United States v. Arkansas (794 F. Supp. 2d 935, 2011)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

J. LEON HOLMES, District Judge.

Most lawsuits are brought by persons who believe that their rights have been violated. Not this one. The Civil Rights Division of the Department of Justice brings this action on behalf of the United States of America against the State of Arkansas and four state officials in their official capacities alleging that practices at Conway Human Development Center violate the rights of its residents guaranteed by the Fourteenth Amendment, the Americans with Disabilities Act, and the Individuals with Disabilities Education Act. All or nearly all of those residents have parents or guardians who have the power to assert the legal rights of their children or wards. Those parents and guardians, so far as the record shows, oppose the claims of the United States. Thus, the United States is in the odd position of asserting that certain persons’ rights have been and are being violated while those persons— through their parents and guardians — disagree.

For its first claim for relief, the plaintiff alleges that patterns and practices at Conway Human Development Center violate the constitutional rights of its residents by failing to provide reasonably safe conditions; by failing to provide the level of habilitation and training necessary to protect the residents’ liberty interests and to ensure their rights and freedom; and by substantially departing from generally accepted standards of care in the medical, psychological, and other services provided by the Center. Cf. Youngberg v. Romeo, 457 U.S. 307, 322, 102 S.Ct. 2452, 2461, 73 L.Ed.2d 28 (1982) (finding that individuals involuntarily committed to a state institution must be assured adequate or reasonable training to ensure safety and freedom from undue restraint). Over the course of a six-week bench trial, the plaintiff examined witness after witness and introduced exhibit after exhibit in an effort to prove that many policies and practices of Conway Human Development Center substantially depart from generally accepted professional standards. See id. at 323, 102 S.Ct. at 2462 (recognizing that decisions of professionals are considered valid unless they constitute a substantial departure from accepted professional judgment, practice, or standards). The plaintiff makes allegations of abuse and neglect; takes issue with the Center’s use of restraints, psychological services, and medical services; and argues that the procedures used to prevent choking, aspiration pneumonia, fractures, decubitis ulcers, and other injuries are subpar. Finally, the plaintiff alleges that, because of the Center’s deficiencies, residents die prematurely. These allegations certainly are serious. They are not, however, supported by the weight of the evidence presented at trial.

For its second claim for relief, the plaintiff alleges that Conway Human Development Center violates the integration mandate of the Americans with Disabilities Act. Under the Act, a public entity must administer services, programs, and activities in the most integrated, least restrictive setting appropriate to the needs of qualified individuals with disabilities. Olmstead v. Zimring, 527 U.S. 581, 591-92, 119 S.Ct. 2176, 2183, 144 L.Ed.2d 540 (1999). In the context of this case, the terms “restrictive” and “integrated” refer to the level of interaction with nondisabled persons. An integrated setting is a “setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible,” while a restrictive setting is one in which disabled persons have less interaction with nondisabled persons. See 28 C.F.R. pt. 35, app. B (Mar. 15, 2011). The plaintiff alleges that Conway Human Development Center is not the most integrated setting appropriate for many of its residents; that the Center’s employees fail to provide parents and guardians with adequate information about other services that the plaintiff considers more integrated; and that the Center’s staff does not exercise professional judgment in determining the most integrated setting appropriate for residents. The weight of the evidence, however, indicates otherwise. The plaintiff has not met its burden under the Americans with Disabilities Act.

For its third claim for relief, the plaintiff alleges that Conway Human Development Center violates the rights of children at the Center under the Individuals with Disability Education Act by failing to provide them with free appropriate public education in the least restrictive environment. See 20 U.S.C. § 1412(a) (2006). The plaintiff offers evidence showing that children at the Center do not spend enough time in school; that special education teachers at the Center are not trained on the most advanced teaching methods and tools; that the education plans of the students are inadequate; and that the ratio of teachers to students does not meet state requirements. While the evidence supports the plaintiffs allegation that Conway Human Development Center does not provide free appropriate public education, the evidence also establishes that the Center has submitted a corrective action plan to the Arkansas Department of Education, which is the state agency responsible for supervising special education programs and monitoring their compliance. At the time of trial, the Department had yet to determine whether the corrective measures proposed in the plan would bring Conway Human Development Center into full compliance with the Individuals with Disabilities Education Act.

The Court conducted its bench trial from September 8, 2010, through October 15, 2010. At the conclusion of the trial, the parties requested that the filing period for post-trial briefs be delayed until completion of the official transcripts. The transcripts have been prepared, and briefs have been filed. Having received all of the evidence, the Court makes the following specific findings and conclusions.

I.

FINDINGS OF FACT

A. INTRODUCTORY FINDINGS OF FACT

Conway Human Development Center is a residential facility providing a variety of services for persons with developmental disabilities. It is one of six human development centers operated by the Division of Developmental Disability Services of the Arkansas Department of Human Services. Tr. 749-50, 764 (J. Green). The six human development centers have a total capacity of 1100 persons. Tr. 4332 (T. Kastner). One of the six, Alexander Human Development Center, was in the process of closing at the time of trial. Tr. 751 (J. Green). Alexander Human Development Center had 109 residents. Tr. 4332 (T. Kastner).

Conway Human Development Center is certified by the Centers for Medicare and Medicaid Services as an intermediate care facility for the mentally retarded, Tr. 4044 (T. Kastner), which means that it is eligible for and receives federal funds through Medicaid. It is licensed by the Arkansas Office of Long-Term Care for 539 beds. Tr. 533 (A. Richardson); Tr. 845 (A. Green); PL’s Ex. 229. Conway Human Development Center provides medical care, dental care, physical therapy, speech therapy, occupational therapy, special education, habilitation, and recreational services. Tr. 535, 642 (A. Richardson). It employs approximately 1200 persons on a 409-acre campus that includes thirty-two cottages, school buildings, a chapel, a gymnasium, a pool, an infirmary, and other buildings. Tr. 533 (A. Richardson); Pl.’s Ex. 229. The Center serves individuals with a wide range of disabilities through its various programs and has a number of procedures and policies in place to ensure that it is meeting the needs of its residents effectively.

