S.H. and P.F., individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Joe EDWARDS and R. Derril Gay, individually and in their official capacity, Defendants-Appellees, 860 F.2d 1045

PER CURIAM: The judgment of the district court and the rulings questioned on appeal are affirmed based upon and for the reasons stated in the thoughtful Order of Court entered on April 10, 1987 and appended hereto. The dissent criticizes our approach in this matter and consequently, we add these thoughts. The plaintiffs won the lawsuit. Extensive relief was afforded. Both the United States Magistrate and the District Judge entered substantial writings explaining the various rulings. In our opinion, nothing is gained by repeating that analysis. Where we

part company is on the one issue of whether the plaintiffs have a substantive due process right, under the federal constitution, to habilitation in a community setting. The district court held in the negative and we agree. Judge Clark disagrees. All agree that Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), is the guiding light but reasonable litigants, attorneys and judges disagree on its application.

The plaintiffs in this case maintain that mentally retarded patients fare better in community placements as opposed to institutional environments and that certain professionals have recommended that members of the alleged class be placed in such community facilities. The defendants agree, but suggest that not enough community facilities are available and that the institutional facilities being used do not deviate from accepted professional standards. We agree with the Circuits which interpret Youngberg as requiring states to provide habilitation in accord with prevailing standards of practice.

The experts in this case agree that Georgia’s decision to keep these plaintiffs in institutional settings until community facilities can be made available does not deviate from professionally accepted standards. We join with Judge Clark in hoping that available funds will be used to secure more community type quarters. We disagree that plaintiffs have a constitutional right to such.

The fact that the State of Georgia is trying to provide “better” facilities does not mean they are depriving plaintiffs of their constitutional rights by continuing to use institutions which the experts find are being operated in accord with sound professional standards. AFFIRMED. APPENDIX S.H. and P.F. individually and on behalf of all others similarly situated, Plaintiffs vs. Joe Edwards and R. Derril Gay, individually and in their official capacities, Defendants Civil Action File No.

C81-877A In the United States District Court for the Northern District of Georgia Atlanta Division ORDER OF COURT This matter is before the court on the Report and Recommendation of the Magistrate (“Magistrate’s Report”). The matter went before the Magistrate on cross-motions of the parties for

summary judgment.

Procedural Background Plaintiffs seek judgment upon the following issues: 1) whether defendants have violated plaintiffs’ rights to due process under the Fourteenth Amendment to the Constitution of the United States by failing to provide to plaintiffs adjudicatory reviews of their indefinite commitments; 2) whether defendants have violated plaintiffs’ rights to equal protection under the Fourteenth Amendment by arbitrarily providing adjudicatory reviews to some institutionalized mentally retarded adults, but not to plaintiffs; 3) whether defendants’ failure to provide to plaintiffs adjudicatory reviews of plaintiffs’ commitments violates state law; 4) whether defendants’ failure to provide to plaintiffs community services to relieve them from their indefinite confinement violates state law; and 5) whether plaintiffs are entitled to a full and complete remedy to make them whole for the constitutional injuries they have suffered.

Defendants seek

summary judgment on the entire complaint. Magistrate’s Recommendation After a hearing on the cross-motions for

summary judgment, the Magistrate issued a Report and Recommendation which contains the following recommendations: 1. Plaintiffs’ state law claims be dismissed; 2. Plaintiffs’ be granted

summary judgment on the issue of a right to a continued Rehabilitation Review Procedure (O.C.G.A. § 37-4-42) on both equal protection and procedural due process grounds; 3. Defendants be granted

summary judgment on the issue of a right to community habilitation, on substantive due process grounds; 4. Defendants be granted

summary judgment on all claims under

Section 504 of the Rehabilitation Act (29 U.S. C. § 794 et seq.). Plaintiffs object to the third and fourth recommendations, and defendants object to the second recommendation. The court will address the second through fourth of the Magistrate’s recommendations seriatim after setting forth certain material facts that will aid the disposition of these matters. Statement of Certain Undisputed Facts 1. Plaintiffs S.H. and P.F. were residents of Gracewood State School and Hospital, a state owned and operated institution for the mentally retarded at the time this action was filed. 2.

