to residents, not conformity of nomenclature to latest revisions to Diagnostic and Statistical Manual.
51. Mental Health *=»51.5
In determining of institutionalized resident's right to psychiatric care, it was acceptable professional practice for complete differential diagnosis to be constructed from documentation found throughout resident's chart, and treatment may have to be geared to symptoms presented as opposed to treatment of diagnosis consistent with Diagnostic and Statistical Manual.

55. Mental Health «=»51.15
Institution's use of psychotropic medications met constitutional minimum standards where, based on percentages of residents on psychotropic medications, one physician concluded overall percentages were consistent with medication management in similar populations and another concluded use of psychotropic medications was within accepted professional practice.
56. Mental Health ®=»51.5
Presence of tardive dyskinesia in institutionalized residents does not, of itself, indicate that institution failed to exercise professional judgment in monitoring usage of antipsychotic medications.

52. Mental Health «=51.5
In determining institutionalized resident's right to psychiatric care, documentation alone could not establish constitutional deficiency, and focus was whether professional judgment was exercised, that is whether practitioner considered options and made differential psychiatric diagnosis for resident that was in keeping with minimal professional standards; problem with documentation does not prohibit exercise of professional judgment.
53. Mental Health «=»51.5
Exercise of professional judgment in selection of proper psychiatric treatment for institutionalized resident requires thinking about modalities of treatment and adminis-

57. Mental Health «=»51.5
Institution met minimum standard of professional judgment in avoiding unnecessary chemical restraints that would result in stiffness, rigidity, and constraining of one's movement where testimony was there were no signs in residents showing chemical restraint.
58. Mental Health «=51.5
Occurrences of aspiration pneumonia or deaths, without evidence that they were result of medical treatment which substantially deviated from accepted professional practice, do not compel finding that right of institutionalized residents with gastroesophageal reflux (GER) to appropriate medical care was violated.

U.S. v. COM. OF PENNSYLVANIA

571

Clu M 903 Fiupp. 365 (W.D.P*. 1W5)

59. Mental Health «=»51.5

lars of residents' care were absent and court

Institution exercised professional judg- could not determine whether care substan-

ment consistent with accepted medical prac- tially deviated from accepted medical prac-

tice in treatment of resident with gastroeso- tice.

phageal reflux (GER) who died while hospitalized for aspiration pneumonia where staff 64. Mental Health *=>51.5

documented her persistent trouble with coughing and mucous production, monitdred her condition, and treated her with antireflux medication.

Fact that institutionalized residents have died or sustained recurrent pneumonias did not support conclusion that institution was violating their constitutional rights to ade-

60. Mental Health «=»51.5
Institution's treatment of resident with gastroesophageal reflux (GER) who died, and decision not to perform fundoplication surgery, did not fall outside realm of acceptable medical practice where his condition was treated surgically by inserting gastrostomy tube and decision whether to proceed with fundoplication surgery was highly dependent on individual medical condition, was matter to be resolved pursuant to sound discretion of professional, and experts in field of GER for mentally retarded persons remain divided over benefits.

quate medical care; it was to be expected that some residents may become ill and not recover even though advanced medical care was provided.
65. Mental Health e»51.5
Food is essential of care that state must provide to involuntarily institutionalized mentally retarded persons, and institution must provide for management of nutritional status of its residents pursuant to exercise of professional judgment consistent with accepted professional standards of practice.
66. Mental Health «=51.5

61. Mental Health «»51.5 Institution rendered care that was con-
sistent with accepted professional standards to resident with gastroesophageal reflux (GER) who died where resident was treated with anti-reflux medication, antacids, and underwent fundoplication surgery that necessarily included gastroenterological consults.
62. Mental Health ®=»51.5 Institution's care of resident who died of
aspiration pneumonia was consistent with accepted professional standards where his treating physician was very familiar with his seizure disorder and its refractory natures, and recognized that seizure medications produced viscous secretions that affected ability to swallow and as result gastrostomy tube was used, despite claim that tube should not have been used.
63. Evidence <S=571(3) Mental Health «=>51.20

In providing nutritional management to institutionalized residents, accepted professional practice requires some type of screening mechanism to determine which residents are nutritionally at risk.
67. Mental Health e»51.5
While there were deficiencies in identifying institutionalized residents who were nutritionally at risk prior to development of various screening mechanisms, where institution later developed various screening devices and was in process of implementing and revising them, there were no deficiencies remaining to be remedied by injunctdve relief.
68. Mental Health *=»51.5
Nutritional assessment performed by institution satisfied accepted professional standards where, although annual review was not labeled nutritional assessment, it satisfied interdisciplinary process and addressed acuity

District Court refused to find constitutional violations for institutionalized residents' deaths from aspiration pneumonia based on expert's conclusory statements that were not supported by record where particu-

of problem and necessary interventions; adequacy of nutritional assessments was further supported by fact that assessments regarding physical therapy, psychiatric issues and neurologic care, all of which affected nutri-

572

902 FEDERAL SUPPLEMENT

tdon and feeding, were found constitutionally sound.
69. Constitutional Law «=»255(5)
Mental Health *=51.5 Institution's nutritional assessments constitutionally met needs of residents as basic evaluation was in place which could be augmented when need arose.
70. Mental Health «=>51.5
Institution's mealtime intervention met minimum professional standards where feeding plans included elements appropriate for each individual.
71. Mental Health O51.5 Institution had adequate mechanism for
monitoring resident's mealtimes intake, meeting accepted professional practice that requires some mechanism for tracking meal time, through unwritten policy that was eventually written regarding meal refusals and through nursing practice of documenting in resident's summary the status of his appetite.
72. Mental Health *=51.5
Institution adequately trained staff to implement resident's feeding plans and met accepted professional practice where staffs knowledge in feeding residents did not requiring training start at square one, where direct care Btaff consulted special procedure books and asked questions of professional staff that were.always present in dining room, and where professionals' day-to-day assessments of actual feedings presented ample opportunity for additional training to correct deficiencies or reinforce proper method.
73. Mental Health «=51.5 Fact that institution's professionals de-
sired additional training in nutritional management did not prove constitutional violation.
74. Mental Health «=»51.5, 52.1 When state takes person into its custody
and holds him there against his will, Constitution imposes on it corresponding duty to assume some responsibility for his safety and general well-being. U.S.CA. ConstAmend.

75. Constitutional Law <^>252.5
Due process clause generally confers no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which government itself may not deprive individual. U.S.C.A. Const-Amend. 14.
76. Mental Health «=»51.5
Constitution imposes duty on state, pursuant to exercise of professional judgment, to provide physical therapy service to involuntarily committed mentally retarded persons that maintain residents' maximum ability to move, but not duty to achieve some optimal level of performance, and duty may differ for residents in developmental stage versus those who have reached skeletal maturity. U.S.CA ConstAmend. 14.
77. Constitutional Law *»255(5)
Infringement of mentally retarded resident's liberty interests may occur if loss in physical movement results from institution's failure to provide necessary physical therapy training and/or services, but not every instance of loss of movement indicates constitutional violation.
78. Constitutional Law «=»255(5)
Failure of institution to provide training that improves residents' basic care skills, absent proof that failure to provide training results in loss of recognized liberty interest, does not implicate constitutional Due Process concerns. U.S.CA. ConstAmend 14.
79. Mental Health ©=>51.5
There was no constitutional deprivation where institution provided broad spectrum of physical therapy services and where professional judgment was exercised in effort to preserve and/or maintain residents' maximum ability to move.
80. Mental Health ®=»51.5
Constitutional duty imposed on institution for involuntarily committed mentally retarded residents does not require institution to embrace unorthodox method, even if it is promising. U.S.CA. Const.Amend. 14.

VS. v. COM. OF PENNSYLVANIA

573

CiUasM2 F.Supp. 56S (W.D.P*. 1995)

81. Mental Health «=»51.5

piece of equipment to replace trial and error

Institution's physical therapy assess- method.

ment documentation was not constitutionally infirm where forms used were adequate in light of fact that other portions of chart and supplemental procedures detailed and provided additional information.
82. Mental Health *»5L5
Institution's frequency of physical therapy assessment met professional judgment standard where they were adequate for maintenance as state was not required to improve residents' conditions and, while expert testified to required yearly assessment,

86. Mental Health *»5L5
Institution's care in lifting and transferring residents was not constitutionally remiss where institution had lifting policy that incorporated cardinal rules for lifting and transferring; even though injuries occurred record did not reveal that injuries due to improper lifting were commonplace or went unconnected and isolated injuries were bound to happen within population that required lifting and transferring on daily basis.

evidence indicated there was no published 87. Mental Health «=»51.5

standard within field and yearly standard

Professed desire of institution's staff to

was expert's personal opinion.

receive continuing education in physical man-

83. Compromise and Settlement «=7.1 Constitutional Law «=>47

agement of residents was not evidence of deficiency that violated constitution.

Mental Health e»51.5
Explication of constitutional obligation should not be guided by settlement agreements, which may contain terms beyond constitutional minimum to reach amicable reso-

88. Mental Health «=>51.5
Institution's physical therapy services that provided only maintenance was constitutional.

lution, and District Court accorded little 89. Mental Health e»51.1

weight to any standard based on result of

Institution's physician staffing ratio was

consensually resolved lawsuits, as opposed to within acceptable professional standards and

adjudication.

took into account medical needs of residents

84. Mental Health <s=»51.5
Institution's physical management of residents did not substantially deviate from accepted professional practice where it included range of motion (ROM) therapy to

and familiarity of physicians with residents where it was about 120 residents to physician and went higher when physician's were gone for vacations, holidays, sick time and continuing education.

maintain residents' movement capabilities, regularly changed positions of residents who were unable to move, used splinting to assist in prevention of skin irritations, provided physiotherapy or percussions, used therapeutic positioning, provided gross motor function programming, and used professional judg-

90. Mental Health ®=»51.5
Inadequate medical documentation does not mandate finding that institution's medical care is constitutionally deficient; paperwork exists to aid in patient care and not to satisfy some independent constitutional duty.

ment in determining what physical management efforts would be used, even though institution did not utilized best or most current options.

91. Mental Health «=»51.1
Institution's medical record documentation, though sometimes flawed or inadequate, met acceptable professional practice standard

85. Mental Health <3>51.5

as it was effective at maintaining continuity

Institution's adaptation of wheelchairs of case and, despite guidelines that required

through trial and error was exercise of pro- extensive documentation by physicians, ac-

fessional judgment where method was ac- cepted professional practice tolerated docu-

cepted within physical therapists's judg- mentation that did not necessarily meet

ments, even though there was sophisticated those goals.

574

902 FEDERAL SUPPLEMENT

92. Mental Health «=51.5
Failure of institution's nursing staff to initiate tests of vomitus or stool for occult blood did not show deficiencies in nursing care where tests were performed by laboratory pursuant to order of physicians, where testing was diagnostic and could be executed by registered nurse only as part of medical regimen prescribed by physician, and where there was no evidence that nursing staff failed to carry out testing as directed.
93. Mental Health «=»51.5
Occurrence in institution of seven deaths in 472 residents who received nursing care over three years did not demonstrate in and of itself constitutionally inadequate acute and chronic nursing care.
94. Mental Health «=»51.5
Institution's nursing care could not be found constitutionally remiss on basis of delayed reporting of injury to patient where delay was attributable to action by residential service aid and not nursing staff, where 15 minute lapse between report to nurse and nurse's report to doctor was not substantial deviation from accepted nursing practice, and where resident suffered no additional harm due to delay in treatment.
95. Mental Health «=51.5
Delayed responses to injuries that was attributable to residential service aid staff, not nursing staff, could not be basis for finding that nursing care at institution was constitutionally deficient.
96. Mental Health «=>51.5
Fact there is a better way to accomplish task dealing with institutionalized residents, such as documentation on patient, is not tantamount to constitutional violation.
97. Mental Health <&»51.5
Institution's standardized nursing care plans that were modified, amended and tailored for each resident fulfilled requirements of accepted professional practice and were not constitutionally deficient; accepted professional practice required individualized plans, so standardized plans for problems frequently encountered by residents, stand-

ing alone, would not meet accepted professional practice.
98. Mental Health «=>51.1
Institution's additional training for nurses was not inadequate where it was not substantial departure from accepted professional practice, where state nursing law did not require acquisition of specified number of continuing education hours per year for license renewal, where institution provided additional training, both optional and not, and where it offered training throughout year on formal and informal basis.
99. Mental Health «=»51.5
Institution was not under constitutional duty to provide services that enhanced mentally retarded residents' level of functioning.
100. Mental Health «=»51.5
Institution's use of age inappropriate materials, such as those designed for young children, with mentally retarded and disabled adult population was not substantial departure from acceptable professional practices.
101. Mental Health «=»51.5
Institution's interdisciplinary approach to residents' training and behavior management did not substantially depart from acceptable professional standards where review approval and monitoring of treatment plan was structured with key people reviewing programs beforehand, where psychologists were involved in development of plans, where primary collection of behavior management data was recording target behavior defined in plan, and where behavior management committee met regularly.
102. Mental Health «=»51.1
Malpractice is not governing standard in determining whether involuntarily institutionalized mentally retarded person's constitutional rights were violated.
103. Mental Health <S=>51.5
Institution met constitutional minimum for psychological treatment where it had psychologists on duty weekdays and administrative person could be contacted on weekends and bring in psychologist if needed, and hav-

U.S. v. COM. OF PENNSYLVANIA

575

Cite • • 902 F.Supp. MS (W.D.P*. 1993)

ing psychologists on duty weekends or nights 109. Mental Health «=>51.5

was not required.

Duration of meal should not be sole cri-

104. Mental Health «=>51.5

terion of whether institution's care in feeding residents meets accepted professional stan-

Institution exercised professional judg- dard.

ment in attempting to treat resident's severe behavior problems where staff had considerable difficulty in reducing resident's self-injury, made efforts to protect her and sought external constitution, even though efforts had not been successful.

110. Mental Health *»51.5
Institution's care with regard to mealtimes for residents who feed themselves met constitutional minimum where, though residents appeared to eat at rapid rate, residents were swallowing between mouthfuls, even

105. Mental Health *»51.10, 51.15

though there was some choking.

Institution's use of chemical and physical restrains did not substantially depart from acceptable professional practice where use of medication came after trying alternatives, where use of restraint was well below levels that occurred in settings serving similar populations, and where restraint was used for safety and habilitative purposes.
106. Mental Health «=»52.1
State must provide institutionalized residents with adequate safety.

111. Mental Health O51.5
Institution's care in feeding residents was constitutionally adequate where videotape showed residents being fed with ease and where institution's feeding practices with regard to head position was not departure from accepted practice, were often accommodation of resident's behavior, and weighed risks of aspiration or choking against fact that correction of some behaviors could prompt residents to decompensate and not eat or would require restraint

107. Mental Health «=»52.1
Number of injuries to residents could not be sole criterion for determining whether institution violated its constitutional duty to provide reasonably safe conditions as injury itself was not constitutional violation unless it was result of unconstitutional action or omission by institution; numbers could not establish constitutional violation and it had to be demonstrated that institution failed to exercise professional judgment in addressing issue of safety.
108. Evidence *=>571(3), 574
Institution did not violate constitution by continuing use of dining rooms, despite expert's testimony that area was unsafe, dehumanizing and was health hazard with flies, where expert's testimony failed to shed any light on what constitutional minimum was with regard to dining facilities, where expert's characterizations of dining room were disputed by institution's expert, and where videotape of mealtime practices did not reveal any overwhelming problems with flies.

112. Mental Health e»51.5 District Court would not infer substan-
tial deviation from accepted practice for institution's failure to use particular feeding position in absence of evidence that residents at issue possessed necessary mouth control for that position.
113. Mental Health «=51.5 Institution's care in regard to elevating
head and trunk of residents for feeding was not constitutionally inadequate where evidence showed staff strove to elevate head and trunk above pelvis and legs, videotape showed institution did elevate head and trunk, and staff was aware that residents confined to carts needed to be elevated, despite claimed deficiency that head was usually all that was elevated.
114. Mental Health «=»51.5
Institution's exercise of professional judgment in feeding residents was shown by decisions made to change method of providing nutrition to residents and assessment of impossibility of easily feeding resident at some point resulted in decision to institute

576

902 FEDERAL SUPPLEMENT

mechanical means of meeting resident's nutritional requirements.
115. Mental Health «=»51.5
Competing liberty interests are at issue involving elopements by mobile, institutionalized residents and expert testimony should identify parameters of acceptable professional practice in providing residents with freedom of movement while also attempting to prevent, detect and respond to elopements; court was unable to determine whether problem of constitutional proportions existed where United States relied on fact that elopements occurred without providing evidence that such occurrences demonstrated substantial deviation from accepted professional practice.
116. Mental Health «=»53
While sexual behavior problems of certain residents posed grave risk of harm, institution exercised professional judgment in addressing behavior where it held numerous staff meetings/interdisciplinary team conferences, where it contacted outside consultants and therapists, where it tried transferring resident to another facility, where it sent staff members to attend classes to become certified sex therapists, and where it con-

tracted with sex therapist to provide in-service training for staff regarding how to deal with problematic sexual behavior.
117. Civil Right* 4=206(3)
Mental Health O51.5, 51.20
Professional judgment was exercised in provision of care to mentally retarded individuals residing at institution where care, although frequently not optimal, was, with exception of one remedied defect, consistent with accepted professional practice and met constitutional requirements; in cases where there were lapses in care, United States failed to demonstrate that deficiencies were result of state's official customs and policies as implemented at institution to warrant injunctive relief.
Robinsue Frohboese, Judith Preston, U.S. Dept of Justice, Civil Rights Division, Washington, DC, for plaintiff.
Thomas York, Eckert Seamans Cherin & Mellott, Harrisburg, PA, Christine Demichele, Department of Public Welfare, Office of Legal Counsel, Harrisburg, PA, for defendants.

TABLE OF CONTENTS

Page

I. Introduction

577

II. Standard Of Proof

578

A. CRIPA Actions

578

B. Substantive Due Process Rights of Institutionalized Mentally Retarded

Persons

580

C. The Professional Judgment Standard

582

III. Findings of Fact and Conclusions Regarding Liberty Interests at Issue in this

Litigation

584

A. The Center's Structure and Services

584

B. Adequate Basic Care

588

C. Adequate Medical Care

591

1. Neurological Care

591

VS. y. COM. OF PENNSYLVANIA

577

CIU M M2 F.Supp- MS (W.D.P*. IMS)

2. Psychiatric Care

.'

598

a. Psychiatric Assessment Techniques

598

b. Differential Diagnosis

601

c. Psychiatric Treatment

604

3. Gastroesophageal Reflux and Aspiration

607

4. Nutritional Management

611

a. Screening

611

b. Assessment

612

c. Intervention

614

d. Monitoring

614

e. Training

615

5. Physical Therapy

616

a. Assessment

619

b. Wheelchairs

622

c. Transfers

624

6. General Medical Care

626

7. General Nursing Care

628

D. Adequate Training and Freedom From Undue Restraint

631

E. Reasonable Safety and Protection From Harm

640

IV. CONCLUSION

649

OPINION AND ORDER
D. BROOKS SMITH, District Judge.
I. INTRODUCTION
This action presents a claim by the Attorney General, on behalf of the United States of America ("United States"), under the Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. §§ 1997-1997J ("CRIPA"). The United States contends that the Commonwealth of Pennsylvania ("Commonwealth") and the individually-named defendants (officers of the Executive Branch of the Commonwealth sued in their official capacities) are depriving institutionalized mentally retarded persons at the Ebensburg Center (the "Center") of rights, privileges or immunities secured by the Constitution of the United States. Complaint (Docket No. 1), If 1, 6-11. The United States seeks equitable relief, the sole remedy authorized by CRIPA (see 42 U.S.C. § 1997a(a)), and asks this Court to enjoin defendants from "continuing the acts, practices and omissions" at the Center which allegedly violate the Constitution, and "to require defendants to take

such action as will provide constitutional conditions of care to persons" who reside at the Center. Complaint, p. 5.
The instant CRIPA action was tried before this Court over the course of twenty (20) days. Extensive testimony by lay and expert witnesses was presented, hundreds of exhibits were received into evidence, and this Court conducted a detailed view of the facility in the presence of counsel.
Inasmuch as "[djecisional law interpreting [CRIPA] is virtually nonexistent" (United States v. Pennsylvania, 863 F.Supp. 217, 218 (E.D.Pa.1994)), and in order to properly evaluate the evidence presented, I will first address the applicable standard of proof. Thereafter, for each alleged constitutional violation, I will discuss the nature of the duty owed, my findings of fact regarding the alleged violative conduct, and my conclusion regarding whether a violation exists.
For the reasons explained below, I find that the residents at the Ebensburg Center are not being deprived of their rights, privileges, or immunities secured or protected by

578

902 FEDERAL SUPPLEMENT

the Constitution or laws of the United States. Accordingly, the United States' request for injunctive relief shall be denied.
II. STANDARD OF PROOF
A. CRIPA Actions
The Commonwealth submits that the standard of proof in this CRIPA action requires the United States to satisfy five elements set forth in 42 U.S.C. S 1997a, According to the Commonwealth, the United States must demonstrate:
1. egregious and flagrant conditions in a State institution resulting in;
2. a deprivation of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States;
3. said deprivation is pursuant to a pattern or practice of resistance to the full enjoyment of such rights, privileges or immunities; and
4. said deprivation causes;
5. grievous harm to persons residing in an institution.
See Docket No. 22, pp. 34-35.1 The United States argues that the Commonwealth's extrapolation of these elements from 42 U.S.C. § 1997a is in error because that statute merely establishes the elements of the "Attorney General's *reasonable cause' determination that conditions at the institution in question merit Department of Justice involvement." 30/3-4.
None of CRIPA's provisions specifically address the elements which must be demonstrated by the United States at trial in order to obtain the equitable relief sought See 42 U.S.C. §§ 1997-1997J. Section 1997a is entitled "Initiation of civil actions," and subsection (a)'s caption reads: "Discretionary authority of Attorney General; preconditions." 42 U.S.C. § 1997a. Subsection (a) provides:
Whenever the Attorney General has reasonable cause to believe that any State . . . is subjecting persons residing in <f con-

fined to an institution, as defined in section 1997 of this title, 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, privileges, or immunities, the Attorney General, for or in the name of the United States, may institute a civil action in any appropriate United States district court against such party for such equitable relief as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment of such rights, privileges, or immunities . . .
42 U.S.C. § 1997a(a) (emphasis added).
[1] The plain language of § 1997a(a) reveals that the statute simply confers standing upon the Attorney General, thereby providing authority for the United States to initiate a lawsuit on behalf of mentally retarded persons, and others, who reside or are confined in an institution. See Patsy v. Florida Bd. of Regents, 457 U.S. 496, 507-08,102 S.Ct 2557, 2563, 73 L.Ed.2d 172 (1982) ("The Civil Rights of Institutionalized Persons Act . . . was enacted primarily to ensure that the United States Attorney General has 'legal standing to enforce existing constitutional and Federal statutory rights of institutionalized persons.'" (quoting H.R.Conf.Rep. No. 96-897, 9 (1980) U.S.Code Cong. & Admin.News 1980, p. 787,833); United States v. Pennsylvania, 863 F.Supp. at 219-20 ("From this language [in § 1997a(a) ] 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 enough to warrant federal involvement. Once such a determination is made by the Attorney General, the standard of proof to be borne by the United States at trial must be the same as any other plaintiff."); United States v. Ten-

1. Because resolution of this matter is fact intensive, frequent citations to the record appear throughout: this opinion. In an effort to minimize the length of this adjudication (admittedly not by much), all record citations will reference

the docket number and the appropriate page(s) separated by a diagonal slash. Hence, Docket No. 22, pp. 34-35, would be designated by 22/34-35.

VS. v. COM. OF PENNSYLVANIA

579

Clle u MB F-Supp. S«3 (W.D.P*. 1*95)

nessee, 798 F.Supp. 483, 488 (W.D.Tenn.1992) (2) whether this conduct deprived a person

("CRIPA is a standing statute.").

of rights, privileges, or immunities se-

[2,3] The five elements identified by the Commonwealth apply only to the Attorney General's "reasonable cause" determination, which must be made before the Attorney General may properly institute a CRIPA action. 42 U.S.C. § 1997a(a). One court has concluded that this plain reading of the statute is supported by its legislative history.1 Inasmuch as I conclude that it is clear from the text that § 1997a(a) is a standing statute, I believe an examination of its legislative history is unnecessary.1

cured by the Constitution or laws of the United States.
Id. Accord Shaw v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir.1990). Because CRIPA was enacted to provide standing for the Attorney General to initiate civil rights actions on behalf of institutionalized persons, the "essential elements" that the United States must prove are the same as in any civil rights action. See United States v. Pennsylvania, 863 F.Supp. at 220 ("[TJhe United States has no greater standard of proof than an individual plaintiff would bear

[4,5] As the Supreme Court of the Unit- in a case alleging the same illegal conduct on ed States has noted, CRIPA is legislation the part of a state.").

pertaining to "a specific class of § 1983 ac- [7-10] In this case, the United States

tions." Felder v. Casey, 487 U.S. 131, 148, alleges—and the Commonwealth does not

108 S.Ct 2302, 2312, 101 L.Ed^d 123 (1988) dispute—that "defendants have acted or

(state statute creating exhaustion require- failed to act . . . under color of state law."

ment for § 1983 action held violative of Su- Complaint, \ 15. The core of the dispute

premacy Clause). For purposes of the in- here concerns whether defendants have "de-

stant action, it is important to remember that privefd] residents of Ebensburg of rights,

§ 1983 did not create any new rights, but was privileges, or immunities secured or protect-

enacted by Congress "to give a remedy to ed by the Constitution of the United States."

parties deprived of constitutional rights, priv- Id., 121. The individually-named defendants

ileges and immunities by an official's abuse of have been sued in their official capacities,

his position." Monroe v. Pope, 365 U.S. 167, which "'generally represent only another

172, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 (1961) way of pleading an action against an entity of

(emphasis added). See also Parratt v. Tay- which an officer is an agent'" Kentucky v.

lor, 451 U.S. 527, 535, 101 S.Ct 1908, 1913, Graham, 473 U.S. 159, 165, 105 S.Ct. 3099,

68 L.Ed.2d 420 (1981) (Section 1983 provides 3105, 87 L.Ed2d 114 (1985) (quoting MoneU

"a 'civil remedy* for deprivations of federally v. New York City Dept of Social Services,

protected rights caused by persons acting 436 U.S. 658, 690 n. 55, 98 S.Ct 2018, 2035 P.

under color of state law without any express 55, 56 L.Ed.2d 611 (1978)). Accord Will v.

requirement of a particular state of mind."). Michigan Dept of State Police, 491 U.S. 58,

71, 109 S.Ct 2304, 2312, 105 L.Ed.2d 45 [6] The Supreme Court has identified (1989) ("Obviously, state officials literally are

"two essential elements" to a § 1983 civil persons. But a suit against a state official in

rights action:

his or her official capacity is not a suit

(1) whether the conduct complained of was against the official but rather is a suit against

committed by a person acting under col- the official's office. As such, it is no different

or of state law; and

from a suit against the State itself.").4

2. United States v. Pennsylvania, 863 F.Supp. at 219.
3. See Chicago v. Environmental Defense Fund. — U.S. . , 114 S.Ct. 1588. 1593, 128 L.Ed.2d 302 (1994) (when text of statute is clear, it is inappropriate to resort to legislative history for purposes of interpreting statute).
4. For purposes of the Eleventh Amendment, the Supreme Court has held that "official-capacity

actions for prospective relief are not treated as actions against the State." Graham. 473 U.S. at 167 n. 14. 105 S.Ct. at 3106 n. 14 (citing Ex pane Young. 209 U.S. 123. 28 S.Ct. 441. 52 L.Ed. 714 (1908)). In Ex pane Young, the Supreme Court held that the Eleventh Amendment interposes no bar to an action in federal court for prospective injunctive relief against a defendant official named in his or her official capacity because the defendant state official "comes into conflict with

580

902 FEDERAL SUPPLEMENT

[11] In an official-capacity suit, a "governmental entity is liable .. • only when the entity itself is a ' "moving force"' behind the deprivation; thus, in an official-capacity suit the entity's 'policy or custom* must have played a part in the violation of federal law." Graham, 473 U.S. at 166, 105 S.Ct at 3105 (citations omitted). The United States' Complaint in this action alleges that the Commonwealth's "policy or custom" as implemented at the Center has violated the residents' constitutional rights. See Complaint, 121 (The acts and omissions alleged . . . 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 residents of Ebensburg of such rights, privileges or immunities.").
B. Substantive Due Process Rights of Institutionalized Mentally Retarded Persons
The United States contends that the Commonwealth has subjected the residents of the Center to a deprivation of their liberty interests protected by the Due Process clause of the Fourteenth Amendment of the United States Constitution,5 because they have not been provided:
a. adequate basic care—in particular, adequate food, shelter, clothing, and hygiene;
b. adequate medical care;

c. freedom from undue restraint, and training programs to ensure freedom from undue restraint; and
d. safe conditions.
[12] In Youngberg v. Romeo, 457 U.S. 307, 314, 102 S.Ct 2452, 2457, 73 L.Ed^d 28 (1982), the Supreme Court considered "for the first time the substantive rights of involuntarily committed mentally retarded persons under the Fourteenth Amendment to the Constitution." The Youngberg Court acknowledged that "[t]he mere fact that Romeo has been committed (to a Pennsylvania state institution] under proper procedures does not deprive him of all substantive liberty interests under the Fourteenth Amendment" Id. (emphasis added).
[13] The defendants in Youngberg (three administrators of the Pennsylvania institution) "concede[d] a duty to provide adequate food, shelter, clothing, and medical care." Id. at 324, 102 S.Ct at 2462. The Supreme Court noted that these duties "are the essentials of the care that the State must provide." Id. Separate and apart from these interests, however, the plaintiff argued that he had "a constitutionally protected liberty interest in safety, freedom of movement and training within the institution; and that [the defendants] infringed these rights by failing to provide constitutionally required conditions of confinement" Id at 315, 102 S.Ct at 2457. The Court's task, therefore, was to "decide whether liberty interests also exist in safety, freedom of movement and training,"

the superior authority of [the] Constitution, and

167 n. 14, 105 S.Ct. at 3106 n. 14. Nevertheless,

he is in that case stripped of his official or the Court still considers such actions for pro-

representative character and is subjected in his spective injunctive relief as addressing the State's

person to the consequences of his individual con- official policy or custom. Graham, 473 U.S. at

duct." 209 U.S. at 159-60, 28 S.Ct. at 454. Although the Eleventh Amendment typically bars actions for damages in federal court against States and state officials sued in their official capacities (set Will, 491 U.S. at 66. 109 S.Ct. at 2309-10 (§ 1983 was not intended "to disregard the well-established immunity of a State from being sued without its consent": in actions for damages, neither States nor state officials acting in their official capacities are considered "per-

167 n. 14, 105 S.Ct. at 3106 n. 14 ("[implementation of state policy or custom may be reached in federal court only because official-capacity actions for prospective relief are not treated as actions against the State."). Moreover, the Eleventh Amendment does not apply to suits by the United States against a State. United States v. Mississippi. 380 U.S. 128, 140-41. 85 S.Ct. 808, 814-15, 13 L.Ed.2d 717 (1965).

sons" winhin the meaning of § 1983)). the Elev-

enth Amendment poses no bar to actions for 5. The Fourteenth Amendment provides, in perti-

prospective injunctive relief against state officials nent part, that a State shall not "deprive any

sued in their official capacities, and in such cir- person of life, liberty, or property, without due

cumstances, the state officials are considered

process of law. . . . " U.S. Const amend. XIV,

i

"persons" lor purposes of § 1983. 473 U.S. at

§ 1.

U.S. v. COM. OF PENNSYLVANIA

581

Clle a* 902 F.Supp. J*5 (W.D.Pa. IMS)

and, if so, to "decide whether they have been 2459. The Court therefore held that "[i]n

infringed in this case." Id

the circumstances presented by this case,

[14] The Youngberg Court found that the and on the basis of the record developed to first two claims—safe conditions and freedom date, we agree . . . that [the plaintiffs] liberfrom bodily restraint—involved "liberty in- ty interests require the State to provide minterests recognized by prior decisions of this imally adequate or reasonable training to Court, interests that involuntary commitment ensure safety and freedom from undue re-
proceedings do not extinguish." Id. (footnote straint" Id. at 319, 102 S.Ct at 2460.*

omitted). The plaintiffs other claim—a constitutional right to minimally adequate training—was, in the words of the Court, "more troubling." Id. at 316, 102 S.Ct at 2458.
In addressing the asserted right to training, we start from established principles. As a general matter, a State is

[15,16] Significantly, although the Court found that a constitutional liberty interest existed that required Pennsylvania to provide "minimally adequate or reasonable training," the Court cautioned against adopting an unrestrained notion of liberty interests that

under no constitutional duty to provide would impose additional duties on a State:

substantive services for those within its border. When a person is institutionalized—and wholly dependent on the State— it is conceded by petitioner that a duty to provide certain services and care does exist, although even then a State necessarily has considerable discretion in determining the nature and scope of its responsibilities. Nor must a State "choose between attacking every aspect of a problem or not attacking the problem at all." Id. at 317, 102 S.Ct at 2459 (citations omit-

It is not feasible, as is evident from the variety of language and formulations in the opinions below and the various briefs here, to define or identify the type of training that may be required in every case. A court properly may start with the generalization that there is a right to minimally adequate training. The basic requirement of adequacy, in terms more familiar to courts, may be stated as that training which is reasonable in light of identifiable

ted). The Court noted that the plaintiffs liberty interests and the circumstances of

"primary needs" were "bodily safety and a the case. A federal court, of course, must

minimum of physical restraint," and the identify a constitutional predicate for the

plaintiff "clearly claimfed] training related to imposition of any affirmative duty on a

these needs." Id. at 317-18, 102 S.Ct at State.

6. The Commonwealth, as it did at an earlier stage of this proceeding, argues that the Supreme Court's decision in DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). limits the reach of Youngberg (and the Due Process protections recognized there) to those mentally retarded individuals who have been involuntarily committed to the Center. See 489 U.S. at 199-200, 109 S.Ct. at 1005 (Youngberg stands "only for the proposition that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being."); Fiatkowski v. Greenwich Home for Children. Inc.. 921 F.2d 459, 465-66 (3d Cir.1990) (severely mentally retarded individual's Due Process rights not curtailed by the state because his parents voluntarily placed him at the facility and, pursuant to the reasoning in DeShaney. he was not deprived of freedom " through incarceration, institutionalization or other similar restraint of personal liberty' ') But see United States v. Pennsylvania. 832

F.Supp. 122, 124 (ED.Pa.1994) C'[W]here 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."). The instant action challenges the Commonwealth's policy and customs as implemented "across the board" at the Center (as opposed to an action vindicating the liberty interests of a single individual, as in Fialkowski). The testimony presented during the trial demonstrated that, with respect to some of the residents, their backgrounds and the severity of their conditions make it difficult to characterize their institutionalization as being "voluntary." In addition, the Commonwealth appears to concede that some of the individuals at the Center were placed there involuntarily See Docket No. 22, at 34 ("Most, if not all, of the residents at Ebensburg Center are voluntarily placed without any restraint. ").

582

902 FEDERAL SUPPLEMENT

Id at 319 n. 25, 102 S.Ct at 2460 n. 25 (emphasis added).
[17] After establishing that the plaintiff in Youngberg retained "liberty interests in safety and freedom from bodily restraint," the Court explained the need to set forth a standard to apply in determining whether the State has violated these substantive due process rights of an involuntarily committed mentally retarded individual.
The question . . . is not simply whether a liberty interest has been infringed but whether the extent or nature of the restraint or lack of absolute safety is such as to violate due process.
[Wjhether [the plaintiff's] constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests. If there is to be any uniformity in protecting these interests, this balancing cannot be left to the unguided discretion of a judge or jury.
Id at 320-21, 102 S.Ct. at 2460-61. The Court then held that " the Constitution only requires that the courts make certain that professional judgment in fact was exercised. Itis not appropriate for the courts to specify which of several professional choices should have been made:" Id at 321, 102 S.Ct at 2461 (emphasis added) (citation omitted).7
[18] With respect to the plaintiffs claim for minimally adequate training, the Youngberg Court explained the deference to be shown in applying the "professional judgment" standard:

In this case, the minimally adequate train-

ing required by the Constitution is such

training as may be reasonable in light of

respondent's liberty interests in safety and

freedom from unreasonable restraints. In

determining what is "reasonable"—in this

and in any case presenting a claim for

training by a State—we emphasize that

the courts must show deference to the

judgment exercised by a qualified profes-

sional. By so limiting judicial review of

challenges to conditions in state institu-

tions, interference by the federal judiciary

with the internal operations of these insti-

tutions should be minimized

[TJhe

decision, if made by a professional, is pre-

sumptively valid; liability may be imposed

only when the decision by the professional

is suck a substantial departure from ac-

cepted professional judgment, practice, or

standards as to demonstrate that the per-

son responsible actually did not base the

decision on such a judgment

Id at 322-23,102 S.Ct at 2462-63 (emphasis

added) (footnotes omitted). See also Society

for Good Will to Retarded Children v. Cuo-

mo, 737 FJ2d 1239, 1248 (2d Cir.1984)

("Youngberg held that due process is satis-

fied if restraints are imposed on mentally

retarded individuals in accordance with the

judgment of qualified professionals and that

courts should defer to this professional judg-

ment").

C. The Professional Judgment Standard [19] The United States contends that the "professional judgment" standard set forth in Youngberg is not applicable, but if it is applicable, the standard pertains only to the claim regarding training. 87/30-33.* The United

7. The Court defined a "professional" decision-
maker as "a person competent, whether by education, training or experience, to make the particular decision at issue. Long-term treatment decisions normally should be made by persons with degrees in medicine or nursing, or with appropriate training in areas such as psychology, physical therapy, or the care and training of the retarded. Of course, day-to-day decisions regarding care—including decisions that must be made without delay—necessarily will be made in many instances by employees without formal training but who are subject to the supervision of qualified persons." Id at 323 n. 30, J02 S.Ct. at 2462 n. 30.

8. The United States' argument is undermined by its own Complaint in this action, which makes repeated references to the defendants' alleged failure to exercise "professional judgment." See, e.g., Complaint, 1 2 0 ("Defendants have failed and are continuing to fail to prescribe and administer psychotropic medication safely and pursuant to the exercise of professional judgment by appropriately qualified staff"). The United States' effort to avoid application of the professional judgment standard—and its presentation of evidence and argument throughout this case that was not tailored to address the professional judgment standard (instead, for example, presenting evidence of and argument about "deficient care" or "malpractice")—was unhelpful to

U.S. v. COM. OF PENNSYLVANIA

583

Cite M 902 F.Supj>. 56S (W.D.P*. 1993)

States' argument is based on atorturedread- Professional judgment is a relatively defer-

ing of Youngberg, and completely ignores ential standard. It requires only that a

Third Circuit precedent interpreting Young- state actor exercise professional judgment

berg, which is binding on this Court See in choosing the appropriate course of ac-

Shaw v. Strackhouae, 920 F2d 1135,1146 (3d tion. Negligence, however, imposes on a

Cir.1992) ("Absent even a hint that the Court state official the burden of choosing, from

meant to so limit its holding, we must read among alternatives, a course of action con-

Youngberg at face value and apply the professional judgment standard to all failure to protect, excessive restraint, and failure to habilitate claims brought by mentally retarded persons who are institutionalized, whether such claims are brought independently or in tandem").

sistent with the exercise of 'due care.' That means, as we see it, rejecting negligent alternatives that might nonetheless satisfy the demands of professional judgment. — [Professional judgment] appears to us to be a substantially less onerous standard than negligence from the viewpoint of the public actor. Indeed, in

The United States argues: "As contem- our view, professional judgment more

plated in Youngberg, safety is an objective closely approximates—although, as we

standard that can be measured through ob- have discussed, remains somewhat less

jective criteria." 87/30. The United States deferential than—a recklessness or gross

fails to explain how this novel proposition is negligence standard. Professional judg-

"contemplated" in Youngberg, and fails to ment, like recklessness and gross negli-

indicate the source of the "objective stan- gence, generally falls somewhere between

dard" that this Court should apply. To the simple negligence and intentional miscon-

contrary, the Supreme Court in Youngberg duct.

specifically stated that, in determining whether the constitutional rights of an institutionalized individual have been violated, a court must balance the individual's liberty interests against the relevant state interests,

Id. (emphasis added). Accord Society for Good Will to Retarded Children, 737 F2& at 1248 (" '[Professional judgment* has nothing to do with what course of action would make patients 'safer, happier and more productive.'

and that "[i]f there is to be any uniformity in Rather, it is a standard that determines

protecting these interests, this balancing can- whether a particular decision has substantial-

not be left to the unguided discretion of a ly met professionally accepted minimum

judge or jury." 457 U.S. at 321, 102 S.Ct at standards.").

2461. For this very reason, the Supreme
Court set forth the "professional judgment"
standard. The United States' argument must be rejected.9

[22] As Shaw and other cases decided since Youngberg explain, the "professional judgment" standard (ie., deciding whether a decisionmaker's action, or inaction, constitut-

ed "such a substantial departure from accept-

[20,21] In Shaw, the Third Circuit at- ed professional judgment, practice, or stan-

tempted to clarify the meaning of the "pro- dards as to demonstrate that the person

fessional judgment" standard established in responsible actually did not base the decision

Youngberg, and stressed that mere negli- on such a judgment," 457 U.S. at 323, 102

gence "cannot trigger due process protec- S.Ct. at 2462,) is a less onerous standard for

tion." Id. at 1146.

a state actor to meet than that of negligence

this Court as it labored with the difficult task of adjudicating this factually complex controversy.
9. Alternatively, the United States submits that the "professional judgment" standard is not applicable in this case because CRIPA actions enable the Attorney General to seek only equitable relief, and Youngberg's professional judgment standard was fashioned in response to a § 1983 action for money damages so that professionals

would not be "required to make each decision in the shadow of an action for damages." 87/31-32 (quoting Youngberg. 457 U.S. at 325, 102 S.Ct. at 2463). The United States' injunctive relief argument is unavailing for the reasons explained in Association for Retarded Citizens of North Dakota v. Olson. 561 F.Supp. 473. 487-88 (D.N.D.1982) (relying on principles of federalism and avoiding unnecessary judicial intervention in state institutions), affd, 713 F.2d 1384 (8th Cir.1983).

584

902 FEDERAL SUPPLEMENT

or medical malpractice. Optimal courses of treatment as determined by some expert, while laudable, do not establish the minimal constitutional standard. Society for Good Will to Retarded Children, 737 F2d at 1248.10 Instead, the factfinder must determine whether the decision made by the professional comports with minimally accepted professional standards.
[23] In making this determination, expert testimony is "relevant not because of the experts' own opinions—which are likely to diverge widely—but because that testimony may shed light on what constitutes minimally accepted standards across the profession." Society for Good Will to Retarded Children, Inc., 737 F.2d at 1248.
The role of the experts is only to assist the court in ascertaining what the minimum professional standard is; the ultimate question is whether '"professional judgment in fact was exercised.'" Even if every expert testifying at trial agrees that another type of treatment or residence setting might be better, the federal courts may only decide whether the treatment or residence setting that actually was selected was a "substantial departure" from prevailing standards of practice.
Id. at 1248-49 (citations omitted). Accord Society for Good Will to Retarded Children, Inc. v. Cuomo, 902 FJ2d 1085, 1090 (2d Cir. 1990) (district court erred infindingconstitutional violations without first determining whether the conditions and treatment substantially departed from accepted professional judgment; "the district court should use expert testimony to identify 'substantial departures', but not to choose from among several professionally acceptable remedies").
III. FINDINGS OF FACT AND CONCLUSIONS REGARDING LIBERTY INTERESTS AT ISSUE IN THIS LITIGATION
[24] The United States alleges that four separate categories of "liberty interests" have been violated at the Center. To properly analyze the evidence, I must evaluate (1)

the nature of the liberty interests of the residents at issue (and defendants' corresponding duty to protect those rights); and (2) whether defendants' official customs and policies, as implemented at the Center, BO substantially departed from accepted professional judgment, practice, or standards as to demonstrate that defendants actually did not base their decisions on professional judgment
This case has been carefully and exhaustively litigated by the United States and the defendants. Constraints of time and space do not permit me to respond to every one of the manifold factual and legal contentions raised by the United States with respect to the liberty interests at issue in this litigation. As the lengthy opinion which follows demonstrates, however, I have attempted to address in detail the more serious issues, while confronting the remaining issues in a general manner. Before addressing the United States' contentions, a brief overview of the Center's structure and services is in order.
A. The Center's Structure and Service*
The Ebensburg Center is an institution operated by the Commonwealth for mentally retarded persons, serving Bedford, Blair, Cambria and Somerset Counties. The Center is licensed as an intermediate care facility for persons with mental retardation and is geared toward caring for individuals with significant behavioral deficits who require assistance to meet their daily needs, and who have been unable to procure like services elsewhere. Exh. 11. The Center has a full operating license under the federal standards of the Title XIX Medicaid Program, which is a prerequisite for participating in the Medicaid Program. 62/158.
The Center was built in the 1950s. Many of the residents were placed at the center as children, and currently the median age of the residents is 32.5 years. 62/163. The Center's 475 residents live in five buildings or living units, each of which has four separate wings. There are approximately 96 residents to each building or 24 residents to each

10. Cf. A^m-My. 489 U.S. at 202, 109 S.Ct. at 1006 '"FT]he cisim here is based on the Due Process Clause of the Fourteenth Amendment,

which, as we have said many times, does not transform every tort committed by a state actor into a constitutional violation.").

U.S. v. COM. OF PENNSYLVANIA

585

CIUU902 F.Supp. MS (W.D.P.. 1995)

wing. 62/140-41; Exh. 608/62." The Center receiving adequate services, care and treat-

currently provides four private rooms per ment Exh. 600/51-52. All staff of the Cen-

unit and plans to increase the number of ter are ultimately responsible to Mr. Bello-

private rooms available. Exh. 603/104; mo. Exh. 600/52. Mr. Bellomo relies in part

33/27.

on the judgments of his division director,

The living units are the Keystone House, Laurel House, Sunset House, Horizon House, and the Villa House. The Keystone Unit houses the residents who are more profound-

disciplinary coordinator, outside reviews, advocacy groups and family association members to keep him updated on the needs of the facility. Exh. 600/63.

ly mentally retarded and more physically disabled. Some physically handicapped residents also live in the Laurel, Horizon, Sunset and Villa living units. 34/98. Approximately one third of the residents of the Keystone unit are essentially immobile—meaning that, as a result of their physical handicaps, they have no active movement, except for the ability to move their head, or to slightly move an arm or leg. 34/98. The physical handicaps manifested by the residents at the Center are a result of damage to the brain. 34/107.

Mr. Bellomo reports to Dr. Sneed, who is the Director of the Bureau of Direct Program Operations for the OMR. 63/25. Dr. Sneed supervises the direction of eight other mental retardation facilities and is supervised himself by the Pennsylvania Deputy Secretary for Mental Retardation. Exh. 600/6467. Dr. Sneed speaks with Mr. Bellomo at least once a week and attends monthly meetings with Mr. Bellomo. Exh. 600/67-73.
Under Mr. Bellomo's direction, the Center's Executive Staff perform rounds of the facility to remain abreast of resident's con-

Laurel Unit houses mentally retarded women. Some of the mentally retarded men reside in the Sunset House. Horizon House houses residents who are visually impaired or blind. Villa is home for the Center's higher functioning; individuals who are mildly to moderately mentally retarded. 43/81.

cerns and care. These rounds give management the opportunity to know the residents personally, provide oversight when there would otherwise be none, and give the employees an opportunity to speak openly with facility management Exh. 600/11-12; 63/89; 63/59. Management submits weekly ob-

The Center has; been budgeted a total of 790 full-time staff, which includes direct staff, professional staff and administrative staff. Exh. 601/53, 95. Additional staff may be requested during or before the fiscal year

servations and criticisms of the facility to Mr. Bellomo for consideration. Exh. 603/10. Mr. Bellomo addresses these concerns as they arise and creates incremental plans to relieve problems. Exh. 600/25-27.

from a pool of staff serving facilities operated by the state. Exh. 600/95-99. Approximately 366 of the Center's staff are involved solely with direct care. Exh. 600/99.

As facility director, Mr. Bellomo also chairs the Executive Staff and Risk Management committees and participates on the Mortality and Morbidity Review and Budget

Alan M. Bellomo was appointed as Di- committees. Exh. 600/49. Mr. Bellomo of-

rector of the Ebensburg Center in 1985 and ten attends the annual reviews that occur at

continues to serve in that capacity. 62/130. the facility. Id. Additionally, Mr. Bellomo

As Director, he oversees the total operation chairs town meetings so that he may address

of the facility to insure that the residents are concerns of the residents. Exh. 600/49.

11. The deposition testimony admitted in this case is delineated by the United States' line designations and the Commonwealth of Pennsylvania's counter-line designations, while some citations to the record refer to testimony which is neither. Such testimony was considered, and cited in some instances, because it aided me in understanding the context of the testimony. In addition, some testimony was considered because it was a means of fully appreciating the structure

of and the services provided by the Center. The consideration of such evidence is consistent with the spirit of Federal Rule of Evidence 106. which provides: "When a writing or recorded statement or part thereof is introduced by a party, an
adverse parly may require the introduction at
that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it."

586

902 FEDERAL SUPPLEMENT

As part of his management and oversight, Mr. Bellomo receives copies of the Center's incident reports. Exh. 600/42-13; 63/16. Mr. Fulton, the Center's safety director, also receives copies of the incident reports. As safety director, Mr. Fulton investigates all suspicious injuries, as well as any incident which, Mr. Bellomo believes warrants further investigation. Exh. 601/131-35.
Richard G. O'Brien has been Director of Program Services at the Center since 1982. 64/65. As Director of Program Services, Mr. O'Brien is responsible for monitoring discipline coordinators in the areas of psychology, nursing, speech pathology, volunteer resources and social services. He also is responsible for the contract services provided to the Center by Liberty Health Care, Mercy Hospital, Cameo's physical therapy services, and various laboratory services. In addition, Mr. O'Brien is responsible for the operation of and monitoring of the quality assurance program. 64/66. This program insures that Ebensburg complies with various federal standards and properly implements the standard for Intermediate Care Facilities for the Mentally Retarded (ICFMR). Exh. 600/53.
The Center is organized along the lines of a "unit system"—a method of operation that became popular in the 1970s in an effort "to get away from the clearly delineated—what became isolated—roles of different professionals." 51/17. The unit system strives to better coordinate the services of all the professional disciplines that are provided to the residents, with each unit director or manager administratively supervising the provision of services to his or her residents. 51/17-19.
Under the unit system, all of the living units are served by the Center's Director of Residential Unit Management (DRUM), David Devine. Mr. Devine supervises each building's Unit Manager, and Mr. Devine is ultimately responsible for providing adequate residential services and care to the residents of the facility. Exh. 608/22; 63/8. Mr. Devine's direct supervisor is Mr. Bellomo. Exh. 608/34.
The Unit Managers run each unit in three shifts. The first shift is supervised by a Residential Service Supervisor (RSS), who is a Qualified Mental Retardation Professional

(QMRP). The QMRP is the staff person responsible for a resident's case management, which includes a ninety-day review to insure that all services are being properly provided. The QMRP also coordinates that resident's annual staffing and insures that any provider of a program service documents activity in the chart 64/130. The RSS also supervises the Residential Service Aids (RSAs) who provide direct care to the residents. Exh. 608/190. Residential Service Aide Supervisors (RSAS) and Residential Service Night Aide Supervisors (RSNAS) act as RSA supervisors on the second and third shifts, respectively. Exh. 601/78.
Mr. Devine also is responsible for scheduling staff and meeting direct care employee quotas. Quotas, the minimum number of RSAs allowed for a shift, are set by Mr. Bellomo to insure that residents receive adequate attention and care. Currently, the Center employs approximately 366 full-time and twenty-nine substitute RSAs to meet the existing quotas. Exh. 601/7-8. Professional staff are not included when determining the quota, but the record reveals that approximately 30% of the RSAS' time per month is spent working in cooperation with the RSA quota, providing hands-on care and at the same time monitoring their staff. Exh. 600/140; Exh. 601/69-71; Exh. 608/97. RSASs are not included in the quota because they also are responsible for administrative tasks, such as assisting in the design and implementation of the residents' programs. Exh. 601/78.
On occasion, Mr. Devine also uses unit "pulls" to meet his minimum quota. Generally RSAs are "pulled" from one unit to work in another so that both units are able to make quota for that shift. Exh. 601/78-80. Occasionally, Mr. Devine must pull nurses, so that the Registered Nurse Supervisors are properly supported. Exh. 601/80. The Center's quota minimums exceed Title XIX's requirements and are reviewed on a monthly basis by the OMR. Exh. 600/149, 152.
Mr. Devine's duties also include the supervision of infection control, all staff of the third shift, as well as three nurse supervisors. Finally, as DRUM, Mr. Devine sits on

U.S. v. COM. OF PENNSYLVANIA

587

CUe «• 902 fSupp. 5*5 (W.D.P.. 1995)

the Executive Staff Safety Committee, Risk provides a report to the Center listing its

Committee, Budget Committee, Approved concerns, and the Center must provide a plan

Purchase Committee, Record Committee, of correction, which specifies a particular

Probationary Review, Mortality/Morbidity date for compliance. Thereafter, the survey

Committee, and the Policy Committee. Exh. team will return unannounced to ascertain if

608/16-18, 188.

the various deficiencies previously cited have,

Mary Kay Bennett acts as the Center's in fact, been completely corrected. 64/42.

guardian officer, and ensures that the residents' money is safeguarded and reasonably spent. Exh. 603/25, 56. Ms. Bennett is court-appointed and supervised by a western regional officer. Exh. 603/25-26.

As a result of a Title XIX survey in October 1990, the Center received a Provisional I license under Title XIX for January 31,1991, to July 31, 1991. 62/144; Exh. 1101. The provisional license was recommended by the

The state, through the Pennsylvania Pro- Title XIX survey team to the OMR (which is tection and Advocacy Organization (PP & A), responsible for the licensure process and is also provides some residents with advocates. under the aegis of the Pennsylvania Depart-

PP & A is recognized by Pennsylvania's gov- ment of Public Welfare). 62/144-45. The

ernor as an advocate for the disabled and survey team recommended the provisional

occasionally subcontracts its duties with the license as a result of problematic sexual bestate Association for Retarded Citizens havior presented by one male resident, Clif(ARC). Due to an inadequacy of representa- ford P. The Title XIX survey team was of

tion, however, the Center began a program the opinion that the Center had to develop a

which utilizes citizens from the Ebensburg sexuality program to address this problemat-

area as "special friends" and advocates for ic sexual behavior before a full operating the residents. The special friends form rela- license could be recommended. 602/113. tionships with the residents, visit on holidays, Significantly, the Title XIX survey team not-

and attend the residents' annual care review ed "the deficiencies during this survey do not

if possible. Exh. 603/26-27.

individually or collectively jeopardize client

The facility also attempts to place residents in the surrounding area so that they have an opportunity to live in a non-institutional community. 63/171. Mr. Bellomo recommends that residents be placed in the community, but the county's mental health/mental retardation administrator

health and safety or seriously impair the facility's ability to render care." 62/144. The Provisional I license issued by the Pennsylvania Department of Public Welfare was not equivalent to the decertification process that exists under the Health Care Finance Administration. 62/147.

makes final determinations on placement Exh. 600/81; 63/18. Although the Center has residents who could be placed in the community, no such facilities are currently available. In an effort to ameliorate this unfortunate situation, for those residents who qualify for community placement, the facility awards "grounds privileges," which allows those residents to walk independently on the grounds or go to the mini-mall located near the facility. 63/160.
The standards of Title XIX require that

Subsequently, the Provisional I license was replaced by a full operating license issued by the Pennsylvania Department of Public Welfare. The record contains no evidence of the issuance of any other provisional license. A full operating license under the Title XIX Medicaid Program is not an indication that a facility does not have any deficiencies. In fact, it is rare for a Title XIX survey team not to find some deficiencies in a facility which it has inspected. 64/44.

facilities such as the Center be subjected to In addition to the Title XIX Medicaid Pro-

an unannounced, annual survey. 62/158. gram inspection and licensing process, the

The survey team is present for approximate- Center also is subject to the Inspection of

ly one week and scrutinizes the Center for its Care (IoC) survey process carried out by the

compliance with approximately 475 different Office of Medical Assistance, a division of the

standards. 64/42. The survey team then Pennsylvania Department of Public Welfare.

588

902 FEDERAL SUPPLEMENT

The federal Title XIX survey and the Pennsylvania IoC survey are two separate processes. 62/159; compare Exh. 60 (11/92 Title XIX survey) and Exh. 67 (8/92 IOC survey). The IoC surveyors who visit the facility actually go page by page through all records of the Center, noting any deficiency which is apparent A plan of correction for these deficiencies must be submitted and approved by the Office of Medical Assistance. 62/15859; Exh. 63. If a plan of correction is not approved and implemented, the Center risks the loss of Medicaid funding. Exh. 63. The record does not contain any evidence of any plans of correction which have not been approved or implemented.

resulting in the transmission of various diseases, and inordinately hot rooms and/or temperature control problems, and held that the record contained sufficient evidence to support the district court's conclusion that the shelter was constitutionally infirm. Id, The court specifically noted that the problems at the facility were pervasive, and were not simply isolated lapses in care—there was sufficient evidence for the district court to conclude that problems in the living conditions at [the institution] were either not being corrected or were arising on a recurring basis and that these problems caused the living environment to fall below constitutional standards." Id.