1. The Residents of Conway Human Development Center

Residents of Conway Human Development Center are impaired in a number of ways. The large majority of those residents are classified as profoundly or severely mentally retarded. Tr. 5810 (K. Walsh). Most of them also have psychiatric disorders as well as additional impairments or disorders. On July 31, 2009, 509 persons ranging in age from seven to seventy-two resided at the Center. Pl.’s Ex. 229. Of those 509 residents, 399 were classified as profoundly mentally retarded; 77 were classified as severely mentally retarded; 25 were classified as moderately mentally retarded; 7 were classified as mildly mentally retarded; and 1 resident, pursuant to a respite, or short-term, admission, was described as functioning at a borderline level. PL’s Ex. 229. Fifty-two of the residents had autism; 171 had aggressive, destructive, or self-injurious behaviors; 319 had dual diagnoses (i.e., developmental disabilities and psychiatric diagnoses); 137 had fragile health; 307 had seizure disorders; 229 had cerebral palsy; 190 were non-ambulatory; 35 were hearing impaired; 21 were deaf; 129 were vision impaired; 36 were blind; 277 of the residents required devices (e.g., wheelchairs, braces, or orthotic devices) to maintain body alignment; and 484 required modified diets. PL’s Ex. 229.

Conway Human Development Center is the only human development center operated by the State of Arkansas that provides services to children. Tr. 764-66 (J. Green). In July of 2009, fifty-two of the residents at the Center were school-aged children, Pl.’s Ex. 229, and at the time of trial, forty-eight of the residents were under the age of twenty-one, Tr. 846 (A. Green). Many of these children came to Conway Human Development Center as a result of maladaptive behaviors. Tr. 846 (A. Green); Tr. 2272 (S. Thibadeau). They previously lived at home, in foster care, in group homes, or in other such settings and may have attended public schools. Unfortunately, their maladaptive behaviors proved to be more than then-caregivers and school officials could manage, so their parents or guardians sought to have them admitted to Conway Human Development Center. Tr. 2272 (S. Thibadeau); Tr. 3263-65 (M. Catron); Tr. 4055-57 (T. Kastner); Tr. 5145-49 (D. Nye); Tr. 5607-08 (B. Gale); Tr. 6212 (L. Kraus); Tr. 6616-18 (K. Priest); Tr. 6724-25 (B. Brewer). Some of the children are in the custody of the Division of Child and Family Services due to neglect, physical maltreatment, or sexual maltreatment. Tr. 6724 (B. Brewer).

2. Admission to and Discharge from Conway Human Development Center

Admission to Conway Human Development Center occurs only after certain requirements are met. Generally, a parent or guardian applies for admission to the Center on behalf of the child or ward and retains the right to withdraw the child or ward. Before a person can be admitted to Conway Human Development Center, a determination must be made that the Center is the least restrictive, most integrated environment in which the services needed by that person can be provided appropriately. Tr. 4310 (T. Kastner); Tr. 5145 (D. Nye); Defs.’ Ex. 912, Division of Developmental Disability Services Policy No. 1086 § II(d)l.

In the twenty-six month period between January of 2008 and February of 2010, thirty-seven persons were admitted to Conway Human Development Center. Tr. 4335 (T. Kastner). Also during that time period, forty-four persons entered the Center for respite, or short-term, care rather than admission. Tr. 4336 (T. Kastner). Over a forty-six month period — between July 1, 2006, and March 17, 2010— seventy-two persons were discharged from Conway Human Development Center, which represents an average of almost two discharges per month. Tr. 5981 (K. Walsh). From July of 2009 through mid-October of 2010, six residents of the Center were discharged, as were fifteen persons who had entered for respite care. Tr. 6768 (A. Green). At the time of trial, sixty-five persons were on a waiting list for admission to Conway Human Development Center. Tr. 647 (A. Richardson); Tr. 4310 (T. Kastner); Tr. 5980 (K. Walsh).

3. Parents and Guardians of Residents of Conway Human Development Center

Many, if not most, of the parents and guardians of the residents of Conway Human Development Center keep themselves informed regarding the Center. They have formed the Conway Human Development Center Parents’ Association, which is comprised of parents and guardians who are concerned about the Center, its residents, its staff, and what is happening in human development centers around the state. Tr. 5055 (L. Taylor). The association meets quarterly. Tr. 5056 (L. Taylor). Many of the same parents and guardians are also members of a statewide organization, Families and Friends of Care Facility Residents, which is an umbrella group for all of the parent and guardian groups of the human development centers in the State of Arkansas. Some of the members of the statewide group have developmentally disabled family members who receive services in the community rather than in facilities like Conway Human Development Center. Tr. 5058 (L. Taylor). Together, the two parent organizations filed an amicus brief in opposition to the plaintiffs claims in this action.

According to the individual program plans and other evidence introduced at trial, the parents and guardians of residents of Conway Human Development Center are overwhelmingly satisfied with the services there and believe that the Center is the least restrictive, most integrated placement appropriate for their children and wards. Tr. 482 (S. Murphy); Tr. 4328-29 (T. Kastner). Ninety-seven percent of the parents and guardians of residents at Conway Human Development Center who responded to a survey stated that they were satisfied or very satisfied with the services that their children and wards receive. Tr. 4328 (T. Kastner); Tr. 5956-57 (K. Walsh). Six persons who were parents or guardians of residents of Conway Human Development Center testified at trial. Two of the six were nurses. All six of them testified that they were pleased with the services offered by Conway Human Development Center. Tr. 1502 (A. Fortney); Tr. 3249 (E. Stoddard); Tr. 3273-74 (M. Catron); Tr. 5069-70 (L. Taylor); Tr. 6832-34 (M. Black); Tr. 6850-52 (B. Landen). None of the six had any criticism of Conway Human Development Center.

4. Teams at Conway Human Development Center

The residents of Conway Human Development Center are divided into five “teams,” which are groups of residents assigned to a designated area with a specific group of employees responsible for their training and care. Defs.’ Ex. 910, Conway Human Development Center Policy No. II-A-1. The teams are, in order from the highest functioning residents to the residents with the greatest developmental disabilities, as follows: the Habilitation and Training Team, the Sheltered Living Team, the Individual Assistance Team, the Intensive Training Team, and the Total Care Team.

The Habilitation and Training Team consists of the residents at Conway Human Development Center who function at the highest intellectual level of those admitted to the facility. Their level of intellectual function ranges from the higher profound level of intellectual disability to the moderate level of intellectual disability, with some school-aged children functioning at the mild level. The majority of them are placed at Conway Human Development Center because of maladaptive behaviors. Tr. 1663 (C. Price); Tr. 6723-26 (B. Brewer).