Plaintiffs represent a class consisting of all adult persons who are mentally retarded or otherwise handicapped, who have been, are now, or will be residents of state-owned or operated facilities for the mentally retarded, who since September 1, 1978, have been, are being, or will be denied access to due process hearing procedures which would determine their need for community placement and/or continued hospitalization. 3. S.H. and P.F. had been residents of Gracewood since before September 1, 1978. 4. Plaintiffs S.H. and P.F. were admitted to Gracewood without having received a commitment hearing. 5.

S.H. was twenty-four years old when this action was filed. She had been a resident of state hospitals for approximately fifteen years at the inception of this action. 6. P.F. was thirty-five when this action was filed and had been a resident of state hospitals for twenty-five years. 7. Both S.H. and P.F. reached the age of 18 prior to September 1, 1978. 8. On September 1, 1978 defendants initiated procedures to review the continued institutionalization of adult residents of its mental retardation facilities as required by amendments to the Georgia statute governing the institutionalization of retarded persons. 9.

Persons who received such reviews had their need for continued institutionalization reconsidered after the first six months of their commitment and thereafter on an annual basis. 10. Persons who received such reviews, if continued commitment was deemed necessary after the initial commitment period of six months, had their cases reviewed by a panel of impartial professionals not involved in the residents’ active treatment (the panels are known as Committees for Continued Habilitation Review). 11.

Until April 1, 1979, following the reviews by the Committees for Continued Habilitation Review, residents received a hearing before a Department of Human Resources hearing examiner to determine their need for continued commitment. 12.

At the hearing the persons receiving the reviews have a right to counsel, a right to subpoena and cross-examine witnesses, a right to present evidence including independent evaluations of the continuing need for commitment, a right to have an alternative plan to receive services in a lesser restrictive environment presented to the hearing officer by the Department of Human Resources and the right to have findings of fact made by an impartial hearing officer. 13.

After April 1, 1979, as a result of statutory amendments governing the provision of such reviews, following the reviews by the Committees for Continued Habilitation Review, all persons reviewed had their service plans reviewed by a hearing officer of the Department of Human Resources. A hearing was then held if the hearing officer chose to initiate one or if the resident or a representative requested that one be held. 14. Neither S.H., nor P.F., ever had a review of their continued commitment by a Continued Habilitation Review Committee prior to the commencement of this action.

As a result neither S.H. nor P.F. received the “automatic” hearing before a Department of Human Resources hearing examiner during the period prior to April 1,1979, nor thereafter, the opportunity to have their case reviewed by a hearing examiner, the opportunity to request that a hearing examiner hold a hearing, or notice of any right to make such a request. 15.

As a result, neither S.H. nor P.F., was provided the opportunity to exercise the right to appointed counsel, or the right to have an alternative plan to receive services in a lesser restrictive environment developed by the Department of Human Resources or to exercise any of the other rights ancillary to a continued habilitation review hearing. 16.

As of September 1, 1981, more than 1,000 mentally retarded institutionalized adults were not being afforded a review of their continued commitment by a Continued Habilitation Review Committee, nor the opportunity for further review received by the balance of mentally retarded institutionalized adults. 17. Such reviews had been provided to the balance of mentally retarded residents of Defendants’ institutions since September 1, 1978. 18.

Since September 1, 1978, it has been the practice of Gracewood only to process mentally retarded adults for such reviews if the individual had been committed to the institution by court order or if the individual had been admitted as a child and had become an adult since September 1, 1978. 19. In 1980, a project, known as Project P.R.O. or Preparing for Residential Options, was undertaken for the Mental Retardation

Section of the Division of Mental Health and Mental Retardation of the Georgia Department of Human Resources. 20. A final Project P.R.O. report was completed in January 1981. 21. The purpose of Project P.R.O. was to assist Defendants in assessing the comprehensive service needs of individual mentally retarded persons in need of alternative residential services, analyze the service needs of such persons in terms of type of services, cost of services, and the time frame for meeting those needs. 22.

