COLORADO ASSOCIATION FOR RETARDED CHILDREN v. STATE OF COLORADO (U.S. District Court, Colorado)

In December, 1972, the Colorado Association for Retarded Children and 19 named physically and mentally handicapped children filed a class action suit against the state of Colorado, the governor, the state departments of education and institutions, the state board of education and 11 Colorado school districts. The substance of the action is the state's alleged failure to provide equal educational opportunities to 20,000 handicapped children.

RIGHT TO TREATMENT

WYATT v. ADERHOLT, 334F Supp. 1341 (M. D. Alabama, 1971), 32FF. Supp. 781 (M. D. Alabama, 1971)

This action, originally focused on the claim of state hospitalized mentally ill patients to receive adequate treatment, began in September, 1970, in Alabama Federal District Court. In March, 1971, Judge Johnson ruled that mentally ill patients involuntarily committed to Bryce Hospital were being denied the right "to receive such individual treatment as (would) give each of them a realistic opportunity to be cured or to improve his or her mental condition." The court gave the defendants six months to upgrade treatment, to satisfy constitutional standards, and to file a progress report. Prior to the filing of that report, the court agreed to expand the class to include another state hospital for the emotionally ill and the mentally retarded at the Partlow State Schoo1 and Hospital.

The defendants' six month progress report was rejected by the court and a hearing was scheduled to set objective and measurable standards. At the hearing in February, 1972 evidence was produced which led the court to find "the evidence ... has vividly and undisputably portrayed Partlow State School and Hospital as a warehousing institution which because of its atmosphere of psychological and physical deprivation, is wholly incapable of furnishing habilitation to the mentally retarded and is conducive only to the deterioration and the debilitation of the residents." The court further issued an emergency order "to protect the lives and well-being of the residents of Partlow. In that order the court required the state to hire within 30 days 300 new aide-level persons regardless of "former procedures," such as civil service. The quota was achieved.

On April 13, 1972, a final order and opinion setting standards and establishing a plan for implementation was released. In the comprehensive standards for the total operation of the institution are provisions for individualized evaluations and plans and programs relating to the habilitation ("the process by which the staff of the institution assists the resident to acquire and maintain those life skills which enable him to cope more effectively with the demands of his own person and of his environment and to raise the level of his physical, mental, and social efficiency.") Habilitation includes, but is not limited to, programs of formal structured education and treatment of every resident. Education is defined within the order as "the process of formal training and instruc-, tion to facilitate the intellectual and emotional development of residents. The standards applying to education within the order specify class size, length of school year, and length of school day by degree of retardation.

Finally, the court requires the establishment of a "human rights committee" to review research proposals and rehabilitation programs, and to advise and assist patients who allege that the standards are not being implemented or that their civil rights are being violated. Further, the state must present a six-month progress report to the court and hire a qualified and experienced administrator for the institution.

In December, 1972, the U.S. Court of Appeals for the 5th Circuit heard arguments on the appeals of both Wyatt and Burnham (CA.) which had been joined. The court is presently preparing a decision.

BURNHAM v. DEPARTMENT OF PUBLIC HEALTH, Civil Action No. 16385 (U.S. District Court, N. D. Georgia)

This is a suit seeking class action status on behalf of all patients voluntarily or involuntarily committed to any of the six state-owned and operated facilities named in the complaint and operated for the diagnosis, care and treatment of mentally retarded or mentally ill persons under the auspices of the Department of Public Health of the State of Georgia. Each of the named plaintiffs is or has been a patient at one of these institutions. The case was filed on March 29, 1972, in the United States District Court for the Northern District of Georgia.

Defendants in this case are the Department of Public Health, the Board of Health of the State of Georgia, and Department and Board members and officials; the superintendents of the six named institutions; and the judges of courts of ordinary of the counties of Georgia, which are the courts specifically authorized by Georgia law to commit a person for involuntary hospitalization.

The complaint alleges violations of the 5th, 8th, and 14th Amendments to the U.S. Constitution. It seeks a preliminary and permanent injunction and a declaratory judgment. Specifically, the declaratory relief sought includes a court finding that the patients in the defendant institutions have a constitutional right to adequate and effective treatment; a court finding that each of the institutions named in the complaint is currently unable to provide such treatment; and a holding by the Court that constitutionally adequate treatment must be provided to the patients in the institutions named in the complaint.

The plaintiffs requested the following:

1.

That defendants be enjoined from operating any of the named institutions in a manner that does not conform to constitutionally required standards for diagnosis, care and treatment;

2. That defendants be required to prepare a plan for implementing the right to treatment;

3. That further commitments to the defendant institutions be enjoined until these institutions have been brought up to constitutionally required standards; and

4. That the Court award reasonable attorney's fees and costs to counsel.

Defendants filed an answer to plaintiffs complaint on April 21, 1972,

in which they raise several legal defenses, such as lack of jurisdiction, and moved to dismiss on several grounds.