The Sheltered Living Team consists of residents who function at the profound to mild or moderate level of intellectual disability. A large number of them have seizure disorders, issues related to swallowing, and maladaptive behaviors. Tr. 1663 (C. Price).

The Individual Assistance Team consists of residents who function in the lower profound to upper profound level of intellectual disability. Many of them have maladaptive behaviors and seizure disorders. They have low self-help skills and require manipulation in almost everything that they do. Tr. 1663-64 (C. Price).

The Intensive Training Team consists of residents in the lower profound level of intellectual disability. They have many maladaptive behaviors and seizure disorders. Their skill level is below that of the residents on the Individual Assistance Team. They require total assistance with self-help and daily living skills. Tr. 1664 (C. Price).

The Total Care Team consists of residents who are in the profound level of intellectual disability and have severe medical conditions. They are the most medically fragile residents at Conway Human Development Center. They typically are non-ambulatory. Many of them have major swallowing issues, and most of them are fed by a tube. They require total assistance with everything that they do. Tr. 1664 (C. Price).

Each of the five teams has a manager who is known as the team leader. The team leader is responsible for reviewing, monitoring, and approving programs and supervising the staff that is responsible for the residents on that team. Tr. 6722-23 (B. Brewer); PL’s Ex. 279.

5. Interdisciplinary Teams and Individual Program Plans

Each resident at Conway Human Development Center is served by an interdisciplinary team (which should not be confused with the teams into which residents are placed). A resident’s interdisciplinary team consists of persons from various disciplines who provide services to that resident. Each interdisciplinary team includes a program specialist who is a qualified mental retardation professional; the resident’s parent or guardian; a member of the direct care staff; the psychological examiner assigned to that resident; and other professionals who provide service for that particular resident, such as a physical therapist, an occupational therapist, a speech language pathologist, or a primary care physician. Tr. 636 (A. Richardson); Tr. 4860, 4901-03 (S. Murphy); Tr. 5017 (G. Miller).

Each resident’s interdisciplinary team prepares an individual program plan for that resident describing the resident’s needs as well as a program for addressing those needs. Defs.’ Ex. 910, Conway Human Development Center Policy No. IID-l. An individual program plan includes information submitted by the various professionals and direct care staff who provide services to that resident. The plan includes information about the resident’s social history, psychological assessment, medical care, dental care, medications, auditory assessment, nutritional status, dysphagia assessment, speech assessment, physical therapy assessment, occupational therapy assessment, special education, residential assessment, recreational interests, and other assessments as specified by the interdisciplinary team. Tr. 4901-07 (S. Murphy); Defs.’ Ex. SM-5; Defs.’ Ex. 910, Conway Human Development Center Policy No. II-D-1 at 5. Each individual program plan includes a transition plan and takes into consideration the resident’s rights, the strengths of the resident, the needs of the resident, the problems and liabilities of the resident, and the resident’s personal, long-range goals. PL’s Ex. 101-1 through 206.

Each resident’s interdisciplinary team meets at least annually to review the resident’s individual program plan. In addition to the annual meeting, the interdisciplinary team may meet as needed for what Conway Human Development Center calls “special staffing.” Tr. 4860, 4866, 4869-70 (S. Murphy). Special staffing occurs when a resident has significant maladaptive behaviors, medical issues, or other indications that some aspect of the individual program plan should be reconsidered.

6. Behavior Plans

In addition to their individual program plans, residents at Conway Human Development Center who have maladaptive behaviors usually have a safety plan, a positive behavior support plan, and a separate description of strategies to be used by staff in dealing with them. A safety plan is a plan for restraints, restrictions, or both. Tr. 5795 (K Walsh); Defs.’ Ex. 910, Conway Human Development Center Policy No. II-D-16. A positive behavior support plan is a plan to identify, develop, and support positive behavior. Tr. 5795-96 (K. Walsh); Tr. 6562 (K. Priest). Strategies direct staff as to how to best work with the residents. Tr. 5795-96 (K. Walsh); Tr. 6561-62 (K. Priest); Defs.’ Ex. 910, Conway Human Development Center Policy No. II-D-16. In September of 2009, 99 residents of Conway Human Development Center had safety plans, 33 had positive behavior support plans, and 295 had strategies. Tr. 5803 (K. Walsh).

7. Human Rights Committees

Conway Human Development Center has five human rights committees, one for each team, which review and approve specific treatment and behavioral interventions. Tr. 5010 (G. Miller). The human rights committees are comprised of a chairperson; a vice chairperson; center representatives; consumer representatives; and non-affiliated, community representatives. Tr. 5009 (G. Miller); Tr. 5934 (K. Walsh); Defs.’ Ex. 910, Conway Human Development Center Policy No. I-F-4. Conway Human Development Center psychological examiners are assigned to each of the human rights committees in a nonvoting role to provide information and consultation to the voting committee members. Tr. 5009 (G. Miller); Tr. 5934 (K. Walsh).

The human rights committees review issues of residents’ rights (such as the right to privacy), medical diagnoses, medications, behavior plans, safety plans, and individual program plans. They also review and decide whether to approve behavior plans that involve the use of restrictive or intrusive procedures. Defs.’ Ex. 910, Conway Human Development Center Policy. No. I-F-4. Prior to submission to a human rights committee, behavior plans are developed as follows: the interdisciplinary team establishes an objective and a plan; the psychological examiner formulates the behavior intervention plan; and the team leader, chief of psychology, and primary care physician review the plan. Then, written and informed consent is obtained from the parent or guardian. Tr. 5849 (K. Walsh). If the human rights committee does not approve a behavior plan, the interdisciplinary team must correct any impediment to approval that is identified. Tr. 5850 (K. Walsh). If the human rights committee approves a behavior plan, it is sent to the superintendent for his approval, and then staff and other Conway Human Development Center personnel are instructed on how to implement the plan. Tr. 5850 (K. Walsh). The psychological examiners train the staff as to how to implement the plan. Tr. 6589-90, 6599-6600 (K. Priest); Tr. 6677-78 (E. Glenn); Defs.’ Ex. 910, Conway Human Development Center Policy No. II-D-16 at 4,11,14.