B. Adequate Basic Care
The United States contends that defendants have failed to provide the residents at the Center with the constitutionally required level of basic: care. In particular, the United States alleges that insects have been found on food and on the residents,12 the clothing of some residents has been soiled, residents have not been bathed properly, and there is a disregard for the privacy of residents. 87/89; 92/22-3."
As noted above, adequate food, shelter and clothing are "essentials of . . . care that the State must provide" to the residents of the Center. Ymingberg, 457 U.S. at 324, 102 S.Ct. at 2462. The United States' allegations with respect to inadequate food (nutritional management) are addressed below in the discussion concerning adequate medical care, and I limit this portion of the opinion to the right to receive adequate shelter and clothing.
In Society for Good Will, 737 F.2d at 1244, the Court of Appeals for the Second Circuit affirmed a district court's finding that "the quality of the shelter at [a state operated school for the mentally retarded] did not meet constitutional minimums." The Second Circuit noted the conditions of filth, insect and rodent infestation, unsanitary conditions

In this case, the United States has persistently focused on two incidents involving insects as a basis for its assertion that the Center, as an institution, has failed to provide adequate shelter. The first instance involved the discovery of ants on two residents who had been placed on floor mats in the day room to sleep overnight because their rooms were being painted. The staff discovered the ants on their bodies on two separate mornings He., the first resident was discovered with ants on her body on one morning, and the other resident was discovered with ants the following morning). Exh. 87. Thereafter, the staff took steps to exterminate the insects, and the residents' beds were moved out to the day room for overnight sleeping purposes while the rooms were being painted. Id. at 00000918.
The other, more serious incident involved the discovery of an infestation of maggots in a resident's ear. Exh. 1022. Just how this infestation occurred could not be definitively established, but the Center's investigation concluded that this resident's ear most likely became infested as a result of outdoor activity in the grass, which was confirmed by the emergency room physician. 63/77. No other similar incidents were reported.

12. The issue of "flies on the food" is addressed. infra, in the discussion concerning alleged constitutional deficiencies at meal time.
13. The United States also contends that instances when the staff has been unable to locate a resi-

dent's whereabouts support a conclusion that inadequate care is provided. This is an issue of safety and will be discussed in that section of the opinion.

U.S. v. COM. OF PENNSYLVANIA

589

Cite •• 902 F.Supp. 3*3 (W.D.Pi. 199S)

[25] These two isolated instances related he notified someone about the resident's con-

10 insects, without more, are insufficient to dition, and that it "took a while" for someone

demonstrate that the Center provides consti- to clean it up. Dr. Stark also stated that he

tutionally inadequate basic care by tolerating saw residents with food stains on their

insect infestations. To the contrary, the clothes, and that some residents had a body

Commonwealth proffered credible evidence odor and others an odor of urine. 43/220.

that these incidents were promptly reported by the staff. Upon notification of circumstances warranting attention, professional judgment was exercised; the situations were addressed, and the problems did not recur.

[27] Obviously, the presence of vomitus on one's person is unpleasant for that individual and repugnant to others. Again, however, the record indicates that this was an isolated occurrence, and, without more, I can-

[26] As the Third Circuit in Shaw ex- not deem this incident indicative of a failure

plained (in addressing a claim for alleged by the Center to provide adequate clothing

inadequate safety), isolated examples of for the residents or to promptly respond to

problems, while regrettable, do not establish situations requiring care and attention. In

constitutional violations.

particular, I note that the record contains

Although the failure to prevent a "pattern credible testimony that the staff at the Cen-

of attacks, injuries, or violent behavior" is ter felt inhibited and hesitated to intervene actionable, w[t]he right to protection is not on behalf of the residents in the presence of

activated by an isolated mishap, or called the United States' experts. 62/198.

into question by each bruise that a patient

may suffer." We do not mean to minimize [28] Moreover, even if I consider this

the seriousness of Shaw's February 3 inju- incident together with the testimony that

ry. We conclude, however, that the failure residents had food stains on their clothes, I

of the responsible staff member to keep cannot find defendants constitutionally defi-

watch over Shaw at the instant he hap- cient in providing adequate clothing to the

pened to leave or be taken from his ward residents. There are stains which by their

on February 3 amounts to just such an nature alter the appearance of clothing, but

"isolated mishap." It cannot amount to which do not automatically make it unfit to

more than simple negligence.

wear. The United States' own witness, Mr.

920 F.2d at 1143 (citation omitted). See also Society for Good WiU, 737 F.2d at 1245 ("While there have been occasions when patients' specific medical problems have been treated improperly, the district court's decision should not have been based on isolated instances of improper treatment, but on a finding that medical care was inadequate on a class-wide basis. Isolated instances of inadequate care, or even of malpractice, do not demonstrate a constitutional violation.").

Tackett, acknowledged that the Center routinely changed the clothing of those residents in the Keystone unit who "needed it" 38/17. In addition, the United States' photographic exhibits reveal that each resident had clean, presentable, and properly-fitting clothing. See, e.g., Exhs. 670-71, 678-S2, 705, 709-10, 713, 734-40. This is a trivial matter that does not warrant the constitutional analysis which the Government's contention requires of me.

The United States also asserts that the clothing provided to the residents of the Center violates constitutional minimum standards because, on occasions, residents have been found with soiled clothing and soiled diapers. In support of its position, the United States cites expert testimony regarding a patient who he discovered with vomitus on his face and clothing. Dr. Stark, a psychologist who specializes in the care of persons with developmental disabilities, testified that

[29] With respect to the United States' contention that the residents smell like urine, the United States cites the conclusory testimony of Dr. Stark (which provided no evidence with respect to the frequency of this alleged problem), 43/220, and a November 6, 1992, Medical Assistance Survey. Exh. 60. The November 1992 Survey states that a Medicaid standard had not been met because 12 residents were confined to their wheelchairs for 5 hours without being changed,

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902 FEDERAL SUPPLEMENT

and when changed, the Attends (a brand name of an adult diaper) worn by those residents were heavily saturated with urine. Exh. 60, 00603763. There is no reference to urine saturated residents or urine saturated Attends in any other of the Medical Assistance Surveys from 1983 to 1992 (see Exhs. 48-69) nor is there any other testimony in this regard. This single discovery by the survey team hardly proves a prevalent condition at the Center.
[30] The United States contends the residents are not bathed properly, citing the testimony of Mr. Tackett, a former Center employee, and an anonymous complaint at a union meeting about residents being "hosed up one side and down the other." Exh. 995. As I indicated during the trial of this matter, the anonymous complaint at a union meeting about bathing the residents is not competent evidence. It is hearsay which is being offered to prove the truth of the matter asserted, Fed.R.Evid. 801(c). The declarant has not been subject to cross-examination, nor is his/her identity even known. Moreover, the reliability of the evidence is suspect in light of the fact that the employee would not repeat the allegation at the request of the Center so that the Center might seek to validate the complaint and, if necessary, address it. 64/46-47. There is no evidence to suggest that the employee wished to remain anonymous because he feared retaliation.
[31] Mr. Tackett testified that the bathing process in the Keystone living unit was like an assembly line, "it could have been longer . . . it was done very quickly " 3S/27-28. The substance of his testimony does not establish an inadequate bathing process. Although the procedure is done quickly, it is routine for the staff. Mr. Tackett's testimony does not assert that the residents were still dirty after being bathed, that they smelled, or that they were not bathed frequently enough. Rather, his testimony suggests no more than that they were bathed too quickly. This hardly demonstrates a failure to exercise professional judgment, or that the Center's bathing practices did not meet minimum professional standards.

[32] Finally, the United States submits that the Center fails to provide adequate care for the residents because it does not provide the residents with privacy. Although the Supreme Court in Youngberg did not explicitly acknowledge a "right to privacy" for institutionalized mentally retarded individuals, it is only logical to infer from the Court's recognition of the right to adequate clothing that there exists a correlative right to avoid being viewed unclothed. 467 U.S. at 324, 102 S.Ct at 2462; see also Association for Retarded CUizena of North Dakota, 661 F.Supp. at 491.
The United States points to the fact that privacy issues have been addressed in every annual state survey, and yet the Center has . failed to respond effectively. The United States further notes that even Mr. Bellomo observed an incident involving seven residents clothed in only Attends, milling about a hallway while locked out of their rooms. Exh. 109. These problems with privacy have by and large occurred in the Sunset, Horizon or Villa living units, where the residents are more mobile.
The November/December 1983 Medical Assistance Survey for the Center noted a lack of privacy for residents during toileting and bathing. Exh. 48, # 00800265. In the ( October 1989 Medical Assistance Survey, a deficiency was noted because residents in Keystone were dressed, changed and bathed without privacy, and two residents in Horizon II used the bathroom stalls without closing the privacy curtain. Exh. 56, #00800324. In October of 1990, the Medical Assistance Survey noted a deficiency because a resident was observed while in a Villa unit TV room without a blouse on, and another resident was observed walking naked from the bathroom to the TV room. Exh. 57, # 00004041.
[33] For each of these deficiencies, the Center's Plan of Correction provided for inservicing or teaching the staff regarding the need to afford greater privacy to residents. The privacy issues were not ignored, and I find that the Plan of Correction implemented at the Center iully comports with accepted professional standards. The record is dear that the Center responded to the breaches of privacy by instituting more training. The

U.S. v. COM. OF PENNSYLVANIA
Clt« a* 902 F.Supp. 563 (W.D.P.. 1993)

591

professional judgment exercised, therefore, is C. Adequate Medical Care

r.'.t a substantial departure from accepted

professional standards.

[36] The right of an institutionalized

mentally retarded person to receive adequate

[34] The fact that the training did not medical care—acknowledged without discus-

bring about a complete cessation of incidents sion by the Supreme Court in Youngberg as like those described above does not compel a substantive liberty interest protected by

the finding of a violation of the residents' the Fourteenth Amendment (457 U.S. at 315,

right to privacy. Improvements were made, 324, 102 S.Ct at 2457-5S, 2462>-has been and the United States failed to offer any discussed by a number of courts. See, e.g.,

testimony, expert or otherwise, concerning Society for Good Wili, 737 F.2d at 1245 how the Center's action in responding to the (district court's finding of inadequate medical

privacy breaches constituted a substantial
deviation from acceptable professional standards.14

care at facility was clearly erroneous; "Isolated instances of inadequate care, or even of malpractice, do not demonstrate a constitutional violation."); LeUz v. Kavanagh, 673

[35] To summarize, I find that the United F.Supp. 828, 834 (N.D.Tex.1987) (constitu-

States has failed to prove that the cited tionally required medical care "includes not

lapses in basic care at the Center—either only life-preserving or emergency care, but

individually or in total—have risen to the also regular and preventive treatment for

level of a constitutional violation, much less ordinary or chronic ailments."). The United

that the Commonwealth's official "policy or States challenges the following areas of med-

custom" played any role in the alleged depri- ical care at the Center: neurologic care; psy-

vation of care. See Graham, 473 U.S. at 166, chiatric care; treatment of gastroesophageal

105 S.Ct at 3105 (in official-capacity suit, the reflux and aspiration; nutritional manage-

governmental entity's "policy or custom" ment; physical therapy and physical man-

must have played a part in the violation of agement; general medical care; and general

federal law). In response to each of the nursing care.

problems with care discussed above (which

occurred in different areas over the course of several years at this large institution), the

1. NEUROLOGIC CARE

Center responded with corrective measures pursuant to the exercise of professional judgment. While the lapses by the Center may have been negligent—and are at least regrettable—I conclude that the basic care provided at the Center does not constitute a substantial deviation from professional standards and is not constitutionally infirm.

The United States contends that the Center's efforts to provide emergent neurological care for its residents who sustain status epilepticus 15 constitutes a substantial deviation from accepted professional judgment 87/7782. It further contends that the Center's provision of regular and preventive neurological care is likewise deficient In particular,

14. It is worth noting that some of the breaches of privacy (involving the more mobile residents) cited by the United States do not necessarily reflect even ineffective training on the pan of the Center. For example, there is no indication that the staff had any involvement in the incident involving the two residents in the Horizon unit who used the bathroom without closing the curtains in the stall. If staff were not toileting these individuals, the fact that the state surveyor observed the residents utilizing the stall without closing the curtain does not necessarily indicate a failure on the pan of the Center to respond appropriately to a breach of privacy. I note that the record contains evidence of appropriate responses by the staff to privacy issues. See Exh. 594b, # 00050400 (wherein an RSA observed a

resident who was stripping and directed her to the toilet).
IS. Status epilepticus is a condition in which a* resident manifests seizure activity that is either constant or recurrent without full recovery of consciousness before the next seizure activity begins. 48/118; 81/14: Exh. 1107. p. 854. Usually the diagnosis of status epilepticus is made in hindsight because the time frame of thirty minutes is a diagnostic criterion. That is. constant seizure activity of more than thirty minutes is consistent with the diagnosis of status epilepticus. Recurrent seizure activity within a thirty minute time frame that is not accompanied by a full recovery of consciousness also is consistent with a diagnosis of status epilepjicus Id.

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902 FEDERAL SUPPLEMENT

the United States claims that the Center's treatment of residents with seizure disorders substantially deviates from accepted professional judgment because: (1) the residents receive more medication and combinations of medication to prevent seizures and sustain more adverse side effects than are acceptable, 87/84-86; (2) some of the residents receive anticonvulsant medication despite the fact that a diagnostic test, which has not been administered, may indicate that the resident does not experience seizure activity, 87/83-84; and (3) residents who experience seizure activity continue to sustain injuries of varying magnitude, 87/83.
In one sense, any seizure activity is an emergency. True status epilepticus, however, presents special concerns not only because of the seizure and its associated loss of consciousness, but also because of the potential to compromise an individual's respiratory status and the ability to oxygenate the tissues of the brain and other vital organs. 49/235; 36/50-61; 81/17. The longer the seizure activity persists, the more difficult it is to control with medication. 81/141. On the other hand, most seizures spontaneously cease within a few minutes. 36/201. A seizure that lasts one, two or three minutes and then ends with the resident responding, while clinically significant, is not an emergency situation, 81/34. To further complicate the assessment of status epilepticus and its treatment, neither the onset nor the duration of a seizure can be predicted. Exh. 1107, p. 854; 81/33, 119-20.

stantial deviation from acceptable professional standards. 36/55; Exh. 1107. The Commonwealth responded with evidence from Dr. Chamovitz, the Center's consulting neurologist, that the Center is not licensed to provide intravenous therapy to its patients (64/171-2; Exh. 633 (1-19-93), pp. 25-26)), but that the treatment provided for residents in status epilepticus comported with acceptable medical treatment
On rebuttal, Dr. Coulter, also a neurologist, emphasized the deficiency in the Center's treatment of status by reference to a protocol recommended by the Epilepsy Foundation of America (EFA) stating that 'intramuscular therapy has no place treating status epilepticus or seizures in general" Exh. 1107/856. Dr. Coulter explained that the treatment protocol "pull[ed] together for the general medical community what neurologists have known for ten or fifteen years." 81/24. Dr. Coulter noted that although the EFA treatment protocol recommendation was not new, it had been recently codified and published in the August 18,1993 Journal of the American Medical Association. 81/64. He noted that neurologists are the medical professionals most qualified to treat status epilepticus, and that the thrust of the EFA treatment protocol recommendation was for other medical practitioners who encountered patients in status. 81/18. The protocol recommendation was published in the JAMA for that reason—"the intent was to put it in a place where all general physicians would see it ..." 81/19.

Against this backdrop, I must determine whether the Center's care of its residents with status epilepticus constitutes a substantial deviation from acceptable professional standards. Dr. Alvarez, an expert neurologist for the United States, testified that the Center's treatment of status epilepticus— which consists of observation and monitoring, the administration of oral or intramuscular anticonvulsants pursuant to a physician's order, and ambulance transportation to a hospital—is not acceptable treatment. Dr. Alvarez testified that the most acceptable treatment for status epilepticus is the use of intravenous Valium, and that the intramuscular administration of anticonvulsants is a sub-

The primary care physicians at the Center who ordered the intramuscular administration of anticonvulsants are not neurologists, but general practitioners. This is the audience the EFA treatment protocol was hoping to reach. As Dr. Coulter's testimony and the EFA treatment protocol itself establish, the "[t]reatment of status epilepticus varie[d], and archaic therapies with sedatives, insufficient doses, and intramuscular administration [were] still practiced in some areas." 81/1825; Exh. 1107/854. As such, there was a tacit acknowledgment within the medical community that the protocol for the treatment of status epilepticus among medical practitioners, other than neurologists, before

U.S. v. COM. OF PENNSYLVANIA

593

C1UMM2 F-Supp. 3*3 (W.D.Pa. IMS)

the publication of the EFA treatment proto- 81/59. Once a determination has been made

col in August of 1993, was anything but clear. that the resident requires treatment that

81/18, 25; see also 48/118-21 (Dr. Kastner's cannot be rendered at the Center, ambulance

testimony regarding confusion in medical lit- transportation is appropriate. 49/231-34.

erature about treatment of status epilepti- The Center's contract with an ambulance

cus)."

association provides access to practitioners

[37] As a result, the direction by the Center's primary care physicians to administer anticonvulsants intramuscularly to treat

licensed to administer advanced life support services in conjunction with a physician from one of the local hospitals. 64/98-99."

status epUepticus was made pursuant to an Dr. Alvarez also challenged as deficient the

exercise of professional judgment that had regular neurologic care for the residents per-

some basis in accepted professional practice taining to the administration of anticonvul-

among general practitioners at that time. sants. Dr. Alvarez alleged that there were

The Center's administration of anticonvul- too many residents on multiple anticonvul-

sants intramuscularly for the treatment of sants, despite the fact that they had few

status epilepticus during the period for which seizures or were experiencing side effects.

testimony was offered did not violate consti- 36/114. It is undisputed that the acceptable

tutional minimum standards.17

standard for the treatment of seizures is the

The Center's treatment of status epilepticus also includes observation and monitoring of the resident, and ambulance transportation to a hospital. Both Dr. Chamovitz and Dr. Coulter testified that this is the accepted modality of treatment for their patients who reside at home. 49/231-34; 81/33. Inasmuch as the Center is the "home" for the residents, both of these interventions are acceptable professional practices. Moreover, the observation and monitoring of a resident would appear to be a necessary component for purposes of determining whether that

administration of the smallest dosage of anticonvulsant medications necessary to control seizures. 36/112; 48/126. However, if one anticonvulsant does not control an individual's seizures, another anticonvulsant may be added to the regime. If two anticonvulsants do not control the seizures, a third anticonvulsant may be added. Occasionally, if an individual's seizures still are not controlled, a fourth anticonvulsant may be added. 36/11213; 49/241. Dr. Alvarez admitted that he himself had some patients on four anticonvulsants to control their seizures. 36/149-50.

resident actually is in a state approaching status epUepticus, or has reached the point where additional services should be provided.

Dr. Alvarez supported his opinion that the Center had too many of its residents on multiple anticonvulsant medications by re-
activity, it is appropriate to call an ambulance.

16. I take judicial notice (Fed.ftEvid. 201) that the 1995 Physicians' Desk Reference provides that "[i]njectable valium is a useful adjunct in status epilepticus . . . and severe recurrent convulsive seizures." PDR, at 2077. The intravenous route is preferred, but if that route is impossible, the intramuscular route may be used. Id., at 2078.

81/33. According to these doctors, the "ten minute time frame" should serve as a point to access emergency services, because continuous seizure activity may develop into status epilepticus. 81/33. This facet of the Center's treatment of status epilepticus does not alter my decision regarding the constitutionality of treatment ren-

17. Intramuscularly administered Valium for the treatment of status epilepticus in the future may in fact constitute a departure from professional judgment inasmuch as it is now clear to the Center that this means of treatment has lost acceptance within the medical community. Rectal administration of anticonvulsants, however, appears to remain acceptable. 81/59; Exh. 1107.

dered up to the time of trial, because I have found the primary care physicians exercised acceptable professional judgment in the administration of intramuscular valium. This treatment necessarily has an impact on the physicians' decisions as to the appropriate time to summon emergency services. The various components of treatment for status epilepticus cannot be dissected and evaluated in a vacuum—particularly

18. Dr. Alvarez believed that the Center's decision to summon ambulance transportation was inadequate because it was usually delayed. 36/218. This was reiterated by Dr. Coulter on rebuttal, when he testified that after ten minutes of seizure

since it cannot be ascertained with any certitude in many of the situations when an ambulance should have been summoned.

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902 FEDERAL SUPPLEMENT

viewing the medication regime of residents on four anticonvulsants. See Exhs. 307(a) and 351(a). Dr. Alvarez noted that the recommendation of the consulting neurologist, Dr. Chamovitz, to reduce the dosage of certain anticonvulsants for these residents on four different medications had been ignored by the primary care physician.
In response to this testimony by Dr. Alvarez, however, Dr. Chamovitz explained that the decisions of the primary care physicians not to reduce the number of and dosages of anticonvulsants were acceptable professional practices. Dr. Chamovitz described the manner in which he discussed his recommendation with the primary care physicians, who ultimately implemented or rejected them, and that the rejection of his recommendation was based on the fact that the primary care physician was more familiar with the resident and aware of previous unsuccessful efforts to reduce the amount of medication needed to control a resident's seizure disorder. 49/241, 244-47. Dr. Chamovitz also testified regarding his confidence in the judgment of the primary care physicians, who although they were not neurologists, were very well versed in the treatment of seizures because 50% of the Center's population is epileptic. 49/245.
Dr. Alvarez opined that even though polypharmacy with four drugs may be acceptable in some circumstances, it should only be instituted for a short period of time and for no more than two months. 36/112-13. The United States contends that the Center's use of four anticonvulsants has gone on for years, as opposed to acceptable short periods of time. In response, Dr. Chamovitz testified that although treatment with four anticonvulsants is not desirable, it is acceptable practice. 49/241.
Significantly, the Center has a total of 312 residents with a diagnosis of epilepsy, Exh. HH, Table 6, of whom 240 are prescribed anticonvulsant medication. Of the 312 epileptic residents, 17.63% are treated with polypharmacy: 13.46% are treated with three

anticonvulsants and 4.17% treated with four anticonvulsants. Exh. HH, Table 6." In addition, the Center has unproved its treatment of seizures by reducing the number of anticonvulsants prescribed to control seizure activity. Dr. Kastner, a former Department of Justice consultant and a pediatrician who works with the developmentally disabled, testified that the Center's efforts to reduce polypharmacy started in 1990, shortly after the publication by researchers in the field of a protocol calling for such action. 48/110. The result of this effort was illustrated by Dr. j Kastner in a table documenting the treat- • ment from 1990 through 1992 of the epileptic residents for whom Dr. Shertz, one of the Center's primary care physicians, provided care. 48/109-10; Exh. HH, Table 7. Dr. Kastner opined that the "rate of polypharmacy is not high" at the Center. 48/111.
[38] Although it is preferable for residents with seizure disorders to be treated with less than four anticonvulsants where possible, I find that the administration of multiple anticonvulsants to some of the Center's residents does not itself constitute a violation of the residents' right to adequate neurological care. My role is not to decide whether adding this drug or continuing that one is the better course of treatment; rather, I am to evaluate whether the care provided met professionally accepted minimum standards. See Society for Good Will, 902 F.2d at 1090 ("In its inquiry, the district court should use expert testimony to identify 'substantial departures', but not to choose from among several professionally acceptable remedies."). In each case of polypharmacy, the decision to use an additional anticonvulsant was the result of the exercise of professional judgment that is consistent with acceptable professional standards. 49/247.
Dr. Alvarez also claimed that the regular neurologic care for the residents was deficient because the residents manifested too many side effects and no efforts were made to reduce the incidence of the side effects.

19. While the United States contends that these percentages are skewed by including in the calculations 72 residents who are no longer epileptic, 1 note that the United States' own expert. Dr. SuJkes. recommended to the Center that it

should have a neurologic consult for all residents who have a diagnosis of epilepsy, regardless of whether they experience active seizures. 64/8889.

US. v. COM. OF PENNSYLVANIA

595

C l u u W 3 F-Supp. MS (W.D.Fa. 199S)

36/120. According to Dr. Alvarez, a success- returned to the therapeutic range, and he

ful treatment for seizure disorders involves was discharged alert and improved. Exh.

obtaining control of an individual's seizures 468. See also Exhs. 462A (Charles S.), 372A

with the least amount of medication and with (Roberta H.), and 36/125-33 for other resi-

the fewest possible side effects. 36152. To dents with dilantin toxicity.

support his opinion that the residents manifested too many side effects from their anticonvulsant medications. Dr. Alvarez noted that Jeffrey K. continued to receive dosages of Depakote in an amount exceeding that recommended by the manufacturer, even though Dr. Chamovitz had questioned the high dosage. Exh. 393. Despite the high levels of Depakote, Jeffrey K.'s seizures were not controlled, and he was transferred to a local hospital for treatment Although his Depakote level was within the therapeutic range, Jeffrey K. had developed thrombocytopenia,20 a side effect of Depakote. In explaining the Center's care of Jeffrey K., Dr. Chamovitz testified that the treatment was acceptable because the high dosage was being administered in an effort to keep his blood level in the therapeutic range, in order to determine its effectiveness. 60/201-02.

Dr. Alvarez was critical of the care provided to Neil S. and these residents because, despite the manifestation of sedation and lethargy, common symptoms of Dilantin therapy, either no blood levels were obtained (ie., the residents' blood levels were not tested) or the anticonvulsant dosage was not adjusted in response to high blood levels. 36/127-32. Dr. Chamovitz testified that the blood levels are routinely monitored. But Dr. Chamovitz's testimony failed to establish why blood levels were not obtained when there is evidence of lethargy and sedation, or why the dosage of an anticonvulsant was not adjusted in light of facially toxic levels.11 The Center provided no explanation, through documentary evidence or otherwise, for why these anticonvulsants were continued without adjustment

Thus, for this patient, the high dosage was consistent with the treatment recommendation of the manufacturer.

[39] Although monitoring by observation and obtaining more frequent blood levels may be acceptable in some cases, in the

Dr. Alvarez also pointed to the case of Neil situations highlighted by Dr. Alvarez, there

S. 36/125-7. Dr. Alvarez noted the docu- is no indication that the Center's physicians

mentation of persistent lethargy over a peri- made any conscious decision whatsoever re-

od of months, and blood levels of Dilantin garding this aspect of treatment As a re-

which exceeded the upper limit of the thera- sult, professional judgment was not exer-

peutic range. Neil S. was eventually hospi- cised. For this reason, I find the Center's

talized, treated for an infection, and his Di- care in monitoring and responding to sedalantin dosage was reduced. His blood level tion caused by Dilantin s substantially devi-

20. Thrombocytopenia is a condition in which the circulating blood has an abnormally small number of platelets, the blood component which functions in clotting. Stedman's Medical Dictionary, 1596 (25th ed. 1990).
21. Dr. Chamovitz also explained that a Dilantin level may increase due to an infectious process or the dumping of Dilantin into the blood stream from soft tissues. 50/192, 193. 195. Although that testimony is relevant to understanding how a resident's Dilantin level may suddenly exceed the upper limit of the therapeutic range, it has no relevance to why the professional did not act to address a side effect that has become apparent
over a course of time, or a blood level that may
be toxic.
22. This finding pertains only to the Center's care as it relates to detecting and responding to the side effect of sedation produced by Dilantin. Al-

though reference is made in passing to other side effects, the record does not present any discussion of a failure to detect or respond to other side effects on a widespread basis, and I need not address it. Presumably, this is why Dr. Chamovitz testified about routine monitoring of liver enzymes and blood counts which may be adversely affected by anticonvulsant therapy. 49/244. I also note that this finding pertains to the anticonvulsant Dilantin. The record is inadequate to make a determination regarding the acceptability of the Center's detection and response to side effects produced by other anticonvulsants. See 84/28-32 (United States' proposed finding re: Center's failure to manage side effects and citation of seven residents. Five of whom suffered from Dilantin toxicity).

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902 FEDERAL SUPPLEMENT

ates from acceptable professional standards for patients with seizure disorders.
Injunctive relief in this action, however, is not warranted because the United States did not even attempt to establish that this lapse in the Center's neurological care was the result of the Commonwealth's "policy or custom" as implemented at the Center. See Graham, 473 U.S. at 166, 105 S.Ct at 3105 (in official-capacity suit, entity's "policy or custom" must have played a part in the violation of federal law). The United States' constitutional challenge to neurological care in this "official-capacity" action, therefore, fails as a matter of law.
The provision of regular neurologic care to the Center's residents also was faulted by Dr. Alvarez because the Center does not utilize videotaped EEGs. Dr. Alvarez explained that a videotaped E EG is a noninvasive diagnostic procedure that entails gluing electrodes to a patient's scalp, with the patient's brain activity then being recorded, while videotaping the patient If the videotape captures a seizure event, the physician may be able to determine (in some cases) by comparing the tracing of the brain's electrical activity and the patient's activity on the videotape, whether what is being observed is in fact seizure activity. 36/97-98. Such identification is helpful because the detection of pseudoseizure activity would obviate the need for trial or long term administration of anticonvulsant medication. 36/97.
[40,41] Dr. Alvarez's testimony clearly establishes that utilizing a videotaped EEG is one option, and is a course of treatment to which many in the medical community aspire. Other evidence presented at trial, however, revealed that other acceptable options exist within the medical community to determine if activity is seizure-related, including direct observation of seizure activity, prescribing medication and evaluating its effectiveness. 50/236. Deciding whether to perform a particular diagnostic study is a matter of professional judgment. 49/239; see also Exh. 633

(1-19-93V28-29.0 The fact that Dr. Chamovitz did not believe that he needed a videotaped EEG to validate the existence of seizure activity supports a finding that the Center exercised professional judgment in this regard. 49/239." Dr. Alvarez's opinion appears to be attributable to the fact that he espouses a newer school of thought But the adherence by a professional to the older of two widely-accepted schools of thought does not establish a failure to exerdae acceptable professional judgment
Finally, Dr. Alvarez opined that the Center's provision of neurological care was not proper, and therefore deficient, because i n dents who experienced seizure activity continued to sustain injuries of varying magnitude. 36/78-79. Dr. Alvarez testified that physical injuries are common with epileptics because the sudden loss of muscle tone during the seizure causes the epileptic to fall or hit objects. 36/76. Dr. Alvarez stated that an institution has the responsibility to provide an individualized plan of protection and prevention for epileptics who are prone to sustain injuries as a result of seizure activity. 36/78.
To support his opinion, Dr. Alvarez again cited examples of care for individual residents. For example, he noted the care provided to Barbara K_, who frequently sustained injuries as a result of seizure activity which caused her to "fall[ ] straight as a rock right on her face." 36/80; Exh. 611-A. Dr. Alvarez testified that her seizures occurred once or twice a month, that the use of a helmet was discussed at interdisciplinary team meetings, Exh. 268a, but that there was a substantial delay in obtaining one for her. He further noted that even when a helmet was procured for her, she continued to sustain injuries. 36/81-87, Exh. 392(c).
[42,43] The addressing of Barbara K's falls by an interdisciplinary team and the obtaining of protective gear illustrate that professional judgment was exercised on her

23. Dr. Alvarez found Dr. Chamoviu to be a competent neurologist. 36/159.
24. Indeed, Dr. Kastner believed that the "value of the EEC is over-estimated. . . " 48/165.

Some individuals with seizure activity have a normal EEG and some individuals without a seizure disorder have abnormal EECs. 49/240; 48/164-5; Exh. 633 (1-19-93), p. 28.

U.S. v. COM. OF PENNSYLVANIA

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Cite a* 902 F-Supp. S65 (W.D.P». 1993)

behalf.24 The record indicates that the delay [44,45] Dr. Alvarez' opinion that the

in obtaining the helmet was not due to any Center's care is constitutionally deficient

omission by the medical professionals at the Center, but rather was attributable to the Hurr-in Rights Committee, an independent body which must approve all restrictive devices placed on the residents. Exh. 392(a). Past efforts to use a helmet had been unsuccessful with this resident, and that factor may have contributed to the delay in its approval. Exh. 392(c), # 00203661.

based on the Center's alleged failure to use protective helmets, is not persuasive. As with the control of seizures through polypharmacy, there are tradeoffs in the use of physical restraints between protection from injury and freedom from restraint Because helmets are a restrictive measure and constitute an infringement of a resident's liberty interests if implemented, the right to be pro-

In addition, the continued occurrence of tected from harm due to seizure activity reinjuries after securing the helmet for Bar- quires such protection as may be reasonable

bara K. does not in and of itself indicate that in light of the liberty interest in freedom

professional judgment has not been exer- from unreasonable restraints. See Young-

cised. Instead, it indicates that a helmet berg, 457 U.S. at 316, 102 S.Ct at 2458. At

may not protect a resident from all possible the Center, the final decisionmaker with re-

injuries. 49/257; 50/187-88.

gard to implementing the use of a helmet is

Dr. Alvarez also cited the care of Ronald A. as an example of how the Center's provision of neurological care to prevent injuries from seizure activity was deficient Ronald A. sustained multiple cuts and bruises because of falls due to seizures, and at one point, the Pennsylvania Inspection of Care report noted Ronald's injuries and ques-

the Human Rights Committee—an independent body that conducts an evaluation and either approves or rejects the proposed restrictive device. Exh. 93. Because the Center utilizes this additional step to insure that professional standards are followed before restraining an individual, I do not find the neurological care deficient for those instances

tioned whether a helmet had been consid- when a helmet has not been approved, or

ered. 36/87-91; Exhs. 66 and 268(b). Ron- approved as quickly as Dr. Alvarez would

ald A.'s seizures were not as frequent as have liked.

Barbara K.'s seizures, however (compare

Exhs. 268a and 268b), occurring on a sporadic basis, with periods of four to five months between seizure activity. Dr. Alvarez opined that in light of the Inspection of Care report and the Center's documentation, the Center was aware of the seizure related injuries and failed to utilize a protective helmet See also Exh. 67 (Pennsylvania Inspection of Care recommending helmet tolerance in view of three uncontrolled seizures and injuries for resident Glenn A.).2*

[46] The United States' arguments with respect to this aspect of the Center's neurological care suffer from an additional flaw. For a number of reasons, the frequency and severity of injuries sustained by the residents who have seizure disorders—disorders which obviously are difficult to control—cannot of themselves constitute sufficient evidence to establish a lack of professional judgment The evidence showed that a protective helmet like a football helmet, will re-

23. For example, in an incident report of an injury sustained after Barbara K. began wearing the helmet, an RSAS suggested that Barbara K. should be kept in the T.V. room for the administration of her afternoon medications. This change was suggested because it appeared that her afternoon seizure activity often was triggered by her physical movement from the T.V. room to the day room for her medications. The QMRP agreed to implement the suggestion. Exh. 392(c). This is another exercise of professional judgment, as it manifests an assessment of the situation, and a decision to incorporate the suggestion into her plan of care. Similarly, elbow

pads were obtained for Barbara K. to further decrease the incidence of injuries. Exh. 392(b), # 00600458.
26. Dr. Alvarez also noted several other residents who sustained injuries as a result of their seizure activity. According to Dr. Alvarez, some injuries necessitated sutures. The focus of Dr. Alvarez' opinion centered on the failure to utilize helmets generally, and the failure to utilize helmets that would protect the residents from injury. 36/94, 154.

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902 FEDERAL SUPPLEMENT

spond to the impact it receives and cannot provide complete protection. 50/188. The helmet may shift and injuries may occur despite the helmet's presence. In addition, helmets may not be able to prevent injuries that result from contact with a portion of the head not intended to be protected by the helmet See Exh. 392b, # 00590535 (injury from impact with flat block held by resident at time of seizure).
Seizures by their nature are unpredictable, and injuries can occur when helmets have been removed for reasons of hygiene and for sleeping. See Exh. 392b, #00001073 (seizure occurred in bathroom before bathing). All that Dr. Alvarez' testimony established was the frequency of injuries. It did not include discussion of either the nature of the injuries or why the Center's care for those residents failed to meet minimum professional standards. See 36/92-94. The mere quantification of injuries, without more, does not establish the failure to exercise professional judgment.
2. PSYCHIATRIC CARE

chiatrist consultant (Exh. 616, exh. 1; 64/81), and she provided psychiatric services to the Center twice each month during two eighthour sessions. The services were provided to residents pursuant to referrals from the primary care physicians and the interdisciplinary team. Dr. Goldschmidt's psychiatric services consisted of psychiatric evaluations, management of psychotropic medications, and supervision of the screening for side effects such as tardive dyskinesia. Exh. 616, exh. 3; 64/80."
The Center employs Dr. Stratton, a psychologist as the Director of Psychology. 62/220-21. Dr. Stratton supervises the psychological services provided to the residents by eight psychological service associates (PSAs). 62/220-1; 51/19. Six of the PSAs have master's degrees and the remaining two have bachelor's degrees. 37/15-16. The PSAs work Mondays through Fridays during daylight hours and are not available on evenings and weekends. 37/16. Psychological services can be obtained during off hours by contacting the professional on call. 51/20.

[47] According to the United States, the defendants' provision of psychiatric services is constitutionally inadequate because the Center: (1) fails to provide adequate psychiatric assessments; (2) fails to provide adequate psychiatric diagnoses; (3) fails to provide adequate psychiatric treatment; and (4) fails to provide adequate monitoring of the psychiatric treatment 84/IX. The right of an institutionalized mentally retarded person to receive adequate medical care, as acknowledged by the Supreme Court in Youngberg, 457 U.S. at 315, 102 S.Ct. at 2457-58, must include provision for psychiatric care, where needed.
a. Psychiatric Assessment Techniques
At the Center, psychiatric care is provided by a contract psychiatrist consultant a psychology department and the direct care staff. From 1986 to July 1993, Dr. Pauline Golds-hmidt was the Center's contract psy-

The PSAs have varying caseloads. Five have caseloads of forty-eight residents, two have caseloads of seventy-two residents, and one has a caseload of ninety-six residents. 37/15. Some psychological services are performed by nonpsychology staff. 51/135.
The United States contends that accepted professional practice requires the utilization of a disciplined medical approach to the provision of adequate psychiatric care. This approach entails obtaining an assessment of the resident rendering a diagnosis, formulating a treatment plan, monitoring the treatment plan for its effectiveness, and revising it as indicated. 38/63-64. The United States asserts that the Center's psychiatric assessments are constitutionally deficient because the Center fails to employ this disciplined medical model. According to the United States' experts, the behavioral data and information collected by the Center is either non-existent or inadequate, and the psychiat-

27. Tardive dyskinesia (TD) is an irreversible side effect of certain antipsychotic medications. 50/34 TD produces an involuntary movement disorder (50/34), and the onset of this disorder is insidious, usually occurring only after the anti-

psychotic drug has been administered for years. 38/67. The disorder is manifested by tremors of the face, mouth, and hands as a result of a change in the brain's chemistry. 49/12

U.S. v. COM. OF PENNSYLVANIA

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Cite u 902 TSupp. 3*3 (W.D.P*. 1993)

ric consults are chaotic, disorganized, undisci- it tabulates the frequency of the target be-

plined and too infrequent 84/IX/4-15.

havior by noting whether the target behavior

Dr. Fans, a neuropsychiatrist who specializes in the psychological care of mentally retarded individuals, testified that the Center's psychiatric assessments are inadequate because 100% of the records he reviewed were deficient. 38/79, 85, 88. Dr. Fans explained that a psychiatrist usually sees an individual because of a particular concern which, in a population like that of the Center, is typically labeled as a "target behavior." In a setting such as the Center, the target

occurred during a particular hour interval. The UDCS does not necessarily denote the number of times the target behavior occurs during that hour interval, nor does the UDCS account for the intensity or duration of the target behavior. 38/76. Additionally, the UDCS is geared to deal with only one target behavior. As a result, if there is more than one target behavior, or if other behavioral difficulties are present, it is difficult to distinguish this on the UDCS. 38/77.

behavior "presents" (ie., is manifested) as aggression or self-injurious behavior (SIB). 38/71. In addition to the target behavior, other behavioral difficulties may be present 38/72. A proper psychiatric assessment involves the collection of information from an interdisciplinary team, including doctors, staff, and other personnel, in an effort to gain a thorough picture of the resident 38/71. The team should gather information regarding the resident's symptoms, his behavior and his functioning with others. 49/144-45. Such information should detail the frequency, intensity and duration of the target behavior, as well as any other behavioral difficulties. 38/73. Objective information of this nature is essential for an assessment of a mentally retarded individual, since subjective symptoms may not be communicated effectively. 49/145. An assessment should also include information regarding the resident's past psychiatric history, past medication history, as well as the individual's past and present medical history. Such longitudinal data may facilitate the approach to treatment 38/74. Dr. Fans claimed that these components of a psychiatric assessment are universally accepted in the psychiatric profession. 38/75.

Dr. Fans next identified deficiencies with the psychiatric consultations that allegedly contribute to the overall inadequacy of the assessments. He observed some of the psychiatric assessments performed by Dr. Goldschmidt and testified that the assessments were chaotic, disorganized and totally lacking in the conveyance of relevant information to the psychiatrist 38/77. In particular, Dr. Fans stated that behavioral information that was in the chart was not conveyed to the psychiatrist 38/78. In addition, according to Dr. Fans, Dr. Goldschmidt had related that she did not feel that she had sufficient time to complete a psychiatric assessment 38/82.
Dr. Lubetsky, a psychiatrist and Director of the John Merck Multiple Disabilities Program, testified as one of the Center's expert witnesses in this area. He also had observed the psychiatric consultations of Dr. Goldschmidt According to Dr. Lubetsky, each of Dr. Goldschmidt's consultations was performed at the resident's living unit in the presence of the resident's psychologist QMRP, primary care physician (if possible), and a member of the direct care staff. Often these consultations were attended by the Center's pharmacist. 49/109-10. Dr. Lubet-

Dr. Fans testified that the Center's assess- sky testified further that Dr. Goldschmidt

ments are inadequate for a number of rea- then obtained information from the staff

sons. 38/75. First, Dr. Fans found the as- members present concerning the resident's

sessments deficient in that the Center col- behaviors, daily activities, and medications.

lects the information for a psychiatric assess- Dr. Lubetsky noted that if Dr. Goldschmidt

ment on a universal data collection sheet did not receive enough information, she

(UDCS). 38/76. The UDCS is the data would ask questions. 49/112-13. In light of

collection tool used to chart all behaviors for these observations, Dr. Lubetsky concluded

all of the residents. 38/76. It is designed to that the consultations were adequate and

collect a single type of interval data; that is, satisfied professional standards.

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902 FEDERAL SUPPLEMENT

Dr. Lubetaky agreed with Dr. Fans that there was room for improvement in two areas. First, he opined that completing the consultation form before the consultation would improve tne process. However, he did not believe that this flaw impaired Dr. Goldschmidt's ability to make a professional judgment 49/114. Second, Dr. Lubetsky stated that documentation of the psychiatrist's "thought processes" during the consultation should be improved. According to Dr. Lubetsky, the events that occurred at the consult were not well-summarized in the chart Nevertheless, Dr. Lubetsky concluded that this deficiency did not impair Dr. Goldschmidt's clinical treatment or preclude the exercise of professional judgment and that Dr. Goldschmidt's reliance on information orally-conveyed at the consultation was not an impediment to the exercise of her professional judgment. He observed that psychiatrists in private practice often rely entirely on such information to render a professional judgment in the treatment of their clients. 49/114-15, 118.
Dr. Lubetsky's observations were confirmed by Dr. Hauser, another psychiatrist who explained that the Center utilized an interdisciplinary team approach in providing psychiatric care. 50/27. Like Dr. Lubetsky, Dr. Hauser found Dr. Goldschmidt's written documentation of her consults to be sparse, and provided the Center with a form that he had created for purposes of documenting his own psychiatric consultations. The Center has since adopted the form and incorporated it into the psychiatric consultations. 50/5860. Dr. Hauser noted that by providing his own form, he was not implying that the Center's care was deficient in this regard, but only that it was an area that could be improved. 50/60.
Dr. Hauser also evaluated the collection of data regarding a resident's target behaviors. He noted that the Center collects some hard data, and that this data is used at the consul-

tations. 50/65. According to Dr. Hauser, hard data is not an essential resource for the psychiatrist because subjective data from the resident and the staff also are obtained at the consultation. Dr. Hauser testified that reliance on subjective data is consistent with acceptable professional standards, because most psychiatrists rarely have hard data available to them. 50/64. Dr. Hauser unequivocably testified that professional judgment can be exercised without hard data to formulate an appropriate treatment plan, and that Dr. Goldschmidt received sufficient information to enable her to exercise professional judgment 50/63, 68.
According to Dr. Hauser, the characterization of Dr. Goldschmidt's consultations as chaotic and disorganized probably resulted from the fact that the resident himself usually was present at the consult Dr. Hauser, however, did not believe that the consultations were chaotic or disorganized. He noted that the presence of the resident at a consultation may, in fact, be an effective means of understanding the residents' behaviors. 50/106. Dr. Hauser conceded that the rooms where the consultations occurred were not ideally suited for the procedures, and that staff seemed to be always coming and going, much like consultations he has completed in group homes. 50/107.
Despite these sub-optimal conditions, Dr. Hauser found that Dr. Goldschmidt was able to gather and process data, talk with staff about treatment and render a recommendation. 50/68-69, 108. He further noted that in his discussion with Dr. Goldschmidt she reported that she did have an adequate amount of time in which to perform her consultations.28 50/68.
[48] Dr. Lubetsky's and Dr. Hauser's opinions that the psychiatric assessments at the Center meet acceptable minimum profes-

28. With respect to the issue of whether Dr. Goldschmidt is afforded sufficient time for her consultations, the United States points to testimony
from Dr. Fahs, Dr. Lubetsky, Dr. Hauser and Dr.
Goldschmidt in support of its position that more time at the Center would improve psychiatric services. It goes without saying that it would benefit the residents if Dr. Goldschmidt could

spend more time at the Center, but the issue in this litigation is whether the care provided is constitutionally deficient, not whether it could be improved. My review of the record fails to identify any evidence indicating that the two monthly, eight-hour sessions at the Center constitute a substantial deviation from accepted professional practice.

U.S. v. COM. OF PENNSYLVANIA

601

CUc u 902 F-Svipp. 363 (W.D.P». 1993)
sional standards are persuasive.2* I find that changes were made. Instead, Dr. Fahs

accepted professional practice includes use of found that considerations of the differential

assessments completed by an interdiscipli- diagnostic possibilities were scattered

nary team, collecting both objective data and throughout the chart 38/85-87. The United

subjective data. Because psychiatric assess- States points out that Pennsylvania's Inspec-

ments at the Center are consistent with ac- tion of Care Survey also found this area

cepted professional practice, they evidence deficient in its October 21, 1991 survey.

the exercise of professional judgment, and do 38/90; Exh. 67/2-B.

not violate the Constitution. 50/27.

Dr. Fahs contends that the Center's failure

b. Differential Diagnoses

to employ the differential diagnosis method is evident from the fact that diagnoses are

Dr. Fahs also testified that the Center fails to provide adequate psychiatric diagnoses for its residents because it does not properly formulate "differential diagnoses" for the residents. A differential diagnosis is the result of an evaluation which considers infor-

added or changed after treatment already has been initiated. 38/87. According to Dr. Fahs, the diagnosis normally precedes the treatment selection, and a faulty diagnosis results in a high probability that an improper treatment will be selected. 38/87, 89.

mation obtained in the assessment phase to Dr. Fahs cited the diagnoses for several

identify a resident's possible disorders. residents as examples of diagnoses which

3&/160-61. After identifying the possible dis- substantially depart from accepted profes-

orders, a practitioner then considers which sional practice. He pointed to the diagnosis

particular disorder is most likely that resi- of schizophrenia for one profoundly retarded

dent's actual diagnosis. 50/71; 49/147. That resident who had self injurious behavior

is, the practitioner gives full consideration to (SIB) and aggressive behavior, and noted

the alternative hypotheses and selects the that virtually universal agreement exists

most likely cause for the resident's problem. within the medical community that it is im-

50/71.

possible to make a diagnosis of schizophrenia

The utilization of the differential diagnosis is an accepted practice in psychiatry. 38/85; 50/71. Initially, the process is "mental" in nature. 50/71. After completion of this thought process, however, standard professional practice requires some documentation in support of the diagnosis. 50/71. The United States asserts that the Center's care is deficient in this regard because the records do not contain documentation concerning the alternative diagnoses and the basis

in a profoundly retarded person. 38/102. Dr. Fahs found no support for the diagnosis of schizophrenia in that resident's record except for his SIB and aggression toward others. 38/103. Another resident, Gary K., "seemed to be depressed," but had only a "so-called" diagnosis of aggressive behavior. 38/107. Dr. Fahs stated that aggression is not a diagnosis, and that the diagnosis of depression had never been articulated in the resident's chart 38/107-08.

for the selection of the working diagnosis. The case of Darren W. also was cited as an

38/85. Dr. Fahs testified that Dr. Gold- example of a disorganized diagnostic process.

schmidt's documentation was too succinct, Darren W. was being treated for akathisia "

and that it failed to explain why alternative with Inderal. The medication was abruptly

diagnoses were not applicable and/or why discontinued, however, after a diagnosis of

29. Dr. Lubetsky's candor was telling. He had never before testified as an expert, and he candidly identified weaknesses in the Center's psychiatric practice—weaknesses which the United States stressed in its efforts to characterize the care provided at the Center as unconstitutional. The United States ignores the fact that the weaknesses identified by Dr. Lubetsky were areas that he said could be improved. They did not constitute substantial departures from acceptable pro-

fessional practices, and Dr. Hauser confirmed Dr. Lubetsky's findings.
30. Dr. Fahs defined "akathisia" as a neuropsychiatric condition marked by excessive restlessness, typically manifested by an individual engaged in a significant amount of general movement and pacing. The condition also may be associated with overactiviry, aggression and other behavioral difficulties. 38/121.

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902 FEDERAL SUPPLEMENT

asthma was made. Dr. Fans criticized this diagnosis because asthma typically is a childhood disorder. 38/121-28. Darren W.'s condition deteriorated after this abrupt change, and he was then diagnosed with obsessive compulsive disorder (OCD). Dr. Fahs claimed that there was no supporting evidence for the OCD diagnosis. 38/128. He further testified that no supporting evidence existed for the diagnosis of OCD in any of the other residents receiving Anafranil, a medication used to treat OCD. 38/129.
Dr. Lubetsky explained in reply that psychiatric diagnosis of the developmentally disabled is very difficult 49/119. Indeed, diagnosis of psychiatric conditions is difficult in a population that is not developmentally disabled. See Heller v. Doe, — U.S. ,
, 113 S.Ct 2637, 2644, 125 L.Ed.2d 257 (1993). Dr. Lubetsky explained:
It's very difficult to use the DSM-3, which is a guideline for making psychiatric diagnoses; . . . it is very difficult to use [the DSM-3] in the developmentally disabled population, mainly because of the cognitive impairment, the lower functioning I.Q.s, and the nonverbal nature of many of the clients; so it is very difficult to make a diagnosis.
The best attempt is to utilize those guidelines and see if you can come up with a differential diagnosis which is a variety of considerations. Many times the best you can come up with is looking at the symptoms and attempting to duster the symptoms to give you some guide to make a choice about medication.
In addition, you're always working through the diagnostic process. As you are seeing clients over years, your opinion may change about their diagnosis depending on the pattern of their symptoms, the pattern of behaviors. In response to medication. In general, psychiatry—what you're taught is to try to make the best diagnosis you can and try not to make your diagnosis based on the response to a medication.
But I think most physicians will also agree that they do look at the response to medication to help in re-thinking whether

a diagnosis was accurate or whether
there's another diagnosis to consider.
49/119-20.
[49] Taken together, all of the experts' testimony of Dr. Lubetsky and Dr. Hauser provides strong evidence for the proposition that rendering a differential diagnosis for the mentally retarded is more of an art than a science. Against this backdrop, Dr. Fahs' specific cases of allegedly flawed differential diagnoses are, at worst, indicative of erroneous psychiatric evaluations, not constitutional violations.
Dr. Hauser explained that it is an accepted national standard in psychiatry that a diagnosis follow the classifications of the American Psychiatric Association's Diagnostic and Statistical Manual, 3rd edition revised, DSM-3-R. 50/36. Unfortunately, the DSM-3-R was not designed for specific use with developmentally disabled persons, who often are nonverbal. 50/37. Nevertheless, Dr. Hauser found that pressure exists at the Center to use the DSM-3-R coded diagnoses for purposes of "inspection surveys" which are conducted on a regular basis by the Pennsylvania Department of Welfare and other agencies for purposes of accreditation and licensure (Medicare, Medicaid, etc.). 50/40. The DSM-3-R is the most current DSM, and certain diagnostic terms used in earlier editions of the DSM have become outdated. This outdated nomenclature, however, may continue to be used for certain residents. 50/41.
The allegedly erroneous diagnosis of the resident with schizophrenia, though outdated according to Hauser, was generally consistent with the first Diagnostic and Statistical Manual and the liberal application of the diagnosis of schizophrenia for anyone manifesting a psychosis. 50/89-90. That is, the diagnosis is "a lingering artifact of the historical context" of diagnosing patients. 50/92. Dr. Hauser also observed that the persistence in the diagnosis of schizophrenia may be due to the fact that DSM-3-R does not account for persons who no longer can be diagnosed as schizophrenic because of their limited cognitive functioning. 50/90. In any event, Dr. Hauser was not troubled by the persistence of this diagnosis at the Center,

U.S. v. COM. OF PENNSYLVANIA

603

Cllt ai 902 F-Supp. 563 (W.D.Pa. IMS)

because the treatment for schizophrenia was though he could not provide the exact num-

appropriate treatment for that resident, who ber) had this diagnosis (3S465-66), Dr. Hau-

under DSM-3-R would be diagnosed with ser explained that one of the exciting devel-

atypical psychosis. 50/91. The use of the opments in the field of psychiatry is the

outdated nomenclature, though perhaps not increasing recognition of OCD as a disorder

technically accurate, did not detrimentally affecting millions of individuals. 50/112. Dr.

affect the residents' treatment.

Hauser then explained that if the disorder

[SO] In contrast to Dr. Fans'finding,Dr. Lubetsky testified that Gary K.'s chart did include the diagnosis of depression. 49/124. Nevertheless, even if the chart did not include that diagnosis, the documentation of the resident's behavior was indicative of depression, and he was treated with an antidepressant in a low dose in an effort not to precipitate seizure activity. 49/124-5;

OCD is widespread in the general population, it is logical that this disorder will be more prevalent among mentally retarded individuals. 50/112-13. Consequently, when Dr. Hauser sees a mentally retarded patient with "ritualistic behavior" (ic, behavior that occurs over and over again), he is willing to try treatment with a drug used for OCD. 50/114."

3^189. This course was consistent with Dr. Lubetsky's observation that, at times, the best that one can do is look at the symptoms, and attempt to "cluster" the symptoms in order to find some guide to selecting a medication to treat that individual. Again, the Center's treatment of the resident was consistent with acceptable psychiatric practice, and the constitutional standard is concerned with the care provided to the residents, not conformity of nomenclature to the latest APA revision of the DSM.

[51] I find that it is within acceptable professional practice for a complete differential diagnosis to be constructed from documentation found throughout a resident's chart This, in fact, is what Dr. Fahs found: "a piece here in the record, a piece here in the record, a piece here in the record . . . " 3#85-6. Moreover, a correct differential diagnosis may be dynamic, initially eluding the practitioner and only becoming clear as time passes and additional data is available to consider. For this reason, treatment may

According to Dr. Hauser, Darren W.'s have to be geared to the symptoms present-

asthma diagnosis and the discontinuation of ed, as opposed to treatment of a diagnosis

the medication Inderal was not improper. consistent with the DSM-3-R.

Typically, asthma is considered a childhood

ailment, but the diagnosis actually L» consis- [52] Documentation alone cannot estab-

tent with the diagnosis of a bronchospastic lish that there is a deficiency that reaches

condition, regardless of one's age. As Dr. constitutional dimensions. The focus must

Hauser explained, Inderal may have the side be on whether professional judgment was

effect of causing bronchospasms, which exercised, that is, whether the practitioner

would exacerbate an individual's asthmatic or has considered the options and has made a

other bronchospastic condition. As a result, differential psychiatric diagnosis for a resi-

as Dr. Fahs conceded on cross-examination dent that is in keeping with minimal profes-

(38/141-42), Inderal should be discontinued sional standards. I find the Center meets

to avoid precipitating any bronchospasms, re- this requirement.

gardless of the risk of any withdrawal reac- I credit the testimony of Dr. Lubetsky and

tion that may occur. 50/108-11.

agree that the thought processes in this area

Dr. Hauser also testified that he did not of care at the Center are evident from the

find the diagnosis of OCD for Darren W. or live consultations, although those consulta-

other residents troublesome. While Dr. tions could often be better documented.

Fahs claimed that too many residents (al- 49/114. As Dr. Lubetsky pointed out, the

31. Darren W. s behavior described by Dr. Fahs included overactiviry pica (persistence in eating that which is inedible), severe rectal digging and smearing of his feces—behavior that was persis-

tent enough to require resort to the use of a jumpsuit to preclude further rectal digging 38/125.

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902 FEDERAL SUPPLEMENT

mini-staffing notes in the charts detail why changes are made, as well as the status of the residents' care. 49/115. Accordingly, I find that the live consultations and the treatment process itself do not fall below accepted professional standards.12 While I agree that the Center's documentation of the differential diagnosis can and should be improved, the problems with documentation do not prohibit the exercise of professional judgment
c. Psychiatric Treatment
The United States alleges that the Center fails to provide adequate psychiatric treatment in these respects: (1) the decisionmaking process for treatment is inadequate because different treatment options are inadequately considered and there is a poor coordination of treatment efforts; (2) inappropriate treatment selection unnecessarily exposes residents to the risks of drug side effects and unnecessary chemical restraint; and (3) the Center fails to provide adequate and appropriate behavioral programs at the treatment stage. See 83/K-22-29.
The United States relies heavily upon Dr. Fahs' testimony in support of its first and third contentions.15 Dr. Fahs testified that treatment efforts include behavioral treatment, drug therapy, or manipulation of an individual's social environment. More than one treatment may be appropriate at any particular time. 38/91. Thus, consideration of the available treatment modalities should result in the selection of the "treatment which has the best benefit to risk ratio." 38/91. Ideally, treatment changes should not coincide with other changes in a resident's environment, medication regimen or behavior programming. 38/105-06.
Dr. Fahs claimed that some of the Center's documentation gave the illusion that different treatment options were weighed, but he

found that, generally, this was not the case. 38/92-93. According to Dr. Fahs, behavioral programs were not considered, and drug changes were not coordinated with program changes, and vice versa. 38/93. Dr. Fahs testified that, instead of careful consideration of treatment options, the Center relied on the diagnosis as justifying the treatment 38/93. He further believed that the residents responded only by luck, and that they would continue to suffer from behavioral difficulties. 38/93.*
Dr. Fahs, Dr. Hauser and Dr. Lubetsky all agreed that non-drug treatment should be provided together with medication in treating psychiatric impairments. 38/113; 50/46; 49/148-49. Dr. Fahs explained that nondrug treatments should be selected before drug treatment if the benefit from each is equal because they do not pose the risk of side effects. 38/92, 169. Dr. Hauser agreed that the premature initiation of medication is a red flag in the field of psychiatry. 50/46.
I find that Dr. Hauser's testimony about trends in treatment at the Center to be credible evidence of acceptable professional judgment in psychiatric treatment Dr. Hauser testified that the Center was: (1) reducing the number of antipsychotic medications prescribed, as well as reducing the dosage when used, 50/24; (2) administering only those medications which are necessary and avoiding the administration of multiple psychotropic medications, 50/33; (3) prescribing medications in concordance with the diagnosis, 50/36; (4) prescribing alternative medications to treat psychiatric manifestations, 50/26; (5) decreasing the restrictiveness of the intervention used to treat psychiatric impairments, 50/27; and (6) resorting to an interdisciplinary team process to provide

32. In making these findings. I also credit Dr. Hauler's opinion that the psychiatric services at the Center are within the range of accepted professional standards. 50/67, 128.
33. I will address the United States' first and last contentions at the same time, because behavioral programs actually constitute one component of the treatment options that, according to the United States, are neither considered nor coordinated with other treatment efforts at the Center.