Project P.R.O. involved the assessment of 607 institutional clients identified by staff of Defendants’ hospitals who would be more appropriately served in alternative residential services. 23. The data obtained by Project P.R.O. indicated that at least 30% of the institutionalized mentally retarded population in Georgia would be more appropriately served in community residential options. 24. The data obtained by Project P.R.O. indicated that 213 mentally retarded residents of Gracewood State School and Hospital would be more appropriately served in an alternative residential placement. 25.

The data obtained by Project P.R.O. indicated that 122 mentally retarded residents of Central State Hospital would be more appropriately served in an alternative residential placement. 26. The data obtained by Project P.R.O. indicated that 155 mentally retarded residents of Georgia Retardation Center at Atlanta would be more appropriately served in an alternative residential placement. 27. The data obtained by Project P.R.O. indicated that 55 mentally retarded residents of Southwestern State Hospital would be more appropriately served in an alternative residential placement. 28.

The data obtained by Project P.R.O. indicated that 38 mentally retarded residents of Northwestern Regional Hospital at Rome would be more appropriately served in an alternative residential placement. 29. The data obtained by Project P.R.O. indicated that 9 mentally retarded residents of Georgia Retardation Center at Athens would be more appropriately served in an alternative residential placement. 30. All institutionalized mentally retarded residents have their individualized program plans reviewed on an annual basis by an interdisciplinary team. 31.

Institutionalized mentally retarded individuals who are not under a court order are not advised of a right to have decisions of the interdisciplinary team reviewed or of any hearing rights should they disagree with the decisions of their interdisciplinary team. 32. Interdisciplinary teams which perform reviews do not have authority to order that a person be discharged. 33. During their residency in Defendants’ hospitals, S.H. and P.F. were recommended by hospital staff for community placement. 34.

The person in charge of S.H.’s habili-tation program at Gracewood was of the opinion, since 1979, that S.H. did not need to be at Gracewood, but should be placed in a community placement. 35. Defendants admit that they have not provided a placement and the necessary community services in an alternative community placement for all residents of its mental retardation facilities for whom it has been suggested or recommended that such an alternative placement might be or would be appropriate. 36.

Defendants admit that they did not provide to Plaintiffs S.H. and P.F., neither community alternatives to institutionalization, nor the necessary community services during the period from September 1, 1978 to May 11, 1981. Right to a Continued Rehabilitation Review Procedure (O.C.G.A. § 37-4-42).

Defendants object to the Magistrate’s recommendation that this court adopt his due process analysis on the grounds that (1) the Magistrate has not considered whether a protectable interest was raised by plaintiffs before he determined what procedure is required to protect that alleged protectable interest, and (2) if plaintiffs do have a protectable interest, the treatment review procedures which the defendants provide to plaintiffs are sufficient to protect any liberty interest the plaintiffs may have. The court is not persuaded by the defendants’ objections.

The Magistrate reports that the protectable interest, here, is the right to personal liberty and freedom. Magistrate’s Report and Recommendation, page 14. Citing Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the Magistrate reports that mentally retarded individuals retain an interest in safety, freedom of movement, and certain forms of training during confinement. Furthermore, the Magistrate notes that the right not to be inappropriately stigmatized by hospitalization is a protectable interest under the Fourteenth Amendment due process clause, as well. Parham v.

J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). This court agrees with the Magistrate’s recommendation regarding the Fourteenth Amendment due process issue for the following reasons. Defendants apply the correct Fourteenth Amendment due process test, as set forth in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972), but miss the mark in reaching the appropriate result. Citing Society for Good Will to Retarded Children v.

Cuomo, 737 F.2d 1239 (2d Cir.1984), defendants argue that there is no right to treatment of mentally retarded persons in a community residential placement, and therefore, no protectable liberty interest pursuant to the Fourteenth Amendment due process provision. The Magistrate’s recommendation on the procedural due process question is not as broad as defendants suggest, however.

The Magistrate has wisely discerned that the plaintiffs in this case stand to lose the opportunity for habilitation in a less restrictive setting should the O.C.G.A. § 37-4-42 review process determine that a less restrictive setting would better serve their needs. Magistrate’s Report at 15. The Magistrate continues by stating that [continued confinement would be ‘erroneous ’ if the length and conditions of the confinement do not bear any relation to the purpose of the confinement. In the case of the plaintiffs, habilitation is the purpose of their confinement.