8. Incident Review Committees

In addition to the human rights committees, Conway Human Development Center has another group of oversight committees called “incident review committees.” Each of the five teams has an incident review committee, and there is also a central incident review committee. Tr. 5936 (K. Walsh). The team incident review committees meet Monday through Friday, Tr. 5014-15 (G. Miller); Tr. 5936 (K. Walsh), while the central incident review committee meets monthly, Tr. 5936 (K. Walsh); PL’s Ex. GM-1. The incident review committees review reports of injuries, deaths, disruption of services to clients, patterns and trends, safety concerns, property damage, and workman’s compensation-related issues. PL’s Ex. GM-1; Defs.’ Ex. 910, Conway Human Development Center Policy No. I-F-15.

Conway Human Development Center is required to report to a State of Arkansas database incidents of maltreatment of residents by staff, fractures, cuts and lacerations that require stitches, bruises that require x-rays, client-to-client bites if there is a skin break or if an antibiotic is required, swellings, sprains if there are x-rays, abrasions and burns that require the application of medication or ointment, medication errors that require medical treatment, and certain other types of incidents. Tr. 5938-39, 5943 (K. Walsh); Defs.’ Ex. 910, Conway Human Development Center Policy No. I-E12; Defs.’ Ex. 911, Arkansas Department of Human Services Policy Manual §§ 1090 et seq.; Defs.’ Ex. 912, Division of Developmental Disability Services Policy No. 1027. Minor bumps and bruises are not reportable. Tr. 5938 (K. Walsh). The incident review committees review the incidents that must be reported to the state database. Tr. 5936-37 (K. Walsh).

The central incident review committee at Conway Human Development Center performs a second review of incidents that were reviewed by the team incident review committees. The central committee also provides oversight review for identifying trends and policy directions. It produces a quarterly incident report summary, which is a statistical report showing all incidents that occurred in the prior quarter. Tr. 5937-38 (K. Walsh).

9. Physical Therapy

Conway Human Development Center employs a staff of physical therapists who are licensed by the State of Arkansas, are assisted by physical therapy aides and assistants, and perform a number of functions at the Center. Tr. 5251-52 (L. Hancock). The physical therapy department performs assessments of new residents upon admission and reassesses them periodically during their residency. Tr. 5251 (L. Hancock). The department also provides wheelchair modifications, power wheelchair training, and wound care. In addition, the department hosts an orthopedic clinic each month. Tr. 5251 (L. Hancock). The department trains direct care staff in proper positioning and lifting and performs spot checks to determine whether direct care staff are complying with the training. Tr. 5254-55 (L. Hancock). The physical therapy department also prepares positioning programs for each resident in need of positioning services. Tr. 5263-64 (L. Hancock). Among other things, the positioning services are designed to avoid decubitus ulcers, also known as pressure ulcers, and to help prevent choking during mealtime. Tr. 5277-81 (L. Hancock).

Conway Human Development Center operates a physical therapy orthotics shop at which it constructs custom-made wheelchairs and other orthotics devices for the residents. Each device is form-fitted to the resident who will use it. Tr. 5265-69 (L. Hancock). Very few residential facilities have on-site orthotics shops. Tr. 3469 (M. Schmeler). A resident at Conway Human Development Center who needs a custom-made wheelchair can have one constructed and properly fitted to that resident’s specific needs within approximately two days. Tr. 5269 (L. Hancock). Mark R. Schmeler, Ph.D., an expert in occupational therapy specializing in assistive technology, described the turnaround rate at Conway Human Development Center’s orthotics shop as “lightning speed.” Tr. 3474-76 (M. Schmeler). When such a custom-made wheelchair or other device is ordered from a commercial vendor, the process may take four to six months. Tr. 5271 (L. Hancock).

B. FINDINGS OF FACT REGARDING ALLEGED VIOLATIONS OF THE FOURTEENTH AMENDMENT

The plaintiffs first claim for relief is that many of the conditions at Conway Human Development Center violate the constitutional rights of the Center’s residents. Specifically, the plaintiff alleges that Conway Human Development Center’s efforts to keep its residents safe and free from undue restraint substantially depart from generally accepted practices. The greater weight of the evidence is to the contrary.

1. Allegations that a Pattern and Practice of Abuse and Neglect and a “Culture Of Silence” Exist at Conway Human Development Center

The plaintiff alleges that Conway Human Development Center has a pattern and practice of abusing and neglecting its residents and that a “culture of silence” exists permitting abuse and neglect. That allegation is contrary to the greater weight of the evidence.

Carla Jo Osgood, called as an expert witness for the plaintiff, provided unconvincing testimony that abuse and neglect of residents is rampant at Conway Human Development Center and that a “culture of silence” prevails such that employees over time become reticent to report abuse and neglect. Osgood had no formal education in any field relevant to her testimony, nor is it evident that she has any experience that would qualify her to give expert testimony under Rule 702 of the Federal Rules of Evidence. See Tr. 37-41, 204-12 (C. Osgood); Pl.’s Ex. 1-1.

In her testimony, Osgood made mention of “generally accepted standards” but did not identify any source where such standards could be found other than the regulations that govern intermediate care facilities for the mentally retarded, which she regarded as outdated. Tr. 279-80 (C. Osgood). She testified that “the standards of practice are fluid over time and could have changed at any time in the last four months, twelve months, what have you.” Tr. 222 (C. Osgood). She did not refer to texts, journals, or other sources that would reflect shared knowledge among people who would qualify as experts in a particular field. Her testimony did not seem to connect to any identifiable body of knowledge or any identifiable discipline from which generally accepted standards might be ascertained. She stated that she had toured approximately thirty facilities in fifteen states, but she neither identified the facilities nor gave any description of them from which the Court could determine whether those facilities were comparable to Conway Human Development Center. She also provided no quantitative analysis comparing rates of abuse and neglect at Conway Human Development Center to rates at similar facilities or to any benchmarks. Tr. 269-72 (C. Osgood). Osgood leaped to the conclusion that a “culture of silence” exists at Conway Human Development Center based on the fact that, in a few instances, the staff member reporting maltreatment had worked at the facility less than six months and based on the fact the Center disciplines employees who fail to report maltreatment immediately, as the Center’s policy requires. Tr. 156-61, 168,181,183 (C. Osgood).

Even disregarding the issues relating to Osgood’s credibility, her testimony is contradicted by the greater weight of the evidence, which demonstrates that no pattern and practice of abuse and neglect exists at Conway Human Development Center.