34. The United States further submits that the Center has been cited repeatedly for its failure to integrate adequate behavior programs with its use of psychotropic medications, and even Dr. Goldschmidt noted that certain PSAs at the Center rely on psychotropic medications. Exh. 615/59. Finally, the United States relies upon Dr. Fahs' testimony regarding the alleged inadequacy of the treatment of six residents at the Center. See 83/TX-32-39.

U.S. v. COM. OF PENNSYLVANIA

605

psychiatric care, 5O/27.1*

CIMM902 F.Supp. 363 (W.D.Pt. 1993)
other hand, tardive dyskinesia (TD) is known

[53,54] The exercise of professional judgment in the selection of the proper treatment for a resident "requires thinking" about the modalities of treatment, and administering treatment that meets minimum professional standards. 38/91. The Center meets this requirement. Its weakness is its documentation of the process, a weakness that is not in dispute. But, even in the face of this shortcoming, the Center still provides psychi-

to afflict some residents at the Center, but the record in this case contains no evidence to suggest that residents actually in need of medication who have this condition became afflicted as the result of the unnecessary administration of antipsychotic medication. Instead, the United States' evidence on this issue pertains solely to the Center's alleged inadequacy in screening to detect this condition, a matter discussed infra."

atric care that meets minimum professional Dr. Fahs asserts that a determination re-

standards.1*

garding the adequacy of the Center's psychi-

As noted above, the United States also contends that inappropriate treatment selection unnecessarily exposes the Center's residents to the risks of drug side effects. Dr. Fahs testified that accepted professional standards mandate that prescriptions for antipsychotic medications should be avoided if they are not indicated. 38/65. Dr. Hauser agreed, and noted that the current trend in the field of psychiatry is to avoid unnecessary antipsychotic medication in order to guard against the development of side effects such as tardive dyskinesia, neuroleptic malignant syndrome, and extrapyramidal syndrome. 50/24.
While the United States contends that res-

atric care cannot be based on just the raw percentage of residents on psychotropic drugs. Instead, he believes that the "only way the care could be determined is by looking at each individual, each individual client" 38/135. Dr. Fahs further testified that the Center's Behavioral Intervention Committee (BIC) and the 30-day review, elaborate "convoluted mechanisms'* established to guard against inappropriate psychotropic drug use, fail to safeguard the residents. These procedural safeguards, according to Dr. Fahs, actually were just rote exercises that entailed minimal review of a resident's psychological status and the need for chemical treatment. 38/135-37.

idents are unnecessarily exposed to side ef- Although Dr. Fahs rejected the relevance

fects such as neuroleptic malignant syn- of the Center's raw percentage of residents

drome, it fails to cite one example of a resi- on psychotropic medications, I do not Dr.

dent who developed this syndrome. On the Hauser testified that percentages are "just

35. Dr. Hauser specifically noted that the Center used the interdisciplinary team approach (50/27), as evidenced not only by having the professional disciplines and direct care staff present during a psychiatric consultation but also by the use of a 30-day review, the behavior intervention committee, and the Human Rights Committee. Consideration by the team of the treatment options is evidenced by the fact that the Center has consistently reduced the dosage of antipsychotics prescribed, as well as the number of residents who receive them. 50/24-25. In addition, the Center has initiated treatment with alternative medications. 50/26-27.
36. I find the opinions rendered by Dr. Hauser and Dr. Lubetsky highly persuasive and credible. These experts attempted to maintain an objective analysis. Both recognized that few institutions are perfect, and both readily noted the documentation as the Centers weakness. The lack of documentation, however, did not preclude them from proceeding with their analysis of the psy-

chiatric care provided to the residents. Dr. Fahs. on the other hand, essentially concluded that the lack of documentation indicated that deficient psychiatric care was being provided to the residents, and he did not take the additional (and necessary) step of determining whether the underlying process was as flawed as the documentation. In addition, Dr. Fahs reviewed thirty to forty records in rendering his opinion in this area, but he highlighted the care of only six residents. Although Dr. Fahs' testimony indicates his disagreement with the treatment chosen for these six residents, it does not support a finding that the processes for providing psychiatric care at the Center are generally flawed or that professional judgment is not being exercised.
37. The United States' position with respect to the side effect of extrapyramidal syndrome is, at best, a makeweight argument. The United States' experts, did not address this syndrome, and neither will I.

606

902 FEDERAL SUPPLEMENT

numbers" which can be misused or taken out of context, but he still believed that there is "some usefulness for looking at frequencies of use of medication or the breakdown of categories of medication." 50/119. The percentages can serve as "red flags" indicating that something is wrong. 50/120-21. Dr. Hauser related how he initially counted the number of residents on antipsychotics and antidepressants in order to determine whether the use of these drugs at the Center was "in the ballpark" of what is reported for similar facilities. One of the sources he used was a book authored by Dr. Fans. 50/120. Dr. Hauser concluded that the overall percentages were consistent with medication management in similar populations. 50/121.
[55] Dr. Lubetsky, agreeing with Dr. Hauser, found that the Center had a "rough average of twenty-five percent of clients on psychotropics," 49/127, and that this was within the broad range of twenty-five to forty percent use of psychotropics reported in the American Journal on Mental Retardation. In addition, Dr. Lubetaky reviewed individual cases and concluded that the Center's use of psychotropic medications was within accepted professional practice. 49/128. Based upon my review of all of this evidence, I agree with the Commonwealth that its use of psychotropic medications meets constitutional minimum standards.
Finally, the United States argues that the Center fails to adequately monitor the psychiatric treatment provided. Dr. Fans described this "monitoring" component of the medical approach as an objective weighing of the benefit the person is receiving from the treatment versus the impact of any side effects—or, stated another way, "monitoring" entails an evaluation of whether the drug did what it was prescribed to do, and whether this result can be proved. 38/99. If monitoring demonstrates that the drug did not benefit the resident, then the treatment should be changed. 49/153. Dr. Fahs testified that the Center's monitoring was inadequate in 100% of the cases he reviewed. 38/101.

The record at trial established that the medical community places great emphasis on monitoring the effects of antipsychotic medications to detect the development of tardive dyskinesia (TD), an irreversible side effect of certain antipsychotic medications. 50/34. TD is a red flag—it is an area closely scrutinized by the medical community, as well as surveyors, in an effort to reduce its occurrence. 50/34. As a result, a tracking form (the AIMS form11) has been developed by the medical community to screen for TD.
Dr. Fahs opined that the Center's monitoring efforts in general were inadequate, and he supported his opinion by specifically referencing the Center's monitoring efforta with regard to TD. Dr. Fahs claimed that the Center had a policy in place requiring the AIMS screening, but he believed that the Center did not engage in a regular, consistent review for side effects, including TD. 38/100.
Dr. Fahs' testimony also addressed the alleged inadequacy of the Center's monitoring efforts with respect to chemical restraints. Dr. Fahs defined chemical restraints somewhat loosely as including both the emergency sedation of a resident as well as the administration of medication without any indication of its efficacy. 38/94-95. Dr. Fahs concluded that the emergency chemical restraints at the Center were adequate, but that the Center routinely administered medication that might not be helping the residents, and that this practice resulted in an unnecessary "chemical restraint." 38/95.
In response to Dr. Fahs, Dr. Lubetsky explained that the AIMS tracking form actually was utilized and could be found in many of the charts. 49/111, 192. Dr. Lubetsky's observation is corroborated by the Inspection of Care Survey for August 1992, which noted an AIMs form in James R.'s chart. Exh. 67\8D. The evidence also demonstrated that Dr. Goldschmidt consistently made an effort to reduce the overall use of antipsychotic medication by either refusing to prescribe the medication for a resident or reducing the

38. The significance of the letters in the acronym AIMS is not discussed in the record by any of the

experts.

U.S. v. COM. OFPENNSYLVANIA

607

CIUM902 F.Supp. MS (W.DJ>a. IfM)

dosage for a resident who had previously Center has consistently endeavored to reduce

been prescribed the medication. 50/25; Exh. the dosage of antipsychotics and thereby

616\53, 61.

avoid unnecessary chemical restraints.

[56] The presence of TD in residents, In summary, the psychiatric care provided some of whom may have developed TD be- satisfies constitutional requirements. The fore the medical profession began screening Center's weak point is its documentation, but and prevention measures, does not of itself this deficiency does not preclude the exercise indicate that the Center has failed to exercise of professional judgment The assessment professional judgment in monitoring the us- and treatment routines established at the age of antipsychotic medications. To the Center are not "substantial departures" from contrary, the record evidence indicates that accepted professional standards.

when Dr. Goldschmidt began treating the 3. GASTROESOPHAGEAL REFLUX

Center's residents in 1986, she noticed that a

AND ASPIRATION

number of individuals already had TD as a Dr. Sulkes, one of the United States' ex-

result of the long-term administration of an- perts, testified that the Center fails to pro-

tipsychotics. Exh. 616N53, 102. As a result, vide appropriate medical care to residents

Dr. Goldschmidt insisted that the Center with gastroesophageal reflux (GER) and/or

monitor residents for this very condition in who are at risk of aspiration, because the

an attempt to avoid the development and/or Center fails both to identify the residents

exacerbation of side effects. Some residents who have GER and/or are at risk of aspirat-

continued to receive antipsychotics because ing, and fails to provide a proper medical

the benefit derived outweighed the detriment "work-up" and treatment of the residents."

of discontinuing the medication. 50/35. At

least since 1986, professional judgment has Aspiration is the "inspiratory sucking into

been exercised in monitoring for TD.

the airways [ie. lungs] of fluid or [a] foreign

body " Stedman's Medical Dictionary

Dr. Hauser described the emergency seda- 143 (25th ed. 1990). GER is the escape of

tion aspect of chemical restraint, and ex- the stomach contents into the esophagus,

plained that "chemical restraint" may also be 41/88, a condition which afflicts approximate-

found when medication is chronically used to ly 10-15% of developmentally disabled chil-

restrain an individual. Signs of this type of dren and adults. Crocker, Allen C, and

chemical restraint are use of high doses of Rubin, I. Leslie, Developmental Disabilities:

antipsychotic medications which cause stiff- Delivery of Medical Care for Children and

ness, rigidity, and a blank facial expression in Adults 178-79 (1989). Individuals with GER

residents. 50/122. Dr. Hauser testified that are at risk of aspirating because the stomach

he did not observe any chemical restraint of contents may travel backward from the

this nature at the Center.

esophagus into the pharynx and enter the

[57] I find Dr. Hauser's testimony persuasive in determining whether the Center meets the minimum standard of professional judgment in avoiding unnecessary chemical restraints that would result in stiffness, rigidity, and the constraining of one's movement See Sabo v. O'Bannon, 586 F-Supp.

trachea and lungs, 41/88, which predisposes the person to developing pneumonia. Reflux into the esophagus also causes discomfort because the stomach contents are normally very acidic, and over time, may erode the mucosa of the esophagus and precipitate bleeding. 41/89-90.

1132, 1140 (E.D.Pa.1984) ("Because the use [58] The United States contends that in

of 'soft' restraints was found to implicate a "several cases, individuals had documented

liberty interest in Youngberg, it can scarcely reflux and nevertheless were continuing to

be doubted that the use of drugs in order to suffer bouts of aspiration pneumonia."

restrain a patient must activate a similar 84/X-10, citing 347107. The United States

interest."). As Dr. Hauser explained, the asserts that most of the residents reviewed

39. The United States' contention with respect to deficiencies in identification of residents with

GER is addressed in the section regarding nutritional management. See infra at § III C 4.

608

902 FEDERAL SUPPLEMENT

by Dr. Sulkes died at some point from 1988 practice in the treatment of Margaret D.

to 1992. The occurrence of aspiration pneu- The Center staff documented her persistent

monia, or even deaths without evidence that trouble with coughing and mucous produc-

it was the result of medical treatment which tion, monitored her condition, and treated

substantially deviated from accepted profes- her with anti-reflux medications. 34/82.

sional practice, however tragic a loss, does not compel a finding that the constitution was violated.

Steven S. died in May 1991 due to complications resulting from GER. Dr. Sulkes opined that Steven S. needed aggressive

Dr. Sulkes reviewed the care of Margaret management of GER early on and did not

D., who died in January 1992. Dr. Sulkes receive it He further testified that, in his

testified that her condition of reflux was opinion, Steven S. entered a "pipeline that

known since at least 1979. 41/114. Treat- . . . carried him inexorably on to his death.

ment in 1991 included prescriptions of anti- All the way along, interventions might be

reflux medication and iron for anemia. Mar- available, but nobody thinks about them until

garet D. also received postural drainage and it's way too late for them to do any good."

percussion on a regular basis. Despite these 41/121.

treatments, seven months later, she developed problems with mucous and choking after eating. Margaret D.'s physician noted that she experienced the excess mucous and choking only after eating, and he questioned whether she had an allergic rhinitis. He started treatment with an antihistamine, but did not order any further evaluation of the reflux. 41/115.
Two months later, Margaret D. was hospitalized for aspiration pneumonia. Her sixty-

The record reveals that the Center was aware of Steven S.'s GER since at least 1989. Id. In November of 1990, a gastrostomy tube was inserted into his stomach. This procedure had little effect, according to Dr. Sulkes, and emesis was discovered in Steven S.'s mouth as early as November 13, 1990. In December of 1990, blood was discovered in the emesis. Later that month, Steven S. was hospitalized for pneumonia. 41/122.

day nursing note after this hospitalizatdon Dr. Sulkes lamented that this resident

indicated that the same treatment was to could have received fundoplication surgery

continue. Tussi-organidin, an expectorant, up to two years before his death, but that he

was added to her medication regime. Exh. never did. 41/123. Fundoplication, using a

331aa, # 00523176. Antibiotics were institut- cuff of the stomach muscle to wrap around

ed when it was discovered that her mucous the bottom of the esophagus as support for a

had pus in it. Thereafter, Margaret D. lost weak gastroesophageal sphincter, could have

weight, and she continued to produce large prevented the escape of stomach contents

amounts of thick mucous. At some point, the into the esophagus when the stomach muscle

Center initiated manual suctioning of the mu- contracted, 34/69, but the mortality rate for

cous secretions to aid Margaret D.'s breath- this surgery approaches fifty percent. 34/71.

ing. Exh. 331AA. No other intervention Fundoplication is major surgery, however,

was initiated despite persistent documenta- and the decision whether to perform this

tion of chronic congestion and coughing. procedure is largely dependent upon the indi-

41/119. In January 1992, during treatment vidual's health. The physician must assess

for postural drainage, Margaret D. died. the risks of additional surgery against the

41/120. According to Dr. Sulkes, there was a possible medical benefits to be obtained.

"lack of close monitoring and lack of a suffi- 34/69.

ciently aggressive work up early on, diagnostically, which might have led to some medical interventions, that might have prevented all of this . . . " 41/120.

[60] Steven S.'s physicians were aware of his condition and treated it by surgically inserting a gastrostomy tube. Unfortunately, Steven S.'s gastrostomy tube did not rem-

[59] The record at trial revealed, howev- edy the problem. Whether to proceed with

er, that the Center exercised professional fundoplication surgery was highly dependent

judgment consistent with accepted medical upon Steven S.' individual medical condition,

i

U.S. v. COM. OF PENNSYLVANIA

609

Cite ai 902 F.Supp. 5*5 (W.D.P*. IMS)

and was a matter to be resolved pursuant to Sulkes in rendering his opinion regarding the

the Bound discretion of the professional. acceptability of Steven S.'s care. The record

31/157. Experts in the field of gastroenterol- is clear that fundoplication surgery is compli-

ogy for mentally retarded persons remain cated and could not have been performed by

divided over the benefits of gastrostomy the Center's medical staff. Gastroenterologi-

alone, as opposed to gastrostomy coupled cal consults necessarily occurred to deter-

with fundoplication surgeries. See Exh. mine that such surgery was warranted, in

HH., Bui, Hum D., et al, Does Gastrostomy light of Keith T.'s compromised medical sta-

and Fundoplication Prevent Aspiration tus. See 34/55. I find that the Center ren-

Pneumonia in Mentally Retarded Persona, dered care which was consistent with accept-

94 American Journal on Mental Retardation ed professional standards in the case of Keith

16-19 (1989). Accordingly, I find that the T.

Center's decision not to perform fundoplication surgery on Steven S. does not fall outside the realm of acceptable medical practice.
Keith T. also had GER and died. Keith T. had spastic quadriparesis, profound mental retardation and a history of problems with aspiration. 41/125-26. Dr. Sulkes noted that Keith T. had respiratory problems dating back to a respiratory arrest in 1986, and had been hospitalized repeatedly for aspiration pneumonia. In April of 1991, documentation indicated that Keith T. had reflux when he was sleeping which precipitated bronchospasms. One of his anti-reflux medications was increased at that time, 41/126, and he was continued on antacids, 41/127. The Center's care for Keith T.'s GER included well-recognized treatments in this field: anti-reflux medications, antacids, and even fundoplication surgery. 34/77, 82-83. Once fundoplication surgery is performed, positioning therapy and medications remain the only viable treatment options for such an

Jeff K. also died of aspiration pneumonia. Dr. Rubin, an expert pediatrician retained by the United States, noted that Jeff K. had a seizure disorder which required multiple medication changes. He then developed petit mal seizures which increased in frequency. Thereafter, Jeff K. became very difficult to feed, and he sustained a significant weight loss. A gastrostomy tube was placed, and he continued to lose weight while he was hospitalized. 81/109. Subsequently, he died.
Dr. Rubin opined that the medical care Jeff K. received was not consistent with accepted professional standards of care because it is well recognized among surgeons and gastroenterologists that a gastrostomy should not be done in individuals who have GER. The procedure, he testified, increases the risk of vomiting and aspiration because large amounts of food may be put into the stomach over a short amount of time. 81/109-10.

individual. See 81/155.

Dr. Rubin formulated his opinion regard-

Dr. Sulkes testified that at least some of Keith T.'s hospitalizations, as well as his death, were preventable. 41/128. Dr. Sulkes found it problematic that Keith T. had never had an evaluation for feeding problems, never had an evaluation to determine whether he had reflux, and had no records showing consults with a gastroenterologist 41/126.
[61] In rendering his opinion concerning the acceptability of care provided to this resident, however, Dr. Sulkes failed to acknowledge that Keith T. had undergone fundoplication surgery. This omission is partic-

ing Jeff K.'s care after reviewing several documents, including a "Mortality and Morbidity" report prepared after his death. Jeff K.'s physician detailed in the report the patient's increasingly uncontrolled seizure disorder, and how the side effects from the anticonvulsant medication and the frequent petit mal seizures interfered with bis ability to eat. As a result, a gastrostomy tube was placed to feed Jeff K. He then received his nutritional feeding continuously over a twenty-four hour period (not large servings over a short period of time, as Dr. Rubin erroneously assumed). Exh. 1108.

ularly glaring in light of the importance [62] I find that Jeff K.'s care was consis-

placed on this surgical procedure by Dr. tent with accepted professional standards.

610

902 FEDERAL SUPPLEMENT

His treating physician was very familiar with his seizure disorder and its refractory nature. She also recognized that his seizure medications produced viscous secretions that affected his ability to swallow. As a result, a gastrostomy tube was used to avoid aspiration while eating. Exh. 1108.
While Dr. Rubin contends Jeff K. should not have had a gastrostomy tube to feed him in light of his reflux, I have not been able to find any reference in his record to GER or reflux. Rather, it appears from the record that the complications and risk of aspiration resulted from the thickness of his oral and pharyngeal secretions, factors which made the safe feeding of Jeff K. more complicated. Furthermore, Dr. Rubin's opinion regarding the inadequacy of Jeff KL's care is undermined by his statement that he was impressed by the thoughtfulness that the staff had given to the Mortality and Morbidity report 81/105-06. This thoroughness, I believe, more accurately reflects the quality of care that Jeff K. received at the Center.
The United States also challenged the care of three other residents: Sam B., James O., and Bobby Y. Sam B. died of aspiration pneumonia in April 1993 after a diagnosis of reflux esophagitis in 1980 and recurrent pneumonias thereafter. 41/132-33. Dr. Sulkes contended that after ten years of warnings, in March of 1993, Sam B. experienced increased difficulty swallowing and aspirated barium when a diagnostic procedure was being performed. 41/132. Despite this incident, the Center failed to request a respiratory evaluation.
James 0. was hospitalized twenty-three times before his death in 1989. At no point in time did James 0. have a swallowing work-up or a gastrointestinal or respiratory evaluation. Rather, his sixty-day medical note consistently noted as the plan of treatment "continue present therapy arid care." 41/139.
Bobby Y. also died of aspiration pneumonia in December 1988. 41/139. Dysphagia had been diagnosed eleven years earlier, but his medical record revealed only two corresponding interventions. Id.

[63] I cannot, based on the trial record, determine whether the care Sam B., James 0., and Bobby Y. substantially deviated from accepted medical practice. The particulars of their care, despite the diagnosis of GER or the identification of the risk of aspiration, are absent. Nevertheless, Dr. Sulkes concluded that the Center's care was constitutionally inadequate because these residents died of aspiration pneumonia without the benefit of certain evaluations. I will not find constitutional violations merely on the basis of the unfortunate fact of their deaths and Dr. Sulkes' condusory statements that are not supported by the record.
Finally, the United States cited the treat, ment of several current residents in support of its contention that the Center's medical care of GER is inadequate. For example, Dr. Sulkes disagreed with the Center's treatment of Patricia W. In response, the Commonwealth submitted testimony by a pulmonologist who examined her and concluded that "[gjiven her severe kyphoscoliosis, she will inexorably progress to chronic respiratory failure as a result of her respirative lung disease and repetitive pulmonary infections. Your current therapy is just about optimal, given her inability to cooperate.... I think her survival to this time is a testimony to the care you have provided her." 34/38. The pulmonologist's opinion supports a determination that the Center's care met the constitutional minimum.
[64] That residents have died or sustained recurrent pneumonias does not support a conclusion that the Center is violating their constitutional rights to adequate medical care. Dr. Sulkes focused his analysis and testimony on the residents at Keystone, who are the most medically compromised at the Center. It is well-recognized that "[t]he life expectancy of people with mental retardation is shorter than that of the general population." Exh. HH, Eyman, Richard K., et al. The Life Expectancy of Profoundly Handicapped People urith Mental Retardation, The New England Journal of Medicine 584 (1990). Life expectancy in that population is further decreased if motor disability is present. 34/60. Consequently, it is to be expected that some of the Keystone residents, who are

U.S. v. COM. OF PENNSYLVANIA

ClUuMJ F.Supp. S«S (W.D.P*. IMS)

severely and profoundly retarded and physi- a. Screening

cally disabled, may become ill at times and The United States' expert witness, Ms. not recover, even though advanced medical McGowan, testified that the Center fails to
care is being provided. GER by its nature is identify residents who are nutritionally at

chronic, and it is accepted that non-surgical risk. Such identification is the first element

medical management should be attempted in any adequate nutritional management sys-

before resorting to surgical interventions. tem. 35/159-60. Residents at risk include

81/155. During that period of non-surgical those with feeding, swallowing and oral mo-

management, it is to be expected in some tor disorders, in addition to those residents

cases that the condition may worsen, and who have any history of choking. 35/159.

even if surgery can be performed, it is not a cure-all. 81/155. I find that the Center follows accepted medical principles in treating GER and the risk of aspiration.

The constitutional flaw, according to the United States, is that the Center does not have any screenings for these disorders, and even when screening devices are prepared, the devices are inadequate and screenings

4. NUTRITIONAL MANAGEMENT

are not completed as quickly as they should be. The United States points to the facts

The United States contends not just that the Center fails to provide adequate nutritional management to its residents, but that nutritional management does not even exist at the Center. 84/X-41. In particular, the United States asserts that the Center (1) fails to identify residents who are nutritionally at risk; (2) fails to assess residents with regard to their nutritional management

that dysphagia screening has been completed only in the Laurel unit and that the Keystone unit was in the process of screening as late as July 1993. The Center now plans to incorporate aspiration screening into each resident's care at the annual review, Exh. 637/42, but, the United States contends that the Center's efforts to identify residents who are nutritionally at risk has been too little, too late.

needs; (3) fails to adequately and appropriately intervene at mealtime for residents with nutritional management needs; (4) fails to adequately monitor mealtime intake and interventions; (5) fails to provide adequate staff training in how to implement feeding plans; and (6) fails to insure that its professional staff is adequately trained in nutritional management. 84/X.

[66] Ms. McGowan testified that identification of residents who are at risk nutritionally should be accomplished by identifying
people that look like they might be in trouble, then you go on to some more indepth type of assessment, so that you can both figure out if, in fact, your screen produced persons who really were having difficulties, and then you actually go in

[65] Youngberg establishes that the Center has a duty to provide food for its residents. Food is "an essential of the care that

some depth, take a look at what real kind of problems they're having, because they are not always what they seem. 35/160. Dr. Sheppard, the Commonwealth's

the State must provide." 457 U.S. at 324, witness, did not dispute that identification of

102 S.Ct. at 2462. There is no dispute that potential nutritional problems by screening is

the Center provides food portions which are important. 61/100. I conclude that accepted

generous. 35/104. But the provision of food professional practice requires some type of

in a disabled population is not met simply by screening mechanism to determine which

preparing food and presenting it at meal- residents are nutritionally at risk.

times. Consequently, the Center must pro- The Center has attempted to implement vide for the management of the nutritional screening of residents at risk, by implement-

status of its residents pursuant to the exer- ing an aspiration screening procedure, Exh.

cise of professional judgment which is consis- 855. The Center's dysphagia team has de-

tent with accepted professional standards of veloped a dysphagia screening to be conduct-

practice. 457 U.S. at 323, 102 S.Ct. at 2462. ed on all residents, and has responded to

612

902 FEDERAL SUPPLEMENT

weaknesses noted by Dr. Sheppard and has developed a swallowing and screening tool. 61/102.
On direct examination, Dr. Sheppard was asked if the Center met accepted professional standards prior to the implementation of its screening tool for swallowing and screening. Dr. Sheppard hedged her response and opined:
[T]here was an aspiration screening tool that had been developed by the nursing staff, and there was good attention to individuals who were more severely involved, who were at risk for aspiration. I think most of the individuals in the Keystone Unit had been evaluated by the dysphagia team, and individuals who had had choking episodes were evaluated by the team following any choking episode; so individuals who were more impaired, who had a greater degree of dysphagia were being attended to; and certainly acceptable professional standards were being met in that area. It was the individuals who were less impaired that were not being—getting the attention that they needed; and also there was nothing in place that would track the deterioration with age of these individuals. Those individuals have marginal skills, so in that sense it was a needed component to make the program good; but I must say that there are not many institutions that have these things in place that I've been in, and so I think they were doing a job that was certainly acceptable by general practice. 61/103-04.
[67] In light of Dr. Sheppard's demeanor during her testimony and the context of her opinion, I conclude that there were deficiencies in identifying residents who were nutritionally at risk prior to the development of the various screening mechanisms. However, since Dr. Sheppard's inspection, the Center has developed various screening devices, and is in the process of implementing and revising them. I therefore find that no deficiencies remain to be remedied.

to their nutritional management needs. In

February of 1990, it notified the Center that

it failed "to ensure that all residents' nutri-

tional needs are met" Exh. 637, exh. 50, p.

3. Ms. McGowan testified that the assess-

ment phase is an interdisciplinary process

that evaluates the resident and how his nutri-

tional status is impacted by his neurological

system, medications, psychiatric factors, gas-

trointestinal conditions, respiratory status,

and musculoskeletal considerations (such as

positioning). 357161-64. She opined that the

Center focuses on "what happens during the

actual meal time

[But,] they are miss-

ing many of the real important components

of this process." 357164.

As explained above, the Center's efforts to identify residents who are nutritionally at risk were inadequate until it developed and implemented better screening procedures. Following this development and implementation by the Center, however, Dr. Sheppard concluded that residents "who presented with a problem [were] being attended to." 61/104. Dr. Sheppard's review of John B.'s chart illustrated her opinion. She noted how this resident had a problem with weight loss associated with a refusal to eat The annual review noted the following: his loss of weight; that he was essentially a dependent eater; he had a body mass index of nineteen; his weight was adequate although it was the low range of normal; he had a pureed diet with double portions; he had good lip and jaw closure, but was practically edentulous; and his response with efforts to encourage independent feeding. Dr. Sheppard further noted input from the following disciplines regarding John B.'s nutritional status: dietary, nursing, OT, pharmacy, and the physician. 61/94-95. She opined that John B. had a moderate problem in light of the fact that his nutrition was fairly good, he was still eating, and he was not showing any compromise of his respiratory system. Dr. Sheppard concluded that the Center's nutritional management for this resident was appropriate and adequate. 61/96.

b. Assessment

[68] I am persuaded by Dr. Sheppard's

The United States also asserts that the testimony' and find that the nutritional as-

Center fails to assess residents with regard sessments performed by the Center satisfy

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accepted professional standards. Although 1993, the team relied exclusively on referrals

the annual review is not labeled "Nutritional in determining which residents to evaluate.

Assessment," it satisfies the interdisciplinary Exh. 641/44. Any resident that had a chok-

process which is required by the accepted ing episode was referred to the dysphagia

professional standards and addresses the team. Exh. 641/47; 36/166. The dysphagia

acuity of the problem and the necessary in- assessment focused on the resident's ability

terventions. The adequacy of the nutritional to swallow. 36/165.

assessments performed by the Center is further supported by the fact that the assessments regarding physical therapy (FT), psychiatric issues, and neurologic care, all of which affect nutrition and feeding, have been found constitutionally sound.

Since the team's inception, the basis for seeking dysphagia assessments has expanded. Dysphagia assessments increased over time as they were deemed necessary due to feeding problems or residents who were at risk of aspirating. Subsequently, a "meal

The United States attempts to undermine Dr. Sheppard's testimony regarding nutritional assessments by pointing out the fact that Dr. Sheppard recommends utilizing the "body mass index" (BMI)40 as a gauge of nutritional health and the fact that the BMI for the majority of the Keystone residents was below the normal range. Exhs. 967, 970. This statistic in and of itself has no bearing on the sufficiency of the assessment Rather, it is a confirmation of the fragility of the population of the Keystone unit and the prev-

observation" form was created as a means of identifying unsafe eaters. Exh. 637, exh. 16. This tool was to be completed by direct care staff. Subsequently, the team developed a dysphagia screening tool which was applied on a unit wide basis starting in April of 1993 in the Laurel unit 61/130. The dysphagia screenings were then conducted at Keystone. Id.
The United States submits that the nutritional assessments which have been complet-

alence of dysphagia. 65/67.

ed are inadequate. It notes that Dr. Shep-

The United States asserts that the inadequacy of the Center's assessments is evident in not only those assessments completed by the dysphagia team, but also those which the team has failed to conduct The dysphagia team was created approximately in June of

pard agreed that the dysphagia evaluations need to include contributing causes and information regarding oral anatomy, 61/199, and points out that the team does not evaluate the effect of the resident's medication regimen.

1990. Exh. 641/12. The team includes the [69] These contentions do not alter my

following: Kathleen Wagner, a speech thera- previous conclusion. Nutritional assess-

pist; Mary Frye, a Licensed Occupational ments are addressed by an interdisciplinary

Therapy Aide (LOTA); Karen Fulton, a reg- approach. Undoubtedly, there are ways to

istered dietician; and Marcia Stiles, a regis- improve these assessments, but they meet

tered nurse (RN). Exh. 641/17. This team professional standards. As Dr. Sheppard ex-

was created in response to what was per- plained:

ceived as the fragmented way dysphagia and swallowing difficulties were being managed, not because of any one incident that had occurred. Exh. 641/21. A regular scheduled meeting time was established in October of 1992. Exh. 641/26.

[T]here is a range of dysphagia problems that can be managed with fairly routine modifications and meal time procedures, and elaborate evaluations are not truly needed in those individuals. The—many of the mildly and moderately impaired in-

The dysphagia team first received referrals in January of 1991, Exh. 641/48, and the

dividuals can be managed with limited assessment information.

number of referrals has increased each year

It's when you have the severely involved

since then. Exh. 641/51. As of January individual who is eating at the very limits

40. The BMI is a ratio of weight to height that gives an indication of the adequacy of the weight. It is a standard utilized with the developmenttlly

disabled because of the fact that their growth is atypical. 61/100.

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902 FEDERAL SUPPLEMENT

of their capability, and eating poorly, that having total information may be more critical because there may be things in it that you—that it would lead you to do that, would help this individual continue to be able to eat orally; and it's in those individuals that a—a—the most comprehensive evaluation is useful.
61/201. I credit this opinion, which sheds light on the constitutional minimum required in this area. The record reveals that the Center's nutritional assessments meet the needs of the residents {it., the basic evaluation is in place, which can be augmented when the need arises).
c. Intervention
The United States asserts that the Center's mealtime interventions for nutritional management are inadequate. To the extent this contention raises the issue of unsafe feeding by the staff, that issue is addressed in the section regarding unsafe staff actions, under the duty to provide reasonable safety, and will not be repeated herein. See infra at § III.E.
The thrust of the United States' position, however, is that the Center failed to develop feeding plans for each resident who must be fed by staff He., those requiring assistance) until after Ms. McGowan's tour in 1992. Even though such feeding plans were then developed, the United States contends that this last minute effort is deficient because the feeding plans devised do not adequately address proper positioning and feeding techniques. See 84/X-56.
Ms. McGowan noted that the Center developed supplemental procedures for most of the individuals in Keystone which related to feeding techniques. 367148. She reviewed the supplemental procedure for all 94 residents of the Keystone unit and found 25 of them to be "completely inappropriate." 367149. That is, the photographs incorporated in the supplemental procedure showed heads in extension, poor positioning, and staff pushing the head back into extension. Id She further opined that the feeding plans devised after her first tour of the Center were deficient because they did not detail "where to put the food in the mouth, what

kinds of pressure needs to be applied, how then to pull the spoon out of the mouth, what things not to do in terms of scraping the face; and so there are—that needs to be very specific for direct care staff, because they—they can't generalize those instructions to the very specific and very individual requirement of many of these individuals." 36/31-32.
Dr. Sheppard agreed that a feeding plan should address proper positioning and bolus presentation. 61/201. Dr. Sheppard noted that there are "specific components to bolus presentation; and for any one individual, fewer or more of those elements may be needed in the descriptives. Usually you only include in the prescription those elements that are special for this individual." 61/202. Dr. Sheppard concluded that the Center's feeding plans include the elements "as is appropriate, those items that are considered to be modified for this individual and need to be special..." 61/203.
[70] My review of some of the supplemental procedures reveals that the Center included specific components regarding bolus presentation. For example, James M.'s supplemental procedure directed that "[flirm pressure is applied on midline of tongue with spoon." Exh. 137. Tim P.'s procedure addressed the feeder's positioning during the meal, presentation of the spoon and the manipulation of the spoon. Id. Moreover, the Center included components as appropriate for the individual. For example, Michael F.'s procedure notes that he will cooperatively open mouth and swallow when the food is placed on the tongue. Common sense dictates that the plan for this resident need not include any components regarding how to apply pressure to open the mouth, prompt the swallow, or remove the spoon. Accordingly, upon my review of the Center's plans and the testimony of both experts, I find that the Center meets the minimum professional standards in this regard. The Center's feeding plans include the elements appropriate for each individual.
d. Monitoring
The United States also asserts that the Center fails to adequately monitor mealtime

U.S. v. COM. OF PENNSYLVANIA

615

Cite • • 902 F-Supp. MS (W.D.P*. IMS)

intake and interventions. It contends that This policy refers to refusals, and it is logical

the Center did not have any system in place in living units other than Keystone to record the amount of food that residents consume until October 1993. The United States submits that it is accepted professional practice to have some type of mechanism to monitor how well residents eat at mealtimes. 61/133.
The Center has a policy regarding meal refusals by residents. The policy was documented in August of 1992 after Ms. McGowan's evaluation of the Center revealed there was no written policy. Prior to the approval of this written policy, however, the Center had been "doing exactly what the policy said for many, many, many years . . . it was well understood by all staff that this was the procedure to be followed." Exh. 637A1. A "Meal Checklist" form was also generated in October of 1992 after Ms. McGowan's evaluation of the Center. Exh. 673, exh. 16. This checklist is completed daily for each resident and indicates the quality of the resident's intake. All forms are forwarded to the Unit Manager on Fridays after review by the nurse. Id. Although the checklist was generated in October of 1992, "the nurses have always summarized appetite or lack of appetite or an individual's preference for foods." Exh. 637/21.

that a refusal of liquid supplement, an addition to one's regular meal, would not constitute a meal refusal. Consequently, this policy has no relevance to the Center's practice of monitoring the liquid intake at a meal.
As further support for its argument that the Center fails to properly monitor liquid intake, the United States asserts that Ms. Sponsky, the Director of Nursing, does not "consider liquids as part of a meal." Exh. 637/13. Ms. Sponsk/s indication that liquids are not considered part of the meal was not emphatic. She admitted that she could not say whether a failure to take in liquids during a meal would be reported to the nurse and she did not know how the staff actually implemented the policy. Dr. Sheppard noted, however, that liquids are addressed in some of the units. She described how Keystone documents intake for food and liquids, and that the assessment of the meal in the Laurel unit included liquid intake as a component of the meal in its entirety. 61/135-36. She specifically recalled documentation noting "liquids refused" and her observations of mealtime intake, including liquids, were 100% congruent with the documentation of the feeders. 61/137.

[71] I find that the Center has in place an adequate mechanism for monitoring how well residents eat at mealtimes as evidenced by the "unwritten policy," which was eventually memorialized in Ebensburg Center Policy # 356, as well as the long-standing nursing practice of documenting in a resident's summary the status of his or her appetite. These practices are consistent with accepted professional practice, which requires some mechanism for tracking meal times. 61/13334.
The United States, however, contends that even these policies are flawed because they do not address liquids. It points out that policy # 356 states: "when an individual re-

The United States further contends that the Center's nutritional care is flawed because no formal policy exists for summarizing the information from the meal checklist Dr. Sheppard noted that the information is conveyed to the physician after three meal refusals and to the QMRP after four fair intakes, ie., 50% to 74% of meal, and asserted that she was not sure that a written policy is so important. 61/139; see Exh. 637, Exh. 16. Dr. Sheppard's opinion is persuasive. At some point, the utility of a "summary of summaries" is questionable. I find professional judgment was exercised in monitoring mealtime intake which was consistent with accepted standards of practice.

fuses a meal, or a substantial portion of a meal, staff are to notify the nurse on duty.

e. Training

When an individual has refused three consecutive meals, the nurse will notify the physician. Liquid supplements are not considered an individual's meal." Exh. 637, exh. 15.

The United States' next contention is that the Center fails to adequately train staff to implement feeding plans. Ms. McGowan testified that staff training is key to ensuring

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902 FEDERAL SUPPLEMENT

adequate nutritional management. 35/16161. Ms. McGowan claimed that competencybased training should be part of feeding training. 34/28. Such training not only addresses general principles, but also gears the training for each feeder to the unique needs of each individual. 357161-2. The United States contends that even the Center's expert, Dr. Sheppard, agreed that staff need frequent training that is specific with respect to the residents for whose feeding they are responsible. 84/X-60.
Dr. Sheppard's actual testimony, however, recognizes that professional literature regarding effectiveness of staff training and repetition is not extensive. In her opinion, staff training needs must be based on an assessment of the staffs abilities, how well feeding procedures have been retained and how effectively such skills have been implemented to determine how frequent training must be provided. 65/18. Dr. Sheppard then noted that although there had not been any formal training sessions by the dysphagia team, numerous mini-staffings are given every time a special procedure is developed or changed. Dr. Sheppard specifically opined that "there were professional judgments involved in determining how the program was to proceed." 65720.
The United States submits, however, that Dr. Sheppard's opinion is not credible because the method utilized to train the direct care staff was nothing more than reading the supplemental procedure books for feedings. 65/21. I am not persuaded by this assertion in light of Velda Malloy's deposition testimony. Ms. Malloy is an RN who has worked at the facility since 1963 and served as a supervisor and QMRP in the Keystone unit since 1992. Exh. 622/8. Ms. Malloy noted that she feeds residents in Keystone and had been trained in the supplemental procedure. She further explained that she helped write the procedures after first discussing the specific needs of each individual with the OT (Lois Graham), a speech therapist (Kathy Wagner), and the direct care stafi. In addition, Ms. Malloy actually observed the staff

feeding every individual. Exh. 622/84. Ms. Malloy explained that the direct care staff consult the special procedure books and ask questions of the professional staff that are always present in the dining room. Exh. 622/89. She further noted that if staff are feeding inappropriately, they are approached immediately by a professional to address the proper method of feeding. Exh. 622/95-96.
[72] I find the Center's efforts to provide adequate staff training to implement the feeding plans satisfies the accepted professional practice described by both Ms. McGowan and Dr. Sheppard. In light of the staffs knowledge base in feeding the residents, training need not start at square one. Day-to-day assessments of actual feedings by the professionals present in the dining room provide ample opportunity for additional training to correct deficiencies or reinforce the proper method. Professional judgment is exercised.
[73] The United States' final claim of deficiencies in the nutritional area is that the Center fails to insure that its professional staff is adequately trained in nutritional management. The evidence offered by the United States in support of this contention is nothing more than a list of training that the professionals at the Center would like to receive. That the Center's professionals desire additional training hardly proves a constitutional violation.
5. PHYSICAL THERAPY
The United States contends that the Center's physical therapy ("PT') services4I are a substantial deviation from acceptable professional practice because the Center allegedly: (1) fails to conduct proper PT assessments; (2) fails to develop and provide adequate physical management for residents with physical disabilities; (3) fails to provide acceptable wheelchairs; (4) fails to properly handle, lift and transfer residents; and (5) fails to adequately train its staff in the physical management of its residents. 84/XIV.

41. PT, as developed by the United States in its pleadings and arguments, encompasses physical management, which is the manner in which the residents are handled, touched, transferred, posi-

tioned and facilitated to be functional, active individuals. 34/146. For that reason, this opinion will treat physical management as a component of PT, and not as a separate discipline

U.S. v. COM. OF PENNSYLVANIA

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CIlcwMU F^upp. 565 (W.D.P*. 1995)

The United States argues that the Consti- life, liberty, or property interests of which

tution requires the Center to provide physi- the government itself may not deprive the

cal therapy services which enhance the resi- individual." 489 U.S. at 196, 109 S.Ct at

dents' capacity to function, ie., help the resi- 1003. As the DeShaney Court explained,

dents to live as safely and as independently Youngberg stands for the simple, albeit im-

as possible. The United States believes that portant, proposition "that when the State

physical therapy, a professional discipline takes a person into its custody and holds him

concerned with maintaining, restoring and/or there against his will, the Constitution impos-

acquiring one's maximum range of motion, es upon it a corresponding duty to assume

should achieve the following benefits for the some responsibility for his safety and general

residents: (1) enable them to move more well-being." DeShaney, 489 U.S. at 199-200,

easily and efficiently; (2) avoid the develop- 109 S.Ct at 1005.

ment of contractures, deformities, and acute

curvatures of the spine due to scoliosis; and [76] This constitutional obligation, how-

(3) provide them with the opportunity to ever, differs dramatically from the type of

learn functional skills to enhance their inde- affirmative duty that the United States seeks

pendence. In effect, the United States ar- to place upon the Commonwealth here—to

gues that the Constitution requires the Cen- actually improve the condition of the resi-

ter to provide residents not just maintenance dents by means of its physical therapy ser-

to avoid or minimize loss, but also the thera- vices. Justice Blackmun's concurrence in

py necessary to reach their maximum poten- Youngberg, joined by Justice Brennan and

tial.

Justice O'Connor, suggests that the failure of

In support of this proposition, the United States cites the analysis of District Judge McCalla as set forth in his supplemental findings of fact in United States v. Tennessee, No. 92-2062-MyA (February 17, 1994), n 113-14 (see 92/Exh. A for the full text of Judge McCalla's supplemental findings of fact). As pronounced by Judge McCalla, the constitutional duty to provide physical therapy is quite far-reaching, and entails the provision of services at an institution in an effort to obtain the greatest possible amount of movement for the residents, resulting in their greatest possible independence.

a State to preserve self-care skills acquired before institutionalization (an issue that was not before the Court in Youngberg) may present a question of whether there has been a constitutional deprivation. 457 U.S. at 329, 102 S.Ct. at 2465 (Blackmun, J., concurring). Consistent with the reasoning of Justice Blackmun's concurrence in Youngberg, I hold that the constitution imposes a duty upon the Commonwealth, pursuant to the exercise of professional judgment to provide PT services at the Center which maintain the residents' maximum ability to move, but not a duty to achieve some optimal level of performance.41

[74,75] Although mentally retarded indi-

viduals do not lose their liberty interests [77,78] Stated differently, an infringe-

simply by virtue of their institutionalization, ment of a mentally retarded resident's liber-

Youngberg, 457 U.S. at 315-16, 102 S.Ct at ty interests may occur if a loss in movement

2458, the Supreme Court in DeShaney cau- results from the Center's failure to provide

tioned against an overly-expansive interpre- necessary physical therapy training and/or

tation of the Due Process Clause, and clari- services, but not every instance where there

fied that the Clause "generally conferts] no is a loss of movement indicates that a consti-

affirmative right to governmental aid, even tutional violation has occurred. The failure

where such aid may be necessary to secure of the Commonwealth to provide training at

42. In articulating the duty imposed by the Constitution as it pertains to the provision of PT
services for institutionalized mentally retarded
residents, I am determining only the duty owed by the Center to its current population, which has a median age of 32.5 years, and all of whom have reached skeletal maturity. 62/163; 43/79.

I note that the duty articulated by Judge McCalla in United States v. Tennessee, supra, applied to a population which included individuals under the age of 22 years. While I have no occasion to decide this issue here, the nature of the duty to provide PT services may differ for individuals in a developmental stage.

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the Center which improves the residents' basic care skills, absent proof that the failure to provide training results in the loss of a recognized liberty interest (e.g., minimally adequate or reasonable training to ensure safety and freedom from undue restraint, as recognized in Youngberg), does not implicate constitutional Due Process concerns.
Where the state does not provide treatment designed to improve a mentally retarded individual's condition, it deprives the individual of nothing guaranteed by the Constitution; it simply fails to grant a benefit of optimal treatment that it is under no constitutional obligation to grant
Society for Good Will, 737 F.2d at 1250.
[79] As explained below, pursuant to the foregoing standards, I find that the Center provides a broad spectrum of physical therapy services, and that professional judgment is exercised in an effort to preserve, and/or maintain the residents maximum ability to move. Accordingly, I find no constitutional deprivation.
Most of the physical therapy services provided at the Center are rendered to residents who have a physical handicap. The Keystone unit is home to most of the residents who have one or more physical handicaps that impair their ability to move. Some physically handicapped residents also live in the Laurel, Horizon, Sunset and Villa living unite. 34/98.
Approximately one-third of the residents of the Keystone unit are essentially immobile because of their physical handicaps. They have no active movement except for the ability to move their head or an arm or a leg slightly. 34/98. Another one-third of the residents of the Keystone unit have significant limitations. They may be able to perform a functional skill such as rolling over or sitting up, but not the host of functional skills that would enable them to move independently. 34/98. The other one-third of the residents of the Keystone unit have limitations of a minimal to moderate degree in their ability to move. Their physical handicaps impair but do not preclude independent movement. 34/98.

The physical handicaps manifested by the residents at the Center are the result of damage to the brain early in their lives, in almost all cases before preschool age. 34/107. As the residents age, they progress through three stages of development The first stage is consistent with neuroplasticity, and involves a period of growth in response to abnormal neurological influences and secondary muscle imbalances. This stage lasts until approximately age seven. During this first stage, deformities actually begin to develop, and PT intervention is useful in order to prevent or limit their development 52/45-47.
The second stage is that of skeletal maturation. This period spans from approximately age seven until skeletal maturity has been attained, and intervention efforts are geared toward retarding any progression of deformities that developed during the neuroplasticity stage. 5245-47.
The third and final stage begins after skeletal maturity has been attained. At that point, the Center's intervention efforts focus on attempting to prevent the further progression of deformities, maintaining comfort, and providing positioning that is conducive to general health considerations. 52/45-47, 58.
[80] The residents at the Center who have physical handicaps have attained skeletal maturity. 52/60-61. As a result the physical handicaps arising from the structural deformities are fixed and cannot be reversed. 52/60-61. These residents have a corresponding limitation in movement and they have been in the positions they present for fifteen to twenty years. 32/151-52. The United States' PT expert, Ms. McAllister, and the Commonwealth's PT expert, Mr. Arnall, are diametrically opposed on the possibility of reversing postural deformities after skeletal maturity. My conclusion from hearing them testify is that Ms. McAllister may be on the leading edge of the PT field, but that Mr. Arnall represents the mainstream school of thought. The constitutional duty imposed by Youngberg and Shaw does not require the Center to embrace an unorthodox method, even if it is promising.
For these residents, maintenance of maximum movement has several benefits: (1) it

U.S. v. COM. OF PENNSYLVANIA

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Cite ai 902 F.Supp. S6S (W.D.Pa. 1995)

prevents a loss of mobility and skills associat- needs every three years. 34/127; Exh.

ed with that movement; (2) it prevents a loss 691/20. If a resident uses a wheelchair but

of strength; (3) it prevents the development otherwise receives no PT or OT services, that

of pressure areas, since movement can be resident also is assessed for PT every three

effected to eliminate pressure; and (4) it can years. 32/127.

slow the progression of osteoporosis. 34149-50. In short, preservation of a resident's maximum ability to move prevents or delays the development of osteoporosis or contractures, which, in conjunction with the structural deformity, may contort the body and affect the internal organs. 34/149.
The Center contracts for the services of a licensed physical therapist (LPT) to oversee the provision of PT services to Center residents. Prior to December 1992, the Center contracted for the part-time services of three LPTs, which was equivalent to one full-time LPT position. One of the contract LPTs retired at the end of December 1992, however, and had not been replaced as of the time of trial. Exh. 619, p. 11. One LPT was physically present on the premises for 222 hours from July 1989 to August 1993. Exh. 97. The facts do not indicate how many hours the other LPT spent at the Center during that same time period. The LPTs supervise six full-time physical therapy aides (PTAs). 34/229.
The Center also provides physical management services by employing one or two full-

The annual assessment for a resident receiving PT services is not attended by the LPT or the OT. Rather, a physical therapy aide or a LOTA attends and provides information to the primary care physician about that resident and the modalities employed. Discussion at the annual assessment does not necessarily address additional measures which could improve the resident's program. 32/127.
The PTs annual assessments are recorded on an interdisciplinary report. The report includes the PTs assessment of the resident's physical abilities (including range of motion flexion and abduction, strength and tone), and any recommendations the PT has for that particular resident Exh. 34. Each patient's medical history—including ICD-9 codes,43 physical development, and health and behavior modification programs—is kept in a separate chart 52/40-41. Documentation of PT or OT service provided is done periodically by the physical therapy aide or the LOTA. The LPT or OT countersigns the documentation. 62/92, 94.

time licensed occupational therapists (OT), eight licensed occupational therapy assistants

a. Assessment

(LOTAs), and six occupational therapy aides. The United States asserts that the Center

64/131; 34/230-1. The Center staff provides fails to conduct PT assessments according to

PT and occupational therapy (OT) services acceptable professional practice. 34/119.

Monday through Fridays, from 8:00 a.m. to The United States asserts that an adequate

4:00 p.m. 34/231.

PT assessment of a resident's physical handi-

PT and physical management services at the Center are initiated and maintained pursuant to the order of a licensed physician. 52/28. See 63 P.S. §§ 1309, 1514. The PT and OT services at the Center are provided

caps must establish what movement patterns a resident possesses and how that resident's movement is limited, which enables the development of a plan to maintain the degree of movement the resident possesses. 34/115.

in the same manner as a care provider in a The United States points to the fact that

private home. 62/107; 34/146-47.

the Center utilizes a one-page PT assessment

The Center performs an annual assess- form (Exh. 34), which is rarely completed in

ment for each resident who receives any PT its entirety. The form does not provide an

or OT service. 34/126; Exh. 619/20. If a area to denote the resident's diagnosis or

resident is not receiving any PT or OT ser- pertinent historical information (e.g., a resi-

vice, then that resident is assessed for PT dent's ability to maintain different positions

43. ICD-9 codes is a reference to the International Classification of Disease Codes. That is. a

system used to denote the applicable diagnosis(es). 52/40.

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902 FEDERAL SUPPLEMENT

or perform functional and motor skills; the resident's existing reflexes; issues pertinent to the resident's physical management such as positioning, transfers and lifting). 34120. In short, the United States asserts that the Center's PT forms provide neither a baseline of the resident's physical condition nor the most appropriate means to care for the resident. In contrast, the United States proffers an eighteen-page assessment form created by its PT expert, Ms. McAllister. Her form contains the areas and analyses that she contends are commonly accepted in the field. 34/124; see Exh. 71, Appendix III.
The United States also contends that the Center fails to meet acceptable professional standards by performing assessments only every three years, 34/127, and that the analysis performed at the assessments is inadequate, usually providing no more information than "reviewed,; no PT recommended." Exh. 979. Ms. McAllister testified that the assessments are flawed because they assume that the goal for the residents is nothing more than maintenance. 34/128.
[81] The Center's assessments fall short of the assessments urged by the United States. The United States' own expert admits, however, that those residents with physical disabilities receive a PT assessment 35/3. The record reveals that a great deal of the information that the United States argues should be placed on the proffered eighteen-page assessment form is available elsewhere in the resident's chart 52/40-42. Other sections of the eighteen-page form simply are not applicable to a number of residents. See Exh. 71, Appendix III (portions of assessment tool pertaining to sitting

and walking inapplicable to resident who is confined to cart).44 The documentation of the Center's PT assessments is not constitutionally infirm. See 52/41-42 (forms are adequate in light of the fact that other portions of the chart, as well as supplemental procedures, detail and provide additional information).
[82,83] I also find the frequency of the PT assessments meet the professional judgment standard. The United States argues that the acceptable professional practice requires yearly assessments, relying on Ms. McAllister's opinion that yearly assessments are appropriate if there is an expectation of change for those individuals and that such assessments are commonly accepted in the field of PT. 34/127. Other credible record evidence indicates that there is no published standard within the field with respect to the need for annual evaluations, and that the standard to which Ms. McAllister testified is merely a personal opinion. 48151; see also 52/41; Exh. 619/54 (the frequency of assessments at the Center is consistent with accepted standards for such a fixed and stable population). More importantly, the Due Process Clause does not require that the State improve the resident's condition. The record indicates that the Center's assessments are adequate for maintenance, which is constitutionally acceptable.46
One key aspect of the PT treatment provided to the Center's residents is the modality of range of motion (ROM) exercises. ROM may be active or passive in nature, and is geared toward maintaining the movement patterns that residents currently possess. ROM sustains the integrity and existing mo-

44. Portions of Ms. McAllister's eighteen-page form may serve as an excellent tool for detailing the range of motion that a resident has attained and how the Center is endeavoring to maintain that movement. That does not mean that the Constitution requires the Center to adopt it.
43. The United States argues that the Center's FT assessment analysis should be considered inadequate because the expectations of the assessments entail "maintenance, pure and simple." 34/128. The United States argues that the expectations should be to prevent the development of physical disabilities, prevent continued deterioration and anempt to reverse some of the deformity patterns. 34/155. Ms. McAllister opined that

these expectations are accepted across the country, noting that they have been relied upon in numerous lawsuits regarding individuals living in institutions. 34/158.
I accord little weight to any standard that is based on the result of lawsuits which have been resolved by consent decrees as opposed to adjudications. 34/158. The explication of a constitutional obligation should not be guided by settlement agreements, which may contain terms requiring the provision of services above and beyond the constitutional minimum simply in order to reach an amicable resolution among the parties and to avoid further litigation.

U.S. v. COM. OF PENNSYLVANIA

621

Clt*a»M2 FSupp. 565 (W.D.Pa. 1995)

bility of the joint. 34/209; 52aO2. The congestion and improve breathing. 32/20;

ROM exercise (that is, the movement of the Exh. 619/60.

joint by flexion and contraction of the muscles) helps to hold the minerals in the bone matrix by preventing further osteoporosis and increasing fragility of the bone. 34151. Therefore, ROM is therapeutic for the residents because it maintains their current movement capabilities. 35/43; 52/102. ROM exercises are being provided to many of the residents of the Keystone unit, including the residents who are confined to carts. Due to the skeletal fragility of the residents in carts, the Center's orthopedic physician recommends ROM as the safest therapy. 522527. The Center's LOTAs provide this service for the resident's upper extremities. 52/25. ROM for the lower extremities is provided by the PTAs. 610/59-60.

Therapeutic positioning is also used at the Center to sustain the integrity and mobility of a joint 52/102. Therapeutic positioning places a resident in a manner which attempts to approximate normal body alignment 34/163. In addition, some therapeutic positions afford an opportunity for the muscles to work in opposition to the forces of gravity or the reflex pattern of spasticity manifested by the resident allowing for weight bearing by certain joints. 34/165. As a result of therapeutic positioning, the muscles that are worked may be strengthened, and the mobility of some joints maintained. 34/163. It also may promote improved breathing and avoid the compression of organs. 52/31.

Therapeutic positioning, which provides an

In addition to ROM exercises, the Center opportunity to experience normal body align-

regularly changes the position of those resi- ment conditions, and weight bearing may be

dents who are physically handicapped and contraindicated for some residents due to the

unable to effectively move. Repositioning a progression of their physical handicaps and

resident helps to maintain the integrity of the attendant complications of immobility.

the skin, avoids the development of pressure Contraindicators are a fragile skeletal system

sores, and provides comfort 34/152; 52/56. and joints which are dislocated, common fea-

The residents of the Keystone unit who are tures of Center residents. 52/30-31.

confined to carts are routinely provided position changes. Currently, no resident at the Center has a decubitus (bed sore). 35/60; 52/91. Although residents sometimes experience redness of the skin, that condition is not necessarily indicative of skin breakdown. 52/91.

