Chapter 3: Pennhurst Implementation

09:06:03:17

Q. Why was the Special Master's Office necessary?

A. I'll tell you that and I'll tell you about the fines too.

Q. Okay.

A. Uh. The systemic change that the Judge's order require, uh, was very complex. It involve corralling the counties, the state, officials from both and the, uh, funding and legislative support that was needed both locally in counties and in the state and it involve, uh, making sure that a very complicated order the judge had issued was obeyed and the judge decided that in order to do that you needed the help of an expert in the field who could be his eyes and ears and also enforce what needed to be enforced. So an Office of the Special Master was created, Carla Morgan spent years doing that work in a very professional way, bringing in some great staff to do that. At some point the State decided we don't want to cooperate anymore and the way they did this ended up earning them a contempt citation from the judge because the Secretary of Public Welfare did not make the decision on her own. What ended up happening is that the legislature passed a law saying not money from the department shall be used for Special Master.

09:08:07:23

The difficulty was that the Secretary of Public Welfare, in testifying to the legislature, said I can't stop paying the judge's Special Master but you can if you want to make a law forbidding me and that she would like that law to happen. So the judge found the Secretary of Public Welfare in contempt of court for her encouraging actually defiance of his orders and the State paid $10 thousand a day, delivering a check every day for $10 thousand to the federal courthouse until it had built up to a million dollars which happens to be the budget per year of the Master's office. And at that point the contempt ruling, which had been upheld by the Court of Appeals, was about to be heard by the US Supreme Court and then Judge Broderick, a very clever judge, he said well now that I have a million dollars in the bank I can free you from contempt, thereby making it impossible for the Supreme Court to hear the case and funding the Master's office.

09:09:27:08

Q. Even before the Pennhurst litigation Pennsylvania was exploring, albeit in a very limited way, models of community living. What did the Temple studies, the Special Master's studies, etcetera show about how people were fairing in the community after leaving Pennhurst?

09:10:23:13

A. During the trial we emphasized to the judge that for every person in Pennhurst there was somebody outside of Pennhurst with the same needs, uh, who was being served just fine in the community. Uh, and, uh, there were, was a lot of work done by Temple University, uh, and others in this field to show that that kind of, uh, those kind of facts were not unusual, it was a common and very easily shown. Uh, later the federal government funded, uh, the Pennhurst Longitudinal study of the implementation of the judge's orders and Temple University and the Human Services Research Institute cooperated in that effort with HSRI doing more of the political side, I'll call it, policy side and Temple looking at individual people as they were leaving and how they fared. Uh, so that enabled us to have data, not just theoretical, not just if I'd been in an institution what would my life have been like or if I had left the institution then, you know, what would, changes would have happened.

So the most salient facts for me are number one, that folks who left the institution often after many years, some very elderly people had been at Pennhurst, did terrific in the community and that they're, uh, level of functioning, quality of their lives, uh, increased, uh, dramatically. And that was important because for many people, Terri Lee Halderman for example, uh, she went backward at Pennhurst and we could show, and the folks who know how to do this kind of research could show, that instead of regression and/or stasis that had gone on for years that people who left the institution where capable of learning, were capable of moving and advancing in their lives so that was real important because an argument for institutions is often that people can't do any better than they were at the institution.

The other thing that was real important is the reaction of families, uh, because families that had been opposed to placement into the community and had been measured, you know, to the hilt by Temple as being oppose, opposed that once the lives of their family members in the community, uh, virtually universally those families changed their mid and were happy with what happened. Uh, Judge Broderick addressed that issue in an interesting way. There was another Special Master, uh, that the judge appointed, uh, Michael Lottman, a great lawyer in this field. And the judge appointed him to address objections to placement by residents or family members and he held hearings, uh, if necessary and meetings with families, Pennhurst, the counties to address families worries about a particular placement and except, I think, for one case which went up on appeal he was able to resolve all those issues. Uh, because what he did was get people together, the family said I'm worried the stove could be dangerous for my son and he figured out a way to make the stove a safe place or I'm worried the driveway of this house goes right into a busy street so maybe Michael helped the parties and the county to figure out a different house or some protection around traffic safety. So it showed that there could be a resolution of families worries, uh, that would lead to an easier placement.

09:15:04:05

Q. When did the Pennhurst lawsuit finally settle?

A. Uh, 1985, I think.

Q. I believe around the same time, maybe even the same day you could probably tell me, um, there was also a settlement announced in another case the one of Nicholas Romeo, um, and attached to that case was the Supreme Court's, the US Supreme Court's first and only definition of the rights of people with intellectual disabilities. Um, it affirmed, as you know, that people in institutions have the right to safety, to freedom from restraints and, um, training if a lack of training was perceived as harmful. Um, do you think that the success of this case would have been possible without the success of the Pennhurst litigation?

A. Well, that's an interesting question. It's a good summary of the Romeo case by the way. Uh, do I think the success of Romeo would have been possible without the Pennhurst? I'm happy to think about that and talk about it. In, in my opinion the (Youngberg) vs. Romeo case and the Halderman vs. Pennhurst case have very little to do with one another, uh, that might surprise some people. The Romeo case involved one plaintiff and it was damages only and the question was what kind of damages can one obtain for the kind of abuse someone suffered at the institution. We had asked Judge Broderick for damages in our class action and he decided not to deal with that and to deny damages for the whole class. In the Romeo case during the Supreme Court argument, uh, my friend and a great lawyer, Ed Tiriack, in answer to a question from one of the justices said that, uh, Nick Romeo would never be able to leave the institution. Now, that was a mistake in my view in Ed's, uh, strategy in his oral argument but that was later quoted, referenced by the Supreme Court in their opinion. So that case involving one person and damages and had no relation to, uh, community placement issues so I th-, I think that Nick Romeo would have won his case with or without the Pennhurst litigation and I think we would have won the Pennhurst litigation with or without that Supreme Court decision or that case.

