Full opinion text
MEMORANDUM BLAKE, District Judge. This case raises complex medical, social and fiscal issues not easily addressed by litigation. The twelve representative plaintiffs are described either as “traumatically brain injured” (“TBI”) or “nonre-tarded developmentally disabled” (“NRDD”). Each is or has been a patient in a Maryland state institution. They have brought claims under the Due Process Clause of the United States Constitution, pursuant to 42 U.S.C. § 1983, and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. seeking relief for the State’s failure to provide them community treatment rather than institutional care. In 1996, the court issued an opinion denying the parties’ cross-motions for summary judgment. Williams v. Wasserman, 937 F.Supp. 524 (D.Md.1996). Thereafter, a 32-day bench trial was held. After hearing the evidence and considering the post-trial briefs, the court concludes that the plaintiffs have failed to prove their ADA and due process claims. Pursuant to Federal Rule of Civil Procedure 52(a), the following memorandum constitutes the court’s findings of fact and conclusions of law. BACKGROUND General Background In April 1994, plaintiff Gary Williams filed suit on behalf of himself and a putative class of similarly situated individuals seeking to have the State develop and implement a community-based treatment plan for each class member. In that suit, Mr. Williams named as defendants several officials from the Maryland Department of Health and Mental Hygiene (“MDHMH”): Nelson Sabatini, the Secretary, Mary Mussman, the Deputy Secretary for Public Health, Jack Buffington, the Chief Executive Officer of the Developmental Disabilities Administration (“DDA”), and Stuart Silver, the Director of the Mental Hygiene Administration (“MHA”). Since that time, Martin Wasserman has replaced Mr. Saba-tini, Georges Benjamin has replaced Ms. Mussman, and Diane Ebberts has replaced Mr. Buffington as defendants in this suit. In February 1995, the plaintiffs agreed to withdraw their Motion for Class Certification in light of the defendants’ assurance that the “State would apply the individual relief granted to all other persons similarly situated and in light of the fact that non-party beneficiaries can enforce the Court’s Order pursuant to F.R.C.P. 71.” (PJM-94-880, PJM-91-2564, letter submitted on February 6, 1995.) On June 13, 1995, Charles Biggs and Bobbie Kemble moved to intervene as plaintiffs. The court granted their motions on September 5, 1995 and granted a similar motion filed by plaintiff Ronald Cullen on February 29, 1996. (CCB-94-880, Orders issued September 5, 1995 and February 29, 1996.) Pursuant to an agreement among the parties, discovery was conducted on a group of 12 representative plaintiffs chosen by plaintiffs’ counsel. (Pis.’ Mot. for Partial Summ. J. at 1-2; Defs.’ Mot. for Summ. J. at 7-8.) That group includes nine TBI patients and three NRDD patients. All twelve of the representative plaintiffs are appropriately described as developmentally disabled. (Pis.’ Opp. to Defs.’ Mot. for Summ. J. at 2 n. 1.) The Maryland Code defines “developmental disability” as a severe chronic disability of an individual that: (1) Is attributable to a physical or mental impairment, other than the sole diagnosis of mental illness, or to a combination of mental and physical impairments; (2) Is manifested before the individual attains the age of 22; (3) Is likely to continue indefinitely; (4) Results in an inability to live independently without external support or continuing and regular assistance; and (5) Reflects the need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services that are individually planned and coordinated for the individual. Md. Code Ann., Health-General § 7-101(e) (2000). The two groups of plaintiffs are distinguished by the cause of their developmental disabilities. The TBI patients have suffered brain damage as the result of an accident or assault; the NRDD patients either have had developmental disabilities since birth or early childhood, or have suffered brain damage as the result of an illness. Mentally retarded patients were excluded explicitly from the suit. (Defs.’ Mot. for Summ. J. at 7 n. 6, citing Pls.’ Renewed Mot. for Class Cert.) The brain injuries incurred by the representative plaintiffs have rendered them very difficult to care for. They exhibit a set of characteristic symptoms which include “disorders of self-regulation such as low frustration tolerance, proneness to irritability, difficulty planning and directing behavior, ... and confusion, disorientation [and] memory loss as well.” (Culotta Tr. 10/21/96 at 21.) In addition, they can become aggressive or prone to uncontrollable impulsive behavior. (Cassidy Tr. 12/11/96 at 30.) As described at trial, “the majority of these individuals are actually handicapped by destructive behavior.” (Id.) Each of the representative plaintiffs has been a patient in a state residential institution and some remain residents. Those hospitals are administered by MHA which is a unit of the MDHMH. Md. Code Ann., Health-General §§ 2-101, 2-107(a), 10-406 (2000). DDA, another unit within MDHMH, also manages residential facilities, but they are for mentally retarded patients and are not at issue in this case. Id § 7-601. Both MHA and DDA also administer community treatment facilities and day programs for which the representative plaintiffs may qualify; they also may provide funding for patients to attend community and day placements that they do not administer. Id. at §§ 7-601-714, 10-514-524,10-903. In this case, the plaintiffs argue that they have been kept in state institutions despite acknowledgments that the residential hospitals are not appropriate for them and recommendations that they be placed in the community. They contend that this institutionalization violates the ADA and their due process rights. The plaintiffs have characterized the relief they seek as follows: 1. Declare that the defendants do not have the right to confine the plaintiffs in state psychiatric hospitals indefinitely when the treating professionals have recommended that plaintiffs are ready for discharge to the community; 2. Enjoin the defendants to place the plaintiffs into the more integrated, appropriate community based settings recommended by their treating professionals; 3. Enjoin the defendants to provide plaintiffs with an evaluation and placement process similar to that afforded to persons in the Knott program. (Pls.’ Post-Trial Reply at 5-6.) In July 1996, the court denied the parties’ cross-motions for summary judgment on the grounds that the court’s jurisdiction did not end when the representative plaintiffs were released from state institutions, that the opinions expressed by the defendants’ litigation experts were not conclusive of the due process claim, and that issues of material fact existed regarding the ADA claim. Williams, 937 F.Supp. at 524. Beginning in September 1996, the court held a 32-day bench trial which concluded on September 15, 1997. The parties then submitted post-trial briefs summarizing the evidence and arguments presented at trial. In addition, both sides submitted post-trial memoranda regarding the impact of the Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581, 607, 119 S.Ct. 2176, 2190, 144 L.Ed.2d 540 (1999). This briefing concluded in September 1999. No further factual evidence regarding the representative plaintiffs has been submitted since the close of the trial. Accordingly, this opinion employs the current state of the law, but reflects the facts as they were presented to the court between September 9, 1996 and September 15, 1997. The Representative Plaintiffs To more effectively manage discovery, the parties agreed to limit the evidence in this case to a set of twelve representative plaintiffs. Each of those plaintiffs claims to have been kept unnecessarily in a state institution rather than being provided community treatment. Since this suit was filed, several of the plaintiffs have been discharged to the community. Of those released, however, only Mr. Trail was discharged to an existing community placement; the others had placements developed for them specifically. Mr. Trail’s placement was not successful, and two of the representative plaintiffs, Mr. Chance and Mr. Puffinberger, were never discharged to the community. Those three plaintiffs continue to reside in state institutions. Ms. Lentz was discharged to the Deaton Brain Injury Center, a hospital unit that specializes in treating TBI patients. (Litaker Tr. 5/16/97 at 26-28; Bey-dler Tr. 5/16/97 at 85-86.) In addition, Ms. Kemble and Mr. Pollard, who were discharged to the community, died prior to the close of evidence in September 1997. The following section provides a brief description of each plaintiffs disability and the treatment each received in the state hospitals as well as an account of the efforts made to place each of them in the community. Charles Biggs On May 11, 1981, Mr. Biggs, then a high school senior, was hit by a drunk driver while riding his motorcycle. He suffered serious injuries and was in a coma for several months. Following the accident, Mr. Biggs was treated at the hospital and in the A.I. Dupont Center program for post-traumatic head injuries before being returned to his parents’ care. (Defs.’ Trial Ex. CB2 at 2, CB6 at 1.) Mr. Biggs’ parents cared for him until his behavior became unmanageable. He was admitted involuntarily to the Upper Shore Community Mental Health Center in January 1986. (Defs.’ Trial Ex. B-1A; see also Defs.’ Summ. of Evid. at 6.) He remained institutionalized until his release to the Chesapeake Head Injury Center in January 1989. (Pls.’ Trial Ex. B-1A.) That placement proved unsuccessful, and he was returned to his parents’ care before being placed at the Meridian Point Head Injury Center in Arizona. (Defs.’ Trial Ex. CB6 at 1.) He remained at that facility from July 30, 1990 until July 10, 1991 whereupon he was discharged to the Waterview Healthcare Center nursing facility. (Id.) Because the nursing home was unable to control his aggressive behavior, and because his condition was deteriorating, Mr. Biggs was admitted involuntarily to the Eastern Shore Hospital Center on June 23, 1993. (Id., Defs.’ Trial Ex. CB8 at 1; Pls.’ Trial Ex. B-1B at 8.) On December 29, 1995, he was discharged to Crossroads, Inc., a community-based treatment program through which he currently lives alone with a 24-hour attendant. (Defs.’ Trial Ex. CB10 at 2; see also Defs.’ Summ. of Evid. at 6-7.) As a result of the accident, Mr. Biggs cannot walk unaided, but can manipulate a wheelchair and has used a walker. (Defs.’ Trial Ex. CB8 at 1.) He suffers severe cognitive impairment and serious behavioral problems, and can be violent and sexually inappropriate. (Id.) While institutionalized, he exhibited verbally and physically aggressive behavior toward fellow patients and staff, attempted to leave several of the treatment facilities, drove off in unattended cars, and made sexual advances and remarks toward patients and staff. ( Pls.’ Trial Ex. B-5; Meade Tr. 4/8/97 at 68; Schretlen Tr. 6/23/97 at 66; see also Defs.’ Summ. of Evid. at 23-24.) There has been no showing that Mr. Biggs suffered physical injuries at the hands of other patients or staff while in the treatment facilities. (Eglesder Tr. 4/8/97 at 29.) Nor was he secluded or physically restrained except when placed in a stationary chair as a form of behavior modification. (Id. at 33-34; Meade Tr. 4/8/97 at 92-94; Defs.’ Trial Ex. CB-15 at 2.) He was given sedative medications, including Ativan, phenobarbital, and Mellaril, periodically to control agitation. (Pls.’ Trial Ex. B-1A, B-1B, B-32.) In 1993, Mr. Biggs was transferred from the Waterview facility to the Eastern Shore Hospital Center at least in part because DDA determined that he would benefit from a community-based program and that he could more easily be placed in one from that facility. (Pls.’ Trial Ex. B-13, B-14, B-44.) Indeed, for the duration of Mr. Biggs’ placement at the Eastern Shore Hospital Center, the hospital’s Utilization Review Committee found him inappropriate for continued hospitalization. (Pls.’ Trial Ex. B-62.) Further, the parties agree that the “dispositional goal” or “long-term discharge plan” for Mr. Biggs during his time at that facility was release to a community placement facility and that his treating professionals thought he would benefit from such a placement. (Defs.’ Summ. of Evid., App. G-1; Pls.’ Trial Ex. B-1B, B-ll, B-12, B-16.) Accordingly, efforts to place him at several community facilities were made in July, September, November, and December 1993. (Defs.’ Summ. of Evid., App. H-1.) In February 1994, an application was made to Crossroads, but funding for that placement was unavailable. (Pls.’ Trial Ex. B-48.) Mr. Biggs was placed at Crossroads when funding became available in December 1995; he has remained there since that time. Edward Chance, Jr. Mr. Chance does not have a treatable psychiatric illness and has not suffered a major injury; he is NRDD, not TBI. (Pls.’ Trial Ex. EC-1B at 1; see also Defs.’ Summ. of Evid. at 9.) He suffers from pervasive developmental disorder which has caused the majority of his behavioral difficulties. (Pls.’ Trial Ex. EC-18.) He has also been diagnosed as being mildly mentally retarded with borderline intellectual functioning, and suffers from an impulse control disorder. (Id., Ex. EC-23.) Until he was 15 years old, Mr. Chance attended a series of public school programs for students with special needs. Because those programs were unable to control Mr. Chance’s disruptive behavior, his parents admitted him to the Johns Hopkins Hospital in November 1987 for evaluation. (Id., Ex. EC-2 at 32.) Mr. Chance remained at the hospital for eight months whereupon he was discharged to the National Children’s Center (“NCC”), a residential program for children with developmental disabilities, in July 1988. (Id., Ex. EC-1B at 2, EC-2.) He remained at NCC for the next six years, until he turned 21. Upon his discharge from NCC, Mr. Chance was placed with Life, Inc., a community residential service, and attended a day program at which he received one-on-one supervision. (Id., Ex. EC-7, EC-11; see also Defs.’ Summ. of Evid. at 9.) He remained in the community placement from July through November 1994. (Pis.’ Trial Ex. EC-3.) During those five months, Mr. Chance was hospitalized four times for psychiatric emergencies. (Id., EC-1B at 4.) After the fifth such occurrence, the hospital staff contacted the Spring Grove Hospital Center seeking to transfer Mr. Chance to that facility. (Id., Ex. EC-1B at 5.) Mr. Chance was admitted to Spring Grove on November 17, 1994 against the recommendation of that hospital’s admissions director. (Id., Ex. EC-15.) Apparently, Mr. Chance was admitted with the understanding that transfer would be sought to the Kennedy Krieger Institute. (Id., Ex. EC-15, EC-1B at 5-6.) Mr. Chance was not accepted at Kennedy Krieger because he did not meet that institution’s in-patient criteria. (Id., Ex. EC-37.) Other attempts to transfer Mr. Chance have proven unsuccessful and, as a result, he has remained at Spring Grove since his admission to that facility. During his residence at Spring Grove, Mr. Chance has exhibited extremely violent and unpredictable behavior. He has assaulted several nurses, patients, and doctors, threatened to kill a nurse and have sex with her dead body, and written threatening notes. (Defs.’ Summ. of Evid. at 35.) Moreover, throughout his life, Mr. Chance has shown a fascination with broken glass. (Id. at 9.) As a result of his violent behavior, Mr. Chance has been subjected to 2- and 4-point restraints, as well as seclusion, while at Spring Grove. (Id. at 35; Pls.’ Trial Ex. EC-1B at 14-15.) He is kept in restraints both as punishment for violent or inappropriate behavior and, for more extended periods of time, to prevent violent outbursts and to keep him controlled. (Pls.’ Trial Ex. EC-1B at 14-15; Gray Tr. 4/1/97 at 136-37, 151-52, 161; see also Defs.’ Summ. of Evid. at 35-36.) With the exception of minor injuries sustained during restraints, there has been no showing that Mr. Chance suffered injuries at the hands of the patients or staff while institutionalized. (See, e.g., Schretlen Tr. 6/23/97 at 58-59; see also Defs.’ Summ. of Evid. at 24.) On several occasions during Mr. Chance’s residence at Spring Grove, his treating professionals indicated that they were considering community placement for him. (Defs.’ Summ. of Evid., App. H-2.) There are not, however, specific recommendations that Mr. Chance be discharged to an existing community placement. (See, e.g., Defs.’ Trial Ex. EC-25 at 7.) Rather, there are recommendations for additional programs within Spring Grove to prepare Mr. Chance for an eventual community placement. (Pls.’ Trial Ex. EC-1B at 10-11, EC-10.) Ronald Cullen On April 14, 1972, Mr. Cullen, then 17 years old, was struck by a car and left comatose for several months. When he emerged from the coma, Mr. Cullen was severely brain damaged, physically and intellectually impaired, and suffered post-traumatic seizure disorder. (Pls.’ Trial Ex. C-1B at 1.) After being discharged from the hospital, Mr. Cullen received treatment at the Maryland Rehabilitation Center until May 1973. (Pls.’ Trial Ex. C-1B.) During that time, his condition improved to the point that he was able to live alternately with his family and girlfriend while working for the United States Government Printing Office. (Id., Ex. C-1A at 1, C-1B at 1.) In October 1980, Mr. Cullen suffered a second severe head trauma when he was struck on the head with a lead pipe during a mugging. (Id.) As a result of the second injury, Mr. Cullen’s condition declined, his compliance with the anticonvulsant medication decreased, and he began to suffer uncontrollable seizures; eventually, Mr. Cullen lapsed into a second coma which lasted several weeks. (Id., Ex. C-1A at 1, C-1B at 1, C-3 at 2.) During that coma, Mr. Cullen suffered decreased oxygen to his brain which resulted in further cognitive impairment. (Id., Ex. C-3 at 2.) That impairment prevented him from returning to work or living on his own. From 1980-85, Mr. Cullen lived alternately with his mother and father while attending a day program at the Rock Creek Foundation in Silver Spring, Maryland. (Pls.’ Trial Ex. C-1A at 1, C-1B at 2.) From 1985-89, Mr. Cullen lived in a group home in Maryland run by Life, Inc. (Id., Ex. C-1A, C-1B at 2, 210.) Subsequently, Mr. Cullen moved with his mother to Florida where she found supervised housing for him; he spent weekdays in the supervised housing and weekends with his mother. (Id.) Mr. Cullen and his mother moved back to Maryland in 1993 to live with Mr. Cullen’s brother and his family. Mr. Cullen’s brother sought community placement for Mr. Cullen, and DDA recommended him for residential and day services. (Id., Ex. C-44.) In March 1994, a trial visit was arranged for Mr. Cullen at a community residential program in Hagerstown, Maryland. (Id., C-1B at 3.) The trial was unsuccessful because Mr. Cullen entered a female patient’s room during the night and made sexual advances; he also rejected the day program at that facility. (Id.) On the way back from that failed trial, Mr. Cullen and his brother got into an altercation, and Mr. Cullen was admitted to the psychiatric ward at Prince George’s County Hospital. (Id.) A few weeks later, on April 7, 1994, Mr. Cullen was transferred to the Sheppard and Enoch Pratt Hospital, a private psychiatric hospital. (Id., Ex. C-1B at 3, C-8.) On July 5, 1994, Mr. Cullen was transferred to the Springfield Hospital Center. {Id., Ex. C-9.) Beginning in March 1995, while in residence at Springfield, Mr. Cullen attended a vocational program run by Athelas for 3lh hours each day. (Pls.’ Trial Ex. C-1B at 7.) He remained at the hospital until January 22, 1996 when he began a 28-day trial residence at a community placement facility run by Athelas which eventually led to his discharge from Springfield to that program on February 19. (Pls.’ Trial Ex. C-43; Defs.’ Trial Ex. G-111B.) He has remained at the Athelas community placement since that time. As a result of his injuries, Mr. Cullen suffers from ataxia which causes him to lose his balance. (Defs.’ Trial Ex. RC-28 at 35-70.) While institutionalized, he exhibited physically aggressive behavior, used inappropriate sexual and racial language, and engaged in frequent physical and verbal altercations. (Pls.’ Trial Ex. C-1B; see also Defs.’ Summ. of Evid. at 25.) To control this behavior, Mr. Cullen was placed in seclusion, but not restrained, on several occasions. (Brandt Tr. 3/6/97 at 610; Pls.’ Trial Ex. C-1A, C-1B; see also Defs.’ Summ. of Evid. at 36-37.) In addition, he was given Ativan to help calm him. (Pls.’ Trial Ex. C-1B at 11, C-37; Defs.’ Trial Ex. RC-28 at 3.) Further, for much of his time at Springfield, Mr. Cullen was under “1:1” supervision, meaning that he was under the supervision of a staff member whose sole responsibility was to supervise Mm in order to keep him from harming himself and others. (Reynolds Tr. 10/23/96 at 12-13, 29-30; Defs.’ Trial Ex. RC-28 at 19.) In October 1993, while he was living with his mother and brother in Maryland, DDA found Mr. Cullen eligible for its community residential and day programs and placed him in the “Crisis Resolution” category. (Pls.’ Trial Ex. C-44 at 1.) Accordingly, several attempts were made to place Mr. Cullen in a community treatment facility while he resided at the Sheppard and Enoch Pratt Hospital. (Pls.’ Post-Trial Reply Brief, App. F-2 at 1-2.) Those attempts proved unsuccessful. Similarly, from the time he was admitted to Springfield in July 1994, the staff recommended community placement for Mr. Cullen. (Reynolds Tr. 10/23/96 at 8, 40.) Indeed, one month after his admission, $100,000 was requested from DDA to fund a community placement for him. (Pis.’ Trial Ex. C — 13.) Moreover on September 9, 1994, the Mental Hygiene Administration (“MHA”) requested that DDA begin the process to contract community-based services for Mr. Cullen. (Id., Ex. C-14.) In so doing, the Acting Assistant Director of Adult Services for MHA wrote that “[s]inee he has been involved in several incidents, his continued stay at Springfield is precarious. Therefore, it is urgent that this gentleman be placed as quickly as possible.” (Id.) Mr. Cullen’s records throughout his stay at Springfield refer to the fact that he has met the criteria for community treatment and is awaiting funding or placement. (Id., Ex. C-15, C-16; Defs.’ Summ. of Evid., App. G — 3; Pls.’ Post-Trial Reply at 39 n. 83.) Funding was approved for Mr. Cullen’s placement in November 1994. (Defs.’ Trial Ex. RC-28 at 33.) Several attempts were made to place Mr. Cullen over the next 14 months. He was accepted at Absolute Communities in March 1995 but not placed at that facility. (Id. at 67.) In June 1995, a second residential program, Other Options, expressed interest in Mr. Cullen, but he was not placed at that facility either. (Id. at 85.) Finally, Mr. Cullen was placed at Athelas in January 1996. (Pls.’ Trial Ex. C-1A.) Connie Jackson Ms. Jackson, then 34 years old, was struck by an automobile on May 31, 1987. The driver of the car fled the scene, and Ms. Jackson lay unconscious on the side of the road for some time before being discovered and brought to the hospital. (Pls.’ Trial Ex. J-1B at 1, J-3 at 1; see also Defs.’ Summ. of Evid. at 10.) As a result of the accident, Ms. Jackson suffered brain damage, impaired intellectual ability and speech, severe behavioral problems, and serious physical injuries. (Pls.’ Trial Ex. J-1B at 1.) After several months in a Norfolk, VA hospital, Ms. Jackson was transferred to the National Rehabilitation Center in Washington, DC where she remained until being transferred to St. Elizabeth’s Hospital, also in Washington, DC, in February 1988. (Pls.’ Trial Ex. J-1A at 1, J-6 at 1, J — 7.) On April 21, 1988, Ms. Jackson was transferred to Springfield to be closer to her family. (Id., Ex. J-3; see also Defs.’ Summ. of Evid. at 10.) In 1989, Ms. Jackson was discharged to a community placement in West Virginia known as “the farm.” The placement was unsuccessful due to Ms. Jackson’s explosive TBI-induced behavior, and she returned to Springfield after a short stay. (Pls.’ Trial Ex. J-1A at 1, J-1B at 2; see also Def.’s Summ. of Evid. at 10.) Ms. Jackson was discharged from Springfield for a second time in November 1992. (Id.) She spent two nights at a shelter or on the street and then arrived at the Johns Hopkins Hospital emergency room after having her belongings and medication stolen. (Id.) She was treated at the psychiatric emergency room and then returned to Springfield where she was admitted for the third time. (Pls.’ Trial Ex. J-1A at 2, J-1B 2-3; see also Def.’s Summ. of Evid. at 10.) Ms. Jackson remained at Springfield until her discharge to a community residential program run by the Center for Neuro-Reha-bilitation (“CNR”) in August 1996. (Pls.’ Trial Ex. J-48; Defs.’ Trial Ex. G-111A at 3.) While institutionalized, Ms. Jackson was verbally and physically abusive. (Fitzgerald Tr. 3/31/97 at 120-21; Defs.’ Trial Ex. CJ-14 at 1.) In addition, she was aggressive and hypersexual and exhibited inappropriate and impulsive sexual behavior. (Zwart Tr. 3/31/97 at 17-18; Defs.’ Trial Ex. CJ-40 at 53-54; see also Defs.’ Summ. of Evid. at 11, 26.) To help control these behaviors, the staff used seclusion, a quiet room, and occasional restraints. (Pls.’ Trial Ex. J-1A; see also Defs.’ Summ. of Evid. at 38.) Ms. Jackson was proscribed Ativan and, .eventually, Mellaril to control her aggression. (Fitzgerald Tr. 3/31/97 at 127; Zwart Tr. 3/31/97 at 20; Pis.’ Trial Ex. J-1B.) Also, her treating psychologist developed a formal “behavior management plan” for Ms. Jackson which the plaintiffs claim was inadequate. (Cassidy Tr. 12/11/96 at 89; see also Defs.’ Summ. of Evid. at 52; Pls.’ Post-Trial Br. at 64.) While at Springfield, Ms. Jackson also participated in numerous organized activities. (Defs.’ Summ. of Evid., App. D.) Ms. Jackson was not considered appropriate for discharge to a community-based facility until some time after being institutionalized. (Pls.’ Post-Trial Reply, App. F-3.) The first indications that Ms. Jackson was ready for community placement occurred in 1994 when her treatment team indicated that she had been determined clinically appropriate for a less restrictive environment, but that no appropriate placement had been found. (Pls.’ Trial Ex. J — 61.) Over the next two years, Ms. Jackson was referred to a number of community treatment facilities, but was not accepted by any of them. (Pls.’ Post-Trial Reply, App. F-3; Defs.’ Summ. of Evid., App. G-4, H-4.) The record indicates that, during this time, her treating doctors found she could benefit from community treatment, but there was no facility available to meet her needs. Indeed, the testimony and medical records contain repeated references to the doctors’ opinion that an adequate community placement simply did not exist for a patient with Ms. Jackson’s needs. (See Defs.’ Summ. of Evid., App. G-4; Pls.’ Post-Trial Reply, App. F-3.) Ms. Jackson began to show behavioral improvement after being prescribed Mel-laril in late 1995 or early 1996; one of the psychologists who treated Ms. Jackson, Cheryl Zwart, testified that Ms. Jackson was not ready for discharge to community treatment until that time. (Zwart Tr. 3/31/97 at 20; see also Pls.’ Post-Trial Reply at 42 n. 98.) On January 24, 1996, the state held a “Prebidders Conference” at which agencies were invited to submit treatment and budget proposals for TBI patients, including Ms. Jackson, who were ready for discharge to a community treatment facility. (Pls.’ Trial Ex. J-47.) CNR was the successful bidder for Ms. Jackson, and she was discharged to that program in August 1996. There was concern up to the point of her discharge, however, that the facility would not provide adequate supervision regarding the dispensing of medication. (Defs.’ Trial Ex. CJ-40 at 196.) Felix Kam When he was seven and again when he was nine years old, Mr. Karn contracted tubercular meningo-encephalitis. The two episodes of the disease left him with brain damage, impaired intellectual functioning, severe behavioral problems, and partial paralysis of his left side. (Pls.’ Trial Ex. FK-1B at 1-2; see also Defs.’ Summ. of Evid. at 11.) He is NRDD, but not TBI. (Id.) Until 1967, Mr. Karn resided, alternatively, with his aunt and uncle, their family, and for some of the time, his mother. (Pls.’ Trial Ex. FK-1C, FK-4, FK-5, FK-7.) In 1967, Mr. Karn, then 17 years old, began exhibiting increasingly problematic behavior which eventually led to his placement in a foster home. (Id., Ex. FK-1B at 2.) His behavior deteriorated over the course of a year, and he was admitted to Springfield on June 4,1968. (Id., Ex. FK-8.) Mr. Karn remained at Springfield until December 1984, when he was placed in a community program at the Rock Creek Cornerstone Group Home. (Id, Ex. FK-9 at 4.) He was taken from that placement in April 1989 and returned to Springfield after becoming severely distraught upon learning of his uncle’s death. (Id., Ex. FK-1B at 2.) Approximately four months later, Mr. Karn was discharged to the residential placement in West Virginia known as “the farm.” (Id., Ex. FK-1B at 2, FK-10.) He did not succeed at the farm and was re-admitted to Springfield in April 1990. (Id., Ex. FK-14, FK-31A at 2.) Mr. Karn remained at Springfield until he was discharged to a community treatment facility through the Head Injury Rehabilitation Referral Service (“HIRRS”) on March 6, 1997. (Defs.’ Summ. Of Evid. At 11.) As a result of his brain damage, Mr. Earn exhibits poor judgment, loud and aggressive outbursts, and unpredictable behavior, including stealing and attempting to direct traffic. (Pls.’ Trial Ex. FE-1B at 3-4, FK-9 at 3.) There was no testimony that Mr. Earn suffered physical injuries while at Springfield. He was, however, occasionally secluded to control his behavior, and he was prescribed Haldol to control his aggression. (Treisman Tr. 3/5/97 at 392; Pls.’ Trial Ex. FE-1A.) While at Springfield, Mr. Earn had a written treatment plan that included behavior management. (Id. at 366.) He participated in structured occupational and recreational groups and had unstructured time to himself. (Greenwald Tr. 3/4/97 at 226; see also Defs.’ Summ. of Evid. at 53-54.) He also participated in on-and off-campus vocational day programs. (Greenwald Tr. 3/4/97 at 255-59.) Beginning in October 1992, and continuing until his discharge, Springfield’s Utilization Review Committee “disapproved” Mr. Earn’s continued hospitalization. (Pls.’ Trial Ex. FE-16.) In December 1992, the hospital applied to DDA on behalf of Mr. Earn seeking day and residential services. (Id., Ex. FE-28; Greenwald Tr. 3/4/97 at 251-52.) Further, in January 1993, in recommending that Mr. Earn be discharged, hospital staff wrote that “[h]e is ready to leave and live in the community if day and residential programs are available. At this time he is in the priority of inappropriately institutionalized.” (Pls.’ Trial Ex. FE-3 at 2.) Throughout 1993 and 1994, meetings were held by the hospital staff and DDA representatives in an attempt to find a community placement for Mr. Earn. (Pls.’ Post-Trial Reply, App. F-4.) In June 1994, Mr. Earn was referred to HIRRS. Apparently, HIRRS submitted a treatment plan to DDA for Mr. Earn in August 1994, and that plan was rejected due to inadequate funding. (Id.; Pls.’ Trial Ex. FE-24 at 3-4; Greenwald Tr. 3/4/97 at 264-65.) In March 1995, in an effort to locate alternative treatment options, Mr. Earn met with representatives from HIRRS again. (Pls.’ Trial Ex. FE-24 at 5.) In May 1995, Mr. Earn was interviewed by representatives from a residential program called Vantage Place but was not accepted. (Id., Ex. FE-25 at 2.) In November 1996, a social worker contacted HIRRS, and a program was established for Mr. Earn which led to his discharge in March 1997. (Pls.’ Post-Trial Reply, App. F-4; Defs.’ Summ. of Evid., App. H-5.) Bobbie Kemble On April 2, 1988, Ms. Eemble, then a 16-year-old high school junior, was struck by a motorcycle driven by a friend. (Pls.’ Trial Ex. BE-2 at 1.) The next day she lapsed into a coma that lasted several weeks. After receiving acute care at the hospital, she was transferred to the Een-nedy Institute in Baltimore for rehabilitation. (Id., Ex. BE-1A at 1, BE-2 at 1.) Four months later she was discharged to her family. (Id., Ex. BE-1A at 1.) Despite suffering brain damage and severe physical injuries and exhibiting impaired intellectual functioning and behavioral problems as a result of the accident, Ms. Eemble completed high school. (Id., Ex. BE-2 at 1.) Soon after graduating, Ms. Kemble’s behavior became unmanageable, and she was placed in an Easter Seal’s Group Home. (Id.) Her father removed her from the group home and, in September 1989, Ms. Kemble was admitted to a rehabilitation center in New Hampshire. (Id.) While at that facility, Ms. Kemble began to engage in rectal digging, a behavior in which she manually extracts feces by inserting her hand into her rectum. (Id.; see also Defs.’ Summ. of Evid. at 7.) Because the rehabilitation center could not treat that behavior, Ms. Kemble was transferred in June 1990 to the Cumberland Hospital in New Kent, VA. (Pls.’ Trial Ex. BK-2 at 1.) In January 1991, Ms. Kemble’s family insurance changed and Cumberland Hospital would no longer accept it. (Id.) Accordingly, she was discharged to Westbrook Hospital, a general public hospital in Richmond, and then transferred to Central State Hospital, a Virginia state psychiatric hospital (Id.) For the next three years, Ms. Kemble’s family sought to have her transferred to a Maryland facility. (Id.) They succeeded in July 1994, and Ms. Kemble was transferred to the Thomas B. Finan Center in Cumberland, MD. (Id., Ex. BK-22.) Ms. Kemble remained at that facility until February 23, 1996, when she was discharged to a community facility run by HIRRS. (Defs.’ Trial Ex. G-111B.) She died from undetermined causes less than one week later. (Pls.’ Trial Ex. BK-1B.) In addition to engaging in rectal digging, Ms. Kemble was physically and verbally aggressive, stole from other patients, and became frustrated or distracted easily. (Pls.’ Trial Ex. BK-5 at 3-4, 6; see also Defs.’ Summ. of Evid. at 7.) Physically impaired, she walked with an unsteady gait. (Pls.’ Trial Ex. BK-5 at 4.) The staff at Finan used a variety of methods to control Ms. Kemble’s rectal digging and aggressive behavior. (Lease Tr. 4/2/97 at 8-13.) A behavior management plan was created, but it was inconsistently applied and proved unsuccessful in decreasing those behaviors. (Id. at 16-17, 22-25; see also Defs.’ Summ. of Evid. at 55.) At times, Ms. Kemble was secluded and was placed in 2- or 4-point restraints or a geri-chair and posey vest. (Id at 39; Pls.’ Trial Ex. BK-1A, BK-1B, BK-54 at 3.) In addition, she was given Haldol and Ati-van, sometimes intramuscularly, to control those behaviors. (Pis.’ Trial Ex. BK-1B at 13.) Eventually, Ms. Kemble was given several treatment medications and provided “1:1” supervision, which apparently improved her behavior. (Schretlen Tr. 6/23/97 at 81; Defs.’ Trial Ex. BK-78 at 2-3; see also Defs.’ Summ. of Evid. at 55.) In addition, though she was unable to attend many of the meetings, she participated in occupational therapy groups and several other structured activities. (Pls.’ Trial Ex. BK-1B at 11; see also Defs.’ Summ. of Evid. at 56.) Ms. Kemble’s records from the weeks immediately after her admission to Finan indicate that her behavior and rectal digging made her inappropriate for placement in a community facility, but that a residential group home in which she was closely monitored and reintegrated into the community would be ideal. (Pls.’ Trial Ex. BK-2; Defs.’ Trial Ex. BK-9; Pls.’ Post-Trial Reply, App. F-5.) In October 1994, DDA placed Ms. Kemble in the Crisis Resolution category for day and residential services. (Pls.’ Trial Ex. BK-65.) In November, HIRRS evaluated Ms. Kemble at DDA’s request, and a meeting was held at Finan regarding the attempt to place Ms. Kemble in the community. (Id., Ex. BK-31; Pls.’ Posh-Trial Reply, App. F-5.) In January and again in March 1995, Ms. Kemble’s treatment team certified that “continued hospitalization” was indicated for her. (Defs.’ Trial Ex. BK-41 at 1, BK-55 at 1.) In May 1995, the treatment team indicated that Ms. Kemble was ready to be discharged to the community. (Defs.’ Summ. of Evid., App. G—6; Pls.’ Post-Trial Reply, App. F-5.) She met with HIRRS representatives again in May 1995, and there was an agreement that Ms. Kemble could be discharged to a residential program. (Pls.’ Post-Trial Reply, App. F-5.) Funding was approved for Ms. Kemble’s community placement in July 1995 and a discharge plan was developed over the next months. (Id.; Pls.’ Trial Ex. BK-63.) In February 1996, Ms. Kemble was discharged to the community treatment program organized by HIRRS. (Pls.’ Trial Ex. BK-1A.) Mane Lentz In August 1974, Ms. Lentz, then 25 years old, suffered a severe brain injury as the result of a car accident. After being treated at the hospital, Ms. Lentz returned home to live with her husband. In March 1978, her husband left her, and Ms. Lentz moved into an apartment by herself. (Pls.’ Trial Ex. L-1B at 2, L-1C at 1.) Approximately one month later, Ms. Lentz was arrested for shoplifting several cartons of cigarettes. (Id., Ex. L-6.) She was referred to Spring Grove Hospital, and voluntarily admitted on April 7, 1978. (Id., L-1C.) Ms. Lentz remained at Spring Grove until her discharge to the Deaton Brain Injury Center in January 1997. (Defs.’ Trial Ex. G-111A at 2.) As a result of her injury, Ms. Lentz developed a compulsive stealing problem which caused her to take the belongings of fellow patients throughout her tenure at Spring Grove. (Pls.’ Trial Ex. L-43 at 1, L-63 at 1.) She also displayed verbally and physically aggressive behavior and could be combative. (Litaker Tr. 5/16/97 at 42-44; see also Defs.’ Summ. of Evid. at 28.) She exhibited poor hygiene and was overweight, which led her to develop insulin-dependent diabetes. (Pls.’ Trial Ex. L-2 at 3, Ex. L-76 at 2.) In addition, Ms. Lentz suffered physical injuries in the accident and now walks with a limping gait and has a deformed right arm and speech impediment. (Pls.’ Trial Ex. L-1C at 1; see also Defs.’ Summ of Evid. at 12.) Ms. Lentz often was involved in altercations in the hospital. As a result, she received injuries ranging from bruises to contusions to sprains and a hip fracture. (Pls.’ Trial Ex. L-1B; see also Defs.’ Summ. of Evid. at 28; Pls.’ Post-Trial Br. at 71.) To control her aggressive behavior and prevent her from harming herself and others, Ms. Lentz was placed in restraints and seclusion. (Litaker Tr. 5/16/97 at 22-23.) In addition, prior to 1988, her hands sometimes were placed in mitten restraints to control her stealing. (Taylor Tr. 9/9/96 at 53; Pls.’ Trial Ex. L-1B at 4-9, 210.) A behavior management plan was developed for Ms. Lentz in an attempt to modify these behaviors. (Culotta Tr. 10/21/96 at 63.) In addition, Ms. Lentz participated in a number of activities at the hospital. (Litaker Tr. 5/16/97 at 26.) Further, after recovering from a broken hip, Ms. Lentz was kept on the Smith East ward, which generally housed only recuperating patients, for more than one year, ostensibly because that ward offered her greater supervision and stability. (Beydler Tr. 5/16/97 at 92-93; see also Defs.’ Summ. of Evid. at 57.) For several years, Ms. Lentz was prescribed Thorazine, an anti-psychotic medication. As a result of that medication, Ms. Lentz developed tardive dyskinesia, which causes her involuntarily to move her lips and tongue repetitively. (Pls.’ Trial Ex. L-62 at 2; see also Defs.’ Summ. of Evid. at 67-68.) The Thorazine treatment was discontinued in June 1995. (Pls.’ Trial Ex. L-62 at 1.) When she was first admitted to Spring Grove, Ms. Lentz was referred to foster care, and the hospital planned to look for outside placement. (Pls.’ Post-Trial Reply, App. F-6; Pls.’ Trial Ex. L-26, L-27, L-30.) She was not accepted for placement at that time and, at least until 1993, all recommendations in her record indicate that continued hospitalization was appropriate. (Pls.’ Post-Trial Reply, App. F-6; Defs.’ Summ. of Evid., App. G-7.) In 1993, Ms. Lentz was referred to the Deer’s Head Injury Unit, but that referral was discontinued “due to an administrative decision.” (Pls.’ Post-Trial Reply, App. F-6; Pls.’ Trial Ex. L-76; Defs.’ Trial Ex. ML-23.) In November 1994, Ms. Lentz’s treatment team determined that she could be placed in a less restrictive environment. (Pls.’ Trial Ex. L-90; Meszaros Tr. 6/10/97 at 59-60.) From April to June 1995, Ms. Lentz was interviewed by four community treatment facilities. (Defs.’ Summ. of Evid., App. H-7.) She was not placed at these facilities and, over the next two years, Ms. Lentz’s records reflect that her treatment team thought she could be discharged to a group home if one were available and could be funded. (Pls.’ Post-Trial Reply, App. F-6; Defs.’ Summ. of Evid., App. G-7.) She was interviewed and screened again in April 1996 by representatives of a program selected by the Baltimore Mental Health Systems who had agreed to place her. (Id.) Ms. Lentz was not placed at that time. She was discharged from Spring Grove in January 1997 to the Deaton Brain Injury Center. Alphonso Pollard In February 1993, Mr. Pollard was found unconscious in a stairwell. He was taken to Suburban Hospital in Bethesda, MD, where doctors performed a cranioto-my to remove a subdural hematoma. (Pls.’ Trial Ex. AP-1C at 1.) Apparently, Mr. Pollard had previously suffered a serious head trauma in October 1992. (Id.) He remained at Suburban for four weeks before being admitted to Springfield on March 30, 1993 due to behavior problems. (Id.) Mr. Pollard was discharged to the community in September 1996 and died in April 1997. (Defs.’ Summ. of Evid. at 12.) After his injury, Mr. Pollard demonstrated impaired memory, became easily confused and disoriented, could be combative, and exhibited a tendency to wander off the hospital grounds. (Id. at 29; Pis.’ Trial Ex. AP-1B at 1, AP-1C at 1.) When admitted to Springfield, Mr. Pollard also suffered from several physical ailments, including a kidney disorder and active tuberculosis, which likely were due to years living on the streets and drinking heavily prior to his hospitalization. (Pls.’ Trial Ex. AP-1C.) Those ailments were treated upon his admission to Springfield and he was given neuroleptic medications; he did not, however, undergo neuropsychological testing. (Treisman Tr. 3/5/97 at 386-90; see also Defs.’ Summ. of Evid. at 68-69.) Although he was considered to have TBI, it is also possible that he suffered from Wer-nicke-Korsakoff syndrome, which is associated with excessive alcohol consumption and poor nutrition. (Pls.’ Trial Ex. AP-2; see also Defs.’ Summ. of Evid. at 12.) To control his outbursts, Mr. Pollard was secluded frequently, and was restrained on a few occasions early in his hospitalization. (Pls.’ Trial Ex. AP-1A.) The frequency with which Mr. Pollard was secluded decreased over the time he was at Springfield. (Pls.’ Trial Ex. AP-1A; Choma Tr. 3/3/97 at 104-08; see also Defs-.’ Summ. of Evid. at 41.) Mr. Pollard was given Ativan, Hydroxine, and Mellaril to control his agitation. (Pls.’ Trial Ex. APIA; Treisman Tr. 3/5/97 at 387-88.) A master treatment plan was developed for Mr. Pollard in which methods to control his aggressive behavior were outlined. (Ziesat Tr. 3/4/97 at 161-62.) He participated in several groups at the hospital including an off-campus day program, and particularly enjoyed gardening. (Pls.’ Trial Ex. AP-18, AP-19, AP-20; see also Defs.’ Summ. of Evid at 58-59.) Despite those efforts, Mr. Pollard was involved in several altercations, but was not seriously injured. (Defs.’ Summ. of Evid. at 29.) The first indication Mr. Pollard was ready for community treatment occurred in January 1995 when his treatment team indicated that it would begin pursuing a placement for him. (Pls.’ Post-Trial Reply, App. F-7; Hyman Tr. 3/4/97 at 209-10.) Mr. Pollard’s records covering the next 18 months are contradictory. On the one hand, in February and March 1995, Mr. Pollard was referred to DDA, and a placement with the Deaton Brain Injury Center was explored. (Pls.’ PosG-Trial Reply, App. F-7; Pis.’ Trial Ex. AP-26.) In April and May of that same year, Mr. Pollard was evaluated by several community treatment facilities, DDA worked to find him a placement, and his records contain notations that he was ready for discharge. (Pls.’ Post-Trial, Reply, App. F-7; Pls.’ Trial Ex. G-298.) On the other hand, one of Mr. Pollard’s treating psychologists, Dr. Zeisat, noted throughout this time that Mr. Pollard was not yet ready for community treatment and that continued hospitalization was required. (Pls.’ Post-Trial Reply, App. F-7; see also id. at n. 2.) The efforts to discharge Mr. Pollard continued through 1995 and into the summer of 1996. (Id.) He was interviewed by a large number of community providers, and eventually placed with CNR. (Pls.’ Trial Ex. AP-1A.) Dr. Zeisat apparently did not agree that Mr. Pollard was ready for community treatment until late summer 1996, when he was provided information about the CNR placement. (Def.’s Summ. of Evid., App. G-8.) Mr. Pollard was discharged in September 1996. (Id., App. H-8.) Lester Puffinberger When he was seven years old, Mr. Puf-finberger fell out of a moving car and suffered a brain injury that left him slightly uncoordinated and “not quite the same.” (Pls.’ Trial Ex. LP-1A at 1, LP-22 at 1; see also Defs.’ Summ. of Evid. at 13.) He recovered sufficiently to complete school through the ninth grade and hold part-time jobs thereafter. (Pls.’ Trial Ex. LP-1C.) On September 1, 1983, Mr. Puffinber-ger, then 29 years old, was struck by a car while riding a bicycle. (Pls.’ Trial Ex. LP-1A at 1.) After receiving acute care in the hospital for nearly two months, Mr. Puffinberger was transferred to the Bryn Mawr Rehabilitation Hospital in Pennsylvania where he remained until March 5,1984. (Id., Ex. LP-1A at 1.) At that time, he was transferred to the John L. Deaton Medical Center, a private hospital in Baltimore, where he remained for three years. (Id.) In June 1987, Mr. Puffinberger was transferred to the Arundel Geriatric Center where he remained for less than two weeks before being involuntarily committed to the psychiatric ward of North Charles Hospital. (Id.) On July 12, 1988, Mr. Puffinberger was discharged to the Inns at Evergreen, a second nursing home. (Id. at 2.) He remained there for two weeks before being readmitted to the North Charles Hospital for emergency psychiatric care. On August 8, 1998, Mr. Puffinberger was released back to the Inns at Evergreen where he remained for approximately one week before being admitted to the emergency room at the University of Maryland Hospital for striking out at others at the nursing home. (Id.) When the Inns at Evergreen refused to accept him back, he was transferred to Springfield, where he still remains. After the second accident, Mr. Puffin-berger suffered post-traumatic seizures and was diagnosed as globally aphasic. (Culotta Tr. 10/22/96 at 235.) He has a severe cognitive impairment and, since the accident, has exhibited a limited ability to communicate, becomes easily frustrated and disoriented, and has been verbally and physically aggressive. (Pls.’ Trial Ex. LP-2, LP-6.) He is very unsteady on his feet, cannot walk without assistance, falls frequently, is blind in his left eye, and has poor vision in his right eye. (Id.) Mr. Puffinberger’s falls have resulted in several broken bones, lacerations, and other injuries. (Culotta Tr. 10/22/96 at 232; Pls.’ Trial Ex. LP-1B at 13-14; see also Defs.’ Summ. of Evid. at 29-30.) To control his agitation and, thereby, prevent him from falling, Mr. Puffinberger has been placed in seclusion and given several medications. (Pls.’ Trial Ex. LP-1B at 13, Ex. LP-30, LP-35; see also Defs.’ Summ. of Evid. at 41.) In addition, a master treatment plan was developed for Mr. Puffin-berger to encourage good behavior. (Treisman Tr. 3/5/97 at 411; see also Defs.’ Summ. of Evid. at 59-60.) He has attended physical and communication therapy as well as day and evening group activities. (Defs.’ Summ. of Evid. at 60-61.) He has also been under “1:1” supervision for significant periods of his time at Springfield. (Defs.’ Trial Ex. LP-29.) In 1993, after his second ankle fracture, the hospital placed Mr. Puffinberger in a geri-chair and posey vest to prevent him from injuring himself. (Pls.’ Trial Ex. LP-57.) Apparently, Mr. Puffinberger has spent most of his waking hours, when not participating in therapy sessions, in the geri-chair, or a wheelchair, and the vest. (Pls.’ Trial Ex. LP-1B at 14-15; see also Defs.’ Summ. of Evid. at 41-42; Pls.’ Post-Trial Br. at 78.) The devices have not been entirely successful in preventing injury, however, as Mr. Puffinberger has fallen from bed and while being transferred from his wheelchair. (Pls.’ Trial Ex. LP-1B at 14.) When first admitted to Springfield, Mr. Puffinberger was not an appropriate candidate for community treatment. (Defs.’ Trial Ex. LP-26.) In March 1990, Mr. Puffinberger’s treatment team referred him to DDA seeking community day and residential services. (Pls.’ Trial Ex. LP-7; Goldman Tr. 3/4/97 at 281.) In January 1991, DDA approved Mr. Puffinberger for the “priority category of inappropriate institutionalization” and stated that he would be considered for community services when funding was available. (Id., Ex. LP-8.) Over the next five years, Mr. Puffinber-ger’s records reflect that he was considered to be a poor candidate for community treatment or placement in a nursing home. (Pls.’ Post-Trial Reply, App. F-8; Defs.’ Summ. of Evid., App H-9, G-9.) Beginning in January 1995, renewed efforts were made to place Mr. Puffinberger. A second application was made to DDA, and in March, he was placed in the “crisis resolution” category for day and residential services. (Pls.’ Trial Ex. LP-65 at 1.) Over the next two years, Mr. Puffinber-ger’s medical records reflect that he was ready for discharge from Springfield, and he was referred to a significant number of treatment facilities. (Id., Pls.’ Post-Trial Reply, App. F-8; Defs.’ Summ. of Evid., App. H-9.) Thus far, none of the placement efforts have been successful, and Mr. Puffinberger remains at Springfield. John Trail Shortly after birth, Mr. Trail was placed at an orphanage and then with foster parents. At age two, he suffered a severe convulsion. In the years that followed, he suffered several more convulsions and was diagnosed with epilepsy at age four. (Pls.’ Trial Ex. T-1B, T-1C.) As a result of the seizures, Mr. Trail suffered brain damage that caused him to exhibit behavioral problems, including tantrums and aggression. (Id., Ex. T-1B at 1, T-2.) Until 1957, Mr. Trail lived alternately in an orphanage and nine foster placements. (Id., Ex. T-1B at 1, T-1C.) He completed the sixth grade and, in 1957, at age 12, Mr. Trail was admitted to Springfield. (Id.) Mr. Trad remained at Springfield until 1968 when he was transferred to the Clifton T. Perkins Hospital, Maryland’s maximum security psychiatric institution. (Id., Ex. T-1A, T-6.) He was transferred back and forth between Perkins and Springfield three times over the next four years because he could not be managed at Springfield. (Id., Ex. T-1A, T-6, T-7.) He remained at Springfield from 1978 until 1982 when he was transferred back to Perkins. (Id., Ex. T-1A, T-3.) From Perkins he was discharged to a community placement organized by People Encouraging People (“PEP”) in December 1996. (Pls.’ Post-Trial Reply, App. F-9.) While at the community facility, Mr. Trail assaulted a staff member with a space heater which resulted in his re-admission to Perkins in February 1997. (Defs.’ Trial Ex. JT-61.) He has remained at Perkins since that time. Mr. Trail demonstrates difficulties with agitation, low impulse control and self-destructive behavior. (Pls.’ Trial Ex. T-3 at 1.) He is also verbally and physically aggressive and has assaulted fellow patients and hospital staff. (Id.) There is no indication, however, that Mr. Trail suffered any serious injury himself as a result of this behavior. (Defs.’ Summ. of Evid. at 30-31.) To control his aggressive behavior, Mr. Trail has been frequently secluded and restrained. (Id. at 42-43; Pls.’ Trial Ex. T-1A, T-1B at 9-10.) He has also been given Ativan and other PRN medications to calm him. (Defs.’ Trial Ex. JT-12; Pls.’ Trial Ex. T-1B at 10, T-20; see also Defs.’ Summ. of Evid. at 42-43.) Eventually, seclusion and restraint were used less frequently in favor of quiet time and calming medication. (Defs.’ Trial Ex. JT-15, JT-19; see also Defs.’ Summ. of Evid. at 43.) A comprehensive behavior modification plan was implemented for Mr. Trail which was designed to reward positive behaviors. (Defs.’ Trial Ex. JT-13, JT-21 at 3; Kuhns Tr. 4/8/97 at 134, 143-44; see also Defs.’ Summ. of Evid. at 61.) He participated in “1:1” occupational therapy sessions while at Perkins and, beginning in March 1991, he attended an off-ward day program funded by DDA for several hours three days each week. (Pls.’ Trial Ex. T-1A; see also Defs.’ Summ. of Evid. at 62.) Mr. Trail succeeded quite well at the day program. (Pls.’ Post-Trial Br. at 66-67.) There is no indication that Mr. Trail was ready for community placement prior to 1992. At that time, his treatment team recommended that he be transitioned to a supervised community facility which could provide a more consistent environment and more individualized attention. (Pls.’ Trial Ex. T-12, T-37; Pls.’ Posh-Trial Reply, App. F-9.) In November 1993, the team applied to DDA for community services; it noted Mr. Trail’s need as “very urgent, in crisis.” (Pls.’ Trial Ex. T-9 at 7.) Over the course of the next year, Mr. Trail’s treatment team worked to prepare him for a less restrictive environment. (Defs.’ Summ. of Evid., App. G-10; Pls.’ Post-Trial Reply at 55-56, App. F-9.) During that time, the team applied to DDA to fund Mr. Trail’s placement, but DDA refused, apparently because he scored too highly on an IQ test and did not have an acute psychiatric illness; he, therefore, did not fit a category of patients for whom funding was available. (Pls.’ Post-Trial Reply, App. F-9.) In late 1994 and early 1995, the treatment team began to explore placement through the Baltimore Mental Health Systems. (Id.) Mr. Trail was determined to be an inappropriate candidate for placement at the Hamilton House, a “halfway house,” because the facility provided insufficient structure. (Id.) His behaviors began to improve in June 1995 and, in September, the treatment team recommended that he be transitioned to community placement at PEP. (Id.) Beginning in January 1996, Mr. Trail was slowly transitioned to an existing community placement at PEP’s residential facility, known as the Winston House. (Id.) Over the course of that year, there were difficulties with Mr. Trail’s behavior and the funding necessary to effect the transition, but he was formally discharged from Perkins in January 1997. (Id.) In February 1997, he attacked a staff member at that facility and was returned to Perkins where he has remained. (Id.) Gary Williams On July 27, 1980, Mr. Williams, then 19, was the victim of a hit-and-run car accident. He suffered severe physical injuries and remained in a coma for several months. (Pls.’ Trial Ex. W-1B at 1; see also Defs.’ Summ. of Evid. at 5.) After receiving acute care, Mr. Williams was transferred to the Montebello Hospital for rehabilitation. (Pls.’ Trial Ex. W-1A; see also Defs.’ Summ. of Evid. at 5.) In March 1981, he was transferred to the Crowns-ville Hospital Center, a state psychiatric institution, because his behavior was unmanageable. (Id.) Mr. Williams was released to his parents’ care in January 1982. (Id.) From 1982-1988, Mr. Williams lived either with his parents or in a community residential program. (Id.) Periodically during that time, he was placed in psychiatric hospitals when his behavior became unmanageable. (Id.) In August 1988, Mr. Williams was admitted to Springfield. (Defs.’ Trial Ex. GW-2.) One year later, he was transferred to Perkins because his erratic behavior could not be controlled at Springfield. (Id., Ex. GW-4.) Mr. Williams remained at Perkins until being discharged to a community placement operated by the Community Based Alternative and Initiatives residential program in June 1996. (Pis.’ Trial Ex. W-1A.) As a result of the accident, Mr. Williams has exhibited impaired intellectual functioning, seizures, hearing loss, cognitive deficits, an unsteady gait, and emotional instability. (Pls.’ Trial Ex. W-2.) He can be aggressive and self-injurious and exhibits inappropriate sexual behavior, including public masturbation, exposing himself, and kissing and grabbing female staff. (Joseph Tr. 4/9/97 at 25; Pls.’ Trial Ex. W-5; see also Defs.’ Summ. of Evid. at 5.) There was no testimony that Mr. Williams suffered physical injuries other than minor wounds inflicted in altercations, many of which he instigated. (Pls.’ Trial Ex. W-35, W-46; see also Defs.’ Summ. of Evid. at 31.) To control his aggressive behavior, Mr. Williams was placed in restraints while at Perkins. (Pls.’ Trial Ex. W-30, W-35.) Apparently, Mr. Williams was not secluded because he became self-injurious during seclusion. (Defi’s Trial Ex. G-21 at 5.) Mr. Williams was given several different medications to treat his physical ailments, control his psychosis, and calm him. (Pls.’ Trial Ex. W-30; Defs.’ Trial Ex. GW-3, GW-5, GW-6, GW-10; see also Defs.’ Summ. of Evid. at 43.) In addition, the staff developed a behavior management plan for him which involved redirecting Mr. Williams to a low-stimulus environment on occasions when he became agitated. (Briskin Tr. 4/3/97 at 132-33.) Mr. Williams also attended an off-campus day program run by Developmental Services Group, Inc. beginning in June 1990. (Pls.’ Trial Ex. W-31; Defs.’ Trial Ex. GW-7 at 2.) In September 1989, a few months after his admission to Perkins, a staff member filed a grievance with DHMH on behalf of Mr. Williams stating that Mr. Williams should not have been admitted to Perkins because he is “DDA-NR and not mentally ill.” (Pls.’ Trial Ex. W-49.) In response to the grievance, the Unit Director wrote that Mr. Williams, “while assaultive at times, requires intensive behavior modification [and] attention ... This patient does not require maximum] security hospitalization.” (Id., Ex. W-19.) The resident Grievance System Central Review Committee issued a final ruling on the grievance on October 30, 1989. The committee did “not totally agree that the transfer to [Perkins] was inappropriate.” (Id., Ex. W-20.) It stated that Mr. Williams’s behavior could be more effectively managed at Perkins, but acknowledged that “Mr. Williams could benefit from a transfer to a highly structured, staff intensive, behavior modification program.” (Id.) It went on to state that none of the MHA facilities were capable of providing that service, but that a plan of care had been constructed for Mr. Williams. That plan included evaluating Mr. Williams for a day program and “provid[ing] an individually tailored community residential program.” (Id.) If h