If therapeutic positioning is contraindicated, adaptive positioning may be provided. This is positioning which places an individual in a comfortable position. It essentially adapts to the resident's deformity pattern. 34/162. Adaptive positioning is used for the eight Keystone unit residents who utilize

In addition to position changes, the Center carts during the day. Adaptive positioning is

utilizes "splinting" to assist in the prevention therapeutic for these individuals in that it

of skin irritations. Exh. 610/58. After resi- aids in the prevention of further deteriora-

dents undergo ROM therapy, they are tion. 52/94.

"splinted" to allow air to reach their joints and to maintain their maximum amount of range. Exh. 610/59. Although one individual's range was actually increased due to splinting, the Center generally uses splinting to maintain the existing ROM and to improve the skin integrity. Exh. 610/59.

Another modality of PT provided to approximately 125 (or one-fourth) of the Center's residents is gross motor function programming. 52/35. This programming, administered by mobility experts, vision specialists, and psychology staff, maintains or improves a resident's skills or ability to move

Another modality of treatment provided to eight of the Keystone residents is chest physiotherapy or percussion. 52/103. This as-

utilizing large muscle groups, and includes activities such as ball throwing, treadmill walking and bicycle use. 52/35.

sists the resident to effectively mobilize and Despite the numerous PT services provid-

expectorate fluid accumulations or secretions ed to the residents, the United States argues

in his/her lungs, in an effort to decrease that the Center fails to develop and provide

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902 FEDERAL SUPPLEMENT

adequate physical management for residents with physical disabilities, and that too many of the residents do not receive necessary therapeutic positioning and gross motor function programs to improve their functional capabilities. The United States notes that it is undisputed that the Center does not, in therapeutic positioning, place any resident in the "prone on forms" position or the "quadruped" position, 34/175, 177.4*
On the other hand, the record reveals that the Center initiated "side-lying" into its program in the early 1980's (Exh. 610/28-29); "side-lying" positions oppose the reflex pattern of extension of the back and flexion into the fetal position. 34/168-69; Exhs. 710, 989. Mr. Arnall, the Center's contract LPT, asserts that its residents who are confined to a cart are not provided therapeutic positioning because of the fragility of their skeletal systems. 52/61. This assertion is supported by Ms. McAllister's published training guide, which states that certain positioning may be contraindicated for individual residents due to the resident's physical condition. Exh. 71, App. VI. Mr. Arnall further explained that the therapy received by residents is consistent with the recommendations of physicians treating those particular residents. 52/2530. Furthermore, he noted that many of the residents are receiving physical management services in ROM exercises, or another modality of treatment. 52Z63-67.47

[84] I find that the Center's physical management of the residents does not substantially deviate from accepted professional practice. The fragility of many of the residents' skeletal systems is not disputed and warrants serious consideration by the professionals. The decision not to provide some residents with therapeutic positioning which may stress delicate joints is accepted practice. Moreover, the record reveals that professional judgment has been exercised in determining what physical management efforts will be deployed, whether ROM, splinting, percussion, or adaptive positioning. Here, as in many other areas of care at issue in this litigation, although the Center may not utilize the "best" or the "most current" options available, I find that professional judgment is exercised, and that the care meets the constitutional minimum.41
b. Wheelchairs
The United States contends that the Center fails to provide wheelchairs that meet acceptable professional standards. Approximately 117 to 127 residents at the Center use a wheelchair as their primary means of mobility. 34/97. When a resident is placed in a wheelchair, the optimal position is for the pelvis to be tipped slightly forward in an anterior pelvic tilt. This places pressure on the ischial tuberosity and off of the tailbone or coccyx. This body position, if maintained, resembles an L, and is very stable and provides an element of control for one's trunk

46. The United States asserts that the Center staff believes that more could be accomplished with regard to physical management efforts than has been accomplished to date (see Exh. 604/94; Exh. 610/35-56), and that the Director of Occupational Therapy, Lois Graham, admitted that the residents would benefit if they received better positioning. Once again, it is not in dispute that the residents at the Center would benefit by the deployment of additional physical management efforts. The goals of the Center staff are irrelevant to whether the Center fails to meet its constitutional obligations. None of the Center's staff stated that positioning was inadequate or that the positioning employed at the Center was a substantial deviation from accepted professional practice.
47. Mr. Arnall admits that despite these measures, some residents have sustained a loss of movement. For example, Joe T. lost some ROM in his upper extremities despite receiving ROM exercis-

es and a splinting program. 52/66. This regression is explained, however, in Ms. McAllister's published training manual, which acknowledges that adults become increasingly immobile as a result of abnormal development patterns, slower rates of skill acquisition, and their increasing size. This process, as explained by Ms. McAllister, can render an adult "stuck" in one position or lead to a decrease in developed skills. Exh. 71.
48. As noted earlier, the United States contends that the Center's gross motor function program is inadequate. I find that the United States wholly failed to carry its burden in this regard because its expert. Ms. McAllister, spent most of her time at the Center focusing on the residents of Keystone, although the majority of residents who receive gross motor programs are located in the Horizon Unit and the JFK Learning Center 52/35.

U.S. v. COM. OF PENNSYLVANIA

623

CIUMM2 F.Supp. 3*3 (W.D.Pa. IMS)

and head. 34/181. The seat belt to a wheel- to identify exactly which position is best for

chair is one means of attempting to maintain that individual, based on comfort, safety and

a resident in the anterior pelvic tilt position. proper support 34/194. The Center does

Seat belts should traverse a resident's body not have a positioning chair. 34/195; Exh.

at the top of their pelvis or across their hip 619/87. Instead, it continues to utilize the

bones. 34/182. The seat belt should not be services of the adaptive equipment shop and

too tight 34/189.

the professional judgment of the LPT or

A loose seat belt and the movement of a OTR to adapt and modify standardized resident while positioned in a wheelchair can wheelchairs purchased from manufacturers.
result in that resident assuming a "C" posi- 52/98-101; 32/195; Exh. 619/84, 88.

tion. 52/82-6. A "C" position is synonymous with a posterior pelvic tilt position in which an individual is positioned more on their tailbone or coccyx. As a result, the head falls forward and down, and the shoulders follow. 34/182.

The United States contends that positioning chairs or simulators have replaced the trial and error method of adapting wheelchairs that is used by the Center. 84/XIV55. Mr. Arnall, however, who testified on behalf of the Center, explained that the sim-

Wheelchairs are individualized for the resi- ulator is a "high tech" substitute for adaptive

dents by the adaptive equipment department wheelchairs which may increase convenience,

to provide a comfortable chair that is safe but cannot act as a substitute for professional

and properly supports the resident Exh. judgment. 52/98.

619/82-83. The Center's PTs, PTAs, and nurses monitor the needs of the residents, and the PTs determine the modifications necessary for the resident's safety, positioning and comfort Exh. 619/81, 83-84. One section at a time of the wheelchair is modified in order to evaluate how the revision will work; at times, the adaptation process may take several weeks. Exh. 619/82, 86. While the resident's chair is in the adaptive equipment department, another chair is provided for him or her. Exh. 619/86. The LPT super-

[85] That technology can now boast a sophisticated piece of equipment as a replacement for the earlier trial and error method offers no insight whatsoever into whether an appropriate exercise of professional judgment has been made. Because the Center's method is accepted within the practice and demands of the exercise of professional judgment by the PTs (Exh. 619/87; 52/101), I find that it satisfies the obligations imposed by the Constitution.

vises the adaptations which have been re- The United States' arguments with respect

quested. 52/99.

to the thirteen residents who allegedly were

Ms. McAllister, testified that she did not provided with improper wheelchairs and/or

see anyone in an appropriate wheelchair dur- positioned improperly are not compelling.

ing her entire week-long observation at the 34/180-99. The Commonwealth explained

Center. 34/206. Ms. McAllister also claimed that a number of those residents have the

that the staff never properly positioned resi- ability to move themselves from the correct

dents in their wheelchairs. 34/188-89. The positions in which the staff initially placed

United States listed positioning deficiencies them. Exh. 619/80. Rather than unduly

for thirteen residents which were described restrain the resident via a seat belt or other

by photographs and a videotape. 84/XIV-50 device, the resident is permitted to move and

n. 17.

is repositioned as needed. 52/82.

Ms. McAllister opined that accepted professional practice requires the utilization of a mechanized positioning chair or simulator to
produce wheelchairs for residents which
meet their needs. 34/193-95; Exh. 731. A positioning chair is capable of having every conceivable angle and dimension changed while an individual is in the chair in an effort

In addition, as noted before, the record demonstrates that some of the staff were reluctant to intervene or act on behalf of the residents in the presence of the United States' experts. Other factors, such as the preferences of a resident or his family for a particular wheelchair, also have played a part in the Center's determination whether to ob-

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902 FEDERAL SUPPLEMENT

tain a more therapeutic wheelchair for the resident 52/81.
c. Transfers
The United States also asserts that the Center fails to handle, lift and transfer residents according to acceptable professional standards. Residents are lifted and transferred to and from wheelchairs on a daily basis. These lifts should be accomplished by two care providers. Exh. 24. Some of the lifts and transfers are accomplished by the care providers placing their arms underneath the resident's arms and/or knees to lift them from one surface and lower them onto another. Such action exerts a pressure which, if sustained, could cause damage to the resident's arteries and nerves, and possibly to a joint. 34/216-17. Usually, such lifts and transfers do not last longer than thirty seconds. 52/104. The LPTs who provide PT services to the Center prefer to lift residents by placing their arms under a resident's arms and around the trunk, and then taking the forearms and positioning the resident close to their own trunk and lifting in conjunction with someone who is controlling the legs. This is set forth in the Center's policy regarding lifting and transferring. Exh. 82.
Ms. McAllister concluded that the staffs handling and lifting of residents is flawed because: (1) staff lift residents under the armpits; (2) staff lift residents under the knees; (3) staff do not control the head and trunk of the resident being lifted; (4) staff do not position the resident properly in a wheelchair or on the mat; (5) staff use the resident's limbs for turning; (6) staff resort to momentum for lifting and transferring which results in a "whisk and thud" transfer; (7) staff fail to arrange the environment before initiating the lift and transfer; and (8) staff use poor body mechanics. 84/XIV-58.
As a result of these flaws, Ms. McAllister contends the staffs care with regard to lifting and transferring residents fails to meet acceptable standards and subjects the residents to harm. 34/217, 221. The United States argues that Ms. McAllister's opinion is supported by the number of injuries sustained by residents while being lifted and transferred. Exhs. 85 and 791. The injuries

allegedly resulting from improper lifting range from abrasions, black and blue marks, scratches and/or lacerations, to fractures. Exh. 791.
Some residents sustain injuries while being lifted or transferred. The injuries range from abrasions to bruises, scratches, lacerations or fractures. Exh. 85. Historically, the LPTs have provided training to the care providers regarding lifting. 52/105. The Center currently is in the process of completing a Competency Based Lifting and Transferring Technique Inservice which is geared to review and reinforce principles relevant to safe lifting and transferring. Exh. 85, # 00004032; 52/105. The competency based training insures that each provider is capable of lifting and transferring an individual by actually performing a certain type lift and transfer under the supervision of an instructor. 52405, 164-66. Such lifts would not be accomplished by the lifting of a resident under their arms.
The Center does not dispute that the cardinal rules for lifting and transferring are: (1) to control the environment; (2) to stay off the arms; (3) to lift as high on the legs toward the pelvis as possible; and (4) to control the body parts which do not have control or are abnormal. 52'172. Additionally, staff from the Center indicated that the Center's training with respect to lifting is consistent with the lifting procedures desired by Ms. McAllister. Exh. 610/105. The Commonwealth's evidence indicated, however, that the most "changeable" part of the environment is the resident, who may change the situation in the course of any transfer. 52/172; Exh. 85, #00591020 (appropriate lifting procedures followed, resident jerked own head causing laceration); Exh. 85, #0076504 (resident threw head back when being properly placed into bed, causing injury).
In addition, residents with osteoporosis may be injured during lifting and transferring even when the lifting complies with acceptable standards. Exh. 85, #00006442 (fracture in resident with severe osteoporosis may have occurred during PT, seizure activity or self-repositioning). Finally, some of the injuries submitted by the United States

U.S. v. COM. OF PENNSYLVANIA

625

Cite •• 902 fSupp MS (W.D.Pa. 1993)

did not occur during lifting. Exh. 85, precipitated possibly by self-repositioning or

#00589451 (injury occurred while resident seizure), nor totally precluded by the com-

was lying on the changing table).4'

plete adherence to acceptable professional

Historically, when the Center found that standards.

an injury occurred due to improper lifting methods, the Center provided additional staff training. For example, Harvey B. received "grasp" type bruises on two occasions caused by improper lifting. The facility director recommended lifting retraining, which had already been prescheduled by the Center's Facility Training Department, and additional training was provided by the Center as recommended. Exh. 85, Aug. 12, 1991, # 00589452.

Finally, the United States asserts that the Center fails to adequately train its staff in the physical management of residents, arguing that too often training is learned on the job and no formal inservice is provided. The United States claims that the Center's own staff recognizes the need for more inservices, and it points to the testimony of Mr. Tackett, who stated that he was handling residents on his first day on the job. 38/7-8. In addition, the United States faults the Center because

[86] I recognize that there are incidents it does not have an individualized written or

which have resulted in harm to the residents. photographed plan for handling each resi-

For example, the United States points to the dent.

fracture sustained by Harold M. when he was lifted from his wheelchair and his leg was still contained in a velcro strap utilized to maintain his leg on the leg supports of his wheelchair. Exh. 85 (incident review of Harold M. of 6/11/91). Obviously, this lift was improper because the care provider negligently failed to release the velcro strap prior to lifting the resident, although she believed that she had. Isolated injuries, though extremely unfortunate, are bound to happen within a population which requires lifting and transferring on a daily basis. See Society for Good Will, 737 FJ2d at 1245. The record does not reveal that such injuries due to improper lifting are commonplace, however, or that they go uncorrected.
In light of the residents' abilities to dra-

[87] I do not find persuasive the United States' contention that the Center's own staff recognizes the need for more training. This "admission" was obtained in a discussion after a demonstration by Ms. McAllister of positioning techniques for one of the residents. Exh. 610/35-36; Exh. 615/113. Ms. McAllister, an enthusiastic and motivating individual, sparked an interest in several staff members that undoubtedly will benefit the residents. Hopefully, the Center will take advantage of that interest and encourage learning opportunities in this and other areas of care. The professed desire of staff to receive continuing education, however, is hardly evidence of a deficiency which violates the Constitution.

matically change a lift which is in progress, Ms. McAllister testified that she believes

the presence of significant osteoporosis in that an individualized plan illustrated by pho-

this population, and the fact that the Center tographs is common practice with therapists

has a lifting policy which incorporates for the who work with the developmentally disabled.

most part the above cardinal rules (Exh. 82), 35/63-64. She acknowledged, however, that

I do not find the Center's care in this regard such a plan comports with her own, personal

constitutionally remiss. The evidence is standard for optimal treatment, and that only

clear that the presence of significant osteopo- two states (Florida and Oregon) have em-

rosis results in injuries which are neither braced it As a result, Ms. McAllister's testi-

related to actions by the staff (e.g., fractures mony merely establishes the existence of var-

49. Some of the injuries attributed by the United States to flawed lifting and transferring have an unknown origin or no relation to lifting and transferring. For example. Beth S. sustained a fractured femur in April of 1993. Her injury was detected during morning care and it was surmised that it could have occurred while being

lifted or changed. Exh. 85(a). Michael F. sustained a two inch laceration of his scrotum. His injury was detected during perianal care for a soiled Attend, and the injury could not be accounted for or related in any manner to a mechanical defect. Exh. 85, # MR 34-Sequence no. 0010D.

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902 FEDERAL SUPPLEMENT

ious options from which a professional could choose, and provides no support for a finding that the Center's training substantially departs from accepted practice. See Youngberg, 457 U.S. at 321, 102 S.Ct at 2461 (" '[T]he Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.'").
The record demonstrated that the Center's training for direct care staff in this area included the viewing of a videotape about proper body mechanics and demonstrations of various lifts. 34/232-33. The Center's training sometimes provided the opportunity for return demonstrations, but this varied according to the class size. 34/232. The fact that each new hire was not provided an opportunity for a return demonstration on each type of lift, however, is not significant The record is clear that training was provided, basic lifts were demonstrated, and inservices were given thereafter on an "as needed" basis. 52/105; see Exh. 85. I also note that the Center's practice requires that lifts be performed by two persons, thereby providing an additional "check" on improper lifting techniques. As a result, I find that there has been an ongoing exercise of professional judgment at the Center to provide training with regard to lifting and transferring.
[88] To summarize, I find that the Center's provision of PT services meets accepted professional standards. The United States' expert lamented that the Center provides only "maintenance, pure and simple." But that is what; the Constitution permits. See Society for Good Will, 737 F.2d at 1250. While it may be regrettable that the Center's residents do not receive the optimal PT services available nationwide, my task is to determine only whether the record demonstrates that the physical therapy services
50. The proposed findings of fact submitted by the United States regarding proactive medicine concentrate on the staffing ratios for the physicians and the inadequate documentation. See 84/X11. Mr. Bellomo testified that the Center routinely conducts the following: screenings for tuberculosis, the administration of flu vaccines, mammograms, chromosome studies, routine blood work

provided at the Center substantially deviate from accepted professional practices. I find that they do not.
6. GENERAL MEDICAL CARE
The United States contends that the Center fails to provide adequate continuity of care. Such care allows medical professionals to be "proactive" or preventive in nature, as opposed to being merely reactive. 41/146. Continuity of care is provided by a physician or group of physicians who provide medical care for an individual on a consistent basis for all of that individual's ailments. This long-term relationship between the medical practitioner and patient enables the medical practitioner to anticipate and identify problems which may arise. As a result, the medical practitioner can initiate treatment either to prevent or reduce the intensity of problems. 41/147.
Dr. Sulkes believes that proactive care is essential for the developmental^ disabled population, and is "the reason to have physicians in a place like [the Center]." 41/147. He further opined that the Center's proactive care is inadequate because the size of the medical staff is too small and the medical record documentation upon which long-term proactive care is based is deficient. 41/148.*°
Dr. Sulkes noted that the Center has four physicians, each physician with a caseload of approximately 120 residents. Dr. Sulkes believes this doctor/patient ratio is reasonable. 41/150. Vacations, holidays, sick time, and continuing education commitments raise the real average caseload, Dr. Sulkes contends, to 160 residents per doctor, which is too high because the physician must consider chronic problems, see more residents and consider long-range planning. 41/150.
Dr. Kastner, a pediatrician who works with the developmental^ disabled, testified on behalf of the Center that the increased case-
such as chemistry and blood counts, pap smears, urinalysis. breast exams, and visual screening including glaucoma testing. 62/186. All of these
measures constitute proactive medicine inasmuch as they arc provided for the purpose of identifying an ailment before symptoms become apparent.-

U.S. v. COM. OF PENNSYLVANIA

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Cllc as 902 F-Supp. 363 (W.D.Ps. 1995)

loads resulting from a physician being tem- of the resident's health, and prevents medical

porarily unavailable was not unacceptably problems from getting "lost in the shuffle."

high. He was "completely comfortable with a physician managing a hundred-nineteen residents and with that ratio going up when a physician is ill, on vacation, or at a continuing education program." 48/99. He noted that he has observed staffing ratios ranging from one physician per 96 patients, to one physician for 258 patients, 48/99, although he found the latter ratio unacceptable. 48/99.

41/157. Dr. Sulkes further described that there should be two levels of medical documentation: documentation of acute medical problems, and documentation on a chronic level. 34/2-3. He acknowledged, however, that the Center has three levels of documentation: daily progress notes for documenting acute medical matters; sixty-day notes for an overview of that two-month time period; and

Dr. Shertz, the Center's medical director an annual review, which provides a summary

and a physician, noted that the actual case- of the chronic care for that resident 34/3.

load for each physician varies, and that the residents with the "greatest medical problems have a better physician ratio." Exh. 63232. Dr. O'Connor covers the Keystone living unit and her caseload is approximately 92 residents. Dr. Shertz' caseload is approximately 90 residents, and Drs. Lightbourne and Rayes have a caseload of approximately 130 residents. Exh. 632/33. Nor does coverage of another physician's caseload necessarily result in an equal division of that caseload among the three other physicians. The distribution is dictated by the demands of the caseloads which staff physicians have at the

Despite these three levels of documentation, Dr. Sulkes concluded that the Center's documentation did not accord with accepted professional practice, and that it was incomplete, episodic and reactive. 41/149; 34/5. Dr. Sulkes opined that the documentation failed to establish follow-up on medical problems or acknowledgment of the resolution of a medical problem. 34/12. The United States contends that this inadequacy in documentation was noted in the January 1993 Inspection of Care survey. 34/12, citing Exh. 67/8-E.

time that coverage is needed. Exh. 632/3537. Dr. Shertz believed that the coverage provided was adequate and did not feel that another physician was necessary. Exh. 632/37-38. Dr. Shertz' comfort with the staffing ratios was partly attributable to the fact that the Center's physicians have a low turnover rate, which has enabled the physicians to become familiar with all of the residents over time. Exh. 632/41.

Dr. Kastner agreed with Dr. Sulkes that there were problems with the medical records maintained by the Center. 48/142-45. He explained that the medical records were maintained on the residential living units, and that staff were familiar with and able to use the records. He noted that a resident's medical record did not include a list of active and inactive problems, but did include incident reports, and behavioral data. Laborato-

[89] I find that the Center's physician ry data, procedure results and consultation

staffing ratio is within acceptable profession- reports also were maintained in the record,

al standards, and takes into account both the but there was rarely any documentation by

medical needs of the residents, as well as the the physician regarding such results or eval-

familiarity of the physicians with those resi- uations. Annual review notes were generally

dents.

thorough and effective at maintaining conti-

Dr. Sulkes' opinion that inadequate medical record documentation exists at the Center is grounded in his contention that that documentation does not accurately depict the resident's long-term care, and fails to coordinate and document input from consultants and/or hospitals. 84/XII-2-15. Dr. Sulkes opined that medical documentation enables the practitioner to grasp a long-term picture

nuity of care, he said, but could be more complete. Transfers from the Center to Mercy Hospital were noted as either incomplete or non-existent Exh. HH, § G. As a result, Dr. Kastner opined that the medical records at the Center were "somewhat disorganized," Id. and the "most significant deficiency was the organization of the record." 48/145.

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902 FEDERAL SUPPLEMENT

[90] Inadequate medical record documentation does not mandate finding that medical care is constitutionally deficient. Paperwork exists to aid in patient care, not to satisfy some independent constitutional duty. Dr. Kastner concluded that these were "[w]eaknesses at the Center I did not feel were significant and did not adversely affect the quality of [care]." 48/148; see also Exh. HH, § G. Furthermore, he opined that "[i]n general, these [summary notes] are thorough and effective at maintaining continuity of care," and "[ojverall, the medical records of clients at the Ebensburg Center are effectively used by the medical staff to provide care to the residents." Exh. HH, § G.
Dr. Kastner also noted that residents have one comprehensive record that addresses not only medical care, but also habilitative programming, social services and other areas of concern. 48/142. This comprehensiveness, he noted, is both "its strength and weakness" because some parts are emphasized at the expense of other portions. 48/142-43. He also acknowledged that, as a physician, he feels that the record should emphasize medical issues, although the Center "made a very clear decision to deemphasize the medical nature of the records." 48/143.
[91] I find the Center's medical record documentation, though sometimes flawed or inadequate, meets the acceptable professional practice standard. It is effective at maintaining continuity of care, which is how Dr. Sulkes defined proactive medicine. In addition, Dr. Kastner's objective testimony51 shed light on what constitutes minimally accepted standards across the medical profession because it noted that the physician input into the medical record could be better, "just like in anyplace." 48/143. Despite guidelines which require extensive documentation by physicians, accepted professional practice tolerates documentation which does not necessarily meet those goals.
7. GENERAL NURSING CARE
The United States contends that the Center provides inadequate nursing care in the

following respects: (1) acute and chronic nursing care does not meet professional standards; (2) nursing responses to injuries have been delayed; (3) nursing care plans are inadequate; (4) nurse recordkeeping is inadequate; (5) nurses need additional training; and, (6) the role of the Ebensburg Director of Nursing is too limited. 84/XII-20-29.
The United States' expert in nursing care, Ms. McGowan, asserted that acute and chronic nursing care did not meet professionally accepted standards. 35/168. In particular, she asserted that nursing care failed to identify or assess significant health care problems and formulate adequate treatment interventions for residents. 35/170-01. She claimed that, as a result, the health of some residents has deteriorated and necessitated hospitalization at times. 35/168-69.
[92] Ms. McGowan opined that nursing care assessments, which should be initiated when a resident's health is compromised or at risk, are inadequate because they fail to include such basic nursing measures as auscultation of breath sounds, measurement of abdominal girth, testing for occult (hidden) blood in vomitus or stool, or a resident's vital signs. The failure of the nursing staff to initiate tests of vomitus or stool for occult blood does not show deficiencies in nursing care. Carole Sponsky, the Center's Director of Nursing, explained that tests for occult blood are performed by the laboratory pursuant to the order of the physician. Exh. 638/22. This testing is diagnostic, and may be executed by a registered nurse only as part of a medical regimen prescribed by a licensed physician. See 63 P.S. § 212. There was no evidence that nursing staff failed to carry out testing as directed.
The remainder of the United States' evidence about acute and chronic nursing care concerned the treatment of seven residents who died between 1990 and 1993, and testimony from a Center nurse acknowledging that assessments need to be more "in-depth." Exh. 638A/85. It is undisputed that nursing assessments can be improved at the Center.

51. Dr Kastner scrutinized the Center and was willing to acknowledge not only its pros, but also its cons. I note his past experience as an expert

consultant for the Department of Justice, various states and other entities. 48/27.

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Cite M 902 F.Supp. 5*3 (W.D.Pi. IWS)

The relevant question, as in other areas, is minutes—a substantial deviation from ac-

whether the assessments meet minimum con- cepted nursing practice which requires the

stitutional standards.

nurse to assess the resident and then advise

[93] I credit the testimony of Marcia Stiles. Ms. Stiles, an employee of the Center for at least fourteen years as a registered nurse supervisor (RNS), conceded that she

the medical practitioner of her findings. Further, no evidence showed that James W. suffered any additional harm due to the delay in treatment

would like to see more In-depth" assessments and documentation of such assessments. Nonetheless, she opined that nursing care was adequate. Exh. 638A/85-86. Carole Sponsky, the Director of Nursing, echoed this sentiment Exh. 636/41. In contrast, Ms. McGowan could find nothing at the Center that was adequate. I am skeptical of such a blanket condemnation. The Center has 472 residents who receive nursing care, and the occurrence of seven deaths over a three-year period, while regrettable, does not demonstrate in and of itself constitutionally inadequate acute and chronic nursing care.
The United States also alleges that the Center's nursing care is inadequate because there have been delayed nursing responses to injuries; one resident, James W., was seriously injured by a resident who was hitting and kicking him. An RSA discovered the incident at approximately 8:30 a.m. and failed to report the same to the nurse until approximately 11:00 a.m., when James W. complained of chest pain. The nurse assessed James W. and observed bruising of the left lower rib cage and noted a "clicking"

[95] The United States also points to alleged delayed responses in nine other recent incidents as further support for its contention that nursing care is inadequate. Exh. 790. Review of that exhibit, however, again shows that the delay in seven of the nine instances was attributable to the RSA staff, not the nursing staff. Id. Again, this cannot be the basis for finding nursing care constitutionally deficient The evidence is insufficient to establish that the nursing care is inadequate because of delayed responses to injuries.
Documentation by the nurses at the Center is also constitutionally inadequate, according to the United States. The United States asserts that Ms. Stiles admitted the inadequacy of the recordkeeping. The United States also points to Ms. McGowan's testimony that in reviewing the records of residents, she "often had to search in as many as four or five different places to track one piece of information." 35/172. Ms. McGowan stated that the "[c]harting system is faulty. The nurses are not using accepted patterns." 35/180.

sound upon palpation. The nurse notified Ms. McGowan's testimony, however, failed

Dr. Shertz at 11:15 a.m., he ordered James to shed any light on what constitutes accept-

W. sent to Mercy Hospital for evaluation, ed minimum professional "patterns" for nurs-

and an ambulance transported James W. to ing care documentation. Because nursing

Mercy Hospital at 12:30 p.m. A CT scan at documentation is used by both the nursing

the hospital revealed a ruptured spleen, and staff and the physicians, it is logical that

a pneumothorax. A splenectomy had to be nursing documentation would be consistent

performed and a chest tube inserted. Exh. with the physicians' documentation and in-

501(dd)

clude entries on both an acute and chronic

[94] The United States contends that such delayed response was unacceptable in light of professional standards. The initial

level. See 34/2-3 (two levels of medical documentation for medical practitioners) and discussion of physician proactive care, supra.

delay in reporting the incident, however, was In this case, the evidence establishes that

attributable to action by the RSA, and not nurses document on two levels as well.
the nursing staff. Exh. 501 (dd). Therefore, Nursing documentation regarding acute care

nursing care cannot be found constitutionally is set forth on the interdisciplinary progress

remiss on this basis. Nor do I find the lapse notes addressing day-to-day matters. Exh.

of time between the report to the nurse and 637/13-14,27; Exh. 622/49-54. Nursing doc-

the nurse's report to Dr. Shertz—fifteen umentation regarding chronic care is set

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902 FEDERAL SUPPLEMENT

forth on the 90-day summaries. Exh. 637/27; Exh. 622/55. In addition to these two types of documentation, there is a daily log on each unit and a "Cardex" for each resident that relates the treatment ordered for that resident by the various disciplines. Exh. 636/72. There are also "quarterly physical assessments, nursing physical exams, . . . and annual in-depth assessments ..." Exh. 638A/86.
[96] While it may have been onerous for Ms. McGowan to search through the file to find such information, she does not work at the Center and therefore lacks the familiarity that would come from using the chart on a regular basis. Her personal viewpoint does not warrant a finding of constitutional inadequacy. Neither does the United States' assertion that Marcia Stiles "agrees that Ebensburg nurses need to better document their nursing assessments." 84/XII-27. Ms. Stiles stated that she would "like to see more in-depth assessment I'd like to see documentation showing that assessment" Exh. 638A/85-6. She then elaborated that there is "a lot I'd like to see." Id "I'm not criticizing what we're doing now, it's just that it can always be better." Exh. 638A/86. I find Ms. Stiles' testimony insightful. She finds the documentation acceptable, but she acknowledges that it can be improved. Undoubtedly it can. But the fact that there is a better way to accomplish a task is not tantamount to a constitutional violation.
Next, the United States submits that the nursing care is inadequate because nursing care plans do not meet accepted standards. Instead, the nursing care plans consist of nursing diagnoses which are not supported by data, and objectives which are not capable of being measured. 35/190-91. In addition, the United States notes that the nursing care plans are not individualized to identify, and provide for, each resident's needs, but instead consist of general instructions to direct care staff. See Exh. 638/exh. 30. As an example of a nursing care plan which fails to meet accepted professional standards, the United States points to the nursing care plan for Tim P., a resident confined to a cart at the Keystone unit.

The Center's nursing care plans are general, see Exh. 638/exh. 30, but the nursing staff modifies the plan to suit the residents' individual needs. Exh. 637/65. In fact, the nursing care plan for Tim P., which has been applied since March 1987, has been individualized, specifically references bis cart, and addresses the potential for skin breakdown. Exh. 973. This nursing care plan for skin breakdown has been in effect pursuant to consistent reviews for its continued application. Id. The mere fact that it has been on Tim P.'s chart since March 1987, is of no significance. Tim P.'s inability to bear weight (ie., he has been confined to a cart) has been a constant He therefore remains at risk for skin breakdown, and it is logical that the nurses continue to monitor him for signs of this condition.
[97] The Center's standardized nursing care plans for problems frequently encountered by its residents, standing alone, would not comport with the accepted professional practice, which requires individualized plans. However, because these standardized plans are modified, amended and tailored for each of the Center's residents, I find that the plans fulfill the requirements of accepted professional practice and cannot be deemed constitutionally deficient.
The United States also asserts that the Center is deficient because the nurses lack sufficient training. 35/210. The United States cites Ms. Sponsky's deposition testimony that "training is important for nurses" (Exh. 637/S8-89), and faults the Center for not requiring nurses to have any educational background or experience in working with the developmentaUy disabled at the time of hire, nor requiring additional training once hired. Exh. 637/82, 89. The Center's collective bargaining agreement with its nurses provides for the allotment of a certain sum of money for training. Exh. 624/29. The United States suggests that the Center's assistant director, Mr. O'Brien, acknowledged that "most nurses do not use that" Exh. 624/29.
[98] The United States' position that the nursing care is deficient because of inadequate training constitutes nothing more than an assertion that mandatory continuing edu-

U.S. v. COM. OF PENNSYLVANIA

631

CluuM2 F^upp. 3*3 (W.D.P*. 1993)

cation for the nursing staff would be better freedom from undue restraints. According

than the current practice, payment for op- to the United States, the administrators of

tional training outside the Center. Whether state public institutions must provide train-

another set of rules regarding training ing programs and other services that are

and/or mandatory continuing education for nurses would be better is not the issue that is before me. The Center's practice regarding additional training for its nurses is not a substantial departure from accepted professional practice. Pennsylvania's Professional Nursing Law, 63 P.S. §§ 211, et aeq., does not require the acquisition of a specified

"based upon appropriate assessments, developed to meet residents' individualized needs, consistently implemented, and designed to teach residents those skills necessary to live more normally and to avoid developing or exhibiting dangerous and other anti-social behaviors." 87/13.

number of continuing education hours per The United States argues that the Cen-

year for license renewal. See also Exh. ter's training and behavior management

624/29-30. Moreover, the record demon- practices are deficient in (1) assessment; (2)

strates that the Center does provide additional training, both optional and otherwise, for its nurses. As noted previously, the Center's collective bargaining agreement with its nursing staff includes an allotment for each nurse to obtain training outside of the Center, and some of the nurses take advantage of this opportunity. Exh. 624/29-30. In addition, training is offered at the Center on both a formal and informal basis throughout the year. Exh. 638/69. While the United States contends that Mr. O'Brien acknowledged that most nurses do not use the money for outservice training, I note that his deposition testimony did not specifically refer to the Center's nursing staff, but instead was a statement applicable to nurses throughout the Commonwealth.

program development; (3) program implementation; and (4) program review. 87/15. The United States claims that the Center's living areas are barren and lack meaningful activity; the Center generally fails to develop and implement training programs, and those programs that do exist are inadequate (they are not appropriately revised, skills training programs lack psychology input, occupational therapy services are inadequate, and the speech and hearing staff at the Center fail to meet the residents' needs); the Center's behavior management services are deficient and do not comport with accepted professional standards; the Center has insufficient psychologists to provide services that meet accepted standards; the behavior programs are not individualized, effective, properly imple-

Finally, the United States contends that mented, properly reviewed or properly re-

the nursing care is inadequate because the vised. See 83/V1-1 through VII-60.

role of the Center's Director of Nursing is

too limited. It submits testimony from the This failure to provide adequate training

Center's Director of Nursing and another and behavior programs, the United States

nurse at the Center as support for this con- claims, has resulted in residents suffering

tention. See 84/XII-29-30. The United "both serious injury and undue restraint"

States offered no evidence to establish what (87/13-14) in the following respects: 1) the

constitutes an acceptable standard for a Di- Center's failure to implement proper training

rector of Nursing position. I cannot create programs has resulted in the deterioration of

out of whole cloth what the acceptable stan- residents' self-care skills and/or has failed to

dard should be.

provide residents with the ability to enhance

their level of functioning; 2) the Center has

D. Adequate Training And Freedom failed to implement behavior training pro-

From Undue Restraint

grams and/or therapeutic living environ-

The next category of "liberty interests" secured by the Constitution that the United States claims has been violated at the Center concerns the right to adequate training and

ments to address maladaptive behaviors, and residents are harming themselves and others; and 3) instead of developing training programs to address maladaptive behaviors.

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902 FEDERAL SUPPLEMENT

the Center relies upon physical and chemical agreed that "the more programming with

restraints to control the residents."

meaningful activities that go on, generally

[99] A number of these issues are addressed elsewhere in this opinion, in part or in full (e.g., the Center's duty with respect to safety; the Center's duty with respect to training; the issue of chemical restraints), and those discussions will not be reiterated here. For the reasons explained in the discussion above concerning physical therapy services, I reject the United States' conten-

the fewer accidents and injuries that occur." 51/35. See 43/53 (u[I]f you fail to provide adequate training programs to anybody, any human being, what happens after a while is that inactivity, boredom . . . withdrawal, self stimulation, frustration, anger begins to set in. That leads to . . . self injurious behavior."). Beyond this basic starting point, however, the parties' positions widely diverged.

tion that the Center is under a constitutional duty to provide services that enhance the residents' level of functioning. See Society for Good WiU, 737 F i d at 1250 ("We conclude that [the deprivation of a liberty interest] exists when institution officials fail to exercise professional judgment in devising programs that seek to allow patients to live as humanely and decently as when they en-

At trial, Dr. Stark testified on behalf of the United States about the progress that has been made in the provision of services to mentally retarded individuals (43/67-71), asserting that care providers have "gotten away from custodial care." 67/71.
Custodial care, meaning where you feed them, you clothe them, you just take care

tered the school, ie., when there is no indi- of their very basic needs. We're saying

vidually oriented, professionally devised pro- that that's not enough. WeVe gone to

gram to help [the] residents maintain the teaching, adaptive functioning skills. Peo-

fundamental self-care skills with which they ple have a right to habilitation, they have a

entered the Center." (citing Youngberg, 457 right to training.

U.S. at 327, 102 S.Ct at 2464)) (emphasis 67/71-72. Dr. Stark's testimony, however,

added).

while certainly well-intended and a fine dem-

As with all other areas in this case, the onstration of the care to which many profesparties on both sides presented expert testi- sionals aspire, provided little assistance to

mony concerning training programs, the the Court in determining the applicable con-

treatment of maladaptive behaviors in the stitutional standard with respect to minimally

mentally retarded population, and the provi- adequate training and behavior management

sion of behavior management programs. programs. See 67/85 ("My second concern is

The United States' three psychology experts that the environment at Ebensburg is one

(Dr. Stark, Dr. Russo, and Dr. Amado) and which could be described as largely custodial

the Center's psychology expert (Dr. Reid) all as opposed to a teaching environment.");

32. The general tenor of the United States' position on these points is best summarized by its description of the alleged "pattern of harm" at the Center:
This pattern of harm is pervasive at [the Center]. There are too many individuals with special needs confined in too small a space with too few staff and a lack of meaningful and stimulating things for the residents to do. This cramped and monotonous existence would be difficult for most individuals to endure for a prolonged period of time. It has been dangerous and destructive for the mentally retarded individuals who have been subjected to decades of this existence at (the Center]. Residents live in groups of approximately twentyfour individuals, with whom they spend the majority of their time, day after day, idle in large dayrooms on the living units. The residents do not have adequate activities and staff

interaction, particularly during mealtimes, medication administration, and afternoon and evening hours. Significant periods of the day are consumed waiting for toileting, and dressing, for the many residents for whom they are responsible. Rather than staff using these occasions as learning opportunities, these duties take on a custodial function. The scanty block of time during weekdays devoted to "program" hours off the living units is similarly wrought with much idle time for a number of individuals. Often, staff spend so little time with residents that programming is rendered meaningless.
87/16 n. 7. See also 87/14 ("Behavior management programs are grossly inadequate to address residents' serious behaviors, many of which have been created by the Defendants' deficient care and long term institutionalization in the first instance.").

U.S. v. COM. OF PENNSYLVANIA

$33

CIMMN2 TSupp. 5*5 (W.D.Pa. IMS)

67/223 ("And it simply is very hard to work ity going on. There's no training, there's no

in this environment to accomplish the kinds habitation. And that causes that . . . cycle

of things that can be accomplished. There's of harm." 43/106. See also 43/120 ("Lots of

too many people, there's no individualization, times people, when you just get them doing

and there's no hope that—the attitude is something meaningful, enjoyable, and you

certainly not an habilitative attitude or it's an could get rid of a lot of these behaviors.");

environment, custodial care."); 67/224 (The point that I'm making here and the bottom line is that an awful lot can be done with that kind of money if you re-think and re-allocate how things are done, which are—we're losing ground here. People are getting hurt at an accelerated pace. And they're going to continue to get hurt because the aggression I feel is increasing; because what's happened is that people feel there's nothing that can be done and there's nowhere to go, and there's a loss of hope.... [T]hese individuals have had their body taken, but they still have a heart and a soul and a mind. And we need to attend to that").*3

43/125 ("Aggression breeds aggression. People are both victimized and they're victimizers. It's almost as if there is a climate of aggression at this facility, and it's disturbing to see that it continues to be sort of a way of life there. It's like it's an accepted thing or it's like this is what mental retardation is supposed to be like, and it's not"); 43/163 ("This [type of activity] is what we did twenty years ago. This kind of thing is like walking back in time for me, into the early seventies. This kind of program, it's not programming; it's simply trying to keep somebody busy and putting something in front of them.").

According to Dr. Stark, he reviewed a large number of the Center's "Incidence Oc-

Dr. Stark acknowledged on cross-examina-

currence Reports" (a form at the Center tion that he could not point to any objective

which lists the name of a resident, categor- standard in support of his conclusion that too

izes the type of injury that has occurred, many injuries were occurring at the Center,

contains a narrative description, any medical and that this was simply his personal, profesinterventions that took place, and what rec- sional opinion. 41/27.5* In addition, much of

ommendations were made (43/101-02)), and Dr. Stark's testimony appeared to be offered

determined that one of the reasons for what for its shock value, or was condusory and

he characterized as "a lot of aggressive be- failed to provide an informative analysis of havior, self injurious behavior" (43/105) at the the situation.56 Because of this, I accord

Center was that "there's no meaningful activ- little evidentiary weight to his testimony.

53. Dr. Stark acknowledged on cross-examination that he (as well as the associations with which he works) favors community placement for mentally retarded individuals over an institutional setting. 43/234. This bias was apparent throughout Dr. Stark's testimony. See 43/235 (Q. "Do you also remember, Doctor, criticizing Ebensburg because you say there is, quote, no mandate to move people out." A. "Yes, sir; I do remember that. And that was described to me by Mr. O'Brien, who I asked him if they were moving people out, and I was told that they were not and that that—that Ebensburg as an institution would always have to be there because there are not services in the community, which I disagree with"). 43/236 ("You asked me what my professional feelings are, the feelings of my association, the feelings that we have promulgated, our policies throughout the country, and in law. We gave an award to the State of New Hampshire because its closed all of its institutions. State of New York has made a mandate to close theirs by the year two thousand. This is happening around the country, to close institutions, particularly larger institutions."); 43/237 (Q. "Doctor,

if you were giving an unbiased report, why weren't you able to think of even a single positive thing at Ebensburg when I asked you at the deposition to name one single positive thing?" A. "Single positive thing?" O. "That's correct." A. "I don't know; was that the end of the day?").
54. Dr. Stark also acknowledged on cross-examination that the Center had recently revised its reporting criteria for injuries to include incidents that were "no injuries and very minor injuries." 41/30. This change in reporting to include additional incidents (previously unreported as "incidents") may have contributed to the alleged increase in injuries about which Dr. Stark testified.
55. For example. Dr. Stark made reference in his testimony to "Doug":
Another person, thirty-three, Doug, bit off three fingers of his hand in 1984, bit them off. All of his teeth were extracted following the incident. A lot of self injurious behavior, has not progressed I observed Doug during my

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902 FEDERAL SUPPLEMENT

At trial, the Commonwealth presented

compelling testimony by an expert in psychi-

atry, Dr. Hauser, about the complexities and

the competing concerns in providing treat-

ment for mentally retarded individuals:

[AJfter a process of the primary psychia-

trist and even a second opinion, there

might be controversy about management

There might be controversy because of the

natural tendency for polarization. You'll

have the behavioral psychologist saying,

"We should tackle this behavioraUy"; and

you have the medical doctors saying, "We

should treat this with medication more ag-

gressively"; and then you might have an

advocate for the client saying, "Don't use

medication, you're just trying to sedate

them"; and then you might have a guard-

ian saying, "What are the whole bunch of

you doing," ...—so people are stuck, peo-

ple are in conflict. There are competing

principles, and you might call in someone

like me to try to help everybody achieve a

consensus and focus back on the client and

try to think of a treatment plan.

•

•••••

There is definitely a tension between the two modalities of treatment [behavioral treatment and mental illness treatment], and that tension can reach the point of an

adversarial process; and it has happened in the field of care for people with retardation over decades that that polarization has switched back and forth, and it has eventually come to rest now in the effort to have a combined approach or a comprehensive treatment plan of which behavioral modalities are one component and medication modalities are another, and it takes some effort and teamwork to get people to coordinate the care from the two different disciplines.
But there is inevitable tension because some people will believe that further behavioral effort will work and allow to you [sic] avoid medication, but those same people are at risk for avoiding medication when it's appropriate.
50/56, 81-82.
The evidence at trial revealed that within this "polarized field" of care for mentally retarded individuals (where opinions differ widely concerning the appropriate training and treatment to provide to any given individual), the Center has an interdisciplinary system in place which allows it to exercise professional judgment and provide training and behavioral management services within the sphere of acceptable professional prac-

tour, and he's—an extremely agitated individual. The type of individual that I've treated, written about, trained about, etcetera. And he's been on the scene, behavior program since March of '88. That's five years or so. There's changes in time, but most of that is medication, not much of a change in behavior program. 43/150. On cross-examination, however, the following exchange took place: 0. Doctor, would it surprise you if I told you
the medical records indicate this history from him: He bit his index finger, he went to the hospital, it became infected, it was amputated at the hospital. He nibbled on his thumb and mutilated it; that had to be amputated also at the hospital. The doctor at the hospital—doctor recommend that his teeth be pulled, and they were pulled at the hospital. A. That's fine. I think that's a pretty drastic move by any doctor to recommend that a person with mental retardation have their teeth pulled because you can't set up a behavioral program to keep them from biting their fingers.
Q. You do understand [the Center has] no control over Mercy Hospital . . .

A. I think you ought to have control over the hospital. I think somebody ought to stand up for that individual's rights and say to that doctor who recommended that that that not be done.
41/63-64. See also 62/147-49 (following amputation of right index finger while in Mercy Hospital, on "the first post op day, despite high doses of sedation, [Doug] became very difficult to control, and he was subsequently found to have bitten his amputation site and both his t h u m b s — It was feared that his self-abusive behavior would result in a loss of all his digits. This was thoroughly discussed with the family [by the doctors at Mercy Hospital], and it was agreed that he should undergo surgical removal
of all his teeth the night prior to the full mouth dental extraction [at the hospital]—his behavior became erratic and very difficult to control; and he subsequently autoamputated the distal phalanges of his right thumb with his teeth and also bit the left thumbnail off. The following morning the distal thumb was surgically amputated and the left thumbnail completely excised. Full mouth dental extraction was simultaneously performed . . . " ) .

U.S. v. COM. OF PENNSYLVANIA

635

ClltuWU F.Supp. S«S (W.D.Pa. I99S)

tice. For each concern raised by the United A unit system is . . . [a] method of opera-

States' experts, the Commonwealth respond- tion that really became popular in the

ed with credible expert testimony which 1970's, and the purpose there was to get

demonstrated that professional judgment away from the clearly delineated—what

had, in fact, been exercised, and that the care became isolated-r-roles of different profes-

provided did not substantially depart from sionals. Prior to the unit system there

acceptable professional practice.

were a whole lot of problems in service

Dr. Reid, an expert in applied behavior analysis, behavioral disorders, skill acquisition training and psychology services to the mentally retarded, testified at trial on behalf of the Commonwealth defendants. Dr. Reid, who in the past has been retained by other facilities involved in Department of Justice investigations and has found certain institutions to be inadequate (51/42), provided a broad overview of the psychological services

settings in which the psychologist would come in and do one thing, the occupational therapist would come in and do one thing, and no one had any idea of what the other person was doing; and there was no person really responsible for coordinating all those services for one particular client
The unit system generally was established to try to get a better coordination of all those services.

provided at Ebensburg and compared them

to the services provided in other institutional facilities and community-type agencies. 51/11. Dr. Reid explained that he made two separate visits to the Center to "evaluate the environment and the degree to which people Uving at [the Center] were participating in meaningful therapeutic activities" and to col-

[I]n our field not many things are perfect; and the unit system certainly isn't perfect, but I think the biggest advantage of the unit system is that it does allow for better coordination of services across disciplines.
51/17-18.

lect data "regarding the degree to which The Center has three levels of behavior

psychological programs for people with se- programs, which are categorized according to

vere behavioral problems" were implemented the restrictiveness of the intervention. Not

by the Center's staff. 51/8.

everyone at the Center has a serious behav-

With respect to the United States' contention that the Center is barren and lacks meaningful activities, Dr. Reid testified that he "found the treatment environment overall, based on the data we collected, comparing it to other institutional facilities and community-type agencies, that the degree to which people living at Ebensburg Center are participating in what we call active treatment or meaningful purposeful activities, while there's certainly room for improvement, it's representative of about the average in the field." 51/11.*

ior disorder or needs a behavior program plan. 51/16. A nonrestrictive program is designated as a "Level One." A "Level Two" program is more restrictive, and a "Level Three" program calls for intervention of physical restraints if a resident's maladaptive behavior poses the risk of harm to himself. 51/10; 37/26; Exh. 592.
The Level Two and Level Three behavior programs follow standard forms, Exh. 592, and are tailored to the resident. For each resident, the program identifies the undesirable behavior, the positive reinforcers for that resident, and the situations which help

As Dr. Reid explained, the Center is orga- predict the occurrence of that behavior. The

nized along the lines of a "unit system": program also contains training of adaptive

36. Dr. Reid acknowledged that "although the
degree to which their residents are involved in meaningful activities is representative of the average it could certainly be improved. The less time people spend doing nothing, the better." Id. See also 51/23 ("This is not to say that there shouldn't be improvements. I think there should, but that's a kind of service delivery that

never goes away. I mean keeping individuals with severe and profound mental retardation involved in meaningful activities is very difficult. It takes constant effort. So I would not agree that they [the residents] were perpetually in a situation of nonactiviry But I think it's an area that Ebensburg is doing relatively well, in light of the task at hand.").

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902 FEDERAL SUPPLEMENT

behaviors (rather than merely attempting to eliminate undesirable behaviors (51/21)), as well as "DROs" (differential reinforcement of other behavior),57 which the psychology staff create and implement 51/21. Since behaviors such as biting, self-injurious conduct, aggression, kicking, and hitting are not limited to a single resident, it is to be expected that some behavior plans will be similar. See Exh. 856.
Or. Reid specifically reviewed all of the plans for residents with the most severe behavior problems, and testified that "all of those were individualized." 51/21 ("There were individual differences in behavior definitions listed in the programs. There were individual differences in the reinforcers to be used or the consequences for desirable behavior. There were differences in the situations likely to evoke behavior problems. There are a lot of similarities across the programs, too, but there were differences.")." Dr. Reid also concluded that psychologists are involved in the development of "positive habilitative plans." 51/24-25.
[100] The behavior plans are implemented throughout a resident's day—during leisure time as well as during active treatment. "Active treatment" is a means of providing stimulation to a resident to promote the acquisition or maintenance of skills and to re-

duce the occurrence of maladaptive behaviors. 51/44-45.** Most professionals now agree that such treatment should attempt to incorporate the use of "age appropriate" materials (for example, avoiding the use of a child's toy in a training program for an adult). This cannot always be achieved, however, because some residents have mental retardation of a severe and profound nature, and some age appropriate materials do not provide safety features that are found in age inappropriate materials, such as those designed for young children. 51/35-36.*° Most workshops, day activity centers, group homes and schools for mentally retarded individuals still utilize age inappropriate materials (51/36), and I do not find the Center's continued use of such materials a substantial departure from acceptable professional practice.
I further note that training is provided by the Center at the Gary Bain Center, a sheltered workshop that serves as a vocational program. Approximately one hundred individuals attend the workshop (some nonresidents participate in the program, but the vast majority are residents of the Center), Mondays through Fridays, from approximately 9:00 a.m. to 3:00 p.m. 37/17; 51/173. Dr. Russo, testifying on behalf of the United States, found the Gary Bain Center to be a

37. As explained by Dr. Reid, "if i n individual is engaging in aberrant or maladaptive behavior, say aggression, then the DRO component of a program would be that we would want to reinforce that person for any other behavior besides aggression, with the idea being we could increase other behavior; as other behavior increases, the aggression is going to go down." 51/22.
58. In responding to the criticism by the United States that many clients have only one behavior program even though they have a multiplicity of problem behaviors. Dr. Reid explained, "[I]t varies from client to client and need to need. Sometimes individuals will need separate programs for separate [problems]; sometimes one program is sufficient for all the behavior problems. In some cases particular behavior problems are part of what we call 'response class.' They all serve the same function for the individual, even though their topography is different, and in that case one program would be sufficient. So it's an individual thing. In some cases one program is sufficient, and in other cases they're not." 51/31. It is a matter of professional judgment.

59. Dr. Reid did not find it problematic that the Center has been cited in state surveys as failing to provide active treatment to some residents, because the Center has never been "decertified" (which would occur if the Center was truly not providing such services). 51/83. See also 51/82 ("You know, I've gone through a lot of ICF state surveys. I have not in the Commonwealth of Pennsylvania. I've never seen a survey except one time in my twenty years in the field where they didn't cite anything. And I've experienced a lot of surveys. So, in all honesty, I don't put a whole lot of weight on ICF level deficiencies. If a facility has been decertified or is going through the steps to be decertified, then I would look at that carefully . . . " ) .
60. See also 51/95 ("By definition if it's a toy, unless it's an adult toy. it's not going to be age appropriate It might be therapeutic, it might not. By definition, it's age inappropriate if it's a children's toy being used by an adult.").

U.S. v. COM. OF PENNSYLVANIA

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CIUu902 F.Supp. 3*3 (W.D.Pa. 1993)

positive aspect of the Center, and stated that viduals to have comments and offer recom-

it "is a program that is very representative of mendations.

supported work programs for the mentally retarded." 37/120. See also 51/38 (the Center provides a variety of paid employment training opportunities for the residents).
The Center's primary data collection system with respect to behavior management, which is "relatively standard in the field" (51/28), involves the staff recording "on a twenty-four hour basis the frequency of target behaviors, behaviors that have been defined through the program plan." Id. For individual, special cases, the Center may utilize other data collection systems as well, "which is a pretty standard process, too; to have one overlying recording process, and then in individual cases bring in others." 51/28-29. The intensity or duration of behaviors are not documented as part of the Center's standard practice, but most schools, group homes and institutions do not maintain such data. 51/98-99. The data collection at the Center is adequate to provide acceptable treatment. 51/152.

Id
[101] In light of all of the foregoing, I find that the Center's interdisciplinary approach to providing training and behavior management services does not substantially depart from acceptable professional standards. In reaching this conclusion, I credit the expert testimony of Dr. Reid, who compared the services at Ebensburg with those provided at other places of care for mentally retarded individuals. 51/9-10. The "weaknesses" at the Center are an unfortunate part of the difficult task that confronts care providers in this field, both institutions and other care environments. 51/162-63. This is not to say, however, that because things are "bad" elsewhere, the problems at the Center are acceptable. As Dr. Reid explained:
Some of the weaknesses that I found at Ebensburg are characteristic . . . of weaknesses in lots of different types of programs serving groups of people with severe disabilities, be it institutions, schools,

With respect to the review approval and group homes or whatever.

monitoring process for treatment plans (which Dr. Reid characterized as "excellent"), the Center is properly structured, with its "key people" reviewing programs beforehand, the behavior management committee meeting regularly, and the senior staff at the Center reviewing accidents and injuries. 51/36, 120-21; Exh. 93. Credible evidence was presented at trial that the staff implements the behavior programs effectively. 51/112.

Now, I'm not saying, getting back to your other question, if you find a whole bunch of agencies that are providing, in my opinion, poor services, does then finding one agency providing similar services make them adequate; no, I wouldn't make that conclusion. What I'm saying is, you know, our technology or lack thereof, if you will, of providing services to people with severe disabilities—and keep in mind I don't mean to be lecturing—but people at

In deciding whether medication should be Ebensburg Center and the other agencies

utilized as part of a resident's program, "the I'm talking about, they are a very small

model of service delivery at Ebensburg, as portion of the people with mental retarda-

well as most agencies in the country, is a tion. They have the most serious type of

team process" (51/30), and the psychologists are involved in making the decision. As Dr.

mental retardation and other types of problems.

Reid explained:

Our ability to provide an optimal thera-

[A] psychologist certainly should be in- peutic environment for them, frankly, is

volved in the process through which it is not real good. And I can go into what's

decided whether medication is or is not considered the best school program that I

going to be used in regard to behavior problems. It's not the psychologist's responsibility to prescribe it, or make a final determination; that should be the psychiatrist. But we certainly want a lot of indi-

know of, and I can find, a lot of time, a lot of weaknesses; so that's kind of how I'm evaluating it. If .the weaknesses I found on [sic] the Ebensburg Center were much more serious or much more prevalent than

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902 FEDERAL SUPPLEMENT

what I typically see in applied settings,

then I would be very seriously concerned;

and I have found those in agencies, but I

did not find those at Ebensburg.

•

•••••

What I'm saying is it's within the realm of standard practice, and it's not j u s t keep in mind the day treatment programs at Ebensburg were compared to school programs serving people with severe disabilities. The living units were compared to other living units in other institutions. It's not just an institutional area.

What I'm saying, if you take all the

observations in the classroom—and I do

qualify it, all the classrooms, thirty or forty

something classrooms were in North and

South Carolina, more restrictive part of

the country

The institutions were in

a lot of different states. But Ebensburg

services were at a par with what the aver-

age of those services in all those other

sites were.

51/161-62.

The injuries that occur at the Center, which are sometimes quite serious and obviously not desirable, are "not unusual by any means" in similar care settings. 51/173.*1 The staff at the Center is "concerned and involved" (50/126-27), and expects the residents "to be able to benefit from the staffs' interaction and from the treatment modalities." 50/97.