09:18:09:22

Q. In '84, I believe, (Hastings Dice), a Pennhurst aide who had been arrested in '82 on charges of assault became the first mental institution employee to receive a prison sentence, you know the case I'm sure. Um, why weren't there others? You, you've talked about so much of the abuse that happened at Pennhurst, why were more staff not held criminally accountable for the abuses at Pennhurst?

A. It takes a district attorney to bring charges, criminal charges and I think, I can't speak for what charging decisions were made by various prosecutors, but I think that, uh, the needs of people with intellectual disabilities and protection of them from abuse at that point in our history was not seen as priority by the criminal justice system. Uh, it's a pity that was the case, it's a pity it still is the case. Uh, I represent now a family of a 21 year old who died in prone restraint, being held down by police and group home staff and, uh, I'm surprised that even though the medical examiner found that he died as a result of being held in prone restraint, not being able to breath, that there aren't criminal charges brought there. This is contemporary, this happened just a couple years ago so I can't explain why prosecutors don't treat these cases like they do other kinds of criminal activity.

09:20:04:21

Q. Um, the transfer of residents from Pennhurst to the community, um, perhaps happened more quickly than the system we ready to absorb, um, it seems as though the city of Philadelphia particularly felt itself under enormous pressure, um, to preform but there were plenty of times when the city was held in contempt of court which suggests that they weren't, perhaps, preforming to the judge's satisfaction. Um, in 1983 Broderick had said that the State failed to setup a system that adequately represented people with mental retardation, the terminology of the day, um, and he asked for the State to submit certified advocate program in five days for example. Um, do you think, I guess, in all of this the court's demands in terms of transition from res-, from Pennhurst into the community were realistic in terms of what the system actually could offer?

A. The system at the time was not, uh, I'll call it uniform in its willingness or ability to do what had to be done. Uh, Chester County did an amazing job, quick job, very committed and an organized job to move people to the community. They're at the most positive end of the five counties. Uh, Philadelphia, which did have the most people to bring back from Pennhurst, did the worst job. So we did end up having to go to court especially against Philadelphia and at the time I believe that Philadelphia was not as committed to moving in an organized way, uh, to comply with the order for whatever reason. It was a large task that had to be done and I think the people running Philadelphia's program at the time, uh, were just not up to the job and they weren't organized enough to, to do the job. Eventually Philadelphia did create a special unit to work on Pennhurst implementation, they brought in, uh, an experienced person from Florida, who'd done this in Florida, help people move to the community and Philadelphia ended up successful in their efforts. I'm glad to say that the people who were running the system in Philadelphia learned from all that and, you know, I think they, to the extent they're still working in the system I have no criticism of them, you know, personally because they learned from the experience and they have a lot more, uh, knowledge now about what had to be done. But until Philadelphia was pressured by the court to organize itself Philadelphia, I think, was very slow to comply.

09:23:11:15

Q. The cost of supporting Pennhurst class members in the community were relatively high, um, and there was some, I think, talk, certainly in the media, certainly amongst parents, um that the cost of supporting Pennhurst members created some inequities for folks who had children at home and also wanted community supports. Um, was that a fair, um, fair allocation of funds do you feel?

A. I filed a lawsuit to establish the right of people living in the community to get support and we lost. Uh, I think we won before Judge Broderick then lost in the Court of Appeals. Uh, the, that's sort of one piece of an answer. I, I'm inclined to dispute the issue of whether or not the cost of caring for people leaving Pennhurst was like unusually high or more than what it should have been because folks leaving were getting and ordered to get good, quality care. Folks living in the community were not protected by any court order so the counties could, they couldn't do every, anything they wanted but the counties didn't have an incentive to provide the quality that was required. For example, folks leaving Pennhurst, in terms of coordination of their care and assurance of their care, had a protected ratio of 25 clients for every case manager. Folks living in the community had case managers but each case manager had 125 clients they needed to serve. Uh, so just in terms of case management Pennhurst residents cost more money but it was because they were getting good case management and the same would apply, I think, to other aspects of their care. Uh, to be sure though it is the case, still today, and it was the case that people not protected by the court order were not getting the kind of services and attention they deserved and it was unfair, it is unfair and unfortunately it's the product of our legal system and our social service system that when people become the squeaky wheel and get the attention of the court, uh, they get more than, than other people.

When I, uh, let me, I want to say something, I don't know how important this is to what you do but I urge that this next paragraph be part of whatever you do with me. Uh, when I meet with individual clients who want services from the system and want to change a system of care for people with disabilities I talk to the individual person about whether or not they want to file a class action or bring in other people or do it themselves. And what I tell people is if you do this for yourself you're more likely to get something that'll help you and help you sooner because we're more likely to convince the state or the county to do something for you. If we want to change the system and file it for other people, uh, we can do that but it's gonna take many more years to do that and you may not get what you want for many years. So within the structure of our judicial system, uh, there are some built in incentives and disincentives to get improvements in the social services world and when you do a class action like Pennhurst you may change it for many more people but it may take many more years and a lot more complexity and an individual person will get services sooner probably but not change the system. And then there's the third category which is those people who don't go to court, who are on the waiting list, who are begging for services, the elderly parents who have 40, 50 year old, uh, clients with intellectual disability at home, they've been struggling to take care of them and they, today, 2013, are still waiting to get what they have a right to.