To begin with, Conway Human Development Center has specific policies in place designed to protect its residents from maltreatment. Defs.’ Ex. 910, Conway Human Development Center Policy No. I-E-10. Conway Human Development Center policy defines “maltreatment” as including but not limited to “physical, verbal, psychological, or sexual abuse, neglect, exploitation, misappropriation of property, and violation of rights of individuals requiring services.” Id. § 1.4. Potential employees are screened for a history of maltreatment, and employees are trained on issues relating to maltreatment. Tr. 4872 (S. Murphy); Tr. 4990-94 (G. Miller); Tr. 6534-38 (J. Buck); Defs.’ Ex. 910, Conway Human Development Center Policy No. IE-10 §§ A.l and A.2. Conway Human Development Center policy requires that employees make an immediate report of any instance of maltreatment to the administration. Defs.’ Ex. 910, Conway Human Development Center Policy No. I-E-10 § B. The Center enforces this policy. Tr. 158-59, 179 (C. Osgood); Tr. 4872-73 (S. Murphy).

Conway Human Development Center also adheres to the Arkansas reporting laws, which require that state officials be notified of instances of abuse. If the victim of the alleged abuse is a child, the child abuse hotline is called, and if the victim of the alleged abuse is an adult, the adult abuse hotline is called. Tr. 4995 (G. Miller); Tr. 6873 (C. Price). The police are notified, as are the Office of Long-Term Care and the Arkansas Attorney General’s Office. Tr. 4995 (G. Miller); Tr. 6873 (C. Price).

In addition, Conway Human Development Center has procedures in place for reporting and investigating allegations of maltreatment. Maltreatment incidents are reported to the shift coordinator if they occur after hours or to the team leader if they occur during business hours. Tr. 4994 (G. Miller). When a report is made, the resident who suffered the alleged maltreatment is checked medically, the staff member is suspended, and an investigation is conducted by a person whose sole job is to investigate maltreatment allegations. Tr. 6873 (C. Price). At the time of trial, the investigator at Conway Human Development Center was an attorney. Tr. 4992 (G. Miller). The investigations are thorough and prompt. Tr. 5944-46 (K. Walsh); Tr. 6740 (B. Brewer). After the investigative report is completed, it is forwarded to the superintendent’s office for executive review. Tr. 4996 (G. Miller); Tr. 6874 (C. Price). The superintendent makes the final determination of whether credible evidence supports the allegation of maltreatment and forwards that determination to the team, along with written directives for the team to carry out. Tr. 4996 (G. Miller); Tr. 6874 (C. Price). If credible evidence supports the charge of maltreatment, the employee responsible for the maltreatment is immediately terminated. Tr. 232 (C. Osgood); Tr. 6740-42 (B. Brewer); Tr. 6875 (C. Price); Defs.’ Ex. 910, Conway Human Development Center Policy No. I-E-10 § F.

The annualized rate of substantiated instances of maltreatment at Conway Human Development Center is .054, which is comparable to published rates for other facilities. Tr. 5948-49 (K. Walsh). This fact supports the finding that there is no pattern and practice of abuse and neglect at the Center.

Moreover, the testimony of parents and guardians of residents at Conway Human Development Center also supports the finding that there is no pattern and practice of abuse and neglect at the Center. When a resident is involved in an incident of aggression, maltreatment, or injury, the Center notifies the parent or guardian unless the parent or guardian has specifically directed otherwise. Tr. 3236 (E. Stoddard); Tr. 3269, 3282 (M. Catron); Tr. 4868-69 (S. Murphy); Tr. 5033-34 (G. Miller); Tr. 5059 (L. Taylor). Parents and guardians are permitted to visit the Center unannounced. Tr. 3232 (E. Stoddard); Tr. 3270 (M. Catron); Tr. 5059 (L. Taylor). Even though they are permitted to visit unannounced, no parent or guardian of any resident, past or present, testified that he or she had reason to believe that Conway Human Development Center has a pattern or practice of permitting residents to be abused or neglected.

To the contrary, parents and guardians testified that the staff at Conway Human Development Center genuinely care about the residents and immediately report any issues that arise.

The first witness called for the defense was Earline Stoddard, whose forty-four-year-old son is a resident of Conway Human Development Center. Tr. 3230 (E. Stoddard). At the time of trial, Ms. Stoddard was an adjunct instructor for the School of Nursing at Baptist Health. She has worked in the nursing field for more than forty years. Tr. 3230 (E. Stoddard). Ms. Stoddard often makes unannounced visits to the Center to visit her son, and she has never seen anything that would cause her to be alarmed or upset. “I can tell you when he was in a school in Kansas, we were never allowed to go back to the cottage to see him. They always brought him to us. That’s one thing I like about Conway [Human Development Center], is you can go see your child any time you want to.” Tr. 3233 (E. Stoddard). Ms. Stoddard testified, “[I]t’s so important to me to know that the people who are caring for [my son] love him and will take care of him and are held responsible for it.” Tr. 3247 (E. Stoddard).

Melissa Catron’s son also is a resident of Conway Human Development Center. He was nineteen years old at the time of trial and had been a resident for more than four years. Tr. 3261-62 (M. Catron). Ms. Catron is a registered nurse. She testified that the Center works with her son on everything she could possibly want. She believes that he is loved there. “I don’t feel like anybody is there against their will to work with him. I’ve just not seen that. Everyone I’ve seen there that works with him wants to be there, that’s what they want to do, and they seem to care about the kids. I’m thrilled.” Tr. 3274 (M. Ca-tron).

The defendants also called as a witness Larry Taylor, who is the guardian of his fifty-eight-year-old younger sister. “Tests show that [my sister] functions at about two years and nine months.” She was fourteen years old when she was admitted. Tr. 5050 (L. Taylor). Mr. Taylor has lunch with his sister on a weekly basis. “I can rely on them to call me any time there’s an injury. And that means a bruise of 2 inches, a scratch, a fall from bed.” Mr. Taylor could not recall a time when he noticed that his sister had suffered an injury that he did not already know about. Tr. 5059 (L. Taylor).