[102] The United States claims that the Center does not utilize a "functional analysis" in its treatment of the residents' maladaptive

behaviors, and that the failure to utilize functional analysis in conducting a behavioral suppression program constitutes malpractice." Functional analysis endeavors to ascertain the function of a certain behavior for a particular individual—a "way in which causation is potentially inferred for a behavior problem, and it's a way in which one attributes a possible treatment to the behavior." 37/43. See also 51/26; Exh. 30/8. Ideally, if it can be ascertained why a resident resorts to maladaptive behaviors, behavior management plans can be developed which might be more effective in decreasing the incidence of maladaptive behavior and replacing it with alternative acceptable adaptive behavior. Exh. 30/9.B
Functional analysis does not always identify the cause of the behavior. Experts in the field do not agree on the degree to which it actually results in better treatment, and whether a formal functional analysis is necessary in order to exercise professional judgment in providing treatment 51/26-27, 103. The Center began to perform formal written functional analyses on some of its residents beginning in March of 1993, and less formal, broadly defined "functional analyses" (as utilized in Pennsylvania's 1988 statewide policy on this issue) have been performed at the Center for "quite some time." 51/100-02; Exhs. 963, 964.
[103] The United States complains that the Center does not have psychologists on duty on weekends and nights, and that the Center does not have enough qualified psy-

61. See also 51/125 ("Now, if you take people with severe disabilities, with severe behavior problems—and I assume you're taking the fifteen people whose programs I reviewed .. .—those reflect the most serious behavior problems at Ebensburg Center; and their current rate of injuries resulting from those is one per person per month. This might sound crude; that's not an unusual rate of injuries for those types of behaviors, for the most severe behavior disorder cases out of all of Ebensburg's client population. That would not be unusual. 1—I'm not saying it's
acceptable. Serious injuries are not acceptable,
but they occur. That would not be unusual in a similar population in any setting I'm aware of. one per month."); 51/14 C'[M]y experience over the last twenty years is that [the mentally retarded population is] more accident-prone; and it seems to me to be expected, given the high

incidence of seizure disorders, the many types of physical disabilities that interfere with coordination.")-
62. Malpractice, as explained a number of times already in this opinion, is not the governing standard in this action. Here, again, the United States chose to present evidence that was not tailored to the applicable constitutional standard.
63. The Pennsylvania Office of Mental Retardation's Statewide Behavior Management Policy, dated December 1, 1988, identifies functional analyses as a component of developing a formal habilitative plan, including the development of alternative acceptable adaptive behaviors. Exh. 30, p. 1.

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539

chologists. The Commonwealth's expert re- leaving the medication low and having the

sponded:

behavior high or . . . having the medication

Well, I can assume that [having psycholo- high and then have the behavior go lower

gists on duty on weekends and nights] again."). The record further reveals that to

could improve services; it would be ex- the extent that "biting" has been identified as

tremely rare. I know of no residential a target behavior in any given resident, the

agency in a community setting or state Center has an adequate treatment plan in

institution that has that. I mean what's place, including documentation, review of in-

generally expected is that there is some juries, and follow-up action. 51/146-47.

administrative person or senior person on

administrative watch or on call that can be [104] The United States challenged the

contacted on the weekends, twenty-four Center's behavior programs by examining

hours a day, if a psychologist is needed. the care of Ann B., a resident who spends a

Typically, it would be that person's respon-

sibility to pull in the psychologist

•

•••••

great deal of time in a restraint chair to prevent injuries caused by self-injury. In response, Dr. Reid explained:

I do not find a problem with the number of psychological staff [the Center has]. I based my conclusion on the finding that I thought their services are within the realm of acceptable practice. So then I assumed if their services fall within that realm, that they have sufficient staff to do that I also assumed they could probably do more if they had more staff.
51/19-20. See also 51/129, 135. I find that the Center meets the constitutional minimum in this regard.*4
With respect to the United States' contention that the Center does not properly address the problem behavior of biting, the Commonwealth responded with credible evidence that "many people manifest the behavior of biting, and it is a challenging problem to deal with in a facility like Ebensburg." 50/125. See also 51/14. Regardless of the treatment employed or the vigilance of the staff, the behavior cannot be eliminated in some individuals. 50/125-26; 51/14. Also, when medication and restraints are lowered, there is a corresponding rise in biting incidents. 50/126 ("If you have a certain level of biting and then you alter the level of one of the treatments, then it's inevitable if they're related, that the biting will go up or down depending on the impact on that particular person; and that you should assess that and then weighing the risks and benefits of either

[Ann B.] has a lot of restraint and that is not good, no doubt about that and I was alarmed when I saw that. So I checked into it further. She's obviously a difficult case, very difficult harmful self-injurious behavior; and what I found when I looked into it was that Ebensburg staff had had considerable difficulty in finding ways to reduce her self-injury. They are currently primarily trying to protect her.
And my comment was: "Well, you need to do more." I mean we just can't keep this—this is one case, mind you; and in response to that what they said, . . . "We're not sure what to do. We have . . . sought external consultation," from the Kennedy Institute, I believe, and . . . they were doing the kind of things that should be done when you have a very difficult case, calling in external consults.
Okay. From what I could tell, that external consultation, nor Ebensburg's efforts at that point, had been successful in figuring out how to treat this gal's real severe self-injury, so they were protecting her. So it's a case that I'm not comfortable with. I work with cases like that too, where I don't know what to do, I haven't been able to find anybody else who does. The problem is they have gone through the process of seeking external professional help; good. If you're asking am I satisfied

64. Much of Dr. Start's testimony suggested that the goal of care for the mentally retarded is to nurture them, much as if they were in a family home. Obviously, in that setting it would not be

possible to have a psychologist always on duty as the United States suggests the Constitution demands.

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902 FEDERAL SUPPLEMENT

with this case, no, I'm not. I hope Ebensburg is not and they continue to find ways to get her out of restraint
51/116-17. Professional judgment has been exercised by the Center in attempting to treat the residents' severe behavior problems."
[105] Contrary to the United States' claim that the Center relies excessively upon physical and chemical restraints to control the residents, I find that the record contains ample credible evidence that the Center's use of restraints does not substantially depart from acceptable professional practice. See, e.g., 50/47 (Center's use of medication came after trying alternatives); 51/43 (Center's use of restraint is well below levels of restraint that occurs in settings serving similar populations); 51/70-71 (restraint used for safety and habilitative purposes).
E. Reasonable Safety And Protection
FTOTH
[106] The United States claims that defendants have violated the residents' due process right to adequate safety by failing to protect them from harm in numerous ways. As explained above, the Supreme Court in Youngberg recognized safety as an "unquestioned duty" that the state must provide to institutionalized residents. 457 U.S. at 324, 102 S.Ct. at 2462. The United States argues that the number of incidents and injuries at the Center is increasing, and that serious injuries are pervasive, chronic and repeated. According to the United States, these injuries primarily have been caused by inadequate staff supervision, unsafe staff actions (particularly with respect to feeding and lifting), the failure of staff to intervene to stop dangerous behavior, and the general failure of staff to protect residents from repeated and preventable harm.
The United States contends that the total number of incidents and injuries sustained by residents at the Center has increased over

the past four years. 43/88. It notes that the total number of reported incidents from February 1991 until February 1992 was 1,707. The number of reported incidents increased the following year to 2,433 (43/97), a 43% increase.
The United States also complains that a large proportion of the incidents are due to unknown causes or are behavior related. 43/103. Dr. Stark opined that such injuries are "easily preventable if the environment is structured properly." 43/103-04. He also claimed that the mentally retarded are not necessarily more injury-prone than the general population. 43/28. As an example, he noted that his son, who is "as severe as anybody" at the Center, had only one incident the whole year. 43/28.
Dr. Stark characterized the incidents occurring at the Center as widespread. He found that 77% of all of the residents had one incident during 1991, and that in 1992,86% of the residents were involved in at least one incident. 43/98-99. He further noted that 131 residents were involved in an incident every other month during a fifty-month period from January 1989 to February 1993. Id, Exh. 777. Dr. Stark's testimony specifically referenced a number of incidents that resulted in relatively serious injuries. According to Dr. Stark, the harm the residents sustain is visible "as you look at these individuals and talk to them, you can see that there is a lot of withdrawal, a lot of anger, a lot of scarring—both physical and emotional, mental scarring." 43/149.
Dr. Stark also claimed that the Center underreported incidents (43/19), and that the actual number of incidents is higher than the number of reports completed.** In addition, Dr. Stark faults the Center for allegedly minimizing the seriousness of the injuries, arguing that the Center rates most incidents as minor by designating them as an "01." Dr. Stark contends that, in reality, many of the incidents such as biting, pica and chok-

65. For another example of the challenged care of a resident and the Commonwealth's demonstration that professional judgment was exercised see 50/103-06 (treatment of Franklin B.) ("This is where we all have to sit together and tolerate the uncertainty and make a kind of a coherent treat-

ment plan for the future and methodically try things").
66. Mr O'Brien conceded that there are a few occasions when this occurs. 66/56.

VS. v. COM. OF PENNSYLVANIA

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ing, are more serious and should be rated accordingly. 43/32, 34-35.
According to the directives of the Pennsylvania OMR, whenever a resident has been involved in a situation that could have resulted in an injury to a resident, an incident report must be completed. Mr. Bellomo ex-

opposed to 01, the number of occurrences of injuries of a more serious nature at the Center actually has remained stable. See 64/83 (from 1991 to 1992,153 02 injuries (which did not include ethistrip or butterfly treatments); from 1992 to 1993, 155 02 injuries (which did include ethistrip or butterfly treatments)).

plained that the Center fills out a report for The Center's incident reports not only pro-

the resident who did or could have sustained vide a classification regarding the serious-

an injury, as well as a separate report for ness of the event, but also set forth informa-

any resident who acted as an aggressor. tion regarding the cause and effect of the

63/15. Consequently, situations involving incident, and the body part affected. Exh.

two residents result in at least two incident 73. From February 10, 1992, to February

reports; situations involving three residents 10, 1993, the cause for 40.8% of the occur-

result in at least three reports. 41/49. An rences was unknown, the cause for 34% was

incident report must be completed regardless attributable to behavior, and the cause of

of physical manifestation of an injury. 64/73. 25.2% was due to other factors. Exh. FF.

Mr. O'Brien explained that the incident reports categorize the seriousness of an injury, and that the categories are determined by the Pennsylvania OMR. 64/81. There are three categories: 01, 02 and 03. An 01 incident is a minor injury which need not be reported to the OMR. If an incident requires a physician's intervention, it is categorized as an 02 injury. Such incidents are reportable to the OMR and include injuries such as fractures, sutures, unacceptable absences where non-facility persons participate

In an effort to better document incidents, the Center instituted daily "risk management" meetings in March of 1993. 63/77. These meetings address all incident reports from the previous 24 hours, and enable management to obtain any missing information from the reports much more quickly and efficiently than before. As a result, the percentage of occurrences attributable to an unknown cause has decreased to 28.1% since implementation of the meetings. 64/74-77; Exh. GG.

in the search, clinically significant medication The Center has repeatedly attempted to

administration errors, reportable communica- improve, and has improved, its incident re-

ble infectious diseases, and deaths not cate- porting system. As of March 1993, the night

gorized as an 03 injury. An 03 incident nurse supervisor must review the nurses' log

involves serious injuries that must be com- in each living unit for any occurrence which

municated to the OMR within twelve hours happened that day requiring an incident re-

of its occurrence, including suspicious situa- port. At the risk management meeting the

tions requiring some type of follow-up by an following day, the review of the nurses' log is

outside agency. Exh. 73. Such incidents presented. The absence of an incident re-

include fires, abuse with serious physical in- port for any occurrence noted in this review

jury, sexual abuse, negligence, accidental log prompts an immediate request for com-

deaths, sudden/unexplained deaths without pletion of the necessary report 64/123-24.

known causes, and unusual injuries of an In this sense, the Center has developed a

unknown origin. 41/31; 63/105; Exh. 73. cross-checking system to monitor the inci-

The record reveals that the standards for dent reporting procedure.

classifying an occurrence are changed occa- Dr. Kastner responded to many of the

sionally by the OMR. 64/81. For example, United States' criticisms about the number of

in July of 1992, injuries requiring the utiliza- incidents occurring at the Center. He disa-

tion of ethistrips or butterfly bandages could greed with Dr. Stark's opinion that the men-

no longer be classified as an 01 incident; tally retarded population does not have to be

instead, such injuries are now reportable as more injury prone than the general popula-

an 02 incident. 62/82. Despite this change tion. 48/147. Dr. Kastner explained that the

to include more injuries as 02 incidents as frequency of epilepsy is higher in the mental-

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902 FEDERAL SUPPLEMENT

ly retarded population, and that factor alone also, people who have a developmental dis-

places those individuals at risk of injuries. ability often have difficulty in making sound

In addition, psychiatric and behavioral con- judgments; and, therefore, they will occa-

cerns further compound the risk of injuries. sionally put themselves in harm's way.");

Given the extreme disabilities of the Center's 37/118 (aggression cannot always be predict'

population, "it's impossible to imagine that ed).«

we could prevent all injuries." 48/148. See

also 517125 (number of injuries for Center's [107] Moreover, the number of injuries

residents with severe behavior problems not cannot be the sole criterion for determining

unusual).

whether the Center has violated its constitu-

I conclude that the Center has not violated the residents' constitutional right to reasonably safe conditions. The increasing number of reported incidents is of minimal significance, because the evidence shows that the Center instituted daily risk management meetings in an effort to improve incident reporting. 66/56-57. It is to be expected, then, that the number of incidents reported

tional duty to provide reasonably safe condi. tions. As Judge Marsh observed in a CRIPA action resolved by consent decree, "the injury itself is not a constitutional violation unless it was the result of an unconstitutional action or omission by the defendants." Accordingly, in order to establish a constitutional violation in this area, the United States cannot simply rely on numbers, but must demonstrate that the Center failed to exer-

would increase. See 63/83. It is also to be cise professional judgment in addressing the

expected that as the use of restraints and issue of safety.

psychiatric medications decreases, the num-

ber of incidents would increase. See Young- The United States contends that meal-

berg, 457 U.S. at 320, 102 S.Ct at 2460 ("an times at the Center are unsafe and a sub-

institution cannot protect residents from all stantial departure from accepted professional

danger of violence if it is to permit them to practice because: (1) the Center allegedly

have freedom of movement.")."

permits eating to occur while the residents

Nor do I find the actual number of incident reports troubling. First, a fair number of the incident reports involve relatively minor occurrences, such as bruises, brush burns, scratches, and red marks. Exh. 85. Addi-

are in unsafe positions; (2) staff feed residents using unsafe practices; (3) residents eat unsafely without staff intervention; and (4) the dining environment is generally unsafe. 84/XI-l.

tionally, as noted above, one incident often The United States relies upon the opinion

generates more than one report See Exh. of its expert Ms. McGowan to prove what

117 (incident reports completed on aggres- they consider to be unsafe practices. Ms.

sor). I find Dr. Kastner's opinion that it is McGowan is a registered nurse who has ex-

"almost impossible to accept that" the men- tensive experience with severely and pro-

tally retarded population is not more injury foundly retarded individuals who have devel-

prone to be more credible than Dr. Stark's opmental disabilities. 35/75. She has con-

opinion. 48/147. See also 6/61 ("[P]eople centrated her career over the last ten to

with developmental disability at times are twelve years on "teaching health profession-

physically challenged and, therefore, it als to identify the unique set of health prob-

makes it more difficult for them to be able to lems that are inherent to this population."

get from one place to another. By definition 35/76. She was offered as an expert in nurs-

67. In light of these findings. I also reject the United States' virtually identical contention that the Center has systematically failed to determine the cause of injuries and/or to take preventative action.
68. Dr. Kastner also observed that Dr. Stark and some of the United States' other experts appeared to be more concerned with advocacy, rather than addressing the constitutional analysis

of minimally adequate treatment. "They want these clients to not have injuries; and because they want the injuries to disappear, they should disappear." 48/148. I concur with Dr. Kastner's observation. Dr. Stark's testimony constitutes advocacy for optimal treatment—treatment approximating that which his son has been provided.

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ing services and nutritional and physical into their mouths, stuffing large chunks of

management services for individuals with de- food in their mouths, drinking cups of fluid

velopmental disabilities. 35/84. Ms. without any visible pause, swallowing whole

McGowan has no formal education in nutri- food without chewing, stealing food from oth-

tional and physical management services, or er residents, eating food that had fallen to

in speech pathology. She explained that the knowledge she has acquired isfiromworking extensively with interdisciplinary projects. 35/84.

the floor, and jabbing utensils deep into their mouths. 35/91, 103-06, 134. Her opinion hinged largely on the amount and frequency of the food that was placed into the mouths

During a tour of the Center, Ms. McGowan of the residents and the potential for aspira-

directed the videotaping of several meals. tion of that food due to poor head position,

This evidence was offered by the United poor clearance of the oral cavity, or staff

States and was described by Ms. McGowan, inattention to defensive mechanisms such as

in an attempt to demonstrate the unsafe coughing. The United States asserts that

eating behaviors of some residents. 35/109- more staff are needed at mealtimes to reme-

36.

dy these conditions. The United States

Ms. McGowan testified that the dining area was "unsafe and very dehumanizing. That is, too many people, in a very loud cacophonous environment, where you can't pay attention to anything that is going on.

notes that in a sixteen week period of time at the beginning of 1993, there were sixteen documented instances of a resident choking as a result of unsafe eating behaviors. Exh. 273; 35/144.

There was some genuine health hazards Ms. McGowan illustrated her testimony

around; flies all over the place." 35/92. She with a videotape of Kathy W. feeding herself

further testified that she recommended to at an extremely rapid pace. Exh. 258. A

Mr. Bellomo that the Center should "get out staff person across the table monitored the

of those mass dining rooms.... If I had my meal, but only intervened to offer a napkin

option here, I'd blow these damn things up." when the meal was over. 35/134. The Unit-

35/142.

ed States asserts that fast paced eating is

[108] Ms. McGowan had little difficulty containing her distaste for the dining environment at the Center. But expert testimony is "relevant not because of the experts' own opinions—which are likely to diverge widely—but because that testimony may shed light on what constitutes minimally accepted standards across the profession." Society for Good WUl, 737 F2d at 1248. In this instance, Ms. McGowan's testimony fails to shed any light on what the constitutional

exhibited by many residents, and that the Center is aware of the behavior but fails to intervene. It points to memoranda from Mr. Bellomo regarding the excessively rapid rate of eating by residents and the need to slow down the pace of eating. Exh. 165. Mr. Bellomo documented that meals concluded in as little as six, nine and twelve minutes. Exh. 165. He also documented eating at a rate of a spoonful every two and one half to three seconds. Exh. 165a.

minimum is with regard to dining facilities. To the lay observer, eating at a rate of a

Ms. McGowan's characterizations of the din- spoonful every three seconds or completing a

ing room were disputed by the Center's ex- meal in four or six minutes appears to be too

pert, Dr. Sheppard (61/42), and a videotape fast. The Center's expert, Dr. Sheppard, a

of the mealtime practices did not reveal any speech pathologist with training in eating

overwhelming problem with flies. See Exh. and swallowing disorders, viewed the United

258. I find no constitutional violation by the States' videotape and analyzed the behaviors

Center based on its continuing use of dining of the residents. 61/45-74. Dr. Sheppard's

rooms.

analysis carefully discussed the delivery of

Ms. McGowan also opined that residents engage in unsafe eating behaviors such as: eating at excessively rapid rates, taking large overfilled spoonfuls of food, shoveling food

the food to the resident, the resident's control of his or her body, the resident's ability to receive and transport the bolus of food, and the actual swallowing. She noted the

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902 FEDERAL SUPPLEMENT

pacing of individuals during their meals as it related to their swallowing. Dr. Sheppard agreed that Kathy W. does indeed stuff food and eat too rapidly at times, but she noted she was swallowing between mouthfuls in the videotape. 61/70. Dr. Sheppard cautioned that intervention is not simple with a resident like Kathy W., due to her psychiatric history. Intervention may cause her to decompensate and stop eating, or further aggravate the stuffing because the individual is afraid her food will be taken away. 61/70-01. In addition, Dr. Sheppard opined that ten to twenty minutes is an optimum for duration of a meal, 61/88, with the appropriate focus being actual swallowing, not the overall pace, 61/89.
[109] I find Dr. Sheppard's testimony persuasive. The duration of a meal should not be the sole criterion of whether care meets an accepted professional standard. I observed from the videotape that residents were afforded, for the most part, the opportunity to swallow before the next bite of food was offered. See Exh. 258.
The United States contends that the incidence of choking at the Center is evidence of the Center's inadequate care in feeding. It asserts that the Center has a 62% choking rate, 84/XI-45, and that rate continues to increase over time, 35/144. This increase is unacceptable, the United States contends, because Ms. McGowan's experiences over the past ten years have not included a facility with such a systemic choking problem. 35/204.
The increase in the choking rate is readily explained by the evidence. Choking is often prompted by food stuffing or stealing of a sudden nature which is not necessarily capable of correction by adding more staff to monitor a meal. See Exh. 273 (3 of 16 incidents involved stealing food and 1 incident was the result of stuffing). It is also doubtful that increased monitoring would prevent choking incidents for residents who have had or require a change in the consistency of their diet and a tailoring thereto of permissible foods. See Exh. 273 (Deborah S. choked on chopped bread, which now must be pu-

reed as well; Charles M., who choked on grapes after his diet was modified from pureed to chopped; James R., who choked after diet modification from pureed to chopped). Moreover, as Dr. Sheppard noted, the Center's population is stable and aging, and statistics for a general population reveal an increase in choking with age. 61/80, 84. Dr. Sheppard further opined that she did not find the choking incidents at the Center high in light of the nature of the Center's population and the marked swallowing problems. 61/85.
The United States contends, however, that the Center had notice of its deficiency in this regard because it has been cited since at least 1983 in the Inspection of Care surveys for deficiencies. Exh. 688. Dr. Sheppard noted, however, that of the twenty-one incidents listed as deficiencies in Inspection of Care Surveys, the few that relate to health and safety matters in the dining rooms occurred before 1989. 61/86.
[110] The Center's care with regard to mealtimes for residents who feed themselves meets the constitutional minimum. The upper end of the continuum of acceptable care is described by Ms. McGowan's testimony, which would require constant surveillance and monitoring in hopes of eliminating choking altogether. This objective is laudable, but it does not establish the minimum required by the Constitution. Moreover, the standard espoused by Ms. McGowan would restrict the residents' opportunity to eat on their own.
The United States' submits that the Center feeds residents at excessively rapid rates, feeds residents too large a quantity to swallow, uses spouted cups which do not permit the staff to control the volume of liquid delivered, feeds residents while they are coughing or their heads are in hyperextension, feeds residents while standing above their eye level, forcing the residents to place their heads in extension to be fed, scrapes food off of residents' faces, does not adhere to feeding programs, and the Center has too many different staff members feed residents with complex needs. 84/XI-19-20.*9

69. The United States consistently expands the number of alleged constitutional deficiencies by

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Dr. Sheppard opined that the practices er, that Harold B. "tends to move [his head]

utilized by the Center at mealtimes, with the off of upright a few degrees for reception and

exception of very isolated instances, com- then to bring it forward for oral transport

ports with accepted professional standards, ..." 61/55. She further noted that while the

and that the Center exercises appropriate spoons were large, the feeder paced the resi-

professional judgment 61/74-75.

dent so he could swallow before the next

Dr. Sheppard opined that the rate of feed- spoonful. Significantly, she observed that a

ing a resident need not consume a full thirty nonchewable bolus can be moved through the

minutes, contrary to the opinion of Ms. mouth rather quickly even by an individual

McGowan. Dr. Sheppard testified that for with a degree of disability. 61/56.

severely compromised individuals, a meal of ten to twenty minutes may be optimal, and the focus should be the ability to swallow. She further noted that the time provided to swallow for many residents need not be very long since the bolus does not require any chewing, and socialization is minimal because the resident's focus is eating. 61/19. Moreover, although some residents ate rapidly, Dr. Sheppard observed that they were eating "steadily and moving food into their mouths in a continuous manner, that they swallow between each subsequent mouthful in eighty or ninety percent of the instances." 61/18.

The United States submits that staff feed residents too large a quantity to swallow. I observed instances where residents were fed quantities which were too large for them. See Exh. 258. Most notably, Frank was a dependent feeder in a cart who was presented spoonfuls of food and a spouted cup. Dr. Sheppard observed that Frank regulated the amount he was going to swallow by ejecting the rest and signaling his feeder with his head movements. 61/49-50. I viewed the tape differently since it appeared to me that the feeder consistently provided Frank quantities which were too large. This was, how-

I find Dr. Sheppard's opinion insightful in light of what I observed while viewing the videotape during the direct examination of Ms. McGowan and Dr. Sheppard. I find that residents who are fed either pace their feed-

ever, an isolated instance within the evidence presented, and was not the norm even for those episodes depicted in the videotape.
The use of spouted cups is also a practice

er, or their feeder paces them. For example, within the realm of accepted professional

Dr. Sheppard noted how Paul G. was able to practice, because swallowing is provided for

control his upper body movement as a means when the cup is used. For example, Beth S.

of signalling his feeder regarding when he was allegedly fed with a spouted cup for a

was ready for food, and the feeder used cues solid fifteen seconds without a break.

such as placing the spoon where he wanted 35/120. Carefully viewing the videotape,

Paul G.'s head to be, and shaping his position however, Dr. Sheppard explained that "[o]ne

for swallowing by tapping his shoulders. can see by the throat sequential sips and

61/54-55. Harold B. also was allegedly fed swallows by this individual as the liquid is

unsafely because food was placed in his dispensed." 61/58.™ She further noted

mouth while his head was rotated, the spoon- there was not overfilling and the cup was

fuls were overflowing and the pace was too withdrawn for the resident to take a breath fast. 61/117-8. Dr. Sheppard noted, howev- and finish what was in her mouth. 16/59.

staong the same allegation in several different ways. For example, in this list of unsafe feeding practices, the United States lists "feeding residents at excessively rapid rates" and also lists feeding "in such a manner that they do not allow sufficient time to swallow between bites." Again, the United States lists as an infirmity "feeding residents with their head in hyperextension" and rewords this flaw by also listing feeding "by standing above their eye level forcing the residents to place their head in extension to be fed." Such duplication is not confined to this section about feeding, and it has resulted in the

unnecessary expenditure of time and effort in the preparation of this opinion for a case which, even in the absence of such redundancy, is hugely fact-intensive.
70. Dr. Sheppard refers to this resident as Andrea S. 61/57. Although Ms. McCowan and Dr. Sheppard used different names, the residents are the same, as revealed by a comparison of the transcripts and the discussion of this resident immediately after Duane P. 35/118-19; 61/5758.

646

902 FEDERAL SUPPLEMENT

While the United States submits that Dr. Sheppard opined that the spouted cups are a departure from accepted professional practice in her deposition and again at trial, Dr. Sheppard actually opined that she "would have made other choices, maybe, in regard to the spouted cups." 61/206. Dr. Sheppard's disapproval of spouted cups does not equate with a finding of a substantial deviation from accepted professional practice.
Dr. Sheppard also disputed the contention that staff fed residents while they were coughing. She observed that coughing consistently caused the feeders to stop feeding. This was evident in the videotape for Ronald E. Exh. 258; 61748.
The United States vigorously asserts that the Center's care is constitutionally flawed because staff feed residents with their heads in improper positions such as hyperextension or rotation. 35/92. Ideally, a resident should have his head perpendicular to the floor when being fed. This position helps prevent the aspiration of food or drink while swallowing because the airway is covered by the epiglottis. 35792-94. The videotape showed residents who accepted food from their feeder with their heads in hyperextension or rotated to one side. An example would be Harold B. accepting food with his head off of upright and then bringing his head forward to swallow. 61/55. Paul G., another example, also extended his head back to receive food. Because Paul G. uses his head and upper body to signal his feeder and establish a pace, Dr. Sheppard opined that a feeder should not immobilize his head to bring it to the desired neutral position because this could upset and irritate the resident and compromise his nutritional status. 6V53.
Dr. Sheppard further opined that the delivery of food to a resident who has his head slightly tilted back is acceptable if the resident brings his head forward during the swallowing phase. 61/79. She also opined that she did not observe any staff actively pushing a resident's head back to feed him or her. 61/20. She further stated that a bald spot on the back of a resident's head is indicative that a resident spends a significant time on his back; it is not the result of a

nutritional management procedure; that pushes a resident's head back. 61/45.
Based on my observations of the tape, which revealed residents who were being fed with ease, and Dr. Sheppard's testimony and opinion, I find that the Center's feeding practices with regard to head position when receiving food are not departures from accepted practice. They are often an accommodation of a resident's behavior which may pose a risk of aspiration or choking. These risks are weighed against the fact that correction of some of these behaviors may prompt residents to decompensate and not eat, or would require restraint (or additional restraint) to properly position their head to receive food which otherwise would not be necessary. Such action is consistent with the accepted professional judgment in the field.
Ms. McGowan asserted that scraping food from a resident's face is wrong because it causes "involuntary reflexes in individuals whose oral motor skills are already compromised." 35/114. Ms. McGowan fails to indicate how this adversely affects the residents, however. In contrast, Dr. Sheppard noted that certain reflexes may be elicited by touching the face. But, she opined that face wiping may be appropriate depending on the individual. 61/43-44. As a result, the fact that some food is scraped from a resident's face without more is not tantamount to a substantial departure from accepted professional standards.
The United States also contends that there is a failure to have the same staff members regularly assigned to feed residents with complex needs, but fails to indicate any testimony that supports such a finding. In contrast, Susan Fagan, a LOTA, testified in her deposition that she and another LOTA regularly alternate feeding Tinuny P., Michael B., and James C. for breakfast and lunch. The LOTAs work Mondays through Fridays, and they alternate feedings so as to be current with regard to that resident's status. Exh. 610/61-62.
[ I l l ] In light of the above, I find that the Center's care in feeding residents is constitutionally adequate. This conclusion is based largely on my observation of the videotape,

U.S. v. COM. OF PENNSYLVANIA

547

CluaiMZ F.5HPP- MS (W.D.P.. IMS)

evidence which to a great degree requires no ed practice from the Center's failure to use a

elaboration, and on the testimony of Dr. particular feeding position.

Sheppard, which I found to be persuasive. In contrast, Ms. McGowan's assessments were less complete, evaluating the factors affecting the resident's ability to eat, but rarely analyzing the mouth action of the resident. This may be due to the fact that she has no formal training as a speech patholo-

[113,114] The videotape illustrated that the Center does elevate the head and trunk of the residents. Even Ms. McAllister, the United States' PT expert, acknowledged that the Center staff is aware that the residents who are confined to carts need to be elevated. 34199. She asserted, however, that the

gist, a discipline requiring considerable deficiency is that the head is usually all that

knowledge of disorders related to the use of is elevated. Id. I find that the Center's

the mouth.

care in this regard is not constitutionally

Finally, the United States asserts that the Center uses the following unsafe positions to feed residents: flat on their back during the meal and immediately thereafter, head in hyperextension; head in hyper-extension and rotated; and trunks in improper alignment I will not address hyperextension of the head again.

inadequate. Evidence showed that the staff strive to elevate the head and trunk above the pelvis and legs. See Exh. 258. Moreover, the fact that the Center exercises professional judgment in feeding residents is apparent in the decisions which are made to change the method of providing nutrition for residents. The record indicates that the assessment of the impossibility of easily feed-

With respect to the argument that resi- ing a resident at some point results in the

dents are being fed while flat on their backs, decision to institute some mechanical means

Ms. McGowan testified that such a practice is of meeting the resident's nutritional require-

unacceptable because it can result in aspira- ments, such as gastrostomy tubes. See su-

tion. It is clear to me, even as a matter of pra re: Keith T. and Steven S.

common sense and lay experience, that this I also note that the United States' conten-

is not a desirable way to be fed, but what tion that mealtimes are unsafe because resi-

positions are acceptable if a resident cannot dents' bodies are not properly aligned is

be positioned upright? It appears that the another attempt to argue the inadequacy of

alternatives which are professionally accept- the Center's wheelchairs. This point has

able are to elevate the head and trunk above already been covered in the section regard-

the pelvis and legs, and to position the resi- ing physical therapy and physical manage-

dent in an elevated right side-lying position. ment, and will not be addressed here. The

34199-200.

section on physical therapy and physical

management also addressed the United

[112] The United States asserts that the States' contention that the staff do not lift

Center positions no one in the right side- and transfer residents according to accepted

lying position even though its speech thera- professional standards. See supra § III.C.4.

pist admits that it is an acceptable position. However, Dr. Sheppard's testimony that the elevated right side lying position should only be used if the individual has adequate control on that side of his mouth to effect the transport from the teeth to the pharynx. 61/9798. The United States failed to proffer any evidence indicating that the residents at is-

The United States also argues that the Center does not adequately supervise and monitor residents, which results in injuries and the violation of the residents' right to reasonably safe conditions. The United States asserts that the majority of incidents are due to unknown causes and occur when the staff are involved in other functions. It

sue possessed the necessary mouth control, specifically focuses on the occurrences of el-

and in the absence of such evidence, I will opement and pica incidents " as evidence of

not infer a substantial deviation from accept- inadequate supervision.

71. Pica is an "abnormal craving to eat substances not fit for f o o d . . . " Webster's New

World Dictionary 1021, 3rd College Ed. (1988).

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902 FEDERAL SUPPLEMENT

The Center characterizes a wide range of to set forth any underlying factual details of

occurrences as "elopements." An "elope- the elopements. Consequently, it is impossi-

ment" is noted whenever a resident actually ble to determine whether any individual el-

leaves the Center's grounds, as well as when opement actually involved the disappearance

a resident simply leaves a room without au- of a resident (or simply an attempt to elude

thorization and/or hides from staff. 41/50. staff), or whether the elopement was due to a

The record reveals that the Center has taken lapse in monitoring by the Center's staff.

several steps to curtail the number of elope- Without such evidence, I am unable to deter-

ments. For example, head counts are rou- mine whether a problem of constitutional

tinely taken on an hourly basis and in eon- proportions exists at the Center. Moreover,

junction with the transfer of residents from I note that the record contains evidence of

one area to another. See Exh. 594c; 594a: 594d, #00006800; and 594f, #00660867. See also Exh. 594d, #00006800 (Center's escort procedure revised after head count detected that resident was left behind in program area).
[115] Elopements involve individuals who

action by the Center in response to specific incidents of elopement See, eg., Exh. 594, #00590686 (Diana D. eloped on two occasions, staff surmised the elopements demonstrated an effort to obtain a quiet place to look at magazines, and Diana D.'s interdisciplinary team revised her care to provide for a period of time on a quieter unit).11

are mobile and able to navigate to a certain The United States submits that incidents

extent. As a result, competing liberty inter- involving pica prove that staff are not ade-

ests are at issue. See Youngberg, 457 U.S. at 320, 102 S.Ct at 2460 (H[A]n institution can-

quately supervising and monitoring residents. It argues that the Center's staff were

not protect its residents from all danger of often unaware that residents had ingested a

violence if it is to permit them to have any substance not fit to eat until after the resi-

freedom of movement"). Expert testimony, dent was found in distress or the inedible

therefore, should identify the parameters of object was discovered by observation of feces

acceptable professional practice (ie., provid- or vomitus, or confirmed by x-ray. 43/116.

ing the residents with freedom of movement, Dr. Russo admitted that pica is a common

while also attempting to prevent, detect and problem in the mentally retarded population,

respond to elopements in such a population). and that it is difficult to treat. 37/106, 108.

Here, however, to a large extent, the United In fact, pica is not curable; it can only be

States simply relies on the fact that elope- managed. 37/108." My evaluation, there-

ments occur, without providing any evidence fore, focuses not on pica itself, but on the

that such occurrences demonstrate a sub- Center's efforts to manage this problem.

stantial deviation from accepted professional practice.

The record reveals that residents with pica have "flare-ups" of this behavior problem.

For example, the United States points to a See Exh. 590. The record also contains am-

statistic that 31 elopements occurred from ple evidence demonstrating the Center's

July 1, 1990 to June 26, 1993. Exh. 594(g). management of these flare-ups. See Exh.

This statistic is taken from a report that fails 590 (Margaret M., who had no history of

72. The United States emphasizes the elopement of Joseph C, one of the residents with ground privileges on October 1. 1992. See Exh. 313 (Joseph C. missing overnight and found hiding the following morning in trunk of employee's car). This incident, admittedly quite serious, cannot reasonably be characterized as a lapse in the Center's care of this individual. This particular elopement by Joseph C. was uncharacteristic of his prior behavior; his absence was immediately noted and efforts were made to locate him. A reassessment and revision of Joseph C.'s behavior plan followed, which included a consult with Dr. Goldschmidt.

73. Dr. Russo argued that the Center fails to individualize its behavior programs for residents with pica. 37/74-75. Dr. Russo's testimony, however, does not establish that the Center's care with regard to pica is a substantial departure from accepted practice. See 37/106 (admitting that, although he knew how to assess and evaluate pica, he did not know how he would treat it in any particular case). I have already rejected the United States' contentions with respect to behavior programs, and that discussion will not be repeated here.

U.S. v. COM. OF PENNSYLVANIA

549

CIUUM2 F-Supp. MS (WJ>.Pa. 1993)

pica, ingested part of a silk flower arrange- ments of the Constitution. Moreover, where

ment in her bedroom; staff intervention con- there have been lapses in care, the United

sisted of closely monitoring to determine if a States has failed to demonstrate that those

new behavior was developing and referral to deficiencies were the result of the Common-

the dysphagia team for evaluation); Exh. wealth's official customs and policies as im-

638, exh. 46 (refinement of Center's policy plemented at the Center.

regarding disposal of medical treatment, diagnostic and examination material after resident ingested plastic cover from thermometer).
Finally, the United States faults the Center's efforts to address residents' inappropriate sexual behaviors, specifically citing the care of James W. and Clifford P. See, Exhs. S01(a) and 440. For both of these residents, however, the Center held numerous staff meetings/interdisciplinary team conferences, and contacted outside consultants and therapists in an effort to contain the residents' dangerous behaviors. See Exh. 501(a); Exh. 440;63/119-20. In fact, Clifford P. was even transferred to another facility, Torrance Mental Retardation Unit, with the hope that he would improve. Unfortunately, that facility was unable to handle Clifford P.'s problems, and he was transferred back to the Center. 63/119-20.

Advocates for the mentally retarded often strongly disagree on what constitutes appropriate care for these individuals. My task, however, has been to determine whether the Center exercised professional judgment in providing the minimum level of care required by the Constitution, not whether the difficult lives of the Center's residents can be improved. It is clear that many of the residents—probably most of them—would be better served by placement in the community. Mr. Bellomo conceded as much, but vigorously defended the quality of care offered by the Center:
Do I think that it's better for people to live in a ranch-style home on the corner of someplace with a white picket fence and a station wagon in the driveway rather than living in a large congregate facility? Absolutely. And I believe Pennsylvania is moving in that direction. We have finally got-

[116] At times, the Center's efforts to ten to the point where there are more

address these problems have been hindered people living in the community than there

by the unavailability of outside experts in are living in institutional settings, and I

this field. 63/116-119. The Center there- think that is a commendable trend.

fore has taken the initiative to send two of its staff members to attend classes to become certified sex therapists. The Center also has contracted with a sex therapist, Dr. Farr, to provide in-service training for its staff regarding how to deal in-house with problematic sexual behavior. 63/119. Thus, while the sexual behavior problems of certain residents pose a grave risk of harm, the Center exercises professional judgment in addressing these behaviors.

And until such time as I could see that those four hundred seventy-five people that live with us are going to be afforded that opportunity, it's my job to be critical of everything that goes on at the facility that I don't think is meeting the needs— the very specific, the very special, and the deserved kind of recognition that these people have. I'm not in the—I will not accept any kind of suggestion that we are overlooking things and that people that are

IV. CONCLUSION
[117] Professional judgment has been exercised in the provision of care to mentally

living at our facility are not being afforded an adequate level of service.
63/170-71.

retarded individuals residing at Ebensburg One of the hallmarks of a good and just

Center. The Center's care, although fre- society is the concern it shows for the needs

quently not optimal, is, with the exception of of its least fortunate and most vulnerable

blood level monitoring, a now remedied de- members. If this litigation has proved any-

fect, consistent with accepted professional thing, it is that the care of mentally retarded

practice, and thereby meets the require- citizens evokes powerful emotions, that deep-

650 -

902 FEDERAL SUPPLEMENT

ly committed advocacy on behalf of the mentally retarded in this country is alive and well, and that it transcends differing schools of thought and competing professional interests. My lengthy review of the evidence, and especially my vivid recollection of the view conducted of the Center and its operations, has not left me unmoved. Indeed, it has left an indelible mark.
The operation of Ebensburg Center by the decent, fallible, human beings who administer it and who toil there in stressful and often thankless tasks conforms with constitutional dictates. Its administrators and employees must not, however, turn a deaf ear to their critics or to the voices of innovation. Constitutional minimums are not goals to which any professional should aspire. Much can be improved, and fiscal constraints should be no impediment to an institution's leadership to constantly exhort its professionals: "We can do better."
An appropriate order follows: AND NOW, this 27th day of July, 1995, consistent with the foregoing opinion, the United States' Motion for Judgment (Docket No. Ill) is DENIED. Judgment is entered for the defendants. The Clerk of Court shall mark this case CLOSED.
Hope BOND, v.
TRUSTEES OF THE STAILA PENSION FUND. Civ. No. K-95-1338.
United States District Court, D. Maryland.
Oct. 18, 1995.
Widow of pension plan participant brought suit in state court against plan trustees, seeking declaration that she was entitled

to preretirement survivor annuity under
4 plan, and action was removed to federal
court On cross-motions for summary judg- :• i ment, the District Court, Frank A. Kaufman, •2 Senior District Judge, held that: (1) case was ripe for review, despite contingent nature of annuity; (2) trustees reasonably denied annuity when widow and participant were not legally married for one year prior to participant's death, as required by plan, although they lived together for many years; (3) Employee Retirement Income Security Act (ERISA) did not preempt Maryland marriage law so as to preclude trustees' interpretation of plan; (4) even assuming preemption, court would not create federal commonlaw definition of "married" to undermine trustees' discretionary authority; (5) to extent that city ordinance prohibiting employment discrimination on basis of marital status applied, it was preempted by ERISA.
Defendants' motion granted.
1. Federal Civil Procedure «=>2543
On motion for summary judgment, nonmoving party is entitled to have all reasonable inferences drawn in its respective favor. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A.
2. Federal Civil Procedure «=2S44
Any party resisting summary judgment must go beyond pleadings and by its own affidavits, and admissions on file, designate specific facts showing that there is genuine issue for trial. FedRules Civ.Proc.Rule 56(c), 28 U.S.C-A.
3. Declaratory Judgment ®=145
Case brought by widow of pension plan participant, seeking declaration that she was entitled to preretirement survivor annuity under plan, was ripe for adjudication, despite contingent nature of annuity, for which there would only be qualifying payee if widow lived until certain future date; widow's entitlement to benefits was predominantly legal inquiry, there were no likely future factual developments which would clarify question, and deferral of case could create hardship by hindering parties in their financial planning. Employee Retirement Income Security Act

ADDENDUM B

U.S. Departri.cin of Justice Civil Rights Division

Office of the Aaislent Attorney General

Washington, D.C. 20S30

Honorable Robert Casey Governor Commonwealth of Pennsylvania Governor's Executive Office Room 225 Main Capitol Building
Harrisburg, Pennsylvania 17120

1 ° N3Y KS7

Re: Notice of Findings Regarding the Ebensburg Center. 42 D.S.C. Section 1997bfa>(1\

Dear Governor Casey:

On August 8, 1986, we notified you that, pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. Section 1997, ve were commencing an investigation into conditions at the Ebensburg Center in Ebensburg, Pennsylvania. As contemplated by the statute, 42 U.S.C. Section 1997b, ve are writing to inform you of the findings of our investigation and the minimum measures required to remedy the unconstitutional conditions at the Ebensburg Center identified by our investigation.

As part of our investigation, Special Litigation Section attorneys conducted tours of Ebensburg with three private consultants. Our consultants examined resident records, interviewed the facility director and numerous staff members and spoke with residents. We also reviewed numerous documents provided by the facility, concerning a vide range of procedures and activities.

Our extensive investigation reveals that conditions exist at Ebensburg which deprive residents of their constitutional rights. Institutionalized mentally retarded persons have a constitutional right to adequate medical care and such training as an appropriate professional vould consider reasonable to ensure their safety and freedom from undue bodily restraints. Younabera v. Romeo. 457 U.S. 307, 324 (1982).
"Set out below are our findings and recommendations. We will
discuss only those conditions which we believe are violative of constitutional rights. Those unconstitutional conditions include Ebensburg's failure to provide ciniir.ally adequate training

- 2-
sufficient to protect residents from unreasonable risks to their health and safety and from undue bodily restraints and the " facility's failure to provide minimally adequate medical care.
INADEQUATE TRAINING AND UNDUE PHYSICAL RESTRAINT
•3
Ebensburg Center fails to provide its residents with adequate training programs and, as a result, systematically overuses, and misuses, physical restraints.
a. Absence of Training Programs. Professionally designed and implemented training programs for mentally retarded individuals with self-injurious or aggressive behaviors are an important means of eliminating or reducing those behaviors. The Supreme Court in Younabero specifically held that mentally retarded individuals are constitutionally entitled to such training as an appropriate professional would consider reasonable to ensure their safety and freedom from undue bodily restraint. Ebensburg fails to provide such training, and residents suffer physical injuries and undue bodily restraint as a result.
Our psychologist consultant's review of resident charts revealed that physical restraints are used excessively. Our consultant attributed the undue use of restraint, in part, to the absence of adequate behavior management procedures. Adequate training for residents is also critical to prevent undue use of chemical restraint. At the time of our psychophannacologist's tour almost one-half of Ebensburg's residents received psychotropic medication. While our expert noted that efforts are underway to reduce drug usage, the success of such efforts depends on much greater attempts to develop appropriate behavior training programs and integrate psychotropic medication use with such programs.
When training programs are written for Ebensburg residents, many are so deficient as to fall below the level of any acceptable professional standard. For effective behavior management to take place, Ebensburg must properly assess the needs of residents, develop appropriate training programs, and insure that such programs are implemented by professionals who are competent and qualified to do so.
b. Use of Restraints. As noted above, physical restraints are used at Ebensburg in lieu of minimally adequate training programs. In addition, they are used for the convenience of
staff and as punishment. Our expert concluded that there is a
systematic overuse, and misuse, of physical restraints at the facility.
Our review of resident records found nur.erous cases in which residents had standing orders for restraints irrespective of need. These orders are clear evidence that restraints are not

- 3-
being used for particular residents for specific reasons and are being used randomly by staff absent any justification. Such use represents a substantial departure from accepted professional judgment.
In sun, the undue use of bodily restraint at Ebensburg is consistent with an insufficient and improperly trained staff and the lack of appropriately implemented behavior management procedures. The presence of these factors has forced the Ebensburg staff into an over reliance on physical restraint.
c. Resident Safety. As a result of Ebensburg's failure to provide minimally adequate training programs, residents at the facility are not being provided with a reasonably safe environment. Our review of resident records noted a high rate of maladaptive and self-injurious behavior resulting in a high injury rate among the resident population. Without professionally designed training programs and a sufficient number of trained staff to implement those programs, Ebensburg residents will continue to suffer otherwise preventable harm.
MEDICAL CARE
a. Nursing Services. Ebensburg residents are also put at unnecessary risk of harm due to the lack of a sufficient number of adequately trained nursing staff members. The existing nursing staff is poorly organized and lacks the coordination and communication with other staff essential to the exercise of professional judgment regarding residents' medical and nursing care. Health care plans are not individualized to identify and provide for each resident's needs. Clinical supervision of nurses is almost non-existent and nurses, in turn, do not supervise direct care staff responsible for basic health care surveillance. Our nursing consultant concluded that the lines of authority, responsibility and accountability for nursing are so unclear and fragmented as to seriously compromise the continuity of care provided.
b. Infection Control. Aside from staffing, measures are not in place to either prevent, identify, or control infections acquired at Ebensburg or brought into the facility from the community. Even basic elements of an infection control program are not in place and a system for reporting, evaluating, and maintaining records of infections among patients and staff does not exist. Such procedures are especially necessary, because of the nur.erous potentially infectious injuries residents receive fror. bites, scratches, falls and various forr.s of self-injurious behavicrs existing at Etensburg.
c. Physical Manaoewent of Severely Handicapped Residents. A reviev of the physical therapy staff and services available at Ebensburg shows that residents are not receiving adequate

- 4 -
physical therapy services. Such therapy is essential given the large number of physical deformities and mobility problems among the resident population. Ebensburg does not employ a sufficient number of physical therapists and therapy aids to ensure that residents are not suffering skeletal or muscular breakdown from the lack of such therapy. Essential adaptive equipment, such as wheelchairs, is often broken or ill-fitted, thus causing new physical problems or exacerbating old ones.
INSUFFICIENT NUMBER OF QUALIFIED STAFF
Ebensburg is currently understaffed at both the direct care and professional levels. Moreover, staff are not fully qualified to assume all their job responsibilities and are poorly supervised. An insufficient number of qualified staff at the Center contributes to, and exacerbates, the deficiencies in care previously mentioned.
a. Prbfessional Staff. By far the most serious shortage of staff at Ebensberg Center is in the nursing department. Physical disabilities, mobility and visual handicaps, diseases, complex medical conditions, digestive problems, and age-related needs are common among Ebensburg residents. Frequent accidents and other incidents often resulting in injury from scratches, bites, cuts, bruises, and fractures, and the accompanying risk of infections posed by open wounds, add to the demands on nursing staff. At present, there are too few nurses to provide needed services. The number of nurses actually on duty during a one week period reviewed by our nursing expert fell well below the facility's own minimum staffing levels. The six nursing supervisors spend at least one third of their time on administrative duties; there is no nursing supervision on the evening or night shifts. The administration of medications facility-wide alone requires Ebensburg nurses to prepare, dispense, and document administration of 2411 regularly scheduled individual doses of medication. These duties leave no nurse to appropriately respond to emergencies and accidents, and perform treatments direct care staff cannot provide. It is crucial that Ebensburg Center increase its nursing staff if residents are not to remain at risk to their health and safety.
There are also too few physical therapists and therapy aids to serve the many Ebensburg residents with severe physical disabilities. Our expert criticized both the evaluation process for determining who is in need of physical therapy to prevent body'deformities, contractures, and other physical problems, and the ability of the existing physical therapy staff to provide s-jch services to these residents the facility identifies as in need. Residents in need of these health related services are placed at undue risk of contractures, bodily deformity, and other serious threats to their physical health.

- 5-
b. Direct Care Staff. The lack of an adequate number of qualified direct care staff is directly related to Ebensburg's failure to protect its residents from harm. There are not enough staff to adequately supervise residents to prevent them from injuring themselves and others. Without a sufficient number of direct care workers, it is impossible to implement behavioral programming. Further evidence of insufficient staffing levels lies in the excessive use of restraints.
c. Staff Competence and Training. Undue use of restraint and lack of training for residents at Ebensburg are also evidence of a lack of adequate training for staff. Direct care staff are ill-equipped to respond to difficult to manage residents, and so respond inappropriately with the use of physical restraint. Among the substantial responsibilities of direct care workers are the detection of signs and symptoms of illness and reporting of conditions that require medical attention, as veil as the provision of basic health care services. Direct care staff receive inadequate preparation for their health-related duties, a failing made more serious by the lack of nursing supervision of their performance. Professionals at Ebensburg Center, nurses in particular, also do not appear to have adequate training and qualifications for the varied tasks they are asked to undertake.
MINIMALLY NECESSARY REMEDIES
The administrators and many of the staff at Ebensburg appear committed to providing residents with the best care possible, notwithstanding the very difficult circumstances facing them at Ebensberg. Nevertheless, the noted conditions are both egregious and flagrant and result in the deprivation of the constitutional rights of Ebensburg Center residents. Those conditions are pursuant to a pattern or practice and cause Ebensburg residents grievous harm.
To rectify the deficiencies at Ebensburg and 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, providing at a minimum, the following remedies:
1. Training programs must be designed by professionals to reduce or eliminate unreasonable risks to resident safety and the use of undue bodily restraints. Immediate .attention, identification and training must be provided for those residents with self-injurious, physically abusive or destructive behavior. Restraints must be employed only pursuant to the exercise of professional judgment by a qualified professional and not in lieu of training or for staff convenience.

- 6-
2. Ebensburg must hire and deploy a sufficient number of adequately trained direct care and other professional staff to provide residents with the training described in the preceding paragraph.
3. Ebensburg must hire and deploy a sufficient -number of adequately trained nursing staff members to prevent residents from being placed at undue risks to their health and safety.
4. Ebensburg must establish an effective infection control program that will ensure continual prevention, identification and response to infections.
5. Ebensburg must hire and deploy a sufficient number of adequately trained physical therapists and physical therapy aids to ensure that residents are not at an undue risk from skeletal or muscular breakdown or the development of other physical conditions posing serious risks to their physical health.
We are willing to make our experts available to the Commonwealth of Pennsylvania to provide technical assistance in remedying the deficiencies we have identified. Information about federal financial assistance which may be available to assist with the remediation process can be obtained through the United States Department of Health and Human Services Regional Office and through the United States Department of Education by contacting the individuals listed in the attached information guide.
Our attorneys will be contacting Counsel for the Department of Public Welfare shortly to arrange for a meeting to discuss this matter in greater detail. To date, we have been able to conduct this investigation in the spirit of cooperation intended by the Civil Rights of Institutionalized Persons Act, and look forward to continuing to work with state officials in that spirit toward an amicable resolution of this matter.
Sincerely,
Wm. BradfordKeynol< Assistant Attorney General
Civil Rights Division

rv
- 7-
cc: Leroy S. Zimmerman, Esquire Attorney General
John F. White, Jr. Secretary, Department of Public
Welfare
John A. Kane, Esquire Chief Counsel Department of Public Welfare
Alan M. Be H o m o Director, Ebensburg Center J. Alan Johnson, Esquire United States Attorney

ADDENDUM C

JPT:AEP:MHN:CK:AG:JV:drb DJ 168-64-7
REGISTERED MAIL RETURN RECEIPT REQUESTED
Honorable Robert Casey Governor of Pennsylvania Commonwealth of Pennsylvania Governor's Executive Office Room 225 Main Capitol Building Harrisburg, Pennsylvania 17120
Re: Notice of Findings Regarding Ebensburg Center, 42 U.S.C. 1997bral(1)
Dear Governor Casey:
On August 8, 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 Ebensburg Center (Ebensburg) in Ebensburg, Pennsylvania, that serves a resident population of mentally retarded persons. On November 10, 1987, we wrote to inform you that our investigation revealed conditions at Ebensberg that deprive residents there of their constitutional rights and to set forth the minimum measures we believed were xeguired to remedy those conditions.
As part of our investigation, attorneys in our Special Litigation Section last toured Ebensburg with three different experts on two separate occasions in 1989. During 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 Pennsylvania Department of Public Welfare and Ebensburg staff provided considerable assistance throughout our investigation, and we appreciate their continuing cooperation. We were pleased to discover that progress has been made in several areas, including improvements in certain medication practices, the progress of the two group house?, and the initiation of certain day programming activities. These ariZ ether acccr.pl ishr.er<ts have r.ct been overlooked, and we

- 2-
Nonetheless, based upon our return tours of Ebensburg to determine which corrections, if any, have been made, we conclude that the residents confined at Ebensburg continue to be subjected to conditions that deprive them of certain constitutional rights. Institutionalized mentally retarded people have a constitutional right to adequate medical care. Moreover, the Constitution guarantees such residents a reasonably safe environment, freedom from undue bodily restraints, and training that an appropriate
professional would consider reasonable to ensure those interests.
Younobercr v. Romeo. 457 U.S. 307, 324 (1982).
The following are the conditions that we conclude violate the constitutional rights of residents at the Ebensburg Center.
I. Ebensburo Residents Do Not Receive Adequate Medical Care.
A. Inappropriate use of medication. Although strides have been made, several deficiencies in medication practices continue and present an unreasonable risk of harm to residents. At Ebensburg, the usage of psychotropic medication to control aggressive and abusive behavior has been reduced, and psychotropic polypharmacy has been eliminated; these actions are commended. Success in minimizing psychotropic medications and reliance upon physical restraint, however, requires greater efforts to develop and implement appropriate non-chemical behavior management strategies, including training programs referenced above.
There are inadequate efforts at Ebensberg to diagnose residents' problems, a process essential to then selecting the appropriate drug, if necessary, and evaluating the efficacy of treatment. This failure to diagnose is inconsistent with generally accepted medication practice. Greater efforts are also needed to characterize properly psychiatric disorders. Sack of specific diagnosis has resulted in a preponderance of neuroleptic use among medicated residents. Our consultant opines that it is likely that by formulating an individual diagnosis in each case, Ebensburg will select Dedications, often nonneuroleptic, that treat resident conditions more specifically and effectively.
Additionally, maintaining anticonvulsant polypharmacy at Ebensburg places the long term health of residents prone to seizures at risk. Although the overall reduction of medications is commendable, some residents remain on low, questionably effective doses for prolonged periods of time.
B. Inadequate medical documentation. Residents' medical records are incomplete, and frequently omit essential, or contain only outdated, information. Progress notes are irregularly written and not clearly marked in the record. In some records that our physician reviewed, the most recent 'annual* medical

- 3-
evaluation was from 1987. Erratic documentation and description of seizure activity impedes efforts to reduce seizure activity and reliance upon multiple medications.
There also are unacceptable delays in placing hospital communication in the resident's chart. For example, the record of one resident who was hospitalized several times, including a February 1989 admission, contained no hospital discharge summaries as late as our mid-April 1989 tour. The failure to maintain current and complete medical information in the chart places residents at risk especially when physicians must treat residents with whom they are not otherwise familiar.
C. Inadequate care of residents at risk nutritionally or with impaired eating ability. Ebensburg residents face serious risks of aspiration, a leading cause of death among institutionalized developmentally disabled populations, and of malnutrition. Aspiration pneumonia accounted for at least one half of the total number of pneumonia-related hospital admissions among Ebensburg residents in 1988. Our expert personally observed residents coughing and choking on food and mucus during meals. Despite the serious risk of aspiration and poor nutrition of residents with swallowing disorders, Ebensburg fails to ensure that residents are fed safely. */
Ebensburg fails also to ensure that all residents' nutritional needs are met. Despite assertions to the contrary by facility staff, our expert discovered that nutritional assessments are incomplete. Staff assume that actual nutritional intake consists of the diet provided, rather than the amount consumed, an assumption that can lead to long-term inaccuracies and malnutrition.
D. Insufficient number of qualified and adequately trained -and supervised nurses. There are insufficient adequately trained nurses at Ebensburg, a deficiency which places residents at an unreasonable risk of harm. Nurses are not promptly hired to replace those that leave. At the time of our last tour, many shifts (14 of 42 surveyed over a two week period) had no nurses on duty on certain units. The facility has .responded to this shortage in part by assigning residential service aides (RSAs) the task of developing health care plans for acute and chronic problems, an assignment outside of an RSA's competency level, and one clearly more suitable for nurses. Other Ebensburg proposals
*/ Our consultant duly noted Ebensburg's resistance to tube feeding, commonly regarded as a treatment of last resort. Nonetheless, there is no formal mechanism for deciding when persons with ongoing eating problems may require temporary nonoral feeding to safeguard their health. This is particularly significant anong adult populations whose swallowing difficulties may be sufficiently severe to cause death.