Inappropriate institutionalization and treatment can result in actual regression of the individual’s skills and not merely a simple failure to improve. Georgia Ass’n of Retarded Citizens v. McDaniel, 511 F.Supp. 1263 (N.D.Ga.1981).

The record indicates that many institutionalized persons would be better served in community placements. (Citation omitted)____ If formal continued Habilitation Reviews [pursuant to O.C.G.A. § 37-4-42] were available to plaintiffs, their release [or, “transfer from institutions to community placements”] would be facilitated by placement on the waiting list for community services. (Citation omitted). Id. at 15-16.

Defendants argue that plaintiffs have not alleged that they have been inappropriately institutionalized, and therefore, the court should not utilize the language of Georgia Association of Retarded Citizens. Defendants’ argument does not persuade this court. The record indicates that although many of the members of plaintiffs’ class have been recommended for discharge by hospital review teams, they remain hospitalized because they are not placed on the community placement waiting list as a result of their denial of the formal habilitation review process. Plaintiffs’ Exhibits in Support of Motion for Partial

Summary Judgment, No. 18, pp 1, 12. Continued institutionalization under the circumstances set forth above is not appropriate. This court is acutely aware of the admonition, articulated in Youngberg, supra, that the lower federal courts “show deference to the judgment exercised by a qualified professional” when determining whether a state institution has provided a mentally retarded patient “with such training as an appropriate professional would consider reasonable to ensure his safety and to facilitate his ability to function free from bodily restraints.” 102 S.Ct. at 2461.

However, that Court specifically noted that “[i]t may well be unreasonable not to provide training when training could significantly reduce the need for restraints or the likelihood of violence.” Id. Unlike the facts in Youngberg, the plaintiffs in this case are not so situated that no amount of training can help them. The court finds that it is unreasonable that plaintiffs have not been placed on the community placement waiting list despite recommendations of defendants’ own professional staff.

When the Magistrate’s observations are viewed against the backdrop of the above Youngberg language, it is apparent that a protectable Fourteenth Amendment liberty interest exists in this case. Defendants have not shown good reason why members of the plaintiff class have not been afforded the hearings prescribed by O.C.G.A. § 37-4-42.

For the above, and other reasons presented by the Magistrate, the court finds that defendants’ failure to provide plaintiffs with the continued habilitation reviews, which could facilitate plaintiffs’ access to more appropriate treatment, violates the plaintiffs’ procedural due process guarantees. Accordingly, the court agrees with the Magistrate that plaintiffs are entitled to the continued habilitation review procedure on procedural due process grounds. Defendants also argue that they have not violated the plaintiffs’ equal protection rights.

Suffice it to say, the court is not persuaded by the defendants’ argument that the plaintiffs are not similarly situated to other classifications of patients who receive continued habilitation reviews. The court disagrees with defendants’ contention that plaintiffs retain a status of voluntary admittees merely because they were voluntarily admitted before 1978. It is established that a voluntary admittee’s status changes to that of an involuntary admittee upon an institution’s, or the state’s, refusal to grant her discharge upon an institution’s, or the state’s, refusal to grant her discharge upon her request.

Doe v. Public Health Trust of Dade County, 696 F.2d 901, 903 n. 10 (11th Cir.1983). Thus, this court agrees with the Magistrate’s finding regarding the equivalence of review procedures of the pre- and post-1978 admittees. The formal continued ha-bilitation review procedures offer the plaintiffs much more protection than the informal review procedures currently being exercised by the various hospitals.

Moreover, the court agrees with the Magistrate that the extension of the continued habilitation review procedures will not financially overburden the state, in view of the fact that the mechanism for such reviews is already in place. Substantive Right to Community Residential Placements This court agrees with the Magistrate, via analysis which differs from that of the Magistrate, that plaintiffs have no substantive due process right to habilitation in a community setting. This position is supported by the conclusions reached in a number of cases.