Michael Black’s fourteen-year-old son was admitted to Conway Human Development Center when he was eight or nine. Tr. 6824 (M. Black). “They call if he gets a bruise or a bump or has an incident. They call and let us know that he fell and scraped his knee____They call and tell us that he’s fine, you know, we put a Band-Aid on it, we gave him a hug and a kiss, and he’s back to being a normal little child.” Tr. 6833 (M. Black). “All the workers there ... most of them that we know of have children of their own.... We’re happy that he’s in an environment where we know he’s safe and he’s going to get good sound medical care while he is there.” Tr. 6833-34 (M. Black).

Barry Landen is the guardian of his brother, who is fifty-five years old and has been a resident of Conway Human Development Center for more than forty years. Tr. 6842 (B. Landen). Landen’s brother was born blind.

[My brother] is an extraordinarily fragile individual. His balance, as I said, it’s just terrible, and it’s very easy for him to fall and hurt himself .... he doesn’t understand the concept of putting your fingers over the door when you slam will cause you a huge amount of injury. So the fact that nothing serious has happened to [my brother] in 40 years of living there is extraordinarily significant to me.

Tr. 6851 (B. Landon).

The testimony that staff members at Conway Human Development Center genuinely love and care for the residents is inconsistent with the allegation that there is a pattern and practice of abuse and neglect of residents at the Center.

Just as no parent or guardian testified to facts that would indicate a pattern or practice of abuse and neglect at Conway Human Development Center, similarly, no past or present employee offered any testimony indicating that such a pattern or practice of abuse or neglect exists. If a pattern or practice of abuse or neglect exists at Conway Human Development Center, some past or present employee would know of it and would have testified about it. Tr. 4873-74 (S. Murphy). If a “culture of silence” prevails such that present employees are disinclined to report abuse and neglect, some former employee would know of it and would have testified about it. No past or present employee testified that Conway Human Development Center has or has had a pattern or practice of permitting residents to be abused or neglected. No past or present employee testified that a “culture of silence” exists at Conway Human Development Center or that employees of the Center are reluctant to report abuse or neglect.

In fact, Johnny Lee Matson, Ph.D., who was called by the plaintiff as an expert witness in the field of psychology, testified that the psychology staff at Conway Human Development Center consists of “very nice people” who “were trying very hard” and “doing the best they could.” Tr. 1072 (J. Matson). Even though Dr. Matson believes that the technical skills of the psychology staff at the Center are deficient, he did not hesitate to say that they are good people who are doing their best, an observation that cannot be reconciled with the allegation that a pattern of abuse and neglect prevails.

Other witnesses described the staff at Conway Human Development Center as consisting of people who genuinely care for the residents and exhibit a loving attitude toward them. For example, Louis Kraus, M.D., who testified as an expert in child psychiatry, described the cottage personnel at Conway Human Development Center as follows:

They were amazing----I’ve seen a lot of different facilities over my professional career. Most of the cottage staff had been there for years, and they were not just there, in my opinion, because it was a job. They truly loved taking care of these kids. They would coddle them, they would hold them. There was a warmth with the staff that I observed during the day and early evening shifts, which I felt was very impressive. They also, I think it’s important, they had an understanding of the kids. Like, for example, one child that we talked about, TM, that had the orchiectomy, that staff really knew this child. They knew when people came up to him too quickly, that he’ll get anxious. They knew that when he’s cold, he shakes, and he likes it when it’s warmer out. They knew things about this child. And in each of the cottages and dorms, that’s what you found. That’s something refreshing, as opposed to people looking at their watches for the end of their shift.

Tr. 6225-26 (L. Kraus). Derek Nye, Ph. D., an expert in special education, testified:

I’m from New Jersey. There seems to be in my experience an edginess that exists all along the shoreline from Boston to Baltimore. And I see that edginess sometimes in our field, and it disappoints me on the east coast where staff have perhaps lost their focus as to why they are doing what they are doing. And I have seen it, quite frankly, in facilities I’ve worked at____And I saw it in some of the developmental centers in New York and New Jersey specifically. And I had a fear that I would ... see it here, too. Why not? And I was — pleasantly surprised is an understatement. I was overwhelmed by the caring attitude, by the compassion ... and not just the special educators. People from the boardroom to the washroom, they place these individuals at the center of everything. They understood that they were there because these individuals needed their assistance. And they never violated that trust. My experience is they didn’t violate that trust. And it was very impressive. And I saw that throughout in the classroom.

[Tjhere was a relationship, there was trust, there were students that were comfortable. Without being able to cite specifics, I believe certainly in my mind it’s a given that students who feel they are safe, they are comfortable, that they are loved, are going to have a greater capacity to learn and to love and to trust back. And I saw that given. People may argue that’s an intangible and perhaps it is, but when you’ve taught and you’ve been involved in as many places as I have in 36 years, you know it when you see it, and I saw it every day.

Tr. 5120-21 (D. Nye). Even if some of those who testified believe that the technical skills of the staff at Conway Human Development Center are deficient — as Dr. Matson does — it is not plausible to say that employees at the Center genuinely care for the residents and exercise their best efforts to attend to the residents’ needs while tolerating a pattern and practice of abuse and neglect about which they remain silent.

The greater weight of the evidence proves that no pattern and practice of abuse, neglect, or maltreatment of residents exists at Conway Human Development Center, and no “culture of silence” exists there. The evidence proves that Conway Human Development Center exercises reasonable care to prevent and to stop abuse, neglect, and maltreatment.

2. Allegations that Conway Human Development Center’s Use of Restraints Violates Residents’ Rights

Contrary to the plaintiffs allegations, and for the reasons that follow, the Court also finds from the greater weight of the evidence that Conway Human Development Center’s use of restraints does not violate the constitutional rights of its residents.

Residents of Conway Human Development Center engage in aggression toward others, self-injurious behavior, tantrums, destruction of property, ingestion of non-edible objects, and the like, which can be dangerous to the resident engaging in the behavior as well as to other residents and staff or property. The Center sometimes uses mechanical restraints including papoose boards, restraint chairs, restraint jackets, mittens, and helmets to contain dangerous behavior. Defs.’ Ex. 910, Conway Human Development Center Policy No. II-D-12 at 2-3.