- 4-
include pairing units for coverage and rotating shifts. These types of solutions to an inadequate number of nurses are insufficient to meet the needs of residents, many of whom are medically challenged, for proper nursing assessment, care, intervention and evaluation.
In addition to an insufficient number of nurses, there is a significant lack of nursing supervision and inservice education. The nurse acting as Director when we last toured had assumed the post in December 1988, and there was no indication of when Ebensburg would have a permanent nursing director. In addition, a nursing supervisor is effectively available only during the weekday shift; on the evening and night shifts, the nurse supervisor devotes two-thirds of her time to administrative responsibilities as the Administrator on Duty, leaving little time free to supervise nurses. The absence of supervision is made more problematic not only by the burden on direct care nursing staff due to their numbers, but also by their relative inexperience and the lack of inservice training that they receive. Our nurse consultant found that the maximum level of training for a nurse was 2.5 hours over a two year period. This level is far below that recognized by any known professional standard.
E. Inadequate inservice training for, and coordination among, staff. It is clear from observation during our tours, review of staff training records, and individual resident charts, that Ebensburg direct care staff are inadequately trained. As a result, they often respond inappropriately to residents' behaviors, which places both staff and resident at risk and may exacerbate the resident's maladaptive behavior. Increased staff training will enable direct care workers to manage residents safely, without resort to excessive restraint.
Coordination and communication between medical professionals is inadequate. For example, the primary physician at present acts as intermediary between the psychologist and the consulting psychiatrist. Particularly if behavior management is to improve, direct communication between these critical professionals must occur. At present there is only informal, irregular interaction between the physical therapy department and the orthopedist. Similarly, there is little contact between the physical therapists and medical doctors, physical therapists and occupational therapists, and occupational therapists and the orthopedist.
F. inadequate infection control measures. Given the potentially infectious injuries residents receive from bites,
scratches, falls, and various forms of self-injurious behaviors
still numerous at Ebensburg, the facility's lack of adequate infection control measures exposes residents to an unreasonable risk of harai.. For example, the new Infection Control Coordinator does not receive copies of culture reports sent to the pharmacy; she is therefore unable to communicate important information

- 5-
about infectious problems to other medical professionals and to the administration. Infection control education, monitoring of direct care staff for proper infection control procedures and active administrative involvement were not evident.
G. Inadequate properly fitted adaptive equipment. The use of adaptive equipment at Ebensburg, particularly wheelchairs, is inconsistent with the exercise of judgment by a qualified professional. Inappropriate use jeopardizes the health and safety of residents. Residents frequently sustain injuries as a result of unprotected, broken or ill-fitting chair components. Ill-fitting chairs or those in disrepair do not provide adequate support, thereby increasing the risk of accidental injury and physical deterioration. Our medical expert also cautions that unless residents spend time out of their wheelchairs while at their day program sites, skin breakdown will occur.
II. Ebensbera Residents Are Not Provided Adequate Training as Needed.
Training programs to ensure residents' safety and to facilitate their ability to function free from bodily restraints are lacking. As we previously informed you, a significant number of Ebensburg residents need professionally designed and implemented training programs to reduce or eliminate their self-injurious or aggressive behaviors. Most of the existing plans are too similar to reflect the individual needs of the resident, and, as such, do not reflect the judgment of a qualified professional as to the necessary steps needed to address the individual needs of the resident for whom the program was ostensibly designed. The psychology expert who toured with us also found a systematic failure to fully implement behavioral plans that do exist, and the excessive use of physical and chemical restraints as "substitutes for training programs.
As a result of Ebensburg's continuing failure to design and implement adequate training programs, residents still suffer otherwise preventable physical injury and undue bodily restraint. Maladaptive and self-injurious behavior continue at a high rate, as do accidents. As a result, residents sustain injury, ranging from minor trauma to injuries requiring hospitalization.
Minimally Necessary Remedies.
We are aware that most administrators and staff at Ebensburg share our interest in the welfare of its residents. Even with careful consideration of their efforts, the conditions described constitute a pattern and practice that results in deprivation of certain constitutional rights of Ebensburg residents. To eliminate these violations and to ensure that constitutionally adequate conditions are maintained in the future, the following

- 6-

minimum remedial measures are required to ensure adequate medical care, and to provide adequate training where needed:

To Ensure Adequate Medical Care

/

1. Medications procedures, including the formulation of

diagnoses, must conform with accepted medical professional

judgment and be professionally monitored in order to ensure

residents' rights to safety and freedom from undue bodily

restraints.

2. Medical documentation must be maintained in a professional manner with clear, current, and complete information in order to ensure residents' rights to adequate medical care.

3. Ebensburg must provide residents at risk nutritionally or with impaired eating ability with appropriate nutritional analysis, and training, as appropriate, in order to ensure residents' rights to adequate medical care. Direct care staff must be trained in appropriate techniques for assisting these residents.

4. Ebensburg must hire and train an adequate number of nurses and nursing supervisors to prevent residents from being placed at an undue risk to their health and safety.

5. Ebensburg must ensure that staff members are adequately trained to respond appropriately to residents' behavior and to manage residents safely. A system to encourage and ensure interaction between and among the various professional and direct care staff components must be developed.

6. An infection control program must be designed and implemented to ensure ongoing prevention, identification, and response measures sufficient to protect residents from the danger of infections.

7. Ebensburg must professionally design adaptive equipment to meet the needs of residents, and maintain that equipment in order to protect residents from unreasonable risks of harm.

To Provide Adequate Training for Residents

Training programs must be professionally designed and consistently implemented to provide for resident safety or the safety of others, and to eliminate undue bodily or chemical restraint. Ebensburg may apply restraints only pursuant to the exercise of professional judgment by a qualified professional, and never in lieu of training programs .or for the convenience cf staff.

- 7-
We are pleased to consult with you concerning financial, technical, or other assistance that might be available from the United States to assist you with improving conditions at Ebensburg. You may wish to consult with the Departments of Education and Health and Human Services (KHS) to inquire about the programs that they administer. We have attached the latest Guide to Department of Education Programs. We suggest that you contact Linda Z. Marston, Regional Director, U.S. Department of Health and Human Services, at 215-596-6492, for information concerning HHS programs.
We propose to enter into a legally binding and judicially enforceable agreement with the Commonwealth of Pennsylvania that includes, at a minimum, the remedial measures outlined above. Attorneys from this office will contact counsel for the Department of Public Welfare in the near future. At that time, we will arrange for a meeting to discuss this matter further and begin the process of drafting an agreement designed to remedy unconstitutional conditions at Ebensburg. If, in the meantime, you or your staff have any questions regarding this matter, please contact Arthur E. Peabody, Jr., Chief, Special Litigation Section, at (202) 272-6060. We look forward to continuing to work together to reach an amicable resolution of this matter.
Sincerely,
James P. Turner Acting Assistant Attorney General
Civil Rights Division
Enclosure
cc: Honorable Ernest Preate, Jr. Attorney General Commonwealth of Pennsylvania
Mr. John F. White, Jr. Secretary, Department of Public Welfare
John A. Kane, Esquire Chief Counsel, Department of Public Welfare
Mr. A l a n M . Bellomo Director, Ebensburg Center
Charles D. Sheehy, Esguire United States Attorney Western District of Pennsylvania

CERTIFICATE OF SERVICE
I hereby certify that on March 4, 1996, two copies of the
foregoing Brief for the United States as Appellant were served by
federal express on the following counsel for the appellees:
Thomas York, Esq. Eckert, Seamans, Cherin & Mellott One South Market Square Bldg. 213 Market Street Harrisburg, PA 17108
Christine DeMichele, Esq. Department of Public Welfare Office of Legal Counsel 305 Health & Welfare Bldg. Harrisburg, PA 17105-2675
SAMUEL R. BAGENSTOS Attorney

 
 TABLE OF CONTENTS
TABLE OF AUTHORITIES
I. STATEMENT OF INTEREST OF THE AMICI CURIAE
II. STATEMENT OF JURISDICTION
III. STATEMENT OF THE ISSUES
IV. STATEMENT OF THE CASE
V. SUMMARY OF ARGUMENT
VI. ARGUMENT
A. THE OPINION ERRED IN ITS APPLICATION OF YOIJNGRERG V. ROMEO BY FAILING TO BALANCE INDIVIDUAL RIGHTS AGAINST ARTICULATED STATE INTERESTS AND BY SUBSTITUTING A "GOOD FAITH" STANDARD FOR PROFESSIONAL JUDGMENT.
1. The opinion below failed to afford sufficient weight to individual rights as opposed to the state's interests, as required by due process
2. Professional judgment cannot be satisfied by devising plans that are not implemented, by ignoring developments in the disciplines, or by staffing inappropriately
3. The opinion below impermissably created a "good faith" exception to Youngberg's professional judgment requirement
B. A SERIES OF NEGLIGENT ACTS CONSTITUTES MORE THAN MERE NEGLIGENCE AND VIOLATES RESIDENTS' CONSTITUTIONAL RIGHTS

i & ii 1 3 3 3 4 6
6
6
9
13
15

C. THE OPINION MISAPPLIED THE "CUSTOM OR POLICY" REQUIREMENT OF MONF.LI.: THE PATTERNS AND PRACTICES OF THE EBENSBURG CENTER CLEARLY CONSTITUTE A "CUSTOM OR POLICY" 16

1. The "policy or custom" analysis is not applicable

to an action against a state

17

2. The "policy or custom" analysis does not establish

an additional burden of proof where the government

is sued for its own constitutional violations

18

3. Where a pattern or practice of violations is shown,

it may properly be inferred to be a "policy or custom"

of the governmental entity

20

VII. CONCLUSION

24

TABLE OF AUTHORITIES DeGidio v. Pung
920 F.2d 525, 532-33 (8th Cir. 1990)
Estelle v. Gamble 429 U.S. 97 (1976)
Haiderman v. Pennhurst State School. 446 F. Supp. 1295 (1977) and 901 F.2d 311 (3d cir. 1990) cert. den. 498 U.S. 850 (1990)
Hunt v. Ehherts. et. al Civ. No. CCB-91-2564, (D. Md. motion filed March 6, 1996)
Jackson v. Ft. Stanton Hospital and Training School. 757 F. Supp. 1243 (D.N.M. 1990), rev'd in part., 964 F.2d 980 (10th Cir. 1992)
Kentucky v. Graham. 473 U.S. 159 (1984)
Monell v. New York City Department oT Social Services
436 U.S. 658 (1978)
Monroe v. Pape. 365 U.S. 167 (1961)
Oklahoma City v. Tuttle 471 U.S. 808, 818 (1985)
Poe v. Ullman 367 U.S. 497, 542 (1961)
Ramos v. Lamm 639 F.2d 559, 575 (10th Cir. 1980),
cert, denied, 450 U.S. 1041 (1981)
Rogers v. Evans. 792 F.2d 1052, 1058-59 (1 lth Cir. 1986) i

16 15
4 14 6, 13, 22 18 5, 17, 18, 19, 23, 24 17, 18 19, 24 7, 8
12,16
16

Romeo v. Youngberg. 644F.2d 147(3rdCir. 1980) vacated, 457 U.S. 307 (1982)
Scott v. Plante. 691 F.2d 634, 637 (3d Cir. 1982)
Shaw v. Strackhouse. 920 F.2d 1135 (3rd Cir. 1992)
Society for Good Will to Retarded Children v. Cuomo.
737 F.2d 1239, 1248 (2d Cir. 1984)
Todaro v Ward. 565 F.2d 48 (2d Cir. 1977)
U.S. v. Illinois. 803 F. Supp. 1338 (N.D. 111. 1992)
U.S. v. New York. 690 F. Supp. 1201 (W.D.N.Y. 1988)
U.S. v. Mississippi. 380 U.S. 128 (1965)
U.S. v. Pennsylvania. 832 F. Supp. 122 (E.D.Pa. 1993)
U.S. v. Pennsylvania. 902 F. Supp. 565 (W.D.Pa. 1995)
Weilman v. Faulkner. 715 F.2d 269, 272 (7th Cir. 1983), Cfifl. £tenkd_, 468 U.S. 1217 (1984)
White v. Napoleon. 897 F.2d 103 (3d Cir. 1990)
Youngberg v. Romeo. 457 U.S. 307 (1982)
42 U.S.C. § 1997 42 U.S.C. § 1983 42 U.S.C. § 6000
ii

14, 21 12
15, 16, 21
21 16
20 20
20
20
passim
16 16
passim 20
16, 17, 18, 19, 24 1

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 95-3541 UNITED STATES OF AMERICA,
Plaintiff-Appellant, v.
THOMAS J. RIDGE, Governor of the Commonwealth of Pennsylvania; FEATHER HOUSTOUN, Secretary, Department of
Public Welfare; NANCY THALER, Deputy Secretary of Mental Retardation, Office of Mental Retardation; ALAN M. BELLOMO, Director, Ebensburg Center; COMMONWEALTH OF PENNSYLVANIA, Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRIEF FOR THE NATIONAL ASSOCIATION OF PROTECTION AND ADVOCACY SYSTEMS AND THE ARC OF THE UNITED STATES AS AMICI CURIAE
I. STATEMENT OF INTEREST OF THE AMICI CURIAE
The National Association of Protection and Advocacy Systems (NAPAS), founded in
1981, is a membership organization for the nationwide system of protection and advocacy
(P&A) agencies. P& As are mandated under the Developmental Disabilities Assistance and Bill
of Rights Act, 42 U.S.C. §6000elS£O., and related statutes, to provide legal representation and
related advocacy services on behalf of all persons with disabilities. In fiscal year 1994 alone,
P&As served well over 600,000 individuals with disabilities. NAPAS provides P&As with
training and technical assistance and represents their interests before the Executive and

Legislative Branches of the federal government. P&A systems exist in every state and territory of the United States of America. In many of those jurisdictions, P&A systems are at the forefront of the struggle to protect the rights of persons with disabilities who are unnecessarily confined to institutions such as the Ebensburg Center. With some two decades of experience in institutional reform litigation and community integration litigation, P&As are uniquely situated to serve as friend of the court in its consideration of this profoundly disturbing district court opinion.
The Arc of the United States is a membership organization comprised of family members, friends, interested citizens, and individuals with professional interests in the field, as well as people who seek to speak for themselves despite their cognitive impairments. The more than 1,100 state and local chapters of the Arc of the United States across the country form the largest voluntary organization in the United States devoted solely to the welfare of the more than seven million people who have mental retardation and their families and to the prevention of this condition in future generations.
The Arc of the United States is committed to securing for all people with mental retardation the opportunity to choose and realize their goals of where and how they learn, live, work and play. The Arc is further committed to reducing the incidence and limiting the consequence of mental retardation through education, research, advocacy and the support of families, friends, and community. Since its founding in 1950, the Arc has been recognized in every forum including the Congress, state legislatures, rulemaking proceedings, and in the

courts, as representative of the interests of citizens with mental retardation and their families. As such, the Arc of the United States is well qualified to serve as friend of the court on behalf of those individuals residents of institutions who may be affected by the holding.
II. STATEMENT OF JURISDICTION Amici adopt the statement of jurisdiction as presented in the appellant's brief.
III. STATEMENT OF THE ISSUES Amici agree with the position offered by the Appellant United States as to the statement of the issues and offer the following additional issues for consideration by the Court: 1. Did the opinion correctly apply the standards enunciated in Youngberg v. Romeo. 457 U.S. 307(1982)? 2. Does a series of negligent acts by State actorsriseto more than "mere negligence" and therefore become actionable under the Fourteenth Amendment? 3. Did the opinion correctly apply a "policy or custom" standard to the facts before it?
IV. STATEMENT OF THE CASE Amici adopt the statement of the case as presented by the Appellant United States of America. Additionally, amici note that conditions at the Ebensburg Center, the subject of this litigation, are similar in many respects to the conditions which once existed at the Pennhurst State School. For example, as at Pennhurst more than twenty years ago, Ebensburg is overcrowded and not conducive to trainingprogramsof any sort. Compare Tr. 7/26/93 (Stark)

at 233-34; Exh. 870 at 57, with Haiderman v. Pennhurst. 446 F. Supp. 1295, 1309 (1977). Ebensburg residents, like those of the former Pennhurst institution, arefrequently injured while in defendants' custody, both from other residents' behaviors and from self-abuse. Compare Tr. 8/4/93 (Amado) at 76-77; Tr. 8/2/93 (Russo) at 75-79; Tr. 7/26/93 (Stark) at 105, with Pennhurst. 446 F. Supp. at 1309. The Third Circuit is very familiar with the Pennhurst litigation, which spanned some eleven years. See Halderman v. Pennhurst State School. 901 F.2d 311 (3d Cir. 1990), ceil. dfiiL, 498 U.S. 850 (1990)(See 901 F. 2d at 315, n.l, for reference to procedural history). After many years of attempting to improve conditions there, "[ultimately, all parties conceded that Pennhurst was not providing adequate care and habilitation," Id. at 315. Pennhurst is now closed.
V. SUMMARY OF ARGUMENT The opinion below reflects a diligent attempt to synthesize weeks of testimony by experts and professionals in a wide variety of disciplines and testimony by caregivers, administrators and others familiar with conditions at the Ebensburg Center and with services available in the surrounding communities. Because of the misapplication of key legal standards and because of misinterpretation of facts, however, the decision reached was incorrect and should be reversed. The decision misapplied the holding of Youngberg v. Romeo. 457 U.S. 307 (1982), by failing to afford any weight to the individual liberty interests at stake in this matter. Instead, the decision treated Youngberg's "professional judgment" standard as though all decisions

about people with disabilities in state custody and care are conclusively valid. The opinion deems that "professional judgment" can include decisions no longer accepted by the professions, and can include treatment plans that are never implemented. Also, the opinion seems to excuse lapses of professional judgment that are the result of inappropriate staffing at Ebensburg. These distortions of the professional judgment measure cannot be supported by any reading of Youngberg.
Additionally, the opinion failed to recognize that proof of a series of negligent acts at Ebensburg constitutes much more than "mere negligence". While each act, examined in isolation, may not present a constitutional claim, clearly the pattern of negligent acts demonstrated at trial amounts to deliberate indifference, more than sufficient to establish liability here.
Finally, the decision imposes an impossibly high burden of proof by misapplying the "policy or custom" requirement originally articulated in Monell v. New York City Department of Social Services. 436 U.S. 658 (1978). The Monell rule has no application in this case, because Monell was limited to defining municipal liability and is not applicable to an action against the state. Moreover, Monell does not apply to an action seeking injunctive relief only, and has no application to an action where the torts of the state itself are at issue. In any event, even if Monell did apply here, the United States clearly established numerous customs of violating individual rights at Ebensburg.

Amici support, also, the arguments advanced in Appellant's brief urging reversal. In
particular, Appellant correctly argues that the Constitution protects an individual's right to
training that will enable him or her to improve living skills, especially if that training will allow
the individual to leave the institution. See. Brief of Appellant at 28-32. As other courts have
noted, if a person can demonstrate that a state's refusal to provide adequate training in an
institution caused the loss of self-care skills, the state will be liable for that loss. See e*g.,
Jackson v Ft Stanton. 757 F. Supp. 1243, 1309 (D.N.M. 1990), rev'd on other grounds, 964
F.2d 980 (10th Cir. 1992).
VI. ARGUMENT
A. THE OPINION ERRED IN ITS APPLICATION OF YOUNGBERG V ROMEO BY FAILING TO BALANCE INDIVIDUAL RIGHTS AGAINST ARTICULATED STATE INTERESTS AND BY SUBSTITUTING A "GOOD FAITH" STANDARD FOR PROFESSIONAL JUDGMENT.
The decision below misinterprets Youngberg v. Romeo. 457 U.S. 307 (1982) to allow
for the application of outdated and dangerous treatment modalities under the guise of the
"professional judgment" standard. This misapplication carries dangerous consequences for the
rights of all persons with disabilities in institutions throughout the country.
1. The opinion below failed to afford sufficient weight to individual rights as opposed to the state's interests, as required by due process.
In Youngberg. the Supreme Court identified for the first time the protectable
constitutional rights available to someone who has been entrusted to the care of an institution

No. 95-3541
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
UNITED STATES OF AMERICA,
Plain tifF-Appellant, v.
THOMAS-J. RIDGE, Governor of the Commonwealth of Pennsylvania; FEATHER HOUSTOUN, Secretary, Department of
Public Welfare; NANCY THALER, Deputy Secretary of Mental Retardation, Office of Mental Retardation; ALAN M. BELLOMO, Director, Ebensburg Center; COMMONWEALTH OF PENNSYLVANIA,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRIEF FOR THE NATIONAL ASSOCIATION OF PROTECTION AND ADVOCACY SYSTEMS AND THE ARC OF THE UNITED STATES AS AMICI CURIAE
V. Colleen Miller Legal Services Director New Mexico Protection & Advocacy System 1720 Louisiana Blvd., NE, Ste. 204 Albuquerque, New Mexico 87110 (505)256-3100
for Amici Curiae

for persons with developmental disabilities. The Court began by noting that such an individual retains liberty interests protected by the Due Process clause that are not extinguished in the institution, 457 U.S. 307, 315-316. After identifying the rights at stake for the individual plaintiff in the Youngberg case, Nicholas Romeo, the Court noted that the next step in any due process analysis is to balance the individual's liberty interests with the demands of an organized society. 457 U.S. 307, 320, citing dissent of Justice Harlan in Poev IJllman. 367 U.S. 497, 542 (1961).
Rather than require the state to identify and defend its interest in each and every decision made concerning an individual, the Youngberg Court established the professional judgment standard: a decision made by a professional is a presumptively valid expression of the state's interest unless the decision is a substantial departure from accepted professional judgment, practice, or standards so as to demonstrate that the person responsible actually did not base the decision on such judgment. 457 U.S. 307, 321-323. The Youngherg Court intended this standard as a guide to lower courts in identifying the state's interests, hoping to minimize judicial involvement in the daily operation of institutions, and affording the professional decisions a rebuttable "presumption of correctness". Id- at 321-324.
The opinion in the case below has completely misinterpreted the Youngberg directive, essentially abandoning any responsibility to weigh professional decision-making against individual rights, and elevating professional decision-making to a conclusive, not rebuttable,

presumption of correctness.1 Nowhere in the opinion's lengthy discussion of institutional practices is there any indication of the individual rights at stake. For instance, there is little acknowledgement of an individual's right to adequate medical care in the analysis of nursing practices or in consideration of medication administration procedures. The opinion does not weigh any individual right to privacy in its endorsement of Ebensburg's consistently unsuccessful plans to correct privacy deficiencies. Thus, clearly, the decision failed to afford any weight to the individual rights at stake as against the state's interests.
In light of the decision's apparent reluctance to give any weight to individual rights, the warnings offered by Justice Harlan in his Poe v. Ullman dissent hold special truth here. "[C]ertain [liberty] interests require particularly careful scrutiny of the state need asserted to justify their abridgment." Poe. 367 U.S. 497 at 543 (citations omitted.) Surely, the individual liberty interests at stake here require that level of careful scrutiny. Justice Harlan went on to advise that "due process has not been reduced to any formula...[n]o formula could serve as a substitute, in this area, for judgment and restraint." 367 U.S. 467, 543. Indeed, the decision
1 While abandoning the judicial task of weighing competing interests in this case, the court seems to have taken on new tasks. The court admits to going beyond the record presented to it in order to make its determination. At Footnote 11, the decision excuses this practice, stating that Rule 106 of the Federal Rules of Evidence permits an "adverse party" to introduce additional evidence for fair consideration. 902 F. Supp. 565, 585 n. 11 (W.D. Pa. 1995). It is alarming that any court might see itself as an adverse party and not a neutral arbiter. Likewise, at footnote 16, the opinion notes its sua sponte medical research, relying on the Physician's Desk Reference to excuse the facility's practice of injecting valium intramuscularly. liL, 593 n.16.
8

below seems to have substituted an unjustifiably broad reading of "professional judgment" for any exercise of judicial scrutiny.
2. Professional judgment cannot be satisfied by devising plans that are not implemented, by ignoring developments in the disciplines, or by staffing inappropriately.
The decision misapplied Youngberg's professional judgment standard throughout its opinion in many different ways. For example, in its discussion of nursing care, the opinion recites a long list of inadequately performed basic nursing practices which the United States' expert contends jeopardize residents' health at Ebensburg: auscultation of breath sounds, measurement of abdominal girth, testing for hidden blood in stools or vomitus, and taking and recording residents' vital signs. 902 F. Supp. 565, 628 (W.D. Pa. 1995). The opinion responds to only OJQ£ of those inadequate nursing practices - testing for hidden blood - and ends its analysis there. Id- As another example, the opinion later responds to the United States' proof that Ebensburg fails to use "functional analyses" to develop individual plans of behavior treatment by stating that the Center is now beginning to use functional analyses. 902 F. Supp. 565, 638. Under this ruling, then, a court can fulfill the task of identifying whether professional judgment is satisfied in an entire professional discipline by examining only one aspect of it, or by noting that a particular practice may have been unacceptable in the past but will probably be better in the future now that Ebensburg knows it is unacceptable. See. £ ^ Id.
at 611.

In fact, at one point, the opinion waters down the professional judgment standard even further. While Youngberg admonished that courts are to ensure that treatment decisions are made pursuant to "accepted professional standards," 457 U.S. at 323, the opinion here inserts new qualifying language, referring to "minimally" accepted professional standards, 902 F. Supp. 565, 584, (The opinion apparently borrowed the word "minimally" from Youngberg's description of the level of training that Romeo was entitled to, namely, minimally adequate training. 457 U.S. 307,319 and 322. That the Constitution would allow "minimally accepted" professional standards appears nowhere in the Youngberg decision). Standards that are minimally accepted, in this opinion's interpretation, would apparently include standards that are simply not currently accepted or are not accepted by many professionals. For example, with respect to seizure treatment, the decision allowed an outdated, universally disregarded treatment method, understood to be dangerous, to satisfy the professional judgment standard. Id. at 592.
Surely, Youngberg never intended to permit such unreasonable action under the Fourteenth Amendment. Youngberg stresses that persons who have been confined through no fault of their own are entitled to greater protections than those confined for punishment purposes, but that the State need not meet the burden of proving "compelling" necessity. Youngherg v. Romeo. 457 U.S. 307, 321-322 (1982). In this fashion, the Court was relieving state institutions of the burden of ensuring absolute protections, but by no means relieving them of all of their responsibilities. The Court later states that a professional's treatment
10

decisions should be regarded as "presumptively," but not conclusively, valid. Id. at 323. The state is under a duty to ensure that decisions are made by appropriate professionals and that those decisions are reasonable. 457 U.S. 307,324. "Reasonableness" is woven throughout the Youngberg Court's analysis of the rights enjoyed by Nicholas Romeo and its analysis of the obligations of the state. S£££L£.457 U.S. 307, 319, n. 25, and 322.
The decision found that the mere development of plans of correction satisfied the professional judgment standard, even if not implemented or even if not effective to resolve the problems addressed, e ^ 902 F. Supp. 565 at 590, 591, 594 and 597. The opinion holds that it was consistent with professional judgment for a professional to follow an older, even rejected, school of thought, e.g. Id. at 592, 596 (seizure treatments).2 The opinion found no violation in the use, in residents' records, of diagnoses that have not been accepted since the very first Diagnostic and Statistical Manual of Mental Disorders (DSM) was published in 1952. Id- at 602-603. It did not find that professional judgment required psychiatrists and psychiatric
2 The disciplines related to the care and training of persons with developmental disabilities, perhaps unlike any other fields, have experienced dramatic expansion of understanding of the capabilities of persons with developmental disabilities in recent decades. Tasks once thought impossible (by society at large) for someone with a developmental disability are now clearly attainable. For example, in 1982, when the Supreme Court issued its Youngberg decision, the parties to that action stipulated that "no amount of training would enable [Romeo] to live in the community." 457 U.S. 307, 317. However, less than two years later Romeo was successfully living in the community, eventually in his own apartment. See "Former Pennhurst Patient to Get Settlement," UPI. July 25, 1984, available in LEXIS, Nexis Library, UPI file.
11

service providers to keep abreast of changes in the Diagnostic and Statistical Manual3. Id. The decision did not require those responsible for medical treatment of the large number of people with epilepsy at Ebensburg to be aware of universally accepted developments in the treatment of epilepsy. Id. at 592. Under this insupportably broad application of the professional judgment standard, treatment of Ebensburg residents with leeches and magic charms might be an acceptable, albeit "older" school of thought.
Further, the opinion seems to regard this litigation as being against individual actors rather than the state itself. The decision excuses inadequate nursing care when delayed decisions to call the nurse are made by direct care staff. Id. at 629. The decision excuses errors made by doctors acting beyond their professional capacity because they are not neurologists. Id. at 592. No one intends to blame direct staff because they are not nurses; no one could blame a general practitioner for not being a neurologist. Id. at 592. But the state is to blame when it fails to put the proper decision makers in the proper places in its system. Se£ SLg. Ramos v Lamm. 639 F.2d 559, 578 (10th Cir. 1980), cexL denied, 450 U.S. 1041 (1981) (inadequate and unqualified staff endanger prisoners' health and well-being and evince a deliberate indifference to health needs). Sfi£ also., Scott v Plante. 691 F.2d 634, 637 (3d Cir. 1982).
3 902 F. Supp. at 602-3. The DSM was first published in 1952 and replaced by the DSM II in 1968. It has been revised three more times since then. Diagnostic and Statistical Manual of Mental Disorders. Fourth Edition (1994), Introduction at xvii; Third Edition-Revised (1987), Introduction at xviii.
12

Perhaps most distressing of all of the misapplications of the professional judgment standard are those relating to residential placement decisions for individual residents. The treatment officials most familiar with the Ebensburg residents found that many of them not onJy would be capable of living in the community but in fact would be better served in the community. While the holding acknowledged that to be true, it did not find any liberty interest to flow from that fact.4 £ul see, Jackson v. Ft Stanton. 757 F. Supp. 1243, 1311-1312 (D.N.M. 1990), rev'd in part, 964 F.2d 980 (10th Cir. 1992) (failure to implement community placement recommendations violates due process).
3. The opinion below impennissably created a "good faith" exception to Youngberg's professional judgment requirement.
Instead of giving any weight to individuals' rights, the opinion created a variation of a "good faith" standard, repeatedly concluding that any decision made at all by any institution staff would end the inquiry, even when made by someone unqualified (e.g. 902 F. Supp. 565, 629, medical response decisions made by RSA staff), even when made under outdated understandings of the discipline (&£. 902 F.Supp. 565 at 592, 602, 622 and 633), or when a decision is made but not implemented or is ineffective (e^g. 902 F.Supp. at 590, at 594 and at 597).
Remarkably, the decision found it sufficient that the needs of residents for whom the community had been recommended were satisfied by the provision of grounds privileges to these residents. 902 F. Supp. 565, 587. It should go without saying that walking around the grounds of an institution can hardly be compared with the experience of living in a house in a neighborhood, with the freedom to come and go, and to make all of the everyday decisions that are denied institutional residents.
13

In this way, the decision abandons the task of giving sufficient weight to individual
liberty interests against the state interests in being free from judicial intervention, and instead allows the state to have unchallengeable power.5 Indeed, the Third Circuit warned against this
practice in its Romeo decision: "appropriate deference to medical expertise does not diminish
the judicial duty to safeguard liberty interests implicated in treatment decisions." Romeo v.
Youngherg, 644 F.2d 147, 165 (3d Cir. 1980), vacated, 457 U.S. 307 (1982).
The decision in this case has already begun to have disastrous consequences in other
parts of the country. The State of Maryland, for example, in a motion for summary judgment
in the U.S. District Court of Maryland, cites U.S. v. Pennsylvania in taking the extraordinary
position that because it has hired experts who will testify that the care provided to plaintiffs
does not substantially depart from professional judgment standards, it has satisfied the professional judgment standard set forth in Yonngherg v. Romeo. 457 U.S. 307(1982).6 Hunt,
v. Ebberts. et. al. Civ. No. CCB-91-2564, motion pp. 44-45 (D. Md. motion filed March 6,
For a thorough discussion of the relinquishment of the role of the judiciary in protecting individual liberty interests, seeSusan Stefan, Leaving Civil Rights to the 'Experts': From Deference to Abdication Under the ProfessionaJ Judgment Standard, 102 Yale L.J. 639 (1992).
6In Maryland's own words, "If the State can prove that any qualified professionals consider the State's care in these areas to meet or exceed existing professional standards, the State has demonstrated that it is exercising professional judgment. The State is then entitled to summary judgment on the due process claims." Hunt v. Ebberts. et al., Civ. No. CCB-91-2564, Memorandum in Support of Motion for Summary Judgment p. 43 (D. Md. motion filed March 6, 1996) (emphasis added). Maryland continues, "[T]he mere existence of the defendants' expert opinions demonstrates conclusively that the State is exercising professional judgment." Id., at 44 - 45 (emphasis in original)(citing U.S. v. Pennsylvania for the proposition that "for every alleged violation of CRIPA, court upheld state's judgment on basis of opinion of state's experts").
14

1996) (relevant pages attached). Essentially, the State of Maryland argues that, pursuant to U.S. v. Pennsylvania, whenever defendants' and plaintiffs' experts disagree, defendants' experts must win as a matter of law. This is an unreasonable application of the professional judgment standard because it improperly abdicates the function of the judiciary to determine if, in fact, professional judgment has been exercised. Youngherg v. Romeo, 457 U.S. 307, 321 (1982).
B. A SERIES OF NEGLIGENT ACTS CONSTITUTES MORE THAN MERE NEGLIGENCE AND VIOLATES RESIDENTS' CONSTITUTIONAL RIGHTS.
The trial opinion states that mere negligence is not enough to establish a violation of constitutional rights. While correct, that cannot end the analysis. While Fourteenth Amendment professional judgment liability may not arise with mere negligence, neither does it require a showing of deliberate indifference. This was, in fact, the very basis for reversal of the district court opinion in Youngherg . As the Third Circuit has already established, a substantial departure from accepted professional standards "is an easier burden of proof than gross negligence" or deliberate indifference. Shaw v. Strackhouse, 920 F.2d 1135, 1146 (3rd Cir. 1990) ("professional judgment... remains somewhat less deferential than a recklessness or gross negligence standard".)
At trial, there was ample evidence of a series of negligent acts, even multiple acts of malpractice. In many circuits, repeated examples of what was found to be "mere negligence"
7The district court erroneously used the deliberate indifference standard of Estelle v. Gamble, 429 U.S. 97 (1976). Youngberg. 457 U.S. 307, 312, n . l l .
15

here, would be considered to be deliberately indifferent to the needs of inmates in a prison context. See, ££., DeGidio v. Pung. 920 F.2d 525, 532-33 (8th Cir. 1990); White v. Napoleon. 897F.2d 103.109-110 (3d Cir. 1990): Rogers v. F.vans. 792 F.2d 1052. 1058-59 (llthCir. 1986): Wellman v. Faulkner. 715 F.2d 269, 272 (7th Cir. 1983), cat. denied, 468 U.S. 1217 (1984); Ramos v. Lamm. 639 F.2d 559, 575 (10th Cir. 1980), Q2&. denied, 450 U.S. 1041 (1981); Todaro v Ward. 565 F.2d 48, 52 (2d Cir. 1977)(finding patterns of abuse to be equal to deliberate indifference). Youngberg recognized that people with mental disabilities who are institutionalized through no fault of their own are due at least the same rights as prisoners, 457 U.S. 307, 315-316, and 321-322. If proof of a series of negligent acts is sufficient to establish deliberate indifference in the prison context, such proof must clearly establish a failure to exercise professional judgment, "an easier burden of proof," in a nonpenal setting. Shaw v. Strackhouse. 920F.2d 1135,1146 (3rd Cir. 1990). The holding of the opinion below, therefore, has denied the residents of Ebensburg rights which are guaranteed even to convicted prison inmates.
C. THE OPINION MISAPPLIED THE "CUSTOM OR POLICY" REQUIREMENT OF MONELL; THE PATTERNS AND PRACTICES OF THE EBENSBURG CENTER CLEARLY CONSTITUTE A "CUSTOM OR POLICY".
Several parts of the opinion demonstrate a profound misunderstanding of the § 1983 "policy or custom" standard. Seee*g. 902 F.Supp. 565 at 591 (official policy or custom played no role in negligent basic care and ineffective plans of correction). The decision's
16

misapplication of the rule is perhaps most alarming in its evaluation of Ebensburg's routine failure to monitor the side effects of Dilantin, an anticonvulsant medication. The opinion finds that Ebensburg fails to monitor blood levels, a necessary step in preventing dangerous sideeffects from the drugs and ensuring effectiveness of anti-seizure medication. The opinion notes that there is no justification for this failure to monitor and that Ebensburg does not attempt to offer one. The decision actually concludes that Ebensburg substantially departed from professional standards in treating patients with seizure disorders, 902 F.Supp. 565, 595-596. The opinion then states that no relief can stem from this failure as a matter of law because it was not proven that the practice was a result of the Commonwealth's "policy or custom." Idat 596. That an established practice (or, in this case, absence of practice) is not a "policy or custom" not only defies simple common sense, but also offends the very purpose of the standard as articulated by the Supreme Court.
1. The "policy or custom" analysis is not applicable to an action against a state.
The "policy or custom" requirement for litigation brought under 42 U.S.C. § 1983 was first articulated by the Supreme Court in Monell v. New York City Department of Social Services. 436 U.S. 658, 690-691 (1978). Monell held that local governmental officials are "persons" within the meaning of 42 U.S.C. §1983, and that the municipality itself will be liable for the conduct of that official when the conduct is pursuant to the municipality's "policy or custom." 436 U.S. at 663. Monell overruled the municipal immunity established in Monroe
17

, 365 U.S. 167(1961). L I The entire focus of the Mflnell opinion was on the liability of a local government, such as a city or a school board, under § 1983, concluding "Congress did intend municipalities and other local government units to be included" in §1983 application. Id. at 690 (emphasis in original). Monell and its progeny have no relevance to an action against the state.8
2. The "policy or custom" analysis does not establish an additional burden of proof where the government is sued for its own constitutional violations.
The opinion below seems to regard the "policy or custom" analysis as requiring some greater level of proof of constitutional violations. As discussed above, the opinion notes that even though there is an absence of a practice of properly monitoring blood levels at the Ebensburg Center, proof of this violation alone is not sufficient without some additional showing of "policy or custom."
As the Appellant's brief states, the "policy or custom" analysis was developed to define under what circumstances a municipal entity could be held vicariously liable for the conduct of individual governmental actors. Rejecting governmental liability under a traditional respondeat superior'theory, the Court stated that a "municipality cannot be held liable solely
8Kentucky v. Graham. 473 U.S. 159 (1984), cited below as the source for the "policy or custom" rule, did involve an action against a state entity. However, the "policy or custom" rule was not at issue in that case. Rather, it is cited among a dozen other examples of "basic distinction^] between personal and official-capacity actions." Id. at 166-167. In fact, Graham acknowledges that the Monell rule is limited to local governments. Id at 166 n.12 and n.14.
18

because it employs a tortfeasor." 436 U.S. at 691 (emphasis in original.) However, the legislative history of Section 1983 made it clear that a government is liable for its own violations of the Constitution. Id at 683.
Monell noted that actions by governmental entities must, of necessity, be carried out by individual actors but holds that there must be some causal connection between the action complained of and the governmental entity before liability under Section 1983 can lie. In MonellT the Supreme Court found a pregnancy-related policy to be illegal, then went on to explain the circumstances under which local governments can be vicariously liable. The Court stated that a government is surely liable "for its own violations of the Fourteenth Amendment," and will be liable for the actions of a state actor when the government has caused the state actor to deprive a person of his or her individual rights. 436 U.S. 658, 683. "Monell's policy or custom... requirement was intended to prevent the imposition of municipal liability under circumstances where no wrong could be ascribed to municipal decisionmakers." Oklahoma City v. Tuttie. 471 U.S. 808, 821 (1985). However, the policy or custom analysis has little use here, where vicarious liability is not at issue. It is the state's own violations of the Constitution that are before the court here. When the state operates a facility such as Ebensburg, it is clearly responsible for, and liable for, the services rendered there.9
Appellant's argument, that Monell has no application in an action seeking only injunctive relieflikewise is well taken. SfiS brief at p. 49 n. 28. The question before the Monell Court was limited to relief in the nature of backpay. Monell. 436 U.S. at 662.
19

3. Where a pattern or practice of violations is shown, it may properly be inferred to be a "policy or custom" of the governmental entity.
Even if there were a need to establish "policy or custom" in this case, the United States
easily satisfied that burden. This lawsuit was initiated pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 (CRIPA).10 CRIPA established the Attorney
General's standing to sue under limited circumstances. See 42 U.S.C. § 1997b. Pursuant to
CRIPA, the Attorney General must certify that the institutional conditions complained of are
part of a pattern or practice, in order to have standing". Id The decision below initially seems
to imply that CRIPA's "pattern and practice" requirement is essentially the same as "policy or
custom", $££ 902 F.Supp. 565, 580. The opinion later applies the "policy or custom"
requirement in an inexplicable manner, increasing the Attorney General's burden of proof to
establish, somehow, that the pattern or practice is also a custom or policy. In other words, the
decision seems to state that a practice that offends professional standards must have some
patina of official approval before a state can be held responsible. The holding below has thus
reached an absurd result, making it unlikely that any plaintiff could ever meet this standard.
To the extent that the policy or custom rationale arises from the judiciary's recognition of 1 lth Amendment sovereign immunity for state governments, it is arguably inapplicable to an action initiated by the United States, to whom the 1 lth Amendment does not apply. See U S v. Mississippi, 380 U.S. 128, 140-41 (1965).
"Although the United States usually considers this part of its burden of proof, as it did at trial, "pattern and practice" is an element of the Attorney General's certification which courts are not authorized to look behind. See, e.g. United States v Pennsylvania. 832 F. Supp. 122, 126 (E.D. Pa. 19931: T Initeri States v. Illinois. 801 F. Supp. 1338, 1340-41 (N.D.I11. 19921: United States v. New York. 690 F. Supp. 1201, 1204 (W.D.N.Y. 1988).
20

This is an unjustifiably impossible burden of proof, clearly not intended by Congress or the case law.
The United States presented ample evidence to establish a "pattern or practice" of constitutional violations, held by the Third Circuit to be actionable under the Constitution. Shaw v. Strackhouse. 920 F.2d 1135, 1143 (failure to prevent pattern of injuries is actionable, citing to Romeo v. Youngherg. 644 F.2d 147, 163 (3d Cir. 1980)). In spite of the crushing weight of evidence of deplorable conditions, the opinion below rejects each instance as an "isolated example"12. Although the opinion selectively identifies random examples of evidence offered by the United States and then dismisses them as "isolated," the United States offered some three volumes -- nearly two thousand pages -- of proposed findings of fact. The holding dismissed proof after proof of unimaginable conditions at the institution as "isolated examples", refusing to see any pattern that the aggregation of examples provides.
Noting time after time that an isolated instance of inadequate care does not demonstrate a constitutional violation, citing to Shaw v. Strackhou.se. 920 F.2d 1135 (3rd Cir. 1990) and Society for Good Will to Children v. Cuomo. 737 F.2d 1239 (2nd Cir. 1984), the opinion rejects a veritable parade of abuses as "isolated mishaps": residents covered with ants (902 F. Supp. 565, 588), maggots found in a resident's ear (Id.), resident covered with vomitus (Id. at 589),
12 It is curious that when the Commonwealth presents evidence of one situation, it is noted to be "an illustration" of a point, 902 F.Supp. at 612, yet when the United States presents a situation, it is rejected as an "isolated example". Similarly, as to each side's experts, when the Commonwealth's expert concedes a point, it is described as "candor", but when the United States' expert concedes a point, it "undermines his position," compare 902 F. Supp. at 601, n. 29 with 902 F.Supp at 610.
21

many residents smelling of urine (Id.), twelve urine-saturated residents confined to wheelchairs
for five hours without a change of clothing (Id. at 589-901), repeated state surveys finding privacy violations (Id. at 590), and on and on through medical care13, psychiatric treatment,
feeding practices, staff training and therapy services. There was more than abundant evidence
at trial to establish a pattern or practice of flagrant and egregious conditions of confinement.
In light of the arbitrary rejection of this procession of violations, it is difficult to discern exactly
what might constitute a pattern of egregious conditions before the "isolated mishap" excuse can
be overcome. From maggot infestations, to preventable deaths and outright abuse of residents,
to life-threatening administration of medications, the opinion appears to be announcing a
standard of constitutional tolerance for these conditions.
It is possible that the failure to see a pattern in the facts at trial stems from the decision's
misunderstanding of or disregard for the individuality of people with developmental disabilities. u The residents of Ebensburg Center are each unique individuals, with unique
In the area of medical care alone, the court found that the following conditions do not violate constitutional minim ums: a) inadequate recordkeeping and documentation, 902 F.Supp at 605, bjii see Jackson v. Ft. Stanton. 757 F.Supp 1243, 1306 (D.N.M. 1990) rev'd in part on other grounds, 964 F.2d 980 (10th Cir. 1992). b) failure to monitor blood levels, c) intramuscular injections of valium, d) medical treatment decisions made by direct care staff, e) neurological care provided by general practitioners. (The trial court discussed nursing care separately, as though unconnected to medical care. 902 F.Supp. 565, 628-631.)
14 The decision relies on stereotypical conclusions about people with developmental disabilities to excuse Ebensburg's failures, believing, for example, that physical injury is inevitable, 902 F. Supp. at 596, and that psychiatric diagnosis of "the mentally retarded is more of an art than a science" 902 F.Supp at 602.
22

problems, unique challenges and unique capacity for growth and development. No two
individuals needs are exactly the same. Because of this uniqueness, it should be rare indeed that
any two individuals will suffer the identical conditions of denied rights. Yet, the decision
refuses to see any connection among the thousands of examples presented unless there is exact
duplication. (In fact, there was evidence of exact duplication here, for example, in the proof
of the twelve people who were urine soaked, and in the proof of failure to monitor dilantin
blood-levels.) In essence, the opinion claims that the United States Constitution permits
intolerable living conditions for those in state care, even with repeated examples of the identical kinds of abuse or neglect for many individuals15. If the opinion is left standing, courts will be
free to dismiss any proof of harm to individuals as simply isolated examples.
In fact, the accumulation of the "isolated" examples presented clearly establishes a
practice of gross negligence, even deliberate indifference, with regard to the treatment of the
residents of the Ebensburg Center. The evidence was sufficient to establish a custom or policy
under any plain understanding of those terms.
In one instance, the opinion dismissed a death by aspiration pneumonia as "an isolated example," although the record made clear that this was a preventable death, caused in part by the institution's failure to follow its own treatment plan. 902 F. Supp. at 608. Evidence at trial demonstrated that the woman had been left forfifteenminutes or more in a head-down position causing her death. Under the holding of this case, unless it was shown that virtually every individual at the Ebensburg Center endured this abuse, no pattern or practice would be found. Even then, there might still be no violation unless the state issued some formal endorsement of their suffering, in order to meet the much higher "policy or custom" standard. To the contrary, Monell warned that governments may be liable for violations "pursuant to governmental custom," even though such a custom has not received formal approval through the body's official decisionmaking channels. Monell. 436 U.S. at 691.
23

Notably, proof of even a single incident of unconstitutional activity is sufficient to impose liability under Monell if there is proof it was caused by an existing policy. Oklahoma v. Tuttle. 471 U.S. 808, 823-824 (stating that even just one application of the policy in Monell would suffice to establish Section 1983 liability, 471 U.S. 808, 822). "To establish the constitutional violation in Monell no evidence was needed other than a statement of the policy by the municipal corporation, and its exercise..." Id. at 822-23 (Relinquish concurring). In fact, even a single incident can create liability. "A rule that the city should be entitled to its first constitutional violation without incurring liability...would be a legal anomaly." Id. at 832, (Brennan, concurring). When a state has undertaken the care, treatment, and habilitation of persons with developmental disabilities, it is liable for each and every exercise of an unconstitutional practice. It would be anomalous, at the very least, to allow a rule that a state government is entitled to its first constitutional violation free of charge simply because the violation occurred in an institution.
VII. CONCLUSION The opinion below examines conditions of confinement at an institution for persons with developmental disabilities and concludes, for the first time in judicial history, that no Constitutional violations exist. If the institution posed significantly fewer threats to the lives and liberty interests of its residents than does the Ebensburg Center, such a conclusion might actually be a hopeful sign. As it stands, however, the opinion will serve as a frightening smokescreen for tragic conditions in institutions which should not be tolerated in any court in
24

this land, and most certainly not in the Third Circuit, well-known for its tremendous accomplishments in protecting the rights of persons with developmental disabilities. This decision, if allowed to stand, threatens not only persons with developmental disabilities in Pennsylvania and the Third Circuit, but throughout the country. Amici join with Appellant and respectfully urge that the opinion below be reversed.
Respectfully submitted:
V. Colleen Miller for amici curiae National Association of Protection and Advocacy Systems and the Arc of the United States 1720 Louisiana Blvd., NE Ste. 204 Albuquerque, NM 87110 (505)256-3100
25

** ATTACHMENT **
professionals — treating, evaluating, and administrative — and, so long as qualified professionals opine that the State's care, treatment, and placement efforts reflect that professional judgment is being exercised, this Court may not "interfere with the internal operations of State institutions." Thomas S. IV, 902 F.2d at 252.
2. The Care, Treatment, and Placements Provided Meet Constitutional Standards (a) Professional judgment has been exercised regarding care and treatment.
In order to prevail on their substantive due process claims, plaintiffs would have to prove that the safety measures, restrictive .confinement, and minimally adequate habilitation afforded the plaintiffs deviate so substantially from accepted professional standards that the State cannot be said to be ezercisir.g professional judgment. Youngberg, 457 U.S. at 321-23. If the State can prove that any qualified professionals consider the State's care in these areas to meet or exceed existing professional standards, the State has demonstrated that it is exercising professional judgment. The State is then entitled to summary judgment on the due process claims in these three cases.
Discovery has been completed regarding the care and treatment being provided plaintiffs. The undisputed material facts prove that the State is exercising professional judgment, and is entitled to summary judgment.

2J«W: 03/06/96

* * YITAC'J^NT * *

(b) Defendants' experts opine that care and treatment meet professional standards. (i) The Williams Case
In Williams, every defendant's expert agreed that the current placements of plaintiffs were appropriate, and that their care and treatment meets or exceeds professional standards of care. Appendix B at 54-58.
(ii) The Hunt Case In Hunt, plaintiffs' experts have opined that care and treatment at the institute meets or exceeds professional standards of care. Hunt Paper No. 170, Exhibit C, Baumeister Report, Paper No. 170, Exhibit D, Walsh Report; Hunt Paper No. 167, Exhibit F, Kastner Report; Hunt Paper No. 167, Exhibit B, Curtis Report; Hunt Paper No. 167, Exhibit E, Feinstein Report; Kastner Dep. at 63-66.
(iii) The Hattie J. Case Defendants' experts concluded that her needs require a NF level of care and placement and care at Deer's Head is appropriate. App. A at 26-28; infra, at 75-77. Even if plaintiffs have experts who disagree with the opinions in defendants' expert reports referred to, the mere existence of the defendants' expert opinions demonstrates conclusively that the State is exercising professional judgment within the range of professional standards with respect to the care and treatment — including safety, restriction, and habilitation — of each plaintiff. See Society for Good Will to Retarded Children v. Cuomo, 737 at 1249 (where experts disagreed over appropriateness of
a«W:CB/06/96

institutionalization, the court "cannot say that it is professionally unacceptable"); U.S. v. Oregon, 782 F. Supp. 502, 513 (D. Or. 1991) (the Department of Justice's criticism of State institutional care "reflects a difference of professional opinion rather than a violation of the constitutional standards"); U.S. v. Com, of Pennsylvania, 902 F. Supp. 565 (W.D. Pa. 1995) (for every alleged violation of CRIPA, court upheld state's judgment on basis of opinion of state's experts). In fact, however, reports of defendants' experts go further, and demonstrate conclusively that the care and treatment provided by the State does not substantially deviate from .accepted professional standards.
3. Plaintiffs' Experts Use An Incorrect Standard Of Care.
Even if the State's experts' reports did not on their face dispose of the due process claims in these cases, the plaintiffs' expert reports cannot be used to rebut those of the State's expert opinions, for the plaintiffs' experts all used a legally incorrect standard of care.
(a) There is no accepted standard for T3I and NRDD patients.
Virtually every expert on both sides of the Williams case conceded that there is no objective, definitive standard of care for persons with TBI and NRDD. Zasler Dep. at 86; Kutzer Dep. at 70-72; Culotta Dep. at 34-35; Brandt Dep. at 152; Cassidy Dep. at 57-58. Rather, experts for both sides stated that programs of care and treatment must be gauged against the individual professional's own experience. Culotta Dep. at 35-37; Voogt Dep.
2J«H:Q3/06/96

at 117; Taylor Dep. at 65; Horton Dep. at 35-36, 100; L-yketsos Dep. at 99-100; Joseph Dep. at 70-78. Thus, plaintiffs' experts' appraisals are no more valid than those of defendants' experts. Since defendants' experts' opinions that the State's care and treatment meet accepted professional standards were based upon their extensive training and experience in psychiatry, neuropsychiatry/ psychology, neuropsychology, brain injury, and rehabilitation of brain injured persons, their conclusions cannot for the purposes of the legal standard in this case be disputed, and the matter is settled. See Bailev v. Gardebrina, 940 F.2d 1150, 1155 (8th Cir. 1991) ("a condition for which there is no known or generally recognized method of treatment cannot serve as a predicate for the conclusion that failure to provide treatment constitutes 'deliberate indifference' to the serious medical needs of prisoners"); U. S. v. Charters, 863 F.2d 302, 313 (4th Cir. 198 8) (the Youngberg standard "appropriately defers to the necessarily subjective aspects of the decisional process of institutional medical professionals").
(b) Plaintiffs' experts incorrectly used a standard of optimal care.
Younaberg and the cases following it uniformly hold that the Constitution does not guarantee persons in State custody a right to the best treatment available. See Society for Good Will. 737 F.2d at 1247-4915; Griffith v. Ledbetter, 711 F. Supp. 1108, 1108-1109
15 "Where the state does not provide treatment designed to improve a mentally retarded individual's condition, it deprives the individual of nothing guaranteed by the Constitution; it simply
2»*:03/O6/96

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 95-3541 UNITED STATES OF AMERICA, Plaintiff-Appellant, v. THOMAS J. RIDGE, Governor of the Commonwealth of Pennsylvania, et al. Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CERTIFICATE OF SERVICE I certify that on this 23rd day of April, 1996, I did cause to be served by overnight delivery two copies of the brief of the proposed amici curiae in the above captioned case on each of the following counsel for the parties:
Samuel R. Bagenstos Counsel for Appellant United States U.S. Department of Justice Civil Rights Division Room 5712 Main Justice Building 10th and Constitution, NW Washington, D.C. 20530
and

Thomas York Counsel for Appellee Thomas Ridge et al. Eckert, Seamans, Cherin, & Mellott 213 Market Street Harrisburg, PA 171030
V. Colleen Miller counsel for proposed amici National Association of Protection and Advocacy Systems and the Arc of the United States

 
 U.S. v. Pennsylvania

No. 95-3541

MR-PA-006-010

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
THOMAS J. RIDGE, Governor of the Commonwealth of Pennsylvania; FEATHER HOUSTOUN, Secretary, Dep't of
Public Welfare; NANCY THALER, Deputy Secretary of Mental Retardation, Office of Mental Retardation;
ALAN M. BELLOMO, Director, Ebensburg Center; COMMONWEALTH OF PENNSYLVANIA, Defendants-Appellees,
ON APPEAL FROM THE UNITED STATES' DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
REPLY BRIEF FOR THE UNITED STATES

DEVAL L. PATRICK Assistant Attorney General
STEVEN H. ROSENBAUM SAMUEL R. BAGENSTOS
Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-2174

TABLE OF CONTENTS
ARGUMENT:
I. THE DISTRICT COURT'S HOLDING THAT EBENSBURG HAS NO OBLIGATION TO PROVIDE TRAINING DESIGNED TO IMPROVE RESIDENTS' CONDITIONS REQUIRES REVERSAL
II. THE DISTRICT COURT'S CONCLUSION THAT EBENSBURG ADEQUATELY PROTECTS RESIDENTS' SAFETY SHOULD BE VACATED
III. THE DISTRICT COURT'S REFUSAL TO ISSUE INJUNCTIVE RELIEF AGAINST THE CENTER'S CONSTITUTIONALLY DEFICIENT TREATMENT OF SEIZURE DISORDERS SHOULD BE REVERSED
IV. THE DISTRICT COURT CORRECTLY HELD THAT THE UNITED STATES COMPLIED WITH ALL REQUIREMENTS OF THE CIVIL RIGHTS OF INSTITUTIONALIZED PERSONS ACT
CONCLUSION
TABLE OF AUTHORITIES
CASES:
Clark v. Cohen. 794 F.2d 79 (3d Cir.), cert, denied, 479 U.S. 962 (1986)
Doe v. Austin. 848 F.2d 1386 (6th Cir.), cert, denied, 488 U.S. 967 (1988)
Doe v. Public Health Trust. 696 F.2d 901 (11th Cir. 1983)
D.R. v. Middle Bucks Area Vocational Tech. Sch.. 972 F.2d 1364 (3d Cir. 1992) (en bane), cert, denied, 506 U.S. 1079 (1993)
Felder v. Casev. 487 U.S. 131 (1988)
Fialkowski v. Greenwich Home for Children. Inc.. 921 F.2d 459 (3d Cir. 1990)

PAGE
2 11
15
21 25
PAGE 5
4, 7 6
5-6, 6 20 6

CASES (cont'd):
Frank v. Colt Indus.. 910 F.2d 90 (3d Cir. 1990)
H. Prang Trucking Co. v. Local Union No. 46 9, 613 F.2d 1235 (3d Cir. 1980)
Halderman v. Pennhurst State Sen. & Hosp.. 784 F. Supp. 215 (E.D. Pa.), aff'd, 977 F.2d 568 (3d Cir. 1992)
Helling v. McKinnev. 113 S. Ct. 2475 (1993)
Horton v. Flenorv. 889 F.2d 454 (3d Cir. 1989)
Kennedy v. Schafer. 71 F.3d 292 (8th Cir. 1995), petition for cert, filed, 64 U.S.L.W. 3727 (U.S. Apr. 19, 1996) (No. 95-1697)
Layton v. Bever. 953 F.2d 839 (3d Cir. 1992)
Messier v. Southburv Training Sch.. 916 F. Supp. 133 (D. Conn. 1996)
Monahan v. Dorchester Counseling Ctr.. 961
F.2d 987 (1st Cir. 1992)
Morris v. Gressette. 432 U.S. 491 (1977)
Pullman-Standard v. Swint. 456 U.S. 273 (1982)
Rogers v. Okin. 738 F.2d 1 (1st Cir. 1984)
Shaw v. Strackhouse. 920 F.2d 1135 (3d
Cir. 1990)
Smith v. Allwright. 321 U.S. 649 (1944)
Society for Good Will to Retarded Children. Inc. v. Cuomo. 737 F.2d 1239 (2d Cir. 1984)
Thomas S. v. Flaherty. 699 F. Supp. 1178 (W.D.N.C. 1988), aff'd, 902 F.2d 250 (4th Cir.), cert, denied, 498 U.S. 951 (1990)
Thomas S. v. Flaherty. 902 F.2d 250 (4th Cir.), cert, denied, 498 U.S. 951 (1990)
United States v. Hawaii. 564 F. Supp. 189 (D. Haw. 1983)
- ii -

PAGE 24
12, 14
7 19
5
6 5 23
6 24 7, 12
5
13, 20 5 2
5 10 24

CASES (cont'd):
United States v. Illinois. 803 F. Supp. 1338 (N.D. 111. 1992)
United States v. New York. 690 F. Supp. 1201 (W.D.N.Y. 1988)
United States v. Pennsylvania. 832 F. Supp. 122 (E.D. Pa. 1992)
United States v. Pennsylvania. 863 F. Supp. 217 (E.D. Pa. 1994)
United States v. Pennsylvania. 902 F. Supp.
565 (W.D. Pa. 1995)
Velis v. Kardanis. 949 F.2d 78 (3d Cir. 1991)
Walton v. Alexander. 44 F.3d 1297 (5th Cir. 1995) (en bane)
Welsch v. Likins. 550 F.2d 1122 (8th Cir. 1977)
Younabera v. Romero. 457 U.S. 307 (1982)

PAGE 24 24 6-7 23
passim 22 6
11, 14 2, 3, 4, 20

STATUTES:
Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. 1997 et sea. . . . .
42 U.S.C. 1997a 42 U.S.C. 1997a(a) 42 U.S.C. 1997a(c) 42 U.S.C. 1997b 42 U.S.C. 1997e
42 U.S.C. 1971 (e) 42 U.S.C. 1983 42 U.S.C. 2000e-6
50 Pa. Stat. Ann. 4402 50 Pa. Stat. Ann. 4402 (a) 50 Pa. Stat. Ann. 4403 50 Pa. Stat. Ann. 4403 (a)
REGULATIONS:
55 Pa. Code 6210.61

20, 21, 22, 23, 24
20 21, 22
21 21, 24
20
23 19 23
4 4 4 4
4

LEGISLATIVE HISTORY:
H.R. Conf. Rep. No. 897, 96th Cong., 2d Sess. (1980), reprinted in 1980 U.S.C.C.A.N. 832
S. Rep. No. 416, 96th Cong., 1st Sess. (1979), reprinted in 1980 U.S.C.C.A.N. 787

PAGE 23, 24
24

- lv -

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 95-3541 UNITED STATES OF AMERICA,
Plaintiff-Appellant, v. THOMAS J. RIDGE, Governor of the Commonwealth of Pennsylvania; FEATHER HOUSTOUN, Secretary, Dep't of Public Welfare; NANCY THALER, Deputy Secretary of Mental Retardation, Office of Mental Retardation; ALAN M. BELLOMO, Director, Ebensburg Center; COMMONWEALTH OF PENNSYLVANIA,
Defendants-Appellees,
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
REPLY BRIEF FOR THE UNITED STATES
The United States contends in this appeal that the district court applied the wrong legal standards in ruling on our claims that the Ebensburg Center does not satisfy constitutional standards in the areas of habilitation, protection of physical safety, and seizure treatment. In defending the district court's ruling, the state does not rely on findings made by the district court under the appropriate legal standards, and it does not demonstrate that the record supports only one resolution of the factual issues. Indeed, much of the state's brief addresses facts not relevant to the issues on appeal. Accordingly, the district court's judgment should be reversed and the case remanded.