On August 3, 1972, Judge Sidney D. Smith, Jr. granted the defendants' motion for summary judgment and dismissed this case. The ruling of the court centered on the following major points:

1. The court could find no legal precedent to allow for the declaration that there exists a "federal constitutional right to treatment (to encompass 'care' and 'diagnosis') for the mentally ill." Based on this finding, the judge ruled that the action could not be maintained.

2. Judge Smith, in his decision, disagreed with the Wyatt Alabama decision, primarily on the basis of the absence of a federal statute requiring the right to treatment. He added that "the factual context in those Alabama decisions (budgetary lots by the state legislature causing further deterioration of an existing deficient institutional environment) is also substantially different from the existent situation in the Georgia mental health institutions."

3. The court also held that "... a conclusion as to the lack of jurisdiction over the person of named defendants is also compelled by the eleventh amendment to the U.S. Constitution." This conclusion was based upon the failure to demonstrate the "... denial of a constitutionally protected right nor a federally guaranteed statutory right."

4. Judge Smith also commented about the appropriateness of the courts in defining "adequate" or "constitutionally adequate" treatment.

Specifically he wrote that these questions "... defy judicial identity and therefore prohibits its breach from being judicially defined." Further, he acknowledged the defendants' argument that "the question of what in detail constitutes "adequate treatment" is simply not capable of being spelled out as a mathematical formula which could be applied to and would be beneficial for all patients. Everyone knows that what might be good treatment for one patient could be bad or even fatal for another."

See the last paragraph of Wyatt v. Aderhold for status of this case.

RICCI v. GREENBLATT, Civil Action No. 72-469F (U.S. District Court, Massachusetts)

This is another class action suit regarding the right to treatment in institutions. The plaintiffs were children in the Belchertown State School in Massachusetts and the Massachusetts Association for Retarded Children, who like in the Wyatt, Parisi, and New York Association for Retarded Children actions, alleged violations of their constitutional rights. The defendants were various state officials and officials of the school. Motions for a temporary restraining order and preliminary injunction were granted by the court in February, 1972, which serves to maintain the status quo until litigation is completed.

Among the provisions of those orders was that "the defendants develop comprehensive treatment plans for the residents which include adequate and proper educational services." On April 20, 1972, the defendants had filed answers to all allegations of the plaintiffs' complaint.

This case has been reassigned to another district court judge. A contempt motion was also filed against the defendants for their failure to carry out issued orders.

NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN v. ROCKEFELLER, 72 Civil Action No. 356. PARISI v. ROCKEFELLER, et. al. (U.S. District Court, E. D. New York)

These two actions were filed in the U.S. District Court for the Eastern District of New York. Both allege that the conditions at the Willowbrook State School for the Mentally Retarded violated the constitutional rights of the residents. These class action suits are modeled after the Wyatt v. Adherholt (Partlow State School and Hospital, Alabama) case.

Extensive documentation was presented by the plaintiffs alleging the denial of adequate treatment. The evidence touched all elements of institutional life including: overcrowding, questionable medical research, lack of qualified personnel, insufficient personnel, improper placement, brutality, peonage, etc. It is alleged in the Parisi, et. al. v. Rockefeller complaint that "No goals are set for the education and habilitation of each resident according to special needs and specified period of time." It was specifically charged that 82.7 percent of the residents are not receiving school classes, 98.3 percent are not receiving pre-vocational training, and 97.1 percent are not receiving vocational training.

The plaintiffs in Parisi, et. al. are seeking: declaration of their constitutional rights, establishment of constitutionally minimum standards for applying to all aspects of life; due process requirements to determine a "developmental program" for each resident; development of plans to construct community-based residential facilities and to reduce Willowbrook's resident population; cessation of any construction of non-community based facilities until the court determines that sufficient community based facilities exist; and appointment of a master to oversee and implement the orders of the court. Both complaints include specific mention of the necessity for including within "developmental plans" and subsequent programs, appropriate education and training.

The preliminary schedule on these cases, which were to be consolidated, was for plaintiffs and defendants to meet in early May to stipulate standards.

WELSCH v. LIKINS, No. 4-72 Civil Action 451 (U.S. District Court, District of
Minnesota, 4th Division)

In this action six plaintiffs are named as representative of a 3,500 member class--persons presently in Minnesota's state hospitals for the mentally retarded. Named defendants are the present and former acting commissioners of public welfare and the chief administrator of each of the state's six hospitals.