If the use of restraints is to be a part of the program for a resident at Conway Human Development Center, the interdisciplinary team must prepare a safety plan and a positive behavior support plan. Tr. 6652 (K. Priest). Pursuant to the Center’s written statement of residents’ rights, mechanical restraints may be used when less restrictive interventions have failed and when “absolutely necessary to prevent the individual from injury to himself/herself and to others.” Defs.’ Ex. 910, Conway Human Development Center Policy No. ID-5 at 4. Conway Human Development Center’s policy on the use of planned restraints provides, “An individual may require the use of emergency or planned restraint ... to contain behavior that is dangerous to self, others, or property. Unless clinically contraindicated, the use of restraint is a last resort containment measure preceded by less restrictive measures.” Defs.’ Ex. 910, Conway Human Development Center Policy No. II-D12 at 1. The policy also provides:

Containment Restraint: Orders for restraint are time limited and shall not exceed one hour and 50 minutes for an adult or one hour for a child or adolescent. The individual is immobilized until calm by an approved device or devices which prevent movement of the body or parts of the body and/or normal function, not to exceed 15 minutes without an extension approved and documented by the QMRP /designee, preferably after face-to-face attention. Unless otherwise determined by the IDT, QMRP/designee, extensions will be obtained every 15 minutes until the individual is calm. The IDT should define what constitutes Calm behavior for this individual when used in a behavior program. Unless determined clinically contraindicated by the QMRP/designee, should time in restraint reach 55 minutes, the individual must be released for five minutes for the opportunity for motion, liquid intake, or toileting. Should time restraint reach 1 hour and 50 minutes, the individual must be released for at least 10 minutes for the previously listed activities. If this 10-minute release is judged to be a danger to the individual and/others, additional staff should be called to ensure safety for all concerned. Constant supervision is required.

Id. at 3 (bold, italics, and underlining in the original). The planned use of mechanical restraints must be reviewed and approved by the chief psychologist, the human rights committee, the primary care physician, the superintendent, and the parent or guardian. Tr. 6563-64 (K. Priest); Defs.’ Ex. 910, Conway Human Development Center Policy No. I-D-5 at 7.

In addition to the use of mechanical restraints as a part of a safety plan, Conway Human Development Center permits the use of mechanical restraints as an emergency measure to protect the resident or other residents from injury. The incident must be documented, and notice must be given to the interdisciplinary team, the child psychologist, the superintendent, the human rights committee, and others. An individual placed in a mechanical restraint must be monitored at least every fifteen minutes and must be given an opportunity for motion and exercise for at least five minutes during each hour. The unplanned use of mechanical restraints must be reviewed by the chief psychologist, the human rights committee, the primary care physician, the superintendent, and the parent or guardian. Defs.’ Ex. 910, Conway Human Development Center Policy No. II-D-13.

While the use of mechanical restraints is troubling, psychologists called by both the plaintiff and the defendants agreed that it is sometimes necessary to use mechanical restraints when providing , care for persons with the disabilities and psychiatric disorders found at Conway Human Development Center. Tr. 1180, 1248-49 (J. Mat-son); Tr. 5565 (B. Gale); Tr. 5855-56 (K. Walsh). The regulations that govern intermediate care facilities for the mentally retarded provide for the use of restraints within certain limits and with specified controls. See' 42 C.F.R. § 483.420(a)(6) (2011) (requiring facilities to ensure that residents are free from unnecessary restraints and are provided active treatment to reduce the need for physical restraints); 42 C.F.R. § 483.440(f)(3)(iii) (requiring a facility to have a committee consisting of staff, parents and guardians, and unaffiliated persons to review, monitor, and make suggestions regarding the use of physical restraints, among other things); 42 C.F.R. § 483.450(b)(l)(iv)(B) (requiring a facility to adapt and implement policies and procedures regarding the use of physical restraints for the management of inappropriate behavior); cf. 42 U.S.C. § 290ii (2006) (governing the use of restraints in facilities that receive federal funds). The policies of Conway Human Development Center comply with these regulations. The Center’s use of mechanical restraints is consistent with the regulations that govern intermediate care facilities for the mentally retarded and is not a substantial departure from generally accepted professional standards Tr. 5565-72 (B. Gale); Tr. 5854-60, 5871 (K. Walsh).

Conway Human Development Center has made and is making a conscientious effort to reduce the use of mechanical restraints. Implementation of a program of safety plans, positive behavior support plans, and strategies is part of that effort. From 2005 until the time of trial, the use of mechanical restraints at the Center declined by sixty-nine percent. Tr. 5798, 5865 (K. Walsh). In September of 2009, sixty-two residents had contingent restraints in their plans, which is approximately twelve percent of the residents. Tr. 5868 (K. Walsh). In other words, eighty-eight percent had no restraints whatsoever in their plans. From July of 2008 through July of 2009, eighty-eight percent of the incidents of restraints involved three individuals. Tr. 5868 (K. Walsh). At the time of trial, restraints had been removed from the plans of two of those three individuals. Tr. 5869 (K. Walsh).

Based on the greater weight of the evidence, the Court finds that no pattern and practice exists at Conway Human Development Center of using restraints without sufficient safeguards and supervision to ensure that the safety, welfare, and civil and human rights of residents are adequately protected; and the Court finds that the use of restraints at the Center does not represent a substantial departure from generally accepted standards applicable to intermediate care facilities for the mentally retarded.

3. Allegations that Psychological Services at Conway Human Development Center Substantially Depart from Generally Accepted Standards

Although the plaintiff alleges that the psychological services at Conway Human Development Center substantially depart from generally accepted standards, that allegation was not proven by the greater weight of the evidence.

Johnny Lee Matson, Ph.D., and Ramasamy Manikam, Ph.D., testified for the plaintiff that the psychological services offered at the Center depart substantially from generally accepted standards in a number of ways, but the Court had difficulty in ascertaining to what standards they referred and what they meant when they testified that a practice was a substantial departure from those standards. It appeared that when they used terms such as “departures from generally accepted standards,” they meant that the practices at Conway Human Development Center were not the best. That interpretation of their testimony was confirmed to some extent by Dr. Matson. On cross-examination, Dr. Matson testified that a substantial departure is the same thing as failing to meet best practices. Tr. 1219 (J. Mat-son). Although he modified that statement on redirect examination, Tr. 1301, 1327 (J. Matson), it still appeared to be an accurate description of the opinions offered by himself and Dr. Manikam, i.e., that the practices at Conway Human Development Center were not the best practices. For example, at one point Dr. Matson criticized one of the psychological examiners for using bar charts rather than graphs to record behavioral incidents of residents who have behavior plans. Tr. 1145-46 (J. Mat-son). Dr. Matson also said that something could be a standard even if only ten percent of the professionals in his field were doing it. Dr. Manikam testified, “In this field, [the] standards are fluid. It’s not a body that is setting the standard.” Tr. 3155 (R. Manikam). In the end, the Court concluded that Drs. Matson and Manikam were correct that the provision of psychology services at Conway Human Development Center could be improved, nor is it likely that anyone would argue to the contrary. The fact that psychology services at Conway Human Development Center could be improved does not mean, however, that the professionals who provide those services have departed so substantially from generally accepted standards that it cannot be said that they are exercising professional judgment.