- 2ARGUMENT
I THE DISTRICT COURT'S HOLDING THAT EBENSBURG HAS NO OBLIGATION TO PROVIDE TRAINING DESIGNED TO IMPROVE
RESIDENTS' CONDITIONS REQUIRES REVERSAL 1. As we explained in our opening brief (Br. 28, 33),-' the district court did not determine whether the Ebensburg Center gives residents training that would provide a reasonable opportunity for them to improve their conditions. Rather, it adopted the Second Circuit's dictum that "[w]here the state does not provide treatment designed to improve a mentally retarded individual's condition, it deprives the individual of nothing guaranteed by the Constitution." United States v. Pennsylvania, 902 F. Supp. 565, 618 (W.D. Pa. 1995) (quoting Society for Good Will to Retarded Children. Inc. v. Cuomo. 737 F.2d 1239, 1250 (2d Cir. 1984)) . Evaluating the Center's services against only a rule of nondeterioration, the district court found them "adequate for maintenance, which is constitutionally acceptable." Id. at 620 (discussing physical therapy assessments); see also id. at 617618, 632. As we explained (Br. 24-32), that holding is erroneous as a matter of law. Younabera v. Romeo. 457 U.S. 307 (1982), established the principle that states must exercise professional i/MR. " refers to entries on the district court's docket sheet. "Br. " and "St. Br. " refer to pages in the United States' opening brief and the Commonwealth of Pennsylvania's answering brief, respectively. "J.A. " refers to pages in the joint appendix. " Tr. " refers to pages in the trial transcript for the dates indicated. Transcript pages not included in the joint appendix are attached as Addendum B to this brief.

- 3-
judgment in providing training rationally and realistically
designed to enhance residents' ability to exercise their liberty
interests (Br. 25-29). The record reflects that the state did
not do so; while Ebensburg may purport to seek the goal of
improvement, it does not implement programming in a manner that
could reasonably be expected to reach that result (Br. 33-36).
Because the district court applied the wrong legal standard,-''
and that error necessarily affected its decision, the judgment
should be reversed and the case remanded.
2. In response, the state makes two principal legal argu-
ments. First, the state contends that Youngberg contains no
"general statement of a right to improvement" (St. Br. 40). The
Youngberg Court held that the right to training is derivative of
the other liberty interests retained by institutionalized per-
sons. Youngberg. 457 U.S. at 322. This holding clearly entails
a right to training designed to improve residents ability to
exercise their liberty interests. In Youngberg. the Court held
that because Nicholas Romeo possessed liberty interests in safety
-'The state suggests that the district court's holding was more limited. In the state's reading, the court held only that Ebensburg's training need not actually improve residents' conditions (St. Br. 39). The district court's own language refutes that contention. See Pennsylvania. 902 F. Supp. at 618 (no violation "[w]here the state does not provide treatment designed to improve a mentally retarded individual's condition") (internal quotation marks omitted) (emphasis added); ibid, (no violation because "professional judgment is exercised in an effort to preserve and/or maintain" residents' condition) (emphasis added). The state rightly notes that the court appeared to approve a right to training if the failure to provide it "results in the loss of a recognized liberty interest," ibid.. but the reference to "the loss" of such an interest is consistent with the district court's general rule of nondeterioration.

- 4 and freedom from restraint, the state had an obligation to exercise professional judgment in providing training designed to enhance his ability to exercise those interests. Id. at 324. All of the training the United States seeks in this case would serve the interests in safety and freedom from restraint (Br. 3435); Younqberg is therefore directly controlling.
Second, the state argues that Ebensburg residents have no right to training to enable them to leave their confinement because most of them "are not involuntarily committed" (St. Br. 38). The district court correctly rejected that argument. Pennsylvania, 902 F. Supp. at 581 n.6. The nominally "voluntary" residents at Ebensburg did not enter as a result of their own choice. Rather, they were admitted to the institution because a Pennsylvania statute allowed their parents or guardians to turn them over to state custody. See 50 Pa. Stat. Ann. 4402, 4403. The mere fact that the residents' parents may have made a voluntary choice does not relieve the state of the obligation to provide the residents themselves -- all of whom are now over 18 (see Pennsylvania. 902 F. Supp. at 617 n.42) -- with constitutionally adequate care. See Doe v. Austin. 848 F.2d 1386, 1392 (6th Cir.), cert, denied, 488 U.S. 967 (1988).
Indeed, the sole reason the state permits parents to admit their children to the institution is for "examination, treatment and care." 50 Pa. Stat. Ann. 4402(a), 4403(a). State regulations require that each resident "shall receive active treatment." 55 Pa. Code 6210.61. And the Center's mission statement

- 5declares that its "goal for each person admitted" is to aid in the resident's development "so that he or she may achieve maximum functioning" (J.A. 1116). These state statutory and administrative provisions "create objective expectations" (Rogers v. Okin. 738 F.2d 1, 6 (1st Cir. 1984) (internal quotation marks omitted)) that people who are admitted to the institution will actually receive treatment and training. Accordingly, they create a liberty interest in habilitation. See Thomas S. v. Flaherty. 699 F. Supp. 1178, 1203 (W.D.N.C. 1988) (finding state-created liberty interest in habilitation on basis of similar provisions), aff'd, 902 F.2d 250 (4th Cir.), cert, denied, 498 U.S. 951 (1990); see also Lavton v. Bever. 953 F.2d 839, 845 (3d Cir. 1992) ("A liberty interest may arise from the laws of the states, as well as from the Due Process Clause."); Clark v. Cohen. 794 F.2d 79, 94-95 (3d Cir.) (Becker, J., concurring) (collecting cases), cert, denied, 479 U.S. 962 (1986).
Moreover, this Court has recognized that the state incurs affirmative duties under the Due Process Clause where it "impose [s] some kind of limitation on a [person's] ability to act in his own interests." Horton v. Flenorv. 889 F.2d 454, 458 (3d Cir. 1989). Here, even aside from the state action of "endors[ing], adopt[ing] and enforc[ing]" the parents' decision to confine their children "voluntarily" to Ebensburg (Smith v. Allwriaht. 321 U.S. 649, 664 (1944)), state restraints on liberty are inherent in the Center's continuing custody of those residents. See D.R. v. Middle Bucks Area Vocational Tech. Sch.. 972

- 6-
F.2d 1364, 1370 (3d Cir. 1992) (en bane) (state owes affirmative
duties to those in its "physical custody"), cert, denied, 506
U.S. 1079 (1993). This Court has noted "the full time severe and
continuous state restriction of liberty" in the institutional
environment. Id. at 1371.-1 And despite the state's contention
that Ebensburg residents are "free to leave the facility" (St.
Br. 38), the district court found that many residents are not
able, as a practical matter, to do so. Pennsylvania. 902 F.
Supp. at 581 n.6. A commitment that is initially voluntary may
become, de facto, an involuntary one. See Kennedy v. Schafer. 71
F.3d 292, 295 (8th Cir. 1995), petition for cert, filed, 64
U.S.L.W. 3727 (U.S. Apr. 19, 1996) (No. 95-1697); Doe v. Public
Health Trust. 696 F.2d 901, 904-905 (11th Cir. 1983); United
-''For this reason, this Court's decision in Fialkowski v. Greenwich Home for Children. Inc.. 921 F.2d 459 (3d Cir. 1990), is inapposite. Fialkowski involved an individual voluntarily placed in a community living arrangement by his parents. In concluding that "Walter Fialkowski's personal liberty was not substantially curtailed by the state in any way," this Court found it significant that he retained a substantial degree of liberty within the community living arrangement. Id. at 461, 465-466. Nor is Monahan v. Dorchester Counseling Center. 961 F.2d 987 (1st Cir. 1992), apposite. Unlike this case, Monahan did not involve individuals placed in a congregate institution by their parents. Rather, it involved an adult who voluntarily admitted himself to a group home for the mentally ill. See id. at 988. During his six days living in the group home, Monahan received outpatient mental treatment (id. at 988-989) and could have left at any time. See id. at 992. And Walton v. Alexander. 44 F.3d 1297 (5th Cir. 1995) (en bane), involved a student at a state residential school who retained "the option of leaving at will, an option that was never withdrawn." Id. at 1305. In any event, Walton's reasoning is inconsistent with this Circuit's cases, because it rejects this Court's "primar[y]" focus on "physical custody." D.R.. 972 F.2d at 1370; see Walton. 44 F.3d at 1299.

- 7-
States v. Pennsylvania. 832 F. Supp. 122, 124 (E.D. Pa. 1993) A'
3. The state also contends that the facts are insufficient
to demonstrate that Ebensburg's habilitation falls below consti-
tutional standards. Notably, the state does not point to a
single finding in which the district court determined that the
state exercises professional judgment to implement programs in a
manner that can be expected to enhance residents' ability to
exercise their liberty interests. That is because the district
court relied exclusively on its erroneous legal conclusion that
the state's only constitutional duty is one of maintenance. The
case must thus be remanded unless "the record permits only one
resolution of the factual issue." Pullman-Standard v. Swint. 456
U.S. 273, 292 (1982) .
The evidence cited by the state does not satisfy that
burden. For example, the United States' expert witnesses identi-
fied over 4 0 residents who exhibited behavioral problems or were
subjected to chemical restraints,-' and who had not been provid-
also Doe v. Austin, 848 F.2d at 1392 ("[T]he practice of relying upon some affirmative act on the part of profoundly and severely retarded persons to signal their will to escape confinement, coupled with the presence of a parent or guardian who may have played a pivotal role in institutionalizing the admittee in the first instance, creates a quite palpable danger that the adult child will be xlost in the shuffle.'"); Halderman v. Pennhurst State Sch. & Hosp.. 784 F. Supp. 215, 222 (E.D. Pa.) (finding that the "notion of voluntariness" in admission or release from an institution is "an illusory concept"), aff'd, 977 F.2d 568 (3d Cir. 1992) (table).
-7Our opening brief also referred to mechanical restraints (Br.
13). The state contends that this reference "misrepresents the record" because "the cited testimony does not even mention mechanical restraints which were discontinued at Ebensburg" (St.
(continued...)

- 8-
ed with behavioral programs to address these problems or reduce
the need for restraints (Br. 13). Those experts also found a
large number of residents who had not received training in
important adaptive skills (ibid.). They made these findings on
the basis of visits to the institution, interviews with Ebensburg
employees, statistical analyses of data in selected residents'
records, as well as comprehensive review of the records of a
sample of the residents. See 8/2/93 Tr. 9-11, 60-68 (Russo);
8/3/93 Tr. 59-62 (Fahs). The state's own surveyors had reported
similar deficiencies on many occasions since 1983 (J.A. 1183-
1186).&
In attempting to rebut this evidence, the state asserts that
the individuals cited by the United States' experts had received
programs to address their behavioral problems, but that the
experts simply objected to the fact that individual target
-/ (. . .continued) Br. 2 2 ) . But while the testimony referred to in the "see, e.g." cite in our opening brief discusses only chemical restraints, the record clearly reflects a use of mechanical restraints as well. See, e.g., J.A. 297-298 (Russo) (Center placed Ann B. in a restraint chair and did not attempt to change behavioral program to reduce need for that restraint); U.S. Exh. 993 (reporting repeated use of restraint chair on Ann B. even during trial). The record also reflects that when the Center discontinued use of its principal mechanical restraint (the papoose board) in late 1992, it significantly increased its use of the prone, takedownstyle bodily restraint known as floor control (U.S. Exh. 998 (attached as Addendum A ) ) .
-''The state suggests that the district court found that all of the problems noted by the surveyors "ha[d] been corrected" (St.
Br. 27). But the court found only that plans of correction had
been implemented, not that those plans actually cured the deficiencies. The fact that surveyors have continued to cite the same deficiencies year after year demonstrates that the plans did not do so. See J.A. 1179-1192, 1198-1208.

- 9-
behaviors were not separately labeled (St. Br. 20). But the
state points to only 2 of the more than 40 instances cited by the United States' experts.27 And it does not address at all the
deficiencies its own surveyors had repeatedly identified through-
out the years. The state also refers to general testimony that
residents received programs to address their problem behaviors,
or that it is not always possible to eliminate these behaviors
entirely (St. Br. 18-19, 21-23). But this evidence does not
rebut the numerous specific instances in which the United States'
witnesses and the state's own surveyors had found a failure to
provide any programs that even attempted to reduce the incidence
of particular behaviors.
The United States' experts also testified that, as a general
practice, the state did not revise training programs when they
failed to reduce target behaviors; again, the experts' findings
were consistent with those rendered by the state's own surveyors
throughout the years (Br. 13-14). But the state contends that
these findings are "based upon the false assumption that if
injuries continue then the program must be ineffective" (St. Br.
2/Even with regard to these examples, the record does not support the state's contentions. For example, the state cites the testimony of its own expert, Dr. Hauser, to assert that Denise V.'s program for aggression is also sufficient to address her severe self-injurious behavior, because "self-injurious behavior is generally considered to be aggression against one's self." (St. Br. 20 (quoting J.A. 712)). But in the answer immediately following the one quoted by the state, Dr. Hauser admits that "[i]f you're aggressive to somebody else, it wouldn't be considered to be self-injurious behavior. If he's aggressive toward others, they should have a way to deal with that behavior" (J.A. 712) .

- 10 21-22). An examination of the expert testimony proves that assertion untrue. As that testimony demonstrates, the Center failed to revise residents' programs even when harmful behaviors continued unabated and a variety of workable alternatives existed (J.A. 300-307 (Russo); 474-475 (Amado)).
Finally, evidence at trial demonstrated that Ebensburg fails to follow its own policies requiring that all residents receive at least five hours of active treatment per day; in many instances, residents receive only a few minutes of active interaction (Br. 11-12). As the state notes (St. Br. 22-23), its expert Dr. Reid found the amount of meaningful activity at Ebensburg to be "representative of about the average in the field" (J.A. 771). For several reasons, however, Dr. Reid's testimony does not compel the conclusion that the Center provides a constitutionally adequate amount of active treatment. First, Ebensburg's policies reflect the state's professional judgments regarding what training is necessary; the state's failure to follow those policies indicates that professional judgments are not being implemented. See Thomas S. v. Flaherty. 902 F.2d 250, 252 (4th Cir.), cert, denied, 498 U.S. 951 (1990). Second, Dr. Reid admitted that he measured only whether residents were engaging in an age-appropriate activity with an apparent purpose; this measure significantly overstates the extent to which meaningful training was occurring (J.A. 798-802). Dr. Reid's comparative evidence would not be dispositive in any event, for a state may not defend an institution "simply by showing that it is no more unconstitutional than

- 11 are comparable institutions in other states, or that it is as good as or better than comparable institutions elsewhere." Welsch v. Likins, 550 F.2d 1122, 1128 (8th Cir. 1977). The proper question is whether the active treatment at Ebensburg constitutes an exercise of professional judgment in an effort to improve residents' ability to enjoy their constitutionally-protected liberty interests. The record demonstrates that it does not. This Court should remand for consideration of that record under the appropriate legal standard.
II THE DISTRICT COURT'S CONCLUSION THAT EBENSBURG ADEQUATELY
PROTECTS RESIDENTS' SAFETY SHOULD BE VACATED 1. As we explained in our opening brief (Br. 4-9), evidence at trial demonstrated that the Ebensburg Center failed to satisfy its constitutional obligation to protect residents' physical safety. The Center has insufficient direct care staff to intervene when residents are engaging in harmful behaviors (Br. 5 ) , direct care staff are not adequately trained to intervene -- and do not intervene -- when those behaviors occur (Br. 5-7), direct care staff have delayed in summoning nurses following injuries (Br. 8 ) , and direct care staff have abused residents (Br. 8-9). As a result of these lapses, Ebensburg residents have suffered numerous preventable injuries (Br. 6-8). With one exception,-; the district court did not address
£/The district court rejected the nursing delay claim on the basis of an erroneous rule that no violation could be found because the failure to summon nurses was the fault of the direct care staff and not the nurses themselves. See Br. 41-42.

- 12 any of these issues. Indeed, the state does not point to a single finding in which the court addressed the issues of understaffing, intervention, or abuse. The state simply claims that these issues were subsumed in the district court's general conclusion "that there was adequate protection of physical safety" (St. Br. 42; accord St. Br. 26-27). But a district court may not leave its underlying findings unarticulated. Rather, "it is necessary that the trial court specify these subordinate facts upon which the ultimate factual conclusions must rest." H. Prang Trucking Co. v. Local Union No. 46 9. 613 F.2d 1235, 1238 (3d Cir. 1980). Because the district court did not do so, the judgment may not be affirmed unless the state demonstrates that the record permits only one resolution of the factual questions. Pullman-Standard, 456 U.S. at 292. The state did not satisfy that burden.
2. The state makes two responses to the evidence of understaffing and the lack of staff intervention. First, the state contends that the United States' argument rests on the "simplistic []" conclusion "that if injuries occurred then a constitutional violation exists" (St. Br. 16-17, 41). But that is untrue. Dr. Russo, for example, concluded that the Center's process of training direct care staff was systemically inadequate only after he conducted "extensive documentation and review of the training process at Ebensburg" (J.A. 310-311). The United States' experts also relied on their own observations of staff, as well as review of resident records; these records indicated that injuries occurred in circumstances when staff intervention would have been

- 13 appropriate (J.A. 310 (Russo); 476-479, 485-488 (Amado)). Evidence also demonstrated a large number of instances in which particular residents had repeatedly engaged in the same harmful behaviors without effective intervention (Br. 6-8). The circumstances surrounding residents' injuries suggested that staffing levels were insufficient as well (J.A. 479 (Amado); 8/4/93 Tr. 48-54 (Amado)). And the United States did not rely solely on the testimony of its experts. The state's own surveyors found in their 1993 evaluation (conducted during trial) that the failure of staff to intervene was a "systemic" deficiency (Br. 5-6).
Second, the state contends that reliance on the number of incidents reported at the Center overstates the rate of injuries, and that Ebensburg's injury rate compares favorably to the average in facilities for developmentally disabled persons (St. Br. 14-16). But that is essentially irrelevant. The Center falls below constitutional standards not because of the existence of any particular number of injuries but rather because the injuries that do occur result from the failure to exercise professional judgment (Br. 37-38).-' Where, as here, injuries result from the state's failure to take appropriate action in the face of a history of injuries and an apparent risk of future harm (see Shaw v. Strackhouse. 920 F.2d 1135, 1148-1149 (3d Cir. 1990)), the fact that injuries occur in higher rates elsewhere is
any event, the evidence demonstrated that incident reports
were both an over- and an underinclusive measure of the number of injuries at Ebensburg. While not all incident reports involve serious injuries, not all injuries are reported. See Pennsylvania. 902 F. Supp. at 640 & n.66.

- 14 not a sufficient defense. See Welsch. 550 F.2d at 1128.
3. Two former Ebensburg employees -- Robin Hebenthal and Damien Tackett -- testified that they had witnessed multiple incidents of abuse at the Center, and that they had experienced intimidation after reporting those incidents (Br. 8-9). The district court did not make any findings on this question, and the state does not point to any evidence contradicting Hebenthal and Tackett's testimony. The state simply contends that the district court was not obligated to address this issue, because the testimony involved only "exaggerated, and possibly unreliable, isolated incident[s] of abuse" (St. Br. 42; see also St. Br. 25-26). But the fact that two employees witnessed several instances of abuse during their very short tenures certainly raises a question regarding whether abuse was more widespread. And the district court has an obligation to make credibility findings on the record. See H. Prang Trucking Co.. 613 F.2d at 1238. Absent such findings, this Court cannot presume that the district court found Hebenthal and Tackett's unrebutted testimony regarding abuse and intimidation unreliable.—/
—''The state suggests that the district court found Tackett's testimony to be suspect (St. Br. 25). But in the portion of the opinion cited by the state, Pennsylvania. 902 F. Supp. at 590, the district court was addressing the entirely distinct issue of whether residents were bathed properly. And while the district court referred to Tackett, it did not find his testimony suspect; the court simply refused to credit an out-of-court statement made by an anonymous employee. That finding is simply irrelevant to Hebenthal and Tackett's allegations of staff abuse.

- 15 -
III
THE DISTRICT COURT'S REFUSAL TO ISSUE INJUNCTIVE RELIEF AGAINST THE CENTER'S CONSTITUTIONALLY DEFICIENT TREATMENT
OF SEIZURE DISORDERS SHOULD BE REVERSED
1. As the district court noted (Pennsylvania. 902 F. Supp.
at 592), there has been a consensus in the neurological profes-
sion for over a decade regarding the proper treatment of status
epilepticus. That consensus was reflected in a treatment proto-
col published by the Epilepsy Foundation of America (EFA) in 1993
(J.A. 1209-1215). Although status epilepticus cannot be diag-
nosed until 30 minutes of seizure activity has taken place, it is
necessary to administer medication significantly earlier in order
to prevent the condition's harmful, long-term effects (Br. 15-
16). The EFA protocol states that "antiepileptic drug adminis-
tration should be considered whenever a seizure has lasted 10
minutes" (J.A. 1210). Contrary to the state's contention that
the 10-minute time frame "distorts" and "misrepresents" the
record (St. Br. 9 ) , witnesses for both parties generally agreed that medication should be administered after 10 minutes.—7
Moreover, anticonvulsant medication must, insofar as possible, be
administered intravenously: "intramuscular therapy has no place
treating status epilepticus or seizures in general" (J.A. 1211).
—'The United States' expert testified that, under the protocol, "treatment to stop the seizure begins ten minutes after the seizure starts" (J.A. 1072 (Coulter)). The state's expert stated that he "wouldn't quarrel with" the 10-minute time frame, although "[i]f he said nine minutes or eleven minutes, [he] wouldn't quarrel with that either." (J.A. 1097 (Grossman)). Most important, Dr. Grossman did not disagree with the need to administer medication before the 30-minute period for diagnosing status epilepticus.

- 16 As we explained in our opening brief (Br. 16), Ebensburg substantially departs from this standard. The Center is not licensed to administer intravenous medication, and it does not summon ambulances in sufficient time to allow paramedics to do so within the 10-minute time frame set forth in the EFA protocol. Ambulances have been summoned well after the 10-minute period, and they have taken 20 minutes or more to arrive (J.A. 179-195 (Alvarez)). Thus, the Center has generally relied on oral or intramuscular administration of anticonvulsant medication to treat seizures. In finding no constitutional violation, the district court addressed only one aspect of this issue -- the Center's use of intramuscular medications. Because the primary care physicians at the Center are general practitioners, not neurologists, the district court found no reason to hold the state to the standards set forth by the EFA. Pennsylvania, 902 F. Supp. at 592-593. And because the court found the Center's administration of intramuscular medications to be sufficient, it found no reason to consider whether ambulances have been called in sufficient time to allow intravenous medications to be administered within 10 minutes (id. at 593 n.18). Significantly, the district court did not find that Ebensburg complies with the EFA protocol. In defending the district court's ruling, the state contends that it would be "grossly unfair" to hold the Center retroactively to a standard that was not published until 1993 (St. Br. 8 ) . But, as the district court recognized, the EFA protocol repre-

- 17 sented the standard of care that had been widely recognized among neurologists for a decade or more. In light of the fact that more than half of the Center's residents have been diagnosed with epilepsy, the state had an obligation to treat them according to the minimum standards of the most relevant medical discipline (Br. 44-46).—/ Moreover, the United States seeks only prospective relief, and the state has not even suggested that its practices now are any different from what they were before the publication of the EFA protocol in 1993. Accordingly, concerns about retroactivity should not preclude relief in this case.
Contrary to the state's contention, an order requiring the Center to comply with the EFA protocol would not mean that "states must hire only neurologists to treat seizures" (St. Br. 43). There is no reason why general practitioners cannot order the administration of intravenous medications. And those medications can be administered by general practitioners, nurses, or other qualified professionals. They can even be administered by paramedics in an ambulance. See St. Br. 8. The only requirement is that the physician ordering the medication do so in accordance with the generally accepted standards set forth in the EFA document - - i n particular, the requirement that intravenous medication be administered significantly before the 30-minute
—/Indeed, the Center employed a consulting neurologist prior to 1993, and, given its resident population, Ebensburg's primary care physicians have substantial experience treating seizure disorders. See, e.g.. St. Br. 14. These physicians should have been on notice of the standards for treating status epilepticus well before the publication of the EFA document.

- 18 time frame for diagnosing status epilepticus. The record demonstrates that the state has not complied with those standards.
The state also makes several factual arguments. In no case, however, does the state point to any findings made by the district court. And the testimony it cites does not compel the conclusion that the Center's acute seizure treatment comports with constitutional standards. First, the state points to testimony that intravenous medication need not be administered after 10 minutes of seizure activity (St. Br. 7 ) . But both the United States' witnesses and the EFA protocol state the contrary (Br. 15-16), and even the witnesses cited by the state did not deny the necessity of administering medication well before 3 0 minutes have elapsed. Second, the state contends that the United States' witness Dr. Alvarez did not make clear whether the examples of improper treatment he cited involved "a series of distinct seizures" or "uninterrupted seizures that might become status" (St. Br. 6-7). Accordingly, the state finds it "deceptive []" to claim that ambulances have not been summoned for several hours in some cases (St. Br. 10). But even a series of seizures can constitute status epilepticus (J.A. 1209), and in the cases cited by Dr. Alvarez ambulances were not summoned for several hours after seizures had begun (J.A. 181-184, 188-192).
Finally, the state asserts that the residents referred to by Dr. Alvarez did not suffer harm as a result of the Center's seizure treatment (St. Br. 9 ) . But Dr. Alvarez testified that these individuals suffered harm following the Center's substan-

- 19 dard treatment, and that the circumstances indicated that the treatment may have been a factor in the harm they suffered (J.A. 189, 192-193) . A "remedy for unsafe conditions need not await a tragic event." Helling v. McKinnev. 113 S. Ct. 2475, 2481 (1993). The Center's improper treatment of acute seizure episodes creates a significant risk of harm to residents and is thus a proper target of prospective relief.
2. The district court found that Ebensburg physicians had not made any professional judgment whatsoever in monitoring and responding to the side effect of sedation caused by Dilantin, an anticonvulsant drug. Pennsylvania, 902 F. Supp. at 595-596.& On appeal, the state contends that the facts demonstrate that professional judgment was exercised and that the record reflects only isolated lapses in care (St. Br. 44 n.12, 47-49). But the state does not even attempt to show that the district court's finding is clearly erroneous.
The state does, however, defend the district court's decision to deny relief on the ground that the violation did not result from an institutional "policy or custom" (St. Br. 43-47). But the "policy or custom" requirement is a unique rule crafted to effectuate Congress's intent to limit municipal liability under 42 U.S.C. 1983; the district court had no basis for applying that requirement in this Civil Rights of Institutionalized
—'The court did not make similar findings regarding other side effects or other anticonvulsants, because it found no "failure to detect or respond to other side effects on a widespread basis." Id. at 595 n.22.

- 20 Persons Act (CRIPA) case against a state. See Br. 47-48. The state relies on the Supreme Court's statement that "CRIPA is legislation pertaining to *a specific class of § 1983 actions'" (St. Br. 44 (quoting Feider v. Casev. 487 U.S. 131, 148 (1988))). But the Feider Court's statement did not relate to 42 U.S.C. 1997a, the provision of CRIPA that authorizes civil actions by the Attorney General. Rather, the Court was discussing 42 U.S.C. 1997e, which expressly imposes an exhaustion of remedies requirement on certain Section 1983 actions brought by prisoners. See Feider, 487 U.S. at 148 (relying on this provision, which imposes an exhaustion requirement on a specific class of Section 1983 actions, as evidence that Congress did not intend for exhaustion requirements to be imposed on Section 1983 actions generally).
In any event, Younabera places an affirmative duty on the state to assure that professionals make judgments in the areas of protected liberty interests and implement those judgments. This duty is broader than the obligation to avoid deliberate indifference to constitutional rights. See Shaw. 920 F.2d at 1145. When a plaintiff establishes that a state or its agents fail to assure the exercise of professional judgment required by Younabera. as the district court found here, the plaintiff is entitled to relief even if the failure is not pursuant to a "policy or custom" (Br. 48-49). And, as we explained in our opening brief (Br. 50), the record here reflects deliberate indifference, which itself establishes a "policy or custom."

- 21 IV
THE DISTRICT COURT CORRECTLY HELD THAT THE UNITED STATES COMPLIED WITH ALL REQUIREMENTS OF THE CIVIL RIGHTS OF INSTITUTIONALIZED PERSONS ACT
The United States may file a complaint under CRIPA only when
the Attorney General "has reasonable cause to believe" that a
state is subjecting institutional residents (42 U.S.C. 1997a(a)): 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, privileges, or immunities.
The Attorney General must personally sign the complaint.
42 U.S.C. 1997a(c). She must also certify that she has given the
state notice and an opportunity for consultation prior to filing
suit. 42 U.S.C. 1997b. The United States is entitled to "such
equitable relief as may be appropriate to insure the minimum
corrective measures necessary to insure the full enjoyment of
such rights, privileges, or immunities." 42 U.S.C. 1997a(a).
The United States has satisfied all of CRIPA's requirements
here. Then-Attorney General Barr personally signed the complaint
in this action (R. 1 ) . He also personally certified that he had
complied with the notice requirements in 42 U.S.C. 1997b, that
this case "is of general public importance," and that he had "the
'reasonable cause to believe' set forth in 42 U.S.C. § 1997a to
initiate this action" (R. 1 ) . And the United States established
at trial that equitable relief was "necessary to ensure the full
enjoyment" of Ebensburg residents' rights.

- 22 The state, however, contends that the United States did not satisfy the requirements set forth in CRIPA. It argues that CRIPA required the United States to "establish[] at trial that there were egregious and flagrant conditions, grievous harm, [and] a pattern or practice" (St. Br. 31 (emphasis added)). The state relies exclusively on an excerpt from the statute's legislative history (id. at 31-32). However, "[i]t is axiomatic that statutory interpretation properly begins with the language of the statute itself, including all of its parts. There is no need to resort to legislative history unless the statutory language is ambiguous." Velis v. Kardanis. 949 F.2d 78, 81 (3d Cir. 1991). The district court correctly held that CRIPA, by its terms, does not require the United States to establish "egregious and flagrant conditions," "grievous harm," and a "pattern or practice" at trial. Pennsylvania. 902 F. Supp. at 578-579. These elements apply only to the Attorney General's determination that she has reasonable cause to bring suit. Ibid. The plain language of the statute make this reading clear. The terms "egregious or flagrant conditions," "grievous harm," and "pattern or practice" appear only in the clause describing the content of the Attorney General's "reasonable cause" determination. 42 U.S.C. 1997a(a). The United States' only burden at trial is to establish that equitable relief is "necessary to insure the full enjoyment of [residents' federal] rights, privileges, or immunities." Ibid. This statutory language makes clear that "the Attorney General is vested with the discretion to

- 23 bring suit whenever she is satisfied that a case is serious enough to warrant federal involvement;" once that determination is made, the United States does not face any higher burden of proof at trial than do other plaintiffs. United States v. Pennsylvania. 863 F. Supp. 217, 219 (E.D. Pa. 1994); see also Messier v. Southburv Training Sch.. 916 F. Supp. 133, 137 n.2 (D. Conn. 1996). The state appears to concede this point (St. Br. 44-45). Indeed, when Congress has intended to require the United States to prove the existence of a pattern or practice at trial, it has done so explicitly. See 42 U.S.C. 1971(e) (requiring judicial finding of a pattern or practice of voting discrimination as prerequisite to certain relief); 42 U.S.C. 2000e-6 (requiring the Attorney General to allege in the complaint "facts relating to [the] pattern or practice" of employment discrimination) .
Nothing in CRIPA's legislative history detracts from the plain import of the statutory language. The state points to a passage from the conference report, which observed that the "pattern or practice" and "egregious or flagrant" language "establish[] 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), reprinted in 1980 U.S.C.C.A.N. 832, 835. But Congress did not find judicial enforcement of those standards necessary. Rather, Congress

- 24 -
intended to guide the Attorney General's prosecutorial discretion
and allow her to "engag[e] in a program of selective litigation
against those institutions where the most egregious constitution-
al deprivations affect the largest number of people." S. Rep.
No. 416, 96th Cong., 1st Sess. 17 (1979), reprinted in 1980
U.S.C.C.A.N. 787, 799. Because of "the importance of harmonious
Federal-State relations," Congress assured that the United States
complied with those standards by requiring the Attorney General
personally to sign the complaint. H.R. Conf. Rep. No. 897,
supra. at 13, reprinted in 1980 U.S.C.C.A.N. at 837. Once the
Attorney General decides that reasonable cause exists, however,
that decision is judicially "unreviewable" (S. Rep. No. 416,
supra. at 29, 1980 U.S.C.C.A.N. at 811), for "Congress -- like
the courts -- operates on the assumption that the Attorney
General of the United States will perform faithfully his statuto-
ry responsibilities." Morris v. Gressette. 432 U.S. 491, 506
n.23 (1977) M'
—7The state also contends that the United States did not provide sufficiently detailed information to satisfy CRIPA's notice requirement (St. Br. 30-31). The state did not assert this defense in the district court; accordingly, it is waived. See Frank v. Colt Indus.. 910 F.2d 90, 100 (3d Cir. 1990). In any event, the plain terms of the statute require only that the Attorney General certify that she has satisfied the notice requirement. 42 U.S.C. 1997b. A court may not look behind a facially valid certification to determine whether sufficient notice was actually given. See United States v. Illinois. 803 F. Supp. 1338, 1340-1341 (N.D. 111. 1992); United States v. New York. 690 F. Supp. 1201, 1204 (W.D.N.Y. 1988); H.R. Conf. Rep. No. 897, supra. at 14, reprinted in 1980 U.S.C.C.A.N. at 838; cf. United States v. Hawaii. 564 F. Supp. 189, 192-193 (D. Haw. 1983) (reviewing whether notice sufficient where certification, on its face, was equivocal regarding whether notice requirement was satisfied).

- 25 In any event, the United States seeks institution-wide injunctive relief in this case. While merely isolated instances of constitutional violations would not justify that relief, the record in this case demonstrates an institution-wide violation. Indeed, the United States has established that a pattern or practice of egregious and flagrant conditions have caused grievous harm to Ebensburg residents. As we have explained, our contentions on appeal relate to institution-wide practices that constitute a substantial departure from accepted professional standards, institution-wide failures to make anv professional judgment, and improper acts and omissions occurring with sufficient frequency at Ebensburg to raise a strong inference that violations are not isolated.
CONCLUSION For the foregoing reasons and the reasons stated in our opening brief, the judgment of the district court should be reversed and the case remanded for further proceedings.
Respectfully Submitted, DEVAL L. PATRICK
Assistant Attorney General
STEVEN H. ROSEI SAMUEL R. BAGENSTOS
Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-2174

ADDENDUM

United States v. Pennsylvania
Incidents of floor control since Ebensburg eliminated use of papoose board 70

60

CD
50
o
40
&
<cD n n
"O O

;•'•!-••'-i-^'l-v-v?^

?••:••.•%••£•:&•:

.-?*.#

••' ' •' '•• ••' . • ' . • * ' " • • > ' - ' ; ' • • * < *•'".-'

20
=«=

10

NOV/DEC/JAN FEB/MAR/APR MAY/JUN/JUL

'92-'93

'93

J93

+ Last use of the Papoose Board occured on Nov. 9,1992. One instance of floor control in Noverriber before Nov. 9,1992 is omitted.

PLAINTIFF'S EXHIBIT

ADDENDUM

B

IN THE UNITED STATES DISTRICT COURT" FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

Plaintiff

vs.

Civil Action No. 92-33-J

COMMONWEALTH OF PENNSYLVANIA, et al. .

Defendants

PROCEEDINGS

Transcript of bench trial continuing on Monday, August 2nd, 1993, United States District Court, Johnstown. Pennsylvania, before Honorable D. Brooks Smith. District Judge.

APPEARANCES:

For the Plaintiff:

US Department of Justice Civil Rights Division Special Litigation Section By: ROBINSUE FROHBOESE, Esq.
JUDITH C. PRESTON, Esq. RICHARD J. FARANO, Esq. P.O. Box 66400 Washington, D.C. 20035-6400

For the Defendant:

Department of Public Welfare Office of Legal Counsel By: THOMAS B. YORK. Esq. 305 Health & Welfare Building P.O. Box 2675 Harrisburg, Pennsylvania 17105-2675

Reported by: Shirley D. Perry Official Court Reporter 1021-A USPO & Courthouse Pittsburgh. Pennsylvania (412) 765-0408

15219

Proceedings recorded by mechanical stenography. Transcript produced by computer-aided transcription.

Russo - Direct

L9J

1 Q Dr. Russo, did you visit Ebensburg Center in connection

2 with this litigation?

3 A Yes, I visited on three occasions: September 21st, 22nd

4 and 23rd, 1992, was my first tour.

5

October 22nd and 23rd, 1992, was the second tour.

6

And then as a third tour, February 9th, 1993.

7 Q What was the purpose of your visit?

8 A To identify the adequacy of treatment, psychological

9 treatment being provided to the individuals who lived at

10 Ebensburg. I evaluated whether or not the psychology services

11 at that facility fall within generally accepted practices for

12 psychology. And I evaluated whether individuals as a result of

13 Ebensburg psychology services are being harmed or are at risk

14 of harm.

15 Q Now, how did you spend your time while you were at

16 Ebensburg?

17 A My reviews of the facility were really multi-faceted. I

18 did a number of things, both with respect to the actual living

19 units and the records and documents. That is, I reviewed and

20 visited all of the living units and the day programs at the

21 institution across all three of my visits at a variety of times
' *•'
22 of the day, into the evening and the early morning. In

23 addition. I evaluated records on a large number of the clients.

24 ! I reviewed other treatment notes, supporting documentation,

25 state policies as were necessary. I interviewed a number of

Fusso - Direct

{ioj

1 individuals both at the direct care treatment level as well as

2 at the administrative and management level.

3 Q By the end of your tour in October -- the end of your

4 second tour, had you formed a preliminary opinion about the

5 psychology services at Ebensburg?

6 A I had begun to formulate, at the end of my first tour, an i

7 initial formulation of some of the areas of concern at the

8 Ebensburg Center.

9 Q And following your tour in October, did you review

i

10 records?

i

11 A 12

I don't recall having reviewed extensive records between
i

tours.

t

13

Q Okay- But since your October tour have you reviewed

;

14

records? 15

A Yes, .have.

j

16

Q 17

About how many records have you reviewed?

A 18

Approximately fifty records. This is more than a ten

percent sample of the residents at the Ebensburg Center, where j 19

the population is approximately four hundred-seventy.

;

20

Q 21

Based on your tours and your review of resident records.

have you been able to adequately form an opinion about 22

psychology services at Ebensburg? 23

A 24

Yes, I have.

Q 25

And based upon those tours and your interviews and y^ur

review of records and documents, what is your opinion regarding

Russo - Direct
sr
1 the adequacy of psychology services at Ebensburg?

2 A I find that the psychology services at the

3 Ebensburg Center fail to comport with accepted professional

4 standards.

5 Q What is the role of a psychologist in providing services

6 to individuals with mental retardation in a residential settinc

7 like Ebensburg?

8 A Appropriate practice for psychologists in a setting like

9 Ebensburg specifies a number of roles for the practitioner of

10 psychology. First of all, and very importantly, they have tc

11 be involved with a total habilitative plan for the individual.

12 That is, to work on positive, skills-oriented,

13 developmentally-oriented programming; to assess the environment

14 of care and the quality of life of the individuals; to assess

15 psychological function, both through standardized assessments

16 and, more basically, behavioral assessments.

17

In addition, they have to develop behavioral programs

18 both for positive skills training, and for the decelerative or

19 reduction programs for very difficult behaviors. They have to

20 utilize the methodologies of behavioral science and apply those

21 to the problems of the population, such that they collect data

22 Those data are evaluated under accepted paradigms and

23 practices, and then treatment plans are revised based upon t"-e

24 data that are provided.

25 Q Is what you've just described consistent with the way

Russo - Direct
T1"
conceptualizations of behavioral treatment, what "is the domain

of behavioral treatment and what is the methodology of this

whole area of clinical application.

MS. PRESTON: I've handed the Court a signed

affidavit. We're about to introduce an exhibit that was

6 created by the same outfit that did the behavior data analysis

7 that the Court saw the first day of trial. This is an

8 affidavit from the same person and she's finally back in town,

9 and this one is signed —

10

Why I don't get Doctor — I don't know how to do this.

11 I would like the Court to read this affidavit. This woman was

12 given behavior data from Ebensburg's programs, and Dr. Russo i

13 will testify he asked that a regression analysis be performed

14 on this data. And she has done that, and the next exhibit that

15 we will introduce is the analysis of that behavior data. And

16 this affidavit documents the procedures she went through to

17 perform that regression analysis.

18

At this time, Your Honor, I'll go back and clean up

19 where I left off. I'd like to move into evidence Plaintiff's

20 Exhibit 117.

21

THE COURT: Admitted.

22

MS. PRESTON: 154.

23

THE COURT: Admitted.

24

MS. PRESTON: And the affidavit of Maureen Marteiia-

25

THE COURT: I think you also had a Plaintiff's 93.

5

Russo - Direct

r-

1

MS. PRESTON: I'm sorry, I missed it. I would like tc

2 move that, too, Your Honor.

3

THE COURT: It is admitted.

4

There any objection to 99?

5

MR. YORK: No, Your Honor.

6

THE COURT: 99 will be admitted.

7 Q I've handed you, Dr. Russo, what has been marked as

8 Exhibit 783. Can you explain what this exhibit is to the

9 Court?

10 A This exhibit are graphical representation of data taken

11 from the individual client records at the Ebensburg Center over

12 time, and a subsequent procedure being applied to these data in

13 the form of a traditional regression analysis. As I went into

14 units at the Ebensburg Center, I felt very frustrated initially

15 trying to figure out what levels problems were occurring at a 16 and how changes had occurred over the period of time. That is

17 the way in which data were represented were descriptive as 18 opposed to graphical; they were words rather than numbers.

19

A standard convention in the field is to represent

20 data graphically over time, so that one can inspect those data

21 and determine the trend. That is, is the behavior getting

22 worse, better or staying the same. And so what I requested :he

23 !i Just ice Department to do is to provide a graphical

24 'representation of data over a reasonable period of time.

25 !

What you see here, I believe, is that all of these

Russo - Direct

I")

1 data -- or at least a year for each of the clients,

2 representing about the last year of treatment. These are data

3 which are taken from behavior plans or reports of behavior

4 plans or they are restrictive procedure reviews, and at the top

5 you will see the name of the individual, where the data came

6 from, that is, from the behavior plan objective, what the

7 target behavior is; on the abscissa, or the horizontal axis of

8 the graph, we have here the dates over which data are taken;

9 these are consecutive twenty-eight days intervals as per the

10 data system at Ebensburg. And we display on the ordinate, or

11 the vertical axis, the percentage of hourly intervals of

12 whatever it was or whatever the metric of measurement was that

13 they used. So this is a fairly standard way to represent

14 graphical data. That is, we look at the occurrence of the 15 behavior over time, and we begin to ask the question, what's 16 happening here.

17

What we have done is we have also used a common

18 statistical technique, regression analysis. What regression

19 analysis is is a simple descriptive statistic which provides a

20 line of best fit. It asks the statistical question what

21 straight line would best describe this set of data. That is.

22 would it be a line that was flat, indicating no change; or a

23 line that was positive, indicating that the behavicr was

24 accelerating over time; or a line that was negative. It's ;us:

25 a way, statistically, for us to get a sense of where things are

Russo - Direct

(J>JJ

1 going.

2

These data were all generated in a standard

3 statistical program in Lotus 1-2-3, which is a widely availablt

4 methodology or software package for the clinicians to utilize.

5 Q And have you had a chance to review the results of the

6 regression analysis?

7 A Yes, I have. And, in general, what my regression analysis

8 showed is that, in general, some individuals were showing

9 increases in behavior, some individuals were showing no change,

10 and some individuals were showing decreases in the occurrence

11 of a given behavior. But as I began to look at the data, you

12 will notice at the bottom of each chart two terms, R-squared

13 and the slope of the regression line. The slope of the

14 regression line indicates what the line looks like. A positive

15 number indicates a slight upward slope, a negative number

16 indicates a downward slope, and a zero or essential zero

17 function indicates no change.

18

The R-squared is a statistical measure of the

19 relationship between that line which is a best guesstimate and

20 the actual points that have occurred, and what it seeks to say

21 is that if we had to predict where the next point was, it woulc

22 give us our confidence as to how closely we could predict it.

23 That is. a high R-squared would indicate that we could probab.".

24 predict with great likelihood where the next point would be. ;

25 low R-squared say that the data that make up that line really

•• 8

Russo - Direct

1041

1 are all over the place.

2

We would expect as a function of adequate treatment

3 that individuals would have behavior that would follow an

4 orderly progression of change. In general, what we found when

5 we reviewed these data was a very low R-squared value; that is,

6 very significant variability in the data, whether the data

7 generally were going up or down in most cases. What we

8 conclude, in general, is that it's very unlikely that a

9 treatment effect has occurred in most of these cases.

10

That is, what we see over time are data which suggest

11 — for example, in the first one, Sandy W., no change over

12 time. Data in the second case, Irvin B., to reduce aggression,

13 which shows that over the period, April, 1991 through January,

14 1993, two things happened. The rate of aggression actually

15 increased despite treatment efforts, and the variability of the

16 data through visual inspection actually increased, which would

17 suggest to me as a clinical psychologist, as a behavioral

18 psychologist that we don't have a handle on this issue,

19 clinically.

20

The staff has not used such data to base their

21 clinical decisions on despite the fact that this is a standard

22 convention to look at this over a period of years. This is

23 particularly true because much behavior is cyclical. That is.

24 it can be high one month and down the next, or high one seasc-r.

25 Detecting the patterns or trends is part of the technology tha

KUSSO - Direct

1 one should bring to bear.

f :

2 Q Could we go to yet the third client's regression analysis

3 in this book, the analysis for a client called Ann B.?

4 A Right.

5 Q What does this graph track?

6 A This graph presents the number of hours that this

7 individual client has spent in a restraint chair. That is a

8 specially padded and constructed chair designed to restrain her

9 from producing self-injurious behavior.

10

This individual is a very interesting client. She has

11 had a chronic problem with self-injurious behavior. Data are

12 documented very clearly in her chart from January, 1986. When

13 we go back to January, 1986, a very interesting data set

14 occurs; that is, that in January, 1986, she is in restraint an

15 hour and fifty minutes. In April of '86, when we have the next

16 piece of data, she is in restraint an hour and fifteen minutes.

17 These are relatively low levels compared to what we see here,

18 that today she's at — between two hundred fifty and over three

19 hundred hours a month. The question is "why."

20

And as I have evaluated the data, what becomes clear

21 is that when she was at an hour and fifteen minutes of

22 self-injurious behavior, the staff at the facility introduced

23 ! the restraint chair. That resulted in a rather immediate and
ti
24 |j signif icant increase in h e r u s e of r e s t r a i n t . T h e r e a r e a
:l
25 j whole class of individuals with self-injurious behavior,

Russo - Direct
sr1 Your Honor, who use restraint as a reinforcer. ftiat is, it's

2 what they seek to obtain in self injury. The self injury

3 produces the restraint that they need from the environment.

4 It's a way of communicating this need for restraint. By giving

5 Ann B. a restraint chair, they basically fed into her problem.

6

Now, is that wrong in and of itself? The answer is

7 no. When one makes informed clinical judgments, one isn't

8 wrong. The simple fact is that for approximately a three year

9 period, after that restraint chair was put in, they did not

10 significantly change the behavioral training program on this

11 individual and reduce the need for that chair, thereby creating

12 an enormous dependence, chronic restraint, and a perpetuation

13 of a history of self injury.

14 Q Is Ann B. suffering any harm as a result of sitting in a

15 restraint chair for approximately three hundred hours a month?

16 A First of all, during the time when she is in the restraint

17 chair she is not receiving positive habilitation, skills

18 development, or other alternative behaviors that would help her

19 to get around this problem.

20

There is also — and I'm not a physician -- an

21 indication in the chart that she has had bowel obstructions and

22 has had a colostomy as a result of that. There is some

23 (indication that this treatment regimen may have been

24 |i responsible for that.

25 !l Q Now, leaving for a moment the individuals in this book,

!i

11

^ U O J U - tiiieci

LD/_i

y
1 did you — I've put on your podium there Plaintiff's

2 Exhibit 669. Could you tell the Court what this graph

3 represents.

4 A Yes. This is an aggregate ot all of the regression data

5 that are presented here in Plaintiff's Exhibit 783. What we

6 did in this graph is we said looking across all of the people.

7 what could one expect to predict would be the course of

8 treatment for the average resident? That is, if I said to

9 myself could I guess whether as a result of being in Ebensburg j

10 a resident would do better or worse or stay the same; and what

11 we did is we just took the slope lines, Your Honor, of all of

12 these photographs and plotted them here as individual data

13 along the vertical axis.

14

And basically what we find is that this describes a

15 normal bell-shaped curve, in essence. A normal bell-shaped

16 curve in statistics and psychology typically indicates chance.

17 That is, the likelihood of guessing whether a client would do

18 better or worse as a result of placement in Ebensburg, using j

19 their own behavioral data, taken from their own records, over

20 time, independent of whether they used the right treatment, the

21 wrong treatment or whatever, is aligned with chance.

22

Some people have done a little bit better, some people

23 have done a little bit worse; but the great majority of people

24 j have remained unchanged by their experience at the

25 Ebensburg Center.
12

1

THE COURT: We're going to take our morning recess at

2 this time.

3

It's ten-forty. We'll take a brief recess.

4

(Whereupon, the morning recess was taken.)

5

(Witness resumes stand.)

6

(In open court.)

7

MS PRESTON: Before we start. Your Honor. Dr. Russc

8 would like to correct a misstatement he made on the record.

9 Q Dr. Russo, when you spoke about seeing data filled cut

10 ahead of time on your tour, what did you mean to say?

11 A When I was on tour, I saw instances of ~:ss:r.? data. I

12 became aware of data that was filled in before the fact,

13 through a review of records after my tours.

14 Q Thank you, Dr. Russo.

15

In your professional opinion, does Ebensburc revise

16 behavior programs when it's necessary?

A No, it does not.

18 Q Are the individuals at Ebensburg suffering harm as a

19 result of this failure?

2C A Yes. I believe that they are. In many cases of the data, j

that I reviewed, individuals were subjected to significant harm!

through a series of repeated incidents as a result of a lack of

effective and timely revision of behavior programs.

Q Can you provide the Court with any examples of individuals

25 who are being harmed by the failure to effectively revise
13

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

UNITED STATES OF AMERICA

Plaintiff

vs.

Civil Action No. 92-33-J

COMMONWEALTH OF PENNSYLVANIA, et al..

Defendants

PROCEEDINGS

Transcript of bench trial continuing on Tuesday, August 3rd. 1993. United States District Court. Johnstown, Pennsylvania, before Honorable D. Brooks Smith. District Judge.

APPEARANCES:

For the Plaintiff:

US Department of Justice Civil Rights Division Special Litigation Section By: ROBINSUE FROHBOESE, Esq.
JUDITH C PRESTON. Esq. RICHARD J. FARANO, Esq. P.O. Box 66400 Washington, D.C^ 20035-6400

For the Defendant:

Department of Public Welfare Office of Legal Counsel By: THOMAS B. YORK, Esq. 305 Health & Welfare Building P.O. Box 2675 Harrisburg, Pennsylvania 17105-2675

Reported by:
Shirley D. Perry
Official Court Reporter
1021-A USPO & Courthouse
Pittsburgh, Pennsylvania 15219
(412) 765-0408 /
I
Proceedings recorded by mechanical stenography. Transcript
produced by computer-aided transcription.
14

Fahs - Direct

1

THE COURT: Do you have voir dire. Mr. York?

2

MR. YORK: No, Your Honor.

3

* THE COURT: Very well. Proceed.

4

MR. FARANO: Thank you, Your Honor.

5 BY MJR^ FARANO:

6 Q Dr. Fahs, were you hired by the United States Department

7 of Justice?

8 A Yes. I was.

9 Q And have you visited Ebensburg Center in connection with

10 this litigation?

11 A I visited the Ebensburg Center on two occasions.

12 Q And can you tell the Court when that was?

13 A I visited first in September of 1992, and returned again

14 for a short visit in February of 1993.

15 Q Okay. What were you hired to do?

16 A I was asked to take a look, to evaluate the

17 Ebensburg Center with regards to psychiatric issues,

18 psychiatric care, with particular attention of -- with regards

19 to the use of psychotropic medications for the clients at the

20 Ebensburg Center.

21 Q And how were you able to assess the psychiatric services

22 at Ebensburg Center? What did you do?

23 A A variety of ways. Obvicusly. visiting the facility, the

2 4 f i r s t -- ir.y f i r s t v i s i t t h e r e w a s f o r a f u l l w e e k . A n d I h a d

25 the opportunity to sit in on about a do2en or so psychiatric
- 15

Fans - Direct

consultation visits with the psychiatrist who was there; had

the opportunity to interview several of the individuals who

worked a't the Ebensburg Center, the director, the assistant

director, director of medical services, director of the

5 pharmacy, director of nursing, as I mentioned, the consulting

6 psychiatrist, several of the psychologists, the director of

7 psychology, and other staff members who's names I can't -- I

8 mean who's positions I can't recall, because they would be as I

9 was walking through the facility.

10

In addition, a review of records — a number of

11 records.

12 Q Can you estimate how much total time you spent at the

13 facility during your tour?

14 A How much total time? Well, the first week there, as I 15 mentioned, that was a full week, five — well, five-and-a-half 16 days, and then the return visit in February was. I believe,

17 about a day-and-a-half. That was a shorter, somewhat, visit --

18 Q Okay. Can you —

19 A — I can't estimate the number of hours, for the visits, 20 because — it was days. I guess. 21 Q Counting both your visits, have you been able to visit ell 22 the residential living areas at Ebensburg Center at one time or 23 another? 24 A I thir.k I have -- yes, I visited all of the living 25 centers, and I think the bulk, if not all, of the traini/ng
16

Fahs - Direct

areas.