E.g., in Youngberg, the Supreme Court held that a state has no constitutional duty to provide substantive services for those within its borders; the Seventh Circuit Court of Appeals has held that where a state denied community placement to mentally retarded individuals, and instead, placed them in state institutions, no substantive due process to liberty was violated if that decision were based on professional judgment. Phillips v. Thompson, 715 F.2d 365, 368 (7th Cir.1983).

Moreover, the Second Circuit has held that there is no “entitlement to community placement or a ‘least restrictive environment’ under the federal Constitution.” Society for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239, 1248 (2d Cir.1984). This court is persuaded by the rationale of Cuomo, and shall rule upon this matter accordingly. The court notes that in Pennhurst State School & Hospital v.

Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), the Supreme Court ruled that the plaintiffs in that action were barred by the Eleventh Amendment from obtaining relief in federal court based on allegations that the state or its officials violated state law. Cuomo at 1248. “Thus, any relief granted to plaintiffs in this action must be based on either[,] federal statutes[,] or the federal Constitution.” Id.

As to this issue, no federal statutes apply, thereby leaving this court to determine whether the federal Constitution provides an entitlement to community placement or a least restrictive environment. See Cuomo at 1248. Citing Youngberg, the Second Circuit stated 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 that professional judgment. Id.

The Cuomo court elaborated that the Youngberg professional judgment standard is not insufficiently met merely because pertinent medical experts disagree with the care or treatment decisions that were actually made. Id. “Rather, it is a standard that determines whether a particular decision has substantially met professionally accepted minimum standards.” Id.

If the decision is made by a professional, it 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. In this case before the court, the parties have filed various affidavits which correspond to the language in Cuomo regarding expert medical testimony which does not agree.

Specifically, the parties have stipulated that mentally retarded patients fare better in community placements as opposed to institutional environments, and that certain professionals within the Georgia system have recommended that members of the plaintiffs’ class be placed in community living situations. However, premised upon affidavits of Richard Hagen, Joanne Mik-las, Dr. Donald Dunagan, and Bernard Wagner, the court finds that defendants’ decision to treat plaintiff in the institutional setting does not deviate from professionally accepted standards. See id.

In light of the above finding, this court’s responsibility is met regarding the issue of answering the substantive due process question. “Even if every expert ... agrees that another type of ... 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.” Cuomo, 737 F.2d at 1248-1249 (citing 457 U.S. at 323, 102 S.Ct. at 246 (“[i]t is not appropriate for the courts to specify which of several professionally accepted choices should have been made”)).

Therefore, this court holds that retaining residents at the various defendant institutions is not “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.” See Cuomo, at 1249 (citing 457 U.S. at 323, 102 S.Ct. at 2462). Thus, the minimum professional standards are satisfied. Id.

Section 504 This court is not persuaded by plaintiffs’ objections to the Magistrate’s Report and Recommendation regarding his finding on the

Section 504 claims of plaintiffs. Nor does the court adopt the Magistrate’s rationale that

Section 504 does not apply to situations wherein groups with varying degrees of handicap are treated differently. However, it adopts the Magistrate’s recommendation that defendants be granted

summary judgment on the

Section 504 issue because the facts of this case do not support the contention that plaintiffs were denied O.C.G.A. § 37-4-42 habilitation reviews “solely by reason of [their] handicap,” as the statute requires. 29 U.S.C. § 794. Apparently, the state legislature felt the need to establish a chronological bright-line as a means of triggering the habilitation review requirements, and it exercised its legislative prerogative in establishing September 1, 1978 as that bright-line. Conclusion The court 1. GRANTS defendants’ motion for

summary judgment on plaintiffs’ state law claims; 2. GRANTS plaintiffs’ motion for

summary judgment on plaintiffs’ right to receive O.C.G.A. § 37-4-42 continued habili-tation reviews; 3. GRANTS defendants’ motion for

summary judgment regarding substantive due process right to least restrictive treatment; 4. GRANTS defendants’ motion for

summary judgment on plaintiffs’

Section 504 claims. SO ORDERED, this 10th day of April, 1987. /s/Horace T. Ward HORACE T. WARD UNITED STATES DISTRICT JUDGE . Society for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239 (2nd Cir.1984); Phillips v. Thompson, 715 F.2d 365, 368 (7th Cir.1983). . The

Section 504 claim will be addressed infra.