The Court finds from the greater weight of the evidence that the professionals who are providing psychological services at Conway Human Development Center are exercising professional judgment and that their practices are within the boundaries of generally accepted professional standards. Psychological services are provided at Conway Human Development Center by ten psychological examiners licensed by the State of Arkansas. Tr. 1936-37 (C. Reddig). The chief psychologist, Dr. Carl Reddig, has an Ed.D. in psychology. Tr. 1938-39 (C. Reddig); Pl.’s Ex. 557. The licensed psychological examiners have master’s degrees in psychology, Tr. 1937 (C. Reddig); Tr. 6550 (K. Priest); Tr. 6672 (E. Glenn); Tr. 6712 (W. McKindra), and six of them are licensed to practice independently, Tr. 6689 (E. Glenn). Their qualifications meet the standards imposed by the regulations that govern intermediate care facilities for the mentally retarded. See 42 C.F.R. § 483.430(b)(5)(v). Conway Human Development Center’s practice of hiring master’s level, licensed psychological examiners is within the bounds of generally accepted practice at intermediate care facilities for the mentally retarded. Tr. 5875-76 (K. Walsh).

The evidence established that some and perhaps all of the psychological examiners at Conway Human Development Center lack formal training in applied behavioral analysis. The regulations that govern intermediate care facilities for the mentally retarded, however, do not require psychologists to have formal training in applied behavioral analysis. See 42 C.F.R. § 483.430(b)(5)(v). The evidence fails to show that it is a substantial departure from generally accepted practice for psychological services at such a facility to be provided by psychological examiners who do not have formal training in applied behavioral analysis.

The evidence also fails to prove that the practices followed and procedures used by the psychological examiners at Conway Human Development Center substantially depart from generally accepted professional standards. Much of the testimony at trial focused on functional behavior assessments, which are designed to determine the function that is served by maladaptive behaviors. Tr. 5794 (K. Walsh). The theory is that if the function of a maladaptive behavior can be determined, then that function can be served in another way so that the individual will not feel the need to engage in the maladaptive behavior. Tr. 6563 (K. Priest). These functional behavior assessments are used in formulating positive behavior support plans and strategies. Tr. 6562-63 (K. Priest). The psychological examiners at Conway Human Development Center exercise professional judgment in performing functional behavior assessments and in performing their other duties. Tr. 5828-30, 5836-37 (K. Walsh); Tr. 6566-70 (K. Priest); Tr. 6673-77 (E. Glenn). While it seems likely that Drs. Matson and Manikam could perform functional behavioral assessments and other duties of psychological examiners better than some of Conway Human Development Center’s psychological examiners, the evidence failed to establish that the functional behavior assessments or other work of the psychological examiners at the Center substantially depart from generally accepted professional standards. Tr. 5853-54 (K. Walsh).

4. Allegations that Conway Human Development Center Fails to Provide Adequate Medical Care

Although the plaintiff alleges that Conway Human Development Center has a pattern and practice of providing inadequate medical care to its residents, the greater weight of the evidence disproves that allegation.

At the time of trial, Conway Human Development Center had a staff of four full-time primary care physicians: Denise Thomas, D.O., who serves as the medical director; Patricia Parmley, M.D.; Jarrett Lea, M.D.; and Sam Schultz, M.D. Tr. 1724 (D. Thomas); Tr. 5482 (P. Parmley). Drs. Thomas and Lea are family doctors, and Drs. Parmley and Schultz are pediatricians. Tr. 5449, 5482 (P. Parmley). There was one vacancy on the medical staff at the time of trial. Tr. 6880 (C. Price). After-hours care is provided by another primary care physician, Dr. Gary Stewart, who resides at the facility. Tr. 1725 (D. Thomas). These primary care physicians are available to provide medical care to residents of Conway Human Development Center twenty-four hours per day, 365 days per year. Additional physician services, including those of a neurologist, an epidemiologist, and an infectious disease physician, are provided through a contract with the University of Arkansas for Medical Sciences. Tr. 6880 (C. Price). In addition to its physicians, Conway Human Development Center employs approximately twenty registered nurses and eighty-six licensed practical nurses. Tr. 5382, 5386 (S. Gardner). Not only is the Center sufficiently staffed with medical personnel to meet the needs of its residents, but it also provides psychiatric services in a manner that complies with generally accepted practices, uses and monitors medications appropriately, and provides medical services that are adequate to protect its residents.

In making findings related to medical care, particularly psychiatric care, at Conway Human Development Center, the Court must judge the credibility of the plaintiffs expert witnesses. Jodie Holloway, M.D., and Edwin J. Mikkelsen, M.D., who testified for the plaintiff, are board certified in general psychiatry and in child and adolescent psychiatry. Dr. Holloway is also board certified in forensic psychiatry. Both Drs. Holloway and Mikkelsen are qualified to give expert testimony in the field of psychiatry under Rule 702 of the Federal Rules of Evidence. Both are impressive individuals. Ultimately, however, they were not more believable than the experts called by the defendants, in part because in some notable instances their conclusions went beyond the scope of the support offered for those conclusions.

For instance, Dr. Holloway testified that psychiatric services at Conway Human Development Center are substandard with respect to children because the Center does not employ a psychiatrist who is board certified in child and adolescent psychiatry. Tr. 2514-16 (J. Holloway). In support of that opinion, she cited and read from a policy statement of the American Academy of Child and Adolescent Psychiatry, which was received into evidence as Plaintiffs Exhibit 870. Tr. 2516 (J. Holloway). That policy statement on its face applies to hospitals, not to intermediate care facilities. Tr. 6206-07 (L. Kraus); Pl.’s Ex. 870. Moreover, Dr. Holloway admitted on cross-examination that the American Academy of Child