2 Q And can you estimate, approximately, how many total

3 resident records you reviewed at Ebensburg Center?

4 A In the neighborhood of thirty to forty records.

5 Q How did you go about selecting the individual resident

6 records that you reviewed?

7 A Well, my — I had been asked, as I mentioned earlier, to

8 pay attention to the use of psychotropic medications, and so ir.y

9 primary interest was in those individuals who were taking

10 psychotropic medications. All the records that I had asked for

11 were from people who were taking medications, and that's what I

12 got from a print-out of -- that I was provided.

13

In addition, people came to my attention because they

14 were being reviewed at the psychiatric consultation visit that

15 I attended, the first date that I was there.

16

So, again. I was — the bulk of my records were either

17 randomly selected from the list of people I got on medications.

18 or came up in consultation visits in one way or the other.

19 Q Can you really explain why it was important for you to 20 review the medical records in assessing conditions at

21 Ebensburg Center?

22 A Well, the — the medical record is the ongoing

2 3 contemporaneous reflection of the care of the individual. It's 24 where the thinking process is reflected. It's where the actual 25 occurrences of what happened are recorded. it aids not/ only
17

Fahs - Direct
me. somebody who wants to review things, but it also aids people who are taking care of the individual at the time to review what other individuals are thinking about it. So, it -the medical record is really a -- a very important keystone of medical evaluation. 6 Q Now, you mentioned you had interviewed a number of 7 individuals at Ebensburg Center in doing your assessment. Did 8 you feel that you were able to talk to whoever you needed to 9 talk to in order to properly come up with an assessment of 10 psychiatric services and care offered at Ebensburg Center? 11 A Yes. I was — I was impressed with the staff at 12 Ebensburg Center, was very forthcoming in making records and 13 individuals available to me. 14 Q Can you briefly describe the pertinent characteristics of 15 the Ebensburg Center population with respect to what they 16 require by way of psychiatric care and services, by way of 17 background. 18 A The individuals at Ebensburg Center, as I mentioned, are 19 similar to individuals in other state-run facilities that I'm 20 familiar with. They — the individuals at Ebensburg Center 21 tend to be severely and profoundly mentally retarded. There 22 tends to be a large number of people who are medically fragile, 23 a large number of people with severe psychiatric difficulties24 severe behavioral problems. It's -- they are very sir,i;ar t: 25 the individuals that I have taken care of over the lastimany
18

IW THE UNITED STATES DISTRICT COURT1' FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

Plaintiff

vs.

Civil Action No. 92-33-J

COMMONWEALTH OF PENNSYLVANIA, et al..

Defendants

PROCEEDINGS

Transcript of bench trial continuing on Wednesday. August 4th. 1993, United States District Court. Johnstown. Pennsylvania, before Honorable D. Brooks Smith. District Judge

APPEARANCES:

For the Plaintiff:

US Department of Justice Civil Rights Division Special Litigation Section By: ROBINSUE FROHBOESE, Esq.
JUDITH C. PRESTON. Esq. RICHARD J. FARANO. Esq. P.O. Box 66400 Washington. D.C." 20035-6400

For the Defendant:

Department of Public Welfare Office of Legal Counsel By: THOMAS B. YORK, Esq. 305 Health & Welfare Building P.O. Box 2675 Harrisburg, Pennsylvania 17105-267:

Reported by: Shirley D. Perry Official Court Reporter
1021-A USPO S Courthouse
Pittsburgh. Pennsylvania (412) 765-0408

1521?

Proceedings recorded by mechanical stenography. Transcrap't produced by computer-aided transcription.
19

Arcade - Direct

the instruction sheet. That's the accountability sheet that

indicates a person has been trained. Was never offered the

time or opportunity by management to in-service the

eleven-fifteen p.m. to seven-thirty a.m. shift on any

behavioral program.

Q Is it important then that the third shift understand ea:h

individual in their — in their unit when they're providing

services for them?

A Oh, it's critical that all the staff who work with an

10 individual know how to work with that individual. And it woulc

11 be nice if people would sleep through the night. It's

12 characteristic for people who display behavioral difficulties

13 to not sleep through the night. Many are up and about and

14 interacting with staff. So these staff definitely need to knov

15 how to interact with these residents.

16

MS. PRESTON: At this time I would like to move three

17 exhibits into evidence. The first one is 640-AA; it is the

18 excerpt from the Stratton deposition.

19

THE COURT: Admitted.

20

MS. PRESTON: 107, the collection of incident reports

21

THE COURT: Admitted.

22

MS. PRESTON: And 181, the grievance report.

23

THE COURT: Admitted.

24 Q Turning now to the number of staff

of direct care

25 staff at Ebensburg, during your tours did you observe
20

Amado - Direct

situations where there appeared to be inadequate numbers of

direct care staff?

A Yes, I did.

Q Can you -- well, I'll do it this way --

MS. PRESTON: Your Honor, should I just put your copy

here --

7 Q I'm handing you what's been marked as Plaintiff's 212.

8 Could you explain to the Court what this exhibit represents.

9 A This is a memo dated 10/5/92 from David Devine regarding
»
10 visits that he made to residential and program areas on

J9

11 9/30/92.

12 Q Could you explain to the Court some of the concerns that

i

13 this — that were noted in this memo.

14 A Certainly. He reports that on his visit to Harmony House

15 Learning Center at East One between twelve-oh-five and

16 twelve-thirty that he observed the day room area and there were

17 no meaningful interactions, as well as quotas were not met. As

18 far as staff-resident ratios, they were one to eleven. He

19 summarizes that entry with, "We would not have met Title XIX

20 standards in the day room.".

21

In Harmony House Learning Center, East Two, between

22 twelve-thirty and twelve-forty, "I observed that the visually

23 | handicapped --" in this visually handicapped area they were not

24 I in compliance, as there was a one to ten or one to eleven

25 | ratio; and again notes, "We would not have met Title XIX

21

Amado - Direct

standards due to ratios."

The third observation is in Harmony House Learning

Center, East Two, between twelve-forty and twelve-fifty p.m.

4 And he says, "I observed individuals in the quiet room area whc

5 were sleeping. We were out of compliance with the ratio of on-

i

6 to ten. There was an RSA in on overtime who revealed to me

7 that she did not know the individuals and didn't have their

8 behavioral characteristics." He summarizes with "We certainly

9 would not have met Title XIX standards.".

10

His next entry is Harmony House Learning Center,

11 East Two, again, from twelve-fifty to one p.m. He was

12 observing the activities in the daily living area and

13 discovered a one to twelve ratio with two RSAs and no

14 meaningful interaction. He cites C D . with -- one of the

15 residents with no socks on, and says it was explained to him

16 that she eats them. He summarizes with "This needs to be

17 evaluated behaviorally."

18

And the next entry is in Harmony House Learning

19 Center, socialization room, from one to one-oh-five; and he

20 notes that "What management needs to do is determine what are

21 alternate activities, fully explain and train staff as to what

22 needs to be done, and for-supervisory manager to monitor to

23 correct the apparent problems. Management and supervisors mus'

24 need to creatively look at all other resources to find ways to

25 meet ratios, as we are presently jeopardizing Title XIX."

22

Amado - Direct

The next page is a memo dated 10/6/92. again from

2 Mr. Devine, regarding visits in residential and program areas

3 on 10/5/92. And he reports that in the Harmony Learning

4 Center, East One Day Room, from one-thirty to one-fifty there

5 was one RSA and one FGP with eleven individuals, as one of RSA

6 was on break. A short time later an RSA did return from break

7 but in the intervening time "We would not have met ratios."

8

And the last entry is in Harmony House Learning

9 Center, Visually Handicapped Area, from two-fifteen to

10 two-thirty p.m., he says, "There were two RSAs involved with

11 twelve individuals in alternate activities; and the program

12 monitor, a social worker, was on break, although she did

13 return."

14 Q Now, I'm handing you what's been marked as

15 Plaintiff's 214. Again, could you explain to the Court what

16 this exhibit represents.

17 A This is another memo from Dave Devine, dated 9/16/92. Anc

18 these are daily visits to the residential and program areas

19 again.

20

He's reporting first on Laurel House, East One, from

21 ten to ten-twenty-five, and he notes that individuals S.K.,

22 P.S. and D.K. were sitting unattended and uninvolved for at

23 least fifteen minutes. In fact, the entire twenty-five minute

24 period he was there observing, one individual — that he didn't

25 observe one individual do anything for themselves, as

23

Amado - Direct

everything was done for them. And he questions whether tha:

would have met the MA or Title XIX standards again.

3

The next observation is in the JFK Learning Center a-.

4 ten-thirty a.m., which is a half hour into the day program

5 time; and in the pre-vocational area he says there's an absence

6 of the program monitor, and that the program lacked direction.

7 It seemed as if the RSAs were waiting for the next scheduled

8 activity to occur, which was toileting, prior to the lunch time

9 meal. He questions whether the facility would meet MA

10 standards given what he observed during this time in this

11 program operation.

12

And the next memo is dated 10/6/92, regarding daily

13 visits to program areas on 10/1/92. This is also from

14 Dave Devine, again, in the JFK pre-vocational area, from

15 one-forty to one-fifty-five. Now, I'll just read that.

16

"I observed programming in this area and my findings

17 are as follows: There was no program monitor in this area, and

IS there were two RSAs with twelve individuals doing alternative

19 activities. The RSA advised there was no pre-vocational being-

20 offered, as the program monitor was off for the day. The F.3A

21 was working, looking for direction regarding defining, doing

22 alternate activities. They are looking for direction, and it

23 is incumbent upon management to provide."

24

In the next entry, also in JFX, in the Self Help Area,

25 from two to two-thirty. He reports there were two RSAs

24

Amado - Direct

providing alternate activities to ali individuals, cne R5A on

break. There was no program monitor, as he was or. vacation,

and there is no back-up system in place to fulfill staffing

requirements.

5

These observations by Mr. Devine raised several

5 concerns. One is the staff seem to be inadequately trained to

7 operate under their own direction and initiative. In the

8 absence of supervision, they are at a loss. It also appeared

9 to be an inadequate number of supervisors to support the staff

10 in providing the services needed by the residents and for whic?

11 they had been scheduled during those times. It brings us right

12 back to the pattern of harm, I talked about earlier in the

13 morning.

14 Q Based upon your review of documents in this case, have yov

15 formed an opinion about the levels of direct care staffing on

16 the weekends at Ebensburg?

17 A Yes, I have. Although I've never been there on the

18 weekends, I have read entries in depositions from staff members

19 who have testified that there are fewer staff on the weekends

20 than there are on during the week. This raises additional

21 concerns because on the weekends there is no day program. So,

22 people are even more left to their own devices.

23 Q What levels of direct care staff do you feel would be

24 minimally adequate to provide active treatment for individuals

25 at Ebensburg who are very physically or behaviorally involved?

25

Arnadc - Direct

1 A Well, assuming competent staff whc are able to work with

2 small groups of people successfully, I would find a ratio cf

3 one staff to three residents to be adequate. But that's

4 contingent upon the staff people being trained to work with

5 small groups effectively. Ratios and staff competence have a

particular relationship. There's a point at which no matter

how many staff you have, it's irrelevant, because they don't

8 have the skills to make a difference anyway.

9 Q This exhibit is also in evidence.

10

MS. PRESTON: Your Honor, I give you a copy just for

11 you to refer to.

12 Q I'm handing you what's already in evidence as

13 Plaintiff's 58; and I ask you. Dr. Amado, could you read from

14 Page 1 of this. This is a 10/21-25, 1991, Ebensburg Medical

15 Assistant Survey. Could you read, please, from Page 1 of the

16 survey. Under — it's — it's the page with the Bates Number

17 at the bottom 4059, and the segment that starts "In Harmony,

18 West One."

19 A

"In Harmony, West One, on October 21st, 1991, at

20 seven-oh-eight a.m., Client 1673 was seen completely nude in

21 the TV room with several other clients present. Three staff

22 persons were moving around, in and through the TV room, withou:

23 any attempt to redirecting the individual. The client left th«

24 area and returned twice on his own. He was not redirected

25 until seven-eighteen a.m., when a staff person was
26

CERTIFICATE OF SERVICE
I hereby certify that on May 10, 1996, two copies of the
foregoing Reply Brief for the United States were served by first-
class mail, postage prepaid, on the following counsel for the
appellee:
Thomas York, Esq. Eckert, Seamans, Cherin & Mellott One South Market Square Bldg. 213 Market Street P.O. Box 1248 Harrisburg, PA 17108 Christine DeMichele, Esq. Department of Public Welfare Office of Legal Counsel 305 Health & Welfare Bldg. Harrisburg, PA 17105-2675
SAMUEL R. BAGENSTOS Attorney

 
 CM/ECF - pawd - Docket Report

Page 1 of 17

CLOSED, MOTREF
U.S. District Court Western District of Pennsylvania (Johnstown) CIVIL DOCKET FOR CASE #: 3:92-cv-00033-DBS

USA, et al v. COMMONWEALTH OF PA, et al Assigned to: Judge D. Brooks Smith Demand: $0 Cause: 42:1983 Civil Rights Act

Date Filed: 02/10/1992 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

Plaintiff UNITED STATES OF AMERICA

represented by Arthur E. Peabody, Jr. United States Department of Justice P.O. Box 66400 9th & Constitution Washington, DC 20035-6400 (202) 514-6259 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John R. Dunne United States Department of Justice P.O. Box 66400 9th & Constitution Washington, DC 20035-6400 (202) 514-6259 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judith C. Preston United States Department of Justice P.O. Box 66400 9th & Constitution Washington, DC 20035-6400 (202) 514-6259 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mellie H. Nelson United States Department of Justice P.O. Box 66400 9th & Constitution Washington, DC 20035-6400 (202) 514-6259 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip A. Guzman

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CM/ECF - pawd - Docket Report
V. Defendant THOMAS J. RIDGE Governor of the Commonwealth of Pennsylvania

Page 2 of 17
United States Department of Justice P.O. Box 66400 9th & Constitution Washington, DC 20035-6400 (202) 514-6259 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robinsue Frohbrose United States Department of Justice P.O. Box 66400 9th & Constitution Washington, DC 20035-6400 (202) 514-6259 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Bowers United States Department of Justice P.O. Box 66400 9th & Constitution Washington, DC 20035-6400 (202) 514-6259 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas W. Corbett, Jr. United States Attorney's Office 700 Grant Street Suite 400 Pittsburgh, PA 15219 (412) 644-3500 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William P. Barr United States Department of Justice P.O. Box 66400 9th & Constitution Washington, DC 20035-6400 (202) 514-6259 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas B. York Dilworth Paxson 305 North Front Street

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Page 3 of 17

Defendant FEATHER HOUSTOUN Acting Secretary Dept. of Public Welfare
Defendant NANCY THALER Deputy Secretary of Mental Retardation Office of Mental Retardation
Defendant ALAN M. BELLOMO Director Ebensburg Center
Defendant COMMONWEALTH OF PENNSYLVANIA

Suite 403 Harrisburg, PA 17101-1236 (717) 236-4812 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/05/1993
02/08/1993 03/09/1993 03/10/1993 03/11/1993

#

Docket Text

20 Stipulation by U.S.A., COMMONWEALTH OF PA, ROBERT CASEY, KAREN F. SNIDER, STEVEN M. EIDELMAN and ALAN M. BELLOMO Extending Time for discovery with proposed order. (jjg) (Entered: 02/05/1993)

ORDER upon stipulation granting [20-1] stipulation Extending Time for discovery, reset Discovery deadline to 3/12/93 ( signed by Judge D. B. Smith on 02/08/93 ) CM all parties of record. (jjg) (Entered: 02/10/1993)

21 Joint Stipulation by Parties to extend Time for discovery to 5/7/93 with proposed order. (tam) (Entered: 03/09/1993)

ORDER upon motion granting [21-1] stipulation to extend Time for discovery to 5/7/93 (signed by Judge D. B. Smith on 03/09/93) CM all parties of record. (tam) (Entered: 03/11/1993)

Deadline updated; reset Discovery deadline to 5/7/93 (tam) (Entered: 03/11/1993)

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04/23/1993 05/17/1993 07/06/1993 07/09/1993
07/19/1993 07/19/1993 07/20/1993 07/20/1993 07/20/1993 07/26/1993

22 Joint Pretrial stipulation by U.S.A., COMMONWEALTH OF PA, ROBERT CASEY, KAREN F. SNIDER, STEVEN M. EIDELMAN, ALAN M. BELLOMO (jjg) (Entered: 04/23/1993)
23 Non-Jury Trial set for 9:00 a.m. on 7/26/93, Courtroom A, U.S. District Court, 319 Washington St., Johnstown, PA. (jjg) (Entered: 05/19/1993)
24 NOTICE to counsel from CRD setting Pre-Trial Conference for 7/20/93 at 1:00 p.m., Room 104 Penn Traffic Bldg., 319 Washington St., Johnstown, PA. (jjg) (Entered: 07/09/1993)
25 MEMORANDUM ORDER that due to the exingencies of the Court's trial schedule and the finite amount of time available and the fact that counsel has advised the court that it will take several weeks at least to present the plaintiff's case-in-chief in this non-jury trial scheduled to commence 7/26/93, the Court is proposing to counsel the following: Each party will have the opportunity to present an opening statement which shall be no more than 2 hours in length; Each party will take videotape depositions of all witnesses, and present in lieu of live testimony, or by agreement shall submit transcripts of depositions, and as more fully stated; the parties shall begin deposing witnesses as their schedules permit, and may use the videotape facilities at the U.S. District Court, Pittsburgh, from 7/26/93 until they are completed. The parties, if they believe there are any witnesses whose videotape deposition cannot be taken and whose live testimony the Court must hear, shall present the names, subject matter, expected length of testimony, and compelling reasons why live testimony must be presented, at the final pretrial conference on 7/20/93. At the conclusion of the presentation of all the evidence by videotape deposition, stipulation, or transcript, each party will have the opportunity to present a closing statement which shall not exceed 2 hours in length. If either party wishes to follow this procedure, it will be followed, with the details to be worked out at the pretrial conference. If both parties believe that this procedure cannot be followed, they may present reasons in support thereof and proposed alternative trial dates at the pretrial conference. (signed by Judge D. B. Smith on 7/9/93) CM all parties of record. (tam) (Entered: 07/14/1993)
26 MOTION by U.S.A. in Limine to strike Defts.' First Contested Issue of Law and Fact and to exclude evidence at trial with Proposed Order. (tam) (Entered: 07/19/1993)
27 BRIEF by U.S.A. in support of [26-1] motion in Limine to strike Defts.' First Contested Issue of Law and Fact and to exclude evidence at trial by U.S.A. (tam) (Entered: 07/19/1993)
28 Revisions to Pretrial stipulation by U.S.A. (jjg) (Entered: 07/22/1993)
29 Pre-Trial Conference held before Judge D. B. Smith on 07/20/93. [ Reporter: Lisa Hand ] (jjg) (Entered: 07/22/1993)
Non-Jury Trial set for 8:45 a.m. on 7/26/93 (jjg) (Entered: 07/22/1993)
30 MEMORANDUM on Standard of Proof at Trial by USA. (jjg) (Entered:

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07/26/1993 07/26/1993 07/26/1993 07/27/1993 07/29/1993 07/29/1993 07/30/1993 08/02/1993 08/03/1993 08/04/1993 08/05/1993 08/05/1993 08/05/1993 08/05/1993 08/05/1993 08/05/1993 08/05/1993 08/06/1993 08/06/1993

07/26/1993)
31 REVISIONS to Pretrial stipulation by U.S.A. (jjg) (Entered: 07/26/1993)
32 TRANSCRIPT of Pretrial Conference for date of 07/20/93. Court Reporter: Lisa M. Hand. (jjg) (Entered: 07/26/1993)
Non-Jury Trial begins. Continued to 7/27/93 . (tam) (Entered: 08/02/1993)
Non-Jury Trial continued. (tam) Modified on 09/30/1993 (Entered: 08/02/1993)
Non-Jury Trial continued. (tam) Modified on 09/30/1993 (Entered: 08/02/1993)
Non-Jury Trial continued. (tam) Modified on 09/30/1993 (Entered: 08/02/1993)
Non-Jury Trial continued. (tam) Modified on 09/30/1993 (Entered: 08/02/1993)
Non-Jury Trial continued. (tam) Modified on 09/30/1993 (Entered: 08/02/1993)
Non-Jury Trial continued. (tam) Modified on 09/30/1993 (Entered: 08/04/1993)
33 Non-Jury Trial held and continued to 9/13/93 before Judge D. B. Smith [ Reporter: S. Perry ] (jjg) Modified on 09/30/1993 (Entered: 08/05/1993)
34 TRANSCRIPT of non-jury trial for date of 07/28/93. Court Reporter: Shirley D. Perry. (jjg) (Entered: 08/05/1993)
35 TRANSCRIPT of non-jury trial for date of 07/29/93. Court Reporter: Shirley D. Perry. (jjg) (Entered: 08/05/1993)
36 TRANSCRIPT of non-jury trial for date of 07/30/93. Court Reporter: Shirley D. Perry. (jjg) (Entered: 08/05/1993)
37 TRANSCRIPT of non-jury trial for date of 08/02/93. Court Reporter: Shirley D. Perry. (jjg) (Entered: 08/05/1993)
38 TRANSCRIPT of non-jury trail for date of 08/03/93. Court Reporter: Shirley D. Perry. (jjg) (Entered: 08/05/1993)
39 TRANSCRIPT of non-jury trial for date of 08/04/93. Court Reporter: Shirley D. Perry. (jjg) (Entered: 08/05/1993)
40 TRANSCRIPT of non-jury trial for date of 08/05/93. Court Reporter: Shirley D. Perry. (jjg) (Entered: 08/05/1993)
41 TRANSCRIPT of non-jury trial for date of 07/27/93. Court Reporter: Shirley D. Perry. (jjg) (Entered: 08/10/1993)
42 TRANSCRIPT of non-jury trial for date of 08/05/93. Court Reporter:

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08/11/1993 08/31/1993 08/31/1993 09/09/1993
09/13/1993 09/13/1993 09/14/1993 09/17/1993 09/22/1993 09/22/1993 09/22/1993 09/22/1993 09/22/1993 09/27/1993
09/27/1993
09/28/1993 09/28/1993

Shirley D. Perry. (jjg) (Entered: 08/10/1993)
43 TRANSCRIPT of non-jury trial for date of 07/26/93. Court Reporter: Shirley D. Perry. (jjg) (Entered: 08/13/1993)
44 SUPPLEMENTAL MOTION by USA in Limine to exclude evidence at trial with Proposed Order. (jjg) (Entered: 09/01/1993)
45 BRIEF by USA in support of [44-1] supplemental motion in Limine to exclude evidence at trial by USA (jjg) (Entered: 09/01/1993)
47 ORDER the the resumption of trial scheduled for 09/09/93 is continued to 09/13/93 at 8:30 a.m. ( signed by Judge D. B. Smith on 09/08/93 ) CM all parties of record. (jjg) (Entered: 09/14/1993)
46 NOTICE of Substitution of Exhibits by USA (jjg) (Entered: 09/13/1993)
Non-Jury Trial continued. (jjg) (Entered: 09/14/1993)
Non-Jury Trial continued. (jjg) (Entered: 09/14/1993)
58 Non-Jury Trial held 9/15/93 through 9/17/93 and continued. Court Reporter: S. Perry. (tam) (Entered: 10/06/1993)
48 TRANSCRIPT of Bench Trial for dates of 09/13/93. Court Reporter: Shirley Perry. (tam) (Entered: 09/22/1993)
49 TRANSCRIPT of Bench Trial for dates of 09/14/93. Court Reporter: Shirley Perry. (tam) (Entered: 09/22/1993)
50 TRANSCRIPT of Bench Trial for dates of 09/15/93. Court Reporter: Shirley Perry. (tam) (Entered: 09/22/1993)
51 TRANSCRIPT bench trial for dates of 09/16/93. Court Reporter: Shirley Perry. (tam) (Entered: 09/22/1993)
52 TRANSCRIPT of bench trial for dates of 09/17/93. Court Reporter: Shirley Perry. (tam) (Entered: 09/22/1993)
53 MOTION by COMMONWEALTH OF PA, ROBERT CASEY, KAREN F. SNIDER, STEVEN M. EIDELMAN, ALAN M. BELLOMO for judgment on partial findings with Proposed Order. (jjg) (Entered: 09/28/1993)
BRIEF by COMMONWEALTH OF PA, ROBERT CASEY, KAREN F. SNIDER, STEVEN M. EIDELMAN, ALAN M. BELLOMO in support of [53-1] motion for judgment on partial findings by said defendants. (jjg) (Entered: 09/28/1993)
54 RESPONSE by USA to defendants' 09/23/93 correspondence to the court. (jjg) (Entered: 09/30/1993)
55 ORDER granting the Commonwealth's motion for protective relief and denying [53-1] motion for judgment on partial findings. ( signed by Judge D. B. Smith on 09/28/93 ) CM all parties of record. (jjg) (Entered: 10/04/1993)

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09/30/1993
10/01/1993 10/12/1993 10/12/1993
10/13/1993 10/14/1993 10/18/1993 10/19/1993 10/19/1993 10/21/1993 10/21/1993 10/21/1993 10/21/1993 10/21/1993 10/21/1993 11/01/1993 11/01/1993 11/01/1993 11/01/1993 11/05/1993

56 MOTION by COMMONWEALTH OF PA, ROBERT CASEY, KAREN F. SNIDER, STEVEN M. EIDELMAN, ALAN M. BELLOMO for Reconsideration of [55-1] order denying defendants' motion for judgment on partial findings with Proposed Order. (jjg) (Entered: 10/04/1993)
57 NOTICE of supplemental authorities in support of pending motions by USA. (jjg) (Entered: 10/05/1993)
Non-Jury Trial continued. (tam) (Entered: 10/12/1993)
59 FIRST set of counter-designations from deposition transcripts to be introduced into evidence at trail by Defendants. (tam) (Entered: 10/12/1993)
Non-Jury Trial continued. (tam) (Entered: 10/13/1993)
Non-Jury Trial continued. (tam) (Entered: 10/14/1993)
Non-Jury Trial continued. (tam) (Entered: 10/18/1993)
Non-Jury Trial continued (tam) (Entered: 10/19/1993)
60 Non-Jury Trial continued. Court Reporter: S. Perry. (tam) (Entered: 10/21/1993)
61 TRANSCRIPT of non-jury trial held 9/12/93. Court Reporter: Shirley Perry. (tam) (Entered: 10/21/1993)
62 TRANSCRIPT of non jury trial held on 10/13/93. Court Reporter: Shirley Perry. (tam) (Entered: 10/21/1993)
63 TRANSCRIPT of non jury trial held on 10/14/93. Court Reporter: Shirley Perry. (tam) (Entered: 10/21/1993)
64 TRANSCRIPT of non jury trial held on 10/15/93. Court Reporter: Shirley Perry. (tam) (Entered: 10/21/1993)
65 TRANSCRIPT of non jury trial held on 10/18/93. Court Reporter: Shirley Perry. (tam) (Entered: 10/21/1993)
66 TRANSCRIPT of non jury trial held on 10/19/93. Court Reporter: Shirley Perry. (tam) (Entered: 10/21/1993)
67 MOTION by USA for Remedy Hearing following liability determination with Proposed Order. (jjg) (Entered: 11/03/1993)
68 BRIEF by USA in support of [67-1] motion for Remedy Hearing following liability determination by USA (jjg) (Entered: 11/03/1993)
69 MOTION by USA for rebuttal testimony . (jjg) (Entered: 11/03/1993)
70 Proffer of Rebuttal Testimony by USA. (jjg) (Entered: 11/03/1993)
71 BRIEF by COMMONWEALTH OF PA, ROBERT CASEY, KAREN F. SNIDER, STEVEN M. EIDELMAN, ALAN M. BELLOMO in opposition to [67-1] motion for Remedy Hearing following liability

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11/05/1993 11/05/1993 11/15/1993 11/18/1993 11/22/1993 11/23/1993
12/10/1993
12/13/1993 12/13/1993 12/14/1993 12/17/1993 01/21/1994

determination by USA (jjg) (Entered: 11/09/1993)
72 REPLY by USA to [71-1] brief in opposition by ALAN M. BELLOMO, STEVEN M. EIDELMAN, KAREN F. SNIDER, ROBERT CASEY, COMMONWEALTH OF PA (jjg) (Entered: 11/09/1993)
73 SUPPLEMENTAL MOTION by USA for rebuttal testimony with Proposed Order. (jjg) (Entered: 11/09/1993)
74 BRIEF by COMMONWEALTH OF PA, ROBERT CASEY, KAREN F. SNIDER, STEVEN M. EIDELMAN, ALAN M. BELLOMO in opposition to [69-1] motion for rebuttal testimony by USA (jjg) (Entered: 11/15/1993)
75 RESPONSE by COMMONWEALTH OF PA, ROBERT CASEY, KAREN F. SNIDER, STEVEN M. EIDELMAN, ALAN M. BELLOMO to United States' reply concerning motion for rebuttal testimony. (jjg) (Entered: 11/19/1993)
76 REPLY by USA to response in opposition to [69-1] motion for rebuttal testimony by USA (tam) (Entered: 11/22/1993)
77 ORDER granting in part, denying in part [69-1] motion for rebuttal testimony; granting [73-1] supplemental motion for rebuttal testimony; rebuttal will be held on 12/13/93 at 9:00 a.m. with counsel to have three hours of clock time each; and as more fully stated in said order. ( signed by Judge D. B. Smith on 11/23/93 ) CM all parties of record. (jjg) (Entered: 11/23/1993)
79 ORDER that in the interim between the 11/23/93 memorandum order (document #77) and next Monday's scheduled rebuttal testimony, several issues have arisen which have been communicated and inpart resolved through conference calls. To memorialize what has been decided, said order is issued and those matters are more fully stated in said order. (signed by Judge D. B. Smith on 12/10/93 ) CM all parties of record. (tam) (Entered: 12/14/1993)
78 PROFFER OF TESTIMONY regarding Jeff K. by USA. (tam) (Entered: 12/13/1993)
Non-Jury Trial continued and concluded on 12/13/93. (jjg) (Entered: 12/17/1993)
80 Hearing Memo on Rebuttal held before Judge Smith on 12/13/93. Court Reporter: S. Perry. (jjg) (Entered: 12/17/1993)
81 TRANSCRIPT of non-jury trial for date of 12/13/93. Court Reporter: Shirley D. Perry. (jjg) (Entered: 12/21/1993)
82 ORDER setting final argument for 3/4/94 at 9:00 a.m., Courtroom A, Johnstown, PA; Proposed Find of Fact and Concl of Law due 2/15/94, with replies to be filed by 02/25/94. ( signed by Judge D. B. Smith on 01/21/94 ) CM all parties of record. (jjg) (Entered: 01/21/1994)

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02/17/1994 02/17/1994 02/17/1994 02/17/1994 02/17/1994 02/17/1994 02/17/1994 02/18/1994
03/10/1994
03/11/1994
03/11/1994
03/14/1994 03/14/1994 03/14/1994 03/18/1994

83 Proposed Findings of Fact - Volume I by USA (tam) (Entered: 02/17/1994)
84 Proposed Findings of Fact - Volume II by USA (tam) (Entered: 02/17/1994)
85 APPENDIX to [84-1] Proposed Findings of Fact by USA and [83-1] Proposed Findings of Fact by USA (tam) (Entered: 02/17/1994)
86 PROPOSED SUMMARY FINDINGS OF FACT by USA (tam) (Entered: 02/17/1994)
87 Proposed Conclusions of Law by USA (tam) (Entered: 02/17/1994)
BRIEF by USA in support of Proposed Conclusions of Law. (w/Document #87). (tam) (Entered: 02/17/1994)
Proposed Order by USA (tam) (Entered: 02/17/1994)
88 Proposed Findings of Fact and Conclusions of Law by COMMONWEALTH OF PA, ROBERT CASEY, KAREN F. SNIDER, STEVEN M. EIDELMAN, and ALAN M. BELLOMO (jjg) (Entered: 02/18/1994)
89 MEMORANDUM ORDER denying as moot [44-1] motion in Limine to exclude evidence at trial and denying as moot [26-1] motion in Limine to strike Defts.' First Contested Issue of Law and Fact and to exclude evidence at trial to the extent not otherwise rule upon as set forth and more fully stated in Order. (signed by Judge D. B. Smith on 03/09/94) CM all parties of record. (tam) (Entered: 03/11/1994)
90 MOTION by COMMONWEALTH OF PA, ROBERT CASEY, KAREN F. SNIDER, STEVEN M. EIDELMAN, and ALAN M. BELLOMO to Extend Time to file Second Supplemental Proposed Findings of Fact with Proposed Order. (jjg) (Entered: 03/14/1994)
91 Supplemental Proposed Findings of Fact and Conclusions of Law by COMMONWEALTH OF PA, ROBERT CASEY, KAREN F. SNIDER, STEVEN M. EIDELMAN, and ALAN M. BELLOMO (jjg) (Entered: 03/14/1994)
92 RESPONSE by USA to [88-1] Proposed Findings of Fact by ALAN M. BELLOMO, STEVEN M. EIDELMAN, KAREN F. SNIDER, ROBERT CASEY, and COMMONWEALTH OF PA (jjg) (Entered: 03/14/1994)
93 NOTICE to counsel from CRD scheduling Final Argument for 04/13/94 at 9:30 a.m., USDC, Courtroom A, Penn Traffic Bldg., 319 Washington St., Johnstown, PA. (jjg) (Entered: 03/15/1994)
Non-Jury Trial continued to 4/13/94 at 9:30 a.m. (jjg) (Entered: 03/15/1994)
94 RESPONSE In Opposition by USA to [90-1] motion to Extend Time to file Second Supplemental Proposed Findings of Fact by ALAN M. BELLOMO, STEVEN M. EIDELMAN, KAREN F. SNIDER, ROBERT

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03/25/1994 03/28/1994 03/28/1994
03/29/1994
03/31/1994
04/12/1994 04/12/1994 04/13/1994 04/13/1994 04/21/1994 05/09/1994 05/09/1994

CASEY, and COMMONWEALTH OF PA (tam) (Entered: 03/18/1994)
95 Second Supplemental Proposed Findings of Fact and Conclusions of Law by COMMONWEALTH OF PA, ROBERT CASEY, KAREN F. SNIDER, STEVEN M. EIDELMAN, and ALAN M. BELLOMO (jjg) (Entered: 03/28/1994)
96 MOTION by USA for Status Conference . (jjg) (Entered: 03/28/1994)
ORDER upon motion granting [90-1] motion to Extend Time to file Second Supplemental Proposed Findings of Fact. Defendants shall file their Second Supplemental Proposed Findings of Fact on or before 3/25/94. (signed by Judge D. B. Smith on 03/28/94) CM all parties of record. (tam) (Entered: 03/29/1994)
97 REPLY to USA's response in opposition to [90-1] motion to Extend Time to file Second Supplemental Proposed Findings of Fact by ALAN M. BELLOMO, STEVEN M. EIDELMAN, KAREN F. SNIDER, ROBERT CASEY and COMMONWEALTH OF PA (tam) (Entered: 03/29/1994)
98 ORDER denying [56-1] motion for Reconsideration of [55-1] order denying defendants' motion for judgment on partial findings, denying [67-1] motion for Remedy Hearing following liability determination ( signed by Judge D. B. Smith on 03/31/94 ) CM all parties of record. (jjg) (Entered: 04/01/1994)
99 MOTION by USA to submit errata sheet for United States' proposed detailed findings of fact . (jjg) (Entered: 04/13/1994)
100 REPLY by USA to [95-1] Second Supplemental Proposed Findings of Fact by ALAN M. BELLOMO, STEVEN M. EIDELMAN, KAREN F. SNIDER, ROBERT CASEY, COMMONWEALTH OF PA (jjg) (Entered: 04/13/1994)
101 ORDER denying [96-1] motion for Status Conference ( signed by Judge D. B. Smith on 04/12/94 ) CM all parties of record. (jjg) (Entered: 04/14/1994)
102 Non-Jury Trial concluded. Motion to submit errata (doc. #99) is granted inasmuch as it is part of record. Court Reporter: S. Hall. (jjg) (Entered: 04/14/1994)
113 TRANSCRIPT of closing arguments for date of 04/13/95. Court Reporter: Shirley Ann Hall. (jjg) (Entered: 06/15/1995)
103 STATEMENT by defendants as to prejudice if the depositions of Lois Graham and Carole Sponsky are admitted in their entirety. (jjg) (Entered: 05/09/1994)
104 Correction Sheet by defendants for defendants' proposed findings of fact, defendants' supplemental proposed findings of fact, and defendants' second supplemental proposed findings of fact. (jjg) (Entered: 05/09/1994)

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07/13/1994 07/13/1994 07/13/1994 08/01/1994
08/05/1994 09/01/1994 04/13/1995 04/28/1995
07/27/1995
07/27/1995 08/10/1995
08/10/1995
08/24/1995 08/24/1995

105 MOTION by USA to Reopen the record to admit documentary evidence about continuing deaths of Ebensburg Center Residents with Proposed Order. (jjg) (Entered: 07/13/1994)
106 BRIEF by USA in support of [105-1] motion to Reopen the record to admit documentary evidence about continuing deaths of Ebensburg Center Residents by USA (jjg) (Entered: 07/13/1994)
107 SEALED DOCUMENT (jjg) (Entered: 07/13/1994)
108 BRIEF by ROBERT CASEY, KAREN F. SNIDER, STEVEN M. EIDELMAN, ALAN M. BELLOMO, and COMMONWEALTH OF PA in opposition to [105-1] motion to Reopen the record to admit documentary evidence about continuing deaths of Ebensburg Center Residents by USA (jjg) (Entered: 08/01/1994)
109 REPLY by USA to response in opposition to [105-1] motion to Reopen the record to admit documentary evidence about continuing deaths of Ebensburg Center Residents by USA (tam) (Entered: 08/05/1994)
110 NOTICE of additional authority in support of pending issue by USA (jjg) (Entered: 09/01/1994)
111 MOTION by USA for final judgment . (jjg) (Entered: 04/13/1995)
112 ORDER denying [105-1] motion to Reopen the record to admit documentary evidence about continuing deaths of Ebensburg Center Residents ( signed by Judge D. B. Smith on 04/28/95 ) CM all parties of record. (jjg) (Entered: 05/01/1995)
114 OPINION AND ORDER denying [111-1] motion for final judgment; judgment is entered for the defendants. Clerk shall mark case closed. Notices mailed. ( signed by Judge D. B. Smith on 07/27/95 ) CM all parties of record. (jjg) (Entered: 07/28/1995)
Case closed (crw) (Entered: 02/06/1998)
115 MOTION by ALAN M. BELLOMO, STEVEN M. EIDELMAN, KAREN F. SNIDER, ROBERT CASEY, COMMONWEALTH OF PA for an award of Attorney's Fees and costs against the United States with Proposed Order. (jjg) (Entered: 08/10/1995)
116 ORDER referring [115-1] motion for an award of Attorney's Fees and costs against the United States to Mag. Judge Keith A. Pesto ( signed by Judge D. B. Smith on 08/10/95 ) CM all parties of record. (jjg) (Entered: 08/10/1995)
117 MOTION by USA to Extend Time to respond to defendants' motion for attorney fees with Proposed Order. (tam) Modified on 08/24/1995 (Entered: 08/24/1995)
BRIEF by USA in support of [117-1] motion to Extend Time to repond to defendants' motion for attorney fees by USA. (W/document #117). (tam) (Entered: 08/24/1995)

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08/24/1995
09/25/1995 09/26/1995
10/04/1995 10/05/1995 10/05/1995 10/13/1995 11/06/1995
11/06/1995 03/13/1996
10/18/1996 11/29/1996

ORDER upon motion granting [117-1] motion to Extend Time to respond to defendants' motion for attorney fees. Plaintiff has 23 days after defendants serve plaintiff with brief and documentation of fees and costs to respond to defendant's motion. (signed by Mag. Judge Keith A. Pesto on 08/24/95) CM all parties of record. (tam) (Entered: 08/24/1995)
118 NOTICE OF APPEAL by USA from [114-1] order denying United State's motion for summary judgment and entering judgment for defendants and Clerk shall mark case closed dated 07/27/95. NO FEES PAID. TPO issued. (tam) (Entered: 09/26/1995)
Certified copy of Notice of Appeal [118-1] appeal by USA , certified copy of docket, certified copy of order dated 07/27/95 appealed from mailed to USCA; copy of Notice of Appeal and information sheet to all appellees, court reporters, and judge. Copy of information sheet to appellant. (tam) (Entered: 09/26/1995)
119 TRANSCRIPT of William G. Hinkle Deposition for date of 12/16/93. Court Reporter: Heritage Reporting Corporation. (jjg) (Entered: 10/04/1995)
120 Transcript Purchase order re: [118-1] appeal by USA by USA that transcripts already on file in D.C. Clerk's office. (tam) (Entered: 10/05/1995)
Record complete for Appeal purposes, certified copy of docket entries forwarded to USCA. (tam) (Entered: 10/05/1995)
NOTICE of Docketing ROA from USCA Re: [118-1] appeal by USA USCA Number: 95-3541 (jjg) (Entered: 10/16/1995)
121 CERTIFIED COPY OF ORDER dated 11/2/95 from U.S. Court of Appeals for the Third Circuit directing that letter by Appellant, USA construed as a Motion to Amend the Caption is granted pursuant to Fed.R.App.P. 43(c)(1). The caption shall be amended as stated in said Order. (tam) (Entered: 11/06/1995)
RECEIPT from USCA of certified copy of Order amending the caption. (tam) (Entered: 11/06/1995)
122 ORDER denying [115-1] motion for an award of Attorney's Fees and costs against the United States without prejudice to reinstating the same, if appropriate, after the disposition of the pending appeal. ( signed by Mag. Judge Keith A. Pesto on 03/13/96 ) CM all parties of record. (jjg) (Entered: 03/13/1996)
123 Certified copy of JUDGMENT issued in lieu of a formal mandate, affirming the judgment of the district court and taxing costs against the appellant, received from USCA re: [118-1] appeal by USA (jjg) (Entered: 10/21/1996)
124 MOTION by COMMONWEALTH OF PA, THOMAS J. RIDGE, FEATHER HOUSTOUN, NANCY THALER, and ALAN M. BELLOMO to reinstate defendants' motion for an award of attorneys'

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12/02/1996
01/09/1997 01/13/1997 01/14/1997 01/15/1997 01/15/1997 01/29/1997 01/30/1997 02/06/1997

fees and costs against the United States as amended and to issue a briefing schedule with Proposed Order. (jjg) (Entered: 11/29/1996)
125 ORDER granting [124-1] motion to reinstate defendants' motion for an award of attorneys' fees and costs against the United States as amended, granting [124-2] motion to issue a briefing schedule; Defendant's brief is due by 01/10/97; plaintiff's response is due 02/07/97. Upon request of either party the matter shall be set down for oral argument. ( signed by Mag. Judge Keith A. Pesto on 12/02/96 ) CM all parties of record. (jjg) (Entered: 12/03/1996)
126 MOTION by COMMONWEALTH OF PA, THOMAS J. RIDGE, FEATHER HOUSTOUN, NANCY THALER, ALAN M. BELLOMO to Extend Time to file defendants' brief in support of an award of attorneys' fees and costs against the United States with Proposed Order. (jjg) (Entered: 01/09/1997)
ORDER upon motion granting [126-1] motion to Extend Time to file defendants' brief in support of an award of attorneys' fees and costs against the United States. Defendants shall file their brief by 01/17/97. Plaintiff's response is due 02/14/97. ( signed by Mag. Judge Keith A. Pesto on 01/13/97 ) CM all parties of record. (jjg) (Entered: 01/14/1997)
Receipt for Exhibits (jjg) (Entered: 01/14/1997)
127 MOTION by COMMONWEALTH OF PA, THOMAS J. RIDGE, FEATHER HOUSTOUN, NANCY THALER, ALAN M. BELLOMO to Extend Time to fike brief in support of motion for attorneys' fees and costs with Proposed Order. (tam) (Entered: 01/15/1997)
ORDER upon motion granting [127-1] motion to Extend Time to file brief in support of motion for attorneys' fees and costs, and Brief in Support due 1/27/97 and Plaintiff's response is due 2/24/97. (signed by Mag. Judge Keith A. Pesto on 1/15/97) CM all parties of record. (tam) (Entered: 01/15/1997)
128 MOTION by COMMONWEALTH OF PA, THOMAS J. RIDGE, FEATHER HOUSTOUN, NANCY THALER, and ALAN M. BELLOMO to Extend Time to file defendants' brief in support of an award of attorneys' fees and costs against the United States with Proposed Order. (jjg) (Entered: 01/29/1997)
ORDER upon motion granting [128-1] motion to Extend Time to file defendants' brief in support of an award of attorneys' fees and costs against the United States; Defendants shall file their brief by 02/04/97; Plaintiff's response is due 03/31/97. ( signed by Mag. Judge Keith A. Pesto on 01/30/97 ) CM all parties of record. (jjg) (Entered: 01/30/1997)
129 MOTION by COMMONWEALTH OF PA, THOMAS J. RIDGE, FEATHER HOUSTOUN, NANCY THALER, ALAN M. BELLOMO to Extend Time to file defendants' brief in support of an award of attorneys' fees and costs against the United States . (jjg) (Entered: 02/06/1997)

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02/06/1997
02/11/1997 02/11/1997 02/18/1997 03/17/1997 03/17/1997 03/28/1997 03/28/1997 03/28/1997 04/01/1997
04/17/1997 04/21/1997

130 ORDER granting [129-1] motion to Extend Time to file defendants' brief in support of an award of attorneys' fees and costs against the United States; defendants shall file their brief by 02/10/97; plaintiff's response is due 04/07/97. ( signed by Mag. Judge Keith A. Pesto on 02/05/97 ) CM all parties of record. (jjg) (Entered: 02/06/1997)
131 BRIEF by COMMONWEALTH OF PA, THOMAS J. RIDGE, FEATHER HOUSTOUN, NANCY THALER, ALAN M. BELLOMO in support of [115-1] motion for an award of Attorney's Fees and costs against the United States by said defendants. (jjg) (Entered: 02/11/1997)
132 APPENDIX to [131-1] support brief by ALAN M. BELLOMO, NANCY THALER, FEATHER HOUSTOUN, THOMAS J. RIDGE, COMMONWEALTH OF PA (jjg) (Entered: 02/11/1997)
133 EXHIBIT RECEIPT for all of U.S.A.'s trial exhibits left behind by defendant Commonwealth. (jjg) (Entered: 02/19/1997)
134 MOTION by USA to Bifurcate Attorneys' Fees Proceedings with Proposed Order. (jjg) (Entered: 03/17/1997)
135 BRIEF by USA in support of [134-1] motion to Bifurcate Attorneys' Fees Proceedings by USA (jjg) (Entered: 03/17/1997)
136 MOTION by USA to Extend Time to file a brief in opposition to the Defendants' motion for an award of attorney's fees and costs with Proposed Order. (jjg) (Entered: 03/31/1997)
137 RESPONSE by COMMONWEALTH OF PA, THOMAS J. RIDGE, FEATHER HOUSTOUN, NANCY THALER, ALAN M. BELLOMO in opposition to [134-1] motion to Bifurcate Attorneys' Fees Proceedings by USA (jjg) (Entered: 03/31/1997)
138 BRIEF by COMMONWEALTH OF PA, THOMAS J. RIDGE, FEATHER HOUSTOUN, NANCY THALER, ALAN M. BELLOMO in opposition to [134-1] motion to Bifurcate Attorneys' Fees Proceedings by USA (jjg) (Entered: 03/31/1997)
139 ORDER denying [134-1] motion to Bifurcate Attorneys' Fees Proceedings, granting [136-1] motion to Extend Time to file a brief in opposition to the Defendants' motion for an award of attorney's fees and costs. Plaintiff shall have until 04/21/97 to file a brief in opposition to defendants' motion for attorney fees. If additional time is needed, counsel should confer, and if counsel do not disagree, plaintiff may have such additional extension of time as it reasonably requires. ( signed by Mag. Judge Keith A. Pesto on 04/01/97 ) CM all parties of record. (jjg) (Entered: 04/01/1997)
140 MOTION by USA to Extend Time to file brief in opposition to defendants' motion for attorneys' fees with Proposed Order. (jjg) (Entered: 04/17/1997)
ORDER upon motion granting [140-1] motion to Extend Time to file brief in opposition to defendants' motion for attorneys' fees; further

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05/06/1997 05/06/1997 05/30/1997 06/06/1997 06/17/1997
06/30/1997 06/30/1997
07/15/1997

ordered that said brief is due 05/12/97. ( signed by Mag. Judge Keith A. Pesto on 04/21/97 ) CM all parties of record. (jjg) (Entered: 04/21/1997)
141 MOTION by USA to Extend Time to file a brief in opposition to defendants' motion for attorneys' fees with Proposed Order. (jjg) (Entered: 05/06/1997)
ORDER upon motion granting [141-1] motion to Extend Time to file a brief in opposition to defendants' motion for attorneys' fees; further ordered that the United States shall file its brief in opposition by 05/30/97. ( signed by Mag. Judge Keith A. Pesto on 05/06/97 ) CM all parties of record. (jjg) (Entered: 05/06/1997)
142 BRIEF by USA in opposition to defendants' motion for attorney's fees. (jjg) (Entered: 05/30/1997)
143 MOTION by COMMONWEALTH OF PA, THOMAS J. RIDGE, FEATHER HOUSTOUN, NANCY THALER, ALAN M. BELLOMO to supplement their motion for an award of attorneys' fees and costs against the United States as amended and to reply to the United States' brief in opposition to defendants' motion for attorneys' fees with Proposed Order. (jjg) (Entered: 06/06/1997)
ORDER upon motion granting [143-1] motion to supplement their motion for an award of attorneys' fees and costs against the United States as amended, granting [143-2] motion to reply to the United States' brief in opposition to defendants' motion for attorneys' fees; set Reply Brief deadline to 6/30/97 ; Defendants may also file a supplemental list of attorneys' fees and costs along with an amended fee petition by 6/30/97. ( signed by Mag. Judge Keith A. Pesto on 06/17/97 ) CM all parties of record. (jjg) (Entered: 06/17/1997)
144 MOTION by COMMONWEALTH OF PA, THOMAS J. RIDGE, FEATHER HOUSTOUN, NANCY THALER, ALAN M. BELLOMO to Extend Time to supplement their motion for an award of attorneys' fees and costs against the United States as amended and to Extend Time to file defendants' brief in reply to the United States brief in opposition to defendants' motion for attorney's fees with Proposed Order. (jjg) (Entered: 06/30/1997)
ORDER upon motion granting [144-1] motion to Extend Time to supplement their motion for an award of attorneys' fees and costs against the United States as amended, granting [144-2] motion to Extend Time to file defendants' brief in reply to the United States brief in opposition to defendants' motion for attorney's fees; Defendants shall file their Reply Brief and a supplemental list of attorney's fees and costs by 7/15/97 ; Plaintiff's response is due no later tha 8/12/97. ( signed by Mag. Judge Keith A. Pesto on 06/30/97 ) CM all parties of record. (jjg) (Entered: 06/30/1997)
145 MOTION by COMMONWEALTH OF PA, THOMAS J. RIDGE, FEATHER HOUSTOUN, NANCY THALER, and ALAN M. BELLOMO to Extend Time to supplement their motion for an award of

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07/15/1997 08/08/1997 08/11/1997 08/27/1997 08/27/1997 09/04/1997

attorneys' fees and costs against the United States as amended and to Extend Time to file defendants' brief in reply to the United States brief in oppostion to defendants' motion for attorneys' fees with Proposed Order. (jjg) (Entered: 07/15/1997)
ORDER upon motion granting [145-1] motion to Extend Time to supplement their motion for an award of attorneys' fees and costs against the United States as amended; granting [145-2] motion to Extend Time to file defendants' brief in reply to the United States brief in oppostion to defendants' motion for attorneys' fees; Defendants shall file their Reply Brief and a supplemental list of attorneys' fees and costs by 8/8/97 ; Plaintiff's response is due no later that 9/12/97. ( signed by Mag. Judge Keith A. Pesto on 07/15/97 ) CM all parties of record. (jjg) (Entered: 07/15/1997)
146 MOTION by COMMONWEALTH OF PA, THOMAS J. RIDGE, FEATHER HOUSTOUN, NANCY THALER, ALAN M. BELLOMO to Extend Time to supplement their motion for an award of attorneys' fees and costs against the United States as amended , and to Extend Time to file defendants' brief in reply to the United States brief in opposition to defendants' motion for attorney's fees with Proposed Order. (jjg) (Entered: 08/08/1997)
ORDER upon motion granting [146-1] motion to Extend Time to supplement their motion for an award of attorneys' fees and costs against the United States as amended, granting [146-2] motion to Extend Time to file defendants' brief in reply to the United States brief in opposition to defendants' motion for attorney's fees; Defendant's shall file their Reply Brief and a supplemental list of attorney's fees and costs by 8/26/97 ; Plaintiff's response is due no later than 9/30/97. ( signed by Mag. Judge Keith A. Pesto on 08/11/97 ) CM all parties of record. (jjg) (Entered: 08/11/1997)
147 MOTION by COMMONWEALTH OF PA, THOMAS J. RIDGE, FEATHER HOUSTOUN, NANCY THALER, ALAN M. BELLOMO to Extend Time to supplement their motion for an award of attorneys' fees and costs against the United States as amended and to Extend Time to file defendants' brief in reply to the United Staes brief in opposition to defendants' motion for attorney's fees with Proposed Order. (jjg) (Entered: 08/27/1997)
ORDER upon motion granting [147-1] motion to Extend Time to supplement their motion for an award of attorneys' fees and costs against the United States as amended, granting [147-2] motion to Extend Time to file defendants' brief in reply to the United Staes brief in opposition to defendants' motion for attorney's fees; Defendants shall file their Reply Brief and a supplemental list of attorneys' fees and costs by 9/2/97 ; Plaintiff's response is due no later than 10/06/97. ( signed by Mag. Judge Keith A. Pesto on 08/27/97 ) CM all parties of record. (jjg) (Entered: 08/27/1997)
148 MOTION by COMMONWEALTH OF PA, THOMAS J. RIDGE,

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09/05/1997 09/15/1997
10/03/1997 06/15/1998

FEATHER HOUSTOUN, NANCY THALER, ALAN M. BELLOMO to Extend Time to supplement their motion for an award of attorneys' fees and costs against the United States as amended and to Extend Time to file defendants' brief in reply to the United States brief in opposition to defendants' motion for attorney's fees with Proposed Order. (jjg) (Entered: 09/04/1997)
149 REPLY BRIEF by COMMONWEALTH OF PA, THOMAS J. RIDGE, FEATHER HOUSTOUN, NANCY THALER, ALAN M. BELLOMO to [142-1] brief in opposition by USA (jjg) (Entered: 09/05/1997)
ORDER upon motion granting [148-1] motion to Extend Time to supplement their motion for an award of attorneys' fees and costs against the United States as amended, granting [148-2] motion to Extend Time to file defendants' brief in reply to the United States brief in opposition to defendants' motion for attorney's fees; Defendants shall file their Reply Brief and a supplemental list of attorneys' fees and costs by 9/4/97 ; Plaintiff's response is due no later that 10/3/97. ( signed by Mag. Judge Keith A. Pesto on 09/15/97 ) CM all parties of record. (jjg) (Entered: 09/16/1997)
150 RESPONSE by USA to [149-1] reply brief by ALAN M. BELLOMO, NANCY THALER, FEATHER HOUSTOUN, THOMAS J. RIDGE, COMMONWEALTH OF PA (tam) (Entered: 10/03/1997)
151 NOTICE of change of firm/address by Thomas B. York, Esq. (jjg) (Entered: 06/15/1998)

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-"'3

DJ 168-64-7

MEMORANDUM FOR THE ATTORNEY GENERAL
Re: Proposed Notice Letter to the Governor of Pennsylvania Regarding Ebensbura Center
INFORMATION MEMORANDUM
This is to advise you that today I have notified Governor Robert Casey of the results of the Department's investigation of the Ebensburg Center (Ebensburg) at Ebensburg, Pennsylvania, pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. 1997 et seq. (CRIPA). This letter supplements and updates an earlier letter of findings sent to the Governor on November 10, 1987, and advises the Governor that we found that conditions at Ebensburg continue to deprive residents of their constitutional rights to adequate medical care, a reasonably safe environment, freedom from unreasonable risks of harm and undue bodily restraints, and training that an appropriate professional would consider reasonable to ensure those interests.
Specifically, the letter advises the Governor that there exists at Ebensburg: a lack of adequate training programs to ensure residents' safety and to facilitate their ability to function free from bodily restraints; inappropriate uses of medication; inadequate care of residents at risk nutritionally or with impaired eating ability; a lack of a sufficient number of qualified and adequately trained and supervised nurses; inadequate infection control; inadequate inservice training for and coordination among staff; inadequate medical documentation; and inadequate properly fitted adaptive equipment. As required by CRIPA, the minimum remedial measures that we believe are necessary to remedy the cited deficiencies are specified in the letter.
We anticipate meeting with State officials in the near future to seek a means to remedy the cited deficiencies and establish constitutional conditions at Ebensburg.

James P. Turner Acting Assistant Attorney General
Civil Rights Division

cc: Records^—Peabody Chronor Nelson

Katz Greenberg

Varley Hold

 
 U.S. v. Ridge, 96 F.3d 1436 (Table) (1996)
96 F.3d 1436 (Table) (The decision of the Court is referenced in a “Table of Decisions Without Reported Opinions” appearing in the
Federal Reporter. The Third Circuit provides by rule for the reporting of opinions having “precedential or institutional value. An opinion which appears to have value only to the trial court or the parties is ordinarily not
published.” The Federal Reporter tables are prepared from lists of cases terminated by judgment orders, unpublished per curiam opinions and unpublished signed opinions, indicating the disposition of each case, transmitted by the Court. Third Circuit Rules, App. 1, Internal Operating Procedures, Ch. 5, sec. 5.1, 28 U.S.C.A.)
United States Court of Appeals, Third Circuit. U.S. v.
Thomas J. Ridge, Governor of Commonwealth of Pennsylvania, Feather Houstoun, Secretary Dept. of Public Welfare, Nancy Thaler, Deputy Secretary of Mental Retardation Office of Mental Retardation, Alan M. Bellomo,
Director Ebensburg Center, Commonwealth of Pennsylvania NO. 95-3541 | Aug 22, 1996
Appeal From: W.D.Pa., No. 92-cv-00033J, Smith, J., 902 F.Supp. 565 Opinion AFFIRMED.
1